Supreme Court lifts ban on Laine book

IN Judgements | 01/08/2010
Upholding the judgement of the Bombay High Court that the Maharashtra government could not establish which groups would suffer enmity by the publication of James Laine's book on Shivaji,
Justices D K JAIN and H L DATTU of the Supreme Court revoked the ban on the book

 

REPORTABLE
 
                 IN THE SUPREME COURT OF INDIA
 
                 CIVIL APPELLATE JURISDICTION
 
                CIVIL APPEAL NO.5205 OF 2010
        [Arising out of S.L.P.(C) No. 8931 of 2007]
 
 
State of Maharashtra & Ors.             --         Appellants
 
 
                              VERSUS
 
 
Sangharaj Damodar Rupawate & Ors.       --        Respondents
 
 
 
 
                            J U D G M E N T
 
 
 
 
D.K. JAIN, J.:
 
 
 
     Leave granted.
 
 
2.This appeal, by special leave, filed by the State of Maharashtra
 
and its functionaries, arises out of the judgment dated 26th April,
 
2007 delivered by the High Court of Judicature at Bombay in Writ
 
Petition No.1721 of 2004.      By the impugned judgment, passed in an
 
application under Section 96 of the Code of Criminal Procedure,1973
 
(for short "the Code") read with Article 226 of the Constitution of
 
India, the High Court has set aside and quashed notification dated

20th December, 2006, issued in the name of Governor of Maharashtra in
 
exercise of the powers conferred by sub-section (1) of Section 95 of
 
the Code, directing forfeiture of every copy of the book captioned
 
as "Shivaji ­ Hindu King in Islamic India" written by one Prof.
 
James W. Laine.
 
 
3.The three writ petitioners, who are respondents No.1, 2 and 3
 
herein, are respectively stated to be a well known lawyer and a
 
public activist in the Ambedkarite movement, intended to mobilize
 
the deprived sections of the society; (ii) a well-known film maker,
 
whose documentaries are stated to be known the world over for their
 
artistic finesse, conveying democratic and secular message and (iii)
 
a social activist.        Respondents       No. 4 to 6 impleaded as such vide
 
this Court's order dated 29th August, 2007 respectively are Prof.
 
James W. Laine, the author of the book, Oxford University Press,
 
India, the publisher through its              Constituted Attorney Mr. Manzar
 
Sayed Khan and Mr. Vinod Hansraj Goyal, proprietor of Rashtriya
 
Printing Press, Delhi, the printer of the book.
 
 
4.For   the   purpose     of   appreciation    of   the    questions   raised,   the
 
foundational facts may be noticed.            These are:
 
 
        On 28th May, 2003, respondent No. 5, the publisher entered
 
into    an    agreement    with    Oxford     University     Press,    U.S.A.    for
 
publishing in India a paper-bound book entitled "Shivaji ­ Hindu
 
 
 
                                                                                  2

King in Islamic India" authored by Prof. James W. Laine (respondent
 
No.4), a Professor of Religious Studies, Macalester College, U.S.A.
 
The said book was originally published by Oxford University Press,
 
Inc., U.S.A.             As per the terms of the agreement, respondent No.5
 
agreed to reprint the book without any changes or deletions.                                In
 
all, 803 copies of the book were published i.e. 488 copies in June
 
and 315 copies in October, 2003 and was released in July 2003 and
 
215 copies were sold in the month of July itself.
 
 
         On       10th    November     2003,     the     publisher      (respondent       No.5)
 
received a letter from four historians whereby the publisher and the
 
author      had     been       asked   to    retract     the    objectionable       statement
 
complained         of    and    tender      an   apology.      Mr.     Manzar    Sayed    Khan,
 
expressed regrets for the said statement and informed the objectors
 
that instructions had been issued to all his offices in India to
 
immediately withdraw all copies of the book from circulation.                             After
 
withdrawal of the book from circulation, a mob at Pune blackened the
 
face   of     a    Sanskrit      Scholar     Shri    Shashikant      Bahulkar     whose    name
 
appeared      in    the    acknowledgement          of   the   book,    having    helped    the
 
author, Prof. James W. Laine, by providing him with some information
 
during his visit to Pune.                This incident was widely reported in the
 
press.      On 28th December, 2003, the author Prof. James W. Laine sent
 
a fax,      apologising for the mistake, if any, committed in writing
 
the passage and stated that he only was responsible for the said
 
 
                                                                                             3

statement written in the book, and the publisher was not at all
 
responsible for the same.              On 5th January, 2004, a mob of 100 to 125
 
persons    allegedly          belonging      to    the     Sambhaji      Brigade      ransacked
 
Bhandarkar Oriental Research Institute (BORI), Pune and destroyed a
 
large number of books and rare manuscripts.                        This incident was also
 
widely reported in the press.
 
 
          On    7th    January,   2004,      respondent         No.4,    the    author      in    an
 
interview, explained the reason for writing the book and expressed
 
deep anguish at the destruction of rare manuscripts and books in
 
BORI,    Pune.         Four   days     after      the    alleged    incident     i.e.     on     9 th
 
January,       2004,    the    State    of     Maharashtra,        the   appellant       herein,
 
registered a first information report (for short "FIR") at Deccan
 
Police Station, Pune, against respondents No. 4 to 6 i.e.                                   Prof.
 
James W. Laine, the author,                  Mr. Manzar Sayed Khan, the publisher
 
and     Mr. Vinod Hansraj Goyal, the printer of the book under Sections
 
153, 153-A and 34 of the Indian Penal Code, 1860 (for short "the
 
IPC").
 
 
          On 15th January, 2004, in exercise of powers conferred by sub-
 
section (1) of Section 95 of the Code, the Government of Maharashtra
 
issued     a      notification         declaring         that      every       copy    of        the
 
aforementioned book shall be forfeited to the Government.                             The said
 
notification was challenged in the Bombay High Court by respondents
 
 
 
 
                                                                                                  4

No.1 to 3 herein.     However, during the pendency of the petition,
 
this notification was withdrawn and another notification dated 20th
 
December, 2006 was issued.    The notification reads as follows:
 
                    "GENERAL ADMINISTRATION DEPARTMENT
                        Mantralaya, Mumbai 400 032,
                       dated the 20th December, 2006
 
                             NOTIFICATION
 
       CODE OF CRIMINAL PROCEDURE, 1973.
 
          No. BAP-2004/422/C.R.113/2004/XXXIV. ­ Whereas, Shri
     Chhatrapati Shivaji Maharaj is revered by various sections
     of the people domiciled in the State of Maharashtra;
 
          And Whereas, the Oxford University Press having its
     office at YMCA Library Building, Jai Singh Road, New Delhi
     110 001, has in the Year 2003, published a book, captioned
     as "SHIVAJI ­ Hindu King in Islamic India" written by one
     Shri James W. Laine, having ISBN 019 5667719 containing 127
     pages (hereinafter referred to as "the said Book");
 
          And Whereas, the said author has in his said Book,
     made several derogatory references specified in the
     Schedule appended hereto regarding Shri Chhatrapati Shivaji
     Maharaj, in particular about his parentage and the Bhosale
     family to which he belonged;
 
          And Whereas, publication of the said Book containing
     the said derogatory references is prejudicial to the
     maintenance of harmony between different groups and has
     disturbed the public tranquillity;
 
          And Whereas, the publication and circulation of the
     said Book, has not only already resulted in causing enmity
     between the persons who revere Shivaji and other persons
     who may not so revere; but is likely to continuously cause
     such enmity;
 
          And   Whereas,    the   said   author  has   in   the
     "ACKNOWLEDGMENTS" to the said Book has expressed gratitude
     to the "Bhandarkar Oriental Research Institute, Pune" and
     the librarian and other Scholars therein;
 
 
 
                                                                   5
     And Whereas, after publication of the said book, there
was agitation against the said "Bhandarkar Oriental
Research Institute, Pune", by members of an association
called as "Sambhaji Brigade" and certain other people
revering Shri Chhatrapati Shivaji Maharaj;
 
     And Whereas, for publication of the said Book, an
offence under sections 153, 153A read with Section 34 of
the Indian Penal Code has been registered in the Deccan
Gymkhana Police Station, Pune as C.R. No. 10 of 2004.
 
     And Whereas, for the reasons aforesaid, the Government
of Maharashtra is of the opinion that the circulation of
the   said  Book   containing   scurrilous  and  derogatory
references against Shri Chhatrapati Shivaji Maharaj has
resulted in causing enmity between various communities and
has led to acts of violence and disharmony and that any
further circulation of the said Book is likely to result in
breach of peace and public tranquillity and in particular
between those who revere Shri Chhatrapati Shivaji Maharaj
and those who may not; and cause disturbances to public
tranquillity and maintenance of harmony between such groups
and as such the said Book should be forfeited;
 
     Now, therefore, in exercise of the powers conferred by
sub-section (1) of Section 95 of the Code of Criminal
Procedure, 1973 (2 of 1974), read with Section 21 of the
General Clauses Act, 1897 (10 of 1897) and of all other
powers enabling it in that behalf and in supersession of
the   Government   Notification,   General   Administration
Department, No. BAP-2004/422/C.R.113/2004/XXXIV, dated the
15th January 2004, the Government of Maharashtra hereby
declares that every copy of the said Book shall be
forfeited to the Government.
 
                           Schedule
 
     1.   "So when Shivaji opened his eyes on the world, he
was nurtured by a mother who had been deserted by her
husband and left to give birth in a hill fortress 60 kms.
North of Pune." (Introduction page 4).
 
     2.   "Looking back from the coronation in 1674, the
Killing of Afzal Khan in 1659 was not simply an act of
courage, it was premeditated violence in the service of the
 
 
 
 
                                                              6

Brahmanic world order." (Chapter II, The Epic Hero, page
25).
 
     3.   "Thus Shivaji could argue that his family should
not be classified a Kunbi peasant or shudra clan, but was,
in fact, related to Rajput, Aryan Kshatriyas. This led to
a general ambiguity about the status of all Marathas."
(Chapter IV "The Patriot", page 66).
 
     4.   "Here we have a kind of Brahmin prejudice that
Marathas might make admirably fierce warriors but will not
have prudence of the Brahmins. Thus Ranade argues that the
national movement drew on the talents and loyalty of all
classes, but he maintains the critical importance of the
Brahmins Ramdas and Dadaji in his narrative. (Chapter IV
"The Patriot", page 76).
 
     5.  "In other words, Shivaji's secularism can only be
assured if we see him as motivated less by patriotism than
by simple quest of power." (Chapter IV "The Patriot", page
77).
 
      6.   "Shivaji's parents were married under trying
circumstances.    They were children, and Jijabai's parents
opposed the match, considering themselves, as Jadhava
(Yadavas), to be too aristocratic to accept a groom from
the Bhosles, a clan not accepted as one of ninety-six upper
class    Maratha  families.  (Chapter  V  "Cracks   in  the
Narrative", page 91).
 
     7.   "The repressed awareness that Shivaji had an
absentee father is also revealed by the fact that
Maharashtrians tell jokes naughtily suggesting that his
guardian Dadaji Konddev was his biological father."
(Chapter V "Cracks in the Narrative", page 93).
 
     8.   "One could assume, as Sarkar did, that he
(Shivaji) agreed to go to Aurangazeb's court in Agra
because he had hopes (sic) of being made Mughal Viceroy of
the Deccan.   Had he received such an honour (sic), it is
doubtful that he would have planned a coronation eight
years later, but would have conducted his career much as
his father did as an Aadil Shahi noble and Governor of
Bangalore." (Chapter V "Cracks in the Narrative", page 99).
 
 
 
 
                                                              7
          By order         and   in    the   name       of    the       Governor    of
     Maharashtra,
                                                        MANISHA MHAISKAR,
                                         Joint Secretary to Government."
 
 
 
5.In view of the said development, with the leave of the Court, the
 
petition   was   amended     and      challenge    to     notification          dated    20th
 
December, 2006 was laid mainly on the grounds that: (1) there was no
 
material to show that the publication of the book had resulted in
 
disturbance of public tranquillity or maintenance of harmony between
 
various groups as set out therein, and (2) the publication does not
 
disclose   any   offence    under     Section     153-A      of   the    IPC.      Finding
 
substance in both the grounds, as stated above, by the impugned
 
judgment, the High Court has quashed and set aside the notification
 
dated 20th December, 2006 by observing thus:
 
 
     "We called upon the learned Associate Advocate General to
     show us any material in their possession which would
     indicate, that the publication of the book is causing
     enmity between various communities and which were those
     communities.    The learned Associate Advocate General was
     unable to produce or disclose any such material or which
     were the groups based on religion, race, language or
     religion or caste or communities who do not revere Shree
     Chhatrapati Shivaji Maharaj. The only answer was, that the
     order   is   based  upon   the  grounds  set  out   in  the
     notification. In our opinion, to make a legal order under
     Section 95 of the Code of Criminal Procedure, apart from
     the fact that offence as set out therein must be indicated,
     the notification must disclose the grounds based on which
     the State has formed an opinion, that the author by his
     publication sought to promote or attempted to promote
     disharmony or feeling of enmity between various groups as
     set out therein.    All that is pointed out to us is, that
 
 
 
                                                                                           8
       subsequent to the publication of the book, there was an
       agitation against Bhandarkar Oriental Research Institute,
       Pune by members of an Association called as "Sambhaji
       Brigade"   and    certain  other   people   revering  Shree
       Chhatrapati Shivaji Maharaj. We pointedly asked the learned
       Associate Advocate General whether the employees of the
       Bhandarkar Institute, Pune constituted that group or class.
       It was fairly conceded before us that it was not so.
       Whether a group of employees would constitute a group is
       not required to be answered.      In other words, there is
       nothing on record to show that the publication was likely
       to promote disharmony or feeling of enmity between various
       groups,   as   likely   to  cause   disturbance  to  public
       tranquillity and maintenance of harmony between various
       groups.     Bhandarkar Oriental Research Institute Pune,
       enjoys an international reputation as a research institute
       in the State of Maharashtra.    <				

	
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