Baragur Ramachandrappa & Ors Vs. State of Karnataka & Ors  Insc 504 (2 May
B.P. SINGH & HARJIT SINGH BEDI
HARJIT SINGH BEDI,J.
This appeal by special leave arises out of the judgment of the Karnataka
High Court whereby the petition made by the tenth petitioner under Section 96
of the Code of Criminal Procedure for setting aside of the Notification dated
27th June 1997, forfeiting all copies of the novel "Dharmakaarana"
under Section 95 of the Code, has been dismissed.
The matter arises out of the following facts :
Basaveshwara, a great saint of the 12th Century, also known as "Basavanna"
was born in Bagewadi in Bijapur District, Karnataka State. His elder sister Akkanagamma
was a saintly woman. Her son Channabasaveshwara too grew up to be a great
social reformer and a preacher of Veerashaivism, a religious sect, and of the Basava
Philosophy. The family consisted of individuals of progressive thought who
sought to promote social reform in Hindu society and for that purpose preached
that all were equal.
Petitioner No.11 Dr. P.V. Narayanna published a novel in 1995 entitled
"Dharmakaarana" portraying the story of Basaveshwara, Akkanagamma and
Channabasaveshwara narrated in first person, the narrator being Basaveshwara
himself. The book was selected by the Karnataka Sahitya Academy for its annual
award as the best novel for the year 1995. It appears that some eminent figures
in the field of literature and otherwise, including Shri B.D. Jatti, the former
Vice-President of India wrote to the State Government that some of the
statements made therein were objectionable, inflammatory, hurtful and insulting
to the sentiments and feelings of the Veerashaivas and the followers of Basaveshwara,
and suggested that the novel should be forfeited. It also appears that the Akhila
Bharat Veerashaiva Mahasabha filed a suit in the City Civil Court at Bangalore
seeking an injunction restraining the Government from conferring the award on
the Author and for an order banning the publication and sale of the book on which
such an order was in fact made. Faced with this delicate situation, the State
Government issued a Notification dated 27th March 1997 under Section 95 of the
Code of Criminal Procedure (hereinafter called the 'Code'), ordering the
forfeiture of the book. A petition was thereafter filed under Section 96 of the
Code and while the matter was yet pending (and observing that the notification
had not been issued by the competent authority) the State Government withdrew
the said Notification and issued a fresh one on 27th June 1997. A petition under Section 96 of the Code was again filed by the Author Dr.
P.V. Narayana, on which the matter was referred for decision to a Bench of
3-Judges under sub-Section (2) of Section 96 thereof. The Judges examined the
matter in extenso and by their judgment & Order dated 16th April 1998 dismissed the petition. This judgment has been impugned before us after special leave.
The Court relying on several judgments of this Court and High Courts held that
an order under Section 95 of the Code was justified if it appeared to the State
Government that the published material contained objectionable matter and that
such matter was maliciously intended to promote feelings of enmity and hatred
between different classes of the citizens of India as envisaged under Sections
124-A, 153-A, 153-B, 292, 293 and 295-A of the Indian Penal Code, and that such
a Notification could not be said to be ultra-vires of Article 19(1)(a) of the
Constitution of India as it was a reasonable restriction imposable under the
Article. It further observed that the onus to prove that the publication did
not fall within the parameters of Section 95 of the Code rested on the person
who challenged the Notification by filing a petition under Section 96. The
Court then went on to examine the facts of the case in the background of the
legal position and observed that the story projected by the author in Chapter
12 that Channabasaveshwara was the illegitimate son of Akkanagamma as he had
been conceived out of wedlock was indeed hurtful . The Court further held that
the allegation that it was the public odium that had followed the pregnancy
that had compelled Basaveshwara and Akkanagamma to leave their home at Bagewadi
and shift to Koondusama was again an unwarranted accusation and without any
basis. The Court finally found that the explanation tendered by the author for
the change of residence was the subject matter of a raging debate amongst
historians and religious functionaries and he had merely adopted this story for
the Novel, was unacceptable and without any foundation.
It is these circumstances that the matter has come before us.
We have heard the learned counsel for the parties and gone through the
record carefully. At the very outset, Mr. Raju Ramachandran, the learned senior
counsel for the appellants has pointed out that the entire matter would have to
be examined in the backdrop of the philosophy and principles underlying
sub-clause (h) of Article 51-A of the Constitution of India which envisaged the
development of a scientific temperament, a feeling of humanism and a spirit of
inquiry and reform and the fundamental right to freedom of speech and
expression guaranteed under Article 19(1)(a) of the Constitution and the
proscription or forfeiture of a publication by the issuance of a Notification
under Section 95 of the Code must therefore strike a balance between the two
and as the Notification appeared to have been issued by the State Government
not on its own assessment or volition but under pressure from persons of high
social and political standing, it was unsustainable. It has also been pleaded
that from the book read as a whole it was clear that Basaveshwara, Chennabasaveshwara
and Akkanagamma had been depicted as saintly persons and social reformists, who
had visualized a new direction for society with the thesis that all men were
equal and had attempted to remove the social and religious disparities not only
by precept but by practice as well. It has finally been pleaded that there was
no malicious intention in the publication of the book as it had the character
of a novel with a historical background in as much that the circumstances
leading to the birth of Chennabasaveshwara and the departure of Basaveshwara
and Akkanagamma from Bagewadi was a matter of much debate and discussion
amongst the Veerashaivas themselves as also well known authors belonging to the
community and as such a fresh interpretation given to the controversy by the
author did not justify the forfeiture of the book.
The learned Advocate General for the State of Karnataka has, however,
pointed out that the freedom of speech and expression did not mean a licence to
an author to spew invective and vitriol and that the contents of the Book which
the author himself claimed to be a novel had to be scrutinized in the light of
the circumstances of those who were likely to read it. He has urged that the
attack on Akkanagmma was designed to portray her as of dubious character
particularly in Chapter 12, and even assuming that the author had a right to his
opinions, it did not justify baseless allegations against persons who were
venerated and revered by millions in South India as the story that Channabasaveshwara
was the illegitimate child of his mother was clearly a matter of deep concern.
The learned Advocate General has also highlighted that the circumstances
leading to the change of residence from Bagewadi to Koondusama was indeed a
matter of debate, yet it had never been suggested till now that it was the
ignominy of the pregnancy that had prompted the change. It has also been
pleaded that in the light of the clear terminology of Section 96 of the Code
the onus to show that the offensive publication did not violate Section 95 lay
on the author himself more particularly as it appeared from a reading of
Chapter 12, that the contents therein were prima facie intended to hurt the
sentiments of a section of the community.
The arguments raised by the Advocate General have been supported by the
learned counsel for the intervener, who added that a reading of the Novel
showed that the attack (though veiled) was in essence an attack on Basaveshwara
as he had objected to the ritualism promoted by the Brahmin and had preached
that all men were equal, the cobbler and the king being cited as an example,
which was in stark contrast to what had been preached earlier. In reply Shri Ramachandran
has reiterated that the book was only a novel and it had to be assessed as such
and as the forfeiture of the book would enure for all time the satisfaction of
the Government under Section 95 of the Code must be beyond doubt and without
malice or outside influence.
It is true that the inculcation of a scientific temperament and a spirit of
enquiry is essential for human development and is a sine qua non for progress
and for social change and Article 51-A (h) of the Constitution clearly
recognizes this principle. Likewise Article 19 (1)(a) of the Constitution gives
every citizen the right to freedom of speech and expression and this freedom is
yet another vehicle towards the same direction and goal. This Court in Indian
of India & Ors. (1985) 1 SCC 641 held:
"Freedom of expression, as learned writers have observed, has four
broad social purposes to serve: (i) it helps and individual to attain self
fulfillment, (ii) it assists in the discovery of truth, (iii) it strengthens
the capacity of an individual in participating in decision-making and (iv) it
provides a mechanism by which it would be possible to establish a reasonable
balance between stability and social change. All members of society should be
able to form their own beliefs and communicate them freely to others. In sum,
the fundamental principle involved here is the people's right to know.
Freedom of speech and expression should, therefore receive a generous
support from all those who believe in the participation of people in the
It is however clear that the freedom of speech and expression is not
unfettered and Section 95 of the Code exemplifies this principle on the
understanding that this freedom must be available to all and no person has a
right to impinge on the feelings of others on the premise that his right to
freedom of speech remains unrestricted and unfettered. It cannot be ignored
that India is country with vast disparities in language, culture and religion
and unwarranted and malicious criticism or interference in the faith of others
cannot be accepted. This Court while discussing the scope of Section 99-A of
the old Code (corresponding to Section 95 of the Code) in the Constitutional
context in (1976) 4 SCC 213 State of Uttar Pradesh vs. Lalai Singh Yadav
observed as under:
"After all fundamental rights are fundamental in a free republic,
except in times of national emergency, when 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."
It was also observed that it was the duty of the State, being a State based
on secular principles, not to take sides with one religion or the other but to
"create conditions where the sentiments and feelings of people of diverse
or opposing beliefs and bigotries are not so molested by rigid writings or
offensive publications as to provoke or outrage groups into possible violent
action" and that a drastic restriction on the right of a citizen imposed
by Section 99-A required that a strict construction be put on its
applicability. It finally concluded that:
"Construed in this condescend 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".
xxx xxx xxx xxx xxx "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 offence 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 tranquility
will become target of legal interdict by the State."
While further delineating the circumstances under which this provision could
be applied this Court in observed:
"The standard to be applied by the Board or Courts for judging the film
should be that of an ordinary man of common sense and prudence and not that of
an out of the ordinary or hypersensitive man. We, however, wish to add a word
more. The Censors Board should exercise considerable circumspection on movies
affecting the morality or decency of our people and cultural heritage of the
country. The moral values in particular, should not be allowed to be sacrificed
in the guise of social change or cultural assimilation.
Our country has had the distinction of giving birth to a galaxy of great
sages and thinkers.
The great thinkers and sages through their life and conduct provided
principles for people to follow the path of right conduct. There have been
continuous efforts at rediscovery and reiteration of those principles."
The Government thus has the power to nullify a publication which endangers
public order, although the freedom of expression in this situation is
undoubtedly restricted even though such freedom "is an indicator of the
permanent address of human progress". It must also be noted that it would
be difficult to examine all publications on a common yardstick and what may be
a laughable allegation to a progressive people could appear as sheer heresy to
a conservative or sensitive one.
Mr. Ramachandran's arguments that the action taken by the State Government
was not on its own volition and was therefore mala fide must also be rejected.
We are of the opinion that merely because some eminent personalities or group
of persons had taken it upon themselves to bring to the notice of the State
Government as to the inflammatory and baseless statements that had been made,
it would not amount to an abdication of the State of its functions. The
impugned Notification shows that the State Government had applied its mind to
the contents of the novel and the allegations made therein and taken a balanced
and reasoned decision on the matter.
It has been argued by Mr. Ramachandran that as Section 95 of the Code dealt
with what was in fact in the nature of a criminal offence, an opinion had to be
recorded by the State Government that the novel was malicious and intended to
outrage the feelings of a group or class of citizens and in the absence of
either of these ingredients, no order under Section 95 of the Code could be
justified. Elaborating his submission he has pointed out that the impugned
Notification did not specifically state that the Novel had been written with a
deliberate and malicious intention to outrage the feelings of the followers of Basaveshwara.
It has, on the contrary, been submitted by the learned Advocate General that
Section 95 of the Code did not constitute a criminal offence as it was merely
descriptive and designed to ensure that preventive action was taken before the offences
referred to therein could actually be committed. He has emphasized that the
word "appear" in Section 95 of the Code had to be read in this
context and after the State Government had taken the decision that the
offending publication did "appear" to be offensive, the onus shifted
to the opposite party to show to the contrary as was discernible from a bare
reading of Section 96 of the Code. The learned Advocate General has also placed
reliance on the Full Bench judgment of Patna High Court State of Bihar) in
support of this argument.
It would be evident from what has been observed above, the matter would have
to be examined in the light of the provisions of Section 95 and 96 of the Code.
These Sections are reproduced hereunder:
Section 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 124A or Section
153A or Section 153B 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.
(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
Sec.96. Application to High Court to set aside declaration of forfeiture. (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
(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 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.
It will be seen that Section 95 and Section 96 of the Code when read
together are clearly preventive in nature and are designed to pre-empt any
disturbance to public order. At the same time, we find that Section 95 does not
by itself create a criminal offence and the reference to the various sections
of the Penal Code are merely descriptive of the kind of offences which need to
be prevented by a declaration under Section 95. In this view of the matter, Mr.
Ramachandran's assertion that the onus of proof would lie on the State
Government is not acceptable as the intention has, to some extent, to be
inferred from the nature of the publication. It is true that a forfeiture of a
newspaper or book or a document is a serious encroachment on the right of a
citizen, but if forfeiture is called for in the public interest it must without
a doubt have pre-eminence over any individual interest. We also endorse the
argument of the learned Advocate General that the State Government must take a
pragmatic approach in the matter as explained by this Court in Lalai Singh Yadav's
"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." While dealing
with somewhat similar issues, the Patna High Court in Nand Kishore's case
"It would be somewhat fallacious to mathematically equate the
proceedings under Ss.95 and 96 of the Code with a trial under S.295-A of the
Penal Code with the accused in the dock.
The stringent requirements of the mens rea to be proved and established are
for the purpose of a conviction under this offence which carries a sentence up
to three years and fine and further went on to hold but indeed to require that
a deliberate and malicious intention must first be proved at the threshold
stage before the Government by evidence as a condition for acting under
S.95(1), as if an accused person was in the dock, would, in effect, virtually
frustrate the preventive purpose of the said section."
The Court then went on to elucidate that Section 95 did not require that it
should be "proved" to the satisfaction of the State Government that
all requirements of the punishing sections including mens rea were fully
established and all that S.95(1) therefore required was that the ingredients of
the offence(s) should "appear" to the Government to be present.
The Court further opined that the general rule that a man was presumed to
intend the natural consequences of his act would be attracted, and in
"The onus to dislodge and rebut the prima facie opinion of the
Government that the offending publication comes within the ambit of the
relevant offence including its requirements of intent is on the applicant and
such intention has to be gathered from the language, contents and import
It must also be observed that Section 96 itself takes care of any misuse of
the authority conferred under Section 95 and the right of an individual vis-a-vis
the larger public interest can be put under scrutiny as the final decision is
left to a High Court Bench of (if possible) three Judges.
To sum up, Section 95 of the Code is not violative of Art.19(1)(a) of the
Constitution, as the action taken thereunder is of a preventive nature and that
a extremely efficacious remedy under Section 96 of the Code is available to an
aggrieved party or person. It is significant, and it is clear from the very
large number of judgments that have been cited before us, that most of the
matters pertain to attacks on minorities or religious and social groups or
individuals who are perceived as being prodigals or heretics and therefore
unacceptable to the conservatives amongst the mainstream.
It cannot ever be over emphasized that India is a country with huge
diversities in language and religion and the weaker amongst them must be shown
extra care and consideration.
It is in this background the facts of the case now need to be examined. It
has been emphasized by Mr. Ramachandran that as per the judgment of this Court
in and Ors. (1996 ) 4 SCC 1 the book as a whole had to be looked at and a stray
sentence here or there picked up out of context could not be taken into account
and that assessed on this principle the impugned judgment and order was
unjustified as almost the entire novel was in praise of Basaveshwara and his
family. Elaborating his argument, Mr.
Ramachandran has pointed out that even the story portrayed in Chapter 12 had
not been revealed for the first time, as the circumstances leading to the birth
of Channabasaveshwara and the reason for the change in residence from Bagewadi
to Koondusama had been a matter of study, debate and speculation in the Veerashaiva
community - for generations, and had found its echo not only in numerous books
and articles but in lore and legend as well, and has in this connection,
referred us to Annexure P7 and to four documents collectively appended as
The learned Advocate General has, on the contrary, submitted that the author
himself had identified "Dharmakaarana" as a Novel and it had
therefore to be presumed that the story had no historical basis, and was a
figment of the author's imagination and Chapter 12 when viewed in this
background was clearly an affront to the sentiments of the Veerashaivas.
As already mentioned above, the Novel is in the first person, the narrator
being Basaveshwara himself. At the initial stage he talks very lovingly of his
sister and the care that she had taken of him (as a mother would a child)
recalling that his mother had died when he was very young. He further talks
about his younger days and his absorption and study of the Hindu religion and
his learning of Sanskrit Shalokas from a Brahmin. He then refers to a change in
his outlook and his dislike for blind ritualism, and a re-examination of the
ills afflicting Hindu Society, the complete dominance of the Brahmin over every
facet of life, and of the inequities in the social order. He then narrates a
story about a woman, Jabala by name, who was said to be a "debased one
" and goes on to state that when Jabala was questioned by her son as to
the identity of his father, she had replied that she was unable to identify him
as she had been with many men and when this story was narrated in all innocence
by the boy to his teacher the teacher was greatly impressed by his honesty and
courage to face the truth and accepted the boy as his disciple.
With this background, the story of Nagakka's pregnancy out of wedlock is now
narrated and is, for reasons of authencity and precision reproduced hereunder
in extenso from the translation provided by the learned counsel for the appellant:
"I was saying that Nagakka started looking after house-hold chores. The
responsibility of kitchen was entirely hers-excepting the three days of her
monthly period. I would have my food in Vishweshvara mama's home; and some
woman- folk of that house would bring food for akka, those three days. The life
went on like this. But once, for a long time that three-day period never came
to akka what could I know about all that? When they asked me about it, I
expressed my ignorance.
That day wife of Vishweshvara mama herself came to our house. She asked to
keep out for some time, and I did so. Where else could I go; I went to their
house to play with boys of my age-group.
I was about fifteen years of age then. I felt as if I knew about certain
things, and still had no clear idea. I had only a very vague idea of akka's
monthly three-day period, without certainly. After some moments, atte came to
her house, where I was playing, with panting breath; and explained something to
mama, all in a hushing manner, and concluded saying, 'things seem to have gone
wrong.' Though I could not get any definite idea of their talk, it was clear
that something fussy had taken place. I came back home running; even though it
was already evening, there seemed no light inside the house.
When I entered the house, I heard sobs emitting from within thick darkness;
I rushed towards the direction of that sound. I found akka sitting in a corner.
'What has happened, akka?' I asked, where upon the weeping became intense. I
lit the lamp with anxiety; I saw akka sitting with her head on bent knees. I
shook her body rigorously, when I felt her body burning like live- ember; I was
not sure if she had been having fever since morning or she had caught it
lately. Her face had beads of sweat all over; her face was like the corpse of
full-moon floating across the day time sky, luster-less. I put many questions,
compelled her to answer, I also wept, but not a word from her ; She was sitting
as if petrified stabbing her eyes at nowhere. The words atte had uttered before
mama-three-day-period, going wrong etcetera-- were causing some amorphous ideas
in me. But it was impossible for me to get angry with Nagakka, even if
dissatisfied only mock-anger, never real.
That whatever she had done, she could not have erred--was my firm belief.
After trying long to make her speak in vain, I kept quiet. We were two in the
house. It was pitch dark outside; and what else could be there inside as well?
More than the gravity of her wrong-deed, I was worried about what these people
could do to her. No food; no sleep. The long night was like the frightful mouth
of a demon gaping at us.
The night passed by somehow. The next morning Vishweshvara mava came. And
tried to elicit information from akka by putting several questions, but she was
silent as if she had been mute. When he was unable to get any information, he
turned to me in frustration and only said, what next?' I felt like weeping but
was not able to speak. I only waved my head to signal that I did not know
things either. Finally he declared: 'In what way can I help you? I shall
arrange a meeting of the mahajanas at ten galiges after sun- rise. We would all
be bound by the decision of the assembly.' He went away, instructing, 'You
should come with your sister when sent for.' Though he had it in a low tone, it
seemed to be tough.
We spent the time as we had the night. I was in utter confusion, not knowing
what to do. The neighbours started coming to our house, as if they came to know
of the developments. The young ones tried to pep into the house with curiosity,
while some elderly persons went directly into the house and heaped on her the
oft-asked question, 'what happened?' Unhhum: Akka never parted her lips !
Whether she could not speak, or she had stubbornly decided not to speak, she
was dumb to all queries. Silence was the only answer for all kinds of
questions: slow and sympathetic ones, scolding, rough ones and sarcastic
remarks. A few were fed up with her testing silence would cursingly say, 'to
hell with you' and go. Some remarks, 'She would only reap what she has sown' I
was helpless to the core, was only smouldering with anger at the remarks by the
visitors. If my position was that, what should have been her state! Time passed
somehow. We were sent for by Vishweshvara Somayaji, as told earlier. I made akka
stand with difficulty, and got her walk with my support. The assembly was full
we were asked to stand in a corner. After all the important persons came,
the volley of questions started from all sides. 'What is the matter?' was the
summary of all questions. Nagakka was a personification of silence. She must
have lost all her faculties. 'Give her a couple of thrashes, she would part her
lips,' suggested someone. 'Tche tche, could we lift our hands on a girl?' Countered
another. 'What else should be done with such bad characters?' 'Why should we
beat? Only the parents are empowered to do that. We should only go according to
the shastras.' A bundle of suggestions, strewn astray.
Could all the hearing have happened so swiftly? It, I fact, took quite a
long time. Only I do not have the details in my memory. Why should I remember
all that now and bring irritation to myself? I shall come to the concluding
part of the deliberations.
The mahajanas consulted among themselves extensively, at the end of which,
one of them said to me, 'Look, Basavaraja, it seems your sister has conceived
before marriage, or we do not know definitely about it. But she has not kept
regular period. She never utters a word in answer to our questions. So, we are
compelled to conclude that she has erred.' This was an introduction before
spelling out their verdict. I was not able to say anything, and I did not have
anything to say, either. The same gentleman continued, 'Well, we are left with
two options regarding this: One, she should subject herself to "ghatashraddha",
and you must disown her completely, let her get lost, and you can continue to
stay in the Agrahara.
What can you do, you are innocent. But, she has to take punishment.' My
heart started throbbing swiftly. Should Nagakka be left to go away? Tears
rolled down my cheeks in spate. I cast a tearful glance at akka. She was like a
standing corpse, petrified without an iota of reaction. He went on to say, 'The
second option is, in case you are ready to part ways with your akka, both of
you would face excommunication from us. If that is what you choose, you should
quit for ever the Agrahara by this evening.' 'Right' the assembly concurred
with the verdict. Their life in the Agrahara would go on as usual, even if
there would be two souls less there! Nagakka was the same unmoving epitome of
silence as she was since last night. She did not even look at me. She did not
weep, not a drop of tear in her eyes! 'I cannot live without akka,' I said with
my choking-voice. Everything had been settled; we had severed our connection
with our native place for ever.
I came back to "our" house, again giving support to akka to keep
her steps. I quickly made a bundle of a few of our clothes and got ready to
leave, muttering, 'Let us be gone from here. No more of living with these
demons.' I came out of the house forcefully pushing akka forward.
Though we were walking with our heads bet, we were aware that innumerable
pairs of eyes were fixed on us. After slowly taking a turn from our lane, we
reached the outskirts of the village. Who can do us what, with their anger?
What can the village do to us with its wrath? When we came to the parting road,
I turned towards the Agrahara once and spat "thoo" with gusto and
moved ahead without looking back."
A bare perusal of the above reveals that as a matter of fact Jabala has been
equated with Nagakka in terms of being of low character and whereas the former
had become pregnant, without a marriage the latter had been visited by so many
men that she did not know who had fathered her son.
As this story had been told by Basaveshwara himself in first person we note
the insidious and inflammatory suggestion, that he like Jabala's son, did not
shrink from facing the truth about his closest relative his sister with whom
he shared a mother son relationship. It is true that if the allegations made
in Chapter 12 were based in folk lore, tradition or history some thing in
extenuation could perhaps be said for the author. In this connection, Mr. Ramachandran
has referred us to Annexures P7 and P8 with the petition.
Annexure P7 is the translation of a blurb printed on the back cover of the
Novel and while referring to the credentials of the author it reads that the
12th Century constituted an enlightened period in the history of the Kannada
country and that Basaveshwara was the beacon of that period, and that the Novel
had been written after delving deep into his personality and the traditions of
the Veerashaiva Community. Annexure P7, thus, does not in any way advance the
petitioner's case and is in fact neutral. Annexure P8 (Colly) is, however,
material and we have therefore perused all the documents very carefully with
the counsel for the parties. The first document referred to by Mr. Ramachandran
is a translation of an Article by Dr. M.M. Kalburgi, Vice-Chancellor of the Kannada
University at Hampi, in the magazine 'Marga'. It reads that Chennabasavanna
was regarded as the son of Nagalambike, though the identity of the father was
not known and several alternatives have thereafter been spelt out. We find
however that there is no suggestion whatsoever that Akkanagamma had conceived
out of wedlock. Reference has also been made to an Article written by Dr. B.V. Mallapur,
Reader in Kannada, Karnataka University, Dharwad and published by the
Department of Kannada and Culture, Bangalore, which refers to the speculation
as to the circumstances leading to the birth of Channabasavanna and several
theories have been mooted but again without any suggestion of illegitimacy. Our
attention has then been drawn to an article by Dr. R.C.
Hiremath, an expert in the history of the Veerashaivas, and he too refers to
the speculation as to the birth of Channabasavanna, and to the belief amongst
common folk of the region that if those who were childless were to sing a
particular lullaby they would be endowed with children, and reference is made
to the fact that Akkanagamma had inadvertently swallowed some 'prasada' and had
become pregnant thereby, but there is again no suggestion as to her conception
out of wedlock. The author has also cited the other instances like those of Shankaracharya,
Seeta and Jesus who are believed to have taken birth in unusual circumstances.
We notice from Annexure P8 that there is no indication in any of the
articles that Akkanagamma was of low character to be equated with Jabala or the
slightest hint that Akkanagamma had conceived Channabasaveshwara outside her
marriage and had left Bagewadi in shame for that reason.
We therefore endorse the suggestion made by the learned Advocate General and
the counsel for the intervener that Chapter 12 is not in sync with the rest of
the novel and has been deliberately designed to be hurtful and to bring the
family to shame. We also have no hesitation in observing that the novel with
its complimentary passages in favour of Basaveshwara is merely a camouflage to
spin and introduce a particularly sordid and puerile story in Chapter 12.
As the forfeiture of the novel would have the result of shutting out its
publication and distribution for all time, we had requested Mr. Ramachandran to
consult his client to find out if he could be persuaded to remove the portions
which had been found to be offensive by the State Government. Mr.
Ramachandran had however come back and informed us that the author was
willing to remove only three or four references from the novel, which we have
found on examination, would be only cosmetic changes and would not satisfy the
need of the hour. We, accordingly, dismiss the appeal.
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