@JUDGMENTTAG-ORDER
Y. Bhaskar Rao, J.@mdashSri Basaveshwara, a great mystic saint, poet, philosopher, religious leader and social reformer of 12th Century, who was known as "Basavanna" affectionately and out of reverence by his followers was born in Bagewadi in Bijapur District, Karnataka State. Akkanagamma was his elder sister and a saintly woman. Her son Channabasaveshwara was a great social reformer and the preacher of Veerashaivism and Basava philosophy. The family was one of great social reformers working with untiring zeal to promote equality in Hindu Society at that time. His life and teachings have been a source of inspiration to millions of people in South India. He revolted and fought against the rituals, superstitions and distinctions of caste and creed encouraged by certain decadent sections of Hinduism, at a time when the society was dissipated by a system of hierarchy of castes and creeds, and rituals which held their sway. He brought about a social revolution to restore the status of man and woman in all their human dignity, considering all men and women from all walks of life equal in the fellowship of service by preaching the dignity of labour through his philosophy of ''Kayaka''. He propagated doctrine of equality and brotherhood, in the days of totalitarianism. Basaveshwara followed by Channabasaveshwara were first to propagate the dignity of manual labour and human endeavour. They advocated equality amongst all sections and classes of workers, first among them, was ''Work is Worship''. Basaveshwara revolted against Orthodox system prevailing like animal sacrifice, yagas and Homas and revolted against the caste system which discriminated between man and man and propagated a casteless shaivism to achieve the universal brotherhood for happy and quiet life without any discrimination. During their life time, they preached shaivism to all classes of people. After their death, they are deified and worshipped. The Channa Basaveshwara temple built at Ulvi is called Ulvichannabasaveshwara Temple. Similarly, a temple is built for Akkanagamma at Anachale in Chikkamagalur District where she was buried after her death. Every year, large number of pilgrims visit these places and express their religious devotion. The Samadhi of Basaveshwara at Kudala Sangama is worshipped and revered as a holy place. The three saints are worshipped as great social and religious reformers and persons with divinity. Jainism and Buddhism had prevailed earlier in the areas where Basaveshwara''s preaching took root. Afterwards the Saivism propagated by Basaveshwara and Channabasaveshwara had a large following and many embraced Veerashaivism as preached by Basaveshwara and worshipped him. It is relevant to mention here that Channabasaveshwara systematized and metamorphosed Veerashaivism. The Veerashaivism as preached and taught by Basaveshwara and Channabasaveshwara is prevalent in a large part of the Karnataka State and neighbouring areas.
2. The 11th petitioner herein has written a Novel called "Dharmakarana", the first edition of which has been published in the year 1995. In that novel, the story of Basaveshwara, Akkanagamma and Channabasaveshwara is told in first person, the narrator being Basaveshwara, depicting Vachana movement of Basaveshwara and Channabasaveshwara of 12th Century. The Book was selected by the Karnataka Sahitya Academy for its annual award as the best novel for the year 1995. At that time, some eminent Literary figures including Sri. B.D. Jatti, Former Vice-President of India, Dr. H.N. Chandrasekhar and several eminent religious Heads of Veerashaivism wrote a letter to the Government requesting the ban of the book as certain statements in that novel were highly objectionable, hurting and insulting the religious sentiment of Veerashaivas and followers of Basaveshwara. The Government brought this fact to the notice of the Karnataka Sahitya Academy.
3. Akhila Bharat Veerashaiva Mahasabha, a Registered Society, instituted a suit in O.S. No. 1931 of 1997 in the City Civil Court at Bangalore, against the State Government and others seeking an injunction to restrain the defendants from conferring an award to the Book, on the Author and for an order restraining the sale and publishing of the book on the ground that certain historical facts relating to Akkanagamma (mother of Channabasaveshwara) have been distorted by the author in his book. The Civil Court issued a Temporary injunction. It is also the case of the Government that, there was a great uproar in the floor of the Legislative Assembly against the book on 26-3-1997 and other days. There were also incidents of burning of the copies of the books in Mysore and other places and there were protests from the followers of Basaveshwara. Therefore, the Government has issued a notification dated 27-3-1997 by virtue of Section 95 of the Code of Criminal Procedure, confiscating copies of the book ''Dharmakarana''. A Criminal petition was filed u/s 97 of the Code of Criminal Procedure seeking quashing of the notification. When the case was heard, it was found that the notification was not signed by the proper authority. Therefore, the Government withdrew the notification dated 27-3-1997, on 26-6-1997 with liberty to issue a fresh notification, under the orders of this Court. A fresh notification was issued on 26-6-1997 forfeiting all the copies of the novel ''Dharmakarana''. The present petition is filed assailing the above notification.
4. It is contended that the grounds given for forfeiture disclose a total lack of application of mind, and the grounds given are untenable, absurd, wholly imaginary and unacceptable. The Government has not made out a case that the petitioner, prima facie, has committed any offence as envisaged u/s 295-A of the Indian Penal Code. It is contended that the action of the Government to prescribe the book violates Article 19(1)(a) of the Constitution of India.
5. On the other hand, the State Public Prosecutor contended that the Author has twisted the historical facts about the paternity of Channabasaveshwara and described the birth of Channabasaveshwara as being out of Wedlock, showing Akkanagamma in a poor light and also made other allegations giving room for an inference that Akkanagamma was a woman of easy virtue. This has hurt the religious feelings of the followers of Basaveshwara and there were protests from different corners of the State against the Book and there was a demand to ban the books. As the situation was going out of hand and tended to create law and order problem, the Government after considering all aspects of the matter including the protest and representative of the legislative Members of the State, issued the impugned notification, as there was no other alternative but to forfeit the book. The notification issued by the Government is quite proper in accordance with Section 95 of the Code of Criminal Procedure read with Section 295-A of the Indian Penal Code and the act of the Government in issuing the notification confiscating the books is a reasonable restriction under Article 19(2), on the freedom of expression enshrined in Article 19(1)(a) of the Constitution of India. There is nothing illegal and unlawful in issuing the notification. There are no merits in the petition filed by the petitioners. Therefore, the same is liable to be dismissed.
6. To appreciate the rival contentions, it is relevant to go through the provisions of Section 295-A of the Indian Penal Code. Chapter XV of the Indian Penal Code deals with the offences relating to Religion. Section 295-A provides punishment to whoever with deliberate and malicious intention of outraging the religious feelings of any class of citizens of India, insults or attempts to insult the religion or religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
7. Section 295-A specifically deals with the offence relating to deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs, i.e., whoever with deliberate and malicious intention of outraging the religious feelings of any class of citizens of India, by words, either spoken or written, or by signs or by visible representations or otherwise, insults or attempts to insult the relation or the religious beliefs of that class. Thus, if any person writes any book or publishes any papers with an intention of outraging the religious feelings of any class, that person is liable to be punished. To take action u/s 295-A, prosecution has to prove that the delinquent has committed an offence by producing relevant evidence, and the Court has to come to the conclusion beyond reasonable doubt that the offence is committed.
8. Section 95 of the Code of Criminal Procedure empowers the State to declare certain publications forfeited and to issue search warrants for the same. It provides that, where, any newspaper, or book or any document wherever printed, appears to the State Government to contain any matter, the publication of which is punishable u/s 124-A or Section 153-A or Section 153-B or Section 292 or Section 293 or Section 295-A of the Indian Penal Code, the State Government may, issue a notification by stating the grounds of its opinion, declare every copy of the Book containing such matter to be forfeited to Government and hereupon the police may seize the same.
It is relevant to extract Section 96 which provides for Application to High Court to set aside declaration of forfeiture. Section 96 reads thus:
"96. Application to High Court to set aside declaration of forfeiture.--(1) Any person having any interest in any newspaper, book or other document, in respect of which a declaration of forfeiture has been made u/s 95, may, within two months from the date of publication in the Official Gazette of such declaration, apply to the High Court to set aside such declaration on the ground that the issue of the newspaper, or the book or other document, in respect of which the declaration was made, did not contain any such matter as is referred to in sub-section (1) of Section 95.
(2) Every such application shall, where the High Court consists of three or more judges, be heard and determined by a Special Bench of the High Court composed of three Judges and where the High Court consists of less than three Judges, such special Bench shall be composed of all the Judges of that High Court.
(3) On hearing any such application with reference to any newspaper, any copy of such newspaper may be given in evidence in aid of the proof of the nature or tendency of the words, signs or visible representations contained in such newspaper, in respect of which the declaration of forfeiture was made.
(4) The High Court shall, if it is not satisfied that the issue of the newspaper, or the book or other document, in respect of which the application has been made, contained any such matter as is referred to in sub-section (1) of Section 95, set aside the declaration offorfeiture.
(5) Where there is a difference of opinion among the Judges forming the Special Bench, the decision shall be in accordance with the opinion of the majority of those Judges".
10. By reading Sections 95 and 96 together, it is manifest that, where it appears to the Government that the matter of publication is punishable u/s 124-A or Section 153-A or Section 153-B or Section 292 or Section 293 or Section 295-A of the Indian Penal Code, it can pass an order forfeiting the same. When the notification is challenged u/s 96 of the Act, it is for the person who challenges the notification to prove that such book did not contain any such matter as referred to u/s 95 of the Code of Criminal Procedure. Different High Courts and the Supreme Court have considered the scope and width of Sections 95 and 96 of the Code of Criminal Procedure and Section 295-A of the Indian Penal Code. Therefore, before dwelling on the facts of the case, we think just and proper to refer to the case law on the subject.
11. In Baijnath Kedia v King Emperor, the facts of the case were that, in the year 1922, the applicant published the second Edition of a Hindi Reader for use in Schools. The Reader was composed of six separate text books, numbers 1 to 6, and those volumes were designed for the instruction of boys of 7 to 13 or 14 years of age. On July 15th, 1924, the Local Government issued a notification by which, u/s 99-A of the Code of Criminal Procedure, 1898, which is equivalent to present Section 95 of the Code of Criminal Procedure, all copies were declared to be forfeited on the ground that, they contained, in the opinion of the local Government, seditious matter of the character described in Section 124-A of the Indian Penal Code. The petitioner, therein, filed an application u/s 99-D (equivalent to present Section 96) to quash the notification. Dealing with the said question, Mr. Meras, C.J., speaking for the Full Bench of Allahabad High Court, observed that, to find out whether the seditious passages in the book will come within the purview of Section 124-A of the Indian Penal Code or not, and where the applicant is alleged to have published a series of books, the whole series must be looked into, to determine whether the passages contained therein are seditious and ultimately held that, an extract in the book, stating that the Rowlatt Act was intended "to suppress once and for all all political agitation in the country" is a statement known by the Writer to be false, and made by him with the deliberate intention of promoting disloyalty and hatred as also a statement that, that Act, a Government measure, gave to the police full power to harass all innocent people. It was further held that the book so compiled with the determination to corrupt the minds of the children. So, it comes within the terms of Section 124-A of the Indian Penal Code and dismissed the application with costs.
12. In Harnam Das v State of Uttar Pradesh through Chief Secretary, Lucknow, the facts of the case were, the applicant was the Author of the Book entitled "Bhoomika Mazam Sikh Mat Khandam" which was first published at Gorakhpur in April 1953. In July, 1953, the Government of Uttar Pradesh took action under the powers conferred by Section 99-A of the Code of Criminal Procedure and declared the books to be forfeited to Government on the ground that they contained matter, the publication of which was punishable u/s 153-A and Section 295-A of the Indian Penal Code. The said Government notification was challenged. It was contended on behalf of the applicant that the applicant has taken the facts and material mentioned in the book from authoritative literature of the Sikh religion, that he wrote the books in a spirit of fair and holiest criticism without any malicious intention of producing hatred and that he never intended to promote or attempted to promote feelings of enmity or hatred between different classes of subject. The Court has considered the question when an application is made u/s 99-B (equivalent to Section 96) to have on order of forfeiture set aside on the ground that the matter published does not fall within the mischief of Section 153-A or Section 295-A of the Indian Penal Code, it is for the applicant to convince the Court that for the reasons he gives, the order is a wrong order. The Court observed that, the author has dealt with the subject from a purely scientific or historical point of view avoiding all offensive and abusive language and the author criticised one community and his sufferings at the hands of that community. The author has attempted to trace the previous history of the community and their ethical origin and has quoted profusely from previous books, trying to show that the Sikh religion is one of the worst of religions and its propagators and upholders have been cheats, frauds and robbers and their tenets hold out only snares for the simple and the unsuspecting who once having been put into their clutches have nothing but regrets and tortures and tribulations to face. The Full Bench after thoroughly considering the content of the book, found that, if the contents of the book are taken in entirety, they will fall within the scope of Section 153-A and 295-A of the Indian Penal Code and dismissed the petition filed by the applicant. In this judgment, the Full Bench have confirmed the view expressed in Baijnath Kedia''s case, supra.
13. The Court has laid down the principle that the burden is on the applicant to prove that the contents of the book did not constitute an offence u/s 153-A and Section 295-A of the Indian Penal Code.
14. In Debi Soren and Others v The State, the Patna High Court has considered the constitutional validity of Section 124-A and Section 153-A of the Indian Penal Code and held that the provisions of Sections 124-A and 153-A of the Indian Penal Code are not rendered void on the ground that they are inconsistent with the fundamental right of freedom of speech and expression guaranteed to all citizens of India under Article 19(1)(a) of the Constitution of India. In construing the provisions of Sections 124-A and 153-A of the Indian Penal Code it should be the effort of the Court to give that interpretation of those provisions which would make them consistent with the Constitution of India, unless the language of the provisions precludes such an interpretation. Sections 124-A and 153-A of the Indian Penal Code impose reasonable restrictions in the interest of public order, giving that expression a fair and reasonably wide meaning. Clause (2) of Article 19 as it now stands, saves the provisions of Sections 124-A and 153-A of the Indian Penal Code. It is further held that, the speeches made must be considered as a whole and in a fair, free and liberal spirit, not dwelling too much upon isolated passages or upon a strong expression used here and there; in other words, an attempt should be made to gather the general effect of the speeches as a whole. The High Court further observed that, in a democratic country criticisms of Governmental measures and administrative action are to some extent unavoidable; they are made for the purpose of enlisting popular support, and in considering the effect of such criticisms no serious notice ought to be taken of crude, blundering attempts or of rhetorical exaggerations by which nobody is likely to be impressed. With the change of times, the effect of criticisms also changes; what was damaging contempt or hatred of a bureaucratic Government is not so of a popular Government - a Government which can neither afford to be hypersensitive nor impervious, to criticism and ultimately held that the speeches will not come within the mischief of Section 124-A or Section 153-A of the Indian Penal Code and allowed the appeal.
15. In Ramji Lal Modi v State of Uttar Pradesh, the Constitution Bench of the Supreme Court considered the constitutional validity of Section 295-A of the Indian Penal Code. The Supreme Court considering the judgment of the Patna High Court in Debi Soren''s case, supra, and other cases, held that, Section 295-A falls well within the protection of clause (2) of Article 19, as being a law imposing reasonable restrictions on the exercise of the right to freedom of speech and expression guaranteed by Article 19(1)(a) and further held that having regard to the ingredients of the offence created by the Section 295-A there cannot be any possibility of this law being applied for purposes not sanctioned by the Constitution. In other words the language employed in the Section is not wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affecting the fundamental right guaranteed by Article 19(1)(a) and consequently, the question of severability does not arise. The Supreme Court after referring the earlier cases and Debi Soren''s case, supra, upheld the constitutional validity of Section 295-A of the Indian Penal Code. In that case, the petitioner who was the Editor, Printer, and Publisher of a monthly magazine called "Gaurakshak" was prosecuted for publishing an article on the ground that the petitioner committed an offence punishable under Sections 153-A and 295-A of the Indian Penal Code. The Sessions Court acquitted the petitioner of the charge u/s 153-A but convicted him u/s 295-A and sentenced him to 18 months rigorous imprisonment and a fine of Rs. 2,000/-. The petitioner filed an appeal to the High Court at Allahabad, wherein, the learned Single Judge held that the article was published with the deliberate and malicious intention of outraging the religious feelings of muslims and that the petitioner was guilty u/s 295-A of the Indian Penal Code. He however, reduced the sentence of imprisonment and the application filed by the petitioner for certificate to appeal to the Supreme Court having been rejected, the petitioner moved the Supreme Court for Special Leave to Appeal and consequently, both the stay application and the petition for special leave were dismissed by the Supreme Court. The Supreme Court after considering the case laws on the subject, upheld the constitutional validity and dismissed the Appeal, stating that the impugned action falls well within the protection of clause (2) of Article 19 of the Constitution of India.
16. In Shiv Ram Dass Udasin v State of Punjab, the Full Bench of Punjab High Court was considering the notification issued u/s 99-A of the Code of Criminal Procedure and held that, in no part of the book called "Gurmat Vichar Suraj" was there any passage showing disrespect to the Sikh Gurus or to Sri Guru Granth Sahib and the Court pointed out that, in order to bring the case within Section 295-A it is not so much the matter of discourse as the manner of it. In other words, the words used should be such as are bound to be regarded by any reasonable man as grossly offensive and provocative and maliciously and deliberately intended to outrage the feelings of any class of citizens of India. The Pull Bench came to the conclusion that in no part of the book called "Gurmat Vichar Suraj" is there any passage showing disrespect to the Sikh Gurus or to the "Sri Guru Granth Sahib" and quashed the notification.
17. In S. Veerabadran Chettiar v E.V. Ramaswami Naicker and Others, the Supreme Court was considering a case whether the petition of complaint, disclosed a prima facie offence u/s 295 of the Indian Penal Code. While considering the case, the Supreme Court has laid down the scope of Section 295 stating that, Section 295 has been intended to respect the religious susceptibilities of persons of different religious persuasions or creeds. Courts have got to be very circumspect in such matters, and to pay due regard to the feelings and religious emotions of different classes of persons with different beliefs, irrespective of the consideration whether or not they share those beliefs, or whether they are rational or otherwise, in the opinion of the Court. The Supreme Court has held that, to find out whether an offence is made out u/s 295-A or not, the susceptibilities of persons of different religious persuasions or creeds is relevant and the Court has to give due regard to such feelings in consideration of the case.
18. In Baba Khalil Ahamad v State, the Full Bench of Allahabad High Court has considered the scope of Section 295-A and its constitutional validity and what are the ingredients which required to prove for issuing a notification for forfeiting the book and as to how to judge the intention of the writer to find out whether there is deliberate and malicious intention to outrage the religious feelings. The Full Bench of Allahabad High Court, after referring to the earlier judgments in AIR 1917 All. 317 Baijnath Kedia and Veerabadran Chettiar, supra, upheld the constitutional validity of Section 295-A and held that, the intention of the writer of a book must be judged primarily by the language of the book itself, though it is permissible to receive and consider external evidence either to prove or to rebut the meaning ascribed to it. If the language is of a nature calculated to produce or to promote feelings of enmity or hatred, the writer must be presumed to intend that which his act was likely to produce. In that case, the applicant has filed two affidavits in support of his application. According to these affidavits, there is a consensus of opinion of Muslim Ulemas that, Yasid, son of Muawiya was the Chief perpetrator of Karbala, In November 1952, a handbill was published in Banaras describing Yasid as one entitled to be admitted to heaven. In other pamphlets Muawiya was praised and was represented a leader of Hanti Muslims. The applicant is a Sunni Musalman of Hanafi Sect. He considered it his duty to dispel doubts and misunderstanding about the position of Yasid and Muawiya in Muslim history. With the object, the applicant wrote the six books, which were subsequently forfeited by the State Government. The applicant never intended to wound or outrage the religious feelings of any person. The Home Secretary to Uttar Pradesh Government filed a written statement on behalf of the Government. According to the written statement, the six books in question were prescribed by the Government in the interest of public order, and on receiving protest from a number of persons whose religious feelings had been injured. The Allahabad Special Bench after scrutinising the entire book, came to the conclusion that all the elements necessary for establishing a charge u/s 295-A of the Indian Penal Code have been proved and that the State Government was, therefore, justified in passing the order for forfeiture and dismissed the application. Therefore, where a writer describes great religious leaders as a man of undisciplined character bringing down his reputation and character, it means outraging the religious feeling of that leader and his followers of such great religious leader.
19. In State of Mysore v Henry Rodrigms and Another, a Division Bench of this Court, while considering the Appeal filed by the State, where the accused was charged u/s 295-A for criticising Roman Church. The accused who had criticised in a series of articles certain beliefs and practices of the Roman Church in abusive language likely to insult and offend the followers of that Church. The Division Bench of this Court held that, where the language used while criticising the beliefs and practices of the Roman Church which likely to insult and offend the followers of that church, is guilty of an offence u/s 295-A of the Indian Penal Code, even if there is truth in his criticisms and the criticisms arose out of his sincere conviction that those beliefs and practices were opposed to the teachings of Christ. The Division Bench reversed the acquittal and convicted the respondent-accused.
20. In State of Uttar Pradesh v Lali Singh Yadav, while considering the triple facets of a valid order u/s 99-A which is equivalent to Section 95 of the Code of Criminal Procedure, held that the triple facets required for valid order as follows:
(i) that the book or document contains any matter;
(ii)such matter promotes or is intended to promote feelings of enmity or hatred between different classes of the citizens of India; and
(iii)a statement of the grounds of Government''s opinion:
If these three facets are present, the State Government may, by notification, declare every copy of the issue containing such matter to be forfeited. While considering the scope of Section 99-A equivalent to Section 95 of Cr. P.C., the Supreme Court held that the actual exercise will depend not on doctrinnaire logic but practical wisdom.
21. In Master Aman Preet Singh and Others v Government of India and Others, the Division Bench of Punjab High Court was considering Articles 19, 25 and 29 of the Constitution of India, in a case where offending remarks against religious Guru of Community. Wherein, the Division Bench held that:
"A Guru who is respected, revered and worshipped and is admitted to have fought against Moghul emperor throughout his life and sacrificed all that which was precious to him cannot be permitted to be projected to students to be an employee of Moghul emperor as the same is likely to hurt the religious feelings of the community".
Further it is held:
"Freedom of speech and expression implies reasonable restrictions. Freedom of Speech can be exercised upto the extents and limits when it does not infringe the right or faith of others. A writing which projected the Guru of religious community as an employee of Moghul emperor any such writing which was likely to hurt the religious feelings of community cannot be claimed to be right of the author. Therefore, the offending portion in the lesson of the text book was ordered to be deleted".
22. In G. Jairaj and Others v State of Karnataka and Others a Division Bench of this Court was considering the scope of Article 19(2) regarding reasonable restrictions that could be imposed on Freedom of Speech and expression, held that:
"Freedom of speech is one of the most cherished rights under the Constitution of India. Any restriction to be imposed upon this freedom is prima facie unconstitutional unless the same could be justified in terms of the limitation set forth in Article 19(2) of the Constitution".
Further it is held:
"When the book has been published in the year 1986, for over eight years now, if there is no disturbance of public order, peace or tranquility, we fail to understand as to how the same would arise now. So far as the aspects of decency, defamation or morality to which references are alluded to in the book are concerned, it cannot be read torn-out of context and the entire book will have to be read and understood as to the impact of the same. Merely because a person possesses certain opinion or if any fiction is created on the basis of historical facts, though facts as such may not have distorted but merely subjected to interpretation, those circumstances themselves cannot be termed as inaccurate tending to hurt the feeling of any sections of the community".
And further it is held:
"Each work must be examined by itself and a comparison with other works may not improve the quality of a book which is indecent or obscene. A balance should be maintained between freedom of speech and expression and public decency and morality. It is only when the latter is substantially transgressed, the former must give way. Unless it can be shown that the book is published only with an intention to pandering in sex in a manner appealing to the carnal of human nature, the same cannot be termed as obscene. Court cannot act as censor or authority of public morality or decency. On the question whether the book would amount to defamation or not also, the material put forth by the appellant before the Court is not sufficient".
23. From the dicta laid down by the above-said judgments, it is evident that for exercising power u/s 95 of the Code of Criminal Procedure, it must appear to the Government that the material published contains any objectionable matter and such matter promotes or is intended to promote feelings of enmity or hatred between different classes of the citizens of India, punishable u/s 124-A or Section 153-A or Section 163-B or Section 292 or Section 293 or Section 295-A of the Indian Penal Code (45 of 1860) and thereupon, the State Government may by notification, stating the grounds of its opinion, declare every copy of the Book containing such matter to be forfeited.
24. When the person affected, challenges the notification by filing a petition u/s 96 of the Code of Criminal Procedure, he has to establish that the publication or the book complained of, does not contain any material, which will offend or outrage the religious feelings of any section of the society. Thus burden is on the person or persons who challenges the notification.
25. Where the Government is satisfied after considering the material on record that, where, any newspaper, or book or any document wherever printed, appears to the State Government to contain any matter, the publication of which is punishable u/s 124-A or Section 153-A or Section 153-B or Section 292 or Section 293 or Section 295-A of the Indian Penal Code, the State Government may, issue a notification by stating the grounds of its opinion, by passing an order u/s 95 of Cr. P.C. and the said order cannot be said to be violative of Article 19(1)(4) of the Constitution of India offending the freedom of speech. On the other hand, the order is in pursuance of the reasonable restriction imposed by the Parliament. Therefore, the same is not violative of either Article 19(1)(a) or 19(1)(g) of the Constitution of India.
26. Further, the Court has to scrutinise the entire book or article to come to a conclusion whether there is deliberate and malicious intention on the part of the writer to outrage the religious feelings of any class of citizens of India. In case the content of the article or the book insults or attempt to insult the religious or religious feelings of any class or section of people, the Court can draw an inference and presume that there exists deliberate and malicious intention on the part of the author, as contemplated u/s 295-A of the Indian Penal Code.
27. We will now examine the facts of this case keeping in view the above said principles in our mind.
28. The Author who is the eleventh petitioner, wrote a Book "Dharmakarana". From pages 110 to 114 the author narrates the incident why Basaveshwara and his sister Akkanagamma left Bagewadi to Koodalasangama. The author described that, Akkanagamma, sister of Basaveshwara, who was unmarried, became pregnant. Akkanagamma and Basaveshwara were called to the Village Panchayat. When questioned Akkanagamma, she did not respond. Therefore, the community found fault and decided to ex-communicate her and told Basaveshwara that he can live in the village after terminating the relationship with his sister. Enraged by this incident, Basaveshwara left the village along with his sister and went to Koodalasangama.
29. After Basaveshwara and Akkanagamma left Bagewadi and reached Koodalasangama, a son was born to Akkanagamma who was named Channabasaveshwara. The Author while narrating the incident as the reason for Basaveshwara and his sister Akkanagamma leaving Bagewadi, narrates the story of Jabala and Sathyakama from Upanishads. Sathyakama, son of Jabala, a maid-servant in a Saint''s Ashram, goes to a Saintly Guru to enroll himself as a student under him; the Saint asks him what is his father''s name; the boy goes to his mother and asks his father''s name; his mother Jabala weeps and tells him that she lived in the company of many persons and she is unable to name his father; the next day boy goes to the Saint and narrates the story to Saint. The Saint appreciates the truthfulness of boy and admits him as a student in his Ashram.
30. The learned Counsel for the State contended that the contextual narration of the incident in the Chapter would go to show that the author intends to imply (a) that Akkanagamma became pregnant while she was still unmarried, (b) that on coming to know about her illegal pregnancy, the village called for a panchayat and the elders threatened to excommunicate Akkanagamma on the ground that she was also a woman of easy virtue, (c) that Channabasaveshwara who was the son of Akkanagamma was conceived and born to Akkanagamma while she was not married; and (d) that the father of Channabasaveshwara was not known.
31. Thus, it is contended that the readers of the Book would get an impression that Akkanagamma was a woman of easy virtue; that Channabasaveshwara was born to her out of wedlock; that the father of Channabasaveshwara was unknown; that Basaveshwara and Akkanagamma had to leave the village as the elders of the village thought that Akkanagamma has committed a social sin of becoming pregnant without any marriage.
32. It is pointed out that by reading the story of Jabala and Sathyakama in the Chapter, the readers of the Book would necessarily draw a parallel with Akkanagamma and Channabasaveshwara; and as Jabala is described as a woman of easy virtue and Sathyakama did not know who his father was, it is implied that Akkanagamma is a woman of easy virtue and Channabasaveshwara is a ''Bastard''. 33. Learned Counsel for the petitioner as well as the Public Prosecutor have taken us through passages from different books, viz., the Basava Purana by Palkurike Somanatha, a Telugu Book of 13th Century. Basaveshwara Samakaleenaru published in 1989 by Basava Samithi.
Basaveshwar a Commemorative Volume, 1967, published by Government of Mysore, Basaveshwara by Sri H. Tipperudraswamy published in the year 1975, Janapada Basava Purana by Sri P.K. Rajashekar, Samagra Vachana Samputa by Dr. V.B. Mallapur.
34. In some of the books which mentioned Akkanagamma is married to Shivadeva or Shivaswamy and Channabasaveshwara born to them. In some of the books it is given that Channabasaveshwara was born to Akkanagamma by ''Prasadam'' given to her by one Kakkayya, a Saint. There is also discussion regarding the parentage of Channabasaveshwara. But nowhere it was written that the Channabasaveshwara was born out of wedlock to Akkanagamma. It is relevant here to refer even in the translation made by the petitioner-author of Palukurie Somanath''s Basava Purana, Page 450, it is not mentioned that Channabasaveshwara was born out of wedlock to Akkanagamma or in another book Vachana Sahithya. In almost all the books it is mentioned that when Basaveshwara''s father wanted to perform thread ceremony, he opposed it as he was having hatred towards orthodoxy of that day and refused to undergo such ceremony and he left the village along with his sister Akkanagamma. In some other books it is written that he alone left and thereafter parents too went to Koodalasangama and asked Akkanagamma to stay with him to look after her brother Basaveshwara. In none of the books it is written that Akkanagamma and Basaveshwara were ex-communicated by elders of the village as she became pregnant out of wedlock after holding a Panchayat in the community. '';
35. The learned Counsel for the petitioner has taken us through Janapada Sahitya (Folklore), in which it is described who were father or mother matters trivial. One and only aim is to achieve the God. It is however a fact that in Folklore, it is mentioned that Channabasaveshwara did not know his father. By that itself it cannot be said that Channabasaveshwara was not having a father or his mother Akkanagamma was a woman of easy virtue.
36. It is also relevant to mention here that there is also discussion in some of the books that whether it is possible that Channabasaveshwara could have born only by taking ''Prasadam'' by his mother Akkanagamma. But, nowhere Akkanagamma is described as woman of easy virtue nor was it mentioned Basaveshwara and Akkanagamma were ex-communicated from the village because she became pregnant without having a husband.
37. We have already mentioned that Basaveshwara, Channabasaveshwara and Akkanagamma are worshipped as great religious saints who preached equality and did service to society in eliminating some of the evils of orthodoxy of religion of those days and attempted to remove the difference of caste and creed in the society by propagating ''SHARANA CULT'' (Saintly Movement) as propagated by Basaveshwara through his Vachana Sahitya. Therefore, by reading the contents of the book from pages 110 to 114 any ordinary lay person will definitely come to conclusion that Basaveshwara and Akkanagamma were ex-communicated from the village only because she became pregnant without marriage and further she was a women of easy virtue like Jabala, whose story is narrated in the same pages. We are concerned with impact of the book on the minds of ordinary people with religious beliefs and not discerning intelligentia. Therefore, we think that the opinion formed by the Government to issue notification u/s 95 of the Cr. P.C. is quite proper and just.
38. The learned Counsel for the petitioner firstly contended that Government has not read the book as a whole and only considered some paras from pages 110 to 114 and action of the Government is not legal. We are not able to accept this contention. It is a fact that the book has propagated the Vachana Movement of Basaveshwara. But the new reason given by the author for Basaveshwara and Akkanagamma leaving Bagewadi to Koodalasangama and the doubt created about the paternity of Channabasaveshwara is author''s vivid imagination which is contrary to the earlier writings on the subject. This fact has been noted by the Government while initiating the action and as such there is no merit in saying that the book is not read by the State.
39. It is secondly contended that the reasoning of the State Government that the author has malicious and deliberate intention is not correct. We have already stated above that whether the author has got malicious or deliberate intention or not has to be decided with reference to the contents of the book, particularly the objectionable portions which may outrage the feelings of the section of the society. In this case, incorporating the story of Jabala and Sathyakama will lead to a parallel being drawn and depiction of Akkanagamma as a woman of easy virtue and Channabesaweshwara''s birth out of wedlock. Thus, denigrating the character of a woman who is worshipped and revered by Basava followers. Therefore, the contention of the Counsel for the petitioner is not tenable.
40. It is thirdly contended that the author has merely written that Basaveshwara left Bagewadi because he was fed-up with orthodoxy in Brahminism of those days. It is the consistent view that Basaveshwara and Akkanagamma left the place because they opposed orthodoxy in Brahminism vehemently. But the author has tried to give a different reason as if they were ex-communicated from the village because of the sin of Akkanagamma in getting pregnant without marriage.
41. It is, fourthly, contended that there is a dispute about the question as to who is the father of Channabasaveshwara and the author has only given a plausible explanation on analytical basis and therefore, it cannot be construed that the author had any deliberate or malicious intention to offend the religious feelings of particular section of society. It is to be noticed that an attempt to give a plausible explanation is '' different from propounding a particular theory showing Akkanagamma as a woman of easy virtue and birth of Channabasaveshwara to her was out of wedlock. We are not able to agree with this contention for the simple reason that even if there is some dispute about the name of the father of Channabasaveshwara the author under the guise of giving plausible explanation denigrates the character of Channabasaveshwara''s mother and thus virtually called the revered saint Channabasaveshwara as a ''bastard''. This depiction or the alleged plausible explanation of the author would, in our view, definitely wound the religious feelings of the followers of Basaveshwara, Channabasaveshwara and Akkanagamma. The various decisions referred to above have consistently held that if an article or a book outrages the religious feelings of any section of people, the Court will draw an inference and presume that there existed a deliberate and malicious intention on the part of the author.
42. It is fifthly contended that the Government succumbed to the political influence from MLAs and MLCs and issued the impugned notification. The learned Public Prosecutor took us through the discussions which took place in the Legislative Assembly and Council. It is a fact that the MLAs and MLCs had strongly agitated about the contents of the book (at pages 110 to 114) and giving of an award to the Book by Karnataka Sahitya Academy. The MLAs and MLCs are the representatives of the people in a Democracy and the people voice through their representatives in a democracy; therefore there is nothing wrong in the Government proceeding on the basis that the MLAs as the voice of the people they represent unless contrary is proved; and on the representation of MLAs, the Minister gave an assurance on the floor of the House that the Government will take proper action. That shows the magnitude of the problem created by the book in the society and where the Government yields to the voice of the people, it cannot be said that Government has done an act which is not permissible under law. Therefore, even if the notification is issued after taking into consideration the views of MLAs and MLCs it cannot be said that notification is invalid on that ground.
43. It is sixthly contended that as the Government withdrew the first notification and issued a second notification, the Government could not have added further grounds in the second notification which were not stated in the first notification; and addition of Government in the second notification amounts to post facto justification. It is a fact that some of the grounds mentioned in the second notification are not found in the first notification. The matter was serious. Copies of the book were burnt in some places of the State by agitating crowds. Eminent personalities like Sri B.D. Jatti (Former Vice-President of India) wrote to the Government to take action. Therefore, the prime need before the Government was to see that peace and tranquility in the society was not disturbed by any agitation because of the book. Therefore, to safeguard and maintain the peace and tranquility in the society, if some more grounds are given and more details are given, it cannot be said that it is without jurisdiction. The Court has permitted them to withdraw the earlier notification with liberty to issue fresh notification by rectifying all defects. Therefore, we see no force in the contention. Therefore, we do not see any grounds to quash notification.
44. While the arguments being heard the Court asked Counsel for petitioner whether petitioner was ready to delete the offending portion in the book by suitable amendment. But no reply is given. In fact the learned Public Prosecutor stated that if the offending portions occurring at pages 110 to 114 were deleted the Government may reconsider the matter and withdraw the notification.
45. It is brought to our notice that author is an eminent literature in the State who has written many books and made research in Vachana Sahitya. Therefore, we think it is just and proper that if the author intends to remove the offending portions from the book, it is open to him to file a proper petition before the Government and on filing such petition, in case if Government is satisfied that offending portion is removed from the book, the Government may consider the same and permit the petitioner by lifting ban. We will place on record that the Public Prosecutor fairly stated that if author is ready to remove the offending portion, the Government has no objection to lift the ban.
46. In view of the considered finding mentioned above, no ground is made out by the petitioner to hold that the notification dated 26-9-1997 u/s 95 of the Act confiscating and proscribing the book "DHARMA KARANA" by the State Government is not just and proper.
47. This revision petition fails and the same is dismissed.
