State of Uttar Pradesh Vs. Lalai Singh
Yadav [1976] INSC 222 (16 September 1976)
KRISHNAIYER, V.R.
KRISHNAIYER, V.R.
BHAGWATI, P.N.
FAZALALI, SYED MURTAZA
CITATION: 1977 AIR 202 1977 SCR (1) 616 1976
SCC (4) 213
ACT:
Code of Criminal Procedure, S. 99-A--Scope
of--Whether 'Statement of grounds' a mandatory provision.
HEADNOTE:
The appellant Government passed an order
under Section 99-A of the Cr. P.C., 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 Government 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.P.C., & 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 statutorily 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 v. State of U.P.A.I.R. 1961 S.C.
1662, 1666--dictum applied.
Scheneck v.U.S. (1918) 249 U.S. 47, 527_-63
L.ed. 470, 473-474: Abrams v. U.S. (1919) 250 U.S. 616, 629=63 Led.
1173, 1180; Bowmen v. Secular Society Ltd.
(1917) A.C. 406, 466-7; Arun Ranjan Ghosh v. State of West Bengal (I.L.R.
1957 2 Cal., 396), Jwalamukhi v. State of
A.P. (I.L.R. 1973 A.P. 114) referred to.
Mohammad Khalid v. Chief Commissioner (A.I.R.
1968 Delhi 18 FB) Chinna Annamalai v. State (A.I.R. 1971 Madras 448 F.B.),
Bennet Coleman & Co. v. State of J & K (1974 J & K .L.R. 591)
approved.
CRIMINAL APPELLATE JURISDICTION: 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. Misc.
Case No. 412/ 70).
D.P. Uniyal and O.P. Rana, for the Appellant.
S.N. 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 s. 99A of the
Code of Criminal Procedure. In the view of the appellant government 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 s. 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 s. 99C of the Code, to the High Court which, by
its special Bench, allowed the application and quashed the notification. The
aggrieved State has appealed to this Court, by special leave. and counsel for
the appellant has urged before us that the Government notification 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 s. 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 s. 99A falls to be studied at
the threshold 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 manifesting written expression by citizens, are threefold, as flow
from a reproduction of the relevant parts:
"99-A(1) ---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 deliberately 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 Section 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
notification, declare every copy of the issue containing such matter to be
forfeited.
Does the present notification fulfill 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 offending 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 formally,
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 conditions 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 compliance
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 security 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 appendix
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 perspective, i.e., 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 circumstances 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 s. 99A with concern for the subject and cautionary
mandates 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 importantly, to state the grounds of its opinion.
We are concerned 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---1234SCI/76 620 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 forfeiture
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 s. 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 valuable right of
appeal to the Court is defeated. A construction of the section, fraught with
such pernicious consequence and tampering with the basic structure of the statutory
remedy, must be frowned upon by the Court if the liberty to publish is to be
restricted only to the limited extent the law allows. This reasoning is
reinforced by Harnam Das v. State of U.P.(1) 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 s. 99-D. It seems clear to us, therefore, that in such a
case the High Court must set aside the order under s. 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 linking 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 ratiocination 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 Art.
19. To relieve the State from the duty to
state grounds of forfeiture, in the face of the words of s. 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 individual rights and we are the slaves of the law that we may
be free.
(1) A.I.R. 1961 S.C. 1662, 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
opinion, 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 S.G. 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 freedoms. Dr. Ambedkar, in the
Constituent Assembly, argued that it is incorrect to say that fundamental
rights are absolute and quoted from Gitlow v. New York two self-speaking
passages:
"It is a fundamental principle, long
established, 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 disturb 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 everyone's
cranium must be saved from mayhem before his cerebrum can have chance to
simmer. Hatred, outrage and like feelings 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 criticisms or fearless exposure of primitive
obscurantism but ordered security is a constitutional value wisely to 622 be
safeguarded if progressives and regressives are to peacefully coexist. This is
the spirit of s. 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 fundamental rights does not necessarily
apply in India, the illuminating observations of Holmes J., serve to educate
the administrator and Judge. In Scheneck v. U.S.(1) 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 v. U.S.(2) he said:
"Persecution, for the expression of
opinions, seems to me perfectly logical. If you have no doubt of your premises
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 ultimate 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 competition 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 v. Secular Society Ltd.,(2) Lord Summer underscored the dynamism of
liberty and safety at once luminous and, elegant, in a purple passage:
(1) (1918)249 U.S.47.52=63 L.E.d.470.473-474.
(2) (1919) 250 U.S. 616, 629=63 L. ed. 1173,
1180.
(3) (1917) A.C. 406, 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 them, 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 preclude the possibility of its moving on
fresh experiences 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 jurisprudential 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 (s. 99A) fixes the mind of the Administration to the obligation
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 here say for one religion or sector
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 Discovery 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 s. 99A against the book in question it
is free to do so, subject of course to fulfillment of the requirement to state
the grounds of its opinion and the operation of s. 99C of the Code.
Our detailed discussion disposes of the
question of law and resolves the conflict immanent or apparent in the rulings
of the various High Courts ranged against each other.
They are: Arun Ranjan Ghose v. The State of
West Bengal(1);
and Jwalamukhi v. State of A.P. (2) which
support the view propounded by the appellant; and Mohammad Khalid v. Chief
Commissioner(3); China Annamalai v. State(4) and Bennet Coleman & Co. Ltd
v. State of J & K(5) 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
s. 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 retreating 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, H.G. 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.
(1)I.L.R. [1957] 2 Cal. 396. (2) I.L.R.
[1973] A.P. 114.
(3) AIR 1968 Delhi 18 (F.B.). (4) AIR 1971
Madras 448 (FB).
(5) 1974 J & K L.R. 591.
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 progressives,
in his 'A Grammar of Politics' states a lasting truth:
"There is never sufficient certitude in
social matters to make it desirable for any government 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 something 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 condition 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 reform. 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.
Back
