The James Laine Controversy – Could the Supreme Court Have Done Better?

Written by  //  August 19, 2010  //  Law & The Judiciary  //  Comments Off on The James Laine Controversy – Could the Supreme Court Have Done Better?

When Prof. James W. Laine, a Professor of Religious Studies at Macalester College in the U.S.A., penned ‘Shivaji – Hindu King in Islamic India’, little would he have known that it would lead to assaults on those who had assisted him, acts of vandalism against research institutes, a criminal complaint against him, and trigger a major political issue in one of India’s largest States. But all this it did, and even two favourable decisions of the Supreme Court in the last three years, have done hardly enough to put his book on the shelves where it should rightly belong.Inflatable Boat

The most recent development in the saga which began in 2003 is the decision of the Supreme Court in State of Maharashtra v. Sangharaj Damodar Rupawate, delivered on 9th July, 2010. Soon after the publication of the book, which allegedly contains scurrilous and defamatory remarks against Shivaji, there were several acts of violence in Maharashtra, culminating in a criminal complaint being filed against Prof Laine and others associated with the book, for offences under sections 153, 153-A and 34 of the Indian Penal Code, 1860 [“IPC”]. The challenge to this complaint went right up to the Supreme Court, where it was finally disposed off in Manzar Sayeed Khan v. State of Maharashtra. Section 153 and section 153-A, taken together, provide that provoking rioting, or promoting enmity between different classes, communities or castes, are offences under the IPC. The Supreme Court rightly held that both these provisions have a necessary requirement of mens rea, which was not established on the facts of the case. On this ground, the proceedings in both the cases were quashed. In response to this decision, the State of Maharashtra issued a declaration under section 95 of the Code of Criminal Procedure [“CrPC”], forfeiting all copies of the book to the Government. This was successfully challenged before the Bombay High Court, the appeal against which fell for the Apex Court’s consideration in Sangharaj Damodar Rupawate.

Before the Supreme Court, the case of the respondents was that there was nothing to show that the book had resulted in disturbance between groups, and that no offence under section 153-A was made out. The appellant (State of Maharashtra) contended that the State Government has discretionary powers under section 95, and the threshold is only that of its subjective satisfaction. It relied on the supposed primacy of public interest over private rights, arguing that any material creating a rift between groups or communities cannot be allowed, even if the content thereof is true chong qi zhang peng.

To examine the validity of these contentions, let us begin by examining section 95, the text of which reads (in its relevant part)-

(1) Where-

(a) Any newspaper, or book, or

(b) Any document,

Whenever printed appears to the State Government to contain any, matter the publication of which is punishable under … section 153 A or section 153B …, the State Government may, by notification, stating the grounds of its opinion, declare every copy of the issue of the news paper containing such matter, and every copy of such book or other document to be forfeited to Government… [emphasis supplied]

Thus, section 95 lays down two requirements for a declaration of forfeiture- (a) the State Government must form an opinion that the publication contains matter which is punishable under section 153-A; and (b) it must state the grounds of its opinion. The Supreme Court, in an appropriate exercise of judicial restraint, decided the case on the narrow basis that the declaration did not disclose the grounds of its opinion. The Court observed that the declaration only stated the opinion of the Government that section 153-A was being violated by the book, without explaining the grounds on which it formed this opinion. Admittedly, this is a permissible basis on which to invalidate the declaration of forfeiture. However, it leaves the option open to the State Government to issue a fresh declaration of forfeiture, stating its grounds in full. Ordinarily, there is nothing wrong with this outcome. However, for reasons which I now proceed to, this outcome is far  from satisfactory in the context under consideration here.

In arriving at its decision, the Court drew a distinction between a requirement that the book should be proved to be in violation of section 153-A, and a requirement that the State Government should form an opinion that it violates section 153-A. This distinction is admittedly sound in law, and is backed by sufficient legal precedent. However, this distinction is entirely inapplicable when dealing with a situation where the book has been judicially held to be not in violation of section 153-A. Here, the declaration of forfeiture was preceded by a decision of the Supreme Court in Manzar Sayeed Khan that the book did not violate section 153-A. Against this backdrop, an interpretation of the provision allowing the State government to form an opinion contrary to a decision of the Supreme Court is highly dubious. Once a book has been held by the Supreme Court to not violate section 153-A, is it open for the State Government to form the opinion that the same book violates section 153-A? Such a conclusion would have been possible had the requirement of section 153-A been the ‘possibility’ of disharmony between groups. In such a scenario, the State Government may form an opinion contrary to a decision of the Apex Court, based on development subsequent to the decision of the Supreme Court. However, under section 153-A as it now stands, mens rea is an essential requirement under section 153-A. A finding by the Supreme Court that this mens rea is absent at the time of publication of the book, cannot be revisited by the State Government based on subsequent developments. Further, section 96 of the CrPC also supports this interpretation. Under this provision, a person may challenge the declaration under section 95 on the basis that the book ‘did not contain any such matter as is referred to in sub-section (1) of section 95’. It is important to note that the subject of the challenge is not the opinion of the State Government, but matter contained in the forfeited material. Thus, even if the State Government’s opinion is bona fide, if the matter is not punishable under section 153-A, the declaration will be set aside under section 96.

If this position is accepted, even if the grounds of the opinion are set out in detail in a subsequent section 95 declaration, it will still have to be set aside on the basis that mater was not punishable under section 153-A, given the decision of the Supreme Court in Manzar Sayeed Khan. The decision in Sangharaj Rupawate, with its emphasis on the absence of grounds for the opinion, and the distinction between the offence under section 153-A and the opinion under section 95, may be interpreted as leaving the option open for the State Government to issue a fresh declaration under section 95, with detailed grounds, which would be considered valid. Especially given the belligerent attitude adopted by the Maharashtra State Government, with the Chief Minister openly declaring its intention to pass a law to bypass the Supreme Court decision (raising an interesting legal question of whether such a law intended to bypass the decision would be liable to be struck down as colourable legislation), makes such a step far from unlikely. It is a different matter that the book has been withdrawn by the publishers, and is not in print any longer. However, for the sake of clarity on the law, and to deliver a much-needed blow to regional chauvinism, it may have been better if the Supreme Court in Sangharaj Rupawate had gone a step further and held that no section 95 declaration in respect of the James Laine would be legally permissible.

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