This article contains a brief note for the leading case of State of Maharashtra v. Sangharaj Damodar Rupawate, (2010) 7 SCC 398, which is a part of the paper “Leading Cases” for the Supreme Court Advocate on Record Examination 2015. This note was a part of my lecture delivered in 2013 to about 100+ Advocates who were preparing for the AOR examination. It is a part of the AOR series on leading cases.
State of Maharashtra v. Sangharaj Damodar Rupawate, (2010) 7 SCC 398:
By a Notification dated 20-12-2006 issued under Section 95(1) CrPC, the Maharashtra Government directed forfeiture of every copy of the book “Shivaji – Hindu King in Islamic India” written by one Prof. James W. Laine. The notification indicated that in the opinion of the Government, the circulation of the said book, containing scurrilous and derogatory references to Shivaji, had resulted in causing enmity between various communities and had led to acts of violence and disharmony and that any further circulation of the said book was likely to result in breach of peace and public tranquillity. The said opinion was based on the grounds that the author had made several derogatory references, specified in the schedule appended to the notification, regarding Shivaji, in particular about his parentage and the Bhosle family; the said derogatory references were prejudicial to the maintenance of harmony between different groups and had disturbed the public tranquillity, the publication and circulation of the book had not only already resulted in causing enmity between the persons who revered Shivaji and other persons who might not so revere him but was likely to continuously cause such enmity. For publication of the book an FIR for offences under Sections 153 and 153-A read with Section 34 IPC had been registered against the author. In a petition filed under Section 96 CrPC read with Article 226 of the Constitution by the respondents herein and certain others, the High Court set aside and quashed the said notification. The State then filed the appeal thereagainst by special leave.
This case was decided by a 2-Judge Bench of the Supreme Court and it dismissed the appeal. Some relevant observations of the Court are as under:
- The power to issue a declaration of forfeiture under Section 95 Cr.P.C. postulates compliance with twin essential conditions viz. (i) the Government must form the opinion to the effect that such newspaper, book or document contains any matter, the publication of which is punishable under Section 124-A or Section 153-A or Section 153-B or Section 292 or Section 293 or Section 295-A IPC, and (ii) the Government must state the grounds of its opinion. Therefore, it is mandatory that a declaration by the State Government in the form of notification, to the effect that every copy of the issue of the newspaper, book or document be forfeited to the Government, must state the grounds on which the State Government has formed a particular opinion. A mere citation of the words of the section is not sufficient.
- 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 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.
- It is not correct to suggest that only the subjective satisfaction of the State Government was called for and the matter covered by the notification is sufficient and cannot be assailed. 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.
- Also, 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.
The Supreme Court also issued the following (inflexible) guidelines to test the validity of a notification issued under Section 95 of Cr.P.C.:
(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 the 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 the 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 the 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 detailed 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 IPC that the writing contains a truthful account 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 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.
IMPORTANT: Read notes on other leading cases for the SC AOR Examination: AOR Series.
