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TMI Blog1980 (1) TMI 208X X X X Extracts X X X X X X X X Extracts X X X X ..... l Haq Kadri Siraji, 2 Dr. Haji AH Raza Qadiri Siraji, 3. Mohammad Yasin Khan, 4. Haji Bar-katullah Nakshband Kadiri Siraji and 5. Abdul Rashid Kadiri Siraji, printed at Ilmi Electric Machine Press, Telia Nala, Varanasi contains matter detailed in the Schedule to this notification which harshly criticises the role of Amir Moavia who is held in high esteem by the Sunni Muslims and the language used is likely to hurt the feelings of the Sunni Muslims and lead to greater misunderstanding between Shia Muslims and Sunni Muslims and which is thus prejudicial to the maintenance of harmony between Shia and Sunni Muslims and which is likely to disturb the public tranquillity and the publication whereof is punishable under Section 153A of the Indian Penal Code, 1860. Now, therefore, in exercise of the powers under Section 95 of the Code of Criminal Procedure, 1973 (Act No. 2 of 1974), and on the grounds noted above, the Governor is pleased to declare every copy of the said book and of any other documents containing copies reprints and translation of, or extract from the said book to be forfeited to Government. 2. A bare reading of the notification shows that the order of forfeiture was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the order of forfeiture passed by the State Government on 21st of May, 1978, when one Haji Mohammad Yusuf told them that a news item had been published in a Urdu Daily named Siyasat of 7th of May, 1978 about a notification having been issued in respect of the said book under Section 95 of the Code of Criminal Procedure by the State Government. He further stated that neither he nor Azizul Haq Kausar Naqvi are acquainted with Hindi or English language and they do not subscribe to a copy of the Government Gazette. Immediately on coming to know of the said order, the applicants came to Allahabad and have filed the application under Section 96 Cr. P. C. without any further delay. 7. A counter-affidavit has been filed on behalf of the State Government in which the only point which has been stated is that ignorance of law is no excuse and that the applicants have filed the application belatedly which is liable to be dismissed in limine as barred by time. 8. In a suitable case, a litigant may be relieved of the harshness of law of limitation by the court and for that purpose powers have been conferred on it under Section 5 of the Limitation Act, 1963. Which provided that if a s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication and if on the scrutiny of such grounds the court comes to the conclusion that the book did not contain any such matter as is referred to in Sub-section (1) of Section 95, it is bound to set aside the declaration of forfeiture. In support of this contention, learned counsel placed reliance on Harnam Das v. State of U.P. [1962]2SCR487 Lalai Singh Yadav v. State of U. P. 1971 All LJ 760 (SB), Chinna Annamalai v. State of Tamil Nadu: AIR1971Mad448 and Mahomed Khalid v. Chief Commissioner, Delhi AIR 1968 Delhi 13 (SB) 11. The authorities referred to above deal with the interpretation of the provisions contained in Sections 99A and 99D of the Code of Criminal Procedure, 1898. It may be stated that under the said Code of Criminal Procedure, the power to issue an order of forfeiture of certain publications which were considered by the Government to be objectionable and the proceedings consequent thereon was governed by Sections 99A, 99B, 99C, 99D, 99E and 99G. The substance of the said provision has now been re-enacted in the Code of Criminal Procedure, 1073 in a more concise form in Sections 95 and 96 of the Code of Criminal Procedure, 1973. Subsections (1) and (2) of Section 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been placed on behalf of the applicants. 14. Learned counsel, however, argued that mere citation of passages which were considered by the State Government to be an offence under Section 153A I.P.C, is not sufficient compliance with the requirements of law. According to him, the State Government should have further stated how and in what manner the said passages were likely to offend the religious feelings of Sunni sect of Muslims and was thus prejudicial to the maintenance of harmony between the Shia and the Sunni Muslims and for that reason was likely to disturb public tranquility and peace. Carried to its logical limits, the argument pressed upon us made it obligatory on the State Government to give detailed reasons for its opinion that the objectionable passages in the book amounted to an offence punishable under Section 153A I.P.C. We have given careful consideration to the submission just stated above and we are unable to accept the same. In our opinion, the notification gives a clear indication of the facts and the statements and representations which, according to the State Government, offended the provisions of Section 153A of the Indian Penal Code. In our opinion, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aside Caliphs who ruled from Baghdad for over 500 years from 749 A. D. were descendants of Abdul Muttalib's third son Abbas. The descendants of Hashim son of Abde Manaf are known in Islamic history as Hashimites. 18. The second son of Abde Manaf gave birth to a son known Ommaiya. The third Caliph Usman was one of the descendants of Ommaiya. Muavia who was the founder of Ommaiyad dynasty which ruled from Damascus from 661 A. D. to 749 A. D. was also a descendant of Ommaiya. 19. The prophet was persecuted by Maccans so much so that he and his trusted followers felt compelled to seek refuge at Medina which is at a considerable distance to the north of Mecca. There was frequent fighting between the Meccans, who were led by Abu Sufian, father of Muavia and the Medinites led by the prophet. Ultimately the forces of Islam led by the Prophet triumphed and succeeded in capturing Meeca. After the conquest of Mecca by the forces of Islam, Abu Sufian and his son Muavia accepted Islam along with a number of other persons. The persons of Mecca who embraced Islam after its conquest were derisively called by the Medinites and those Meccans who had embraced Islam earlier as Tulaqa (freed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Muavia refused to accept the Caliphate of AH was that the later bad failed to punish the mutineers who had murdered Usman. He professed that he would offer allegiance to Ali only after punishment had been meted out to the persons who were concerned in the murder of Usman. A bloody and indecisive battle was fought between the forces of Ali and Muavia at Siffin, a place some where on the borders of Iraq and Trans Jordan. Sometimes thereafter, Ali fell a victim to the dagger of an assassin in 661 A. D. With his death ended, according to the Sunni doctors the period of the Khilafate Rashida (Caliphs on the right path) or Khilafate Kamila (Peerfect Caliphate). The period of Khilafate Rashida or Khilafate Kamila lasted for about 29 years according to the Christian era. 24. Hasan, son of Ali, was a man of pence and he offered his allegiance to Muavia who assumed the governance of Islamic world though not without dissent. He made Damascus as his capital and Mediana which had been the traditional seat of Islamic Government lost its importance. Muavia designated his son Yasid as his successor and obtained allegiance to the proposed succession during his lifetime. The designation of Yazid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nfined to a few pockets in the United Arab Emirates of the Persian Gulf area and a few places in North Africa. The Kharijis have not in any way influenced Muslim history and it is not, therefore, necessary to deal with this seen any further. 27. Until the advent of the Abbaside dynasty, except for political divisions, there was no doctrinal difference between the adherents of the house of Ali and the adherents of the house of Ommayya. The foundation of the Abba-side dynasty by Abdul Abbas, however, was productive of two distinct sects within the brotherhood of Islam who differed from each other in many doctrinal matters. 28. The adherents of the house of Ali who had supported Abdul Abbas in the uprising against the Ommayyad were greatly disappointed by what they considered to be an act of perfidy on the part of Abdul Abbas when he seized power in the name of house of Abbas, ignoring the claims of the descendents of Ali. Gradually they propounded the theory of the divine right of the house of Ali to rule the Islamic world. They developed a theological content for this political stand. According to the adherents of this school, namely, Shias, the Imam (exemplary leader) was tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the right of the house of Abbas. The doctors of law were required to formulate the principles of orthodoxy in explicit terms: and gradually the grand superstructure of the Sunni Church was raised on the narrow foundations of Abbaside self-interest. 31. It must, however, be acknowledged that all the Sunni historians and theologians did not succumb to the Abbasides pressure. Some of them fearlessly gave expression to their views on the events which followed the death of the Holy Prophet and the rise of the Ommayyad dynasty. The consensus which to ultimately developed amongst the Sunni school of thought, as already stated, was that the first four Caliphs came to be known under the collective name of Khata-e-Rashideen, namely, the rightly guided Caliphs, or some time as Khalfa-e-Kamil or perfect Caliphs. 32. The first four Caliphs who ruled the Islamic world after the death of the Prophet are known as Khalfa-e-Rasbi-deen or Khalfa-e-Kamleen for several reasons. In the first place, either they are elected to the office or came to occupy it by consensus. The stand taken by Ali himself in this matter is stated by Ameer Ali in The Spirit of Islam at page 293 thus:-- W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ossessed of high character and who do not act according to the dictates of religion. 36. From the foregoing, it follows that the hard core of Sunni religious thought, inter alia, is Faith in Allah and that Mohammad is his Prophet and that the first four Caliphs were his rightful successors. It does not extend further and does not require adherence to any other Caliph who succeeded the Khalfa-e-Rashdeen Or Khalfa-e-Kam-leen. We have already indicated the Shia doctrine of Imamat. The Shias do not subscribe to the Sunni doctrine of Khalafat. Ameer Ali has stated the main difference between the two schools in the following words:-- The question of the Imamate, or the spiritual headship of the Musulman commonwealth, is henceforth the chief battleground of the two sects. The Shias hold that the spiritual heritage bequeathed by Mohammed devolved on Ali and his descendants. They naturally repudiate the authority of the Jamaat (the people) to elect a spiritual head who should supersede the rightful claims of the Prophet's family . 37. There is no authority for the proposition that Muavia was held in high esteem by the Sunnis. His actions came in for strong criticism during ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... guage groups or castes or communities, or (b) commits any act which is prejudicial to the maintenance of harmony between different religious, racial or language groups or castes or communities and which disturbs or is likely to disturb the public tranquility, shall be punished with imprisonment which may extend to three years, or with fine, or with both . 41. The essential ingredients of the aforesaid provision of law are: (1) That the accused promoted or attempted to promote feelings of enmity and hatred between different religious, racial or language groups or castes or communities or that the accused has done an act which is prejudicial to the maintenance of harmony between such groups or castes or communities and which is likely to disturb public tranquillity. (2) That he promoted or attempted to promote feelings of enmity or hatred by words or signs or visible representations or otherwise or had acted prejudicially to the maintenance of harmony which disturbs or is likely to disturb public tranquility. 42. In a single Judge decision of the Lahore High Court Dalip Singh. J. in the case Raj Paul v. Emperor, AIR 1927 Lah 590, while interpreting the sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting such as I find in this book is the excitement of enmity or hatred or both between the followers of the Hindu and Mahomedan religions. 46. A little later he observed:-- It must of course be recognised that in countries where there is religious freedom a certain latitude must of necessity be conceded in respect of the free expression of religious opinions together with a certain measure of liberty to criticize the religious beliefs of others, but it is contrary to all reason to imagine that liberty to criticize includes a licence to resort to the vile and abusive language which characterizes the book now before me. 47. In the case of Gopal Vinayak Godse v. Union of India AIR1971Bom56 , Chandrachud, J. (as he then was) delivering the judgment of the Special Bench emphasised that in order to bring a case within the purview of Section 153A, intention to promote enmity or hatred apart from what appeared from the writing itself was not a necessary ingredient. It was enough to show that the language of the writing was of a nature calculated to promote feelings of enmity and hatred for, a person must be presumed to intend the natural consequences of his act. The Special Bench o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red the part of the law of the land and the view held by the courts was that any attack on the basic doctrines of Christianity was an offence inasmuch as it tended to destroy those obligations whereby the society was bound together. This view of law was applied with full vigour by the English Courts to protect the society from the fall-out from the disorders, following the French Revolution. The teachings of French philosophers like Voltaire and Rousseau naturally had their impact on the intelligentsia in England and a spate of books and articles were published by English authors which questioned the basic concepts of the teachings of Christ. The decisions of the English Courts to which we have briefly referred above, were intended to prevent the disintegration which overtook French society after the fall of Bastille. 51. The trend of the English decisions following the French Revolution provoked an opposite reaction. Starkie on Libel enunciated the law of blasphemous libel in the following words:-- A willful intention to pervert, insult, and mislead others by means of licentious and contumacious abuse applied to sacred subjects, or by willful misrepresentations or artfu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and do not have the tendency to: insult the feelings or the deepest religious convictions of any section of the people, penal consequences do not follow. 58. We do not propose to refer to the various passages in the book Munaqibe Ahle Bait to which objection has been taken in the impugned notification. In the introduction to the said book, it has been specifically stated that it was being written to controvert the erroneous teachings propounded in the book by one Mahmood Ahmad Abbasi which is entitled as Khilafate Muavia wa Yazid. The aforesaid work of Mahmood Ahmad Abbasi was itself proscribed by a notification issued under Section 99-A of the Code of Criminal Procedure, 1898. The validity of the said notification came in for consideration before the Delhi High Court in Mahomed Khalid (supra). 59. We have very carefully examined the different passages of the book Munaqibe Ahle Bait , which are considered by the State Government as objectionable, and we are of the opinion that they do not contain any matter which may be characterised as written in bad taste or couched in offensive or intemperate language. On the principles of law discussed above, the publication of thi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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