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HindustanTimes Thu,18 Sep 2014

Ban may not withstand judicial scrutiny

Satya Prakash, Hindustan Times  New Delhi, March 30, 2011
First Published: 01:16 IST(30/3/2011) | Last Updated: 01:18 IST(30/3/2011)

The Maharashtra government's hasty announcement to initiate steps to ban the sale of Joseph Lelyveld's book is regressive and may not withstand judicial scrutiny.

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Perhaps, the state government hasn't learnt any lessons from the July 2010 Supreme Court decision striking down its notification banning American author James W Laine's controversial Book - Shivaji: Hindu King in Islamic India'.

Maintaining that banning a book was a "drastic" measure affecting the fundamental right to freedom of speech and expression of citizens, the apex court had ruled in Laine's case that governments cannot extract stray sentences from a book and conclude that the said book as a whole needed to be banned and forfeited.

"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, a bench headed by Justice DK Jain had said on December 20, 2006.

"The class of readers for whom the book is primarily meant would also be relevant for judging the probable consequences of writing," it had said.

Banning books or attacking art works without reading or viewing is not new in India. The works or Salman Rushdie, Taslima Nasreen and MF Hussain have become easy prey to this tendency. This question becomes even more relevant in this case since Gandhi himself recorded his experiments with sexuality in his autobiography.

What should be the parameter for banning a book or an artwork?

As a matter of fact, the right to freedom of speech and expression is not an absolute right and is subject to several reasonable restrictions under Article 19(2), including the security of the State, friendly relations with Foreign States, public order, decency or morality or in relation to contempt of court, defamation of incitement to an offence.

But any restriction imposed on the rights under Article 19(1)(a) - like other freedoms under other sub-clauses of Article 19(1) – has to be imposed under the authority of a law.

Banning a book/publication is a "drastic" power vested in the government. It should be exercised cautiously lest it violates the freedom of speech and expression guaranteed under the Constitution. Above all, a democratic society must always be open to news ideas and facts.


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