Saturday, August 22, 2009

Gujarat Government's unsustainable ban on Jaswant Singh's book

Despite the huge controversy that the book has led to within and outside the BJP, the Gujarat Government may have no case at all to ban Jaswant Singh's book on Jinnah. The text of the State's Home Department's notification, issued on August 19, is as follows:

GG/64/09/SB.II/COM/1309/1017:
In the exercise of the powers conferred by section-95 of the Code of Criminal Procedure, 1973, read with sections 153A and 153B of the Indian Penal Code, the Government of Gujarat hereby forfeits and prohibits the said book, its publication, its display, its sale and distribution and any kind of its use.
Signed by S. S. Brar, under secretary to Government.


As has been pointed out by the Bombay High Court while lifting the Maharashtra Government's ban on James Laine's book on Shivaji (for previous posts on the issue, with links to the HC judgment, use this link)a notification under Section 95 Cr.P.C. must specify the grounds. Not only the notification is silent on the grounds, but even the so-called justification for the ban as explained by the Gujarat Government's spokesperson is not legally sustainable. None of the reasons cited by the spokesperson, including the alleged attempt to defame Sardar Patel can attract Section 153A or 153B of IPC. If you use the reasoning adopted by the Bombay High Court in the Shivaji book ban case, the Gujarat Government has made its position vulnerable by claiming that all Gujaratis hold Sardar Patel in high esteem. If so, where is the question of promoting enmity between different groups on any ground, as there are no different groups on the question of holding Sardar Patel in high esteem. If the State Government thinks the book is likely to disturb the public tranquillity, it has not claimed so in the notification, let alone its obligation to explain it with some prima facie satisfaction.

The addition of Section 153B IPC in the notification is bizarre: how could anyone say that the book makes any imputation that the people of Gujarat, because of their admiration for Sardar Patel, cannot bear true faith and allegiance to the Constitution of India or that they be deprived of their rights as citizens of India? Is the State Government prima facie satisfied that the book is likely to create conflict between the people of the state and the rest of India (unless the Government assumes that Sardar Patel is not held in high esteem in the rest of India - which is equally fallacious).

The 26th April 2007 judgment of the Bombay High Court has been stayed by the Supreme Court, and the ban on James Laine's book imposed by the State Government continues. The SLP by the Maharashtra Government has not yet been heard by the Supreme Court. In a subsequent judgment while upholding the Karnataka Government's ban on the Kannada novel, Dharmakaarana, the Supreme court justified the ban on the ground that the Government can do so as a preventive measure, if it thinks there is a threat to public order by its publication. This was a deeply flawed judgment as has been explained in these previous posts.

Even if this judgment is considered as having laid down the law on the subject, this cannot be the basis for the Gujarat Government's notification. In the case of the Kannada novel, the protests against the book were from a particular religious community, whose members were offended by certain portions. The Gujarat Government's notification is silent on what part of Jaswant Singh's book offended the people of the State, or whether they are likely at all to protest against the book threatening breach of public order in the State.

I am intrigued by the State Government's ban on the book only within Gujarat. Section 95 Cr.P.C. enables any police officer to seize the copy of the book wherever found in India. That is why I believe one cannot get copies of James Laine's book on Shivaji outside Maharashtra or Dharmakaarana outside Karnataka. How can the ban only within a State be effective? The earlier Jaswant Singh or any citizen in Gujarat challenges the ban under Section 96 Cr.P.C. the better.

Also read:
1. The key references to Sardar Patel in Jaswant Singh's book
2. IE story on the August 19 notification
3. Rajeev Dhavan's Publish and be damned

Update:: The Gujarat Government's ban on Jaswant Singh's book is indeed a test case, as other States are not inclined to impose a similar ban and the State itself is not keen on banning it in other States, even though Cr.P.C. enables a State Government to do so. In the case of James Laine's book on Shivaji, his publisher, OUP withdrew the book from sale from all the bookshops in India, even though it was banned by only one State Government. Salman Rushdie's Satanic Verses was banned under Section 11 of the Customs Act by the Central Government. The Kannada novel, Dharmakaarana was published in 1995, and was nominated for the State's Sahitya Academy award. The State Government banned it under Section 95 Cr.P.C. in 1997, after protests from certain groups.

3 comments:

bagdu said...

In the age of Internet how does a book ban work?By Law, can one read an excerept of the Book(soft copy,maybe online without copying),say a page,paragraph or few characters; in the state in which it is banned?Extending that logic cannot one read the entire book?
If the law is indeed violated,who will be prosecuted:reader alone or the entire supply chain from ISP to web host?

Sundeep said...
This comment has been removed by a blog administrator.
Gautam said...

Indeed now a petition challenging the notification has been filed in the Guj HC. Its been filed by a writer and a professor who pray for quashing the notification contending that it is unconstitutional as it imposes unreasonable restrictions on the citizens of Gujarat and violates their fundamental rights guaranteed as per Article 19.