Legally untenable

Print edition : September 11, 2009

WHILE announcing the ban in Gujarat on the sale, distribution and publication of Jaswant Singhs book on Jinnah, a State government spokesperson said that the book questions Sardar Patels role during Partition and his patriotic spirit.

This is an attempt to tarnish the image of Patel who is considered the architect of modern united India and is a bid to defame him by distorting historical facts, he said, adding that Patel was dear to the people of Gujarat.

The precise grounds on which the State Home Department issued the notification banning the book are not clear.

However, the State government has traced its power to ban the book to Section 95 of the Criminal Procedure Code (Cr.P.C.), which deals with the power to declare certain publications forfeited and to issue search warrants for the same.

Under this section, where a book appears to the State government to contain any matter the publication of which is punishable under Section 124A or Section 153A or Section 153B or Section 292 or Section 293 or Section 295A of the Indian Penal Code (IPC), it may, by notification, stating the grounds of its opinion, declare every copy of the issue of the book to be forfeited to government.

The Home Departments August 19 notification cited Sections 153A and 153B (imputations, assertions prejudicial to national integration).

A ban only within a State on a book that is marketed throughout the country is, on the face of it, difficult to enforce. That apart, the very basis of the State governments notification is legally unsustainable. If the grounds of the notification are almost the same as what the Gujarat government spokesperson identified, then the State government will have very little justification to offer if the ban is challenged in court.

The Bombay High Court held, while lifting the ban imposed by the Maharashtra government on James Laines book on Shivaji in 2007: The power [to proscribe a book] can only be exercised and the notification can only be issued if the government forms an opinion that the publication contains matter which is an offence under any of the sections of the IPC as aforestated [under Section 95, Cr.P.C].

Although the Supreme Court stayed this order on an appeal from the State government, the High Courts reasoning in this case leaves little room for justification of the ban on Jaswant Singhs book.

In the James Laine case, the Maharashtra government argued that the publication of the book was punishable under Section 153A. The High Court said that the intention to cause disorder or incite people to violence is the sine qua non of the offence under Section 153A, and the prosecution had to prove prima facie the existence of mens rea on the part of the accused.

The Supreme Court, while quashing the first information report registered against Laine by the Maharashtra government, held that the books contents did not constitute an offence under Section 153A. The High Court, therefore, said that once that be the case, the impugned notification could not stand and had to be struck down.

In its first notification banning the book in 2004, the State government stated that the publication of the book had severely affected the sentiments of the people, not only in Maharashtra but in the entire country, as Chhatrapati Shivaji Maharaj was held in high esteem as a Rashtriya Purush (national hero) and was revered by all irrespective of religion, race and caste. In 2006, the State government replaced this notification with another.

On the basis of the second notification, the High Court asked the Associate Advocate General to show the court any material in his possession that would indicate that the book was causing enmity between communities and which communities they were.

The Associate Advocate General had no answer.

As Shivaji was held in high esteem by all communities, by the State governments own admission, the question of invoking Section 153A could not arise. This provision could only be used when there was an attempt to promote enmity between different groups on grounds of religion, race, place of birth, residence, language, and so on, and commit acts prejudicial to the maintenance of harmony.

The court clearly held that there was no material to show that the book had resulted in the disturbance of public tranquility or maintenance of harmony among various groups.

However, the Supreme Court held while upholding the Karnataka governments ban on the Kannada novel Dharmakaarana that Section 95 of the Cr.P.C. was clearly preventive in nature and designed to prevent any disturbance to public order. Curiously, the Gujarat governments notification does not refer to any threat to public order from the publication of Jaswant Singhs book, let alone attract the provisions of the IPC mentioned in Section 95.

V. Venkatesan
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