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Wednesday, December 11, 2019

The ban and the law

The book denigrates the Sardar,” said a spokesman of the Gujarat government on the first day,giving the reason for banning Jaswant Singh’s book...

Written by Arun Shourie | Published: August 26, 2009 11:24:18 pm

The book denigrates the Sardar,” said a spokesman of the Gujarat government on the first day,giving the reason for banning Jaswant Singh’s book,“and that is not acceptable to the state.”

No one could point to a single,not one single reference in the book that could be taken to denigrate Sardar Patel. Someone must also have realised that not being ‘acceptable’ to a state is not a ground on which a book can be banned under our Constitution and laws.

Nonetheless the ban was notified — even as the seniormost officials of the state government were testifying that they did not know the reasons for the ban. The Indian Express (August 23,2009) reported a senior official of the state’s home department as saying,“The legal department must have gone through the book. I have not read it.” “When contacted,state law secretary M.H. Shah also expressed ignorance about the reason for the ban,” the paper reported. But a ban nonetheless — The moving finger having writ…

But,lo and behold! In the notification banning the book,there is no reference to the Sardar at all! The notification declares,“the contents of the book are highly objectionable and against the national interest… the contents of the book are misleading to the public and are against the tranquility of the public and against the interests of the state” — hence the book is to be forfeited and its publication,display,sale and distribution “and any kind of its use” are prohibited.

The 669-page book was released in Delhi late in the evening on August 17. The ban was announced on the 18th by sojourners in Shimla. The notification by an undersecretary in Gandhinagar is dated August 19. Talk of speed-reading!

The grounds as stated

Apart from the fact that the ban was manifestly announced before the book was read,the question that arises is: Does a government in India have the right to ban a book because it finds its contents

• “highly objectionable” — obviously in the present case in regard to facts,for no one is alleging that the contents are pornographic;

• “against the national interest”;

• “misleading to the public”;

• “against the tranquility of the public”; and

• “against the interests of the state.”

And can a government ban a book on these grounds without giving any particulars at all?

Most of the grounds that have been listed are so ridiculous that,even a moment’s consideration will show them up. The government of Gujarat thinks that the contents are ‘misleading to the public’? Were that to be a valid ground,the government of Gujarat would have had license to ban almost all newspapers since the post-Godhra riots as it has been deeply convinced that their contents have been grossly ‘misleading to the public’.

‘Against the interests of the state’? Consider a report that calls into question the claims on which a state government has attracted foreign investors. Were it to be circulated,investors would pack up and leave. The report,howsoever well researched,would be ‘against the interests of the state’,would it not? Hence,ban and prohibit and forfeit!

‘Against the national interest’? The lie to this is given by the fact that chief ministers of other states that are under the BJP itself have stated categorically that they are not going to ban the book. Are they oblivious of the national interest?

‘Tranquility of the state’? Now,that is a catchphrase: agitations and skirmishes can always be,and ever so often are whipped up,especially if a state government backs them or looks the other way — recall the shameful destruction of the Bhandarkar Institute’s priceless manuscripts over Laine’s book; recall the frenzy that was whipped up in two coastal districts of Karnataka by completely distorting a few words in a textbook for little children,a textbook that had been in use for forty years,a textbook that had been authored by one of the greatest littérateurs of our country,Shivaram Karanth. How very contrived such furies were. But we can go beyond instances of this kind: as judgement after judgement of our courts deals with this assertion of governments,we should turn to them.

The law

The notification banning Jaswant Singh’s book does so under Sections 153A of the Indian Penal Code,and Section 95 of the CrPC. Hence,let us start with a judgement dealing with a ban under these very sections — and one concerning an extreme case.

Gopal Vinayak Godse,the brother of Nathuram Godse,the assassin of Mahatma Gandhi,wrote a book. The theme of the book was that Gandhiji had been assassinated for his policy of appeasing the Muslims,which in turn had led to the Partition of India. The Delhi administration passed an order banning and forfeiting the book. The case came before the Bombay High Court. The judgement of the Court shows that it had no doubt at all about the import of the book: citing the book’s arguments and narrative,the Court noted that through these,the assassination had not just been explained,it had in a sense been ‘extolled’. Yet,the Court held in favour of Godse’s brother and,not only held the forfeiture to have been wholly unjustified,it decreed that the administration shall pay the costs of litigation to Godse.

The Court went to great pains to examine the passages in Godse’s book which the administration had asserted were objectionable. In instance after instance we find the Court examining the veracity of the passage and concluding that other accounts,for instance those of Pyarelal,of Maulana Azad etc.,showed that the author had sufficient grounds for saying what he had said; and this was one of the main reasons on account of which it struck down the order of forfeiture. These passages include Godse’s assertion to the effect that Pakistan had been given cash balances at Mahatma Gandhi’s instance,that men and women had been moved by Nathuram Godse’s deed,that they had offered great and spontaneous support to him and his relatives after the assassination,that Sardar Patel had opposed Gandhiji on the payment of cash balances and so on.

Again and again,the Court points out that the book must be read as a whole and that its purpose must always be kept in mind. Again and again it holds that the book in question deals with the policies which led to the Partition of India and that it does not deal with any current communal issue. It holds that to ascertain the purpose for which the book is written,apart from the contents of the book itself,things that are said in the preface etc. should be examined.

In fact,the Court holds that even if in a particular case the facts turn out to be at variance with the assertions in the book,one cannot deduce automatically that the intention of the author is to create enmity and hatred,the offences which fall under Sections 153A and B. As the Court puts it:

“Pyarelal’s book bears out the petitioner in a large measure and in any event no charge can be made against him that in regard to the events surrounding the fact history has been distorted by him. It is also necessary to remember that if the claim of an author that he is an historian is not fully borne out,one cannot infer from that alone that the author had an oblique intention in straying from the strict path of history. Much less can one infer that such an oblique intention was of the nature mentioned in Section 153A of the Indian Penal Code.”

It repeatedly dismisses the pleas of the prosecution regarding several passages by affirming that sentences and passages cannot be torn out of context to make a fanciful charge stick. As the Court puts it: “A passage here or a passage there,a sentence here or a sentence there,a word similarly,may,if strained and torn out of context,supply inflammatory matter to a willing mind. But such a process is impermissible. We must read the book as a whole,we must not ignore the context of a passage and we must try and see what,reasonably,would be the reaction of the common reader?”

It places emphasis on that last point: namely,the passages must be assessed in the light of what a common reader can reasonably be expected to do upon reading the passages. Obtuse and strange constructions are not to be the guide in these matters,nor the reaction of hypersensitive minds. Furthermore,it holds that in judging the likely consequences of the book,we must go by the depth of contents,the language,and the class of readers who are liable to read it: while noting that Godse’s language is powerful,that he has written the book with a definite purpose,the Court holds that the language is so Sanskritised that the ordinary reader will not be able to find the incendiary material in it which the government is claiming marks the whole book.

But even if stray incendiary material be found upon searching for it,says the Court,that is no ground for forfeiting the book under Section 153A: “There is no doubt that Gandhiji’s murder has been extolled and one cannot possibly appreciate it. But the question before us is not whether the book is bad for that reason. Our task is to see whether the glorification of Nathuram or the justification of his dastardly act can be said to be reasonably connected with the problem of Hindu-Muslim amity…”

Even in such an extreme case,the order banning the book was struck down. Indeed,as I noted,the government was directed to pay the author the cost of litigation. And the point transcends the specific book at issue in such cases: whether the ban was reimposed and upheld later in regard to a specific publication,the criteria that were set out in the Godse case are the ones that have been reaffirmed in judgment after judgment.

Alternative history

Another well-known case,M/s Varsha Publication Pvt. Ltd. vs State of Maharashtra,provides an even more exact. What the Court said in this case has a direct bearing on a book such as that of Jaswant Singh,a book that advances a thesis that is at variance with much of what we have been brought up to believe. The Court held,

“We have already observed that the very purpose of writing the article is a sort of historical research and it is based on a number of reference books and other material. It is true that sometimes in a given case even a truthful account may come within the mischief of S. 153A. But this will be too broad a proposition. Different considerations will prevail when we are to consider a scholarly article on history and religion based upon research with the help of a number of reference books. It will be very difficult for the state to contend that a narration of history would promote violence,enmity or hatred. If such a convention 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 the publication of such history would constitute an offence punishable under S. 153A of the IPC. We do not think that the scope of S. 153A can be enlarged to such an extent with a view to thwart history. For obvious reasons,history and historical events cannot be allowed to be looked upon as a secret on a specious plea that if the history is made known to a person who is interested to know the history,there is likelihood of someone else being hurt. Similarly,an article containing a historical research cannot be allowed to be thwarted on such a plea that the publication of such a material would be hit by S. 153A. Otherwise,the position will be very precarious. A nation will have to forget its own history and in due course the nation will have no history at all.”

Transpose these observations to Jaswant Singh’s book — the endnotes of which alone,listing sources and explanations for each observation and event,traverse sixty-seven pages. The Court continued,

“This result cannot be said to have been intended by the Legislature when S. 153A of the IPC and S. 95 of the Cr. P.C. were enacted [exactly the two sections invoked in the Gujarat government’s notification!. If anybody intends to extinguish the history (by prohibiting its publication) of the nation on the pretext of taking action under the above Section his act will have to be treated as a mala fide one.”

Ban order cannot be vague

We saw,how the Gujarat government order just makes some general assertions — “against the interests of the state,” “against national interest.” It gives no specific evidence at all. The Supreme Court has held this to be impermissible.

The Supreme Court’s judgment in Gajanan Visheshwar Birjur vs Union of India deals with an instance that our activists will find particularly interesting,even as it nails the Gujarat notification. A distributor of Marxist literature imported some books of Mao. The Customs confiscated them,and banned their distribution,etc. The Supreme Court came down heavily on the Customs and its notification. It observed,

“It would be seen immediately that the confiscation orders are totally bald and devoid of any findings in terms of Notification No. 77. The order does not say which of the books fall within the mischief of which clause of the notification. It is not as if the notification proscribes these books by name,i.e.,by title. It only says that import of books containing matter of the nature mentioned therein is prohibited. The books imported are writings,speeches and works of Mao,besides the works of Marx,Engels and Lenin. If they were proposed to be confiscated,it was obligatory upon the authority to say which book contained words of the nature mentioned in the notification.”

How does the Gujarat government’s notification banning Jaswant Singh’s book stand against this requirement?

In Jaswant Singh’s case the notification banning the book has come without any inquiry,to say nothing of even the semblance of a show cause notice. In the case we are considering,a show cause had been issued. The Court came down on it for the same reason — it had nothing specific in it. The Supreme Court held,

The show-cause notices themselves are bald and drawn up in a casual manner. It must be remembered that the order of confiscation affects not only the fundamental right of the petitioner to carry on his occupation and business but also his fundamental right of freedom of speech and expression (including his freedom to propagate the thoughts and ideas which he thinks are in the best interest of this nation). In such a case,it was required of the officer to point out which book contains words,signs or visible representations which are likely to incite or encourage any person to resort to violence or sabotage for the purpose of overthrowing or undermining the Government established by law in India or in any State thereof or its authority in any area or that they attract any of the other clauses in Notification No. 77. Absence of such specification both in the show-cause notices and the final orders must be held to vitiate the action taken.”

And when,far from the show cause notice not recording any particulars,the notice itself has not been issued at all?

Nor was that all. What the Supreme Court went on to say has an even more direct bearing on what the Gujarat government has done. It held,

“Before parting with this case,we must express our unhappiness with attempts at thought control in a democratic society like ours. Human history is witness to the fact that all evolution and all progress is because of power of thought and that every attempt at thought control is doomed to failure. An idea can never be killed. Suppression can never be a successful permanent policy. Any surface serenity it creates is a false one. It will erupt one day. Our Constitution permits a free trade,if we can use the expression,in ideas and ideologies. It guarantees freedom of thought and expression – the only limitation being a law in terms of clause (2) of Article 19 of the Constitution. Thought control is alien to our constitutional scheme?”

Need we cite more?

Public order

But what about the apprehension of the government that disorders may break out because some people are offended by the book,whatever the intentions of the author might have been? This is what the Gujarat government has tried to insinuate with its assertion that the book is ‘against the tranquility of the public’.

The complete answer to this has been given in several judgments by High Courts and by the Supreme Court. To begin with,the Supreme Court has held time and again that the test has to be not the mere inference that a publication is liable to cause ill will,hatred or enmity in some persons. The test has to be that the ill will,hatred and enmity that the publication is liable to cause will be such as to threaten public order. Furthermore,the courts have repeatedly held that public order cannot be deemed to be jeopardised merely because it is liable to cause some breach of peace,or because a law and order problem is liable to arise. As the Supreme Court put it in the well-known case Ram Manohar vs. State of Bihar,and scores and scores of other judgments,the public order which is sought to be safeguarded entails “the prevention of disorder of a grave nature.”

Almost a textbook case that refutes the Gujarat government’s assertion occurs in the Supreme Court’s judgment,S. Rangarajan vs P. Jagjivan Ram. A film was produced,Ore Oru Gramathile. It was cleared by the Censor Board. Looking for an issue,some commenced agitations,charging that the film was against reservations. They threatened to burn down theatres that exhibited it. Citing the threat of violence and disorder,the government of Tamil Nadu banned it. The Madras High Court upheld the ban. The Supreme Court reversed the judgment in ringing terms.

The court declared,“It is our firm belief,nay,a conviction which constitutes one of the basic values of a free society to which we are wedded under our Constitution that there must be freedom not only for the thought that we cherish,but also for the thought that we hate.” And this is not to be an abstract commitment. The Court held that the danger which is alleged to be liable to follow the dissemination of an idea must not be remote,conjectural or far-fetched; it must be proximate and it must have a direct nexus with what is being said or exhibited. To warrant restriction by the state,“The expression of thought should be intrinsically dangerous to the public interests. In other words,the expression should be inseparably locked up with the action contemplated like the equivalent of a ‘spark in a powder keg.’”

Second,while the Tamil Nadu government and others had been pleading that the exhibition of the film would create very serious law and order problems in the state,while they had been citing the threats held out by several groups and their warnings that they would proceed to damage theatres screening the film,the Court observed: “We are amused yet troubled by the stand taken by the state government with regard to the film which has received the National Award. We want to put the anguished question,what good is the protection of freedom of expression if the state does not take care to protect it? If the film is unobjectionable and cannot constitutionally be restricted under Article 19(2),freedom of expression cannot be suppressed on account of threat of demonstrations and processions or threats of violence. That would tantamount to negation of the rule of law and a surrender to blackmail and intimidation. It is the duty of the State to protect the freedom of expression since it is a liberty guaranteed against the State. The State cannot plead the inability to handle the hostile audience problem. It is its obligatory duty to prevent it and protect the freedom of expression.”

The Court concluded its judgment with words which apply in particular to the sort of circumstances which we are considering. It said:

“Freedom of expression which is legitimate and constitutionally protected,cannot be held to ransom by an intolerant group of people. The fundamental freedom under Article 19(1)(a) can be reasonably restricted only for the purposes mentioned in Article 19(2) and the restriction must be justified on the anvil of necessity and not the quicksand of convenience or expediency. Open criticism of government policies and operations is not a ground for restricting expression. We must practice tolerance to the views of others. Intolerance is as much dangerous to democracy as to the person himself.”

That is the law. That is the mandate of the Constitution. How does the ban by the Gujarat government look in their light?

(To be continued)

The writer is a BJP MP in the Rajya Sabha.

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