IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Gopal Vinayak Godse vs The Union Of India And Ors.
CRI.APPLN.NO.332 of 1968
DATE: 6 August, 1969
BENCH: Mody, V Desai, Chandrachud
1. By these petitions, the author and publisher of a book called “Gandhi-hatya Ani Mee” (Gandhi-assassination And I) challenge an order of forfeiture passed by the Delhi Administration under Section 99A of the Code of Criminal Procedure. Criminal Application No. 332 of 1968 is filed by the author Gopal Vinayak Godse, while Criminal Application 333 of 1968 is filed by the publisher, Gana-pati Vasudeo Behere who runs a publishing house called ‘Asmita Prakashan’. The book is written in Marathi and was printed and published in Poona.
2. The 1st Respondent to the petitions is the Union of India which is joined, presumably because the constitutionality of Section 99A of the Code of Criminal Procedure and Section 153A of the Indian Penal Code is challenged. No relief as such is claimed against the 1st Respondent. The 2nd Respondent is the Delhi Administration which passed the impugned order of forfeiture on the 26th September, 1968 in supersession of an earlier order dated the 6th December, 1967. The 3rd Respondent is the State of Maharashtra which republished in its Gazettes of the 1st February, 1968 and the 17th October, 1968, the notifications of the 2nd Respondent dated the 6th December 1967 and the 26th September, 1968 respectively. The 4th Respondent is the Judicial Magistrate, First Class, Poona, who issued a search warrant on the 25th January, 1968 authorising a Sub-Inspector of Police in Poona to enter the premises of ‘Asmita Prakashan’ and seize copies of the book, on the ground that the book contained matter which promoted feelings of enmity and hatred between Hindus and Muslims. The 5th Respondent is the Commissioner of Police, Poona, whose subordinate, a Sub-Inspector- of Police, seized one copy of the book from the residence of the author and two copies from the office of the ‘Asmita Prakashan’. The relief claimed against Respondents 3 to 5 is that they should be restrained from enforcing the order of forfeiture passed by the 2nd Respondent. The relief claimed against the 3rd Respondent is that the orders republished in its Gazettes should be declared to be illegal.
3. The petitions raise common questions of fact and law and can be conveniently disposed of by a common judgment. For a proper appreciation of the questions raised before us it is necessary to state the following facts. Some of them are well-known facts of history.
4. We begin with the 30th January, 1948, the day on which Mahatma Gandhi was assassinated in Delhi. The assassin, Nathuram Godse, was the brother of the author of the present work which is under an order of forfeiture. We will, for convenience, refer to the author as ‘the petitioner’. The petitioner was arrested on the 5th February, 1948 and was tried along with seven others on charges like murder, conspiracy to commit murder and so forth. Nathuram, who pleaded guilty to the charge of murder was sentenced to death along with another accused, Narayan Apte. DR. V.D. Savarkar, one of the co-accused, was acquitted by the trial Court, while the petitioner and the other four accused were sentenced to imprisonment for life. In appeal, the Punjab High Court acquitted two more — Dr. Parchure and Shankar Kistayya. The conviction and sentence of the five others was confirmed. Nathuram had appealed against his conviction on the charge of conspiracy only. He neither challenged his conviction for murder nor the sentence of death passed on him. The statement made by him in Trial Court under Section 342 of the Code of Criminal Procedure was proscribed by the Government of India.
5. Nathuram and Apte were executed in the Ambala Jail on the 15th November, 1949. The petitioner and another accused called Karkare were transferred from the Ambala Jail to Nasik Road Central Prison in Maharashtra on the 19th May, 1950. The petitioner was thereafter transferred to the Aurangabad Central Prison.
6. The petitioner filed several petitions in the Supreme Court praying that he be directed to be released. He was sentenced by the Trial Court on 10-2-1949 and his contention was that taking into consideration the remissions earned by him he was entitled to be released. He was eventually released from jail on 13th October, 1964, during the pendency of one of such petitions, in which he was directed to be produced before the Supreme Court on the 19th October, 1964.
7. The petitioner was arrested again on the 25th November, 1964 under the Defence of India Act. He was released from detention on the 30th November, 1965.
8. These facts do not directly concern the legality of the order of forfeiture passed by the 2nd Respondent. But these facts and these names occur frequently in the book and indeed some of these have been accorded a special separate treatment. The partition of the country, the genesis of Gandhiji’s murder the possibility that the murder could have been averted, the Court scene, the involvement of Dr. Savarkar in the accusation of murder, the treatment received by the petitioner in the Nasik and Aurangabad Jails and the vexed problem of his rehabilitation in society — these and other topics which are dealt with in the book revolve around the facts and figures mentioned above.
9. The book first appeared in a serial form. Fifteen out of its sixteen chapters were serialized in a monthly Marathi magazine called ‘Painjan’ in its issues of June 1966 to October 1967. What is now the seventh chapter of the book — “Throw my ashes into the Indus” — appeared in the issue dated the 8th October, 1967 of a Marathi weekly called ‘Sobat’. Both the journals are published by ‘Asmita Prakashan’, Poona, of which Behere is the proprietor.
10. On the 6th December, 1967, the Lt. Governor of Delhi issued a notification under Section 99-A of the Code of Criminal Procedure, in the following terms:–
DELHI ADMINISTRATION : DELHI NOTIFICATION
Dated the 6th December, 1967.
No. F-292/67-C. Whereas the Lt. Governor, Delhi, is satisfied that the book entitled “Gandhi Hatya ani Mee” in Marathi by Gopal Godse, published by G. V. Behere, Asmita Prakashan 461/1 Sadashiv Peth, Tilak Road, Poona 2 and printed by M. H. Patwardhan at Sangam Press Private Ltd., 383, Narayan Peth, Poona-2, contains matter which promotes feelings of enmity and hatred between Hindus and Muslims in India and the publication of which is punishable under Section 153-A of the I.P.C. 1860 (Act XLV of 1860).
Now therefore, on the above stated grounds and in exercise of the powers conferred by Section 99-A of the Code of Criminal Procedure, 1898 (Act V of 1898), the Lt. Governor Delhi, hereby declares to be forfeited to Government every copy of the said book and all other documents containing copies, reprints and translation of or extracts from the said book.
By order, (Sd.) V.K. Seth, Under Secretary, (Home), Delhi Administration.
11. On the 25th January, 1968, the 4th Respondent, the Judicial Magistrate, First Class, Poona, issued a search warrant authorizing a Police Sub-Inspector to seize copies of the book from the premises of the publishing house. On the 26th, one copy of the book was seized from the residence of the petitioner, while on the 27th, two copies were seized from the publishers.
12. On the 1st February, 1968, the Government of Maharashtra re-published in its gazette, the notification of forfeiture, issued by the Delhi Administration on the 6th December 1967. The notification of the Maharashtra Government begins by saying: “The following notification of the Delhi Administration is republished”. It then sets out the notification of the Delhi Administration and concludes with the endorsement “By order of and in the name of the Governor of Maharashtra”, under the signature of a Deputy Secretary to the Government.
13. On the 20th March, 1968 these petitions were filed under Section 99B of the Code of Criminal Procedure and Article 226 of the Constitution to challenge the notification of the Delhi Administration and that of the Maharashtra Government republishing that notification. Every application under Section 99B is required by Section 99C to be heard and determined by a Special Bench of the High Court composed of three Judges. That is how the matter has come before us.
14. The petitions came up for hearing on the 16th September, 1968 when the learned Advocate General, appearing for Respondents 1 and 2 (The Union of India and the Delhi Administration), raised three preliminary objections to the maintainability of the petitions: one, that this High Court has no jurisdiction to entertain the application under Section 99B, challenging the legality of the notification issued by the Delhi Administration; two, that the petitions are barred by time, not having been filed within two months of the date of the order of forfeiture, as required by Section 99B; and three, that the petitions, in so far as they purport to be under Article 226 could not lie as the authority exercising power under Section 99A does not function as a quasi-judicial tribunal. Later, the two latter objections were not pressed by the Advocate General and we therefore heard the arguments on the first objection only. We reserved our ruling on the point of jurisdiction, particularly as the learned Counsel appearing for the petitioner contended that the questions arising under Article 226 of the Constitution and the questions governing the petitioner’s fundamental rights would also have a material bearing on the question of jurisdiction and therefore, it was desirable to consider the petitions in their entirety. We accordingly proceeded to hear the petitions on the other points.
15. We heard the parties for seven days during which many a point was urged before us. One of the points that the order of forfeiture passed by the Delhi Administration on the 6th December 1967 was bad because the grounds of opinion, that the book contained matters which promoted feelings of enmity and hatred between Hindus and Muslims, were not stated in the order as required by Section 99A. It was contended that the order must refer to the objectionable passages specifically or else it cannot be sustained. The learned Advocate General controverted this position, contending that grounds are conclusions of facts drawn from facts but are different from facts and evidence. Therefore, he urged, it was not necessary to mention in the order the specific passages which fell within the mischief of the section.
16. This particular point lost its relevance because, during the course of hearing before us, the Delhi Administration came out with a fresh order of forfeiture, dated the 26th September 1968, rectifying the defect from which the earlier order was said to suffer. That order reads thus :–
DELHI ADMINISTRATION: DELHI NOTIFICATION
Dated the 26th September, 1968, No. F. 292/67-C:–
The Lt. Governor, Delhi, is pleased to pass the following order in supersession of the order notified under Notification No. F. 292/67-C dated the 6th December, 1967.
Whereas the Lt. Governor, Delhi, is satisfied that the book entitled “Gandhi Hatya Ani Mee” in Marathi by Gopal Godse, published by G. V. Behere, Asmita Prakashan, 161/1, Sadashiv Peth, Tilak Road, Poona-2 and printed by M. H. Patwardhan at Sangam Press Private Ltd. 383, Narayan Peth, Poona-2 contains matters which promote feelings of enmity and hatred between Hindus and Muslims in India and the publication of which is punishable under Section 153-A of the Indian Penal Code 1860, (Act XLV of 1860).
Now, therefore, on the ground that the book contains passages, references to which are given in the Schedule, which passages read in the context of the book as a whole, promote feelings of enmity and hatred between Hindus and Muslims in India, and in exercise of the powers conferred by Section 99-A of the Code of Criminal Procedure, 1898 (Act V of 1898), the Lt. Governor, Delhi hereby declares to be forfeited to the Government every copy of the said book and all other documents containing copies, re-prints and translation of or extracts from the said book.
By order, (Sd.)
Vinod Kumar Seth,
Under Secretary, (Home), Delhi Administration: Delhi.
17. The schedule annexed to the order refers to the objectionable passages by references to the pages of the book at which they appear. Such passages are 52 in number.
18. The new order of forfeiture necessitated a new challenge. But rather than drive the petitioners to file fresh petitions, we permitted them to amend their petitions, the Advocate General not objecting. We have now to consider the validity of the notification issued by the 2nd Respondent on the 26th September, 1968. This notification was re-published by the Government of Maharashtra in its Gazette dated the 17th October, 1968.
19. We might mention before we begin to consider the several points raised before us that after the questions of law were argued and before the argument on the merits of the book commenced, the learned Advocate General applied to us that further proceedings be held in camera. He apprehended that arguments on the drift and meaning of the objectionable passages might receive wide publicity in newspapers and that persons not directly concerned with the case and yet present in the Court-room would hear the passages read out by Counsel and thereby the very purpose of the order of forfeiture shall have been frustrated. We found ourselves unable to agree that there were any circumstances justifying a departure from the normal rule that all Court proceedings must be open to public. The proceedings before us did not appear to have excited public curiosity. In so far as we knew or had the means to know, no newspaper gave undue publicity to the hearing before us nor was our Courtroom anywhere near to being crowded at any time. Though therefore, there is no doubt that in the exercise of our inherent powers, we could have directed that further proceedings be held in camera, we did not think that the ends of justice clearly required the adoption of such a course. However, in order that under the guise of reporting Court proceedings, passages charged as objectionable may not be reproduced in print, we directed by a written order dated the 8th October, 1968 that until further orders, no newspaper, journal, periodical or pamphlet shall, while reporting the proceedings of the case, set out any of the passages mentioned in the schedule to the order of forfeiture dated the 26th September, 1968 or any part or gist of any of such passages.
20. We must now consider the preliminary objection raised by the learned Advocate General that this High Court has no jurisdiction to entertain the petition in so far as it purports to be filed under Section 99B of the Code of Criminal Procedure. The contention is that the order of forfeiture was passed by the Delhi Administration and therefore the application under Section 99B to set aside that order can lie to the High Court of Delhi only. No other High Court, it is urged, has jurisdiction to entertain the application. As the contention is based on language of Section 99B, it is necessary to consider that section and other allied sections.
21. Section 99A of the Code under which the 2nd Respondent passed the impugned order reads thus:
“99A. (1) Where-
(a) any newspaper, or book as defined in the Press and Registration of Books Act, 1867, or
(b) any document, wherever printed, appears to the State Government to contain any seditious matter or any matter which promotes or is intended to promote feelings of enmity or hatred between different classes of the citizens of India or which is deliberately and maliciously intended to outrage the religious feelings of any such class by insulting the religion or the religious beliefs of that class, that is to say, any matter the publication of which is punishable under Section 124A or Section 153A or Section 295A of the Indian Penal Code, the State Government may, by notification in the Official Gazette 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 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.
(2) In Sub-section (1) “document” includes also any painting, drawing or photograph, or other visible representation.”
22. Section 99B, which provides for a challenge to the order of forfeiture reads thus:–
“99B. Any person having any interest in any newspaper, book or other document, in respect of which an order of forfeiture has been made under Section 99A, may, within two months from the date of such order, apply to the High Court to set aside such order on the ground that the issue of the newspaper, or the hook or other document, in respect of which the order was made, did not contain any seditious or other matter of such a nature as is referred to in Sub-section (1) of Section 99A.”
23. Section 99G of which the marginal note reads “jurisdiction barred” provides:–
“99G. No order passed or action taken under Section 99A shall be called in question in any Court otherwise than in accordance with the provisions of Section 99B.”
24. The question which falls for consideration in the light of these provisions is whether an application under Section 99B can lie in that High Court only which has jurisdiction over the area comprised within the territorial limits of the State Government which passes the order of forfeiture or whether any other High Court within whose territorial jurisdiction any part of the cause of action arises for challenging the order of forfeiture can also entertain the application. The contention of the petitioner is that the book was printed and published in Poona, copies thereof were seized in Poona in enforcement of the order of forfeiture and therefore this High Court has jurisdiction to entertain and decide the application in so far as it is referable to Section 99B.
25. We must confess that the question is not free from difficulty. The Sections on which the decision of the question turns are couched in terms far too vague and general to afford any real assistance. Section 99A, in so far as is relevant on the question of jurisdiction, provides that where any book, “wherever printed”, appears to “the State Government” to contain any matter which is punishable under Section 153A of the Indian Penal Code, it may declare every copy of the book to be forfeited to Government and thereupon any police officer may seize the same “wherever found in India”. The width of the language employed in Section 99A leaves no doubt that the power of a State Government to forfeit objectionable matter is not governed by the consideration whether the matter is printed or published within its territory. The place of publication finds no reference in Section 99A and therefore it is not a relevant factor on the power of the State Government to forfeit a book. The place of printing is expressly made inconsequential because the power to forfeit a book can be exercised by the State Government wherever the book may have been printed. Whether the book enjoys wide circulation or any circulation at all in the area within the limits of the State Government which passes an order of forfeiture is also not made relevant by the Section. Finally on the language of the Section, it does not seem necessary that the harmful consequences of the matter charged as objectionable must ensue or be felt within the State. In short, therefore, it is competent to a State Government to pass an order of forfeiture under Section 99A, even if the objectionable matter is printed or published outside its area, the matter has comparatively little or no circulation within its area and even if the harmful consequences thereof are not particularly or especially felt within that area.
26. At one end, thus, the width of power is striking. But would it justify a construction that will correspondingly confer a remedy on an aggrieved party, equally striking in its width? That is the position for which the petitioner contends. It is urged on his behalf that if the Delhi Administration chooses to forfeit a Marathi book printed, published and substantially circulated in Maharashtra and if in pursuance of such an order, an order which the Government of Maharashtra did not deem it necessary to pass, copies of the book are seized in Poona, it would be unjust to deny to the petitioner an easy remedy in the highest Court of his own State. Section 99B does not restrict the right to apply by specifying any particular High Court and therefore, according to the petitioner, this High Court would have jurisdiction to entertain the application filed under that Section.
27. The argument is not wholly devoid of substance but there are reasons that have led us to reject it. Firstly, whether a remedy is as wide as the power against the exercise of which it is enforceable must primarily depend on the language of the statute which confers the remedy. It may be good policy to balance the width of a power by the width of a remedy afforded to prevent the abuse of that power. But that is for the Legislature to consider. A Court called upon to construe the nature and content of a remedy is bound by the language of the Section which prescribes the remedy. What is sound policy may not be a safe-guard to the true construction of a Section. Therefore, the argument of the petitioner that the remedy should be held to be unhampered by the consideration as to which State Government passed the order of forfeiture, because the power of State Governments to act under Section 99A is untrammelled by considerations like where the book was printed or published fails to impress us.
28. If an order of forfeiture passed by a State Government could be permitted to be challenged in the High Courts of other States, a sharp conflict of jurisdiction will arise. Copies of the forfeited book can be seized under Section 99A wherever they are found in India. If such copies are seized, say, from a dozen different States, a dozen applications would lie under Section 99B in as many different High Courts. In Khajoor Singh v. Union of India, the Supreme Court refused to introduce in Article 226 of the Constitution (as it then stood) the concept of the place where the order has effect, in order to determine which High Court had jurisdiction to grant relief under Article 226, on the ground, mainly, that the introduction of such a concept may give rise to “confusion and conflict of jurisdictions”. Sinha, C.J. who delivered the majority judgment has taken, what is for our purposes, a useful illustration of an order passed by an authority in Calcutta affecting six persons living in six different States. On the language of Article 226 (without Clause 1A which was introduced in 1963), it was held that the order could be challenged only in the High Court within whose jurisdiction the authority was located, “if one is to avoid confusion and conflict of jurisdiction” (Para 13). Therefore, unless the wording of the statute compels such a construction, one must so construe it as would avoid a conflict of jurisdiction. There is nothing in Section 99B to compel the construction that an order of forfeiture passed under Section 99A can be challenged under Section 99B in any High Court within whose territorial jurisdiction the order has taken effect. Therefore, the better view is that the order passed by a State Government under Section 99A can be challenged under Section 99B in that High Court only which has jurisdiction in relation to the territories of that State.
29. And indeed, if the petitioner’s argument is correct, why is it even necessary that in order to give us jurisdiction to entertain the application in so far as it purports to be under Section 99B, copies of the book should have been seized from a place within our jurisdiction? Section 99B speaks of the existence of no such condition to the exercise of jurisdiction by the High Court. It does not say that the application can be made to the High Court in whose jurisdiction the order of forfeiture takes effect. It says, in terms as wide as is conceivable, that any person having interest in the book may “apply to the High Court” to set aside the order of forfeiture. It seems to us that the argument that this Court has jurisdiction because the copies of the book were seized from a place within its jurisdiction wrongly imports in the construction of Section 99B the concept that one can enforce a remedy in a Court within whose jurisdiction a part of the cause of action has arisen. That is not a common law principle. In India, it applies in civil actions by reason of the express provision in Section 20(c) of the Code of Civil Procedure by virtue of which a suit can be instituted in a Court within the local limits of whose jurisdiction the cause of action, wholly or in part arises. It applies to certain criminal actions by reason of the provision in Section 179 of the Code of Criminal Procedure under which, if a person is accused of an offence by reason of anything which has been done and of any consequence which has ensued, the offence may be tried by a Court in whose jurisdiction any such thing has been done or any such consequence has ensued. Section 99B does not contain a corresponding clause. Logically, therefore, the form which the petitioner’s argument must take is that this Court has jurisdiction because under the wide language of Section 99B any and every High Court has jurisdiction to consider the validity of an order of forfeiture passed by any State Government. Such an argument merely takes note of the convenience of an individual. It ignores the salient rule that you must, unless so compelled by the language of the statute, avoid a conflict of jurisdiction.
30. It is possible to suggest a reason why the Legislature did not specify in Section 99B that the application will lie to that High Court only which exercises jurisdiction in relation to the territory of the State Government which passes the order of forfeiture. Section 4 (i) of the Code of Criminal Procedure says, in so far as is relevant, that in relation to any local area other than Andaman and Nicobar Islands, “High Court” means the highest Court of Criminal Appeal for that area. Sections 99A to 99G of the Code are parts of the same scheme so that words or phrases occurring in one of these sections must be construed in the light of the provisions of the other cognate sections. The expression “the High Court”, occurring in Section 99B, must therefore be understood in the light of the expression “the State Government”–the Government which is empowered to take action under Section 99A. Reading these two sections together and reading them along with the definition clause in Section 4 (i), it would be reasonable to say that an application under Section 99B would lie to that High Court only, which exercises jurisdiction in relation to the area of the State Government which passes an order of forfeiture under Section 99A-Section 99A empowers “the State Government” to pass an order of forfeiture, while Section 99B confers a remedy on a person aggrieved by that order to apply to “the High Court” to set aside the order. The implication is that the remedy must lie in the High Court which exercises jurisdiction in relation to the territories of the State Government which passes the order of forfeiture.
31. Section 99G of the Code provides that “no order passed or action taken under Section 99A shall be called in question in any Court otherwise than in accordance with the provisions of Section 99B.” Thus, not only does the statute limit the remedy to an application, but it ordains that the application must be filed in “the High Court” as contemplated by Section 99B and in no other Court. This is some indication that the remedy was intended to be restricted. The language of Section 99G is not suited to convey an intention that a free choice of forum was, as it were, left to the discretion of the person aggrieved by the order of forfeiture. The language of Section 99G is the language of exclusion, not of enlargement of jurisdiction.
32. The fact that the notification issued by the Delhi Administration on the 26th September, 1968 was republished by the Government of Maharashtra in its gazette dated the 17th October, 1968 cannot confer jurisdiction on this Court to entertain the application under Section 99B. Republication of the notification by the Maharashtra Government is obviously for the general information of the public. The notification of the Delhi Administration was re-published in Part IV-C of the Gazette of the Government of Maharashtra. In that part are published notifications of Government other than the Government of Maharashtra. There is therefore no scope for saying that by republishing the notification of the Delhi Administration, the Government of Maharashtra adopted it as its own. The challenge contemplated by Section 99B is to the order of forfeiture and not to a notification republishing that order. Therefore, no application can lie under Section 99B to challenge the notification of the Maharashtra Government republishing that of the Delhi Administration. In re, Ghulam Sarvar Figar, AIR 1962 Andh Pra 526 and in Gulam Sarwar Firgar v. State of Bihar, , it was held that a notification re-publishing a notification of forfeiture cannot be challenged under Section 99B. Thus the challenge under Section 99B can only be to the parent notification of forfeiture.
33. We must therefore uphold the preliminary objection taken by the learned Advocate General that the petitions, in so far as they purport to be filed under Section 99B of the Code, cannot lie in this Court. In our opinion the High Court of Delhi, and no other High Court, would have jurisdiction to entertain the petitions filed under Section 99B to challenge the order of forfeiture passed by the Delhi Administration on the 26th September, 1968.
34. It is plain that as the petitions are not maintainable in this Court under Section 99B, we cannot give to the author or the publisher the benefit of the wide powers possessed by the High Court under Section 99D. Under that Section, the High Court can examine the objectionable matter on merits and decide whether the grounds on which the Government formed its opinion that the matter is objectionable justify that opinion. If the High Court is not satisfied that the book is objectionable as alleged, it can set aside the order of forfeiture. The special jurisdiction created by Sections 99B and 99D would have given to the petitioner a two-fold advantage. Acting under those provisions we could have reviewed the book on merits and set aside the order of forfeiture if we were not satisfied that the book contains matter which promotes feelings of enmity and hatred between the Hindus and Muslims in India, the publication of which is punishable under section 153A of the Penal Code. However, we could not have sustained the order on grounds other than those mentioned in the order of forfeiture. We cannot add to the grounds but we can review the book on merits under Section 99D. That benefit cannot now go to the petitioner as we have no jurisdiction to entertain the petitions under Section 99B.
35. That, however, is not the end of the petitions because Article 226 of the Constitution is also invoked. On that aspect, the fact that the order of forfeiture was passed by the Delhi Administration makes no difference because under Clause 1A which was inserted in Article 226 by Section 8 of the Constitution (Fifth Amendment) Act, 1963, the power conferred on the High Courts by Clause 1 can be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power notwithstanding that the seat of the Government to which a direction, order or writ is to be issued is not within those territories. In the instant case, the copies of the book were seized in Poona in pursuance of the order of forfeiture passed by the Delhi Administration and therefore a part of the cause of action has arisen in the territory in relation to which we can exercise our jurisdiction. The petitions are therefore competent under Article 226. We will consider later whether, though the petitions are competent, we should, in our discretion, grant any relief to the petitioner.
36- The petitioner challenges in the first place the constitutionality of Section 99A of the Code of Criminal Procedure on the ground that it violates the guarantees contained in Articles 19(1)(a), 19(1)(f) and 19(1)(g) of the Constitution. Clauses (a) and ff) are relied upon on behalf of the author, while Clause (g) is relied upon on behalf of the publisher. The argument is that Section 99A is unconstitutional because it places unreasonable restrictions on, the right of free speech and expression the right to acquire and hold property and the right to carry on business as a publisher. Reasons why the restrictions are unreasonable are said to be these:
(a) The restrictions are unreasonable not only because the power conferred by Section 99A is wide but more so because it must be exercised in its fullest amplitude or not at all. Even if a State Government takes the view that an objectionable matter needs to be proscribed within its own territory only or within any narrower limits or within an area larger than its own but not extending over the entire country, it has no power to restrict the operation of the order of forfeiture in that fashion. It is obliged, in all cases, to pass an order which will embrace the whole country whether or not the harmful effects of the objectionable matter are likely to be felt in the entire country. The order thus, requires neither intelligent care nor deliberation.
(b) One State Government is given the power to pass an order which will interfere with the discretion of another Government. In the instant case, for example, the Government of Maharashtra did not, apparently, feel the necessity of proscribing the book but notwithstanding that, the order of the Delhi Administration will operate in Maharashtra, as copies of the book can be seized wherever they are found.
(c) The order must remain in force in perpetuity, for there is no provision for its withdrawal even after the reasons for forfeiture have ceased to exist; assuming that the order can be withdrawn, there is in any case no provision for the return of the copies seized in pursuance of the order of forfeiture.
(d) The section does not stipulate that there must be nexus between the proscribed matter and the local conditions obtaining within the territory of the State Government which passes the order of forfeiture. A State Government can pass an order of forfeiture even if the harmful consequences are not felt within its territory.
(e) The section does not contemplate any hearing being given to the author or the publisher before an order adverse to their interests is passed.
(f) The remedy provided by Section 99B against an order passed under Section 99A is illusory because, if the preliminary objection raised by the Advocate General to the jurisdiction of this Court is well founded,
(i) the remedy is inconvenient and expensive, and
(ii) the application under Section 99B has to be filed within 2 months of the date of the order. It may be well-nigh impossible for an author or publisher to know within that time that some State Government has in some part of the country passed an order of forfeiture.
37. Some of these grievances and some of the difficulties which a person in the position of the petitioner may have to countenance are genuine but we are unable for that reason to hold that the impugned section imposes unreasonable restrictions on the petitioner’s right of free speech and expression or the right to acquire and hold property or the publisher’s right to carry on his business.
38. There is no doubt that the freedom of speech and expression includes freedom of the press and circulation but the right, as stated in Article 19(2), cannot affect the operation of any existing law in so far as such law imposes reasonable restrictions on that right, in the interests, inter alia, of public order. Similarly assuming that the fundamental right of the petitioner under Article 19(1)(f) is violated as he cannot, on account of the order of forfeiture, acquire or hold a copy of the book that right, as provided in Article 19(5) cannot affect the operation of any existing law in so far it imposes reasonable restrictions in the interests of the general public. In the same manner, the right of the publisher to carry on his business is subject, as provided in Article 19(6) to the operation of any existing law in so far as it imposes reasonable restrictions on that right in the interests of the general public. Section 99A is an ‘existing law’ as it was in force immediately before the commencement of the Constitution, having been inserted in the Code of Criminal Procedure by the Press Law Repeal and Amendment Act No. XIV of 1922. The question therefore to be considered is whether the restrictions imposed by Section 99A on the aforesaid fundamental rights are reasonable. That the restrictions on the right of free speech and expression are in the interests of public order and those on the other rights are in the interests of the general public is undeniable.
39. On the reasonableness of restrictions, Patanjali Sastri, C.J. laid down a test in State of Madras v. V.G. Row, which has been adopted in several subsequent decisions. The learned Chief Justice said:
“It is important……to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard, or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time should all enter into the judicial verdict.”
40. In Chintamanrao v. State of M. P., it was explained that what is meant by ‘reasonable restriction’ is:
“………that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public. The word ‘reasonable’ implies intelligent care and deliberation, that is, the choice of a course which reason dictates. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness……”
41. Let us, in the light of these tests, consider the various grounds urged by the petitioner as constituting excessive or arbitrary encroachment on his rights.
42. The first ground of challenge is that the State Government which deems it necessary to pass an order of forfeiture is left no choice save to pass an order which will pervade the whole country. It cannot restrict the operation of the order to a lesser area even if it deems fit to do so. The grievance in other words is that the limitations imposed by Section 99A on the freedom of speech and expression are of an excessive nature, beyond what is required in the interests of the general public.
43. We cannot accept this argument. While judging of the reasonableness of restrictions, we must have regard to the nature of the right infringed and the purpose for which the restrictions are imposed. The object of Section 99A is to prevent the circulation of written matter, (i) which is seditious so as to fall under Section 124A or (ii) which promotes or is intended to promote feelings of enmity or hatred between different classes or communities so as to fall under Section 153A or (iii) which is deliberately and maliciously intended to outrage the religious feelings of any such class by insulting the religion or the religious beliefs of that class, so as to fall under Section 295A of the Indian Penal Code. Sedition consists of bringing or attempting to bring into hatred or contempt or exciting or attempting to excite disaffection towards the Government established by law in India. Any order forfeiting seditious writing must in the very nature of things operate throughout the country, for it cannot be that a writing is seditious in one part of the country but not in another. The two other evil consequences of the written word which Section 99A seeks to combat, namely, promotion of class hatred and disparagement of religious beliefs such as would attract Sections 153A and 295A, stand more or less on the same footing. Promotion of hatred between different classes of citizens, as for example, Hindus and Muslims or deliberate, malicious acts intended to outrage the religious feelings of any class by insulting its religion or religious beliefs are not purely local problems. Recent history shows that these tendencies constitute a serious danger to the very way of life to which we are pledged under the Constitution. Writings calculated to foment communal or class rivalries by encouraging enmity or hatred between different religious, racial or language groups or by insulting the religion or religious beliefs of a class have country-wide repercussions. Experience, for example, shows that communal disturbances which, now, are by no means infrequent have the disconcerting tendency of spreading rapidly from one region to another. The notification of the Government of India dated the 1st November. 1967 (The Gazette of India, Extraordinary, Part II, Section 3 (ii), Page 1713) by which a Commission of Inquiry was appointed under the Chairmanship of Mr. Raghubar Dayal, ex-Judge of the Supreme Court, to inquire into “a definite matter of public importance, to wit, the communal disturbances that have occurred in the country since the first day of August 1967” shows that the problem is of national importance. How infectious the communal virus is, would appear from the proximate dates mentioned in the schedule to that notification, on which disturbances occurred in areas as far removed as Ranchi and Sursand (Bihar) Jainpur and Suchetpur (U.P.), and Sholapur, Ahmednagar and Malegaon (Maharashtra). Considering therefore that the right invaded is the right of free circulation and the object of the restrictions is to prevent an abuse of that right which will have countrywide repercussions, we are of the opinion that the restrictions are not beyond what is necessary in the interests of public order or the interests of the general public.
44. It is also necessary to bear in mind that if objectionable literature were to be banned in one State and not in others, the order of forfeiture will be difficult to enforce because copies which are in circulation in the other States are bound to trickle into the neighbouring State. But what is really more important is that if the forfeiture were not to operate in all other areas the harmful effects of the writing which will occur in those areas where the writing circulates freely will sooner or later, be felt in the State issuing the order of forfeiture.
45. We must also point out that it is not strictly accurate to say that the State Government issuing an order of forfeiture under Section 99A gives or must give to that order a country-wide operation. The State Government merely passes an order of forfeiture as it has done in the present case. It does not stipulate in the order that it will operate all over the country. The effect however, of the order is that any police officer may seize copies of the objectionable matter, wherever found in India. It is not a fair reading of Section 99A to say either, that the State Goverment gives or is required under the terms of that section to give an extra-territorial operation to its order or that the moment a State Government passes an order of forfeiture, police officers in other States must, without more, act in aid of that order by seizing copies of the objectionable matter which are in circulation within their, respective jurisdictions. Section 99A merely enables all police officers to seize copies wherever found, and that is because, without that power the order of forfeiture would be denuded of its efficacy.
46. This consideration also answers the second objection mentioned in (b) above. The Delhi Administration has in no way interfered with the discretion or the powers of the Maharashtra Government. It has passed an order of forfeiture the conseguence of which, under Section 99A is, that any police officer may seize copies of the book wherever found in India. A police officer in Maharashtra can, if so required, seize copies found in the State and likewise police officers in other States may seize copies found in those States. Such an enabling power of seizure cannot be construed as constituting an encroachment on the rights or privileges of other State Governments. Besides, the petitioner has no locus to complain that the rights of the other State Governments are invaded. He can only complain of unreasonable restrictions imposed by the statute on his rights.
47. There is no substance in the objection mentioned in (c) above for, under Section 21 of the General Clauses Act, 1897, if by any Central Act a power to issue a notification or order is conferred, then that power includes a power to rescind the notification or order. The question of the return of copies seized in pursuance of a notification would only arise on the rescission of the notification. We have no doubt that though Section 99A does not make any specific provision therefor, if a State Government withdraws the order of forfeiture it must return the copies seized in enforcement of that order. The validity of the seizure would lapse with the withdrawal of the order under which the seizure was made.
48. Regarding (d) above, we have In the first place pointed out already that matters which fall under Sections 124A, 153A or 295A are of national importance because they have country-wide repercussions. In the very nature of things, there cannot, for example, be nexus between local conditions and a seditious writing. Sedition is sedition all over the country. Besides, there is no warrant for assuming that any State Government will pass an order of forfeiture in disregard of the local conditions obtaining within its territory. In appropriate cases, an order which discloses non-application of mind or mala fides can be set aside but these are not to be assumed. “Abuse of power given by a law sometimes occurs: but the validity of the law cannot be contested because of such an apprehension” (Per Kania. C.J. in N.B. Khare v. State of Delhi, ). On the contrary as observed by Patanjali Sastri, C. J. in State of West Bengal v. Anwar Ali Sarkar, , where the question is whether a discretionary power is liable to be abused, there is a presumption that a public authority will act honestly and reasonably in the exercise of its statutory powers. In the instant case the discretion is vested, not in an inferior official but, in the State Government itself and therefore the presumption, as stated in Matajog v. H.C. Bhari, , is strengthened.
49. Regarding (e), it is true that Section 99A does not provide that the writer or publisher should be heard before passing an order of forfeiture but it is very important to bear in mind that Sections 99B and 99D provide for a full judicial review of the order. Under Section 99B an application to set aside the order of forfeiture can be made to the High Court within two months from the date of the order by any person having any interest in the forfeited matter. This application is required under Section 99C to be heard and determined by a Special Bench of the High Court composed of three Judges. Under Section 99D the Special Bench has got the power to set aside the order of forfeiture, “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” contains objectionable matter of the nature referred to in Sub-section (1) of Section 99A. These provisions virtually give to every aggrieved person the right of an appeal against the order of forfeiture and therefore, the fact that there is no provision for hearing the writer or the publisher before the order is passed cannot constitute an unreasonable restriction on their fundamental rights.
50. While determining whether the restrictions are reasonable, the reasonableness of substantive as well as procedural provisions of law has to be considered and one must inquire whether the impungned law provides reasonable safeguards either by conferring a right of appeal to a higher authority or a right to have the matter judicially reviewed. In Virendra v. State of Punjab, , the Supreme Court considered the validity of Sections 2 and 3 of the Punjab Special Powers (Press) Act. 1956. The order issued against the petitioner under Section 2 (1) (a) of that Act prohibiting him from publishing any article relating to certain activities for a period of two months was upheld by the Supreme Court as the order was of a limited duration and there was a right of representation against it. The order passed under Section 3 prohibiting the petitioner from bringing into Punjab certain newspapers printed and published at Delhi was set aside as it was not limited in point of time and as there was no provision for making a representation against that order.
51. It is urged on behalf of the petitioner that in assessing the reasonableness of the restrictions imposed on the petitioner’s rights, we must not ignore that the power to impose restrictions has been given to the State Government which has to act subjectively and not objectively. For example, if a book “appears to the State Government” to contain objectionable matter of the nature mentioned in Section 99A, the State Government can pass an order of forfeiture. Now, normally, a subjective decision depends conclusively on the opinion formed by an authority charged with the duty to form a particular opinion. The reasonableness of the satisfaction of such authority cannot be tested by the Court. The fact, however, that the order of forfeiture can be passed by the State Government on its subjective satisfaction loses its sting, because a person aggrieved by the order can take the matter to the High Court which is entitled under Section 99D to review the order on merits. The vesting of subjective discretion in the State Government cannot therefore be considered to be an unreasonable restriction on the fundamental rights of the petitioner. In Tika Ramji v. State of U. P., , the Supreme Court held that the requirement of procedural reasonableness was satisfied even though the statute which was assailed on the ground that it imposes unreasonable restrictions on the right to carry on business, provided for an administrative appeal only. Similarly, in Kishan v. State of Rajasthan, the Supreme Court upheld Section 86 of the Marwar Land Revenue Act, 1949 on the ground, inter alia, that the orders of the Settlement Officer were subject to revision by the Board of Revenue.
52. Thus, even a judicial review is not held to be an essential condition of reasonableness, if adequate safeguards are provided by the Legislature to prevent the executive authority from exercising its discretionary power arbitrarily. The case before us is stronger, for the Legislature has provided a remedy in the nature of an appeal to the High Court against the order of forfeiture.
53. Lastly, regarding the objection mentioned in (f) above, we do not agree that the restrictions are unreasonable either because the remedy is inconvenient and expensive or because the application has to be filed within 2 months of the date of the order. The inconvenience and expense involved in making a journey, say to Delhi from a distant part of the country where the book might have been printed or published or where copies of the book might have been seized is not relevant on the question whether the restrictions are reasonable. The remedy by way of an application to the High Court of Delhi, the order of forfeiture having been passed by the Delhi Administration could have been said to be illusory, if before a person could avail himself of that remedy he was required by law to satisfy onerous conditions. Section 99B however does not impose any such conditions. It confers an absolute right to apply to the High Court and the only condition which qualifies that right is that the application must be filed within two months of the date of the order.
54. This condition cannot also be considered unreasonable. A period of limitation had to be provided within which to apply to the High Court for setting aside the order of forfeiture and whether the period fixed by the statute was two months or anything else, a certain amount of arbitrariness is inevitable in the fixation of a period of limitation. In this connection attention must be drawn to a significant departure made by the Limitation Act, 1963 (Act 36 of 1963) from the Act of 1908 (Act 9 of 1908). Under Section 29(2)(a) of the Act of 1908, in so far as is material, if a special law prescribed for an application a period of limitation different from the period prescribed therefor by the First Schedule, then for the purpose of determining any period of limitation prescribed for an application by the special law, the provisions contained in Section 4, Sections 9 to 18, and Section 22 were applicable to the extent to which they were not expressly excluded by the special law. By Clause (b) of Section 29(2), the remaining provisions of the Limitation Act were made inapplicable. Under Section 29(2) of the Act of 1963 this position has undergone a significant change, because under the new provision, if a special law prescribes for an application a period of limitation different from the period prescribed by the Schedule, then for the purpose of determining any period of limitation prescribed for an application by the special law, the provisions contained in Sections 4 to 24 would apply to the extent to which they are not expressly excluded by the special law. Clause (b) of Section 29(2) of the Act of 1908, under which the provisions of that Act other than those referred to in Clause (a) were excluded, has now been deleted. The result is that whereas Section 5 of the Act of 1908 would have been inapplicable to an application under Section 99B of the Code of Criminal Procedure, Section 5 of the Act of 1963 would apply to it. Section 5 provides, in so far as is material, that any application may be admitted after the prescribed period if the applicant satisfies the Court that he had sufficient cause for not preferring it within that period. The grievance of the petitioner is that a person aggrieved by the order of forfeiture may not know within a period of two months that such an order was passed, because the orders are notified in local gazettes and in the normal course, one cannot have knowledge of notifications published in distant parts of the country. As the period of two months can in proper cases be extended under Section 5 of the Limitation Act of 1963, the objection raised by the petitioner must fail. We have not gone into the provisions of the Limitation Act, particularly Section 29 thereof, minutely, because such doubts as might have been raised about the view which we have taken are removed by the judgments of the Supreme Court in Kaushalya Rani v. Gopal Singh, and Vidyacharan v. Khubchand, .
55. In regard to the right claimed by the publisher under Article 19(1)(g), crime is not a business and there can be no fundamental right in a crime. A question was raised in State of Bombay v. R.M.D. Chamarbaugwala, , whether the Bombay Prize Competition Act, which regulated prize competitions of a gambling nature infringed Article 19(1)(g). It was held that crime could not be a business. In State of U.P. v. Kartar Singh, also, it was held that a person cannot assert a fundamental right under Article 19(1)(g) to carry on business in adulterated foodstuffs.
56. In our opinion, therefore, the challenge made by the petitioner to the constitutionality of Section 99A of the Code of Criminal Procedure must fail. This conclusion accords with the view taken by a Special Bench of the High Court of Andhra Pradesh in District Board v. Tahir Hussain, and N. Veerabrahman v. State of Andhra Pradesh, .
57. The next point urged on behalf of the petitioner is that the order of forfeiture was passed without application of mind and therefore, it is bad. The book was first serialised in the monthly issues of a Marathi magazine, Painjan, from June 1966 to October 1967. The seventh chapter of the book. “Throw my ashes into the Indus” appeared in the issue dated the 8th Oct. 1967 of a Marathi weekly called ‘Sobat’. The argument is that copies of these journals were submitted to the authorities concerned as required by the Press Act and yet no action was taken against the author or the publisher. After the book was published, the Government of Maharashtra, in whose territory the book had the widest circulation, did not take any steps to forfeit it and it is alleged that the Minister for Home Affairs to the Government of India made a statement in the Parliament that on consultation with the Legal Department of the Government of India, the Government did not think it necessary to proscribe the book. The circumstance that in face of these facts the Delhi Administration passed the order of forfeiture shows, according to the petitioner, that the order was passed without application of mind.
58. No such conclusion can, in our opinion, be deduced. The publication of a book in a serial form may not produce the same impact on the readers as the publication of the matter in a book form would produce. Then again, social and political conditions are not static. They may undergo a change in the period intervening between the appearance of the earlier instalments of the series and the publication of the book. In fact, we must in this context refer to a significant fact. What is now the seventh chapter of the book, “Throw my ashes into the Indus” appeared in the issue of ‘Sobat’ dated the 8th October, 1967 while the book was published on the 12th October. The first order of forfeiture was passed by the Delhi Administration on the 6th of December, 1967. The learned Advocate General has raised a strong objection to some of the passages occurring in the seventh chapter and the schedule to the second order of forfeiture dated the 26th September, 1968 also refers to as many as six pages from this chapter as containing objectionable material. The notification of the Government of India dated the 6th November 1967 under which a Commission of Inquiry was appointed to inquire into the communal disturbances which occurred in the country also shows that such disturbances occurred in different parts of the country from August till October, 1967. It cannot therefore be said that the order was passed by the Delhi Administration without a proper application of mind.
59. The argument of mala fides was also made by the learned Counsel for the petitioner but it is substantially founded on the same set of facts on which the argument which we have just disposed of is based. It was suggested during the course of arguments that the Government of Maharashtra has persuaded the Delhi Administration to pass the impugned order, but of that we see no evidence. As the facts necessary to establish mala fides are not proved, we must reject this contention.
60. A point was made that by passing the order dated the 6th December, 1967 the Delhi Administration had exhausted its power to act under Section 99A and therefore, it had no jurisdiction to pass the second order dated the 26th of September, 1968. It is impossible to accept this contention. As indicated earlier, under Section 21 of the General Clauses Act, 1897, a power to issue a notification or order includes a power, inter alia, to rescind it. It was therefore competent to the Delhi Administration to rescind the first notification. It was thereafter open it to pass a fresh order, for there is nothing in Section 99A or in any principle of law which can affect the exercise of such a power.
61. The last of the legal contentions that Section 153A of the Indian Penal Code is ultra vires was merely mentioned. No argument was made to show how or why the particular provision is unconstitutional. We will therefore not pursue the point beyond saying that for reasons similar to those for which Section 124A of the Penal Code was held constitutional in Kedar Nath Singh v. State of Bihar, and Sections 295A and 505 were held constitutional in Ramji Lal Modi v. State of U.P., , we would uphold Section 153A. Briefly, the challenge to the constitutionality of Section 153A on the ground that it violates the guarantee of free speech and expression must be rejected because the Section seeks to punish only (a) such acts which have the tendency to promote enmity or hatred between different classes or (b) such acts which are prejudicial to the maintenance of harmony between different classes and which have the tendency to disturb public tranquillity. These acts are clearly calculated to disturb public order and so the limitations imposed by Section 153A are in the interests of public order. Article 19(2) would therefore save Section 153A as being within the scope of permissible legislative restrictions on the fundamental right guaranteed by Article 19(1)(a).
62. What remains now to consider is whether the impugned order is justified on merits, that is, whether the opinion formed by the 2nd Respondent can, on any reasonable view, be upheld. We must record that learned Counsel for the petitioner as well as the learned Advocate General invited us to consider the merits of the matter, irrespective of what view we took of the question of jurisdiction and the other legal and constitutional questions.
63. The fresh order of forfeiture dated the 26th September, 1968, which was passed by the 2nd Respondent under Section 99A of the Code of Criminal Procedure, says that the book was forfeited because “it contains passages, references to which are given in the schedule, which passages read in the context of the book as a whole, promote feelings of enmity and hatred between Hindus and Muslims in India”. Section 99A of the Code, in so far as is material empowers the State Government to forfeit a book if it appears to that Government “to contain any matter which promotes or is intended to promote feelings of enmity or hatred between different classes of the citizens of India………that is to say, any matter the publication of which is punishable under…..Section 153A…..of the Indian Penal Code.” Our task is to find whether a conviction under Section 153A could be had on the charge that the offending passages read in the context of the book as a whole promote feelings of enmity or hatred between Hindus and Muslims in India. If the charge would be unsustainable in a Criminal Court, the order of forfeiture must fall.
64. While inquiring whether such a charge can be sustained on the data 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 primarily meant as also the state of feelings between the different classes or communities at the relevant tune. (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.
65. Let us then consider the book–its theme, its language, its innuendoes, the similies it employs and the moral of its story, if any–in order to ascertain whether the offending passages read in the context of the book as a whole fall within the mischief of section 153A. That seems to us to be the crux of the matter.
66. In order to understand the theme of the book, it would be necessary to make a brief and broad analysis of the contents of its sixteen chapters, the prologue called the “Pahile Pan” (The First Page), the epilogue called “Prayojan” (Propriety) and the preface written by the publisher, under the caption “Shodh” (Search)). This will also serve to show what the book as a whole reads like.
67. Before we proceed to analyse the contents of the book, we must mention that an English transaction of the book was furnished to us by the learned Government Pleader who appears for the State of Maharashtra. The translator has chosen to remain anonymous but he deserves a word of praise. He has done his job very neatly. The book is written in highly sanskritised Marathi and contains deft references to history and mythology. The writer has made a free use of new Marathi parallels to old and established usages. Savarkar started a new cult for improving Marathi–for ‘purifying’ it by eschewing the influence of other languages like English, Urdu and Persian–and the author has taken his clue from that cult. As a result the language of the book is at times somewhat heavy and involved particularly in passages which contain copious references to Hindu Philosophy, Indian History and Mythology. The translator has done adequate justice to the original except in a few passages. Those passages were pointed out by us to the learned Counsel and they readily agreed to accept the modifications suggested by us. While analysing the book we have highlighted the objectionable passages, adhering to the translation as far as possible. To facilitate reference, we have indicated in the margin the corresponding pages of the Marathi book where the particular passages occur.
68-242. (After giving summary and analysis of the book Their Lordships proceeded).
243. We have analysed the contents of the book at some length in order to give a fair idea of (i) the theme of the book, (ii) the nature of the language generally used by the author –its drive and its power, (iii) the copious references made by the author to historical facts, to the abiding principles of Hindu philosophy and to mythological tales, (iv) the rather free use of similies, metaphors, innuendoes and the other figures of speech which not only give vitality to the author’s prose but lend to it a sure beauty of form and (v) the moral of the story which the author, perhaps, wants his readers to draw or which the readers could draw for themselves after going through the book with a certain degree of care and concentration. The summary and analysis of the book given by us will also facilitate an assessment of what impact the book, as a whole would create on the minds of the readers.
244. We have considered the book in all its aspects but we find ourselves unable to agree that it contains matter which “promotes feelings of enmity and hatred between Hindus and Muslims in India.” We are clearly of the view that it does not contain such matter, not certainly such matter “the publication of which is punishable under Section 153A of the Indian Penal Code.” We are also satisfied, if it be relavant’, that the book does not contain any matter which is calculated to bring about enmity or hatred between Hindus and Muslims in India. On a fair reading of the book, that is not the intention of the writer either, though we must hasten to add that the intention of the writer is not relevant if the writing is otherwise of a nature described in Section 153A.
245. Whether the charge made against the book in the order of forfeiture is sustainable can best be appreciated by considering, in the first place, what is the theme of the book. Stated generally, the theme of the book is Gandhiji’s assassination but that is a very broad way of putting the point. The book undoubtedly deals with that subject, as the very title, “Gandhi–assassination And I” shows, but the book is not in any sense a bare or bald description of how, why and where the conspiracy was hatched, the actual incident in the prayer meeting which led to Gandhiji’s death, the course which the investigation took, the decision of the Courts, the execution of the death sentences, the incarceration of three of the accused and their release from jail. These are but a series of important events which took place in succession, one of which shook the world by its atrocity. These events are not the theme of the book. They are its raw material. The author has woven his theme round the warp of these events.
246. The theme of the book is really not one only. The central conception which animates the book, and perhaps dominates it, is that Gandhiji’s murder was not the act of a madman, that it was a political assassination and that the genesis of the murder was the policy persistently pursued by Gandhiji that Muslims must be appeasod at all costs. The country was partitioned as a measure of concession to the Muslims and even after the holocaust which occurred in the wake of partition, Gandhiji pursued the policy of appeasing the Muslims, steadfastly. Pakistani tribesmen invaded Kashmir and therefore the Government of India decided to withhold the payment of cash-balances to Pakistan. Gandhiji however went on a fast on the 13th January 1948, partially to persuade the Government to pay the amount and he broke his fast on the 18th, after the Government had declared on the 16th that it had decided to honour its obligation to pay the sum of Rs. 55 Crores to Pakistan. Madanlal Pahva exploded a bomb in Gandhiji’s prayer meeting on the 20th and Nathuram Godse assassinated Gandhiji on the 30th. The best part of the book deals with these facts and events, the theme being that Gandhiji was assassinated for political, not personal, motives by those who loved their motherland as much as anyone else did. The theme, in other words, is that Gandhiji’s life is the price which was paid for the decision that the country be partitioned and the subsequent decision to pay the cash-balances to Pakistan in the face of its aggression on Kashmir.
247. Though this, undoubtedly, is the dominant note of the book, that is not its sole theme. Other subjects, wholly independent of the genesis of Gandhiji’s murder, occupy a sizable portion of the book. One such subject is dealt with in the ninth chapter “The Days of Separation”. It contains a moving account of the hardships which the author’s wife, Sindhu, had to face in his absence. The theme is that the wife and children of persons concerned with an offence of national dimensions like the murder of Gandhiji have inevitably to suffer a sort of vicarious punishment.
248. Yet another theme dealt with in the book at some length is the partly purposeful, partly purposeless life of a convict in jail, the humane attitude of the jail officials, born of a sympathetic understanding of events that have led to the crime and the vindictive attitude of the Government to a particular class of prisoners.
249. Lastly, chapters 13 to 16 which cover one-fourth of the book, both in terms of the number of chapters and the number of pages, deal with an entirely unconnected theme–so unconnected that the learned Advocate General said that there was no objection to the publication of these chapters in a separate compilation. In those chapters, the author partly deals with the right of a convict sentenced to a term of life imprisonment to get remissions in his sentence according to jail regulations. He demonstrates how the remissions earned by him were denied to him, with the result that he had to remain in jail for over fifteen years. He also deals with a separate topic of some sociological importance–the problem of rehabilitation of a criminal, in society. Even after serving a long term of imprisonment, the fear which oppresses the mind of a convict is that the society will not take him back in its fold. The society does not–may not–accept the theory that the convict has atoned for his sins by serving out his term. This attitude poses serious problems and the author has touched some of them in the last four chapters. The author says towards the conclusion of his book that the publisher gave him a place in society, the publisher rehabilitated him in society. The purpose of releasing a prisoner is to rehabilitate him in society.
250. Later, we will consider some of the offending passages on which special stress was laid before us but it is important to know that this is what the book, as a whole, deals with. Its accent is not on the social relationship or the political association between Hindus and Muslims in India, nor does the book at all deal with any contemporary problem having communal ramifications. The setting of the book is the events that led to the division of the country, the thesis of the writer is that Gandhiji wrongly pursued the policy of appeasement and his conclusion is that this policy led to Gandhiji’s murder. The book is thus an attempt to explain what is indisputably a historical fact by marshalling support from what are said to be clear facts of history. In assuming a fact to be a matter of undisputed history, the author may perhaps have overshot the limits of a historian but as we will indicate, we are satisfied that he has certainly not perverted history.
The ingenuity and imagination of a literary artist have on occasions been permitted a free play in the book but even there, the evidence of distortion is lacking. But most important of all is the necessity to be aware that the book does not purport to deal with, and it does not in fact touch, any contemporary problem of communal significance to Hindus or Muslims in India. Quite apart from the fact that the book deals with Other themes also, even the theme of Gandhiji’s assassination is dealt with as a matter of past history. We think that the claim of the publisher that “Gandhi-assassination is now a matter of history” and therefore an attempt is made in the book to ascertain the true reasons that led to that catastrophe is fairly justified. So is the claim of the author that he has striven to place before the public the reasons that led to Gandhiji’s death, a death which was closely related to his philosophy of life. We are therefore unable to accept the argument of the learned Advocate General that the theme of the book is that Mulims are essentially aliens and Hindus must arm themselves to meet their unjust claims.
251. That is in so far as the theme of the book goes. In regard to the use of similies, metaphors, innuendoes, and the references to historical incidents, mythology and Hindu philosophy their number is legion. We gave up keeping their count. But what do they really show? These figures of speech are used and these references are made in the context of the main theme that Gandhiji’s policy of appeasement led to the creation of Pakistan, that he undertook a fast to compel the Government of India to pay the cash-balance of Rs. 55 Crores to Pakistan in the face of an aggression on Kashmir and that the Government conceded an unjust demand of Pakistan in order to save Gandhiji’s life. That life was lost on the altar of appeasement. We will deal with some of the more important metaphors or innuendoes on which reliance is placed by the learned Advocate General but it is always important to bear in mind the context of a metaphor or a simile. A metaphor may mean volumes in one context but you cannot tear it from its Context so that you can speak volumes about it.
252. Then comes the nature of the language used by the author. The book is full of allegories, similies, and other figures of speech which are the favourite vehicle of some literary writers. These have made the author’s prose rich and heavy. Besides, the book is written in a highly sankristised Marathi and indeed Mr. Vinod Kumar Seth, Under Secretary (Home), Delhi Administration, who has authenticated the order of forfeiture, says in para 21 of his affidavit dated the 14th October 1968 that “…..with his knowledge of Sanskrit, the Lt. Governor could himself read and follow the gist of whatever is written in Marathi in a sanskritised literary style”. The Lt. Governor had of course the English translation before him when the second order of forfeiture was passed. The point to note is that the language of the book is not quite easy to assimilate. The author has used many new parallels to establish Marathi words, which on occasions are distracting. The book is priced at rupees twelve.
253. We have a fair acquaintance with the Marathi language but we must frankly confess that many a passage had to be read with more than ordinary care in order to appreciate why it is said to be of an objectionable nature. A common reader has, we suppose neither the leisure nor the learning to digest the wealth of works which the book contains. He shall have to delve deep into the book to resurrect some stray incendiary material.
254. The last point of relevance is the moral, if any, of the story. We think the story has no moral, except perhaps that a policy of appeasement can never bring benefit to the country at large. One may perhaps attribute some such process of thinking to the author: ‘Gandhiji appeased the Muslims and the country was partitioned. The partition brought in its wake tears and bloodshed. It also raised thorny questions and in solving them the same policy was pursued as for example, in paying the cash-balances to Pakistan. The last straw weighed and Gandhiji was murdered. Such are the consequences of the policy of appeasement.’ We said that this ‘perhaps’ could be the moral of the story, because the author does not really want to draw any moral. He has emphasised, time and again, that he wanted to portray before the public the catastrophic event in its historical setting, so that the public may know why the event happened. He also says that if the people were told the genesis of the event, they might perhaps understand him better and accept him back in society. He, his wife and children can then rehabilitate themselves in society–a society which spurned him, which shunned them.
255. Applying these broad tests, the book read as a whole cannot be held to contain matter which promotes feelings of enmity and hatred between Hindus and Muslims in India. That however is but one aspect of the matter. Specific objection is taken to as many as fifty-two passages in the book and we must proceed to a consideration of the more important of them. We consider it unnecessary to deal with each and every passage at length because, as we have shown earlier, the passages to which objection is taken cannot really be correlated to any contemporary problem touching the co-existence of the two communities. Partition of the country was an unparalled event and unquestionably it brought untold sufferings to Hindus and Muslims alike. A large majority of passages, referred to in the order of forfeiture, contain an assessment of the facts and events which led to the partition, the miseries it caused and the supposed connection between it and the death of Gandhiji. We cannot tear those passages from their context.
256. One of the important passages which must now be considered is in the preface: ‘Search’. We have already reproduced the entire nine or ten paragraphs from the preface to which objection is taken on the ground that they promote feelings of enmity and hatred between Hindus and Muslims in India. Putting it very briefly, what the publisher says is that Gandhiji’s murder was not committed by an insane or ignorant person that persons who were connected with the murder loved their mother country as deeply as any one else did, and that the reason of the murder was the policy of appeasement adopted by Gandhiji in regard to the Muslims, which resulted in the partition of the country. The concluding five paragraphs of the preface to which a strong exception has been taken by the learned Advocate General show that the lament of the publisher is that a glorious country like India was divided in two parts solely as a result of cowardly statesmanship. The publisher says that Gandhiji and Nehru will be remembered, that Savarkar will be definitely remembered that Nathuram Godse may perhaps be faintly remembered but in different contexts. What is conveyed to the readers by this is, and this is the very thesis of the writer, that the assassin of Gandhiji did not commit the murder for any personal motives. He did so because he did not want the country to be partitioned and Gandhiji’s policy of appeasement inevitably led to the division of the country. It may perhaps be possible to read an insinuation in a part of the preface that Gandhiji will be remembered more as a person who was responsible for the partition of the country but such an insinuation cannot be reasonably construed as promoting enmity and hatred between Hindus and Muslims. When the publisher says that Savarkar will be remembered, what is being conveyed to the readers is that Savarkar who always stood for one and undivided India and who had strong differences with Gandhiji on the question of making concessions to Muslims will be remembered by those who lost their homes and hearths in the bloodshed which accompanied partition. Nathuram Godse, says the publisher, may perhaps be remembered and here what is being conveyed to the readers is that Nathuram stood for the integrity of the country and he might be remembered as a person who committed the murder of Gandhiji because his policy of appeasement led to the partition of the country.
257. We must make it plain that we should not be taken as expressing our agreement with the views of the publisher or of the writer. The question before us is not whether the assessment made by the publisher or the writer of the historical situation is strictly correct. One might have an honest difference of opinion in regard to the views expressed by the publisher and the writer that Gandhiji’s policy of appeasing the Muslims led to the partition of the country. In fact, if it were open to us to express our own view of the situation, we should have said that no historian can overlook that Gandhiji saved the lives of hundreds and thousands of Hindus and Muslims. The two countries which at one time were part of one nation might have seen even greater miseries but for the saintly wisdom, courage and sacrifice of Gandhiji. That however is beside the point. The charge is that the book contains matter which promotes feelings of enmity and hatred between Hindus and Muslims in India and we have to examine whether the charge is proved.
258. It was urged by the learned Advocate General that the claim made by the publisher and the author that the book is a ‘search for the truth’ and that they were depicting history is wholly unfounded. That is the avowed object of the book, its real object according to the Advocate General being to condemn Gandhiji, thus to condemn everything that Gandhiji stood for and to glorify Nathuram and the other accused. It seems to us difficult to accept this argument. If the real object of the book must be considered, that object seems to us to be to emphasise that Gandhiji wrongly pursued the policy of appeasing the Muslims, that it was in pursuance of that policy that he compelled the Government of India to revoke its decision to withhold the payment of cash-balances to Pakistan and that this policy of appeasement was responsible for the incalculable miseries which the partition brought in its wake. The object of the book is not to pervert history and glorify Nathuram so as to promote feelings of enmity and hatred between Hindus and Muslims in India.
259. Since we are on this point, we might refer to the controversy raised before us as to whether the connection which the author seeks to establish between the fast which Gandhiji undertook and the payment of cash-balances to Pakistan is justified as a matter of history. The learned Advocate General urges that Gandhiji undertook his fast for different reasons altogether and therefore the author must be held to have perverted a historical fact for his own purposes. We are unable to agree. In the second chapter, the author has dealt with the question regarding the payment of cash-balances to Pakistan. He says at page 19 that the liability to pay the amount should not have raised any controversy normally, but the question regarding the payment of cash-balances became Ultimately connected with the invasion of Kashmir by Pakistani tribesmen and the endorsement of that aggression by the Pakistan Government. At pages 20, 21 and 23 of the book the author has reproduced extracts from ‘Indian Information’ dated the 2nd of February. 1948 from which it is clear that Sardar Vallabhabhai Patel and Mr. Shanmukham Chetti were clearlv of the view that the cash-balances should not be paid unless the Kashmir affair was settled. In fact, the latter who was then the Finance Minister said that India would not be deterred from the right path by a campaign of “hectoring, bullying and scandalising” on the part of responsible ministers of a neighbouring country, meaning thereby Pakistan. The extract quoted from ‘Indian Information’ at page 23 shows that the Government declared in clear terms that the decision not to pay the cash-balances was being withdrawn and the financial agreement with Pakistan was being implemented immediately in view of the appeal made by Gandhiji to the nation. The Prime Minister also issued a notification in which it was stated that the decision to pay the cash balances was taken after a most careful thought and after consultation with Gandhiji.
260. If relying on this data, the author said that Gandhiji was responsible for persuading the Government of India to pay the cash-balances to Pakistan in the face of aggression on Kashmir, we do not think that one could conclude that historical facts have been perverted by the author to suit his own purpose. Our attention was drawn by Counsel on both sides to many a book touching the life of Gandhiji and one such book is ‘Mahatma Gandhi, The Last Phase’ by Pyarelal. The second volume of the book begins with the chapter ‘The Shadow of Partition’ and it deals in great details with the circumstances in which the partition of the country took place. In Chapter XXIII, ‘Rock of Ages Cleft For Me’, the author deals with the question of payment of cash-balances to Pakistan and the fast undertaken by Gandhiji. At page 699 of the book, the author refers to the decision of the Government of India to defer the payment of the amount to Pakistan. On the 6th January. 1948. Gandhiji discussed the question with Lord Mountbatten who was then the Governor General of India and the latter said that it would be a dishonourable act if the Indian Government retained the amount. Thereafter, some Maulanas of Delhi saw Gandhiji on the 11th of January and complained of the harassment to which Muslims were subjected by Hindus. In his prayer meeting of the 11th. Gandhiji made a reference to the talk he had with the Maulanas. In the prayer meeting of the 12th, Gandhiji announced his decision to fast unto death “unless the madness in Delhi ceased”. The fast began on the 13th. At page 707 of the book Pyarelal says: “Some people had complained that the Mahatma had sympathy for the Muslims only and had undertaken the fast for their sake. Gandhiji answered that in a sense they were right. All his life he had stood, as everyone should stand, for minorities or those in need. Pakistan had resulted in depriving the Muslims of the Union of their pride and self-confidence. It hurt him to think that this should be so. It weakened the foundations of a State to have any class of people lose self-confidence. His fast was against the Muslims, too, in the sense that it should enable them to stand up to their Hindu and Shikh brethren.”
261. At page 711 of the book Pyarelal says that within twenty-four hours of the commencement of the fast, the Cabinet of the Indian Union met on the lawns of Birla House round Gandhiji’s fasting bed to consider afresh the issue of Pakistan’s share of the cash-balances. On the 15th the Government of India announced its decision to pay the sum of rupees fifty-five crores immediately. Pyarelal says at page 719 that in regard to this decision of the Government of India Gandhiji said that the motive behind that decision “…… was my fast. It changed the whole outlook. Without the fast, they could not go beyond what the law permitted and required them to do……” At page 720 the author says that the revocation of the Cabinet decision in regard to the release of Pakistan’s share of the cash-balances proved for Sardar Patel the proverbial last straw on the camel’s back.
262. We have referred to the account given by Pyarelal at some length, because time and again it was argued before us that the petitioner has distorted history to suit his own purpose and that the account given by him of many a historical event like the crucial fast contains only half-truths. In our opinion. 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 fast, history has been distorted by him. It is also necessary to remember that if the claim of an author that he is a 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.
263. We will now consider a group of objectionable passages in which Nathuram, it is alleged, is purposefully glorified. These passages occur at pages 60, 62, 63, 64, 86, 87, 88, 89, 90, 154, 173, 203, 224, 225, 226, 228, 229 and 231. We have already reproduced everyone of these passages while giving an analysis of the contents of the book. These passages show that Nathuram was generally well received. Every one in the country with whom Nathuram came into contact, from the Court which tried him to the convicts whom he met in the jail had sympathy for his cause and regard for him as a person. The author says that the Jail Authorities treated Nathuram with courtesy and consideration, that the Judges who tried him had a word of praise for him, that women belonging to respectable families who were present in the Court-room sobbed and wept, that they knitted sweaters for him imploring him to use them in the biting cold of Simla, that people were prepared to break the jail regulations in order to meet him, that his relatives who had gone to see him were not charged any fare by the Tongawallas and the boarding houses and that the passengers travelling in railways gave ready accommodation to those relatives when they came to know that they were on their way to meet Nathuram.
264. Three other passages might also be referred to in this connection, namely, those occurring at pages 52, 143 and 213. In those passages the author has expressed his sense of gratitude to Sardar Vallabhabhai Patel on account of whose courtesy he and the other accused who were convicted in the Gandhi-murder trial were placed in ‘B’ Class. These passages are objected to on the ground that the intention of the writer is to create an impression on the minds of his readers that even an inveterate Congressman like Sardar Patel had sympathy for the cause for which Nathuram stood.
265. Now in regard to the first group of these passages, it is necessary to mention that the instances which the author has cited are not shown to be imaginary and we see no reason why they should be dismissed as mere figments of the author’s imagination. In fact, some of the more important references to how Nathuram was received, are borne out by what Mr. G.D. Khosla, who was one of the three Judges of the Punjab High Court which heard the appeal has said in his book “The murder of the Mahalma”. At page 267 of the book he says: “The highlight of the appeal before us was the discourse delivered by Nathuram Godse in his defence.” At page 273, it is stated that Nathuram had made full use of his talents during the trial and at the hearing of the appeal and that he made moving references to historical events and ended his peroration on a high note of emotion, reciting verses from Bhagwadgita. At page 274, the author says: “The audience was visibly and audibly moved. There was a deep silence when he ceased speaking. Many women were in tears and men were coughing and searching for their handkerchiefs. The silence was accentuated and made deeper by the sound of an occasional subdued sniff or a muffled cough. It seemed to me that I was taking part in some kind of melodrama or in a scene out of a Hollywood feature film. Once or twice I had interrupted Godse and pointed out the irrelevance of what he was saying, but my colleagues seemed inclined to hear him and the audience most certainly thought that Godse’s performance was the only worthwhile part of the lengthy proceedings…… I have ….no doubt that had the audience of that day been constituted into a jury and entrusted with the task of deciding Godse’s appeal, they would have brought in a verdict of ‘not guilty’ by an overwhelming majority.”
266. In regard to the three passages which contain references to Sardar Vallabhabhai Patel, it is clear both from Pyarelal’s book and Maulana Abdul Kalam Azad’s “India Wins Freedom” that Sardar Patel was stoutly opposed to the payment of cash-balances to Pakistan and he disliked the decision of Gandhiji to undertake a fast unto death. For example, at page 720, Volume II, Pyarelal says that the revocation of the Cabinet decision in regard to the release of Pakistan’s share of the cash-balances proved for Sardar Patel to be the proverbial last straw on the camel’s back. At page 216 of his book, Maulana Azad says: “One thing which weighed heavily on Gandhiji’s mind was the attitude of Sardar Patel……. Patel had not only failed to give protection to Muslims, but he lightheartedly dismissed any complaint made on this account.” The author proceeds that after Gandhiii declared that he would go on fast, Sardar Patel complained that there was no reason for such a fast and that Gandhiji was acting as if he, that is, Sardar Patel was responsible for the murder of Muslims.
267. These extracts show that though Sardar Patel was trusted lieutenant of Gandhiji, differences had arisen between them in regard to matters connected with the partition of the country. It is not possible to say whether the inference that the accused were classified as ‘B’ Class prisoners owing to the courtesy shown by Sardar Patel is justified, but we see no clear reason to hold that it is necessarily untrue. Besides, if the convicts in the Gandhi-murder trial were classified as ‘B’ Class prisoners, one could not deduce that assuming that a person in the position of Sardar Patel was responsible for the concession, he in any sense felt that the act of Nathuram was praise-worthy. In fact, the author has said at several places in the book (see, for example, page 313) that the fact that Sardar Patel had made a political assessment of the act of Nathuram cannot mean that he sympathised with that act.
268. The argument of the learned Advocate General is that the object of the author in glorifying Nathuram is to show that he and Gandhiji were on the same pedestal, that in fact Nathuram was on a higher pedestal, that he was like Arjun fighting evil at the call of duty and that his doubts resolved and his mind became composed as Arjun’s became after listening to the discourse of Srikrishna. Now, there is no question that the one thread which runs through the entire book is that Nathuram’s act in assassinating Gandhiji should be dissociated from the motives which accompanied it and that though the act may be condemned, the motive could be praise-worthy. Nathuram, says the author, loved his motherland no less than anyone else and he committed the murder of Gandhiii out of that love. He thought that Gandhiji’s policy of appeasement of Muslims had led to the partition of the country and had driven the Indian Government to give the other concessions to Pakistan after the division of the country.
269. We, however, think that the inference which the learned Advocate General wants us to draw is rather farfetched. The inference which is pressed upon us is that by demonstrating that the attack on Gandhiji was justified, what the author wants to convey is that the attack on Gandhiji is really an attack on all the things that Gandhiji stood for. It is for this purpose that, according to the learned Advocate General, Nathuram has been gradually built up by the author. In our opinion, such an inference would require a dissection far too meticulous to be within the reasonable bounds of a common reader. What a common reader would feel about the theme is that Nathuram committed the murder of Gandhiji, not out of any personal motives but because he felt that the country was partitioned on account of Gandhiji’s policy of appeasement and the partition had caused untold sufferings.
270. The next group of passages to which reference must be made appear at pages 76, 117 and 129 of the book. The argument is that these passages contain matter by which the author intends to convey to his readers that Muslims are villains of the peace, that they are opposed to Indian unity and that they were also opposed to the freedom movement. Now, the passage at page 76 occurs in the fifth chapter “Nathuram ‘O’ Ram”. The author says that the Muslims were sometimes indifferent to the movement for freedom and sometimes they were even opposed to it. The view of the Rashtriya Swayamsevak Sangh was that Hindus should strive to be well-organised and powerful so that they would be able to meet the obstructive tactics of Muslims. Savarkar, says the author, had put this point of view epigrammatically by saying “if you come, with you……”. Now in this chapter the author has largely dealt with the early years of Nathuram, how he came into contact with Savarkar and how he was attracted by Savarkar’s philosophy. There is no doubt that the author says that Muslims were opposed to India winning her freedom and that the Sangh was anxious to build up a powerful Hindu society so as to meet all obstacles in the way of freedom. We are unable, however, to take the view that such stray passages could promote feelings of enmity and hatred between Hindus and Muslims in India. As a matter of history, the view was widely held that some members of the Muslim League were opposed to the British quitting the country and handing it over in the charge of the majority community in India. We do not think that a reference to such a fact several years after India attained independence is capable of promoting feeling of enmity or hatred between the two communities.
271. The passage at page 117 refers to the evidence given by the approver. Badge, to the effect that in a meeting which had taken place in about 1946-47, Savarkar had stated: “The policy of the Congress is detrimental to the interests of Hindus, Muslims should be economically boycotted and if they committed an act of aggression, Hindus should prepare themselves to resist it. Hindus should therefore learn how to use the arms”. After reproducing this portion from Badge’s evidence, the author has stated that Savarkar denied that any such meeting had taken place but he added that even assuming that it had taken place, no exception could be taken to anything which he is alleged to have said in the meeting. We think that far more is being read in such passages than is intended by the author or than can be reasonably inferred by the readers. The context in which these extracts are reproduced in the eighth chapter has to be borne in mind and the context is that the author wants to establish that Savarkar was implicated in the trial wholly out of ulterior motives. There were deep-seated differences between the Congress and the Hindu Mahasabha and the author says that the Government thought that the murder of Gandhiji was a good opportunity for involving Savarkar in the charge of conspiracy- Badge’s evidence must therefore be read in the context that the author wants to show to what extent the witness was persuaded to go in order to implicate Savarkar. A reproduction of what Badge stated in his evidence and how Savarkar answered it cannot in our opinion be read as something which is likely to inflame the communal passions.
272. In the passage which occurs at page 129 extracts are reproduced from an article which Savarkar wrote on the 27th of January, 1927. Savarkar had stated; “The truth is that the majority of Muslims do not consider India as their own country and the existence of Hindus therein pricks them like a thorn. This feeling is at the root of the conflict. Except for some sensible Muslims, the others appear to be anxious that like Turkey, Iran and Afghanistan, Hindustan should also become an Islam nation and if that happens, they would love the country as their own”. Savarkar further stated that it was realised that Gandhiji was a Mahatma and therefore he was above party politics. But just as leaning towards one’s own community is to be partial, leaning towards another community is also known by the name of partiality. The remedy for all this, according to the author, was to teach the Muslims to develop a national consciousness.
273. Now there is no doubt that like the passage at page 76, this extract from Savarkar’s article contains a criticism of the attitude of Muslims towards India. It must however be remembered that what the author has reproduced is an extract from an article written by Savarkar in the year 1927 and if the entire chapter is read as a whole, it would be clear that the extract is reproduced in order to explain the basic differences between the Congress on the one hand and the Hindu Mahasabha on the other. The author obviously wants to give a background of the differences which assumed a sharp form after Savarkar was released from jail in 1937. The author says that since 1937 Savarkar thought it necessary to undertake one more movement in addition to the freedom movement. He undertook the task of showing how wrong the policy of one-sided ‘Ahimsa’ was.
274. We have stated more than once that the book does not profess to deal with any contemporary problem touching the relations between Hindus and Muslims in India. The policy pursued by Gandhiji, the consequent division of the country and the countless miseries which were inflicted on the people are what the author wants to put before his readers. He of course puts something more before his readers and that is that Nathuram’s act was not the act of an insane person, that the murder of Gandhiji was a political murder and that an assessment of Nathuram as an individual should be made apart from Nathuram as a murderer.
275. Reliance is then placed on passages occurring at pages 22, 24, 100 and 101 as showing that the Indian National Congress was consistently partial to Muslims under the leadership of Gandhiji and that the interests of the Hindus were totally sacrificed. We have already dealt with the passage at page 22 which refers to the decision of Gandhiji to undertake the fast after the Government of India had declared that the cash-balances would be withheld. The author says that the utterances of Gandhiji would show that his policy was that the Muslim nation and the Muslims should be appeased even if it caused detriment to Hindus. The passage at page 24 refers to the orders of security which were passed against the journals, Hindurashtra and Agrani, conducted by Nathuram and Apte. The author says that the under-current of the articles written by Nathuram and Apte was that Pakistan was after-all a Muslim nation and one could therefore understand the harassment of Hindus which was taking place there. But the harassment of Hindus in India was taken place because Hindus were opposed to Gandhiji’s policy that the Muslims should be appeased at any cost. The passages at pages 100 and 101 refer to the attitude of the Indian Government. According to the author, the Government was aware that the country was heading for partition and that the Hindus might create obstacles in the creation of Pakistan. That is why orders of security were passed one after another against newspapers like Agrani. The author further says that Gandhiji was anxious to persuade everyone along with the Congressmen, that the policy Of appeasement was the best policy. The author then refers to the demonstration organized by Apte when Gandhiji was living in the sweepers’ colony at Delhi. The author says that the object of the demonstration was to convey to Gandhiji that what belongs to Hindus should not be given to Muslims, that Muslims would not be satisfied with such concessions, that the country should not be partitioned, that lessons should be learnt from the slaughter of Hindus in Noakhali that one should not be cowed down by the threats given by Muslims and that if an appeal was made to younger people, they would he prepared to offer resistance by sacrificing their very lives.
276. It is really unnecessary to say the same thing over again in regard to everyone of these passages. We have given our anxious consideration to all these passages and it seems to us difficult, to take the view that they contain matter which would promote feelings of enmity and hatred between Hindus and Muslims in India. It is only necessary to emphasise that it must not be ignored that many a passage in the book says that the demand of Hindu Sabha was that what belongs to Hindus should not be taken away and gifted to the Muslims. The basic objection of the author is really to the creation of a separate State of Pakistan and in fact, the whole of the seventh chapter “Throw My Ashes Into The Indus” in which passages at pages 100 and 101 occur contains an exposition of Apte’s attitude in regard to the creation of a separate State of Pakistan. The author says that after it was clear that the sentence of death was to be executed, Nathuram and Apte were asked to express their final desire.
They said that their one desire was that their ashes should be immersed in the Indus. The account of the conversation between the author and Apte in regard to this matter shows the reasons why such a desire was expressed. The Indus which had become red by bloodshed was once a part of India and Nathuram and Apte desired that their ashes should be treasured so that they could be immersed in the Indus, if at any time in the future, the Indus again became a part of India. We are unable to appreciate that the observations made by the author in the context of this attitude can promote feelings of enmity and hatred between Hindus and Muslims in India. The chapter contains, if anything an exhortation that what once belonged to India, and had become a part of Pakistan, should be won back by India. The Muslims who are citizens of India are not likely to feel aggrieved by any such exhortation, because such a problem arising out of attempted resurrection of lost territory is political, not communal.
277. Our attention was then invited to passages at pp. 29, 57, 86, 91, 137, 171, 172, 203, 221, 224 and 225 of the book as showing that before and after the partition the Hindu community had to undergo great sufferings on account of the policy adopted by the Congress under the leadership of Gandhiji that the Muslims should be appeased at all costs. The passages at pages 20, 21, 101, 128, 129 130, 131, 144 and 250 were relied upon as showing that the danger to India’s security, unity and freedom still persists because of the creation and existence of Pakistan, as the Muslims in India are generally Pakistanis at heart, that the Government is still persisting in the policy of appeasing Muslims and that the Muslims exploit that policy. Lastly, reliance is placed on the passages occurring at pages 5, 78, 35, 48, 49, 57, 68, 50, 63, 80, 81, 82, 83, 89, 91, 148, 149, 156, 189, 220 and 221 as showing that a political assassination in such circumstances is justified and praise worthy and that even bloody action of revenge against Pakistan and against those who are Pakistanis at heart is justified and would be praiseworthy. It is said that the passages at pages 5 and 78 from out of the passages cited above justify the crime as of a high moral quality and worthy of emulation. To praise the motive of an act as it has been praised at page 78 is said to be an invitation to the common man to emulate the act.
278. We have read and re-read these passages but we are unbale to share the view that they are objectionable on the ground stated in the order of forfeiture. The inferences which are sought to be drawn from the passages seem to us far-fetched. That in our opinion, is not how the common reader will react to the passages. For example, if one turns to the passage at page 221 it is an extract from a letter which Nathuram wrote to his parents from the Ambala Jail immediately before he was executed on the 15th of November, 1949. He says that he was happy to know that they had decided not to go to Ambala to meet him and that he had taken the courage to write what was a last letter to them, not for the purpose of assuaging their grief. He says that Bhagwan Srikrishna, who had preached Geeta had killed an Aryan King like Shishupal with his Sudarshan Chakra, not on the battle field but at the place where the Rajasuya Yagna was performed. Who could say whether Shrikrishna had committed a sin or not? Both in war and otherwise he had killed many an egoistic and important person for the welfare of the world. He had also exhorted Arjun to kill his own kith and kin.
279. Now, passages like this have a bearing on the thesis of the writer that criminality attaching to the act of a murderer should be assessed apart from the motive behind the act and the meritoriousness otherwise of the individual who does the act. 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. We think not. We find ourselves wholly unable to take the view that the several passages on which the learned Advocate General relies are capable of promoting feelings of enmity and hatred between Hindus and Muslims in India. A passage here or a passage there, 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. If the offending passages are considered in this light, the book shall have to be cleared of the charge levelled against it.
280. The Advocate General says that the language of the book will find an echo in many hearts, that the book inflames the feelings of Hindus against the Muslims by telling them that the Muslims are being pampered by the Government and that the over-all effect of the book on the common man will be that Gandhiji was a hard-hearted monster who was concerned with the good of Muslims only. Now it may be right that the book will find an echo in many hearts for its language is powerful and its scheme is purposeful. But, frankly, the total effect of the book would not be to inflame communal passions. It contains no appeal to those passions–no direct appeal certainly and the supposed veiled meaning is much too veiled for the common reader. What will linger in his mind after he keeps down the book is that the integrity of the country should not have been broken and that Gandhiji’s policy of appeasement led to partition and the untold miseries which it brought in its wake. What will move the reader is the account of those miseries, and more so the account of the sufferings of the aged parents, the wife and the helpless children of the author.
281. Our attention was invited at great length to a part of the eighth chapter which deals with the political philosophy of Dr. Savarkar. It was urged that this chapter is a mere pretext for accusing Muslims of anti-Indian feelings and for spreading the philosophy of Savarkar. We have already dealt with the different passages occurring in this chapter, but it would be necessary to draw pointed attention to a passage which occurs at page 144 of the book. It reads thus: “The Government had decided to entrap the burning patriot that Savarkar was, with a thoroughly unrealistic pose. It looked as if the Government thought that a war had broken out between a Muslim nation and a Hindu nation, that the commander of the Muslim nation had been killed and that the Muslim nation, aflame with a revengeful feeling, that just as the Hindu nation had killed their commander so will they kill theirs, had vowed to entrap the commander of the Hindu nation,” A great deal was said about this involved passage but we are unable to read it as containing matter which would promote feelings of enmity and hatred between Hindus and Muslims. The author gives his own reasons why Savarkar was implicated in the charge of conspiracy. It is in that context that he says that the Government was full of revenge towards Savarkar. Therefore, it took a wholly unrealistic attitude that a war, as it were, had broken out between a Muslim nation and a Hindu nation, that Gandhiji, the commander of the Muslim nation had been killed and that the Muslim nation, inspired by a feeling of revenge that just as the Hindu nation had killed their commander so will they kill theirs, had resolved to capture Savarkar, the commander of the Hindu nation. This really reflects on the attitude of the Government and we find it hard to accept that this passage or such passages contain an appeal to communal sentiments. The emphasis in the passage is on the partial attitude adopted by the Government. The passage may therefore excite disrespect towards Government but that is a different thing altogether.
282. Finally, reliance was placed on the reproduction of quotations of Gandhiji and his assassin, on the back of the jacket of the book. It was urged that what the author wants to emphasise by holding the two quotations in sharp contrast, is that the lives of Gandhiji and Nathuram could be summed up in one sentence: “Gandhiji was the breaker of his word while Nathuram was the lover of his country who willingly laid down his life for it.” This, in our opinion, has no relevance on the accusation that the book promotes communal enmity and hatred. The quotations are chosen to advance the thesis that Gandhiji’s pledge that the country shall at no cost be partitioned was eventually broken in order to appease the Muslims and that Nathuram committed Gandhiji’s murder not out of personal motives but for the reason that the partition which brought misery to so many was the result of Gandhiji’s policy.
283. This finishes the assessment of the offending passages. True it is, that in passages which occur at pages 76, 117, 129, 144 and 221, the author has given a strong expression to his views. But these perhaps are the only passages, in a book of 320 pages, which reflect on the attitude of the Muslims. Besides, one must read them in their proper context and of that we have said enough.
284. It must be mentioned that the last four chapters of the book, which are as much a part of it as any other chapter are wholly unrelated to the attitude of Muslims to the attainment of freedom or the attitude of Gandhiji to the thorny questions of Hindu-Muslim amity. We would also like to draw attention to what the author has stated in his foreword, “The First Page”. He says: “Neither Gandhiji nor Nathuram nor Apte is now alive. Death puts an end to all enmity and therefore if anyone had any grievance against Gandhiji during his lifetime, it would be improper to entertain any bitterness towards him after his death, I used to participate in the meetings of Gandhi Jayanti in the jail. I used even to organize such meetings. Today I do not feel embarrassed in saying this………”. In the eighth chapter on Savarkar, the author has stated at the top of page 130 that Savarkar, never desired that the Hindus should be given any higher rights than the Muslims. What Savarkar used to say was that the Hindus should not be deprived of their rights and those rights should not be conferred on others. At page 220 which occurs in the twelfth chapter “Journey in Darkness” the author says that Nathuram and Apte had a certain philosophy and they had become so one with that philosophy that they considered their own lives as insignificant before it. The author continues: Their philosophy may be right or wrong. This is not the place to decide that question. Nor would it be proper for me to express any opinion about it. I am after-all a convict in the episode relating to Gandhiji’s assassination and howsoever I may try, my discussion of that subject cannot ever be impartial.” At page 279 of the book which occurs in the chapter “Struggle for Survival”, the author says that the attitude of the accused in the Gandhi trial was not that there was a foreign regime or that the Government did not belong to them. The motive behind the unlawful act was only this, that in order to strengthen the frontiers of freedom the Government should become stern, it should learn to protect itself, it should not submit to injustice, it should not be cowed down by threats and it should not run after a mirage. Finally, at page 290 which occurs in the same chapter, the author says that at the time of the Chinese Aggression he used to donate blood in the jail without any expectation in return. He desired that it should be realised that the life of an individual was subordinate and that the prime necessity was to strengthen the country. While considering the question whether the book as a whole is capable of creating the impact or impression which is canvassed before us, these passages cannot be forgotten.
285. In our opinion, therefore, the passages which are mentioned in the order of forfeiture dated the 26th September, 1968 cannot be held either by themselves or as read in the context of the book as a whole to promote feelings of enmity and hatred between Hindus and Muslims in India. Such a conclusion seems to us impossible to take on any reasonable view of the matter.
286. The question now is: on these findings, what relief is the petitioner entitled to? We have held that we have no jurisdiction to entertain the petition in so far as it purports to be under Section 99B of the Code of Criminal Procedure. Obviously, therefore, we cannot set aside the order of forfeiture under Section 99D of the Code, though we are not satisfied that the book contains matter which promotes feelings of enmity and hatred between Hindus and Muslims in India. The petition is however also filed under Article 226 of the Constitution and the relief which the petitioner seeks is that: (i) the order passed by the Delhi Administration, the 2nd Respondent, on the 26th September, 1968, forfeiting the book should be quashed and set aside, (ii) it should be declared that all steps taken pursuant to the said order are illegal and inoperative, (iii) the notification of the 3rd Respondent, the Government of Maharashtra, dated the 17th October, 1968, republishing the order of the 2nd Respondent be quashed and set aside, (iv) the respondents be restrained from implementing the order passed by the 2nd respondent and republished by the 3rd respondent and that (v) such further and other reliefs be granted as the circumstances of the case may warrant. What we have to consider is whether these reliefs or any of them can be granted to the petitioner under Article 226 of the Constitution.
287. It may be recalled that we were invited by both the sides to consider the merits of the book, regardless of our conclusion on the other legal and constitutional” questions, including the question of jurisdiction under Section 99B of the Code of Criminal Procedure. Though it was not stated expressly by the learned Advocate General that if we found that the order of forfeiture is not justified on merits, we should grant appropriate relief to the petitioner, we suppose that the purpose of asking us to consider the merits of the book in any event, was to enable us to follow up our conclusion by passing a final order consistently with our view about the merits of the book. For example, if we were to come to the conclusion that the order of forfeiture is justified on merits, Counsel for the petitioner could not have complained if, consistently with our conclusion, we had dismissed the petition in so far as it purports to be under Article 226 also. That, we take it, would be the necessary consequence of his having asked us to go into the merits of the charge that the book contains objectionable matter. Now that we have taken the view that the order of forfeiture is not justified on merits, we must, consistently with that view, grant appropriate relief to the petitioner under Article 226, subject of course to the reasons indicated by the Advocate General as to why we should refuse to exercise our discretionary powers under that article.
288. Before, however, considering those reasons, it would not be out of place to examine briefly the nature and extent of our jurisdiction under Article 226. Such an examination will be useful to show how, whether or not the parties submitted with certain reservations to our jurisdiction under Article 226, it would be open to us, in the circumstances of the case, to grant relief to the petitioner under that article.
289. As observed in Calcutta Gas Co. (Proprietary) Ltd. v. State of West Bengal, Article 226 of the Constitution confers a very wide power on the High Courts to issue directions and writs of the nature mentioned therein for the enforcement of any of the rights conferred by Part III, that is to say, the fundamental rights or for any other purpose. Therefore, persons other than those claiming fundamental rights can also approach the High Court seeking a relief thereunder.
290. Further, it is no longer necessary to “look back to the early history or the procedural technicalities of these rights in English law, nor feel oppressed by any difference or change of opinion expressed in particular cases by English Judges. We can make an order or issue a writ in the nature of certiorari in all appropriate cases and in appropriate manner, so long as we keep to the broad and fundamental principles that regulate the exercise of jurisdiction in the matter of granting such writs in England”. T. C. Basappa v. T. Nagappa, . This position was reiterated in Dwarka Nath v. I. T. O. Special Circle, ‘D’ Ward, where it was observed that Article 226 “is couched in a comprehensive phraseology and it ex facie confers a wide power on the High Court to reach injustice wherever it is found……
It can issue writs in the nature of prerogative writs as understood in England, but the scope of those writs also is widened by the use of the expression ‘nature’ which expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them. That apart, High Courts can also issue directions, orders or writs other than the prerogative writs. The High Courts are enabled to mould the reliefs to meet the peculiar and complicated requirements of this country.” But, to say that Article 226 confers very wide powers on the High Courts to reach injustice wherever it is found is “not to say that the High Courts can function arbitrarily under this article. Some limitations are Implicit in the article and others may be evolved to direct the article through defined channels.”
291. The limitations on the power of the High Court to issue writs, orders or directions either for the enforcement of fundamental rights or for any other purpose are apparent from decisions like Veerapa v. Raman & Raman Ltd., , Sangram Singh v. Election Tribunal, Kotah, and Thansingh v. Supdt. of Taxes, . In Veerappa’s case it was held that however extensive the jurisdiction of the High Court under Article 226 may be, it is not so wide or large as to enable the High Court to convert itself into a Court of Appeal and examine for itself the correctness of the decision impugned and decide what is the proper view to be taken or the order to be made. In Sangram Singh’s case, it was held that though no limits can be placed upon the discretionary jurisdiction of the High Courts under Article 226, it must be exercised along recognised lines and not arbitrarily. In the exercise of their jurisdiction under Article 226 therefore, the High Courts could not act as Courts of Appeal or revision to correct mere errors of law, which do not occasion injustice in a broad and general sense. In Thansingh’s case, it was held that the very amplitude of the jurisdiction under Article 226 demands that it will ordinarily be exercised subject to certain self-imposed limitations. Under that article, the High Courts should not generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the right, to enforce which the writ is claimed. Therefore, under Article 226 the High Court does not act as a Court of Appeal.
292. Yet another limitation on the power of the High Court is that ordinarily, the High Court should not entertain a petition under Article 226 if the petitioner has an alternative remedy which, without being unduly onerous, is equally efficacious. That was the view taken in Union of India v. T.R. Varma, at p. 884 where reference is made to two previous decisions of the Supreme Court in Rashid Ahmed v. Municipal Board, Kairana, and K.S. Rashid and Sons v. Income-tax Investigation Commission, . In Rashid Ahmed’s case, it was held that the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs, while in K. S. Rashid and Sons’ case, it was held that if an alternative remedy exists, it will be a sound exercise of discretion to refuse to interfere in a petition under Article 226, unless there are good grounds therefor.
293. It is however necessary to bear in mind, and that is important for our purposes, that the existence of an alternative remedy is no bar to issuing a writ, order or direction for the enforcement of fundamental rights. In Varma’s case, the petitioner was dismissed from service and he challenged the order of dismissal on the ground that it contravened Article 311(2) of the Constitution. Venkatarama Aiyar, J. who delivered the judgment of the Court observes that the point which arose for determination in the case was whether the dismissed servant was denied an opportunity to present his case, which in turn depended mainly on the question whether he was prevented from cross-examining the witnesses who gave evidence in support of the charge. It was said that it was not the practice of the Court to decide matters of that type in a writ petition and therefore the petition was liable to be dismissed on that ground. In K.S. Rashid and Sons case, were filed under Articles 226 and 227 of the Constitution for challenging certain Income-tax investigation proceedings held under Act No. 30 of 1947. It was held that the petitioners had already availed themselves of the remedy provided for under Section 8 (5) of that Act and the reference had already been made to the High Court in terms of that provision which was awaiting decision. Therefore, it was not proper to allow the petitioners to invoke the jurisdiction of the High Court under Article 226.
294. In Himatlal v. State of M. P. the petitioner alleged that his fundamental right under Article 19(1)(g) was infringed. The contention that an alternative remedy was available to the petitioner under the impugned Act and therefore he was disentitled to relief under Article 226 was rejected on the ground that such a contention stood negatived by the decision of the Supreme Court in State of Bombay v. United Motors (India) Ltd., where says Mahajan, C. J. it was held that the principle that a Court will not issue a prerogative writ when an adequate alternative remedy was available does not apply where a party has come to the Court with an allegation that his fundamental right had been infringed and sought relief under Article 226.
295. It was necessary to refer to this aspect of our jurisdiction under Article 226, because the learned Advocate General contended that we should not interfere with the order of forfeiture in the exercise of our jurisdiction under Article 226. He says that the proper remedy for the petitioner to adopt was to approach the Supreme Court under Article 32 of the Constitution. We are unable to accept this argument. As observed by Chagla C. J. in United Motors (India) Ltd. v. State of Bombay. (1953) 55 Bom LR 246 at p. 253 the powers of the Supreme Court under Article 32 and of the High Court under Article 226 are concurrent and if the Supreme Court cannot refuse to interfere in favour of a person who complains of the contravention of fundamental rights, equally so the High Court cannot refuse to entertain the application of a person who comes before it under Article 226 on the ground that his fundamental rights should be protected.
296. It is, in our opinion, clear that the existence of an adequate alternative remedy is a thing to be taken into consideration if the petitioner comes before the Court under Article 226 for the enforcement of other legal rights and it would be a sound exercise of discretion in such a case to refuse to interfere under that article. The petitioner before us, however, complains of the violation of his fundamental rights and so it would be wrong to refuse relief to him on the ground that this is a fit case in which a petition under Article 32 should have been filed before the Supreme Court. According to the Advocate General, the order of forfeiture passed by the 2nd Respondent operates throughout the country and therefore the Supreme Court would be in the best position to decide upon the validity of the order. That, it is said would avoid a conflict of jurisdiction among the different High Courts. Now, in regard to several all-India legislations, the same question would arise but we are not aware that it was ever held that the High Court should refuse to exercise its jurisdiction under Article 226 even if the contravention of a fundamental right is established, because different High Courts might arrive at different conclusions and therfeore, the proper remedy would be to approach the Supreme Court under Article 32.
297. We have upheld the constitutional validity of Section 99A of the Code of Criminal Procedure as also of Section 153A of the Indian Penal Code. We are however of the view, that the paticular order of forfeiture dated the 26th September, 1968 passed by the 2nd Respondent is unconstitutional because it affects the fundamental right of the petitioner under Article 19(1)(a) of the Constitution. It also affects the fundamental right of the publisher under Article 19(1)(g). We have taken this view because it seems to us impossible on any reasonable view to hold that the book “Gandhi-assassination And I” contains matter which promotes feelings of enmity and hatred between Hindus and Muslims in India. The material or data mentioned in the schedule to the order of forfeiture, on which the order is based, cannot reasonably justify the conclusion arrived at by the 2nd Respondent that the book contains matter of an objectionable nature.
298. We therefore allow the petitions, set aside the order of forfeiture dated the 26th September, 1968 passed by the 2nd Respondent and direct that the respondents shall not take any steps in furtherance of the said order. Copies of the book seized by the 5th respondent in pursuance of a search warrant issued by the 4th Respondent, shall be returned to the author and the publisher from whom they were seized. The interim order of restraint passed by us on the 8th of October, 1968, on the application of the 2nd Respondent that further proceedings be held in camera, is hereby vacated.
299. As regards costs, the following facts are relevant. The petitions were argued for seven days on the basis of the earlier order of forfeiture dated the 6th of December, 1967. That order was thereafter superseded by the order of the 26th of September, 1968, so as to cure the defects from which the earlier order was said to suffer. The petitions were thereafter heard for ten days when legal and constitutional questions and the merits of the book were discussed. The petitioner has failed in his contentions that Section 99A of the Code of Criminal Procedure and Section 153A of the Indian Penal Code are unconstitutional and that the order of forfeiture was passed without a proper application of mind. On the other hand, the 2nd Respondent has succeeded in its preliminary objection that this High Court has no jurisdiction to entertain the petitions in so far as they purport to be under Section 99B of the Code of Criminal Procedure. The petitioner has however succeeded on the merits of the matter, which occupied nearly eight out of the ten days.
300. Mr. Paranjpe says that costs must follow the event and therefore the petitioner would be entitled to full costs of the hearing before us. He says that if costs are properly calculated under Chapter XIV, Rule (v) and Chap. XXVII, Rule 11 of the High Court Appellate Side Rules, 1960, the petitioner would be entitled to a sum of Rs. 20,000/- by way of costs. This claim seems to us to be highly exaggerated.
301. Taking into account the facts mentioned above and all the circumstances of the case, the fairest order, in our opinion, would be that the 2nd Respondent shall pay a sum of Rs. 3,000/-to the author and a sum of Rs. 1,000/-to the publisher by way of costs. The other respondents will bear their own costs.
302. Order accordingly.
AIR 1971 Bom 56, (1970) 72 BOMLR 871, 1971 CriLJ 324
Categories: BOMBAY HIGH COURT JUDGMENTS