Guidelines for forfeiting controversial books: Supreme Court

In a recent decision in the matter of State of Maharashtra v. Sangharaj Damodar Rupawate, called upon to examine the validity of the order passed by the Government of Maharashtra directing forfeiture of every copy of the book captioned as “Shivaji – Hindu King in Islamic India” written by one Prof. James W. Laine, the Supreme Court laid down the guidelines to be followed while passing such orders of forfeiture/impounding of books. Holding that the decision of the State Government was incorrect and that the "statement in the notification to the effect that the book is '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' is too vague a ground to satisfy" the tests, the Supreme Court upheld the decision of the High Court setting aside the order of forfeiture passed by the State Government.

After a survey of its earlier decisions on the issue, the Supreme Court laid down the guidelines to the followed by the State Government in this regard as under;

25.It would thus, appear that no inflexible guidelines can be laid down to test the validity of a notification issued under Section 95 of the Code. Nonetheless the following legal aspects can be kept in mind while examining the validity of such a notification:

(i) The statement of the grounds of its opinion by the State Government is mandatory and a total absence thereof would vitiate the declaration of forfeiture. Therefore, the grounds of Government’s opinion must be stated in the notification issued under Section 95 of the Code and while testing the validity of the notification the Court has to confine the inquiry to the grounds so disclosed;

(ii) Grounds of opinion must mean conclusion of facts on which opinion is based. Grounds must necessarily be the import or the effect or the tendency of matters contained in the offending publication, either as a whole or in portions of it, as illustrated by passages which Government may choose. A mere repetition of an opinion or reproduction of the Section will not answer the requirement of a valid notification. However, at the same time, it is not necessary that the notification must bear a verbatim record of the forfeited material or give a detail gist thereof;

(iii) The validity of the order of forfeiture would depend on the merits of the grounds. The High Court would set aside the order of forfeiture if there are no grounds of opinion because if there are no grounds of opinion it cannot be satisfied that the grounds given by the Government justify the order. However, it is not the duty of the High Court to find for itself whether the book contained any such matter whatsoever;

(iv) The State cannot extract stray sentences of portions of the book and come to a finding that the said book as a whole ought to be forfeited; 

(v) 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;

(vi) If the writing is calculated to promote feelings of enmity or hatred, it is no defence to a charge under Section 153-A of the IPC that the writing contains a truthful kind of past events or is otherwise supported by good authority. Adherence to the strict path of history is not by itself a complete defence to a charge under Section 153-A of the IPC;

(vii) Section 95(1) of the Code postulates that the ingredients of the offences stated in the notification should “appear” to the Government to be present. It does not require that it should be "proved” to the satisfaction of the Government that all requirements of punishing sections, including mens rea, were fully established;

(viii) The onus to dislodge and rebut the prima facie opinion of the Government that the offending publication comes within the ambit of the relevant offence, including its requirement of intent is on the applicant and such intention has to be gathered from the language, contents and import thereof; 

(ix) The effect of the words used in the offending material must be judged from the standards of reasonable, strong-minded, firm 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.

Have a look at the decision.