Criminal Appeal No 291 of 1971
Appeal by Special Leave from the Judgment and Order dated 19 1 1971 of the Allahabad High Court in Crl
Case No 412 70
DP Uniyal and OP Rana for the Appellant
SN Singh for the Respondent
617 The Judgment of the Court was delivered by KRISHNA IYER J
Some cases apparently innocent on their face and this appeal is one such may harbour beneath the surface profoundry disturbing problems concerning freedoms the unfettered enjoyment of which is the foundation for a democracy to flourish
The present appeal by special leave relates
to the forfeiture of a book captioned Ramayan A True Reading  in English and its translation in Hindi by the late political figure and leader of the Rationalist Movement Periyar EVR of Tamii Nadu by an order of the State Government of Uttar Pradesh purporting to be passed under section 99A of the Code of Criminal Procedure
In the view of the appellantgovernment this book was sacrilegiously outrageously objectionable being deliberately and maliciously intended to outrage the religious feelings of a class of citizens of India viz Hindus by insulting their religion and religious beliefs and the publication whereof is punishable under section 295A IPC 
This notification contained an appendix setting out in tabular form the particulars of the relevant pages and lines in the English and Hindi versions which presumably were the materials which were regarded as scandalizing
Thereupon an application was made by the respondent who was the publisher under section 99C of the Code to the High Court which by its special Bench allowed the application and quashed the notification
The aggrieved State has ap pealed to this Court by special leave
and counsel for the appellant has urged before us that the Government notifica tion does not suffer from the vice which according to the High Court invalidated it and that the impugned book makes a foul assault on the sacred sentiments of the vast Hindu population of the State since the author anthematised in unvarnished language the great incarnations like Sree Rama and disdainfully defiled the divinely epic figures like Sita and Janaka all of whom are worshipped or venerated by the Hindu commonalty
Sidestepping this issue the High Court by majority judgment struck down the order on the short ground that the State Government did not state the grounds of its opinion as required in section 99A o the Code
For that reason alone the petition has to be allowed and the order of forfeiture set aside in Court 
The anatomy of section 99A falls to be studied at the thresh old so that the pathology if any of the impugned order may be discovered
Shorn of phraseological redundancies from the point raised in this case the pertinent components of the provision empowering forfeiture of materials manifest ing written expression by citizens are threefold as flow from a reproduction of the relevant parts 99 A1 Where a any newspaper or book  or b any document wherever printed appears to the State Government to contain any  or any matter which promotes or is intended to promote feelings of enmity or hatred between different 618 classes of the citizens of India or which is delib erately 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 124 A or Sec tion 153 A or Section 295 A 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  The triple facets of a valid order therefore are i that the book or document contains any matter ii such matter promotes or is intended to promote feelings of  enmity or hatred between different classes of the citizens
of India and iii a statement of the grounds of Government s opinion
Thereupon the State Government may by notifica tion declare every copy of the issue containing such matter to be forfeited
Does the present notification fulfil the third requisite of legal viability or is it still born being mortally wounded by absence of the statement of grounds  The High Court holding this vital ingredient missing has voided the order but Sri Uniyal counsel for the State submits that though there is no express enunciation of the grounds for  Government s opinion the appendix makes up for it
He argues that the numbers of the pages and lines of the of fending publication supply both the matter  and the grounds  the latter being so patent that the
omission is inconsequential
More explicitly the contention is that a mere reference to the matter sufficiently particularised functionally supplies by implicit reading or necessary implication the legal requirement of statement of grounds
The office of furnishing the reason or foundation for the governmental conclusion is substantially though not formal ly fulfilled where the appendix an integral part of the order sets out self speaking materials
When the grounds are self evident silence is whispered speech and the law does not demand their separate spelling out as a ritualistic formality
The counter contention is that express condi tions for barricading the fundamental freedoms of expression designedly imposed by the Code cannot be whittled down by the convenient doctrine of implication the right being too basic to be manecled without strict and manifest compli ance with the specific stipulations of the provision
After
all fundamental rights are fundamental in a free Republic except in times of national emergency where rigorous restraints constitutionally sanctioned are clamped down
We are dealing with the Criminal Procedure Code and Penal Code and these laws operate at all times
We have therefore to interpret the law in such a manner that liberties have plenary play subject of course to the secu rity needs of the nation as set out in the Constitution and the laws
619 Even so counsel for the appellant contends that the references in the forfeited book as indicated in the appen dix to the order are so loudly repulsive and malevolently calumnous of Sree Rama Sita and Janaka that the court must vicariously visualize the outraged feelings of the Hindus of Uttar Pradesh and hold that the grounds are written in the order in invisible ink
When we assess the worth of this submission we have to notice a the constitutional per spective ie whether the basic freedoms are sought to be legally handcuffed and b the existence of alternative possibilities of popular understanding of the prescribed publication which necessitate some statement of the circum stances and the reasons which induced the government in the given conditions of ethos and otherwise to reach the opinion it has recorded
The State in India is secular and does not take sides with one religion or other prevalent in our pluralistic society
It has no direct concern with the faiths of the people but iS deeply obligated not merely to preserve and protect society against breaches of the peace and violations of public order but also to create conditions where the sentiments and feelings of people of diverse or opposing beliefs and bigotries are not so molested by ribald writings or offensive Publications as to provoke or outrage groups into possible violent action
Essentially good government necessitates peace and security and whoever violates by bombs or books societal tranquillity will become target of legal interdict by the State
We propose to view the issue before us both from the textual angle and from the larger standpoint and are led to the conclusion by an interaction of both that the High Court was not wrong and the appeal must fail
The various High Courts in India have had occasion to consider this question but have come to divergent conclusions
as will presently appear
A drastic restriction on the right of a citizen when imposed by statute calls for a strict construction especially when quasi penal consequences also ensue
The imperial authors of the Criminal Procedure Code have drawn up section 99A with concern for the subject and cautionary man dates to government
The power can be exercised only in the manner and according to the procedure laid down by the law
Explicitly the section compels the government to look at the matter which calls for action to consider it as to the clear and present danger it constitutes in the shape of promoting feelings of enmity and hatred between different segments of citizens or as to its strong tendency or intendment to outrage the religious feelings of such segments there are other proclivities also stated in the section with which we are not concerned for the present purpose and quite impor tantly to state the grounds of its opinion
We are con cerned with the last ingredient
When the section says that you must state the grounds it is no answer to say that they need not be stated because they are implied
you do not state a thing when you are expressively silent about it
To state is to declare or to set forth especially in a precise formal or authoritative manner to say something especially in an emphatic way to assert  Random House Dictionary
The conclusion is inescapable 8 1234SCI76 620 that a formal authoritative setting forth of the grounds is statutorily mandatory
If you laze and omit the law visits the order with voidness and this the State Government must realize especially because forefeiture of a book for a penal offence is a serious matter not a routine act to be executed with unconcern or indifference
The wages of neglect is invalidity going by the text of the Code
These considerations are magnified in importance when we regard the changeover from the Raj to the Republic and the higher value assigned to the great rights of the people
Where there is a statutory duty to speak silence is lethal sin for a good reason disclosed by the scheme of the fasciculus
of sections
For section 99C enables the aggrieved party to apply to the High Court to set aside the prohibitory order and the Court examines the grounds of Government given in the order and affirms or upsets it
The Court cannot make a roving enquiry beyond the grounds set forth in the order and if the grounds are altogether left out what is the Court to examine  And by this omission careless or calculated the valu able right of appeal to the Court is defeated
A construc tion of the section fraught with such pernicious conse quence and tampering with the basic structure of the statu tory remedy must be frowned upon by the Court if the liber ty to publish is to be restricted only to the limited extent the law allows
This reasoning is reinforced by Harnam Das vs State of UP1 wherein this Court observed What then is to happen when the Government did not state the grounds of its opinion  In such a case if the High Court upheld the order it may be that it would have done so for reasons which the Government did not have in contemplation at all
If the High Court did that it would really have made an order of forfeiture itself and not upheld such an order made by the Government
This as already stated the High Court has no power tO do under section 99 D
It seems clear to us therefore that in such a case the High Court must set aside the order under section 99 D for it cannot then be satisfied that the grounds given by the Government justified the order
You cannot be satisfied about a thing which you do not know
 We do not mean to say that the grounds or reasons link ing the primary facts with the forfeiter s opinion must be stated at learned length
That depends
In some cases a laconic statement may be enough in others a longer ratioc ination may be proper but never laches to the degree of taciturnity
An order may be brief but not a blank
This conclusion establishes a constitutional rapport between the penal section 99A and the fundamental right article 19
To relieve the State from the duty to state grounds of forfeiture in the face of the words of section 99A is to permit raptorial opportunity for use of such power over people s guaranteed liberty
Why do we say so  Surely security of the State and peace of society demand restrictions on indi vidual rights and we are the slaves of the law that we may be free
1   1666
621 The fighting faith of our founding fathers respected Mills  famous statement and Voltaire s inspired assertion
We quote If all mankind minus one were of one opin ion and only one person were of the contrary opinion mankind would be no more justified in silencing that one person than he if he had the power would be justified in silencing mankind Mill in his essay on Liberty  pp 19 20 Thinker s Library ed
 Watts I disapprove of what you say but I will defend to the death your right to
say it Attributed to Voltaire in SG Tallentyre The Friends of Voltaire 1907 Rights and responsibilities are a complex system and the framers of our COnstitution aware of the grammar of anarchy wrote down reasonable restrictions on libertarian exercise of free doms
Dr Ambedkar in the Constituent Assembly argued that it is incorrect to say that fundamental rights are absolute and quoted from Gitlow vs New York two self speaking passages It is a fundamental principle long estab lished that the freedom of speech and of the press which is secured by the Constitution does not confer an absolute right to speak or publish without responsibility whatever
one may choose or an unrestricted and unbridled licence that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom X X X X X That a State in the exercise of its police power may punish those who abuse this freedom by utterances inimical to the public welfare tending to corrupt public morals invite to crime or dis turb the public peace is not open to question    Section 99A of the Code construed in this candescent constitutional conspectus bears out our interpretation
In the interests of public order and public peace public power comes into play not because the heterodox few must be suppressed to placate the orthodox many but because every one s cranium must be saved from mayhem before his cerebrum can have chance to simmer
Hatred outrage and like feel ings of large groups may have crypto violent proneness and the State in its well grounded judgment may prefer to stop the circulation of the book to preserve safety and peace in society
No enlightened State would use this power to suppress advanced economic views radical rational criti cisms or fearless exposure of primitive obscurantism but ordered security is a constitutional value wisely to 622 be safeguarded if progressives and regressives are to peace fully coexist
This is the spirit of section 99A of the Code
The actual exercise will depend not on doctrinnaire logic but practical wisdom
While the American theory of clear and present danger as the basis of restriction on fundamen tal rights does not necessarily apply in India the illumi nating observations of Holmes J serve to educate the administrator and Judge
In Scheneck vs US1 Holmes J drove home the true test We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights
But the character of every act depends upon the circumstances in which it is done
The law s stringent protection of free speech would not protect a man in falsely shouting fire  in a theatre and causing panic
It does not even protect a man from an injunction against uttering words that may have all the effect of force
The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evil that Congress has a right to prevent
It is a question of proximity and degree
 Developing this theory in a famous passage in Abrains vs US2 he said Persecution for the expression of opinions seems to me perfectly logical
If you have no doubt of your pre mises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition
To allow opposition by speech seems to indicate that you think the speech impotent as when a man says that he has squared the circle or that you do not care whole heartedly for the result or that you doubt either your power or your premises
But when men have realized that time has upset many fighting faiths they may come to believe even more than they believe the very foundations of their own conduct that the ulti mate good desired is better reached by free trade in ideas that the best test of truth is the power of the thought to get itself accepted in the compe tition of the market and that truth is the only ground upon which their wishes safely can be carried out
That at any rate is the theory of our Constitution
It is an experiment as all life is an experiment
 Again in Bowmen vs Secular Society Ltd2 Lord Summer underscored the dynamism of liberty and safety at once luminous and elegant in a purple passage 1 1918249 US475263 LEd470473 474
2   62963 L ed
1173 1180
3  466 7 623 The words as well as the acts which tend to endanger society differ from time to time in proportion as society is stable or insecure in fact or is believed by its reasonable members to be open to assault
In the present day meetings or processions are held lawful which a hundred and fifty years ago would have been deemed seditious and this is not because the law is weaker or has changed but because the times having changed society is stronger than before
In the present day reasonable men do not apprehend the dissolution or downfall of society because religion is publicly assailed by methods not scandalous
Whether it is possible that in the future irreligious attacks designed to undermine fundamental institutions of our society may come to be criminal in themselves as constituting a public danger is a matter that does not arise
The fact that opinion grounded on experience has moved one way does not in law pre clude the possibility of its moving on fresh expe riences in the other nor does it bind succeeding generations when conditions have again changed
After all the question whether a given opinion is a danger to society is a question of the times and is a question of fact
I desire to say nothing that would limit the right of society to protect itself by process of law from the dangers of the moment whatever that right may be but only to say that experience having proved dangers once thought real to be now negligible and dangers once very possibly imminent to have now passed away there is nothing in the general rules as to blasphemy and irreligion which prevents us from varying their application to the particular circumstances of our time ni accordance with that experience
 Such is our constitutional scheme such the jurispruden tial dynamics and philosophical underpinnings of freedom and restraint a delicate area of fine confluence of law and politics which judges by duty have to deal with
The journey s end has now arrived
Government has the power and responsibility to preserve societal peace and to forfeit publications which endanger it
But what is thereby prevented is freedom of expression that promoter of the permanent interests of human progress
Therefore the law section 99A fixes the mind of the Administration to the obliga tion to reflect on the need to restrict and to state the grounds which ignite its action
To fall here is to fault the order
That is about all
Before concluding we clarify that we express no view on the merits of the book or its provocative vitriol
It depends on a complex of factors
What offends a primitive people may be laughable for progressive communities
What is outrageous heresay for one religion or sect or country or time may be untouchably holy for another
Some primitive people may still be outraged by the admonition of Swami Vivekananda  Our religion is in the kitchen our 624 God is the cooking pot and our religion is don t touch me I am holy  quoted at p 339 by Jawaharlal Nehru in Discov ery of India
The rule of human advance is free thought and expression but the survival of society enjoins reasonable curbs where public interest calls for it
The balance is struck by governmental wisdom overseen by judicial review
We speak not of emergency situations nor of constitutionally sanctified special prescriptions but of ordinary times and of ordinary laws
A parting thought which we put to appellant s counsel may be stated here
If the State Government judging by current circumstances feels impelled to invoke section 99A against the book in question it is free to do so subject of course to fulfilment of the requirement to state the grounds of its opinion and the operation of section 99C of the Code
Our detailed discussion disposes of the question of law and resolves the conflict immanent or apparent in the rul ings of the various High Courts ranged against each other
They are Arun Ranjan Ghose vs The State of West Bengal1 and Jwalamukhi vs State of AP 2 which support the view propounded by the appellant and Mohammad Khalid vs Chief Commissioner3 China Annamalai vs State4 and Bennet Coleman  Co Ltd vs State of J  K5 which held with the Allahabad judgment under appeal
Perhaps there is no need to discuss the ratio in each of the above cases as the rival points of view have been already covered in the earlier part of this judgment
The possible invocation of the powers under section 99A of the Code of Criminal Procedure by various State Governments on several occasions induces us to enter a caveat
Basic unity amidst diversity notwithstanding India is a land of cultural contrarities co existence of many religions and anti religions rationalism and bigotry primitive cults and materialist doctrines
The compulsions of history and geography and the assault of modern science on the retreat ing forces of medieval ways a mosaic like tapestry of lovely and unlovely strands have made large and liberal tolerance of mutual criticism even though expressed in intemperate diction a necessity of life
Governments we are confident will not act in hubris but will weigh these hard facts of our society while putting into operation the harsh directives for forfeiture
From Galileo and Darwin ThOreau and Ruskin to Karl Marx HG Wells Barnard Shaw and Bertrand Russel many great thinkers have been objected to for their thoughts and statements avoiding for a moment great Indians from Manu to Nehru
Even today here and there diehards may be found in our country who are offended by their writings but no Government will be antediluvian enough to invoke the power to seize their great writings because a few fanatics hold obdurate views on them
1ILR 2 ILR 3 AIR 1968 Delhi 18 FB
4 AIR 1971 Madras 448 FB
5 625 A well known Mao thought aptly expresses the liberalist approach to divergent schools of philosophy Letting a hundred flowers blossom and a hundred schools of thought contend is the policy for promoting the progress of the arts and sciences
 Haroll Laski who influenced many Indian progres sives in his A Grammar of Politics  states a lasting truth There is never sufficient certitude in social matters to make it desirable for any govern ment to denounce it in the name of the State
American experience of the last few years has made it painfully clear that there will never be present in constituted authority a sufficient nicety of discrimination to make R certain that the opinion attacked is one reasonably certain to give rise to present disorder
 x x x x x x It is no answer to this view to urge that it is the coronation of disorder
If views which imply violence have a sufficient hold upon the State to disturb its foundations there is some thing radically wrong with the habits of that State
 x x x x x x x Almost always there are rare cases in which persecution has proved successful the result of free expression is such a mitigation of the condi tion attacked as to justify its use almost always  also to prohibit free speech is to drive the agitation underground
What made Voltaire dangerous to France was not his election to the Academy but his voyage to England
Lenin was infinitely more dangerous to
Czarist Russia in Switzerland than he would have been in the Dume
Freedom of speech in fact with the freedom of assembly therein implied is at once the kathersis of discontent and the condition of necessary re form
A government can always learn more from the criticism of its opponents than from the eulogy of its supporters
To stifle that criticism is at least ultimately to prepare its own destruction
 A note of circumspection
In the current context of constitutionally proclaimed emergency the laws have perforce to act in the narrow limits inscribed in the Emergency provisions and this decision relates to the pre Emergency legal order
We dismiss the appeal


Summary:
The appellant Government passed an order under Section 99 A of the Cr
PC for the forfeiture of a book entitled Ramayan A true Reading  in English and its translation in Hindi by Periyar EVR of Tamil Nadu on the ground that the book intended to outrage the religious feelings of a class of citizens of India namely the Hindus
Thereupon an application was made by the respondent publisher of the book
under Section 99 C of the Code to the High Court which by its special Bench allowed the application and quashed the notification on the ground that the State Gov ernment had failed to state the grounds of its opinion as required in Section 99 A of the Code
The appellant contended that a specific statement of grounds by the Government is not a mandatory requirement under Section 99 A of the Cr
PC  that it can be made by implication
Dismissing the appeal the Court HELD To relieve the State from the duty to state grounds of forfeiture is to permit raptorial opportunity for use of such power over people s guaranteed liberty
Section 99 A says that you must state the ground and it is no answer to say that they need not be stated because they are implied
An order may be brief but not a blank
A formal authoritative setting forth of the grounds is statu torily mandatory
Section 99 C enables the aggrieved party to apply to the High Court to set aside the prohibitory order and the Court examines the grounds of Government given in the order
The Court cannot make a roving enquiry beyond the grounds sefforth in the order and if the grounds are altogether left out the valuable right of appeal to the Court is defeated
610G H 620B C G H Harnam Das vs State of UPAIR  1666 dictum applied
Scheneck vs
US   527_ 63 Led
470 473 474 Abrams vs US   62963 Led
1173 1180 Bowmen vs Secular Society Ltd  466 7 Arun Ranjan Ghosh vs State of West Bengal ILR  Jwalamukhi vs State of AP ILR referred to
Mohammad Khalid vs Chief Commissioner AIR 1968 Delhi 18 FB Chinna Annamalai vs State AIR 1971 Madras 448 FB Bennet Coleman  Co vs State of J  K 1974 J  K LR 591 approved