AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN ITS SPECIAL JURISDICTION UNDER CR.P.C. SECTIONS 95 AND 96. CRIMINAL APPLICATION NO.1421 OF 2007 R.V. Bhasin, 76, Bajaj Bhavan, Nariman Point, Mumbai – 400 021, residing at 9/4, Bradys Flats, S.B. Road, Colaba, Mumbai – 400 005. ) ) ) ) ) .... Applicant Versus 1 State of Maharashtra ) 2 Marine Drive Police Station, Mumbai. ) ) ... Respondents And 1 Indian Union Muslim League ) 2 Maharashtra Muslim Lawyers Forum ) ) 3 Islamic Research Foundation ) 4 Jamat-e-Islami-e-Hind ) 5 Bombay Aman Committee ) 6 Ishwar Prasad G. Khandelwal ) ... Intervenors Mr. J.P. Cama, senior counsel with Mr. R.J. Cama i/b. Mr. R.V. Bhasin for the applicant. Mr. Ravi Kadam, Advocate General with Mr. S.R. Borulkar and Mr. P.A. Pol, Public Prosecutor with Ms. M.M. Deshmukh for the State. AJN 2 Mr. Y.H. Muchhala, senior counsel with Mr. Amin Solkar, Mr. Shaikh Yakub and Mr. Mubin Solkar i/b M/s. Judicial Law & Associates for intervenors 4 to 8. Mr. I.G. Khandelwal – intervenor 3 - in person. CORAM : SMT. RANJANA DESAI, DR. D.Y. CHANDRACHUD & R.S. MOHITE, JJJ. DATE ON WHICH THE JUDGMENT IS RESERVED : 14TH AUGUST, 2009. DATE ON WHICH THE JUDGMENT IS PRONOUNCED : 6TH JANUARY, 2010. JUDGMENT :- (Per Smt. Ranjana Desai, J.) 1. Rule. Respondents waive service. With the consent of the parties and at the request of the counsel, taken up for hearing. 2. The applicant, who is an advocate, is the author of a book entitled “Islam – A concept of Political World Invasion By Muslims” (“the book”). The book was published in 2003 by National Publications, 76, Bajaj Bhavan, Nariman Point, Mumbai of which the applicant claims to be the proprietor. The book was translated into Hindi by Dr. Anil Misr. AJN 3 3. In exercise of powers conferred by sub-section (1) of section 95 of the Code of Criminal Procedure, 1973 (“the Code”) the Government of Maharashtra issued a notification dated 9/3/2007 (“the Notification”) and declared that every copy of the book as well as of the translation thereof shall be banned and forfeited to Government. The Notification is as follows : “NOTIFICATION General Administration Department Mantralaya, Mumbai – 400 032 Dated the 9th March, 2007. Code of Criminal Procedure, 1973. No.PUB2007-C.N.15/07-XXXIV – WHEREAS the national Publications having its office at 76, Bajaj Bhavan, Nariman Point, Mumbai – 400 021, has published a Book, in the year 2003, captioned as “ISLAM – A Concept of Political World Invasion by Muslims” written by one R.V. Basin, Advocate Supreme Court of India, containing 166 pages and translated in Hindi by Dr. Anil Mishra captioned as “ISLAM RAJNAITIK VISHWA PAR MUSLIM AKRAMAN KI AVADHARANA” containing 180 pages (hereinafter referred as the said Book” and “the translated Book” respectively). AJN 4 AND WHEREAS the author of the said book (and in the relevant translation thereof as “the translated Book”) has made several derogatory and false statements about Muslim religion, Muslim community, Mohammed Paigambar and Muslim priests, as specified in Schedule appended hereto. AND WHEREAS the author of the said Book (and in the relevant translation thereof as “the translated Book”) has made derogatory and false statements on page number 4 referring to Muslim religious Book Quaran that, Muslims should kill Kafirs (Non – Muslims) and if they do so it is stated on page number 4 that, they would be given 72 beautiful girls and 72 handsome youth; similarly, the author has stated on page number 5 further that, where-ever Muslims are ruling other religious people be killed and on page number 10 thereof it is stated that, Muslims do not consider and accept other religious people equal to them and that where-ever Muslim population is less they are increasing it in an attempt to make themselves equal with others, therefore it is said that “Hum Panch, Hamaare Pachhis”. AND WHEREAS the author of the said Book (and in the relevant translation thereof as “the translated Book”) has made derogatory and false statements about Jihaad, Quaran, Mohammed Paigambar, Indian Muslims and conversion on page numbers 12, 13, 15, 16, 17, 21, 23, 25, 28, 43, 45, 104, 136, 150, 151, 152, 155, 159 and 160 etc. which poses danger to social harmony as well as law and order situation; AJN 5 AND WHEREAS on page number 23 of the said Book in the relevant translation thereof as the translated Book”, “Khatme Nawabac” (Nabuwat) has been written as sentiments of Muslims; AND WHEREAS this might raise a question mark about the basic aim and objective behind writing the book without taking the Muslim sentiments into consideration and without giving a thorough consideration to the subject, the Government has taken serious note of this derogatory, tasteless and malicious writings; AND WHEREAS in column of Hindi evening newspaper “Dopahar Ka Saamana”, dated 20th January 2007 an article is published captioned as “Dharmki Aadme Apna Hee Jugad” has referred the translated Book, and an offence has been registered against the Editor, Executive Editor, Printer and Writer of the said Book under sections 153A, 295A, 505 read with 34 of Indian Penal Code in Dadar Police Station as C.R. No.34/07; AND WHEREAS for the reasons aforesaid the Government of Maharashtra is of the opinion that the circulation and sale of the said Book and relevant translation thereof as the translated Book contain abusive language bringing meanness to Jihaad, Quaran, Mohammed Paigambar, Indian Muslims and conversion, as well as derogatory and false references therein is likely to create hatred against Muslims in the minds of non-Muslims thereby promoting enmity between classes AJN 6 so also the said Book and relevant translation thereof as the translated Book outrages the fillings of a Muslim section of society and maliciously insulting the religion and religious beliefs of Muslims and likely to lead to acts of violence and disharmony and that any further circulation and sale of the said Book and relevant translation thereof as a translated Book is likely to result in breach of peace and public tranquility between classes and groups, as such the said Book and relevant translated 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), in its application to the State of Maharashtra, the Government of Maharashtra hereby declares that every copy of the said Book “ISLAM – A Concept of Political World Invasion by Muslims” as well as the relevant translation thereof as the translated Book – “ISLAM RAJNAITIK VISHWA PAR MUSLIM AKRAMAN KI AVADHARANA” shall be banned and forfeited to the Government. SCHEDULE 1. “Gandhi advocated pardon to the Assassin Muslim who killed Swami Shradhhanand, who was believed to have written a book with its Title “rangeela Rasul”? (Preface).” 2. “The Muslims believe and are ordained by their holy religious texts to eliminate AJN 7 Kufr and the Kafirs from the surface of the earth. Any bloody war that is fought by the believers against the nonbelievers carries the religious sanction of Islam”. (Introduction page numbers 3 and 4). 3. “Should he die in this pursuit, the God assumed Almighty as per Quaranic statements assures to such pursuer of faith, an assured life joy and pleasure in the heavens where he is promised to be served by 72 beautiful maidens and 72 young male children to beget pleasure. Such a person is called as Shaheed. Should he survive while pursuing this aim and live on the earth, Quaran promises on behalf of the God Almighty Allaha to enjoy the life on earth by using all that he gets by way of victory over the Kafirs.” (Introduction page number 4) 4. “Islam declares to its followers where political governance is in the hands of the believers, they are to act and crush any counter idea and where it still lacks political control then to lie on wait for the moment when through all other means, Darul-Herb gets converted into Darul- Islam.” (Introduction page number 5). 5. “Muslims do not and cannot accept any non-believer as equal to them and hence Modi of Gujarat too right when he cautions Indian people UNITE to safeguard themselves from the Muslim invasion who are waiting only to convert India from Darul Herb to Darul Islam and now openly say and believe in HAM PAANCH – HAMARRE PACCHIS.”(page number 10). AJN 8 6. “This is one religion that supports its spread by waging jehads including justifying conducts of terrorism when it says “show no mercy to the non-believers (Kafirs) or the idol worshipers and lie in wait for them to behead them when they appear before you. (the believers i.e. the Muslims)”. (page number 17, para 2). 7. “Islam considers weaker sex of women as a commodity meant for the use and pleasure of men owing allegiance to Islam.” And “Those who embraced Islam in India, mostly did so under the threat of sword or were lured into it for its easy promise of heavens where beautiful women and young kids were promised as rewards to the believers.” (page number 28, para 2). 8. “HOWEVER ON GOING THROUGH SEVERALS OF ITS AYATS, ITS ORDAINMENTS GIVEN TO ITS FOLLOWERS ARE NOT ONLY DANGERIOUS BUT IN FACT PROMOTE HATRED IN THE SOCIETY, IT IS BOUND TO CREATE BITTERNESS BETWEEN THE MUSLIMS AND THE NON-MUSLIMS LIVING IN AAA ``AINDIA” REF IS MADE TO IPC SECTION 153A SUB-SECTIONS (a) & (b) YET IT IS NOT APPLIED AGAINST MUSLIM'S HOLY BOOK.” (page number 104, para 4). By order and in the name of the Governor of Maharashtra, Sd/- (Manisha Mhaiskar) Joint Secretary to the Government.” AJN 9 4. The applicant has in this application, inter alia, challenged the Notification. 5. Section 95 insofar as it is relevant reads thus: “95. Power to declare certain publications forfeited and to issue search warrants for the same. - (1) Where - (a) any newspaper, or book, or (b) any document, wherever printed, appears to the State Government to contain any matter the publication of which is punishable under section 124-A or section 153-A or section 153-B or section 292 or section 293 or section 295-A of the Indian Penal Code (45 of 1860), the State Government may, by notification, 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 may 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. AJN 10 (2) In this section and in section 96, - (a) “newspaper” and “book” have the same meaning as in the Press and Registration of Books Act, 1867 (25 of 1867) (b) “document” includes any painting, drawing or photograph, or other visible representation. (3) No order passed or action taken under this section shall be called in question in any Court otherwise than in accordance with the provisions of section 96”. 6. Under Section 96 of the Code, a person having any interest in any newspaper, book or other document, in respect of which a declaration of forfeiture has been made has to apply to the High Court and every such application has to be heard by a Special Bench of the High Court of three judges. Hence, this application filed under Sections 95 and 96 of the Code is placed before this Bench. Section 96 of the Code reads thus: “96. Application to High Court to set aside declaration of forfeiture.- AJN 11 (1) Any person having any interest in any newspaper, book or other document, in respect of which a declaration of forfeiture has been made under section 95, may, within two months from the date of publication in the Official Gazette of such declaration, apply to the High Court to set aside such declaration on the ground that the issue of the newspaper, or the book or other document, in respect of which the declaration was made, did not contain any such matter as is referred to in sub-section (1) of section 95. (2) Every such application shall, where the High Court consists of three or more Judges, be heard and determined by a Special Bench of the High Court composed of three Judges and where the High Court consists of less than three Judges, such Special Bench shall be composed of all the Judges of that High Court. (3) On the hearing of any such application with reference to any newspaper, any copy of such newspaper may be given in evidence in aid of the proof of the nature or tendency of the words, signs or visible representations contained in such newspaper, in respect of which the declaration of forfeiture was made. (4) The High Court shall, 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, contained any such matter as is referred to AJN 12 in sub-section (1) of section 95, set aside the declaration of forfeiture. (5) Where there is a difference of opinion among the Judges forming the Special Bench, the decision shall be in accordance with the opinion of the majority of those judges. 7. Though the Notification does not specifically state which sections of the Indian Penal Code are attracted, it mentions its likely effects such as creation of hatred against Muslims, promoting enmity between classes, likelihood of violence, breach of harmony, peace and public tranquility. The case of the respondents in the written submissions and in the oral arguments of the Advocate General is that the book is forfeited on the ground that it contains matter, the publication of which would constitute offences punishable under Sections 153A, 153-B and 295-A. 8. The Indian Union Muslim League, Maharashtra, Muslim Lawyers Forum, Islamic Research Foundation, Jamat-e-Islami-e-Hind and Bombay Aman Committee filed AJN 13 intervention applications. Since the meaning and interpretation of the Ayats from the Quaran are the subject matter of the submissions made before this court, on 20/3/3009, we allowed the intervention applications with a view to getting suitable assistance in finding the true meaning and content of the relevant Ayats upon which the central theme of the book is based. Mr. Muchala, senior counsel for the interveners informed the court that he is representing the interveners noted above. 9. Mr. Ishwar Prasad G. Khandelwal, who is stated to be the National President of a Non Governmental Organization known as “the Right to Read Foundation” filed an intervention application. Since, we had allowed intervention applications filed by the aforestated organizations/associations, we allowed the intervention application of Mr. Khandelwal in the interest of justice, on the same day. 10. Counsel for the petitioner submitted that (i) The AJN 14 applicant was not aware of the Notification till 5/4/2007 when his office was raided. The Notification must be set aside as the applicant was not given a pre-decisional hearing; (ii) The Notification states in substance that in the opinion of the State Government, certain passages of the book as reproduced in the schedule were false and derogatory and “might have been” written without taking into account `Muslim sentiments'. Counsel submitted that the Notification gives no basis, reason or grounds for the State to come to the aforesaid opinion and the mandate of Section 95 is, therefore, violated; (iii) since 2003, when the book was published, it was in circulation and the Government had found no grounds to act under Section 95 until 9/3/2007 the respondents’ action is therefore barred by law of limitation; (iv) The Notification is vague because it does not mention which of the several sections set out in Section 95 have been violated. This has deprived the applicant of his right to fully and fairly exercise his statutory right of making application under Section 96 of the Code; (v) In paragraph 2 of the AJN 15 Notification only certain pages have been stipulated as containing offensive material. The Advocate General culled out certain passages from some of those pages which, according to him, are offensive. There is nothing in the State's affidavit to indicate that even these grounds actually prevailed upon the Government on the date on which the Notification was made. The basic or fundamental precondition for the exercise of power namely, an ex-facie exposition of the Government's reasons is not established; (vi) The Notification does not state Government's reasons to believe how a book published four years' ago can suddenly upset Muslim sentiment in 2007 or how the above mere “likelihood” comes within the ambit of Section 153A and /or section 295A of the IPC; (vii) The motive of the applicant in writing the book was to bring home to society certain features and facets of Islam of which readers might not have been aware. The book is a historical analysis of certain lesser- known aspects of Islam and is not intended to promote feelings of enmity or hatred among classes of persons or AJN 16 to cause insult to any particular class or community; (viii) The bonafides of the applicant are evident from his statement at page 99 that we are a secular nation and from the fact that he has avoided reference to some of the `more provocative' Ayats. The book sets out certain views on Islam of which the applicant became aware upon his own research; (ix) In view of the law laid down by the Supreme Court, the respondents are entitled to rely only upon those portions of the book which have been reproduced in the schedule annexed to the Notification. The Notification must be read strictly to see if it sets out not only the opinion of the Government but also the grounds forming the said opinion. The onus is on the respondents to first make out a case under Section 95 of the Code for forfeiting the book. It is only after a reasonable opinion based on objective grounds is shown to exist that the onus of disproving the Government’s stand arises. In the present case, there is only an “opinion” but no “objective grounds” supporting them. Certain passages which have been cited by the AJN 17 respondents are taken from printed historical and religious writing. In this connection, reliance was placed on certain passages from the books “The Islamic Invasion” by Robert Morey, “Rongeela Rasool” by Pandit Chamupati, “Sex & Violence” by Anwar Shaikh, “Islam & Terrorism” by Anwar Shaikh. “Vedic Civilization” by Anwar Shaikh, “The Islamic Word View” by Sujata Hazarika & Ramya Murlitharan, “Jihad and Jannat in Hadiths” by Dr. K.V. Palival, “Don't say we didn't warn you”, “Great Thinkers on Islam” compiled by Rana Pratap Roy, “Islamization of India by the Sufis” by Purshottam, “Hindu Chintan” by Anand Shankar Pandya and “Speeches of Mohammed Ali Jinnah and Dr. B.R. Ambedkar and Anti Hindus” by P. Goradia and K. Phanda; (x) Freedom of expression is not founded on the wisdom of the opinion or the amount of research put in before it is expressed; nor is it dependent on the quality of the literature, the art or the speech. It is founded on the inherent human right to express one's views and is subject to a limited deterrent that this shall not be permitted if it is aimed at social AJN 18 unrest, hatred, etc.; The freedom of expression of the applicant must be protected by quashing the Notification and lifting the ban on the book; (xi) What has been stated in the book is not untrue or unknown and is borne out by the recent events and publication in the media. The concept of global jihad; the desire for Islamisation of India, the belief of Muslim leaders that all Muslims are born Mujahids and they expect all true believers to give completely their possessions and persons to jihad even in this day and age have been published and circulated in newspapers. These are common perceptions of Indian society. If these newspapers have not brought about communal hatred, the respondents must explain how the book with a publication of about 10,000 copies is said to be ostensibly aimed at achieving this objective. (xii) With the advent of the internet, all information is available to everyone. Banning a book would not achieve the desired effect and, it would be a pointless exercise. Reliance was placed on the judgment of the Supreme Court in Ajay AJN 19 Goswami v. Union of India & Ors. (2007) 1 SCC 143. 11. In support of his submissions, Counsel relied on the Supreme Court’s judgments in Ramji Lal Modi v. State of U.P., AIR 1957 SC 620; Harnam Das v. State of U.P., AIR 1961 SC 1662; Narayan Das Indurkhya v. State of M.P., AIR 1972 SC 2086; Nawabkhan Abbaskhan v. State of Gujarat, AIR 1974 SC 1471; State of U.P. v. Lalai Singh Yadav, AIR 1977 SC 202; Balwant Singh & Anr. v. State of Punjab, AIR 1995 SC 1785; Manzar Syeed Khan v. The State of Maharashtra & Anr., (2007) 5 SCC 1 and Baragur Ramchandra & Ors. v. State of Karnataka & Ors. (2007) 5 SCC 11 and on the judgment of the Nagpur High Court in Bhagwati Charan Shukla v. Provincial Government C.P. & Berar, AIR (34) 1947 Nagpur 1. Reliance was placed on the judgments of this court in Gopal Godse v. The Union of India & Ors., AIR 1971 Bombay 56; M/s. Varsha Publications Pvt. Ltd. & AJN 20 Anr. v. State of Maharashtra & Ors., 1983 Cri.L.J. 1446 and Anand Chintamani Dighe & Anr. v. State of Maharashtra & Ors., 2002 (1) Bom.C.R. 57 and in Sangharaj Rupawate & Ors. v. Nitin Gadre & Ors. in Writ Petition No.1721 of 2004 decided on 26/4/2007. 12. The Advocate General submitted that (i) There are three facets of a valid notification. They are (a) The forfeited book must contain any matter; (b) Such matter must promote or must be intended to promote feelings of enmity or hatred between different classes of people; and (c) The notification must contain a statement of the grounds of the Government’s opinion. The first and the second requirements are set out in the second last paragraph of the Notification. The Notification promotes enmity between Muslims and Non-Muslims and which may outrage the feelings of the Muslims resulting in a breach of peace and acts of violence; (ii) The grounds of the opinion are stated in the Notification. The Notification AJN 21 satisfies all the requirements. It is not necessary to quote verbatim the offending paragraphs in the notification. Hence, the applicant cannot contend that matters not specified in the Notification cannot be relied upon by the respondents to substantiate their case; (iii) Grounds of opinion mean the conclusions of facts on which the opinion is based. Grounds can be brief and the Notification clearly indicates the grounds on which the respondent formed an opinion that the book contains matter which attracts the penal provisions of the IPC; (iv) The strict requirement of proving mens rea in criminal proceedings initiated under Section 153-A or 295-A will not apply to a notification under Section 95 because Section 95 only states that it has `to appear’ to the Government that a particular book contains matter punishable under the IPC; (v) After the respondent shows that the requirements of a valid notification are met, the onus shifts to the applicant. The applicant is bound to dislodge the opinion of the Government and if he fails to do so, the Notification must be sustained; (vi) The AJN 22 intention prescribed by the relevant Sections of the IPC can be gathered from the language, contents and import of the offending material and standard of proof is