While lifting the ban on James Laine’s book on Shivaji, the Supreme Court maintained that governments can’t extract stray sentences from portions of a book and decide that the whole book needs to be banned.
Laying out flexible guidelines to test the validity of a ban notification issued under Section 95 of the Criminal Procedure Code, the bench headed by Justice DK Jain, which rejected the state government’s plea for ban on the American author’s book, said: “The effect of the words used in the offending material must be judged from the standards of reasonable, strong-minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view.”
The court, however, sounded a note of caution to authors and publishers courting controversies for publicity. “If the writing is calculated to promote feelings of enmity or hatred, it is no defence to a charge under Section 153-A of the IPC [promoting enmity between different groups on grounds of religion, race, etc.] that the writing contains a truthful kind of past events or is otherwise supported by good authority,” the court said. “Adherence to the strict path of history is not by itself a complete defence to a charge under Section 153-A of the IPC.”
In its judgement, the court said: “The class of readers for whom the book is primarily meant would also be relevant for judging the probable consequences of the writing.”
It was also of the opinion that the intention of the author has to be gathered from the language and content of the offending material.
“If allegations are based on folklore, tradition or history, something in extenuation could perhaps be said for the author.”
The court said banning a book was a “drastic” measure that affected the fundamental right to freedom of speech and expression of citizens.
On Friday, the Maharashtra government lost its plea against the Bombay High Court’s order lifting the ban on James Laine’s book, Shivaji: Hindu King in Islamic India, because the court said it could not prove the grounds of its opinion for banning a book, which in this case was that the book was promoting enmity between different groups.
The court said stating the grounds of its opinion was mandatory and a “total absence” of such statement would vitiate the declaration of forfeiture of the book. The bench said the state’s notification was “too vague” to withstand legal scrutiny.
“The conditions statutorily mandated for exercise of power under Section 95 of the Code [for banning a book] are lacking and therefore, the action of the government cannot be sustained,” the court said in a 36-page verdict.
The state had issued the ban notification under Section 95 of the Criminal Procedure Code on the ground that the circulation of the book containing derogatory references to Shivaji was causing enmity between various communities and had led to acts of violence.
Ordering the ban, it had said that further circulation of the book was likely to breach peace in particular between those who revered Shivaji and those who may not.
The apex court found fault with this argument. “We are unable to persuade ourselves to agree with learned counsel for the appellants [state]… It is manifest that the notification does not identify the communities between which the book had caused or is likely to cause enmity.
Therefore, it cannot be found out from the notification as to which communities got outraged by the publication of the book or it had caused hatred and animosity between particular communities or groups.”
It also took note of the fact that the Maharashtra associate advocate general could not produce material to determine which groups did not revere Shivaji.