R.V. Bhasin vs State Of Maharashtra

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Mr. Y.H. Muchhala, senior counsel with Mr. Amin Solkar,

Mr. Shaikh Yakub and Mr. Mubin Solkar i/b M/s. Judicial Law & Associates for intervenors 4 to 8.

Mr. I.G. Khandelwal - intervenor 3 - in person.

CORAM : SMT. RANJANA DESAI, DR. D.Y. CHANDRACHUD &

R.S. MOHITE, JJJ.

DATE ON WHICH THE JUDGMENT IS RESERVED : 14TH AUGUST, 2009.

DATE ON WHICH THE JUDGMENT IS

PRONOUNCED : 6TH JANUARY, 2010.

JUDGMENT :

- (Per Smt. Ranjana Desai, J.)

1. Rule. Respondents waive service. With the consent

of the parties and at the request of the counsel, taken up

for hearing.

2. The applicant, who is an advocate, is the author of a

book entitled "Islam - A concept of Political World Invasion

By Muslims" ("the book"). The book was published in

2003 by National Publications, 76, Bajaj Bhavan, Nariman

Point, Mumbai of which the applicant claims to be the

proprietor. The book was translated into Hindi by Dr. Anil

Misr.

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3. In exercise of powers conferred by sub-section (1) of

section 95 of the Code of Criminal Procedure, 1973 ("the

Code") the Government of Maharashtra issued a

notification dated 9/3/2007 ("the Notification") and

declared that every copy of the book as well as of the

translation thereof shall be banned and forfeited to

Government. The Notification is as follows :

"NOTIFICATION General Administration Department Mantralaya, Mumbai - 400 032 Dated the 9th March, 2007.

Code of Criminal

Procedure, 1973.

No.PUB2007-C.N.15/07-XXXIV - WHEREAS the national Publications having

its office at 76, Bajaj Bhavan, Nariman Point, Mumbai - 400 021, has published a Book, in the year 2003, captioned as "ISLAM - A Concept of Political World

Invasion by Muslims" written by one R.V. Basin, Advocate Supreme Court of India, containing 166 pages and translated in Hindi by Dr. Anil Mishra captioned as "ISLAM RAJNAITIK VISHWA PAR MUSLIM AKRAMAN KI AVADHARANA"

containing 180 pages (hereinafter referred as the said Book" and "the translated Book" respectively).

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AND WHEREAS the author of the said book (and in the relevant translation thereof as "the translated Book") has made

several derogatory and false statements about Muslim religion, Muslim community, Mohammed Paigambar and Muslim priests, as specified in Schedule appended hereto.

AND WHEREAS the author of the said Book (and in the relevant translation thereof as "the translated Book") has made

derogatory and false statements on page number 4 referring to Muslim religious Book

Quaran that, Muslims should kill Kafirs (Non

- Muslims) and if they do so it is stated on page number 4 that, they would be given

72 beautiful girls and 72 handsome youth; similarly, the author has stated on page number 5 further that, where-ever Muslims are ruling other religious people be killed

and on page number 10 thereof it is stated that, Muslims do not consider and accept

other religious people equal to them and that where-ever Muslim population is less they are increasing it in an attempt to make themselves equal with others, therefore it is

said that "Hum Panch, Hamaare Pachhis".

AND WHEREAS the author of the said Book (and in the relevant translation

thereof as "the translated Book") has made derogatory and false statements about Jihaad, Quaran, Mohammed Paigambar, Indian Muslims and conversion on page numbers 12, 13, 15, 16, 17, 21, 23, 25, 28, 43, 45, 104, 136, 150, 151, 152, 155, 159 and 160 etc. which poses danger to social harmony as well as law and order situation;

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AND WHEREAS on page number 23 of

the said Book in the relevant translation thereof as the translated Book", "Khatme Nawabac" (Nabuwat) has been written as

sentiments of Muslims;

AND WHEREAS this might raise a question mark about the basic aim and

objective behind writing the book without taking the Muslim sentiments into consideration and without giving a thorough consideration to the subject, the

Government has taken serious note of this derogatory,ig tasteless and malicious writings;

AND WHEREAS in column of Hindi

evening newspaper "Dopahar Ka th Saamana", dated 20 January 2007 an article is published captioned as "Dharmki Aadme Apna Hee Jugad" has referred the

translated Book, and an offence has been registered against the Editor, Executive

Editor, Printer and Writer of the said Book under sections 153A, 295A, 505 read with 34 of Indian Penal Code in Dadar Police Station as C.R. No.34/07;

AND WHEREAS for the reasons aforesaid the Government of Maharashtra is of the opinion that the circulation and

sale of the said Book and relevant translation thereof as the translated Book contain abusive language bringing meanness to Jihaad, Quaran, Mohammed Paigambar, Indian Muslims and conversion, as well as derogatory and false references therein is likely to create hatred against Muslims in the minds of non-Muslims thereby promoting enmity between classes

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so also the said Book and relevant

translation thereof as the translated Book outrages the fillings of a Muslim section of society and maliciously insulting the

religion and religious beliefs of Muslims and likely to lead to acts of violence and disharmony and that any further circulation and sale of the said Book and relevant

translation thereof as a translated Book is likely to result in breach of peace and public tranquility between classes and groups, as such the said Book and relevant

translated Book should be forfeited;

NOW, THEREFORE, in exercise of the powers conferred by sub-section (1) of section 95 of the Code of Criminal

Procedure, 1973 (2 of 1974), in its application to the State of Maharashtra, the Government of Maharashtra hereby declares that every copy of the said Book

"ISLAM - A Concept of Political World Invasion by Muslims" as well as the

relevant translation thereof as the translated Book - "ISLAM RAJNAITIK VISHWA PAR MUSLIM AKRAMAN KI AVADHARANA" shall be banned and

forfeited to the Government.

SCHEDULE

1. "Gandhi advocated pardon to the Assassin Muslim who killed Swami Shradhhanand, who was believed to have written a book with its Title "rangeela Rasul"? (Preface)."

2. "The Muslims believe and are ordained by their holy religious texts to eliminate

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Kufr and the Kafirs from the surface of the

earth. Any bloody war that is fought by the believers against the nonbelievers carries the religious sanction of Islam".

(Introduction page numbers 3 and 4).

3. "Should he die in this pursuit, the God assumed Almighty as per Quaranic

statements assures to such pursuer of faith, an assured life joy and pleasure in the heavens where he is promised to be served by 72 beautiful maidens and 72 young male

children to beget pleasure. Such a person is called as Shaheed. Should he survive

while pursuing this aim and live on the earth, Quaran promises on behalf of the God Almighty Allaha to enjoy the life on

earth by using all that he gets by way of victory over the Kafirs." (Introduction page number 4)

4. "Islam declares to its followers where political governance is in the hands of the

believers, they are to act and crush any counter idea and where it still lacks political control then to lie on wait for the moment when through all other means, Darul-Herb

gets converted into Darul-

Islam." (Introduction page number 5).

5. "Muslims do not and cannot accept

any non-believer as equal to them and hence Modi of Gujarat too right when he cautions Indian people UNITE to safeguard themselves from the Muslim invasion who are waiting only to convert India from Darul Herb to Darul Islam and now openly say and believe in HAM PAANCH - HAMARRE PACCHIS."(page number 10).

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6. "This is one religion that supports its

spread by waging jehads including justifying conducts of terrorism when it says "show no mercy to the non-believers

(Kafirs) or the idol worshipers and lie in wait for them to behead them when they appear before you. (the believers i.e. the Muslims)". (page number 17, para 2).

7. "Islam considers weaker sex of women as a commodity meant for the use and pleasure of men owing allegiance to Islam."

And "Those who embraced Islam in India, mostly did so under the threat of sword or

were lured into it for its easy promise of heavens where beautiful women and young kids were promised as rewards to the

believers." (page number 28, para 2).

8. "HOWEVER ON GOING THROUGH SEVERALS OF ITS AYATS, ITS ORDAINMENTS

GIVEN TO ITS FOLLOWERS ARE NOT ONLY DANGERIOUS BUT IN FACT PROMOTE

HATRED IN THE SOCIETY, IT IS BOUND TO CREATE BITTERNESS BETWEEN THE MUSLIMS AND THE NON-MUSLIMS LIVING IN AAA ``AINDIA" REF IS MADE TO IPC

SECTION 153A SUB-SECTIONS (a) & (b) YET IT IS NOT APPLIED AGAINST MUSLIM'S HOLY BOOK." (page number 104, para 4).

By order and in the name of the Governor of Maharashtra,

Sd/-

(Manisha Mhaiskar) Joint Secretary to the Government."

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4. The applicant has in this application, inter alia,

challenged the Notification.

5. Section 95 insofar as it is relevant reads thus:

"95. Power to declare certain publications forfeited and to issue

search warrants for the same. - (1) Where -

(a) any newspaper, or book, or

(b) any document,

wherever printed, appears to the State Government to contain 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 of the Indian Penal Code (45 of 1860), the State Government may, by notification, stating the grounds of its

opinion, declare every copy of the issue of the newspaper containing such matter, and every copy of such book or other document to be forfeited to Government, and

thereupon any police officer may seize the same wherever found in India and any Magistrate may by warrant authorize any police officer not below the rank of sub-

inspector to enter upon and search for the same in any premises where any copy of such issue or any such book or other document may be or may be reasonably suspected to be.

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(2) In this section and in section 96, -

(a) "newspaper" and "book"

have the same meaning as in the Press and Registration of Books Act, 1867 (25 of 1867)

(b) "document" includes any painting, drawing or photograph, or other visible representation.

(3) No order passed or action taken under this section shall be called in

question in any Court otherwise than in accordance with the provisions of section 96".

6. Under Section 96 of the Code, a person having any

interest in any newspaper, book or other document, in

respect of which a declaration of forfeiture has been made

has to apply to the High Court and every such application

has to be heard by a Special Bench of the High Court of

three judges. Hence, this application filed under Sections

95 and 96 of the Code is placed before this Bench.

Section 96 of the Code reads thus:

"96. Application to High Court to set aside declaration of forfeiture.-

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(1) Any person having any interest in any newspaper, book or other document, in respect of which a declaration of forfeiture

has been made under section 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 the hearing of 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

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in sub-section (1) of section 95, set aside

the declaration of forfeiture.

(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.

7. Though the Notification does not specifically state

which sections of the Indian Penal Code are attracted, it

mentions its likely effects such as creation of hatred

against Muslims, promoting enmity between classes,

likelihood of violence, breach of harmony, peace and

public tranquility. The case of the respondents in the

written submissions and in the oral arguments of the

Advocate General is that the book is forfeited on the

ground that it contains matter, the publication of which

would constitute offences punishable under Sections

153A, 153-B and 295-A.

8. The Indian Union Muslim League, Maharashtra,

Muslim Lawyers Forum, Islamic Research Foundation,

Jamat-e-Islami-e-Hind and Bombay Aman Committee filed

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intervention applications. Since the meaning and

interpretation of the Ayats from the Quaran are the

subject matter of the submissions made before this court,

on 20/3/3009, we allowed the intervention applications

with a view to getting suitable assistance in finding the

true meaning and content of the relevant Ayats upon

which the central theme of the book is based. Mr.

Muchala, senior counsel for the interveners informed the

court that he is representing the interveners noted above.

9. Mr. Ishwar Prasad G. Khandelwal, who is stated to be

the National President of a Non Governmental

Organization known as "the Right to Read Foundation"

filed an intervention application. Since, we had allowed

intervention applications filed by the aforestated

organizations/associations, we allowed the intervention

application of Mr. Khandelwal in the interest of justice, on

the same day.

10. Counsel for the petitioner submitted that (i) The

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applicant was not aware of the Notification till 5/4/2007

when his office was raided. The Notification must be set

aside as the applicant was not given a pre-decisional

hearing; (ii) The Notification states in substance that in

the opinion of the State Government, certain passages of

the book as reproduced in the schedule were false and

derogatory and "might have been" written without taking

into account `Muslim sentiments'. Counsel submitted that

the Notification gives no basis, reason or grounds for the

State to come to the aforesaid opinion and the mandate

of Section 95 is, therefore, violated; (iii) since 2003, when

the book was published, it was in circulation and the

Government had found no grounds to act under Section

95 until 9/3/2007 the respondents' action is therefore

barred by law of limitation; (iv) The Notification is vague

because it does not mention which of the several sections

set out in Section 95 have been violated. This has

deprived the applicant of his right to fully and fairly

exercise his statutory right of making application under

Section 96 of the Code; (v) In paragraph 2 of the

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Notification only certain pages have been stipulated as

containing offensive material. The Advocate General

culled out certain passages from some of those pages

which, according to him, are offensive. There is nothing in

the State's affidavit to indicate that even these grounds

actually prevailed upon the Government on the date on

which the Notification was made. The basic or

fundamental precondition for the exercise of power

namely, an ex-facie exposition of the Government's

reasons is not established; (vi) The Notification does not

state Government's reasons to believe how a book

published four years' ago can suddenly upset Muslim

sentiment in 2007 or how the above mere "likelihood"

comes within the ambit of Section 153A and /or section

295A of the IPC; (vii) The motive of the applicant in writing

the book was to bring home to society certain features

and facets of Islam of which readers might not have been

aware. The book is a historical analysis of certain lesser-

known aspects of Islam and is not intended to promote

feelings of enmity or hatred among classes of persons or

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to cause insult to any particular class or community; (viii)

The bonafides of the applicant are evident from his

statement at page 99 that we are a secular nation and

from the fact that he has avoided reference to some of

the `more provocative' Ayats. The book sets out certain

views on Islam of which the applicant became aware upon

his own research; (ix) In view of the law laid down by the

Supreme Court, the respondents are entitled to rely only

upon those portions of the book which have been

reproduced in the schedule annexed to the Notification.

The Notification must be read strictly to see if it sets out

not only the opinion of the Government but also the

grounds forming the said opinion. The onus is on the

respondents to first make out a case under Section 95 of

the Code for forfeiting the book. It is only after a

reasonable opinion based on objective grounds is shown

to exist that the onus of disproving the Government's

stand arises. In the present case, there is only an

"opinion" but no "objective grounds" supporting them.

Certain passages which have been cited by the

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respondents are taken from printed historical and

religious writing. In this connection, reliance was placed

on certain passages from the books "The Islamic

Invasion" by Robert Morey, "Rongeela Rasool" by Pandit

Chamupati, "Sex & Violence" by Anwar Shaikh, "Islam &

Terrorism" by Anwar Shaikh. "Vedic Civilization" by Anwar

Shaikh, "The Islamic Word View" by Sujata Hazarika &

Ramya Murlitharan, "Jihad and Jannat in Hadiths" by Dr.

K.V. Palival, "Don't say we didn't warn you", "Great

Thinkers on Islam" compiled by Rana Pratap Roy,

"Islamization of India by the Sufis" by Purshottam, "Hindu

Chintan" by Anand Shankar Pandya and "Speeches of

Mohammed Ali Jinnah and Dr. B.R. Ambedkar and Anti

Hindus" by P. Goradia and K. Phanda; (x) Freedom of

expression is not founded on the wisdom of the opinion or

the amount of research put in before it is expressed; nor

is it dependent on the quality of the literature, the art or

the speech. It is founded on the inherent human right to

express one's views and is subject to a limited deterrent

that this shall not be permitted if it is aimed at social

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unrest, hatred, etc.; The freedom of expression of the

applicant must be protected by quashing the Notification

and lifting the ban on the book; (xi) What has been

stated in the book is not untrue or unknown and is

borne out by the recent events and publication in the

media. The concept of global jihad; the desire for

Islamisation of India, the belief of Muslim leaders that all

Muslims are born Mujahids and they expect all true

believers to give completely their possessions and

persons to jihad even in this day and age have been

published and circulated in newspapers. These are

common perceptions of Indian society. If these

newspapers have not brought about communal hatred,

the respondents must explain how the book with a

publication of about 10,000 copies is said to be ostensibly

aimed at achieving this objective. (xii) With the advent of

the internet, all information is available to everyone.

Banning a book would not achieve the desired effect

and, it would be a pointless exercise. Reliance was

placed on the judgment of the Supreme Court in Ajay

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Goswami v. Union of India & Ors. (2007) 1 SCC

143.

11. In support of his submissions, Counsel relied on the

Supreme Court's judgments in Ramji Lal Modi v. State

of U.P., AIR 1957 SC 620; Harnam Das v. State of

U.P., AIR 1961 SC 1662; Narayan Das Indurkhya v.

State of M.P., AIR 1972 SC 2086; Nawabkhan

Abbaskhan v. State of Gujarat, AIR 1974 SC 1471;

State of U.P. v. Lalai Singh Yadav, AIR 1977 SC

202; Balwant Singh & Anr. v. State of Punjab, AIR

1995 SC 1785; Manzar Syeed Khan v. The State of

Maharashtra & Anr., (2007) 5 SCC 1 and Baragur

Ramchandra & Ors. v. State of Karnataka & Ors.

(2007) 5 SCC 11 and on the judgment of the Nagpur

High Court in Bhagwati Charan Shukla v. Provincial

Government C.P. & Berar, AIR (34) 1947 Nagpur 1.

Reliance was placed on the judgments of this court in

Gopal Godse v. The Union of India & Ors., AIR 1971

Bombay 56; M/s. Varsha Publications Pvt. Ltd. &

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Anr. v. State of Maharashtra & Ors., 1983 Cri.L.J.

1446 and Anand Chintamani Dighe & Anr. v. State

of Maharashtra & Ors., 2002 (1) Bom.C.R. 57 and in

Sangharaj Rupawate & Ors. v. Nitin Gadre & Ors.

in Writ Petition No.1721 of 2004 decided on

26/4/2007.

12. The Advocate General submitted that (i) There are

three facets of a valid notification. They are (a) The

forfeited book must contain any matter; (b) Such matter

must promote or must be intended to promote feelings of

enmity or hatred between different classes of people; and

(c) The notification must contain a statement of the

grounds of the Government's opinion. The first and the

second requirements are set out in the second last

paragraph of the Notification. The Notification promotes

enmity between Muslims and Non-Muslims and which may

outrage the feelings of the Muslims resulting in a breach

of peace and acts of violence; (ii) The grounds of the

opinion are stated in the Notification. The Notification

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satisfies all the requirements. It is not necessary to quote

verbatim the offending paragraphs in the notification.

Hence, the applicant cannot contend that matters not

specified in the Notification cannot be relied upon by the

respondents to substantiate their case; (iii) Grounds of

opinion mean the conclusions of facts on which the

opinion is based. Grounds can be brief and the

Notification clearly indicates the grounds on which the

respondent formed an opinion that the book contains

matter which attracts the penal provisions of the IPC; (iv)

The strict requirement of proving mens rea in criminal

proceedings initiated under Section 153-A or 295-A will

not apply to a notification under Section 95 because

Section 95 only states that it has `to appear' to the

Government that a particular book contains matter

punishable under the IPC; (v) After the respondent shows

that the requirements of a valid notification are met, the

onus shifts to the applicant. The applicant is bound to

dislodge the opinion of the Government and if he fails to

do so, the Notification must be sustained; (vi) The

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intention prescribed by the relevant Sections of the IPC

can be gathered from the language, contents and import

of the offending material and standard of proof is of lesser

strictness; (vii) The test is whether the book read as a

whole attracts the relevant penal provisions of the IPC.

Throughout the book scurrilous and malicious statements

have been made by the applicant to outrage the religious

feelings of the Muslim community; (viii) The two classes in

the Notification are identified as Muslims and Non-Muslims

and hence Section 153-A of the IPC is attracted. The

applicant calls upon Hindus to protect themselves against

the alleged ordainment of Islam upon all Muslims to kill or

convert Non-Muslims. Hence, the book clearly attracts

Section 153-B(1)(b) and (c) of the IPC; (ix) The applicant's

case that the book contains matter which is part of

folklore, tradition, history; that the author has merely

relied on contents of other books to substantiate his view;

that his interpretation is supported by several Ayats in the

Holy Quaran must be rejected because the passages of

the Quaran are torn out of context and the book is a

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deliberate misreading of the Quaran solely to promote

feelings of ill-will through publication in the guise of

political thesis or historical truth. Even truth is no defence

to a charge under Section 153-A, 153-B or 295-A of the

IPC; (x) The plea that the book was published in 2003 and

till its forfeiture there has not been a single instance of

violence or disturbance of law and order so as to warrant

forfeiture is not tenable; (xi) the applicant not having

raised the plea of limitation in the application, he may not

be permitted to raise it at this stage; [Narne Murthy v.

Ravula (2005) 6 SCC 614 and Municipal Corporation

v. Sri Niyamatullah (1969) 2 SCC 551] (xii) The

validity of Section 95 of the Code has been upheld by the

Supreme Court in Baragur and the contention that there

has been a violation of the principles of natural justice

must be rejected. The power under Section 95 of the

Code is preventive and not punitive. Section 95 does not

contemplate any hearing prior to the taking of a decision,

for that may defeat the purpose of Section 95 of the Code.

Section 96 of the Code provides a post decisional

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challenge. The aggrieved person has an opportunity to

assail the order of forfeiture; (xiii) The restrictions placed

on the exercise of powers under Section 95 of the Code

are reasonable restrictions under Article 19(2) of the

Constitution. The term `in the interest of public order' as

mentioned in Article 19(2) is of a very wide amplitude and

includes restrictions imposed by Section 95 of the Code;

(xiv) The constitutional validity of Section 295-A of the IPC

has been upheld by the Supreme Court in Ramji Lal

Modi, The doctrine of `clear and present danger' invoked

by the applicant cannot be imported in the Indian

Constitution; (xv) The petitioner's reliance on Balwant

Singh and Manzhar Khan is misplaced because they

were cases where offence was registered under Section

153-A of the IPC wherein the degree of proof required to

establish mens rea is greater than in cases where a

publication is forfeited under Section 95 of the Code.

Considering the constitutional mandate of adherence to

the principles of secularism, this court should strike a

balance between protecting the fundamental right of

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freedom of speech on one hand and public interest on the

other and dismiss the application.

13. Since the interveners were allowed to intervene for a

limited purpose, we do not propose to deal with the

submissions which travel beyond the scope of

intervention. It is urged that the courts may refer to

religious

scriptures but should not put its own

interpretation over the text or scriptures. The Constitution

protects freedom of conscience and when a question

arises as to what constitutes essential part of religion, the

same should be primarily ascertained with reference to

the doctrine of that religion.

14. When this court has to perform its duty in terms of

Section 95(1) read with Section 96(4), to consider whether

a declaration of forfeiture of any book is to be set aside or

not and when that book happens to be a critical analysis

of a religion, an overview of religious tenets and

philosophy by the court becomes inevitable. We are not

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for a moment contemplating importing our own views on

the scriptures. We shall deal with the rival submissions

keeping in mind the judgments cited by Mr. Muchhala.

Mr. Muchhala has taken us through the relevant Ayats and

explained their context. As and when necessary, we shall

refer to Mr. Muchhala's submissions.

15. Another

intervenor, Mr. Khandelwal, who is

appearing in person has raised an objection to our

allowing Mr. Muchhala to intervene. In this connection, he

has relied on an unreported judgment of the Supreme

Court dated 30/8/1999 in Shiv Kumar v. Hukum

Chand & Anr. In that case, the appellant/complainant

wanted the counsel appointed by him to conduct the

prosecution in the Sessions Court. The public prosecutor

had consented to it. The High Court rejected the prayer.

After considering the relevant provisions of the Code,

particularly Section 301 thereof, the Supreme Court

endorsed the High Court's view after observing that the

prosecution in a Sessions Case cannot be conducted by

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anyone other than the public prosecutor. The Supreme

Court observed that if a private counsel is allowed a free

hand to conduct a prosecution he would focus on bringing

the case to conviction even if it is not a fit case where the

accused could be convicted. That is the reason why

Parliament has subjected his role strictly to the

instructions given by the public prosecutor. This

Judgment has no application to the present case. Here we

are not concerned with Sessions trial, nor have we

allowed Mr. Muchhala to intervene so as to act as counsel

for the State. We have already clarified that we have

allowed Mr. Muchhala to intervene with a view to getting

suitable assistance in finding out the true meaning and

content of the relevant Ayats. Beyond that, he has no role

to play. It is pertinent to note that since we allowed the

intervention of the organizations represented by Mr.

Muchhala, in the interest of justice, we also allowed the

intervention application of Mr. Khandelwal. The objection

raised by Mr. Khandelwal is, therefore, rejected.

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16. Mr. Khandelwal has tendered written submissions.

They are in tune with Mr. Cama's submissions. Mr.

Khandelwal has inter alia contended that in the book, not

a word is stated by the author to instigate Hindus to

violence. According to Mr. Khandelwal, the book is

banned by self appointed arbiters who have decided what

to read and what not to read. He submitted that the book

contains fair criticism of Islam. Mr. Khandelwal has cited

instances of books like "Shivaji the Hindu King in Islamic

India" and "Da Vinci Code" and films like "Jodha Akbar",

"War and Peace" and "Chand Bujh Gaya" where the High

Court and the Supreme Court have zealously guarded

freedom of speech and expression of people by not

approving bans on those books or films. According to Mr.

Khandelwal, in the present case, the ban has not been

imposed on valid constitutional grounds, but is imposed to

serve the interests of different political and religious

groups.

17. Before we examine the present case in the light of

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the judgments cited before us, it is necessary to deal with

the point of limitation which was raised by counsel for the

applicant during the course of hearing. He submitted that

the book was published in 2002. Hence, the prosecution

of the applicant is barred under Section 468 of the Code.

This point is not raised in the application nor is it taken in

the written submissions. Though Section 468 of the Code

prescribes period of limitation, under Section 473 of the

Code, cognizance of the offence can be taken after the

expiry of period of limitation, if the court is satisfied in the

facts and circumstances of the case that the delay is

properly explained. In this case, the point having not

been raised, the respondents could not have explained

the delay. We find substance in learned Advocate

General's submissions based on judgments of the

Supreme Court in Narne Murthy and Sri Niyamatullah,

that the question of limitation being a mixed question of

law and fact the plea must be pleaded and raised at the

outset. In the circumstances, we reject this submission.

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18. We must also reject the submission based on

Nawabkhan that action under Section 95 of the Code

was taken in violation of principles of natural justice. In

Nawabkhan, the Supreme Court set aside the

externment order passed against the accused on the

ground that there was a failure to give him a hearing

under Section 59 of the Bombay Police Act. Section 59 of

the Bombay Police Act contemplates a hearing. Section

95 of the Code does not provide for a hearing. Therefore,

Nawabkhan cannot be applied to the present case.

Moreover, the legislature has taken care to protect the

aggrieved person from arbitrary orders of forfeiture by

providing a post-decisional challenge under Section 96 of

the Code. The intention of the legislature in enacting

Section 95 is to empower the State Government to deal

with an emergent situation which is likely to lead to

breach of public order. If the submission of the applicant

is accepted that will frustrate the object behind Section

95. This submission of must, therefore, fail.

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19. We shall now turn to the judgments cited by learned

counsel.

20. In Ramji Modi, the Supreme Court was dealing with

a challenge to the constitutional validity of Section 295-A

of the IPC. It was, inter alia, argued that insults to religion

or the religious beliefs of a class of citizens of India may

lead to public disorder in some cases but in many cases

they may not do so and, therefore, a law which imposes

restrictions on the citizens' freedom of speech and

expression by simply making insult to religion an offence

will cover both varieties of insults i.e. those which may

lead to public disorders as well as those which may not. It

was argued that the law insofar as it covers the first

variety may be said to have been enacted in the interests

of public order within the meaning of Clause (2) of Article

19, but insofar as it covers the remaining variety will not

fall within that clause. The Supreme Court rejected this

submission and observed that in the first place, Clause (2)

of Article 19 protects a law imposing reasonable

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restrictions on the exercise of the right to freedom of

speech and expression "in the interest of public order",

which is much wider than "for maintenance of public

order". If, therefore, certain activities have a tendency to

cause public disorder, a law penalising such activities as

an offence cannot but be held to be a law imposing

reasonable restriction "in the interest of order" although

in some cases those activities may not actually lead to a

breach of public order. The Supreme Court observed that

Section 295-A does not penalize any and every act of

insult to or attempt to insult the religion or the religious

beliefs of a class of citizens but it penalises only those

acts of insults to or those varieties of attempts to insult

the religion or the religious beliefs of a class of citizens

which are perpetrated with the deliberate and malicious

intention of outraging the religious feelings of that class.

It was further observed that insults to religion offered

unwittingly or carelessly or without any deliberate or

malicious intention to outrage the religious feelings of that

class do not come within the section. It only punishes the

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aggravated form of insult to religion when it is

perpetrated with the deliberate and malicious intention of

outraging the religious feelings of that class.

21. In Harnam, a Constitution Bench of the Supreme

Court was considering somewhat similar provisions of the

Code of Criminal Procedure, 1898 ("the Code of 1898").

The Government of U.P. had passed an order under

Section 99-A of the Code of 1898 forfeiting two books on

the ground that they contained matter, the publication of

which was punishable under Sections 153-A and 295-A of

the IPC. The Supreme Court set aside the notification on

the ground that for a forfeiture notification to be valid,

there must be an opinion of the Government and the

Government has to state the grounds of its opinion. The

Supreme Court observed that the notification did not state

the grounds of the Government's opinion. It was not

known which communities were alienated from each other

or whose religious beliefs had been wounded and why the

Government thought that such alienation or offence to

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religion had been caused. The Supreme Court observed

that if the grounds of opinion are not stated, the order of

forfeiture must be set aside, because then the Court

cannot be satisfied that the grounds given by the

Government justified the order. The Supreme Court

clarified that it is the duty of the High Court to set aside

an order of forfeiture if it is not satisfied that the grounds

on which the Government formed its opinion could justify

that opinion, but it is not the duty of the High Court to find

for itself whether the book contained any such matter

whatsoever. The Supreme Court observed that whether

the order was proper or not would depend only on the

merits of the grounds on which it was based because if it

could be upheld on the grounds other than those on which

the Government based its opinion there would have been

no need to provide that the grounds of the Government's

opinion should be stated; such grounds would then have

been wholly irrelevant in judging the validity of the order.

The Supreme Court set aside Allahabad High Court's order

which had proceeded to examine the book in question for

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itself and come to its own conclusion dehors the

notification as to why the contents of the book were

objectionable.

22. In Narayan Das, the appellant, a proprietor of a

printing press had published a book entitled "Madhyamic

Bhoogol" written by one Mr. Saxena. The State

Government passed an order under Section 2 of the

Criminal Law Amendment Act, 1961 in respect of the said

book and two other books stating that the books question

the territorial integrity and frontiers of India in a manner

which is likely to be prejudicial to the interest of the safety

and security of India and, hence, the State Government

declares every copy of the said books to be forfeited in

favour of the Government. The books were specified in

the schedule. In respect of the appellant's books it was

stated inter alia that the books contain maps which show

incorrect external boundaries of India and some parts of

India were even omitted from the said maps. Section 4(1)

of the Criminal Law Amendment Act, 1961, also required

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the State Government to declare grounds of its opinion in

the order. The Supreme Court set aside the said order.

The Supreme Court observed that grounds must be

distinguished from the opinion as grounds of the opinion

must mean conclusion of facts on which the opinion is

based and there can be no conclusion of facts which has

no reference to or is not ex facie based on any facts. The

Supreme Court observed that mere repetition of an

opinion or reproduction of the section without giving any

indication of the facts will not answer the requirements of

a valid notification. The Supreme Court referred, with

approval, to the judgment of the Calcutta High Court in

Arun Ranjan Ghose v. State of West Bengal, 59

EWN 495, where the Calcutta High Court has observed

that formation of an opinion by Government is

undoubtedly the ground for the action taken by it, but the

grounds of opinion are obviously different. Grounds must

necessarily be the import or the effect or the tendency of

the matters contained in the offending publication, either

as a whole or in portions of it, as illustrated by passages

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which Government may choose. Relying on its judgment

in Harnam, the Supreme Court set aside the forfeiture

order on the ground that the State Government had given

its opinion and not the grounds of its opinion.

23. In Lalai Singh Yadav, the Government of Uttar

Pradesh by an order passed under Section 99-A of the

Code of 1898 forfeited a book captioned "Ramayan : A

True Reading" on the ground that it was sacrilegiously,

outrageously objectionable being deliberately and

maliciously intended to outrage the religious feelings of a

class of citizens of India i.e. Hindus by insulting their

religion and religious beliefs and publication whereof is

punishable under Section 295-A of the IPC. This

notification contained an appendix setting out in tabular

form, the particulars of the relevant pages and lines in the

English and Hindi versions which presumably, were the

materials which were regarded as scandalizing. An

application was made by the respondent who was the

publisher under Section 99-C of the Code of 1898 to the

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High Court. The Special Bench of the High Court allowed

the application and quashed the notification on the

cground that the State Government did not state the

grounds of its opinion as required by Section 99-A. The

State of U.P. approached the Supreme Court. It was

argued before the Supreme Court that though there is no

express enunciation of the grounds of the Government's

opinion, the appendix makes up for it. It was argued that

the number of the pages and lines of the offending

publication supply both the matter and the grounds, the

latter being so patent, the omission is inconsequential.

The Supreme Court held that when the section says that

you must state the grounds, it is no answer to say that

they need not be stated because they are implied. The

Supreme Court clarified that a formal authoritative setting

forth of the grounds is statutorily mandatory and the

Court cannot make a roving enquiry beyond the grounds

set forth in the order and if the grounds are left out

altogether then there is nothing available to the court to

examine, and the notification must fail. The Supreme

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Court observed that the grounds need not be stated at

`learned length'. In certain cases, a laconic statement

may be enough while in others more detailed reasons

may be required. The Supreme Court further observed

that while the order may be brief, it cannot be completely

blank as to the grounds which form the basis of the

opinion on which the Government relies. The Supreme

Court held that an order of forfeiture constituted a drastic

restriction on the rights of a citizen and hence the

relevant provisions of the Code must be strictly construed.

The Supreme Court observed that the relevant provisions

of the Code compel the Government to look into the

matter "which calls for action to consider it as to the clear

and present danger it constitutes in the shape of

promoting feelings of enmity and hatred between the

different segments of citizens or as to its strong tendency

or intendment to outrage the religious feelings of such

segments" and to exercise such power it is necessary for

the State to set out the grounds of its opinion.

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24. In Balwant Singh, the Supreme Court was dealing

with a criminal appeal filed by the appellants challenging

the conviction under Section 124-A and Section 153-A of

the IPC. The Supreme Court acquitted the appellants.

Counsel for the applicant relied on the observations of the

Supreme Court in regard to Section 153-A of the IPC that

the intention to cause disorder or to incite people to

violence is the sine qua non of the offence under Section

153-A of the IPC and the prosecution has to prove the

existence of mens rea in order to succeed. Counsel

submitted that it is for the respondents to first prove

existence of mens rea. He submitted that here there is

total absence of mens rea and, hence, the Notification

must be set aside.

25. In Manzar Khan, Manzar Khan the appellant was a

constituted attorney of Oxford University Press India

which published a book entitled Shivaji Hindu King in

Islamic India authored by Prof. Laine. The police

registered FIR against the appellant and Prof. Laine under

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alia on the ground that the offensive paragraphs of the

said book contained scurrilous attack on Shivaji Maharaj

and the circulation of the said book has resulted in

causing enmity between various communities and has led

to violence and disharmony. While quashing the FIR, the

Supreme Court observed that the gist of the offence

under Section 153-A of the IPC is the intention to promote

feelings of enmity or hatred between different classes of

people. The intention to cause disorder or incite the

people to violence is the sine qua non of the offence

under Section 153-A of the IPC and the prosecution has to

prove prima facie the existence of mens rea on the part of

the accused. The Supreme Court further observed that

the intention has to be judged primarily by the language

of the book and the circumstances in which the book was

written and published. The Supreme Court further

observed that the matter complained of must be read as a

whole. One cannot rely on strongly worded and isolated

passages for proving the charge nor indeed can one take

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a sentence here and a sentence there and connect them

by a meticulous process of inferential reasoning. The

Supreme Court quoted with approval the observations of

the Nagpur High Court in Bhagwati Charan Shukla that

the effect of the words in the offending publication must

be judged from the point of view of a reasonable man, and

not a weak or a hypersensitive man who senses hostility

in every point of view that does not agree with his own.

26. In Baragur, the State of Karnataka had issued a

notification forfeiting all copies of novel "Dharmakaarma"

under Section 95 of the Code on the ground that some of

the statements made therein were objectionable and

insulting to the sentiments and feelings of the followers of

Basaveshwara, a great saint. The forfeiture was upheld

by the Supreme Court by observing that some portions of

the book were clearly an affront to the sentiments of

Veerashaivas followers of Basaveshwara. The Supreme

Court observed that Section 95 of the Code exemplifies

the principle that the freedom of speech and expression is

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not unfettered. This freedom must be available to all and

no person has a right to impinge on the feeling of others

on the premise that his right to freedom of speech

remains unrestricted and unfettered. The Supreme Court

observed that India is a country with vast disparities in

language, culture and religion and unwanted and

malicious criticism or interference in the faith of others

cannot be accepted.

ig The Supreme Court observed that

prior to the issuance of a notification, it must appear to

the State Government that the ingredients of the offence

under the relevant provisions of the IPC exist. Only

thereafter does the onus shift on the author. The

Supreme Court made it clear that 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 Supreme Court observed that if the allegations made

in the allegedly offending portions of the publication were

based on folklore, tradition or history, something in

extenuation could be said for the author. However, on

facts, the Supreme Court found that Chapter 12 of the

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book was not in sync with the rest of the novel and had

been deliberately designed to be hurtful and to bring the

Basaveshwara family to shame.

27. We must also refer to Bhagwati Charan Shukla. In

that case, orders of forfeiture were made in respect of

certain matters which appeared in Nagpur Times. The

question was whether it directly or indirectly brought into

hatred or contempt the Government established by law in

British India or excited disaffection towards the said

Government. The Nagpur High Court set aside the order

of forfeiture. The Nagpur High Court observed that the

words of the relevant section are words of wide import

and that unless they are applied with restraint and care

almost every criticism of Government would fall within

their purview. The Nagpur High Court observed that it is

not sedition to merely criticize the Government and it is

not sedition to seek its overthrow by constitutional means

in order that another Government equally constitutional

may be substituted in its place in a constitutional way. In

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order to constitute the offence of sedition, the intention or

the attempt to induce people to cease to obey the law and

to cease to uphold the lawful authority must be present.

While considering whether the published material was

intended to excite disaffection towards the Government,

the Nagpur High Court considered the fact that the matter

appeared in a local daily written in English with a small

and distinctly limited circulation. It was observed that the

paper was read by those who understand English and

who, therefore, have a certain degree of education. It was

not meant for an ignorant illiterate and inflammable mob.

In relation to the right to criticize the Government,

learned Judges observed that they did not necessarily say

that the criticisms were well founded, but it must be

acknowledged that there was a constitutional right to put

forth such criticisms.

28. In Gopal V. Godse, G.V. Godse, the petitioner was

the brother of Nathuram Godse, assassin of Mahatma

Gandhi. The petitioner was arrested along with Nathuram

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Godse for murder of Mahatma Gandhi and was tried along

with him. He was sentenced to life imprisonment. He was

released from jail on 13/10/1964. He wrote and published

a book titled "Gandhi-hatya Ani Mee". On 6/12/1967,

Governor of Delhi issued a notification under Section 99-A

of the Code of 1898 forfeiting every copy of the said book

on the ground that it contains matter which promotes

feelings of enmity and hatred between Hindus and

Muslims, the publication of which is punishable under

Section 153-A of the IPC. On 1/2/1968, the Government of

Maharashtra republished the notification of the Delhi

Administration. The petitioner challenged the said

notification under Article 226 of the Constitution of India

and under Section 99-D of the Code of 1898. The Special

Bench set aside the notification. The Special Bench

observed that the High Court cannot sustain an order of

forfeiture on grounds other than those mentioned in the

said order. The High Court cannot add to the grounds

given by the State in the notification, but can simply

review the book on merits, to determine if it is satisfied

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with the grounds given in the order of forfeiture.

Following are the points which according to the Special

Bench must be kept in mind before inquiring whether a

charge can be sustained on the date disclosed in the

order of forfeiture.

"64. While inquiring whether such a charge can be sustained on the date disclosed in

the order of forfeiture, namely the offending passages read in the context of the book as a whole, it is important to

remember that : (1) Under Section 153A it is not necessary to prove that as a result of the objectionable matter, enmity or hatred was in fact caused between the different

classes. (2) Intention to promote enmity or hatred apart from what appears from the

writing itself, is not a necessary ingredient of the offence. It is enough to show that the language of the writing is of a nature calculated to promote feelings of enmity or

hatred for, a person must be presumed to intend the natural consequences of his act. (3) The matter charged as being within the mischief of Section 153A must be read as a

whole. One cannot rely on stray, isolated passages for proving the charge nor indeed can one take a sentence here and a sentence there and connect them by a meticulous process of inferential reasoning. (4) For judging what are the natural or probable consequences of the writing, it is permissible to take into consideration the class of readers for whom the book is

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primarily meant as also the state of feelings

between the different classes or communities at the relevant time. (5) If the writing is calculated to promote feelings of

enmity or hatred, it is no defence to a charge under Section 153A that the writing contains a truthful account of past events or is otherwise supported by good

authority. If a writer is disloyal to history, it might be easier to prove that history was distorted in order to achieve a particular end as e.g. to promote feelings of enmity or

hatred between different classes or communities. But adherence to the strict

path of history is not by itself a complete defence to a charge under Section 153A. In fact, greater the truth, greater the impact

of the writing on the minds of its readers, if the writing is otherwise calculated to produce mischief."

29. In M/s. Varsha Publications Pvt. Ltd., the State of

Maharashtra issued Notification dated 31/7/1982 under

Section 92 of the Code of Criminal Procedure (2 of 1974)

(for short, "Code of 1974") declaring the issue of a

popular Marathi Daily "Shree" forfeited on the ground that

it contained matters which would be punishable under

Section 153-A of the IPC. The notification stated that the

said publication and its cover contain matter which

purports to prove that in Pre-Islamic times the ancient

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Indian culture and Hindu religion were in vogue in Arabia

and that the Islamic religion, culture and art were greatly

influenced by the Indian culture and religion and which

thereby promotes on the grounds of religion and race

disharmony or ill-will between the Muslim and Hindu

communities and commits an act which is prejudicial to

the maintenance of harmony between the said two

communities and which is likely to disturb the public

tranquility. The publisher of the said publication

challenged the notification. It was argued that the

notification must state the grounds on the basis of which

the State Government has formed its opinion that the

issue in question contained matter which is punishable

under Section 153-A of the IPC. In the absence of such

grounds, the Notification will be bad in law.

30. The Special Bench of this Court referred to the

judgments of the Supreme Court in Harnam Das and in

Lalai Singh Yadav and held that the notification in

question did not contain any grounds; that mere mention

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of the article or a part thereof in the notification would not

constitute grounds contemplated by Section 95 and

therefore, it would be difficult for the State to contend

that the notification stated grounds and had complied

with the mandatory provisions of law. The Special Bench

took note of the fact that it was stated in the petition that

just below the printed article, there was a list containing

various books to which the author has made a reference.

It was contended that the article was a historical and

literary composition made in a temperate language.

Truth of the averments made in the petition were not

denied. After analyzing the article, the Special Bench held

that it will be very difficult for the State to contend that a

narration of history would promote violence, enmity and

hatred. The Special Bench observed that if such a

contention is accepted, a day will come when that part of

history which is unpalatable to a particular religion will

have to be kept in cold storage on the pretext that

publication of such history would constitute an offence

punishable under Section 153-A of the IPC. A nation

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would have to forget it's own history and in due course

nation will have no history at all. The writing being a

historical research, observed this court, it cannot be

allowed to be thwarted on a plea that publication of such

material would be hit by Section 153-A of the IPC. This

court in the circumstances, quashed the notification.

31. In Anant Dighe, the Government of Maharashtra

issued notification under Section 95(1) of the Code

declaring that every copy of the Marathi play entitled

"Mee Nathuram Godse Bolto" be forfeited to the

Government. The notification inter alia stated that the

play in question contained derogatory references towards

Mahatma Gandhi and certain communities and was likely

to disturb public tranquility and that it was written with a

deliberate and malicious intention to outrage feelings of

the followers of Mahatma Gandhi and therefore, the

publication would be punishable under Section 153-A and

295-A of the IPC. The challenge to the notification was

repelled by the Special Bench of this court, to which one

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of us (D.Y. Chandrachud, J.) was a party. After

considering the relevant judgments, this court observed

that the notification did not contain grounds of the

Government's opinion. The notification did not state what

part of the play would render the printed material

punishable under Section 153-A or the groups between

whom feeling of enmity is likely to be created. The

notification had merely employed statutory language.

There was no reference in the notification of there being

any deliberate or malicious intention of outraging the

religious feelings of any class of citizens. This court noted

that lacunae in the notification cannot be permitted to be

supplemented in the affidavits filed in the course of

proceedings. While stressing the importance of the

guarantee of freedom of speech and expression under

Article 19(1)(a) of the Constitution, this court observed as

under:

"But, it is important to realize that there are eternal values on which the Constitution of a democracy is founded. Tolerance of a diversity of view points and

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the acceptance of the freedom to express

of those whose thinking may not accord with the mainstream are cardinal values which lie at the very foundation of a

democratic form of Government. A society wedded to the Rule of law, cannot trample upon the rights of those who assert views which may be regarded as

unpopular or contrary to the views shared by a majority. The law does not have to accept the views which have been expressed by the petitioner in the play in

order to respect the right of the petitioner as a playwright to express those views.

Respect for and tolerance of a diversity of viewpoints is what ultimately sustains a democratic society and Government. The

right of the playwright, of the artist, writer and of the poet will be reduced to husk if the freedom to portray a message - whether it be in canvas, prose or verse is

to depend upon the popular perception of the acceptability of that message. Popular

perceptions, however strong cannot override values which the Constitution embodies as guarantees of freedom in what was always intended to be a free

society."

32. Reference was also made to the judgment of the

Special Bench of this Court in Sangharaj Rupawate &

Ors. v. Nitin Gadre & Ors. in Writ Petition No.1721

of 2004 decided on 26/4/2007. In that case,

notification was issued by the Government of Maharashtra

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forfeiting every copy of the book captioned "Shivaji-Hindu

King in Islamic India" written by Prof. Laine on the ground

that publication of the book was punishable under Section

153-A of the IPC. After the petition was heard by this

court, the Supreme Court held that the writings in the said

book did not constitute an offence under Section 153-A of

the IPC. In view of this observation of the Supreme Court,

this court held that the notification has to be struck down.

This court also held that there was nothing on record to

show that the publication was likely to promote

disharmony or feeling of enmity between various groups

as likely to cause disturbance of public tranquility and

maintenance of harmony between various groups.

33. Before we deal with the rival contentions, it is

necessary to deduce the legal principles from the above

judgments. Following are the said principles.

"a) The Notification must state the grounds of the Government's opinion.

(Harnam, Narayan Das, Lalai Singh Yadav)

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b) A formal authoritative setting forth of the grounds is statutorily mandatory. Appendix

cannot make up for grounds of opinion.

(Lalai Singh Yadav)

c) Mere repetition of an opinion or

reproduction of the Section will not answer

the requirement of a valid notification.

ig (Narayan Das)

d) Grounds must not be stated at learned length. In certain cases a laconic statement may be enough while in others

more detailed reasons may be required.

Grounds may be brief but cannot be blank.

(Lalai Singh Yadav)

e) 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 the matters contained in the offending publication either as a whole or in portions of it, as illustrated by passages which Government may choose, (Narayan Das's case where the Supreme

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Court referred to the Calcutta High Court's

judgment in Arun Ranjan Ghose with approval).

f) The High Court must set aside an 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 justified the order. If in such case, the High Court

upholds the order, it would mean that the High Court itself made the order which the

High Court cannot do. (Harnam)

g) The High Court must set aside the order of forfeiture if it is not satisfied that the

grounds on which the Government formed it's opinion justify that opinion.

(Harnam)

h) The validity of the order of forfeiture would depend on the merits of the grounds. It is

not the duty of the High Court to find out for itself whether the book contained any such matter whatsoever. The High Court cannot make a roving enquiry beyond the grounds set forth in the order. (Harnam)

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i) 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. (Baragur)

j) The matter charged as being within the mischief of the relevant sections of the IPC

must be read as a whole. One cannot rely

on stray, isolated passages for proving the charge nor indeed can one take a sentence

here and a sentence there and connect them by a meticulous process of inferential reasoning.

(Gopal Godse, Special Bench, Bombay High

Court.)

k) Section 295-A of the IPC does not penalize

any and every act of insult to or attempt to insult the religion or religious beliefs of a class of citizens. There must be a malicious

or deliberate intention to outrage the religious feelings of a class of citizens. (Ramji Modi, Balwant Singh, Manzar Khan, Bhagwati Charan Sharma Nagpur High Court, Gopal Godse Special Bench, Bombay High Court.)

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l) Intention of the author has to be gathered from the language, contents and import of

the offending material.

(Baragur, Gopal Godse Special Bench,

Bombay High Court).

m) If the purpose of writing the book was a

historical research based on a number of

reference books and other material, it would be difficult for the State to contend

that simple narration of history would promote violence, enmity or hatred. (Varsha Publications, Special Bench, Bombay

High Court.)

n) If the allegations made in the offending article is based on folklore, tradition or

history something in extenuation could perhaps be said for the author.

(Baragur)

o) 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 account of past events or is otherwise

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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. (Gopal Godse, Special Bench, Bombay High

Court).

p) Section 95(1) of the Code requires that the

ingredients of the offences should appear

to the Government to be present. Section 95 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.

(Baragur, Nandkishore, Special Bench of

Patna High Court).

q) The onus to dislodge the prima facie opinion of the Government that the offending publication comes within 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. (Nandkishore, Special Bench of Patna High Court, approved in Baragur.)

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r) It is not necessary to prove that as a result

of the objectionable matter enmity or hatred was in fact caused between the

different classes. It is enough to show that the language of the writing is of a nature

calculated to promote feelings of enmity or hatred.

(Gopal Godse, Special Bench, Bombay High

Court.).

s) For

judging what are the natural or

probable consequences of the writing, it is permissible to take into consideration the class of readers for whom the book is

primarily meant as also the state of

feelings between the different classes or communities at the relevant time.

(Gopal Godse, Special Bench, Bombay High

Court.)

t) Whether the objectionable matter is meant

for limited circulation, whether it is to cater to ignorant, illiterate inflammable mob or educated people would be a relevant consideration.

(Bhagwati Charan Sharma - Nagpur High Court).

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u) The effect of the words 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.

(Ramesh v. Union of India, AIR 88 SC 775,

Manzar Khan, Bhagwati Charan Sharma - Nagpur High Court.)"

34. We need to examine the present case in the light of

above principles. We shall first deal with the grievance

that because the penal provisions have not been stated in

the Notification, the applicant's right to challenge it is

adversely affected. We have already noted that learned

Advocate General has contended that the book contains

matter, the publication of which would constitute offences

punishable under Sections 153-A, 153-B and Section 295-

A of the IPC. We shall, therefore, quote the said

provisions to the extent they are relevant to the present

case.

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"153-A Promoting enmity between

different groups on grounds of religion, race, place of birth, residence, language, etc. and doing acts prejudicial

to maintenance of harmony.

(1) Whoever -

(a) by words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, on grounds of

religion, race, place of birth, residence, language, caste or community or any

other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial

language or regional groups or castes or communities, or

(b) commits any act, which is

prejudicial to the maintenance of harmony between different religious,

racial, language or regional groups or castes or communities and which disturbs or is likely to disturb the public tranquility, [or]"

Section 153-B so far as it relevant reads thus:

"S.153-B - Imputations, assertions, prejudicial to national integration.

(1) Whoever by words either spoken or written or by signs or by visible representations or otherwise -

(a) makes or publishes any imputation that any class of persons

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cannot by reason of their being

members of any religious, racial, language or regional group or caste or community, bear true faith and

allegiance to the Constitution of India as by law established or uphold the sovereignty and integrity of India or

(b) xxx xxx xxx

(c) makes or publishes any assertion, counsel, plea or appeal

concerning the obligation of any class of persons, by reason of their being

members of any religious, racial, language or regional group or caste or community, and such assertion,

counsel, plea or appeal causes or is likely to cause disharmony or feeling of enmity or hatred or ill-will between such members and other persons,

S.295-A Deliberate and malicious acts,

intended to outrage religious feelings of any class by insulting its religion or religious beliefs -

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 religion or the religious beliefs or 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."

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If we peruse the Notification, we find that though the

sections of the IPC are not mentioned, there is a direct

reference to the ingredients of Sections 153-A and 295A in

the recitals contained in the Notification. The relevant

portion of the Notification reads thus:

"AND WHEREAS for the reasons

aforesaid the Government of Maharashtra is of the opinion that the circulation and sale of the said Book and relevant

translation thereof as the translated Book contain abusive language bringing meanness to Jihaad, Quaran, Mohammed Paigambar, Indian Muslims and conversion,

as well as derogatory and false references therein is likely to create hatred against

Muslims in the minds of non-Muslims thereby promoting enmity between classes so also the said Book and relevant translation thereof as the translated Book

outrages the fillings of a Muslim section of society and maliciously insulting the religion and religious beliefs of Muslims and likely to lead to acts of violence and

disharmony and that any further circulation and sale of the said Book and relevant translation thereof as a translated Book is likely to result in breach of peace and public tranquility between classes and groups, as such the said Book and relevant translated Book should be forfeited;

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35. Ideally, the relevant sections should be clearly stated

in the notification. But, in our opinion, the absence of a

clear statement of penal provisions is not fatal to the

notification in view of the express mention of their

ingredients in the Notification. The Supreme Court has

made it clear that the notification must state the grounds

of the Government's opinion and a formal authoritative

setting forth of the grounds is statutorily mandatory. But

the Supreme Court has also clarified that a mere

repetition of an opinion or reproduction of section will not

answer the requirement of valid notification (Narayan

Das). It is also made clear by the Supreme Court that the

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 the matters

contained in the offending publication either as a whole or

in portions of it, as illustrated by passages which

Government may choose (Narayan Das). Therefore, if

from conclusions of facts, there is a fair idea of what is

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taken against the author that may suffice in the

circumstances of a case. The mere non-mention of penal

sections in the Notification by itself is not sufficient to

throw it overboard.

36. We will now examine whether grounds of opinion are

stated in the Notification and whether they contain

conclusions of facts which give sufficient outline of what is

held against the applicant. We have already reproduced

the Notification. It is necessary to quote recital 8 again. It

states that "for the reasons aforesaid, the Government of

Maharashtra is of the opinion (emphasis supplied) that the

circulation and sale of the book and the relevant

translation thereof as the translated book contain abusive

language bringing meanness to Jihaad, Quaran,

Mohammed, Paigambar, Indian Muslims and Conversions,

as well as derogatory and false references therein is likely

to create hatred against Muslims in the minds of non-

Muslims thereby promoting enmity between classes so

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also the book and relevant translation thereof as the

translated book outrages the feelings of a Muslim section

of society and maliciously insulting the religion and

religious belief of Muslims and likely to lead to acts of

violence and disharmony and that any further circulation

and sale of the book and relevant translation thereof as a

translated book is likely to result in breach of peace and

public tranquility between classes and groups, as such the

book and the relevant translated book should be

forfeited".

37. It is evident that recital 8 contains the opinion and

the earlier recitals 1 to 7 contain reasons or grounds of

opinion to which we shall soon come. The Notification

therefore cannot be accused of not containing the

required opinion.

38. We shall now turn to the grounds of opinion. Recital

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2 states that the author of the book has made several

derogatory and false statements about Muslim religion,

community, priests and Mohammed Paigambar as

specified in Schedule appended thereto. Recital 3 quotes

the gist of the false statements and gives the relevant

page numbers. Similarly, in the 4th recital, reference is

made to derogatory and false statements about Jihaad,

Quaran, Mohammed ig Paigambar, Indian Muslims and

Conversions and recital 4 refers to Khatme Nawabac as

being Muslim sentiment. In both these recitals, relevant

page numbers are given. The 5th recital is very important.

It states that "this might raise a question mark about the

basic aim and objective behind writing the book without

taking the Muslim sentiments into consideration and

without giving thorough consideration to the subject and

that the Government has taken serious note of this

derogatory, tasteless and malicious writings". This

paragraph, in our opinion, contains the conclusions of

facts. The 6th recital refers to the article published in a

newspaper making reference to the book and action taken

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inter alia against the author under Sections 153-A, 295-A

read with Section 34 of the IPC.

39. The grounds do not merely quote the pages or rely

on the Schedule. The grounds give the gist of the

derogatory remarks and to help identify those remarks

page numbers are given. The Schedule merely

supplements the grounds. The Notification does not

entirely rest on the Schedule. In our opinion, the

Notification answers the test of a valid notification

inasmuch as it states the opinion of the Government, it

states the grounds of the Government's opinion and

outlines the ingredients of the penal provisions which are

attracted to the present case. The grounds may be called

brief. They are certainly not blank. We, therefore, reject

these submissions of the applicant.

40. Relying on the judgment of the Nagpur High Court in

Bhagwati Charan Shukla, Counsel submitted that

Section 295-A and Section 153-A of the IPC cannot be

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applied unless language employed is strictly in terms of

these sections. Relying on Gopal Godse's judgment,

Counsel submitted that the order of forfeiture must at the

very best show that the language of the writing is of a

nature calculated to promote feelings of enmity and

hatred. Counsel submitted that the Notification falls short

of this requirement and, hence, must be set aside.

41. There can be no debate over the legal propositions.

But, the law does not require verbatim reproduction of the

section. In our opinion, the Notification does not lack the

basic ingredients. The Notification identifies the classes

of people who are likely to be affected by the book as

Muslims and non-Muslims. It quotes the derogatory

references to Muslim religion and inter alia states that the

said references are likely to create hatred against Muslims

in the minds of non-Muslims thereby promoting enmity

between classes. It further states that the book

maliciously insults Muslim religion which is likely to lead to

acts of violence and disharmony and breach of peace and

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public tranquility between classes. In view of these

averments, it is not possible for us to accept this

submission of the applicant.

42. Connected with this is the submission that mens rea

or intention to cause disorder or to incite people being the

sine qua non for the relevant offences it is the

respondents, who have to prove the mens rea. Reliance

was placed by Counsel on Balwant Singh where the

Supreme Court has observed that the intention to cause

disorder or to incite people to violence being the sine qua

non of the offence under Section 153-A of the IPC, the

prosecution has to prove mens rea in order to succeed.

Reliance was also placed on Manzar Khan for this

proposition. In our opinion, reliance placed on the above

judgments is misplaced.

43. Balwant Singh will not be applicable to the present

case because there the Supreme Court was dealing with a

criminal appeal filed by the appellants challenging their

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conviction under Section 124-A and Section 153-A of the

IPC. The Supreme Court acquitted the appellants.

Standard of proof required in a criminal trial can never be

equated to the requirement of presence of mens rea or

malicious intention to sustain an order of forfeiture issued

under Section 95 of the Code. In this connection,

reference must be made to the judgment of the Special

Bench of Patna High Court in Nand Kishore Singh v.

State of Bihar & Anr. AIR 1986 Patna 98. In that

case, the Government of Bihar had issued a notification

under Section 95(1) of the Code banning copies of a book

on the ground that it contained objectionable matters and

derogatory references about Prophet Mohammed which

outraged the religious feelings of the Muslim community

which was an offence punishable under Section 295-A of

the IPC. The petitioner who challenged the notification

was the publisher of the book. It was argued that to be an

offence under Section 295-A, the publication must be with

a deliberate and malafide intention. The mens rea or

deliberate and mala fide intention must be first

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established. Negativating this submission, the Patna High

Court observed as under:

"... it would be somewhat fallacious to mathematically equate the proceedings

under Sections 95 and 96 of the Code with a trial under Section 295-A of the Penal Code with the accused in the dock. The stringent requirement of the mens rea to

be proved and established are for the purpose of a conviction under this offence

which carried a sentence upto three years and fine".

The Patna High Court further observed :

"Indeed to require that a deliberate

and malicious intention must be proved at the threshold stage before the

Government by evidence (including any rebuttal thereof) as a condition for acting under Section 95(1), as if an accused person who was in the dock, would in

effect virtually frustrate the preventive purpose of the said section".

It was further observed :

"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."

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44. It may be stated here that in Baragur, the Supreme

Court has quoted the above observations with approval

and observed that Sections 95 and 96 of the Code are

preventive in nature. Section 95 does not by itself create

a criminal offence and the reference to various sections of

the IPC is merely descriptive of the kind of offence which

need to be prevented by a declaration under Section 95.

45. For the same reasons, judgment of the Supreme

Court in Manzar Khan will not be applicable to the

present case. In that case, the police had registered FIR

under Sections 153, 153-A read with Section 34 of the IPC

against the author and the publisher of a book which

allegedly contained scurrilous attack on Shivaji Maharaj, a

historical hero. The Supreme Court observed that the

prosecution has to prima facie prove the existence of

mens rea on the part of the accused. The Supreme Court

referred to its judgment in State of Haryana v. Bhajan

Lal, AIR 1992 SC 604, where it is laid down that an FIR

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can be quashed if it does not disclose an offence and

obviously after coming to the conclusion that the FIR did

not disclose any offence at all, the Supreme Court,

quashed it. Facts of this case materially differ from the

facts of the present case. Parameters of a criminal trial or

of requirements of the FIR on which investigation can be

set into motion cannot be applied to this case. As stated

by the Special Bench of the Patna High Court in Nand

Kishore Singh, all that Section 95(1) requires is that the

ingredients of the offence should appear to the

Government to be present and not that they should be

proved at the threshold or that the Government should be

inflexibly satisfied about them. Therefore, the prima facie

opinion of the Government that the offending publication

would come within the relevant section of the penal code

with its requirements of intent would be adequate to

enable it to act under Section 95(1). We respectfully

agree with the view of the Patna High Court which is

endorsed by the Supreme Court in Baragur that the onus

to dislodge and rebut the prima facie opinion of the

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Government that the offending publication comes within

the ambit of the relevant section is on the applicant. This

submission of the applicant must, therefore, fail.

46. The submission that the power to ban a book is

exercisable only when a clear and present danger exists

and not on mere apprehension of danger, must also be

rejected. In this connection, Counsel laid emphasis on the

observations of the Supreme Court in Lalai Singh that

the relevant section of the Code compels the Government

to look into the matter "which calls for action to consider

it as to the clear and present danger it constitutes in the

shape of promoting feeling of enmity and hatred between

different groups of citizens......." Counsel submitted that

the State Government has not examined the case from

the clear and present danger angle. On this aspect, it is

necessary to refer to Babulal Parate v. The State of

Maharashtra & Ors. AIR 1961 SC 884, where the

Supreme Court was dealing with challenge to the

constitutional validity of Section 144 of the Code. It was

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argued that Section 144 adopts 'likelihood' or 'tendency'

as tests for judging criminality; the test of determining the

criminality in advance is unreasonable. The Supreme

Court observed that the doctrine of clear and present

danger enumerated in Schenk v. United States

(1919) 249 US 47 cannot be imported under our

Constitution because the fundamental rights guaranteed

under Article 19(1) of the Constitution are not absolute

rights. Similar view was taken by the Supreme Court in

S. Rangarajan v. P. Jagjivan Ram, (1989) 2 SCC

574. The Supreme Court held that the First Amendment

of the U.S. Constitution provides for absolute right of

freedom of speech and of press. It contains no exception

for exercise of the right. Therefore, the decisions bearing

on the First Amendment are not useful to us except the

broad principles and the purpose of the guarantee.

Counsel pointed out that in Ajay Goswami, the Supreme

Court has referred to its judgment in S. Rangrajan and

observed that in that case while interpreting Article

19(2), it had borrowed from the American test of clear and

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present danger and, therefore, that test is still applicable.

We do not see any conflict in this. While clarifying that the

decisions bearing on the First Amendment are not useful

to us except the broad principles and the purpose of the

guarantee, while considering whether "U" certificate of a

feature film on reservation policy was rightly revoked, the

Supreme Court observed that the anticipated danger

should not be remote, conjectural and far-fetched, it

should have proximate and direct nexus with the

expression of thought and the expression of thought

should be intrinsically dangerous to the public interest. In

our opinion, therefore the doctrine of clear and present

danger has been modulated by the Supreme Court to be

in tune with Article 19(1) and (2) to mean that ban can be

imposed on apprehended danger but it has not to be

remote, conjectural or far-fetched and should be

intrinsically dangerous to the public interest.

47. We shall now turn to the gravamen of Counsel's

argument that the applicant is deprived of his

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fundamental right of freedom of speech and expression

guaranteed to him under the Constitution.

48. Freedom of speech and expression is a cherished

right of every citizen. Every person has a right to express

what he/she feels about any issue which according to

him/her needs to be debated upon or brought before the

public eye.

Freedom of expression would also include

freedom to criticize. Indian democracy has survived

because of the protection its Constitution has granted to

its people to express freely their views on affairs of the

State and on other issues concerning religion, culture,

civilization, literature and personalities, which are beyond

the mundane affairs of the State. This list is merely

illustrative and not exhaustive. Fearlessness is the

hallmark of a vibrant, democratic and secular society like

ours. We are an amazing mix of people coming from

different social and cultural background, people

professing different religions and people who speak

different languages. While we have a right to criticize

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each other, the criticism has to be healthy and not

malicious. It must not lead to creating ill-will and hatred

between different communities. Freedom of expression

must be well utilized, it must lead to sensible dialogue but

not senseless destruction of lives and property and breach

of public order. The Constitution, therefore, while

granting freedom of speech and expression under Article

19(1)(a) places reasonable restriction thereon. Under

Article 19(2), while protecting a citizen's fundamental

right of freedom of speech and expression, the courts

have always tried to strike a balance between this right

and measure of restriction to be placed on it to prevent

hurting religious and other sensibilities of people. It is a

delicate and difficult task. We have only to revisit certain

paragraphs of the judgments cited before us to ascertain

how the balance has to be struck.

49. In Lalai Singh, the Supreme Court while stressing

the importance of freedom of speech and expression

observed that our Constitution makers respected Mill's

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famous statement from his essay "On Liberty" as under:

"If all mankind minus one were of one opinion and only one person were of the contrary opinion, mankind would be no more justified in silencing that one

person than he, if he had the power would be justified in silencing mankind".

The Supreme Court then quoted Voltair's inspired

assertion :

"I disapprove of what you say, but I will defend to the death your right to say

it".

(Attributed to Voltair in S.G. Tallentyre. The Friends of Voltair 1907).

50. Having quoted the above passages, the Supreme

Court turned to passages from Gitlow v. New Yor

(1924) 69 Law ed 1138, which were quoted by Dr.

Ambedkar in the Constituent Assembly. We may

reproduce them:

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"It is a fundamental principle long

established, that the freedom of speech and of the press, which is secured by the Constitution does not confer an

absolute right to speak or publish, without responsibility, whatever one may choose or an unrestricted and unbridled licence that gives immunity

for every possible use of language and prevents the punishment of those who abuse this freedom".

"That a State in the exercise of its police power may punish those who abuse this

freedom by utterances inimical to the public welfare, finding to correct public morals, invite to crime or disturb the

public peace, is not open to question ...."

51. The Supreme Court's further observations which are

material need to be quoted.

The State, in India is secular and does not take sides with one religion or other prevalent in our pluralistic society. It has no direct concern with the faiths of the

people but is deeply obligated not merely to preserve and protect society against breaches of the peace and violations of public order but also to create conditions where the sentiments and feelings of people of diverse and opposing beliefs and bigotries are not so molested by ribald writings or offensive publications as to provoke or outrage

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groups into possible violent action.

Essentially good government necessitates peace and security and whoever violates by bombs or books

social tranquility will become target of legal interdict by the State."

52. The Supreme Court acknowledged that a drastic

restriction on the right of a citizen when imposed by

statute calls for a strict construction, especially when

quasi-penal

consequences also ensue. As regards

balance to be struck between the right to freedom of

speech and expression and the reasonable restriction to

be placed on it, the Supreme Court observed that "the

balance is struck by governmental wisdom overseen by

judicial review."

53. In Baragur, the Supreme Court observed that

freedom of speech and expression is not unfettered and

Section 95 of the Code exemplies this principle on the

understanding that this freedom must be available to all

and no one has a right to impinge on the feelings of

others on the premise that his right to freedom of speech

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remains unrestricted and unfettered. The Supreme Court

observed that it cannot be ignored that India is a country

with vast disparities in language, culture and religion and

unwarranted and malicious criticism or interference in the

faith of others cannot be accepted. The Supreme Court

quoted extensively from its judgment in Lalai Singh,

reaffirmed the view taken therein and observed that

Section 95 of the Code is not violative of Article 19(1)(a) of

the Constitution as the action taken thereunder is of a

preventive nature and Section 96 provides an efficacious

remedy for the aggrieved party. The Supreme Court

observed that most of the matters pertain to attacks on

minorities or religious or social groups or individuals who

are perceived as being prodigals or heretics and therefore

unacceptable to the conservatives amongst the

mainstream. The Supreme Court further observed that it

cannot ever be overemphasized that India is a country

with huge diversities in language and religion and the

weaker amongst them must be shown extra care and

consideration.

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54. In our constitutional set up, everything is open to

criticism and religion is no exception to it. Every religion,

whether it is Islam, Hinduism, Christianity or any other

religion, can be criticized. Freedom of speech and

expression covers criticism of a religion and no person can

be sensitive about it. Healthy criticism provokes thought,

encourages debate and helps us to evolve. Counsel

submitted that the author has through the book placed his

perception of Islam before people. He submitted that the

book brings the lesser known aspects of Islam before the

public eye. He submitted that the book gives correct

insight into Islam, but assuming the author is wrong, he

has a right to be wrong.

55. We do not want to join issue with Counsel on this

aspect. The author has undoubtedly a right to be wrong.

The author can say what he feels is right and if it is wrong,

he cannot be punished for it. But what needs to be seen

is whether the author has done this exercise bona fide

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with a real desire to explore the tenets of Islam and give

his exposition thereof.

56. An author has a right to put forth a perspective that

a particular religion is not secular. This is a view point

which one has a right to assert. However, if a book reeks

of hatred for a particular community, if it contains rabid

material and there appears to be no sincere handling of

the subject but a malafide exercise to stir communal

passions one must pause and consider whether it is in the

interest of general public to allow its circulation. In such a

situation restriction imposed on the freedom of speech

and expression by the Constitution must spring into

action. It is necessary once again to remind ourselves

that in Baragur, the Supreme Court has made it clear

that no one has a right to impinge on the feelings of

others on the premise that his right to freedom of speech

remains unrestricted and unfettered and that it cannot be

ignored that India is a country with vast disparities in

language, culture and religion and unwarranted and

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malicious criticism or interference in the faith of others

cannot be accepted.

57. Counsel submitted that so many books containing

vituperative articles against different religions are

available in the market and in the age of the internet

everything is available at the click of a mouse and

therefore, there is no point in banning books. This

argument is totally unacceptable. The courts deal with

books or films which are brought before it through

accepted legal procedure. That such material is freely

available in the market is no argument against the ban. It

is for the State, if it so desires, to take steps to stop

circulation of such books or material. If the courts adopt

such an approach the relevant provisions of the Code and

the IPC would be rendered redundant. Ajay Goswami is

not applicable to the present case because in that case

the Supreme Court was dealing with obscene material

printed in newspapers against the background of

contemporary mores and national standards. It was

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dealing with contemporary standards as test. It was not

dealing with a book containing an attack on a religion. In

any case, the Supreme Court did not completely discard

the test. The Supreme Court observed that due to

internet facilities, it has become somewhat outdated. We

must, therefore, proceed to examine whether the ban is

justified or not.

58. From the relevant judgments of the Supreme Court,

of this court and other High Courts we have deduced

principles which will guide us while dealing with this case.

We are aware that it is not our duty to find out whether

the book contains any matter which calls for its forfeiture.

We must concentrate on the grounds on which the

Government formed its opinion and if the grounds justify

that opinion the forfeiture must be upheld. We cannot

make a roving enquiry beyond the grounds set forth in the

Notification. We shall therefore reproduce the contents of

the book which have persuaded the Government to ban it.

Those are the grounds. We must see whether the opinion

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of the Government that the book must be forfeited is

justified on the basis thereof.

59. Certain pages are cited in the Notification which are

stated to contain derogatory and false statements about

Jihad, Quaran, Mohammad Paigamber, Indian Muslims and

Conversions. The Notification further states that the

author has made several derogatory and false statements

about Islam, the Muslim community, Mohammad

Paigambar and Muslim priests as specified in the Schedule

appended thereto. The attack is broadly against

Mohammad Paigambar, Quaran, Muslim religion and

Muslim community with particular reference to Indian

Muslims. We must give the gist of what is stated against

each of them which has weighed with the State

Government while imposing the ban.

The contents of the book found by the State to be

objectionable.

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60. Mohammad Paigambar.

a) Mohammad grew up in his early childhood under

queer circumstances as he was born as a

posthumous child. Ayesha his wife has recorded

some facts known to her about Mohammad.

According to her, Mohammad was greatly fond of

women and perfumes. He is said to have made one

of his followers divorce his wife so that he could

marry her since he said, he had an ilham from the

God Almighty that she was born on the earth for him

only. In course of 10 years of Mohammad's life from

the age of 52 to 62 Mohammad, as a widower, after

the death of his wife Khadija is said to have taken 11

more wives. At the age of about 52, he married a

Jewish widow who was converted to Islam. After

moving to Medina, he directed his friend and

comrade Abu Bakr to marry his seven year old

daughter Ayesha to him when he himself was about

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52 years of age. It is said that Abu Bakr declined to

do so saying that his daughter by the name of

Ayesha was too young and was also engaged to

some one else. This being a promise could not be

broken. In relationship Ayesha was the niece of

Mohammad who put aside the objection of Abu Bakr

saying that he had an ilham from Allah that he had

given birth to Ayesha to become his wife. The sixth

wife of Mohammad was said to be the mother of four

children and was a Hindu who was converted for this

purpose to accept Islam. The seventh wife was

Zarnab. She was Zainab wife of a slave by name Jaid

whom Mohammad took as his adopted son and made

him divorce his wife so that she could marry

Mohammad. She is said to have been a very

beautiful woman who took the fancy of Mohammad

who had seen her naked when she was once bathing.

Here too, Mohammad is said to have stated that he

had another ilham from Allah that he should marry

her and that she was given birth on the earth for this

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purpose. Many writers have stated that besides the

above, Mohammad also had more than 11 wives both

religiously married and otherwise.

b) It is said that Mohammad used to have strange

attacks of some disease for which he used to retire

to a cave near Mecca. He announced to the world

that in the cave he used to meet God's messenger

Gabriel who gave Mohammad God's own messages

which he called as Ilhams.

c) He is said to have recorded himself issuing a Fatwa

calling upon his followers not to resort to murders for

forcing anyone to convert from his faith to faith

professed by Mohammad. As can also be seen this

Ayat (included in the holy book of Quaran) is the only

single Ayat that is quoted by the Muslims as their

faith in peace and tolerance of other religions. This

was forced on account of important political reasons

because there is no other Ayat in any Sura of Quaran

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ever said later in time repeating the spirit of this

Ayat.

61. According to us, the lurid details allegedly of

Mohammad Paigambar's life, the authenticity of which

may be challenged by some, could have been avoided by

the author. Source material for this is a book by name

"Rangeela Rasool' written by Pandit Chamupati. Extracts

from the book "Islam & Terrorism" and the book "Sex and

Violence" written by Answar Shaikh are also relied upon. It

is difficult for us to hold that the alleged details of the

personal life of Mohammad Paigambar are based on any

folklore or history. It is not possible for us to conclude

that they are in the nature of historical research. We feel

that the attempt is to show Mohammad Paigambar in poor

light to hurt Muslim sentiments. In any case, it is well

settled that 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 account of past events or is otherwise supported

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by good authority. Adherence to strict path of history is

not by itself a complete defence to a charge under Section

153-A of the IPC. The Author has referred to an Ayat

which calls upon the followers of Mohammad Paigambar

not to resort to murders for forcing anyone to convert to

his faith. This Ayat according to the author was forced on

account of important political reasons because there is no

other Ayat in any Sura or Quaran ever said later in point

of time repeating the spirit of this Ayat. Thus, Mohammad

Paigambar is designedly painted as a debauched person

and anything which can be said in his favour is

discounted. The details of the alleged personal life of

Mohammad Paigambar will have to be read along with

other material to get its true import.

62. Quaran and Muslim religion.

a) The Muslims are ordained by their holy religious text

to eliminate Kafr and the Kafirs from the surface of

the earth. Any bloody war that is fought by the

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believers against the non-believers carries the

religious sanction of Islam. Those who do not believe

as above are the non-believers. They are Kafirs.

What is not in accordance with Koran and Hadith is

called Kafr. A Muslim is further ordained to wage a

Jehad against non-believers even at the cost of his

life. Should he die in this pursuit, the God assumed

Almighty as per Quaranic statements assures to such

pursuer of faith, an assured life of joy and pleasure in

the heavens where he is promised to be served by

72 beautiful maidens and 72 young male children to

beget pleasures. Such a person is called a Shaheed.

Should he survive while pursuing this aim and live on

the earth, Quaran promises on behalf of the God

almighty Allah to enjoy the life on earth by using all

that he gets by way of victory over the Kafirs.

b) States not managed and controlled by Islamic

believers are called Darul-Herb. States that are

under the political control of the Islamic believers are

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called Darul-Islam. Islam declares to its followers

where political governance is in the hands of the

believer, they are to act and crush any counter idea

and where it still lacks political control then to lie in

wait for the moment when through all other means

Darul-Herb gets converted into Darul-Islam. This is

one religion that supports it's spread by waging

Jehads including justifying conducts of terrorism

when it says "show no mercy to the non-believers

(Kafirs) or the idol worshipers and lie in wait for them

to behead them when they appear before you."

c) Islam sanctions to its followers four wives instead of

one. Islam considers weaker sex of woman as a

commodity meant for the use and pleasure of men

owing allegiance to Islam. A chapter in Quaran deals

with social system and practices. What is said

therein is by the sanction of Allah told by him

through Prophet Mohammad. He is the last and final

messenger sent to the world by Allah and after him,

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none shall ever follow for any purpose whatsoever.

This is called as `Khatme Nawabac'. None must

think or amend, add or delete anything contained in

the holy Quaran which is the last and final message

of Allah that must bind all. Islam advocates

unabashedly Muslims' belief in violence to spread

itself over the whole world. The important reason of

Islam's spread in India is its belief in rejecting

humanness and accepting and enforcing cruelty in

its place. Unlike human values of sacrifice and

truthfulness followed in Hinduism, Islam sacrifices

and disregards all such human values and proceeds

to enforce at all costs, the message of Islam as set

out in Koran.

d) The recent attack on the Parliament of India is a

clear reassertion of Islam's unaltered attitudes. India

cannot afford to ignore or neglect to take note of this

attitude of Islam that threatens Hindu way of life in

India.

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e) Islam does not accord equality to any other system,

political, religious, social or cultural and directs

world's social and economic system to follow the

original plan as was announced by Mohammad and is

recorded in the Quaran and the Hadiths.

f)

No non-Muslim is equal to a Muslim and all Muslims

are ordained never to trust any non-Muslim or to

even befriend them. The non-Muslims must be

subjected to special taxes and are ordained to be

treated with cruelty as a matter of rule. They are

treated as Zimmis by which word is implied the

hated non-believer.

g) It is pertinent to record that Quaran directs the

believers to die and/or to cause death in the name of

Islam. Hence, continuing communal clashes in India

is no surprise.

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63. All these conclusions are mostly drawn from certain

Ayats of Surahs. The Author has described them as

provocative Ayats. To ascertain their meanings, we have

taken assistance from Abdullah Yusuf Ali's book "The Holy

Quran", New Revised Edition and "The Message of the

Quran" by Muhammad Asad to which our attention is

drawn by Mr. Muchhala. Both the authors are known for

their deep study of the Quaran. It is necessary to

reproduce the Surahs referred to by the applicant.

a) Surah 2 Ayat 191.

"And slay them

wherever ye catch them, And turn them out

From where they have Turned you out For tumult and oppression

Are worse than slaughter; But fight them not At the Sacred Mosque, Unless they (first) Fight you there;

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But if they fight you,

Slay them

Such is the reward Of those who suppress faith."

According to the author, this Ayat sanctions murders

of non-believers.

Abdullah Yusuf Ali explains that this passage is

illustrated by the events that happened at Hydaybiyyah

when the Pagans had established an intolerant autocracy

in Mecca, Muslims were prevented from visiting their

homes. They were not allowed to perform pilgrimage. At

Hydaybiyyah a peaceful agreement was arrived at which

the Muslims followed. The Pagans committed breach of

the agreement. The spirit of the Ayat has to be

understood against the backdrop of above facts.

According to Muhammad Asad, the injunction contained in

the Ayat is only valid during hostilities.

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b) Surah 2 Ayat 216.

"Fighting is prescribed Upon you, and ye dislike it.

But, it is possible That ye dislike a thing Which is good for you,

And that ye love a thing

Which is bad for you But Allah Knoweth And ye Know not."

According to the author, this Ayat states that idol-

worship is worse than slaughter.

Abdullah Yusuf Ali explains this Ayat as under :

"To fight in the cause of Truth is one of the highest forms of charity. What can you offer that

is more precious than your own life? But here again the limitations come in. If you are a mere brawler, or a selfish aggressive person, or a vainglorious bully, you deserve the highest censure. Allah knows the value of things better than you".

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c) Surah 3 Ayat 118.

"Ye who believe!

Take not into your intimacy Those outside your ranks;

They will not fail

To corrupt you - They only desire your ruin:

Rank hatred has already

Appeared from their mouths What their hearts conceal

Is far worse We have made plain To you the signs

If ye have wisdom."

According to the author, this Ayat states that a

Muslim may not ever befriend another from any other

religion.

Muhammad Asad says that this Ayat refers to only

those people whose enmity to Islam and it's followers has

become apparent from their behaviour and their

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utterances. If all non-Muslims are to be included as

persons with whom believers are not to form friendship

that will conflict with Surah 60 Ayat 8 - 9. It would be

advantageous to quote those Ayats.

"Surah 60 Ayat 8.

As for such (of the unbelievers) as do not fight against you on account of (your) faith, and neither

drive you forth from your homelands, God does not forbid you to show them kindness and to behave

towards them with full equity : for verily, God loves

those who act equitably.

Surah 60 Ayat 9.

God only forbids you to turn in friendship towards such as fight against you because of (your)

faith, and drive you forth from your homelands, or aid (others) in driving you forth : and for those (from among you) who turn towards them in friendship, it is they, they who are truly wrongdoers!"

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64. Abdullah Yusuf Ali states that Surah 4 deals with the

social problems which the Muslim community had to face

immediately after the battle of Uhud in which Muslims

suffered a defeat at the hands of Makkans who had lost

the battle against them at Badr. It deals inter alia with

recalcitrants in the community at Madinah i.e. the

Hypocrites and their accomplices.

a) Surah 4 Ayat 15.

"If any of your women Are guilty of lewdness,

Take the evidence of four

(Reliable) witnesses from amongst you, Against them; and if they testify,

Confine them to houses until Death do claim them, Or Allah ordain for them

Some (Other) way."

While the author suggests that this Ayat indicates

the unequal and cruel treatment given to women by

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Islam, Abdullah Yusuf Ali states that this Ayat refers to

unnatural crime between women and to protect the

honour of women it requires stricter evidence for four

instead of the usual two witnesses.

b) Surah 4 Ayat 56.

"Those who reject

Our signs, we shall soon

Cast into the Fire; As often as their skins Are roasted through

We shall change them

For fresh skins, That they may taste

The penalty : for Allah Is Exalted in Power, Wise."

Muhammad Asad explains this Ayat as containing

awesome allegory of suffering in the life to come meant to

bring out long lasting nature of that suffering.

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c) Surah 4 Ayat 101.

"When ye travel Through the earth,

There is no blame on you, If ye shorten your prayers, For fear the Unbelievers

May attack you :

For the Unbelievers are

Unto you open enemies."

Abdullah Yusuf Ali states that this Ayat gives

permission to shorten congregational prayers when

people are on journey.

d) Surah 4 Ayat 102.

"When thou (O Messenger) Art with them, and standest To lead them in prayer, Let one party of them Stand up (in prayer) with them,

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Taking their arms with them;

When they finish

Their prostrations, let them Take their position in the rear, And let the other party come up

Which hath not yet prayed -

And let them pray with thee

Taking all precautions, And bearing arms,

The unbelievers wish,

If you were negligent Of your arms and baggage, To assault you in a single rush,

But there is no blame on you

If ye put away your arms Because of the inconvenience

Of rain or because ye are ill;

But take (every) precaution For yourselves. For the Unbelievers

Allah hath prepared A humiliating punishment."

From the explanation offered by Abdullah Yusuf Ali, it

appears that this Ayat guides the believers how to

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conduct congregational prayers in danger in face of the

enemy.

e) Surah 4 Ayat 104.

"And slacken not In following up the enemy :

If ye are suffering hardships,

They are suffering similar

Hardships; but ye have Hope from Allah, while they Have none. And Allah

Is full of Knowledge and Wisdom."

Abdullah Yusuf Ali explains this Ayat as under:

"Religion should be a source of strength and

not of weakness in all our affairs. If we have to struggle hard and suffer hardships those without faith have to do the same, with this difference, that the man of Faith is full of hope in Allah, whereas the man without faith has nothing to sustain him."

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f) Surah 4 Ayat 116.

"Allah forgiveth not (The sin of) joining other gods With him; but He forgiveth

Whom He pleaseth other sins Than this : one who joins

Other gods with Allah,

Hath strayed far, far away (From the Right)"

According to the author, this Surah states that Allah

shall never pardon idol-worship.

Abdullah Yusuf Ali's note on this Ayat reads as :

"Blasphemy in the spiritual kingdom is like

treason in the political kingdom."

g) Surah 5 Ayat 54.

"Ye who believe ! If any from among you

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Turn back from his Faith

Soon will Allah produce

A people whom He will love As they will love Him - Lowly with the Believers

Mighty against the Rejecters Fighting in the way of Allah,

And never afraid Of the reproaches

Of such as find fault

That is the Grace of Allah Which He will bestow On whom He pleaseth

And Allah encompasseth all

And He knoweth all things"

According to the author, this Ayat states that the

believers have not to befriend the Jews and the Christians.

Abdullah Yusuf Ali states that Surah 5 deals by way

of recapitulation, with the backsliding of the Jews and

Christians from their pure religion, to which the coping

stone was placed by Islam.

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Abdullah Yusuf Ali states that this Ayat contains a

warning to the Muslim body that they should not repeat

the history of Jews and become so self satisfied or

arrogant as to depart from the spirit of Allah's teaching. If

they do, the loss will be their own. Allah's bounty is not

confined to one group or section of humanity. He can

always raise up people who will follow the true spirit of

Islam. That spirit is defined in two ways first in general

terms; they will love Allah and Allah will love them, and

secondly they will offer no mealy mouthed compromises;

they will always strive and fight for truth and right, they

will know no fear.

65. In his introduction to Surah 8, Abdullah Yusuf Ali

states that the date of this Surah is shortly after the battle

of Badr. According to him, in this chapter, there are the

lessons of the battle of Badr enforced in their larger

aspects : (1) the question of war booty; (2) the true

virtues necessary for fighting the good fight (3) victory

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against odds, (4) clemency and consideration for one's

own and for others in the hour of victory.

a) Surah 8 Ayat 65.

"Prophet! Rouse the Believers

To the fight. If there are Twenty amongst you, patient

And persevering, they will

Vanguish two hundred, if a hundred, They will vanguish a thousand Of the unbelievers for these

Are a people without understanding."

Abdullah Yusuf Ali explains this Ayat as under :

"In a fight, odds of ten-to-one against anyone are appalling. But they do not daunt the men of faith. Whether they personally win or die,

their cause prevails. They are sure to win, because (1) they have divine aid and (2) even humanly speaking, those who take up arms against truth and righteousness are fools and their seeming power is but a broken reed. According to the author, this Ayat calls upon the believers to rise to the fight and states that they will vanguish a thousand of the unbelievers."

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66. In his introduction to Surah 9, Abdullah Yusuf Ali

states :

"We pass on in this Surah to deal with the question what is to be done if the enemy breaks faith and is guilty of treaching? No nation can go on with a treaty if the other party violates it

at will, but it is laid down that a period of four months should be allowed by way of notice after

denunciation of the treaty; that due protection should be accorded in the intervening period; that there should always be open the door to

repentance and reunion with the people of Allah; and that if all these fail, and war must be undertaken it must be pushed with utmost vigour."

a) Surah 9 Ayat 5.

"But when the forbidden months

Are past, then fight and slay, The Pagans wherever ye find themselves

And seize them, beleaguer themselves And lie in wait for them In every stratagem (of war) But if they repent, And establish regular prayers

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And practice regular charity,

Then open the way for them

For Allah is Oft-Forgiving Most Merciful"

Abdullah Yusuf Ali in his commentary explains this

Ayat as follows :

"It is only when the four months of grace

are past, and the other party shows no sign of desisting from their treacherous designs by right conduct, that the state of war supervenes - between Faith & Unfaith.

When war becomes inevitable it must be prosecuted with vigour...... The fighting may take the form of slaughter or capture or siege or ambush and other stratagems. But, even then

there is room for repentance and amendment on the part of the guilty party, and if that takes place, our duty is forgiveness and the establishment of peace."

b) Surah 9 Ayat 23.

"Ye who believe! Take not For protectors your fathers

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And your brothers if they

love infidelity above faith,

If any of you do so, They do wrong."

Muhammad Asad states that this Ayat contains no

exhortations to be bad to parents and kinsfolk because

there are many exhortations in the Quaran to be good to

them and the believers are reminded that friendly

relations with unbelievers who are not hostile to the

Muslim community are permissible and even desirable.

Muhammad Asad has given references of those

exhortations.

c) Surah 9 Ayat 28.

"Ye who believe! Truly

The Pagans are unclean, So let them not, After this year of theirs, Approach the Sacred Mosque And if ye fear poverty,

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Soon will Allah enrich you,

If He wills, out of this bounty,

For Allah is All-knowing, All wise."

Abdullah Yusuf Ali explains this as under :

"Unclean : Both literally and metaphorically, because Muslims are enjoined to

be strict in ablutions and physical cleanliness, as well as purity in mind and heart, so that their word can be relied upon.

The year of theirs : There is two fold meaning -

(1) Now that you have complete control of

Mecca, and are charged with the purity of worship there, shut out all impurity from this year;

(2) you have seen how the Pagans have behaved this year; their year of power and misuse of that power may be called their year, it is over, and now You Muslims are responsible.

The concourse in Mecca added to the profits of trade and commerce "But fear not", we are told "that Pagans area waning power, bound to disappear, and you should strengthen your own community, that they may more than counterbalance the apparent loss of custom, and Allah has other means of improving your economic position". This actually happened.

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The Pagans were extinguished from Arabia and

the concourse of Pilgrims from all parts of the world increased the numbers more than a hundred fold. Here is commonsense, wisdom

and statesmanship, even if we look at from a purely human point of view.

d) Surah 9 Ayat 68.

"Allah hath promised the Hypocrites Men and Women, and the rejecters,

Of Faith, the fire of Hell

Therein shall they dwell:

Sufficient is it for them:

For them is the curse of Allah And an enduring punishment."

Abdullah Yusuf Ali states that "Curse" here as

elsewhere, is deprivation of grace and mercy, brought

about by the rejection of Allah by non-believers.

e) Surah 9 Ayat 111.

"Allah hath purchased of the Believers Their persons and their goods; For theirs (in return) Is the Garden (of Paradise)

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They fight in His Cause

And slay and are slain;

A promise binding on Him In Truth, through the hand, The Gospel, and the Quran;

And who is more faithful To his covenant than Allah?

Then rejoice in the bargain Which ye have concluded;

That is the achievement supreme."

Abdullah Yusuf Ali explains this Ayat as under :

"In a human bargain both sides give something and receive some advantage. In the divine bargain of Allah with man, Allah takes man's will and soul and his wealth and goods

and gives him in return everlasting felicity. Man fights in Allah's course and carries out His will. All that he has to give up is the ephemeral things of this world, while he gains eternal salvation, the fulfillment of his higher spiritual hopes - a

supreme achievement included."

f) Surah 9 Ayat 123.

"Ye who believe! Fight The Unbelievers who gird you about,

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And let them find firmness

In you : and know that Allah

Is with those who fear Him."

Abdullah Yusuf Ali explains this as under :

"When conflicts become inevitable, the first thing is to clear our surroundings of all evil, for it

is only evil that we can rightly fight. To evil we must put a stout and stiff resistance. Mealy mouthed compromises are not right for soldiers

of truth and righteousness. They are often a compound of cowardice, weariness, greed and compatibility."

67. Surah 21 Ayat 98.

"Verily ye (Unbelievers)

And the (false) goods that Ye worship besides Allah, Are (but) fuel for Hell!

To it will ye (surely) come!"

According to the author, this Surah states that `you

and your idols deserve condemnation'.

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In the introduction to this Surah, Abdullah Yusuf Ali

has stated that this Surah deals with the individual story

(spiritual) of Moses and Aaron. This Surah gives the

assurance of Allah's power to defend men, illustrating it

with reference to Abraham's fight against idolatry.

68. According to the author, Surah 16 Ayat 46 states that

idol worship is a great sin. We do not find any such

exhortation in that Ayat. Author is also not right when he

says that Ayat 22 of Surah 18 ordains a new convert to

abandon connections with his kith and kin including father

and brother unless they too follow the new convert into

Islamic faith. This Ayat does not say so.

69. Surah 21 Ayat 67.

"Fie upon you, and upon

The things that ye worship Besides Allah! Have ye No sense?"

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According to the author, this Ayat states that you

and your idols deserve condemnation. In the introduction

to this Surah, Abdullah Yusuf Ali has stated that this Surah

deals with the individual story (spiritual) of Moses and

Aaron. Thus Surah gives the assurance of Allah's power

to defend men, illustrating it with reference to Abraham's

fight against idolatry.

70. Surah 32 Ayat 22.

"And who does more wrong Than one to whom are recited

The signs of his Lord

And who then turns away Therefrom? Verily from those

who transgress we shall exact (Due) Retribution."

Abdullah Yusuf Ali explains this as :

"The worst and most hardened sinner is the man to whom Allah's signs are actually brought home and who yet prefers Evil and turns away from the light of Allah. The signs may be in the words and guidance of a great Teacher or in some minor sorrow or warning which he

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disregards with contumely - Or it may be a

catastrophic blow to his conscience, which should open his eyes, but from which he deliberately refuses to profit. The penalty - the

Nemesis - must necessarily come eventually."

71. Surah 48 Ayat 20.

"Allah has promised you

Many gains that ye shall Acquire, and He has given

You these beforehand, and

He has restrained the hands Of men from you, that it May be a sign for

The Believers, and that

He may guide you To a straight path,"

Abdullah Yusuf Ali explains :

"The gains so far seen from the Bayah (the Fealty of Allahs good pleasure) and their calm and disciplined behaviour were certainly great; but greater still were to follow in the spiritual sense, in the rapid spread of Islam, in the clearance from the sacred House of the idolatrous autocracy, and in the universal acceptance of the Message of Allah in Arabia.

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Abdullah Yusuf Ali states that this Surah pertains

to the period when the Pagans tried to prevent peaceful party led by the Prophet from performing the rites of pilgrimage in Mecca.

There was a treaty between the two sides which was broken by the Pagans. Ultimately Mecca was conquered and Pagan autocracy was swept away."

72. Surah 60 Ayat 4.

"There is for you

An excellent example (to follow)

In Abraham and those with him, When they said To their people

"We are clear of you

And of whatever ye worship Besides Allah: We have rejected

You, and there has arisen Between us and you, enmity And hatred forever - unless

Ye believe in Allah And Him alone But not when Abraham Said to his father;

"I will pray for forgiveness

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For thee, though I have

No power (to get) aught

On thy behalf from Allah (They prayed) : Our Lord! In Thee do we trust,

And to Thee do we turn In repentance : to Thee

Is (our) final Goal."

According to the author, in this Ayat Islam openly

builds feelings of hatred towards the Christians. As a

matter of fact there is no reference to Christians in this

Ayat. According to Abdullah Yusuf Ali, the date of this

Surah is after the Pagans had broken the treaty of

Hudaybiyah. This Ayat refers to Abrahams resistance to

his father and his people and their belief in idolatry.

73. Author states that Jehad is a Muslims foremost

religious duty. Item 3 in the Schedule describes the

pleasures a believer gets as per Quaran should he die in

this pursuit. Such a person is called a Shaheed and in the

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heaven he is promised to be served by 72 beautiful

maidens and 72 young male children to beget pleasure.

Should he survive, Quaran promises such person on

behalf of Allah to enjoy life on earth by using all that he

gets by way of victory over Kafirs.

74. On behalf of intervenors it is pointed out that such

descriptions refer to spiritual bliss and contentment

Quaran promises to all good conscious people who have

accepted the Divine Message, the spiritual elevation of

soul to the state of bliss. Certain Ayats are cited in

support of this.

75. We must refer to certain other Ayats to which our

attention is drawn by Mr. Muchhala, counsel for the

intervenor. We have reproduced them from Muhammad

Asad's book "The Message of the Quran". We have also

reproduced the gist of the commentary of Muhammad

Asad.

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"a) Surah 5 Ayat 32.

Because of this did we ordain unto the children

of Israel that if anyone slays a human being - unless it be (in punishment) for murder or for spreading corruption of earth - it shall be as through he had slain

all mankind; whereas, if anyone saves a life, it shall be as through he had saved the lives of all mankind. And,

indeed, there came unto them our apostles with all

evidence of the truth; yet behold, notwithstanding all this, many of them go on committing all manner of

excesses on earth."

b) Surah 7 Ayat 151.

Say : "Come, let me convey unto you what God has (really) forbidden to you":

"Do not ascribe divinity, in any way, to aught beside Him; and [do not offend against but, rather] do

good unto your parents; and do not kill your children for fear of poverty - (for) it is We who shall provide sustenance for you as well as for them; and do not commit any shameful deeds, be they open or secret; and do not take any human being's life (the life) which God

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has declared to be sacred - otherwise than in [the

pursuit of] justice; this has been enjoined upon you so

that you might use your reason.

c) Surah 42 Ayat 40.

But remember that an attempt at requitting evil

may, too became an evil. Hence, whoever pardons [hisfoe] and makes peace, his reward rests with God-

for, verily, He does not love evildoers.

d) Surah 42 Ayat 41.

Yet indeed, as for any who defend themselves after having been wronged - no blame whatever

attaches to them.

e) Surah 42 Ayat 42.

Blame attaches but to those who oppress (other) people and behave outrageously on earth, offending against all right: for them there is grievous suffering in

store.

f) Surah 42 Ayat 43.

But withal, if one is patient in adversity and

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forgives - this, behold, is indeed something to set one's

heart upon!

g) Surah 49 Ayat 13.

O men! Behold, we have created you all out of a male and a female, and have made you into nations

and tribes, so that you might come to know one another. Verily, the noblest of you in the sight of God

is the one who is most deeply consciousness of Him.

Behold, God is all-knowing, all-aware."

This Ayat contains the idea of essential human

oneness.

h) Surah 13 Ayat 7.

However, they who are bent on denying the truth

[refuse to believe and] say "Why has no miraculous sign ever been bestowed on him on high by his sustainer? [But] thou art only a warner; and [in God] all people have a guide.

According to the classical commentators, the

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sentence "[But] thou art only a warner; and [in God] all people

have a guide" lends itself several interpretations and one of

the interpretations is that Thou art only a warner bound to

do no more than deliver the message entrusted to thee,

while it is God alone who can truly guide men's hearts

towards faith.

i) Surah 8 Verse 48.

And unto thee ..................................................... Unto every one of you we appointed a [different] law

and way of life. And if God has so willed, He could

surely have made you all one single community : But [He willed it otherwise] in order to test you by means of

what He has vouchsafed unto you, Vie then, with one another in doing good works! Unto God you all must return; and then He will make you truly understand all

that on which you were want to differ.

The Quaran impresses upon all who believe in God-

Muslims and non-Muslims alike - that the differences in

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their religious practices should make them "vie with one

another in doing good works" rather than lose themselves

in mutual hostility.

j) Surah 6 Ayat 188.

But do not revile those [beings] whom they invoke

instead of God, lest they revile God out of spite, and in ignorance, for goodly indeed have we made their own

doings appear unto every community. In time,

[however] unto their sustainer they must return and then He will make them [truly] understand all that they were doing.

While Muslims are expected to argue against false

beliefs of others, they are not allowed to abuse the

objects of those beliefs and to hurt thereby the feelings of

their erring fellow-men.

k) Surah 14 Ayat 4.

AND NEVER have we set forth any apostle otherwise than [with a message] in his own people's

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tongue, so that he might make [the truth] clear unto

them; but God lets go astray him that wills [to go

astray] and guides him that wills [to be guided] - for He alone is almighty truly wise. God bestows His favour upon him who, as he knows, will choose faith;

which means that He makes the issue dependent on [man's] free choice.

l) Surah 11 Ayat 117.

For never would thy sustainer destroy a community for wrong [beliefs alone] so long as its people behave righteously [towards one another].

m) Surah 11 Ayat 118.

And had thy sustainer so willed, He could surely have made all mankind one single community: but [He willed it otherwise, and so] they continue to hold

divergent views.

n) Surah 2 Ayat 256.

THERE SHALL BE no coercion in matters of

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faith. Distinct has now become the right way from [the

way of] error: hence, he who rejects the powers of evil

and believes in God has indeed taken hold of a support most unfailing, which shall never give way : for God is all hearing, all-knowing.

...... all Islamic jurists, without exception,hold that

forcible conversion is under all circumstances null and

void, and that any attempt at coercing a non-believer to

accept the faith of Islam is a grievous sin : a verdict which

disposes of the widespread fallacy that Islam plans before

the unbelievers the alternative of "conversion by sword".

76. On polygamy and treatment to women, our attention

is drawn to following Ayats.

a) Surah 4 Ayat 3.

And if you have reason to fear that you might not act equitably towards orphans, then many from among [other] women such as are lawful to you - [even] two, or three, or four : but if you have reason to

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fear that you might not be able to treat them with

equal fairness, then [only] one - or [from among] those

whom you rightfully possess. This will make it more likely that you will not deviate from the right course.

Islam gives permission to marry, two, three or four

women, only on the condition that he deals justly with

them.

b) Surah 4 Ayat 129.

And it will not be within your power to treat your

wives with equal fairness, however much you may

desire it, and so, do not allow yourselves to incline towards one to the exclusion of the other leaving her in

a State, as it were, of having and not having a husband. But if you put things to right and are conscious of Him - behold, God is indeed much-

forgiving, a dispenser of grace.

These Ayats impose a moral restriction on plural

marriages.

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c) Surah 33 Ayat 35.

Verily, for all men and women who have

surrendered themselves unto God, and all believing men and believing women and all truly devout men and truly devout women, and all men and women who are

true to their word, and all men and women who are patient in adversity, and all men and women who

humble themselves [before God], and all men and

women who give in charity, and all self-denying men and self-denying women, and all men and women who

are mindful of their chastity, and all men and women who remember God unceasingly : for [all of] them has God readied forgiveness of sins and a mighty reward.

This Ayat indicates that Quaran addresses both the

genders and gives them spiritual benefits.

d) Surah 9 Ayat 71.

And [as for] the believers, both men and women - they are close unto one another : they [all] enjoin the doing of what is right and forbid the doing of what is wrong, and are constant in prayer, and render the purifying dues, and pay heed unto God and His

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Apostle. It is they upon whom God will bestow His

grace: verily, God is almighty, wise!

Role of men and women towards each other is

complementary. They are protectors of each other.

e) Surah 4 Ayat 19.

O. You who have attained to faith ! It is not lawful for you to [try to] become heirs to your wives [by

holding onto them] against their will; and neither shall you keep them under constraint with a view to taking

away anything of what you may have given them,

unless it be that they have become guilty, in an obvious manner, of immoral conduct.

And consort with your wives in a good manner; for if you dislike them, it may well be that you dislike

something which God might yet make a source of abudant good.

The Quaran does not regard woman as a commodity

but as human being with her own individuality with bundle

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of spiritual social, economic and legal rights.

77. We have seen how the relevant Ayats have been

interpreted by the author and by Abdullah Yusuf Ali and

Muhammad Asad. As we have already stated the author

has a right to express his views on a religion. But having

examined different interpretations of the same Ayats, we

feel that the author's interpretation may not necessarily

be the correct and final interpretation.

78. We do not want to embark upon the difficult task of

interpreting the Quaran. But anyone who ventures to do

so must read what Muhammad Asad has said in his

forward to his book "The Message of the Al-Quran". He

states -

"Firstly, the Quaran must not be viewed as a compilation of individual injunctions and exhortations but as one integral whole: that is, as an exposition of an ethical doctrine in which every verse and sentence has an intimate bearing on another. Consequently, its real meaning can be grasped only if we correlate every one of its statements with what has been

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stated elsewhere in its pages, and try to explain

its ideas by means of frequent cross references, always subordinating the particular to the general and the incidental to the intrinsic.

Whenever this rule is faithfully followed, we realize that the Quaran is - in the words of Muhammad Abduh - "its own best commentary".

Secondly, no part of the Quaran should be viewed from purely historical point of view: that is to say, all its reference to historical circumstance and events - both at the time of

Prophet and in earlier times - must be regarded as illustrations of the historical occasion on

which a particular verses was revealed - a pursuit so dear, and legitimately so, to the hearts of the classical commentators - must

never be allowed to obscure the underling purport of that verse and its inner relevance to the ethical teaching which the Quaran, taken as a whole, propounds".

79. It appears to us therefore that after reading the

Quaran as a whole, its Ayats will have to be correlated.

Some of the Ayats are indeed strongly worded and appear

to have been directed against idol worshipers. Having

read the commentaries we feel that perhaps it is possible

to urge that they relate to an era when the Muslims were

attacked by the Pagans. The reference to the battle of

Badr, to the battle of Uhud, the breach of the treaty of

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Hudaybiyah, the incidents at Mecca and Medina indicate

this. The call for war, the punishment to be imposed on

non-believers, the violence can be perhaps related to

those troubled times. We have reproduced several Ayats

where importance of peace, tolerance, brotherhood, equal

treatment to women aversion to forceful conversions is

reflected. On the author's view that spread of Islam was

due to the fear of sword, we have been taken through

extract from books of several authors, which state that

Islam's spread in Indonesia, Malaysia, East coast of Africa

was peaceful. It would be appropriate to name a few.

"Islam at the Crossroads" by De Lacy Oheary Ricklefs, "A

History of Modern Indonesia" 2nd Edition London :

McMillan, Van Nieu Wenhuize C.A.O. (1958) Aspects of

Islam in Post-Colonial Indonesia.

80. We must also note that the author has quoted the

views of Dr. Babasaheb Ambedkar, Mahatma Gandhi,

Ramkrishna Paramhans, Swami Vivekananda and other

thinkers which are compiled by Rana Pratap Roy which

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support him. We must also state that several other Ayats

were referred to by Counsel which are also strongly

worded against idolators. But then two views are always

possible of every Ayat. The Supreme Court has cautioned

us not to import our views while dealing with scriptures.

(Shri Krishna Singh v. Mathura Ahir & Ors. (1981)

3 SCC 689). The Calcutta High Court has taken a similar

view (Aga Mahomed Jaffer Bindanim v. Koolsom

Beebee & Ors. (1898) ILR XXV Cal.9). We, therefore,

do not want to import our own views. But, in the ultimate

analysis, we feel that several view points are in the field

about Islam as there are about other religions and we

cannot stop people from expressing their views. As said

by one of us Chandrachud, J. in Anant Dighe ".... it is

important to realise that there are eternal values on which

the Constitution of a democracy is founded. Tolerance of

a diversity of view points and the acceptance of the

freedom to express of those whose thinking may not

accord with the mainstream are cardinal values which lie

at the very foundation of a democratic form of

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Government". The Supreme Court has also clarified that

Section 295-A of the IPC does not penalize any and every

act of insult or attempt to insult the religion or the

religious beliefs of a class of citizens. There must be a

malicious intention to outrage the religious feelings of that

class of citizens. That is the reason Counsel submitted

that assuming the book contains material which insults

religious beliefs of Muslims, it is not aggravated form of

insult.

81. It is not possible for us to agree with Counsel. We

have no doubt that the author must be allowed to criticize

Islam. Pure and simple criticism without any intention to

hurt religious feelings of a particular community must be

allowed. But, here the criticism is not academic. The

author has gone on to pass insulting comments on

Muslims with particular reference to Indian Muslims. That

is most objectionable. We shall now turn to those

comments.

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82. Muslim community with particular reference to Indian

Muslims.

a) Islam advocates unabashedly Muslim's belief in

violence to spread itself over the whole world.

Nothing short of it has been the aim of any

Musalman, a true believer of Islam.

b) The Muslims believe and are ordained by their holy

religious texts to eliminate Kufr and the Kafirs from

the surface of the earth.

c) Muslims do not and cannot accept any non-believer

as equal to them and hence Modi of Gujarat is too

right when he cautions Indian people to unite to

safeguard themselves from Muslim invasion who are

waiting only to convert India from Darul-Herb to

Darul-Islam and now openly say and believe in Ham

Panch, Hamare Pacchis.

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d) Chapter XXIV - Indian Muslims call for Mughalstan

from out of India.

e) It is in the annals of history that the Muslims infact

considered even conspiring against the soil of India.

f) The Muslims within India after 1947 have

recommended a plan of action for all Muslims in

India to use following 10 methods for immediate

implementation.

1. Convert Hindus by every means to embrace

Islam.

2. By polygamy God himself divinely allows

you this.

3. By thwarting any family planning

programme.

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4. Infiltrate into India from all directions to

grow fast as servants of Allah.

5. Form Muslim majority geo-political areas

within India.

6. Force Mass expulsion of Hindus when they

come close to being a religious minority.

7. Jehad is the duty of every Muslim. Be

Allaha's own soldiers to fight and kill those

who oppose his diction as said in Quaran.

8. Let no non-believer dare settle where you

have come into close majority.

9. Abduct women of Hindus to breed out of

them your children. Hindu abducted

women are delivered to you as male

Ganimat.

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10. Attack the foundation of Hindu culture in

India, their temples and their books. They

will then automatically follow Allahs

ordainment and convert to Islam. Know

this, that India is under attack of Islam.

g)

The real reason of creating India and Pakistan as two

independent nations has its roots in the religious

belief of the Muslims who spoke through their

leaders Mohammad Ali Jinnah that Hindus and

Muslims of the Indian sub-continent were distinctly

two different nations, politically, socially, culturally

and religiously.

h) Those who embraced Islam in India mostly did so

under the threat of sword or were lured into it for its

easy promise of heavens where beautiful women and

young kinds were promised as rewards to the

believers.

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83. Whatever be the author's perception of Islam, to

conclude that all Muslims want to eliminate all non-

Muslims; that they want to spread Islam all over the world

by violence is highly objectionable. The author has gone a

step further and said that Indian Muslims have given a

call for Mughalstan from out of India and that all Indian

Muslims believe that Hindus and Muslims are distinctly

two different nations politically, socially, culturally and

religiously. The author has stated that the Indian Muslims

have recommended a plan of action which inter alia

includes converting every Hindu to Islam, attacking Hindu

temples, abducting Hindu women, thwarting family

planning programme, etc. It is these statements which

are likely to incite people to violence and which may

promote violence, enmity or hatred. The author has

referred to inflammatory statements of Osama Bin Laden.

He has made reference to speech made by Sayeed Abdul

Bukhari in 1986 that Secularism has no place in Islam. He

has made reference to speech made by General Zia-ul-

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Haq that Islam can never be secular. He has referred to

extract from Dr. Ali Mohd. Naqvis book "Islam and

Nationalism" to the effect that nationalism is incompatible

with Islam. He has made reference to similar extracts

from books written by Sayeed Abdullah Naudoode and

Sayeed Ahmed Hussain. He has quoted exract from the

book "Islam in Secular India" by Dr. Mushir-ul-Haq where

he has said that leaving aside a small section of Indian

Muslims, the majority is by no means secular and main

reason for their resistance of secularism appears to be

their conception of Islam. These may be views of

individuals on which we do not want to comment. They

are not the subject matter of this application. But, we feel

that the author cannot comment on all Muslims, and the

Indian Muslims in particular and paint them as villains.

The author has said that the Muslims in fact considered

even conspiring against the soil of India, forgetting the

role played by several Muslim leaders in the freedom

struggle of India as followers of Mahatma Gandhi. It

cannot be denied that misguided Muslim youth have

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indulged in acts of terrorism. But misguided youth are

there in other religions and there are instances where

they have indulged in acts of violence. Because of such

instances the entire Muslim community cannot be

branded as terrorists. The author could not have painted

the entire Muslim community with the same brush. The

author has insulted a large section of Indian Muslims who

are part of the mainstream of the nation's life and who are

contributing to India's development in all fields.

84. What is more disturbing is the author's wishful

thinking that a war between Muslim and others is

impending. He writes :

"To me, a war between the Islamic fundamentalists and those who do not accept it, is a must. Not only can one look back to the

prediction of French philosopher Nosterdamis made in 15th century, one can also read Prof. Hattington's analysis with declaration of world itself polarizing into two camps in order to fight a decisive war once for all. A war between two civilizations."

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85. The author further writes :

"The worlds political and religious leaders must immediately look into the real cause of

terrorism that clearly finds its roots in the Islamic philosophy contained in the holy Quaran. It is this question which is posed to the whole world that must unite to finally create a war out of it

that must include if necessary, facing a war, that may be thrust by the believers upon non-

believers."

86. With such exhortations can we say that the book will

not promote enmity between two religions or that it is not

intended to outrage the religious feelings of Muslims or

that it is not likely to create dis-harmony or feelings of

enmity, hatred or ill-will between Hindus and Muslims?

87. It is argued that nothing has happened so far though

the book was in circulation for a long time. It is well

settled that it is not necessary to prove that as a result of

the objectionable matter enmity or hatred was in fact

caused between different classes. It is enough to show

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that the language of the writing is of a nature calculated

to promote feelings of enmity or hatred. (Gopal Godse).

88. It is true that whether the objectionable matter is

meant for limited circulation, whether it is to cater to an

ignorant, illiterate inflammable mob or educated people

would be a relevant consideration and the effect of the

words must be judged from the standards of reasonable

strong minded firm and courageous men and not those

who scent danger in every hostile point of view. It is

therefore, necessary to consider who will read the book.

89. The translation of the book is available. The

possibility of its falling in the hands of an inflammable

mob cannot be ruled out. The way this sensitive topic is

handled by the author, it is likely to arouse the emotions

or sensibilities of even strong minded people. We have

held that criticism of Islam is permissible like criticism of

any other religion and the book cannot be banned on that

ground. But we have also held that the criticism of Islam

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is not academic. The author has gone on to pass insulting

comments on Islam, Muslim community with particular

reference to Indian Muslims. It is an aggravated form of

criticism made with a malicious and deliberate intention

to outrage the religious feelings of Muslims. The contents

are so interwoven that it is not possible to excise certain

portions and permit circulation of the book. We may also

mention that at one point of time, when this was

discussed, the author declined to excise the book.

90. In view of the above, in our considered opinion the

State Government is justified in imposing a ban on the

circulation of the book. The application is therefore

dismissed.

[SMT. RANJANA DESAI, J.]

[DR. D.Y.CHANDRACHUD, J.]

[R.S. MOHITE, J.]

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