Blow to a ban

The Supreme Court lifts the Maharashtra government's ban on James Laine's book on Shivaji.

in New Delhi

ON July 9, the Supreme Court Bench comprising Justice D.K. Jain and Justice H.L. Dattu widened the horizons of free speech by lifting the ban on James W. Laine's book Shivaji: Hindu King in Islamic India, published by Oxford University Press in 2003.

The Maharashtra government banned the book through a notification in 2004. Sangharaj Damodar Rupawate, a well-known lawyer, film-maker Anand Patwardhan, and Kunda Pramila, a social activist, challenged the ban through a petition in the Bombay High Court. In the meantime, the Maharashtra government replaced this notification with a more detailed one, in December 2006. The High Court allowed the petitioners to amend their petition in such a way as to challenge the validity of this fresh ban.

The High Court, through a reasoned judgment in April 2007, quashed the 2006 notification, on the grounds that the book did not contain anything that amounted to an offence under Section 153A of the Indian Penal Code (promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, and so on, and doing acts prejudicial to maintenance of harmony) and that the State government had no material to show that the book had resulted in disturbance of public tranquillity or affected the maintenance of harmony between various groups. More important, the High Court relied on the Supreme Court's judgment in 2007 in Manzar Sayeed Khan vs. State of Maharashtra, quashing the first information report (FIR) registered against Laine under Section 153A of the IPC.

The State government, which appealed against this verdict in the Supreme Court, argued that the book contained derogatory references to Chhatrapati Shivaji and was thus prejudicial to the maintenance of harmony between Brahmins and Marathas who had been rivals historically at social and political levels. Referring to the court's observation that the notification did not identify these communities, the State government argued that this did not weaken the notification because it had to be read in the historical context.

In its July 9 judgment, the Supreme Court said: Undoubtedly, the power to forfeit a newspaper, book or document is a drastic power inasmuch as it not only has a direct impact upon the due exercise of a cherished right of freedom of speech and expression as envisaged in Article 19(1)(a) of the Constitution, it also clothes a police officer to seize the infringing copies of the book, document or newspaper and to search places where they are reasonably suspected to be found, again impinging upon the right of privacy. Therefore, the provision (Section 95 of Code of Criminal Procedure) has to be construed strictly and exercise of power under it has to be in the manner and according to the procedure laid down therein.

The Supreme Court emphasised that Section 95 of the Cr.P.C. is an enabling provision that empowers the State government to declare that copies of a newspaper, book or document be forfeited to the government. This power, the court held, postulates compliance with two essential conditions: i) the government must form the opinion that such publication is punishable under the specified sections of the IPC, which include Section 153A, and ii) the government must state the grounds on which it has arrived at this opinion. A mere citation of the words of the section is not sufficient, it said. The order may be brief but it cannot be issued without stating the grounds on which the government has framed its opinion, it held.

Among other factors, the Supreme Court laid down the following criteria to be considered while examining the validity of the notification under Section 95.

The State cannot extract stray sentences of portions of the book and come to a finding that the book as a whole ought to be forfeited.

The intention of the author has to be gathered from the language, contents and import of the offending material. If the allegations made in the offending article are based on folklore, tradition or history something in extenuation could perhaps be said for the author.

The effect of the words used in the offending material must be judged from the standards of reasonable, strong-minded and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view. The class of readers for whom the book is primarily meant would also be relevant for judging the probable consequences of the writing.

Although the Supreme Court assessed the notification on the basis of these principles, its task was made easier by virtue of its previous judgment in the Manzar Sayeed Khan case. The court said: It is explicit that the entire edifice of the impugned notification being based on the registration of the said FIR [against Laine], it gets knocked off by the decision of this Court.

The court further elaborated its reasoning: It is manifest that the notification does not identify the communities between which the book had caused or is likely to cause enmity. Therefore, it cannot be found out from the notification as to which communities got outraged by the publication of the book or it had caused hatred and animosity between particular communities or groups.

The notification had said that the book was likely to result in breach of peace and public tranquillity and in particular between those who revere Shri Chhatrapati Shivaji Maharaj and those who may not. The court found this too vague to pass the tests it had laid down. To the question whether it would identify the communities in Maharashtra that may not revere Shivaji, the State government had no answer before the High Court and the Supreme Court. The State government's reliance on the historical rivalry between Marathas and Brahmins was of no use because today in Maharashtra, no community would admit that it did not revere Shivaji.

While the State government's notification apparently failed the legal tests laid down by the court, it needs to be asked whether the passages in the book are indeed objectionable, as it was made out to be by the State government. Ironically, the State government reproduced the so-called offensive portions of the book in its notification, even though there was no legal necessity to do so. Prashant Bhushan, counsel for the respondents, asserted before the court that the book had nothing disparaging or malicious about Shivaji and his parents as alleged in the notification.

One of the objectionable sentences reads (Chapter V Cracks in the Narrative, page 93): The repressed awareness that Shivaji had an absentee father is also revealed by the fact that Maharashtrians tell jokes naughtily suggesting that his guardian Dadaji Konddev was his biological father. While the notification reproduced just this sentence out of context, those who have read the book have observed that Laine was only trying to make the point that Maharashtrians are acutely aware of the extent to which the absence of a father must have affected Shivaji. Read in context, it is a piece of evidence that Laine presents as part of his analysis of the Maharashtrian psyche and not an insinuation of Jijabai's (Shivaji's mother) infidelity.

Regarding the other allegedly offensive passages in the book, it is pointed out that the book must be understood as a judgment about how others interpreted Shivaji, and not how Laine himself thought of him. As Laine, a professor of Religious Studies, at Macalester College, Saint Paul, Minnesota, United States, claimed, he only attempted to trace the biographies and legends of Chhatrapati Shivaji from the 17th century to the present.

Although the July 9 judgment did not have to examine the merits of the State government's specific objections to portions of the book, it could very well have recorded that James Laine had refused to consider a suggestion to delete the so-called offensive passages to enable the State government to lift the ban on the book. The suggestion came from the previous Bench, comprising Justice Arijit Pasayat (since retired) and Justice P. Sathasivam, which heard the case on February 26, 2008. The Supreme Court's stay on the operation of the Bombay High Court's lifting of the ban on the book was equally questionable in view of the clear guidelines laid down in the July 9 judgment.