Legality of book-banning
THE RECENT order of forfeiture passed by the government of West Bengal in respect of a Bengali book entitled Dwikhandita written by a Bangladesh writer, Taslima Nasreen, has again brought to the fore the question of legality of such order of banning and proscription of books.
Banning of books was unknown in India before the Britishers imported the concept to serve and protect their imperial hegemony. Even though mostly Christians by faith, they signally failed to learn from the life of Jesus Christ that crucifixion of the Messenger could not annihilate the message but made it more efficaciously vibrant and effulgently operative. You can kill the thinker, burn his writings, but not his thought or expressions.
In the West, book-banning is as old as book-writing. Homer's Odyssey was banned in Rome in the beginning of the First century. Translation of the New Testament by Tyndale was banned in England in the 16th century. So was Martin Luther's translation of the Bible in the 17th century in Germany. Galileo's writings as to the rotundity of the Earth were also destroyed in the 17th century. Stowe's Uncle Tom's Cabin was banned by Russia in the 19th century. Henry Ford's My Life and Works was banned in Soviet Russia and so were Dr. Zhivago of Pasternak and Gulag Archipelago of Solzhenitsyn. The long list is still getting longer with myriads of instances. Salman Rushdie's Satanic Verses has also found place in that list.
The book Dwikhandita has been banned by the State government in exercise of the powers conferred by Section 95 of the Code of Criminal Procedure, 1973, which now contains the general law relating to book-banning. The only ground on which the order has been passed is that two paragraphs in that book, referred to in the schedule of the order of forfeiture, appear to the State government to contain matters which "promote, or attempt to promote, enmity between different groups on grounds of religion, or disharmony, or feeling of enmity, hatred or ill-will between different religious groups and the publication of such matters is punishable under Section 153A of the Indian Penal Code."
Assuming that the paragraphs referred to in the schedule relating to the founder of Islam are in very bad taste, and, therefore, the followers of Islam may have good reason to be offended, it is to be noted that the writer herself is also Muslim by religion. It has, therefore, been urged that by using such abusive words against the founder of her own religion, the writer cannot be held guilty of promoting hatred or enmity between different groups on grounds of religion. Reliance has been placed on the decision of the Supreme Court in Bilal Ahmed Kaloo of 1997, where it has been ruled that the gravamen of the provision of Section 153A "being promotion of feelings of enmity, hatred or ill-will `between different' religious or racial or linguistic or regional groups, or castes or community, it is necessary that at least two such groups, or communities should be involved and "merely insulting the feeling of one community or group without any reference to any other community or group cannot attract" the provisions of Section 153A.
Those who disapprove the order of forfeiture have also urged that it is now beyond any doubt or dispute in our constitutional-cum-administrative jurisprudence that no order to the prejudice of any person can be passed without giving the person concerned a reasonable opportunity of being heard. Reference has been made, inter alia, to the decisions of the Supreme Court in Binapani Dei of 1967, in A.K. Kraipak of 1969 and also the well-known seven-judge Bench decision in Maneka Gandhi of 1978, to show that the Supreme Court has firmly settled this principle with anxious and zealous advertence.
It has been urged that if that is the settled position in law, then no order of forfeiture of books can at all be sustained unless the party interested has been provided with reasonable opportunity of being heard in the matter, whether before or even after the decision. It is true that in a decision of the Allahabad High Court in Lalai Singh Yadav of 1971, it has been held that since the party aggrieved can make an application to the High Court assailing the order (as now provided in Section 96 of the present Code), the absence of any hearing by the State government would not be fatal. If that is the correct position in law, then the horrendous result would be that an order of conviction and sentence, without giving the accused proper opportunity to defend himself, would not be bad, as the accused would nevertheless have a right of appeal to the higher court.
Incompatible with the Constitution
Many persons have criticised Dwikhandita as obscene, repulsive and without any literary merit. But those who are condemning this order of forfeiture have urged that, whether a classic or a pornography, these draconic powers vested in the State government to forfeit any book or writing on the ground that the matters contained therein appear to the State government to be punishable under one or the other Sections of the Penal Code, without giving the party affected any opportunity of being heard by the State government, are absolutely incompatible with our Constitution and also the due process of law ensconced therein by the Supreme Court.
It has been conceded that in urgent cases requiring immediate action, where providing hearing to the party may defeat the very purpose, an order without any pre-decisional hearing may not be fatal. But it has been urged on the strength of Maneka Gandhi and other authorities, judicial as well as textual, that in such a case, a post-decision hearing by the authority making the order is a must for legal and efficacious survival of the order, however poor substitute such post-decisional hearing may be.
Former Chief Justice,
Calcutta & Bombay High Courts
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