IN THE HIGH COURT OF JUDICATURE AT MADRASRESERVED ON : 21.07.2017

DELIVERED ON : 20.10.2017 CORAM

THE HON'BLE MR.JUSTICE M.M.SUNDRESHTHE HON'BLE MRS.JUSTICE PUSHPA SATHYANARAYANA

ANDTHE HON'BLE MR.JUSTICE R.MAHADEVAN

W.P.Nos.17615 of 2013 and 31237 of 2016and MP.No.2 of 2013, WMP.Nos.27107 and 27108 of 2016

K.Senthil Mallar .. Petitioner in both WPs

-vs-1.The Government of Tamil Nadu, rep. by its Principal Secretary to Government Public Department (SC) Fort St. George, Chennai -9.2.Tamil Sanga Palagai rep. by its Founder M.C.Tamilpithan(2nd Respondent impleaded as per the orderof this Court dated 21.09.2016 in MP.No.3/2013 inWP.No.17615 of 2013) .. Respondents

in WP.No.17615/2013The Government of Tamil Nadu,rep. by its Principal Secretary to GovernmentHome Department (Courts VIA)Fort St. George, Chennai -9. .. Respondent

in WP.No.31237/2016Writ petitions have been filed under Article 226 of the

Constitution of India praying to issue a writ of Certiorari tocall for the records from the respondent pertaining to theimpugned notifications No.146 dated 30.05.2013 and No.182 dated19.08.2015 respectively published through Tamil Nadu77Government Gazette (Extraordinary) and quash the same.

WP.No.17615 of 2013: For Petitioner: Mr.Lakshmi Narayanan for

Mr.P.Vijendran For R1 : Mr.R.Muthukumarasamy, AG assisted by Mr.R.Kumar, SGP For R2 : Mr.R.Sreerangan

WP.No.31237 of 2016:

For Petitioner : Mr.Lakshmi Narayanan for Mr.P.Vijendran

For Respondent : Mr.R.Muthukumarasamy, AG assisted by Mr.R.Kumar, SGP

COMMON ORDERR.MAHADEVAN, J.

The Writ Petition in W.P No.17615/2013 has been filed toquash the impugned notification No.146 dated 30.05.2013published by the first respondent in Tamil Nadu GovernmentGazette Extraordinary, whereby the book “Meendezhum PandiyarVaralaru” (kPz;blGk; ghz;oah; tuyhW) written by the petitioner,has been forfeited by invoking the powers under Section 95Cr.P.C on the ground that the contents therein are abusive andin the nature of promoting enmity between different castes.

2.The Writ Petition in W.P.No.31237/2016 has been filed toquash the impugned notification No.182 dated 19.08.2015published by the respondent Government in Tamil Nadu GovernmentGazette Extraordinary, whereby the book “Venthar KulathinIruppidam Ethu?” (nte;jh ; Fyj ;jpd ; ,Ug;gplk ; vJ>) written by the petitioner,which is a continuation of the earlier book, the subject matterof W.P.No.17615/2013, was ordered to be forfeited by invokingthe powers under Section 95 Cr.P.C.

3.Since the petitioner has authored both the books, both thewrit petitions were clubbed and heard together, by consent ofboth the parties.

4.The brief facts of the cases, are as follows:The petitioner, claiming to be hailing from Mallar

Community, has penned both the books. The first book “MeendezhumPandiyar Varalaru” was penned by him, claiming that Mallars also

known as 'pallars' are the descendants of the ancient Pandyakings and that, they are wrongly arrayed as “Dalits”, thoughhistory would reveal that they belonged to the agricultural andruling class, superior to other communities classified under theSchedule. Pitching for reclassification, the petitioner has inthe process of tracing the identity of mallars with Pandyas,based on quotes in various books, also penned the fall of Pandyadynasty and the rise and domination of other communities in thesocieties.

5.The petitioner has also claimed that Kuravar, Idayar,Pallar, Fishermen, Maraver are the basic and originalcommunities in Tamil Nadu and others now claiming to be thenatives of this State, are aliens. When a permission was soughtfor release of the book, which is the subject matter ofWP.No.17615 of 2013, the first respondent issued the impugnednotification No.146 dated 30.05.2013 forfeiting the same, underSection 95 Cr.P.C on the ground that the contents are abusiveand demeaning to other communities and therefore, would create alaw and order problem. Aggrieved over the same, the petitionerhas filed W.P.No 17615 of 2013 pitching for his fundamentalright of freedom of speech and expression under Article 19 (1)(a) of the Constitution of India.

6.During the pendency of the first writ petition, anotherbook, titled as “Venther Kulathin Iruppidam Ethu?” penned by thepetitioner in continuation with his earlier book and in the samelines tracing the identity of “Venthers” with mallars, wasforfeited by the Government vide the impugned notificationNo.182 dated 19.08.2015 for similar reasons. Challenging thesame and claiming that his work is purely sociological anddetermined to remove the stigma on the caste by declassifyingthe pallar community from being categorised as‘Adi-dravidars’ and 'Dalits', the petitioner has filedW.P.No.31237 of 2016 alleging that the impugned notificationsare in violation of Articles 14, 19(1)(a) and 21 of theConstitution of India.

7.The State, on the other hand, in the counter affidavit,has justified the forfeiture of both the books. The Governmentorder itself contains the extracts which strikingly areprovocative and entice violence disrupting the public harmonyand peace in the state with various castes and sub-castes.

8.Mr.V.Lakshmi Narayanan, learned counsel appearing forMr.P.Vijendiran, learned counsel on record for the petitioner,taking us through the law on the subject by the Hon'ble Supreme

Court and this Court as well as other High Courts in thefollowing decisions reported in (i)CDJ 1961 SC 336 (Harnam Dasv. State of Uttar Pradesh), (ii)(1976) 4 SCC 213 (State of Uttar Pradesh v. Lalai SinghYadav), (iii)(1988) 1 SCC 668 (Ramesh v. Union of India and others), (iv)(1989) 2 SCC 574 (S.Rangarajan v. P.Jagjivan Ram andothers), (v)(1994) 6 SCC 632 (R.Rajagopal @ R.R.Gopal and another v.State of T.N. and others), (vi)(2010) 7 SCC 398 (State of Maharashtra v. SangharajDamodar Rupawate), (vii)2010 1 SCC 689 (Kashi Math Samsthan and another v.Srimad Sudhindra Thirtha Swamy and another), (viii)CDJ 1970 MPHC 095 (Ramlal Puri v. State of M.P), (ix)1883 CRL.LJ 1446 (Varsha Publications Pvt.Ltd v. State ofMaharashtra and others), (x)CDJ 2002 BHC 1461 (Anand Chintamani Dighe and another v.State of Maharashtra and others), (xi)(2006) 3 MLJ 289 (Sony Pictures Releasing of India Ltd v.State of Tamil Nadu), (xii)CDJ 2007 BHC 507 (Sangharaj Damodar Rupawate and othersv. Nitin Gadre, Joint Secretary to the Government of Maharashtraand others), (xiii)(2010) 8 MLJ 877 : (2010) 5 CTC 134 (C.Sakthivel v.Commissioner of Police), (xiv)CDJ 2015 BHC 1639 (Sanskar Marathe v. State ofMaharashtra and others) and (xv)2016 (4) CTC 561 (S.Tamilselvan and another v. Governmentof Tamil nadu and others), would contend that the impugned orders are abridging thefundamental rights guaranteed under Articles 14, 19(1)(a) and 21of the Constitution of India. The learned counsel painstakinglycontended that when the right to freedom of speech andexpression is constitutionally protected, the contents of thebooks unless hit by Article 19(2), cannot be banned and in thepresent case, it cannot be said so. The learned counsel alsocontended that the object of the books was to resurrect thecommunity of the petitioner, tracing their origin as theerstwhile ruler of this land.

9.The learned counsel for the petitioner further contendedthat the petitioner has a Master’s degree in History and thebooks were penned after exhaustive research and the contents are

not merely the author’s comments but also extracts from thebooks of various authors, the details of which are available inthe foot notes. In the said process, the petitioner had tracedthe roots of his “ Mallar” community to the “Pandiyas”, whoruled this land earlier. Therefore, the statements even if onthe face of the books, look to be offensive, cannot be banned asthe earlier works were not banned and if the books are read as awhole, the object of the same and the subjective findings wouldbe found relevant. The learned counsel also contended that theimpugned orders came to be passed without affording anyopportunity to the petitioner.

10.The learned counsel also contended that after the sale ofover 1000 prints of the book and when there have not been even asingle incident of violence or agitation from any of theaggrieved communities, banning the first book is arbitrary andunwarranted. The counsel also contended that if the findingsbased on research, even if found to be hurting or abusive,cannot be banned, if they are nothing but expression of “truth”.

11.The learned counsel for the petitioner further contendedthat the object of the book was to point out to the communitypeople that they were once the agriculturists and rulers of thisland and that being above many other communities in social andeconomical strata, they have been classified on par with othersas “ Dalits” and “ Adi-dravidas” despite earlier being “Venthar”or the king. The learned counsel pointed out that necessity forthe book arose as the Government had classified them supressingthe history and erroneously under the Schedule without takingthe history into consideration. Also, considering the interestsof other communities and to avoid any conflict, the petitionerhas already filed a memorandum for each book, expressing hiswillingness to alter the contents of the books with thealterations and deletions. It was also pointed out by thelearned counsel that the references sought by the State werealso furnished in the additional typed set. Under suchcircumstances, contending that the banning of both the books byinvoking Section 95 (1) (a) of Cr.P.C as arbitrary and violatingthe freedom of speech, expression and personal liberty, thelearned counsel sought to quash the impugned orders in both thewrit petitions and allow the books to be released.

12.Per contra, Mr.R.Muthukumaraswamy, learned AdvocateGeneral assisted by Mr.R.Kumar, Special Government Pleader,pointing out the various paragraphs in both the books, referredin the impugned orders, contended that the contents of the booksare abusive, indecent and derogatory to other communities andleaders such as, Tvl. Pasumpon Muthuramalinga Thevar, Tvl.

Kamarajar, Tvl. Azhagumuthu Kone, Tvl.VeerapandiyaKattabomman, Tvl.Annadurai, Tvl. Ramasamy Padaiachi, Tvl.Karunanithi and the same would certainly entice hatred anddisharmony between various communities and affect the publictranquillity.

13.The Learned Advocate General also justifying the impugnedorders, contended that the right guaranteed under Article 19 (1)(a) is not absolute and would be subject to restrictions underArticle 19 (2) and therefore, the state was very much wellwithin its right to pass the impugned orders forfeiting thebooks. Further, as per Section 95 Cr.P.C, a book can beforfeited, if the publication and circulation of the same wouldlead to commission of offences punishable under Sections 124Aor section 153A or section 153B or section 292 or section 293 orsection 295A of the Indian Penal Code (45 of 1860 ).

14.The Learned Advocate General refuting the contention thatafter sales of over 1000 copies, the book cannot be banned,relying upon the earlier orders of this Court inW.P.No.6462/2013, contended that the said contention is false asthe permission was sought to release the book on 12/05/2013. TheLearned Advocate General also contended that the objection tothe book was already received by that time and the copy of thefirst book was received by the Government on 18/05/2013 andthereafter, by studying the entire book, the impugned order cameto be passed. It is only when the book was circulated after theban, the FIR was registered and the copies of the book wereseized.

15.The Learned Advocate General further contended that it isnot necessary to give any opportunity when an official Gazettepublication is effected invoking the powers under Section 95 ofCr.P.C and hence there is no abridgment of the fundamentalrights. The Learned Advocate General also contended that thecontents of the book are only the matter and the object of thesame does not matter. The language and contents reveal that theintention of the author is to spread hatred and disharmony underthe guise of research and therefore, the impugned orders whichwere passed after getting the intelligence report, are wellwithin the authority of the respondent. In support of hiscontentions, the Learned Advocate General relied upon thefollowing judgments reported in

(i)AIR 1971 MP 152 (Full Bench) (Ramlal Puri v. State ofMadhya Pradesh),

(ii)AIR 1951 Raj 113 (Premi Khem Raj Sharma v. ChiefSecretary),

(iii)AIR 1971 Bom 56 (Gopal Vinayak Godse v. Union of Indiaand others),

(iv) 1985 CRL.LJ 797(Pat) (Nand Kishore Singh and others v.State of Bihar and another) and

(v)1993 CRL.LJ 2040 (P& H) (Barjinder Singh v. State ofPunjab and others). After due consideration of all the materials, the impugned ordercame to be passed by the Principal Secretary, who has passed thelanguage test prescribed by the Public Service Commission.Insofar as the memorandum is concerned, the Learned AdvocateGeneral has submitted that the Government has decided to acceptall the alterations and deletions as such except the alternativeportion in pages 91 and 205 of the book “Meendezhum PandiyarVaralaru”, which will be accepted only if the petitioner submitsrelevant literatures before this Court and cites the same in therespective pages and in the bibliography.

16.In so far as the second book is concerned, it wassubmitted by the Learned Advocate General that the alterationsand deletions except in pages 18, 53 (ii), 85-86, 120, 122 and123 and page 58 will be accepted. Insofar as the alternativessubmitted for pages 18, 53(ii), 85-86, 120, 122 and 123 areconcerned, the same will be accepted if the references areplaced before this Court and mentioned in the book at respectivepages and in the bibliography. Regarding the alternative portionin page 58, the Learned Advocate General submitted that sincemany citizens falling under Scheduled Caste category areenjoying the benefit, it will create a flutter in the societyand would not be in the best interest of the people fallingunder the schedule. Hence, he emphazised the need for deletionof the portion. The Learned Advocate General also relied uponthe status report filed on 21.07.2017 to contend that though theextracts from the books have been furnished, the relevantsubstituted portions have not been specifically pointed out.Unless, the petitioner satisfies the first respondent, the bancannot be lifted and therefore, prayed that appropriate ordersmay be passed in this regard.

17.Mr.R.Sreerangan, learned counsel appearing for theimpleaded 2nd respondent, namely Tamil Sanga Palagai,highlighting the extracts from the banned book, pointed out thestatement against various communities and the manner in whichthe language used in many places. The learned counsel supportedthe stand of the Government that in the best interest of thesociety, the books have been rightly banned. Thus, the learnedcounsel sought for the dismissal of the writ petitions.

18.We have heard all the parties and perused all the

materials on record.19.The era of kings are long gone. Our country is the

largest democracy in the world. The words of MahakaviSubramaniya Bharathi that “Every citizen is a king”, becametrue, when democracy was made as one of the basic features ofour constitution. It implies that the fate of the country isdetermined by each and every citizen, exercising their votingpower. The transition or retention of power is determined by thesuccess in elections won in political battles, unlike before thecolonial era, when the ruler was determined by success in war.

20. This land of Tamil Nadu was predominantly ruled bychera, chola and pandiya kings. The other rulers included thepallava, the vijayanagara and nayakar dynasty. Thereafter, theMughals and the Europeans came. Chera kings reigned the westernpart of the present Tamil Nadu including Kerala, while the Choladynasty spread over the central and northern part and thepandiyas ruled the southern part. It could be arguably said thatthe chola dynasty at its peak extended their dominance to otherparts of the state also defeating the Pandiya kings andextending their rule even beyond the present day India. Historywould reveal that the Pandiya reign goes back to Before CommonEra and that they lost control over most part of present dayTamil Nadu mainly to the chola dynasty for considerable periodand could come back to power only during the 13th Century.Thereafter, the rise of the Nayakars, Vijayanagara Empire andthe domination of the Mughals, diminished any or negligiblechances of revival. Then, after the British rule, the presentday States were formed.

21.This land is the home to the oldest language, culture andcivilization. From the time immemorial, this land has had theculture of describing a person, based on his occupation andplace of residence. Thus, they formed a community which slowlyevolved into a caste. However, the necessities of life forcedpeople to venture into new areas of work, whereby one’s identitybased on work, could not be fixed and turned out to be evolvingor in other words, people whose caste was once determined, basedon a particular job, sprouted a new caste based on their newarea of employment. The caste and sub-caste systems wereincreased tremendously and as on date, it exceeds 362 excludingthe general/forward category.

22.Few communities became richer and started their dominanceover the poorer. At the dawn of Independence from thesuppressive and divisive colonial rule, the framers of theConstitution were conscious to protect the interest of diverse

communities in the country and thereby not only secured that allshould be treated equally by guaranteeing such treatment andprotection under Articles 14 to 18 of the Constitution of India.The policy of reservation in the fields of education and publicemployment, was introduced to uplift the economically weakerpeople, which in a way had lost its original purpose and becomea tool of political demand and vote bank politics. Offensesinciting communal hatred and disharmony and peace were also madepunishable under the Indian Penal Code. A Special Act was alsoenacted to curb the atrocities against the Scheduled Caste andScheduled Tribes, but similar protection has not been extendedto people of other communities and religions. The citizenscoming under the reserved categories, enjoy special benefits andconcessions in various forms and at various levels. Thecommunity of Mallar, identified with contemporary 'Pallar' fallsunder the Scheduled caste and they have been the recipients ofvarious benefits.

23. The petitioner, in his both the books, has claimed totrace his community “Mallar” to that of the agricultural andruling class of “Pandiyas” vis-a-vis “Venthars”. The saidcommunity in the later and present days, is identified with'pallar', denoting people who lived in low areas. We haveperused the objectionable contents in the books and the impugnedorders. It is the case of the petitioner that the object of thebooks is to establish their identity with Pandiyas and Ventharand to pitch for the removal of their classification from thescheduled caste as they cannot be treated on par with othercommunities in the schedule, which are much lower to hiscommunity both socially and economically.

24.It was agitated before us that the petitioner has givenhistorical references to the claim in the books, which even ifit seems to be against certain communities, are necessary inthe context and would not negate the presumption guaranteed infavour of the free speech and expression under Article 19(1)(a)of the Constitution. The learned counsel for the petitioner hasrelied upon various judgments including the decision of theDivision Bench of this Court reported in 2016 (4) CTC 561 (citdsupra) in the Perumal Murugan’s case, wherein all other cases onthe subject were referred to. Therefore, this Court feels thatit is suffice to refer to the said decision alone, wherein ithas been held as under:

“106. A large number of judgments on differentlegal principles were referred to. These are in thecontext of the right of expression vis-`-vis theStates duty to protect it, what constitutesobscenity, the right guaranteed to individuals under

Article 21 of the Constitution and also about theexistence of illegal courts in the form of KattaPanchayats. In order to avoid prolixity, we arereferring to these citations below under differentheads with just the crux of the case and theprinciple of law laid down therein, along with theplea propounded on the basis of these judgments:- I. FREEDOM OF SPEECH & EXPRESSION:(A) Freedom of Expression & Duty of the State toprotect Rights:

1) S. Rangarajan vs. P. Jagjivan Ram, (1989)2 S.C.C. 574 The case related to the revocationof the U Certificate granted to the film OreOruGramathile, which was an anti-reservationfilm. There were protests against this film.It was held therein that the effect of the socalled offending words must be judged from thestandards of reasonable, strong minded, firm andcourageous men and not those of weak andvacillating minds. It was further held that theState cannot plead its inability to handle theproblem of hostile audience. It is its obligatoryduty to prevent it and protect the freedom ofexpression.

2) Prakash Jha Productions vs. Union ofIndia, (2011) 8 S.C.C 372 This case involved thesuspension of the Hindi film Aarakshan by theState of Uttar Pradesh even after the CensorCertificate was issued on grounds that it wouldcause a law and order issue.

The Supreme Court held that the film was to beallowed to be screened. Law and ordermaintenancewas the duty of the State. The Court held that itis the duty of the State to maintain law andorder and therefore, the State shall maintain iteffectively and potentially.

3) Srishti School of Art, Design &Technology vs. Chairperson, Central Board of FilmCertification, 2011 (123) D.R.J.

In this case, the makers of the documentarycalled Had Anhadwere asked to carry out cuts,which the petitioner protested against.It was held that the cuts proposed were violativeof the petitioners right to free speech andexpression and was allowed.The Court observed that the Indian Constitutionprovides a democratic space to voice viewsunacceptable to others but for the reason it isunacceptable, it cannot be prevented from beingexpressed.It was thus held that a book must be read as awhole and the context must not be ignored and itis reasonable to see what would be the reactionof a common reader.

4) LYCA Productions Pvt Ltd vs. Governmentof Tamil Nadu, 2014 S.C.C. Online Mad. 1448 Inthis case, the producers of the popular Tamilcommercial feature film Kathiwere Sri Lankans andthe film was objected to owing to the nationalityof its producers. They were forced to sign anagreement to remove their names from the moviehoardings, which the police attempted to enforceagainst them.This Court held agreement not valid and cannot beenforced. It was observed that the letter ofundertaking cannot be relied upon by the Police,which cannot grant a seal of approval to suchletters of undertaking, as the same tantamountsto the creation of a super-censor Board. It wasfurther observed that the police should notpermit attempts of such blackmails to succeed,which if allowed, would automatically lead toextortion and the surrender of power ofgovernance and the rule of law to a fewintolerant people.

5) Ajay Gautam vs. Union of India, 2015S.C.C. Online Del 6479 The movie PK was sought tobe banned on the grounds that it hurt thereligious sentiments of the Hindus and violatedthe rights of the Hindus under Article 19(2).Holding that no one is captive audience and it isa conscious choice of a viewer, who is free toavoid watching the film, the case was dismissed.

6) S. Khushboo vs. Kanniammal, 2010 (5)S.C.C. 600 This case pertained to the quashing ofcases filed against the petitioner for remarksmade by her on pre-marital sex.This Court observed that a culture of responsiblereading is to be inculcated amongst the prudentreaders. Morality and criminality are far frombeing co-extensive. An expression of opinion infavour of non-dogmatic and non-conventionalmorality has to be tolerated as the same cannotbe a ground to penalize the author.

7) Sony Pictures vs. State, 2006 3 L.W.728. In this case, the ban imposed by the Stateof Tamil Nadu on the English film “The Da VinciCode” was challenged.

A learned single Judge of this Court observedthat when the State has a duty to prevent allthreats of demonstrations and processions whichamount to intimidating the right of freedom ofexpression, it cannot plead its inability tohandle breach of peace if and when it arises. Theorder imposing the ban on the film was thusquashed.

(B) FREEDOM OF EXPRESSION & OBSCENITY1) K.A. Abbas vs. Union of India, (1970)

2 S.C.C. 780 The case related to the documentaryA tale of 4 cities, which was not givenUCertificate, against which the writ petition wasfiled challenged.

It was held that pre-censorship was correct asper the Constitution. The Court observed thatstandards of obscenity must not be at the levelof the most depraved to determine what is morallyhealthy for a normal person. It is not theelements of rape, leprosy and other socialproblems that should be censored, it is themanner in which such themes are handled.

2) MaqboolFida Hussain vs. Rajkumar Pandey,

2008 Cr. L.J.4107 This case, which was decided byone of us (S.K. Kaul, C.J.), related to privatecomplaints filed against the noted painter M.F.Hussain for allegedly vilifying Hindu Gods andGoddesses through his art work.

It was observed therein, quoting with approvalthe ratio of Samaresh Bose vs. Amal Mitra (1985)4 SCC 289), that for the purposes of judgingobscenity, the judge must first place himself inthe shoes of the author in order to appreciatewhat the author really wishes to convey, andthereafter, he must place himself in thatposition of the reader of every age group inwhose hands the book may fall and then arrive ata dispassionate conclusion. The complaints werethus quashed.

3) Nandini Tiwari vs. Union of India, 2014S.C.C. Online Del. 4662 This case involved a writpetition filed to ban the Hindi film FindingFannyfor using the word Fanny.

The writ petition was dismissed observing thatobscenity has to be judged from the point of viewof an average person, by applying contemporarycommunity standards. It was held that if areference to sex by itself is considered to beobscene and not fit to be read by adolescents,the adolescents will not be in a position to readany novel and will have to read books which arepurely religious.

(C) OBLIGATION OF STATE TO PROTECT RIGHTS OFINDIVIDUAL UNDER ARTICLE 21:

1) NHRC vs. State of Arunachal Pradesh,(1996) 1 S.C.C. 742 This case challenged thethreats doled out to the Chakma refugees settledin Arunachal Pradesh by the local tribes to leavethe State.

The Court held that the State had a duty toprotect the rights of the Chakmas. The Courtobserved that the State is bound to protect the

life and liberty of every human-being, be he acitizen or otherwise, and it cannot permitanybody or group of persons to threaten. It wasalso held that the State Government must actimpartially and carry out its legal obligationsto safeguard the life, health and well-beingwithout being inhibited by local politics.(2)….

(D) KATTA PANCHAYATS………The question thus which required to be posedis whether the State police machinery could havepossibly prevent such an occurrence and if theanswer is yes, then the State is duty bound toprotect the fundamental rights of its citizens,an inherent aspect of Article 21 of theConstitution of India.

(E) BANNING OF BOOKS UNDER SECTIONS 95 AND 96,Cr.P.C.

1) Uttar Pradesh vs. Lalai Singh Yadav, A.I.R.1997 S.C. 202 In this case, the book Ramayan A TrueReading written by EVR Periyar was banned by theState of Uttar Pradesh without any reason. This waschallenged.

It was held that the Government had to necessarilystate reasons for banning a book. The Court observedthat the constitutional rapport between the penalSection 99A of IPC and the fundamental right underArticle 19 was emphasized.

It was held that the triple facets of a valid orderbanning a book are : (i) that the book or documentcontains any matter; (ii) such matter promotes or isintended to promote feelings of enmity or hatredbetween different classes of the citizens of India;and (iii) a statement of the grounds of Government'sopinion. The Court observed that if the Governmentitself cannot invoke the power under Section 99-AIPC, how can a group of self-serving persons decideto use their number power to achieve what is notpermissible even under the provisions of law?

2) Raj Kapoor vs. Laxman, A.I.R. 1980 S.C. 605This case concerned the film “Satyam ShivamSundaram”,and a case was filed under Section 292, IPCconcerning its title, which the Court ultimatelyquashed.

3) State of Maharashtra vs. Sangharaj DamodharRupawate, (2010) 7 S.C.C. 398 This was an appealchallenging the order of the High Court striking downthe Notification of Maharashtra Govt banning andforfeiting the book Shivaji Hindu King in IslamicIndia.

In this case, the Supreme Court laid down the legalaspects that have to be kept in mind while examiningthe validity of a notification in such matters......

110. We also note that the language deployed inbooks may vary from more sophisticated versions withpolished language being used to a more colonial andcrass local dialect. There are, of course, boundariesqua use of an abusive language. But then therealities are harsh they are not a bed of roses.Thus, when a book deals with certain social aspectslike the suffering of women or the socially andeconomically weaker sections of the society and theirtravails, they may tend to seem harsh. Similarly,even in cinematographic representations, the realityat times has to be portrayed in such a manner that itmay shock the viewer, in order to send the messageacross.

111. We are faced with a delicate situation of abook raising social issues. Has it crossed theboundaries? In deciding the weight of the balancebetween what may be construed as 'morality' and'artistic creativity and expression', one walks onice. Are even the travails of a childless coupledealing with social stigma in the context of sociallyand economically backwardness to be represented in amore “decent” way? Does the story bear any semblanceto what is the ground reality or is it a figment ofimagination of the author? In this context, whatwould be the difference between a historical book and

a novel?

135. No freedom is absolute and thus, even theright of freedom and expression is circumscribed byArticle 19(2) of the Constitution of India. Thewritings emanate from ancient times and what was notexpected earlier became acceptable later on…

136. How to test obscenity? A common test whichcan be followed is that (a) a book when read as awhole appears lascivious or raises lustful thoughtsor desire; and (b) when the book contains noliterary, artistic, political or scientific value. Nodoubt, the burden to prove the same is on the partyseeking a ban. There are many occasions where theState has intervened by banning a book. It is clearlynot so in the present case. 'Decency' and 'obscenity'are relative terms. Would it be desirable for theCourts to intervene or should it be left to thereaders to learn for themselves what they think andfeel of the issue in question? There are oftenchallenges raised with good intentions, includingkeeping it away from the reach of children. But itmay not be in its entirety. One may look atcinematographic representations where films arecategorized by the age profile which is permitted towatch it. In that sense, there appears to be no suchprocedure forbooks.

137. ……The authors narrative is stated to beidentifiable to a specific group of people in aspecific region. The plea of novelized history isalleged to have not been established through anymaterial which is contextual, and the novelintrinsically is alleged to be obscene. The referenceto the place of the occurrence and the dates areaspects which are treated as critical, though theprogeny to be conceived would be called the Child ofGod. There is no doubt that the language used in thenovel, especially the Tamil version, can be said tobe rustic and a little crass. Is that by itselffatal? To our mind, the answer to this would be inthe negative. There has to be something more toclassify the novel as obscene per se or forrequirement to delete certain parts of the novel.

151. ………………It is not to be judged by the eyes of

the insensitive which sees only obscenity ineverything. The judge has to place himself in theposition of the author in order to appreciate whatthe author really wishes to convey and thereafter,placing himself in the position of the reader inevery age group in whose hand the book is likely tofall, arrive at a dispassionate conclusion. This iswhat we have endeavored to do [a principle reiteratedin M.F. Hussains case (supra) by reference toSamaresh Bose's case(supra)].

152. It is from the standard of a reasonable,strong and firm minded person that we have to testthe book and not that of a person who in every contrapoint of view smells a danger. It is this view whichhas found favour in Tasleema Nasreen's case (supra)by reference to the earlier judicial pronouncements.

159. In the aforesaid context, the plea of thelearned counsel for the publisher becomessignificant, that it was not the claim of the authorthat he had referred to any written text so as tocome to a particular conclusion. In fact, thepractices prevalent are also claimed to be based moreon folklore, which certainly is not documentedhistory, as enunciated by us hereinbefore. It iscarried by word of mouth. It relates to a muchearlier period. We cannot really in substance saythat the arguments advanced on behalf of the authorand the publisher are contradictory as sought to becanvassed by the persons opposed to the novel on theground that on the one hand the publisher wasclaiming the novel to be based on folklore, while onthe other hand, the author was pleading that it wasonly a novel which was set to be located in aparticular area, which often happens while writingbooks. It does not necessarily mean that if there isa reference to any geographical area qua a custom ora practice, that practice should be directlycorrelated to it. However, we must say that in thenovel in question, there is a reference not only tothe area, but also to the temple and the traditionsof that place. The Authors Note at the end of thenovel also refers to his search for historicalinformation about the town. But, all this has to beread holistically as folklores of the area which havebeen referred to in the novel, which is primarilybased on the turbulent circumstances a childless

couple goes through in a typical societal setup. Atthe cost of repetition, we seek to emphasize that thetheme of the novel is the travails of this couple,and the reference to the so called practice is only asuggestion put forth to the protagonists by their ownfamily members, as a means to attain parenthood.

161. If the novel was really that offensive, theState would have exercised its power under Sections95 and 96 of the Code of Criminal Procedure. On theother hand, the novel has been receiving accoladesfrom different literary forums which are associatedwith quality writings.

169. The novel must be understood in its trueperspective and storyline and the mere use of a morecrass or earthy language to convey the dialoguescannot be the basis to take on the author and make itinto a larger social issue only because a particulartemple or site has been referred to in the novel,which also stands subsequently withdrawn by theauthor in the sequels to thenovel.

171. There is a dual consideration which arisesfor consideration. The first is whether such a peaceinitiative in the given situation was misplaced andthe second is whether in subjects of this naturedealing with art and culture, where there aredifferent points of view, there should be Stateintervention and if so, to what extent?

172. We had noticed the fact at the inceptionthat we were troubled by the State interventions insuch subject matters are not simply matters ofbrokering peace. There are different and variantthought processes on social mores and while each maybe entitled to his own view, it cannot be forced downthe gullet of another. It is not unusual to see now acampaign against a book, a film, a painting, asculpture and other forms of artisticrepresentations. Art is often provocative and ismeant not for everyone, nor does it compel the wholesociety to see it. The choice is left with theviewer. Merely because a group of people feelagitated about it cannot give them a license to venttheir views in a hostile manner, and the State cannotplead its inability to handle the problem of a

hostile audience (S.Rangarajan's case supra). A vagueconstruction therefore, of a possible deplorableimpact on a certain section is not reason enough todeprive an artist of his expression. Even more so ina democratic country like ours. This aspect has beenemphasized while dealing even the film Aarakshan, therelease of which was suspended by the State evenafter the Censor Board Certificate was issued, on theground of possibility of a law and order problemarising. In Prakash Jha Productions case (supra), itwas held that it was the duty of the State tomaintain law and order. The Constitution of Indiaitself provides a democratic space to voice one'sviews unacceptable to the others, but because it isunacceptable cannot be reason for itself to preventit from being so expressed.

175. In M.F. Hussain's case (supra), the Courthad expressed the importance of freedom of expressionas an after speech as there can be no freedom ofspeech if there is no freedom after that, to survivewith that view:- “Democracy has wider moral implications than meremajoritarianism. A crude view of democracy givesa distorted picture. A real democracy is one inwhich the exercise of the power of the many isconditional on respect for the rights of the few.Pluralism is the soul of democracy. The right todissent is the hallmark of a democracy. In realdemocracy the dissenter must feel at home andought not to be nervously looking over hisshoulder fearing captivity or bodily harm oreconomic and social sanctions for hisunconventional or critical views. There should befreedom for the thought we hate. Freedom ofspeech has no meaning if there is no freedomafter speech. The reality of democracy is to bemeasured by the extent of freedom andaccommodation it extends.”

Thus, it is not an issue where the State shouldrefrain from interfering, but there is requirement ofpositive measures of protection to be taken againstsufferance as a consequence of holding that view. Thejudgments referred to aforesaid include eveninternational opinions in this field.

176. The fact that the State is duty bound toprotect an individuals freedom of expression reflectseven in international judgments on this aspect.Reference was made to Dink vs. Turkey, CaseNos.2668/07 6102/08, 30079/08, 7072/09 and 7124/09decided on 14.9.2010, involving an Armenianjournalist by name Dink Firhat in Turkey, who hadwritten a series of articles analyzing the identityof Turkish citizens of Armenian origin. This resultedin him being charged with the offence of DenigratingTurkishness. During the course of his trial, DinkFirhat was assassinated by an ultra-nationalistorganisation. A seven judge bench of the EuropeanCourt of Human Rights unanimously held that Turkeywas guilty of not protecting the individuals freedomof expression under Article 10 of the EuropeanConvention on Human Rights as they had a proactiveobligation of protecting his right to express hisopinions. The Court had the following observations tomake (para 106, concurring opinions of Judge Sajo andMrs. Says Tsotsoria) :- “…….the real and effective exercise of freedom ofexpression does not depend merely on the State'sduty to refrain from interference, but mayrequire positive measures of protection, even inrelationships between individuals. Indeed, insome cases, the State has a positive obligationto protect the right to freedom of expressionagainst damage even from private persons”. “There is a positive obligation of the State tothe prevent censorship by such (mob) groups and apositive obligation on the State to protect thelife and freedom of expression of the writer.”

184. We, however, find some important aspects inthe suggested guidelines, which we would like to putdown as under:-

(i)There is bound to be a presumption infavour of free speech and expression as envisagedunder Article 19(1)(a) of the Constitution ofIndia unless a court of law finds it otherwise asfalling within the domain of a reasonablerestriction under Article 19(2) of theConstitution of India. This presumption must bekept in mind if there are complaints against

publications, art, drama, film, song, poem,cartoons or any other creative expressions.

(ii)The State's responsibility to maintainlaw and order would not permit any compulsion onthe artistes concerned to withdraw from his/herstand and non-State players cannot be allowed todetermine what is permissible and what is not.

(iii)It is high time the Governmentconstitutes an expert body to deal withsituations arising from such conflicts of views,such expert body to consist of qualified personsin the branch of creative literature and art sothat an independent opinion is forthcoming,keeping in mind the law evolved by the judiciary.Such an expert body or panel of experts wouldobviate the kind of situations we have seen inthe present case. In such matters of art andculture, the issue cannot be left to the policeauthorities or the local administration alone,especially when there is a spurt in suchconflicts.

(iv)The State has to ensure proper policeprotection where such authors and artistes comeunder attack from a section of the society.

(v)Regular programmes need to be conductedfor sensitizing officials over matters dealingwith such conflicts of artistic and literaryappreciation.”

Ultimately, the ban sought by the petitioner on the noveltherein was rejected. It is also pertinent to point out hereinthat the State had not exercised its powers under Sections 95and 96 of Cr.P.C as it had in the present case and the case ofthe petitioner is that the contents are not fiction, but trueaccord of transformation of various communities. As observed bythe Division Bench, stepping into the shoes of a reader ofdifferent age groups, the contents of the book, the languageused therein against various communities including women,linguistic migrants and women folk of other state, keeping inmind the object of the author has to be analysed.

25.As rightly pointed out by the counsel for the petitioner,the presumption is always in favour of freedom of speech andexpression as laid down by this Court in the Perumal Murugan’scase (cited Supra). This Court had also recommended theGovernment to establish a committee to deal with such sensitiveissues before any preventive action is initiated by them. It isalso inarguably clear that the presumption under Article 19(1)

(a) is subject to restrictions imposed in Article 19 (2) of theConstitution.

26.It is settled law that the extent of State interventionin the matters of arts and culture is limited to circumstancesenumerated under Article 19(2), which reads as under:

“Article 19 (2):-Nothing in sub clause (a) of clause ( 1 )

shall affect the operation of any existing law,or prevent the State from making any law, in sofar as such law imposes reasonable restrictionson the exercise of the right conferred by thesaid sub clause in the interests of thesovereignty and integrity of India, the securityof the State, friendly relations with foreignStates, public order, decency or morality or inrelation to contempt of court, defamation orincitement to an offence”.

27.Once, it appears to the State that the circumstances asenumerated under Article 19(2) are attracted, it will exerciseits powers under Section 95 of Cr.P.C, which reads as under:

95. Power to declare certain publicationsforfeited and to issue search warrants for thesame. Where-(a) any newspaper, or book, or(b) any document, wherever printed, appears tothe State Government to contain any matter thepublication of which is punishable under section124A or section 153A or section 153B or section292 or section 293 or section 295A of the IndianPenal Code (45 of 1860 ), the State Governmentmay, by notification, stating the grounds of itsopinion, declare every copy of the issue of thenewspaper containing such matter, and every copyof such book or other document to be forfeited toGovernment, and thereupon any police officer mayseize the same wherever found in India and anyMagistrate may by warrant authorise any policeofficer not below the rank of sub- inspector toenter upon and search for the same in anypremises where any copy of such issue or any suchbook or other document may be or may bereasonably suspected to be.(2) In this section and in section 96,-(a) "newspaper" and "book" have the same meaningas 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 thissection shall be called in question in any Courtotherwise than in accordance with the provisionsof section 96.”

28.To arrive at a decision to forfeit or ban an artisticwork in the form of book, it is duty of the State to evaluatethe contents independently within the frame work of law dehorsany objection raised by any aggrieved party. When it is claimedthat the contents are anthology with the personal opinion of theauthor, it calls for great caution and prowess from the State,while exercising its authority under Section 95 of Cr.P.C andArticle 19 (2) of the Constitution.

29.On the other hand, it has been agitated before us by thelearned Advocate General that the contents and comments in thebooks against other communities and linguistic minorities areprovocative, indecent, derogatory and would promote enmitybetween various communities. It was also pointed out thatabusive language has been employed at many places against theleaders of various caste outfits, present and yester yearleaders and women and therefore, following the procedure ascontemplated under Section 95 of Cr.P.C, to prevent anytoward incident, the impugned orders came to be passed.

30.At this juncture, it is relevant to extract the portionof the contents as quoted in both the impugned orders issued bythe respondent Government vide publications, which read asfollows:Tamil Nadu Government Gazette No.146 dated 30.05.2013:

1/ ntshz;ik vd;why ; vd;dbtd ;W bjhpahj ntshsh ; . bts;shsh ; vd;W ntlk ;g{z;L btw ;W Kyhk ; g{rp xg ;gid bra ;J bfhs;fpd ;w gps ;is rhjpapdh ; jkpHh ; nth ;fspd ;K :yf ; Foapdh ; my;yh ; vd;Wk ; ,Ue;jhYk ; mjpfhuj ;ijg ; gad;gLj ;jp rpyh ; j' ;fsJbghl;Lf ;fl ;o rhjpahd rpd ;dnksk ; vd;Wk ; bjY';Fr ; rhjpapid *,ir ntshsh ; * vd;Wk ; ,l ;Lf ;fl ;o vGjp kfpH ;fpd ;wdh ; (gf ;fk ;?91)

2/ te ;njwp tLf eha ;f ;fh ;fSf ;F Fw ;wg ;guk ;giu kwth ;fs ; kl ;Lkpd ;wp gps ;isfs ;.nrh ;itf ;fhuh ;fs ; . kzpaf ;fhuh ; . nrJuhah ; . jiytdhh ;. td;dpa tiyah ;. brl ;ofs ; . Kjypahh ;Kjypa rhjpapdh ; fhl ;of ; bfhLg ;g [fisr ; bra ;J M';fpnyah ;fSf ;F mogzpe ;J gpiHg ;g[ elj ;jp te ;jdh ; (gf ;fk ;?205)/

3/ kwth ;fs ; khL jpULtjpy ; if njh ;e ;jth ;fshth ; / kJiug ; gFjpapy ; kwth ;fs ;khLfisj; jpULtjw;Fj ; jdp El;gj ;ijna ifahz;ldh ; (gf ;fk ;?217)/

4/ gpuhkzh;fs ; ghrh' ;Ff ;fhuh ;fs ; . kwth ;fs ; rl ;l jpl ;l' ;fSf ;Ff ;fl ;Lg ;glhjth ;fs ; . brl ;o <df ;Fzk ; cilath ;fs ; . bts;shsh ; jd ;dyf ;fhuh ;fs ; . ehaf ;fh ;ke ;jkhdth ;fs ; . fs;sh ; kiwe ;J xspe ;J gJ';Ffpwth ;fs ; / Fwth ;fs ; epiyapy ;yhky ; miye ;Jjphpgth ;fs ; . giwah ; tuk ;g [ kPwp ghypay ; bjhHpypy ; <LgLgth ;fs ; (gf ;fk ;?219)/

5/ kwth ;fs ; . ehaf ;fh ; . bul ;o. rf ;fpypah ; . Kjypa rhjpapdUf;Fk ; . nfhapYf ;Fk ;ahbjhU cwnth bjhlh ;ngh fpilahJ vd;Wk ; . nfhtpy ; jpUtpHhtpd ; nghJ tpliy vwpag ;gLk ;tpliyj ; nj' ;fha ;j ; Jz;Lfisg ; bghWf ;f tUk; kwth ;fs ; ghz;oaDf ;Fg ; gyp bfhLj ;jMl;Lf ; fplha ;fspd ; jiyiaj; jpUor ; brd;wnghJ gs ;sh ;fshy ; moj ;J tpul ;lg ;gl ;l tPutuyhW (gf ;fk ;?479).

6/ ehlhh ;fisj ; J}f ;fpf ; bfhs ;isapl ;L te;j kwth ;fsplkpUe ;J ehlhh ;fisg ;ghJfhf ;f vz;zp fhkuhrh ;. ,k ;khDnty ; nrfuidf; ifapbyLj ;Jf ; fh' ;fpuf ; fl ;rpapy ; ,izj;J gs ;sh ;fisf ; bfhz;L kwth ;fisj ; jhf ;fpdhh ; (gf ;fk ;?115)/

7/ ,k;khDnty ; nrfudpd; rPhpa nehpa gzpfisf; fz;L m"; rpa gRk;bghd ; c/Kj;Juhkyp' ;fk ; kwth ;fisf ; bfhz;L gs;sh ;fSf ;F vjpuhff ; fytuk ; bra ;jhh ; / mjd;tpisthf 1957?y ; ,k ;khDnty ; nrfuDf;Fk ; Kj;Juhkyp' ;fj ;jpw ;Fk ; fUj;J nkhjy ; Vw ;gl ;lJ/,jidg; bghWj ;Jf ; bfhs;s Koahj Kj;Juhkyp' ;fk ; kwth ;fis J}z;otpl ;L 11/09/1957?y ;gukf ;Foapy ; itj;J btl ;of ; bfhd;whh ; (gf ;fk ;?115)/

8/ vl ;lg ;g ehaf ;fd ; btw;wpiy vr ;rpy ; Jg ;g [k ; nghJ mjid btz;fyf ;Ftisapy ; Ve ;jpg ; gpof ;Fk ; nritj;bjhz;L bra ;J te ;jtnd mHFKj;J nrh ;it (gf ;fk ;?166)/

9/ fl ;l bghk ;K eha ;f ;fid tpLjiyg ; nghuhl ;l tPuuhff ; fhl ;Lfpd ;wth ;fs ; .fl ;lbghk ;K eha ;f ;fid M';fpnyah ;fSf ;Ff ; fhl ;of ; bfhLj;j vl ;lg ;g eha ;f ;fDf ;Fnrh ;itf ;fhudhfj ; bjhz;L :H pak ; bra ;J te ;j mHFKj;Jr ; nrh ;itia mHFKj;Jf ;nfhdhf ;fp. tpLjiyg ; nghuhl ;l tPudhf ;fp. cz;ik tuyhW vd;dbtd ;nw tps' ;fhjthWkf ;fisf ; FHg ;gpa [s ;sdh ; (gf ;fk ;?166)/

Tamil Nadu Government Gazette No.182 dated 19.08.2015:1/ jkpHh ;fspy ; ciHf ;f kWj;j Tl;lk ; ghiy epyj ;jpy ; thH ;e ;J bfhz;L tHpg ;gwp. jpUl ;L

Mfpa *Mwiyj ;jy ; * bjhHpypy ; <Lgl ;L te ;jjhy ; mth ;fs ; vapdh ; vd;Wk ; fs ;sh ; . kwth ; vd;Wk ;miHf;fg ; bgw;wdh ; (gf ;fk ;?18)/

2/ gl ;oaypy ; cs;s rhjpfspy ; td;dpah ;fisa [k ; nrh ;f ; f Kad;wnghJ ,uhkrhkp gilahr ;rpmjidj; jLj ;J tpl ;lhh ; / ehlhh ;fshfpa rhzhh ;fis gl ;oay ; rhjpfspy ; (SC) ,lk ; bgwtplhky ; ehlhh ;rK:fj ;j pdh ; ghh ;j ;Jf ; bfhz;ldh ; (gf ;fk ;?41)/

3/ mz;zhj ;Jiuapd ; jtwhd bkhHp bgah ;g ;ig Vw;Wf ;bfhz ;L *Mjp jpuhtpld ;* vd;wbrhy;iyg ; gad;gLj ;j 1980?y ; Miz gpwg ;gpj ;jJ (gf ;fk ;?47)/

4/ ks;sh ;fs ; jhH ;j ;jg ; gl ; lth ;fs ; vd;why ; fs;sh ; . kwth ;fistpl vg ;goj ;jhH ;j ; jg ; gl ; lhh ;fs ; > nfhdhh ; . rhzhiutpl vg ;goj ; jhH ;j ;jg ; gl ; lhh ;fs ; > tz;zhh ; . mk ;gl ;ilaiutplvg ;goj ; jhH ;j ;jg ; gl ; lhh ;fs ; > (gf ;fk ;?52)/

5/ Mste;jhh ; Tl;lk ; jw;nghJ jypj ; vd;Wk ; ,k;kf ;fis ,Hpt [gLj ;jj ; Jzpe ;Js ;sJ/*jypj ; * vd;gjw ;F behW';Fz ;ltd ; . eR';Fz ;ltd ; . xLf;Fz ;ltd ; . FHpapy ; tpGe ;jtd ; . fPHhdtd;.mGf;fhdtd ;. brj ;jkhL jpd;gtd ; . brj ;j tPl ;oy ; giw mog ;gtd ; . rhf ;fil ms;Sgtd; . kyk; ms;Sgtd ;vd;bwy ;yhk ; bghUs; brhy ;yg ;gLfpwJ/ ,e;jg ; bghUslf ;fj ;jpy ; r' ;f fhyk ; Kjy; rkfhyk; tiuVh ;j ;bjhHpiya [k ; . nghh ;j ;bjhHpiya [k ; Fyj ; bjhHpyhff ; bfhz;l ks ;sh ;fs ; ,y;iy vd;gJ ahtUk ; mwpe ;jxd;nw (gf ;fk ;?53)/

6/ ,e ;j *jypj ; * tpahghhpfs ; thH ;epiyapy ; gpd ;j' ;f pa tz;zhh ;fisa [k ; . mk;gl ;lah ;fisa [k ;*jypj ; * vd;W brhy ;tjpy ;iy (gf ;fk ;?58)/

7/ ks;sh ;fspd ; fy ;tp msittpl fs;sh ;fspd ; fy ;tpawpt [ Rkhh ; 15 tpGf ;fhL Fiwthfcs;sJ vd;W fs;sh ; rK:fj ; jiyth ;fns TWfpwhh ;fs ; / gl ;oay ; rhjpfspy ; ,y;yhj ,e;J ehlhh ; . fs ;sh ; .kwth ;. td;dpah ; . ,Ryhkpah ; . kPdth ;. Kj;jiuah ; . iftpid"h ;fs ; (tpRtfh ;kh). tz;zhh ; . mk ;gl ;lh ;Mfpnahh ; gH';fhyj ;jpYk ; rhp. ,g ;bghGJk ; rhp fy ;tp kw ;Wk ; muR ntiy tha ;g ; g py ; ks;sh ;fspd ;

mstpypUe ;J Fiwthfnt cs;shh ;fs ; (gf ;fk ; 64?65)/

8/ ehl ;oy ; gy Kf;fpar ; rhjpfs; Fwpg ;ghf ehlhh ; . rhkhh ; rhjt ;. khyh. khjpfh. ks ;sh ; . giwah ;.g [yah ; . <Hth ; Mfpnahh ; ,e ;jpa tpLjiyg ; nghuhl ;lk ; gw ;wpf ; ftiyg ;gltpy ;iy/ khwhf tpLjiy fpilj ;jhy ; .bts ;isf ;fhuh ;fs ; ,Uf ;Fk ; ,lj ;jpy ; gpuhkzUk;. mjw;F mLj;j epiyapYs;s rpy rhjpfSk;jhd ;mjpfhuj ;ijg ; bgWthh ;fs ; / mjdhy ; rhjpf ; bfhLikfs ; jhd; mjpfkhFk; vdf; fUjpdhh ;fs ; / ,njfhuzj;ijf ; Twpajw ;fhf ePjpf ; fl ;rpf ;fhuh ;fisna *njrj ; Jnuhfpfs ; * vd;W Twpdhh ;fs ; (gf ;fk ; ?76)/

9/ tuyhW ,y;yhjth ;fs ; tuyhW bjhpahjth ;fisf ; bfhz;L. muR mjpfhuj ;ij jtwhfg ;gad;gLj ;jp (kPz;blGk ; ghz;oah ; tuyhW) g [j ;jfj ;ij jil bra ;Js ;sJ (gf ;fk ; ?82)/

10/ bjY';F eha ;f ;fh ; Ml;rpapd ; 210 Mz;L fhy Ml;rpna ks;sh ; Fyj;jhhpd ; tPH ;r ; r pf ;FfhuzkhFk; (gf ;fk ; 85?86)/

11/ Vd; nftyk; jpULfpw rhjpiar ; nrh ;e ;jth ;fs ; Tl j';fspd ; rhjpia kPiriaKWf;fpf ;bfhz ;L btspapy ; brhy ;ypf ; bfhs ;s KofpwJ (gf ;fk ;?87)/

12/ (i),uhrghisaj ;jpy ; cs;s muRg ; gs ;spa [k ; . muR mYtyf';fSk ; cs;s ,l';fs ;ks ;sh ;fSf ;Fr ; brhe ;jkhdJ/

(ii)nkyePypjey ;Y}h ; gRk ;bghd ; Kj ;Juhkyp' ;fj ; njth ; fy ;Y}hp mike ;Js ;s ,lk ; ks;sh ;fSf ;Fr ;brhe ;jkhdJ/

(iii)kJiu tpkhd epiyak ; mike ;Js ;s ,lk ; rpd ;d cilg ;g [ Chpidr; nrh ;e ; j ks;sh ;fSf ;Fr ;brhe ;jkhdJ (gf ;fk ; ?91)/

13/ 10 Mz;Lfs ; ks;sh ;fSf ;fhd chpik bjd;fhrpj ; bjhFjpapy ; gwpf ;fg ;gl ;lJ/ ,e ;jpaf ;fk ;a{dprf ; fl ;rp (rp/gp/I) fle ;j Kiw mg;ghj ;Jiu vd;w giwaiua [k ; . ,e ;jKiw yp' ;fk ; vd;w giwaiua [k ;epWj ;jp btw ;wp bgwr ; bra ;jJ/ fk ;a{dprf ; fl ;rpapy ; cs;s ks;sh ;fs ; bjd;fhrpj ; bjhFjpapy ; nghl ;oapltha ;g ; g [ f ; nfl ;lbghJk ; me;jf ; fl ;rp kWj ;J tpl ;lJ/ fs ;sh ; . kwth ; fUzhepjpiag ; gzpa itj ;Jf ;j' ;fis *K :nte ;jh ; guk ;giu* vd;W btw;Wg ; bgUik ngr itj ;jhh ;fs ; (gf ;fk ; 99?100)/

14/ ,J ele ;j cz;ik/ ,e ;j xw;Wik njitah> mJ vjw ;fhf> fsj ;jpy ; fs ;sh ; . kwtiubtl ;or ; rha ;j ;j ks ;sh ;fspd ; tPu tuyhw ;iw. *Mjpf ;fj ;ij tPH ;j ;j pa jypj ;Jfspd ; ; vGr ;rp* vd;wgiwah ;fspd ; tPuk ;nghy fhl ;of ; bfhs;tija [k ; . rK:f tpnuhjpfs ; giwah ;. rf ;fpypah ; tha ;fspy ; kyk ;jpzpj ;jhnyh. rpWePh ; fHpj ;jhnyh mij xl;Lbkhj ;jj ; *jypj ;JfSf ;fhd mtyk ;* nghy fhl ;o. mJ.ks;sh ;fSf ;fhd ,Hpt [ nghd;w njhw ;wj ;ij Vw;gLj ;Jtij ,dpnkYk; Vw ;f KoahJ/ bjhlh ;e ;J Vkhwt[k ;KoahJ (gf ;fk ; 118 ?119)/

15/ khl ;oiwr ;rp cz;gJ giwah ; rK:fj ;jpd ; czt[ Kiwahf cs;sJ (gf ;fk ; ?119)/

16/ brj ;jkhL jpd ;gth ;fs ; rf ;fpypah ;fs ; / ks;sh ;fs ; bgUk ;ghd ;ik rK:fk ; / rf ;fpypah ;fs ;rpWghd;ikr ; rK:fk ; / ks;sh ;fs ; nghh ;f ;Fzk ; kpf ;f xU giltHpr ; rK:fk ; / rf ;fpypah ;fs ; moikj ;bjhz;L :H pak ; bra ;a [k ; rK:fk ; / gaph ;j ; bjhHpYk;. nghh ;j ; bjhHpYk ; ks;sh ;fspd ; Fyj ; bjhHpy ; / rhf ;filtHpj ;jYk ; . brUg ;g [j ; ijj ;jYk ; rf ;fpypahpd ; Fyj ; bjhHpy ; / bey ; cw ;gj ;jp bra ;fpd ;w ks ;sh ;fSk ; . kyk ;ms ;Sfpd ;w rf ;fpypah ;fSk ; vg ;go xd;whFk ; (gf ;fk ;?120)/

17/ jpUtpjh' ;Th ; gFjpfspy ; rhzhh ; rhjpg ; bgz;fs ; nkyhil mzpaf ;TlhJ/ nkyhilmzpe ;jhy ; Kiythp fl ;l ntz;Lk ; / rhzhh ; rhjpf ; fh ;g ; g pzpg ; bgz;fs ;Tl khLfSf;Fg ; gjpyhfVh ;f ; fyg ;igapy ; mk;kzkhfg ; g{l ;lg ;gl ;Lj ; bjhsp cHt[ bra ;ag ; gzpf ;fg ;gl ; ldh ; / bfhj ;joikfshfelj ;jg ;gl ; l rhzhh ; rhjpg ; bgz;fs ; j';fspd ; FHe ;ijfSf ;Fg ; ghY}l ;lf ;Tl mDkjpf ;fg ; gltpy ;iy/vj ;jifa bfhoa epiy mJ/ *fhzhik* vd;w bfhoa neha ;f ;F Mshd rK:fk ; rhzhh ; rK:fk ; / rf ;fpypaidj;bjhl ;lhy ; jPl ;L. Rhzhidf; fz;lhny jPl ;L vd;W brhy ;yg ;gl ; l fhyk ; mJ (gf ;fk ; 122?123)/

18/ M';fpnyah ; Ml;rpapy ; Fw ;wg ;guk ;giuapduhft [k ; . m/jp/K/f/ Ml;rpapy ; rPh ;kugpduhft [k ; .milahsg ;gLj ;jg ; gl ;l fs ;sh ; . kwth ;fs ;Tl ,d;W *khlrhkpj ; njth ; kpl ;lha ;f ; fil* *bghd ;Drhkpj ; njth ; g[nuhl ;lhf ; fil* vd;W filfs ; itf ;f KofpwJ (gf ;fk ; ?128)/

31. Upon perusal of the contents extracted above and thecontents of the preface and certain other contents filed astyped set by the second respondent, we see the hard work of thepetitioner but at the same time, putting ourselves in theposition of the readers. The petitioner, whose object is claimedto be to uplift the people of his caste, has lost his way in themiddle and made provoking statements against many othercommunities, which are unwarranted, in the context and presentday scenario. In the said process, he has also made allegationsagainst deceased leaders and freedom fighters, which by itselfis immoral. There cannot be any justification in lifting acommunity by demeaning other communities. Coming from a landwhich gave us Poongunranar whose statement “YadumooreYavarumkelir” now displayed in United Nations Organisations, hasnow after several years of democratic rule flayed the erstwhilerulers, who defeated the Pandiyas and treated their descendantsas migrants. The voice now pitched by the petitioner, accordingto us, is against Articles 19(1)(d) and (e) and 21 of theconstitution of India. That apart, in the preface, thepetitioner has called upon his community people to come togetherby horning their fighting skills to avenge their fall and fight,to retrieve their land lost to people of different castes andlanguage and vouch for a separate country, indirectly, whichagain could amount to meddling with the sovereignty, publicorder and peace within the State. Under the shield of democracyand right to freedom of speech and expression, there cannot beany threat to the unity and public order. It would be very wellwithin the right of the State to curb any such separatistideologies to protect the sovereignty of the country and in theinterest of the security of the State.

32. In the Judgment reported in 2012 5 SCC 1 (In Re:Ramlila Maidan Incident dated 4/5.06.2011 v. Home Secretary,Union of India and Others), the Hon'ble Supreme Court whiledealing with “public order” and “right and duty of a citizen”,has held as under:

“36. As already noticed, rights,restrictions and duties coexist. As, on the onehand, it is necessary to maintain and preservethe freedom of speech and expression in ademocracy, there, on the other, it is alsonecessary to place reins on this freedom for themaintenance of social order. The term “socialorder” has a very wide ambit. It includes “lawand order”, “public order” as well as “thesecurity of the State”. The security of the Stateis the core subject and public order as well aslaw and order follow the same.

39. There has to be a balance andproportionality between the right and restrictionon the one hand, and the right and duty, on theother. It will create an imbalance, if undue ordisproportionate emphasis is placed upon theright of a citizen without considering thesignificance of the duty. The true source ofright is duty. When the courts are called upon toexamine the reasonableness of a legislativerestriction on exercise of a freedom, thefundamental duties enunciated under Article 51-Aare of relevant consideration. Article 51-Arequires an individual to abide by the law, tosafeguard public property and to abjure violence.It also requires the individual to uphold andprotect the sovereignty, unity and integrity ofthe country. All these duties are notinsignificant. Part IV of the Constitutionrelates to the directive principles of the Statepolicy. Article 38 was introduced in theConstitution as an obligation upon the State tomaintain social order for promotion of welfare ofthe people. By the Constitution (Forty-secondAmendment) Act, 1976, Article 51-A was added tocomprehensively state the fundamental duties ofthe citizens to complement the obligations of theState. Thus, all these duties are ofconstitutional significance.

44. The distinction between “public order”and “law and order” is a fine one, butnevertheless clear. A restriction imposed with“law and order” in mind would be least intrudinginto the guaranteed freedom while “public order”may qualify for a greater degree of restrictionsince public order is a matter of even greatersocial concern. Out of all expressions used inthis regard, as discussed in the earlier part ofthis judgment, “security of the State” is theparamount and the State can impose restrictionsupon the freedom, which may comparatively be morestringent than those imposed in relation tomaintenance of “public order” and “law andorder”. However stringent may these restrictionsbe, they must stand the test of “reasonability”.The State would have to satisfy the court thatthe imposition of such restrictions is not onlyin the interest of the security of the State but

is also within the framework of Articles 19(2)and 19(3) of the Constitution.”

33.The petitioner, who claims to have made a research forseven years before publishing this book by reading andresearching various textures and antiques, would not haveinvited this trouble if followed the golden words of great saintThiruvalluvar, who has spelled his words of wisdom as follows:100. ,dpa csthf ,d;dhj Twy;

fdp ,Ug;gf ;fha ; fth ;e ;jw ;W/

To say harsh words when you have nice words, is likeplucking an unripe fruit when there are ripe ones.

461.mHptJ}ck ; MtJ}ck ; MfpatHp gaf ;Fk ;

CjpaKk; N:H ;e ;J bray;/

Without analysing what would be gain or creation or what wouldbe the loss and what would be result, one must not commence atask.

642. Mf;fK' ; nfLk ; mjdhy ; tUjyhy ;

fhj ;njhk ;gy ; brhy ;ypd ;fl ; nrhh ;t [ /

As speech can create and destroy; one should ensure that thereis no blemish in his speech. Had the petitioner shown restrain and struck on to the objectnow claimed without using such language against other caste andlinguistic people, the impugned orders would not have beenpassed and the petitioner would have been entitled to getcomplete protection under Article 19 (1) (a) of the constitution.

34.The State has already witnessed many instances ofdisruption of public order and peace. Several lives have beenlost. The voice of the petitioner, in the opinion of this Court,is in the nature of provoking his community against others andchallenging others on their superior social status. Though thepetitioner has a right to express his mind, he also has a dutynot to breach the line. It is also worthwhile to point out theconduct of the petitioner, who, after the first book was bannedand when the writ petition was in vogue, with the extracts andreferences from the first book, penned the second book as asequel, which invited the second ban order.

35.Similarly, the petitioner has vouched for a cry to

declassify pallars from the scheduled caste claiming theirsuperiority over others. There is nothing wrong in that, but forthe language employed by the petitioner, who in the process ofreflecting historical references to their superiority, has muchventured against the image of other communities in the scheduledcaste itself and in the Backward classes. As pointed outalready, times have evolved and the classifications that existnow have been in vogue for several decades. The occupation of aparticular caste at the time of its origin and its relativitynow are two different platforms, which are beyond comparison. Inthe present scenario, a person with a surname depicting hiscaste may not be employed in the field associated with hiscaste. Therefore, it is not a social issue, which the petitionerhas raised by way of a novel, but what was penned is only apersonal agony on the tantrum of his fallen kingdom. Accordingto the petitioner, what was penned by him in both the books, arehistorical facts, which by itself cannot give any right to thepetitioner to demean the other communities and women. At thisjuncture, it is relevant to refer to the observation of theRajasthan High Court in the judgment reported in AIR 1951 Raj113, relied on by the learned Advocate General, which isextracted hereunder:

“ When the words used are such as to have aclear tendency to promote class hatred”…….

It is not necessary for the prosecutionfurther to establish that the writer had theintention to promote such hatred.”

36. History of this land has always been a matter of debateas its roots have not been identified till date. Not often wouldtwo historians agree on the same point. This Court partiallyagrees that there has been a suppression of many historicalfacts in shaping this country to its present day, but it cannotbe said that those were at the behest of national leaders orjust against the interest of the community of the petitioneralone. The ploy to divide and rule was harvested by the colonialrulers, to which the citizen of this country had fallen prey.Different and divergent views are available on the same subject.For instance, the Sanskrit word “dravida” which has been used bymany populist political parties, has been given differentmeanings by historians. The term was in vogue even before 1500years. One sect calls it a land or place, where three seasconverge. Another sect interpreted the same to be land to thesouth of Vindhyas. It is also used to denote the people of SouthIndia more particularly the people of Tamil Nadu. The word “Adidravida” would mean ancient or aboriginal inhabitants of thedravidian landscape. It was first used by Iyothee Thass in1890’s and propagated and expanded by E.V.Ramasamy Naicker, whofought for abolishment of caste system and the discriminations

prevalent at that point of time.

37. As rightly contended by the Learned Advocate General,the benefits of being caste under the Schedule are enjoyed bythe members of the petitioner’s community. The petitioner cannotcall himself as the voice of his community. Moreover, thenotification or de-notification of a caste from the schedule oranother category are within the domain of the Ministry of SocialJustice and Empowerment. The decisions are still taken on thebasis of social and economic factors by the National Commissionfor Scheduled Castes and the National Commission for Backwardclasses. It is always open to the petitioner to approach theappropriate Ministry.

38.Another point that was raised before us is that noopportunity was afforded to the petitioner before the impugnedorders were passed. The purpose of Section 95 Cr.P.C is toprevent the disruption of public harmony, tranquillity andpeace, when it is instigated in the objectionable material inthe opinion of the Government. It is sufficient, if the contentscause sufficient apprehensions about the incitement of violencebetween different classes of people. It is not a punitiveaction. It is an imminent action failing which, the purpose ofArticle 19 (2) and Section 95 of Cr.P.C would become redundant.Therefore, we are of the view that while invoking the powersunder Section 95, it is not necessary to hear the author of thebook before passing orders and hence, the orders are notarbitrary. In this regard, it is appropriate to look into thejudgment reported in 1985 Cr.L.J 797 (Pat), wherein, it has beenheld thus:

“ The purpose here is preventive and notpunitive. In view of the large scale publicmischief apprehended, it is sought to be nippedin the bud by straightaway forfeiting thepublications.”

In the decision reported in 1993 Cr.L.J 2040 (P& H), the Punjaband Haryana High Court has observed as follows:

“It is not practicable to give opportunityof being heard to the person concerned beforepassing the order of forfeiture under Section95.”

40.During the course of hearing, after perusal of theobjectionable areas and the typed set of papers, it was pointedout to the petitioner that several portions in both the books

are abusive against other castes and in the nature of spreadinghatred and disharmony, thereby posing a threat to public orderand security of the State. Thereafter, the petitioner has filedtwo separate memorandums, accepting to make certain alterationsin the books. In reply, the State has raised objections to somealterations in certain portions, stating that the newalterations would not dissolve the objections. As most of thealterations have been accepted by the State, there cannot be anyjustification for the forfeiture to continue. Under suchcircumstanes, the impugned orders are liable to be set aside,provided that the petitioner complies with the references andbibliography as pointed out by the first respondent, in additionto delete the provoking contents calling for a fight forseparate land and against other linguistic people and castes.The petitioner must comply with the above directions bysubmitting a representation reflecting the corrections with acopy of corrected book and on such production, the firstrespondent must pass orders lifting the forfeiture within twoweeks from thereon.

41.With the above directions, both the writ petitions aredisposed of. No costs. Consequently, connected MiscellaneousPetitions are closed.

-s/d- Assistant Registrar(CS-II)

True Copy Sub-Assistant Registrar

rkTo1.The Principal Secretary to Government Public Department (SC) Fort St. George, Chennai -9.2. The Principal Secretary to Governement Home Department(Courts VI A) Fort. St. George Chennai 9.+1 CC to Mr.P. Vijendran, advocate sr 74296.+1 CC to Mr.R. Sreerangan, advocate sr 74867.+1 Cc to Govt. Pleader sr 74728.

W.P.Nos.17615 of 2013 and 31237 of 2016RJ(CO)SP(07/11/2017)