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Journalism of Courage
The Jammu & Kashmir Home Department issued a notification on August 5, which categorised 25 books as “forfeited”. These include political biographies, historical accounts and academic works set against the backdrop of the region’s politics and history by authors like A G Noorani and Arundhati Roy.
The notification has stated that these works carry “false narratives” and propagate secessionist ideology by “misguiding the youth, glorifying terrorism, and inciting violence”. It also said their continued circulation could influence the youth in ways that encourage alienation from “the Indian state”.
The move came on the sixth anniversary of the abrogation of Article 370, which, until August 5, 2019, granted special constitutional status to Jammu & Kashmir.
Forfeiture is the legal mechanism, which, unlike censorship that modifies or withholds content, removes a book or printed materials from circulation entirely within a notified area.
Once a forfeiture order is issued, the material can no longer be printed, sold, or distributed. Police officers are empowered to search premises and seize copies if they have reasonable suspicion that a banned book is stored there.
The effect is immediate, thus making forfeiture one of the most direct tools available to the state in dealing with literature deemed unlawful.
The notification relies primarily on Section 98 of Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, which allows the state to forfeit any printed material (newspapers, books, documents) containing matter punishable under specific sections of Bharatiya Nyaya Sanhita (BNS), 2023. This includes acts endangering the sovereignty, unity, and integrity of India, promoting enmity between groups, matters intended to outrage religious feelings, among others. To act under Section 98, the government must form the opinion that the material meets these criteria, record its reasons and publish them in a notification.
Note that while the Constitution’s Article 19 (1) (a) grants all citizens the right to freedom of speech and expression, Article 19(2) permits “reasonable restrictions” on the exercise of the right. This is permitted in the interest of the sovereignty and integrity of India; the security of the state; friendly relations with foreign states; public order; or preventing incitement to the commission of an offence.
Forfeiture orders are examined against this constitutional framework. Those affected by such an order, or “any person of interest”, can challenge the notification in the High Court with jurisdiction over the area where it was issued.
The Supreme Court has previously addressed similar provisions. For instance, in State of Maharashtra & Ors vs Sangharaj Damodar Rupawate & Ors (2010), the SC evaluated the validity of a notification issued under Section 95 of the Code of Criminal Procedure (Section 98, BNSS) by the Maharashtra government. The notification had directed the forfeiture of ‘Shivaji-Hindu King in Islamic India’, a book written by James W Laine.
The notification said that the book contained derogatory remarks about Shivaji and thus may cause enmity and violence among various communities.
The SC laid down various factors that should be taken into consideration while issuing such a notification. These include whether the government has stated its grounds for opinion, and if those grounds are based on facts. The order of forfeiture should also be justified by the merits of the grounds mentioned.
The apex court also said that the language and the content of the “offending” material should be understood based on the intention of the author, and the subsequent impact on the readers. The government is not required to prove the offence beyond a reasonable doubt, but has the responsibility to show that the ingredients of the offence appear to be present, the court said.
