9911796707
TMI Blog1968 (8) TMI 205X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 153A of the Indian Penal Code is challenged. No relief as such is claimed against the 1st Respondent. The 2nd Respondent is the Delhi Administration which passed the impugned order of forfeiture on the 26th September, 1968 in supersession of an earlier order dated the 6th December, 1967. The 3rd Respondent is the State of Maharashtra which republished in its Gazettes of the 1st February, 1968 and the 17th October, 1968, the notifications of the 2nd Respondent dated the 6th December 1967 and the 26th September, 1968 respectively. The 4th Respondent is the Judicial Magistrate, First Class, Poona, who issued a search warrant on the 25th January, 1968 authorising a Sub-Inspector of Police in Poona to enter the premises of 'Asmita Prakashan' and seize copies of the book, on the ground that the book contained matter which promoted feelings of enmity and hatred between Hindus and Muslims. The 5th Respondent is the Commissioner of Police, Poona, whose subordinate, a Sub-Inspector- of Police, seized one copy of the book from the residence of the author and two copies from the office of the 'Asmita Prakashan'. The relief claimed against Respondents 3 to 5 is that they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to be produced before the Supreme Court on the 19th October, 1964. 7. The petitioner was arrested again on the 25th November, 1964 under the Defence of India Act. He was released from detention on the 30th November, 1965. 8. These facts do not directly concern the legality of the order of forfeiture passed by the 2nd Respondent. But these facts and these names occur frequently in the book and indeed some of these have been accorded a special separate treatment. The partition of the country, the genesis of Gandhiji's murder the possibility that the murder could have been averted, the Court scene, the involvement of Dr. Savarkar in the accusation of murder, the treatment received by the petitioner in the Nasik and Aurangabad Jails and the vexed problem of his rehabilitation in society -- these and other topics which are dealt with in the book revolve around the facts and figures mentioned above. 9. The book first appeared in a serial form. Fifteen out of its sixteen chapters were serialized in a monthly Marathi magazine called 'Painjan' in its issues of June 1966 to October 1967. What is now the seventh chapter of the book -- Throw my ashes into the Indus -- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Code of Criminal Procedure and Article 226 of the Constitution to challenge the notification of the Delhi Administration and that of the Maharashtra Government republishing that notification. Every application under Section 99B is required by Section 99C to be heard and determined by a Special Bench of the High Court composed of three Judges. That is how the matter has come before us. 14. The petitions came up for hearing on the 16th September, 1968 when the learned Advocate General, appearing for Respondents 1 and 2 (The Union of India and the Delhi Administration), raised three preliminary objections to the maintainability of the petitions: one, that this High Court has no jurisdiction to entertain the application under Section 99B, challenging the legality of the notification issued by the Delhi Administration; two, that the petitions are barred by time, not having been filed within two months of the date of the order of forfeiture, as required by Section 99B; and three, that the petitions, in so far as they purport to be under Article 226 could not lie as the authority exercising power under Section 99A does not function as a quasi-judicial tribunal. Later, the two latter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... punishable under Section 153-A of the Indian Penal Code 1860, (Act XLV of 1860). Now, therefore, on the ground that the book contains passages, references to which are given in the Schedule, which passages read in the context of the book as a whole, promote feelings of enmity and hatred between Hindus and Muslims in India, and in exercise of the powers conferred by Section 99-A of the Code of Criminal Procedure, 1898 (Act V of 1898), the Lt. Governor, Delhi hereby declares to be forfeited to the Government every copy of the said book and all other documents containing copies, re-prints and translation of or extracts from the said book. By order, (Sd.) Vinod Kumar Seth, Under Secretary, (Home), Delhi Administration: Delhi. 17. The schedule annexed to the order refers to the objectionable passages by references to the pages of the book at which they appear. Such passages are 52 in number. 18. The new order of forfeiture necessitated a new challenge. But rather than drive the petitioners to file fresh petitions, we permitted them to amend their petitions, the Advocate General not objecting. We have now to consider the validity of the notification issued by the 2n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction to entertain the application. As the contention is based on language of Section 99B, it is necessary to consider that section and other allied sections. 21. Section 99A of the Code under which the 2nd Respondent passed the impugned order reads thus: 99A. (1) Where- (a) any newspaper, or book as defined in the Press and Registration of Books Act, 1867, or (b) any document, wherever printed, appears to the State Government to contain any seditious matter or any matter which promotes or is intended to promote feelings of enmity or hatred between different classes of the citizens of India or which is deliberately and maliciously intended to outrage the religious feelings of any such class by insulting the religion or the religious beliefs of that class, that is to say, any matter the publication of which is punishable under Section 124A or Section 153A or Section 295A of the Indian Penal Code, the State Government may, by notification in the Official Gazette stating the grounds of its opinion, declare every copy of the issue of the newspaper containing such matter, and every copy of such book or other document to be forfeited to Government and thereupon any police ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nment to contain any matter which is punishable under Section 153A of the Indian Penal Code, it may declare every copy of the book to be forfeited to Government and thereupon any police officer may seize the same wherever found in India . The width of the language employed in Section 99A leaves no doubt that the power of a State Government to forfeit objectionable matter is not governed by the consideration whether the matter is printed or published within its territory. The place of publication finds no reference in Section 99A and therefore it is not a relevant factor on the power of the State Government to forfeit a book. The place of printing is expressly made inconsequential because the power to forfeit a book can be exercised by the State Government wherever the book may have been printed. Whether the book enjoys wide circulation or any circulation at all in the area within the limits of the State Government which passes an order of forfeiture is also not made relevant by the Section. Finally on the language of the Section, it does not seem necessary that the harmful consequences of the matter charged as objectionable must ensue or be felt within the State. In short, theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on will arise. Copies of the forfeited book can be seized under Section 99A wherever they are found in India. If such copies are seized, say, from a dozen different States, a dozen applications would lie under Section 99B in as many different High Courts. In Khajoor Singh v. Union of India, [1961]2SCR828 the Supreme Court refused to introduce in Article 226 of the Constitution (as it then stood) the concept of the place where the order has effect, in order to determine which High Court had jurisdiction to grant relief under Article 226, on the ground, mainly, that the introduction of such a concept may give rise to confusion and conflict of jurisdictions . Sinha, C.J. who delivered the majority judgment has taken, what is for our purposes, a useful illustration of an order passed by an authority in Calcutta affecting six persons living in six different States. On the language of Article 226 (without Clause 1A which was introduced in 1963), it was held that the order could be challenged only in the High Court within whose jurisdiction the authority was located, if one is to avoid confusion and conflict of jurisdiction (Para 13). Therefore, unless the wording of the statute compel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wide language of Section 99B any and every High Court has jurisdiction to consider the validity of an order of forfeiture passed by any State Government. Such an argument merely takes note of the convenience of an individual. It ignores the salient rule that you must, unless so compelled by the language of the statute, avoid a conflict of jurisdiction. 30. It is possible to suggest a reason why the Legislature did not specify in Section 99B that the application will lie to that High Court only which exercises jurisdiction in relation to the territory of the State Government which passes the order of forfeiture. Section 4 (i) of the Code of Criminal Procedure says, in so far as is relevant, that in relation to any local area other than Andaman and Nicobar Islands, High Court means the highest Court of Criminal Appeal for that area. Sections 99A to 99G of the Code are parts of the same scheme so that words or phrases occurring in one of these sections must be construed in the light of the provisions of the other cognate sections. The expression the High Court , occurring in Section 99B, must therefore be understood in the light of the expression the State Government --the Gove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication republishing that order. Therefore, no application can lie under Section 99B to challenge the notification of the Maharashtra Government republishing that of the Delhi Administration. In re, Ghulam Sarvar Figar AIR 1962 AP 526 and in Gulam Sarwar Firgar v. State of Bihar AIR1963Pat284 , it was held that a notification re-publishing a notification of forfeiture cannot be challenged under Section 99B. Thus the challenge under Section 99B can only be to the parent notification of forfeiture. 33. We must therefore uphold the preliminary objection taken by the learned Advocate General that the petitions, in so far as they purport to be filed under Section 99B of the Code, cannot lie in this Court. In our opinion the High Court of Delhi, and no other High Court, would have jurisdiction to entertain the petitions filed under Section 99B to challenge the order of forfeiture passed by the Delhi Administration on the 26th September, 1968. 34. It is plain that as the petitions are not maintainable in this Court under Section 99B, we cannot give to the author or the publisher the benefit of the wide powers possessed by the High Court under Section 99D. Under that Section, the Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntained in Articles 19(1)(a) 19(1)(f) and 19(1)(g) of the Constitution. Clauses (a) and ff) are relied upon on behalf of the author, while Clause (g) is relied upon on behalf of the publisher. The argument is that Section 99A is unconstitutional because it places unreasonable restrictions on, the right of free speech and expression the right to acquire and hold property and the right to carry on business as a publisher. Reasons why the restrictions are unreasonable are said to be these: (a) The restrictions are unreasonable not only because the power conferred by Section 99A is wide but more so because it must be exercised in its fullest amplitude or not at all. Even if a State Government takes the view that an objectionable matter needs to be proscribed within its own territory only or within any narrower limits or within an area larger than its own but not extending over the entire country, it has no power to restrict the operation of the order of forfeiture in that fashion. It is obliged, in all cases, to pass an order which will embrace the whole country whether or not the harmful effects of the objectionable matter are likely to be felt in the entire country. The order thus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law in so far as such law imposes reasonable restrictions on that right, in the interests, inter alia, of public order. Similarly assuming that the fundamental right of the petitioner under Article 19(1)(f) is violated as he cannot, on account of the order of forfeiture, acquire or hold a copy of the book that right, as provided in Article 19(5) cannot affect the operation of any existing law in so far it imposes reasonable restrictions in the interests of the general public. In the same manner, the right of the publisher to carry on his business is subject, as provided in Article 19(6) to the operation of any existing law in so far as it imposes reasonable restrictions on that right in the interests of the general public. Section 99A is an 'existing law' as it was in force immediately before the commencement of the Constitution, having been inserted in the Code of Criminal Procedure by the Press Law Repeal and Amendment Act No. XIV of 1922. The question therefore to be considered is whether the restrictions imposed by Section 99A on the aforesaid fundamental rights are reasonable. That the restrictions on the right of free speech and expression are in the interests of pub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seditious so as to fall under Section 124A or (ii) which promotes or is intended to promote feelings of enmity or hatred between different classes or communities so as to fall under Section 153A or (iii) which is deliberately and maliciously intended to outrage the religious feelings of any such class by insulting the religion or the religious beliefs of that class, so as to fall under Section 295A of the Indian Penal Code. Sedition consists of bringing or attempting to bring into hatred or contempt or exciting or attempting to excite disaffection towards the Government established by law in India. Any order forfeiting seditious writing must in the very nature of things operate throughout the country, for it cannot be that a writing is seditious in one part of the country but not in another. The two other evil consequences of the written word which Section 99A seeks to combat, namely, promotion of class hatred and disparagement of religious beliefs such as would attract Sections 153A and 295A, stand more or less on the same footing. Promotion of hatred between different classes of citizens, as for example, Hindus and Muslims or deliberate, malicious acts intended to outrage the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rictly accurate to say that the State Government issuing an order of forfeiture under Section 99A gives or must give to that order a country-wide operation. The State Government merely passes an order of forfeiture as it has done in the present case. It does not stipulate in the order that it will operate all over the country. The effect however, of the order is that any police officer may seize copies of the objectionable matter, wherever found in India. It is not a fair reading of Section 99A to say either, that the State Government gives or is required under the terms of that section to give an extra-territorial operation to its order or that the moment a State Government passes an order of forfeiture, police officers in other States must, without more, act in aid of that order by seizing copies of the objectionable matter which are in circulation within their, respective jurisdictions. Section 99A merely enables all police officers to seize copies wherever found, and that is because, without that power the order of forfeiture would be denuded of its efficacy. 46. This consideration also answers the second objection mentioned in (b) above. The Delhi Administration has in no w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of West Bengal v. Anwar Ali Sarkar, 1952CriLJ510 , where the question is whether a discretionary power is liable to be abused, there is a presumption that a public authority will act honestly and reasonably in the exercise of its statutory powers. In the instant case the discretion is vested, not in an inferior official but, in the State Government itself and therefore the presumption, as stated in Matajog v. H.C. Bhari, [1955]28ITR941(SC) , is strengthened. 49. Regarding (e), it is true that Section 99A does not provide that the writer or publisher should be heard before passing an order of forfeiture but it is very important to bear in mind that Sections 99B and 99D provide for a full judicial review of the order. Under Section 99B an application to set aside the order of forfeiture can be made to the High Court within two months from the date of the order by any person having any interest in the forfeited matter. This application is required under Section 99C to be heard and determined by a Special Bench of the High Court composed of three Judges. Under Section 99D the Special Bench has got the power to set aside the order of forfeiture, if it is not satisfied that the issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loses its sting, because a person aggrieved by the order can take the matter to the High Court which is entitled under Section 99D to review the order on merits. The vesting of subjective discretion in the State Government cannot therefore be considered to be an unreasonable restriction on the fundamental rights of the petitioner. In Tika Ramji v. State of U. P. [1956]1SCR393 , the Supreme Court held that the requirement of procedural reasonableness was satisfied even though the statute which was assailed on the ground that it imposes unreasonable restrictions on the right to carry on business, provided for an administrative appeal only. Similarly, in Kishan v. State of Rajasthan [1955]2SCR531 the Supreme Court upheld Section 86 of the Marwar Land Revenue Act, 1949 on the ground, inter alia, that the orders of the Settlement Officer were subject to revision by the Board of Revenue. 52. Thus, even a judicial review is not held to be an essential condition of reasonableness, if adequate safeguards are provided by the Legislature to prevent the executive authority from exercising its discretionary power arbitrarily. The case before us is stronger, for the Legislature has provided a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es for an application a period of limitation different from the period prescribed by the Schedule, then for the purpose of determining any period of limitation prescribed for an application by the special law, the provisions contained in Sections 4 to 24 would apply to the extent to which they are not expressly excluded by the special law. Clause (b) of Section 29(2) of the Act of 1908, under which the provisions of that Act other than those referred to in Clause (a) were excluded, has now been deleted. The result is that whereas Section 5 of the Act of 1908 would have been inapplicable to an application under Section 99B of the Code of Criminal Procedure, Section 5 of the Act of 1963 would apply to it. Section 5 provides, in so far as is material, that any application may be admitted after the prescribed period if the applicant satisfies the Court that he had sufficient cause for not preferring it within that period. The grievance of the petitioner is that a person aggrieved by the order of forfeiture may not know within a period of two months that such an order was passed, because the orders are notified in local gazettes and in the normal course, one cannot have knowledge of not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... artment of the Government of India, the Government did not think it necessary to proscribe the book. The circumstance that in face of these facts the Delhi Administration passed the order of forfeiture shows, according to the petitioner, that the order was passed without application of mind. 58. No such conclusion can, in our opinion, be deduced. The publication of a book in a serial form may not produce the same impact on the readers as the publication of the matter in a book form would produce. Then again, social and political conditions are not static. They may undergo a change in the period intervening between the appearance of the earlier installments of the series and the publication of the book. In fact, we must in this context refer to a significant fact. What is now the seventh chapter of the book, Throw my ashes into the Indus appeared in the issue of 'Sobat' dated the 8th October, 1967 while the book was published on the 12th October. The first order of forfeiture was passed by the Delhi Administration on the 6th of December, 1967. The learned Advocate General has raised a strong objection to some of the passages occurring in the seventh chapter and the sche ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t it violates the guarantee of free speech and expression must be rejected because the Section seeks to punish only (a) such acts which have the tendency to promote enmity or hatred between different classes or (b) such acts which are prejudicial to the maintenance of harmony between different classes and which have the tendency to disturb public tranquillity. These acts are clearly calculated to disturb public order and so the limitations imposed by Section 153A are in the interests of public order. Article 19(2) would therefore save Section 153A as being within the scope of permissible legislative restrictions on the fundamental right guaranteed by Article 19(1)(a). 62. What remains now to consider is whether the impugned order is justified on merits, that is, whether the opinion formed by the 2nd Respondent can, on any reasonable view, be upheld. We must record that learned Counsel for the petitioner as well as the learned Advocate General invited us to consider the merits of the matter, irrespective of what view we took of the question of jurisdiction and the other legal and constitutional questions. 63. The fresh order of forfeiture dated the 26th September, 1968, which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of enmity or hatred, it is no defence to a charge under Section 153A that the writing contains a truthful account of past events or is otherwise supported by good authority. If a writer is disloyal to history, it might be easier to prove that history was distorted in order to achieve a particular end as e.g. to promote feelings of enmity or hatred between different classes or communities. But adherence to the strict path of history is not by itself a complete defence to a charge under Section 153A. In fact, greater the truth, greater the impact of the writing on the minds of its readers, if the writing is otherwise calculated to produce mischief. 65. Let us then consider the book--its theme, its language, its innuendoes, the similies it employs and the moral of its story, if any--in order to ascertain whether the offending passages read in the context of the book as a whole fall within the mischief of section 153A. That seems to us to be the crux of the matter. 66. In order to understand the theme of the book, it would be necessary to make a brief and broad analysis of the contents of its sixteen chapters, the prologue called the Pahile Pan (The First Page), the epilogue ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y and analysis of the book given by us will also facilitate an assessment of what impact the book, as a whole would create on the minds of the readers. 244. We have considered the book in all its aspects but we find ourselves unable to agree that it contains matter which promotes feelings of enmity and hatred between Hindus and Muslims in India. We are clearly of the view that it does not contain such matter, not certainly such matter the publication of which is punishable under Section 153A of the Indian Penal Code. We are also satisfied, if it be relevant ,that the book does not contain any matter which is calculated to bring about enmity or hatred between Hindus and Muslims in India. On a fair reading of the book, that is not the intention of the writer either, though we must hasten to add that the intention of the writer is not relevant if the writing is otherwise of a nature described in Section 153A. 245. Whether the charge made against the book in the order of forfeiture is sustainable can best be appreciated by considering, in the first place, what is the theme of the book. Stated generally, the theme of the book is Gandhiji's assassination but that is a very ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ole theme. Other subjects, wholly independent of the genesis of Gandhiji's murder, occupy a sizable portion of the book. One such subject is dealt with in the ninth chapter The Days of Separation . It contains a moving account of the hardships which the author's wife, Sindhu, had to face in his absence. The theme is that the wife and children of persons concerned with an offence of national dimensions like the murder of Gandhiji have inevitably to suffer a sort of vicarious punishment. 248. Yet another theme dealt with in the book at some length is the partly purposeful, partly purposeless life of a convict in jail, the humane attitude of the jail officials, born of a sympathetic understanding of events that have led to the crime and the vindictive attitude of the Government to a particular class of prisoners. 249. Lastly, chapters 13 to 16 which cover one-fourth of the book, both in terms of the number of chapters and the number of pages, deal with an entirely unconnected theme--so unconnected that the learned Advocate General said that there was no objection to the publication of these chapters in a separate compilation. In those chapters, the author partly deals w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also, even the theme of Gandhiji's assassination is dealt with as a matter of past history. We think that the claim of the publisher that Gandhi-assassination is now a matter of history and therefore an attempt is made in the book to ascertain the true reasons that led to that catastrophe is fairly justified. So is the claim of the author that he has striven to place before the public the reasons that led to Gandhiji's death, a death which was closely related to his philosophy of life. We are therefore unable to accept the argument of the learned Advocate General that the theme of the book is that Muslims are essentially aliens and Hindus must arm themselves to meet their unjust claims. 251. That is in so far as the theme of the book goes. In regard to the use of similes ,metaphors, innuendoes, and the references to historical incidents, mythology and Hindu philosophy their number is legion. We gave up keeping their count. But what do they really show? These figures of speech are used and these references are made in the context of the main theme that Gandhiji's policy of appeasement led to the creation of Pakistan, that he undertook a fast to compel the Governmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and the country was partitioned. The partition brought in its wake tears and bloodshed. It also raised thorny questions and in solving them the same policy was pursued as for example, in paying the cash-balances to Pakistan. The last straw weighed and Gandhiji was murdered. Such are the consequences of the policy of appeasement.' We said that this 'perhaps' could be the moral of the story, because the author does not really want to draw any moral. He has emphasised, time and again, that he wanted to portray before the public the catastrophic event in its historical setting, so that the public may know why the event happened. He also says that if the people were told the genesis of the event, they might perhaps understand him better and accept him back in society. He, his wife and children can then rehabilitate themselves in society--a society which spurned him, which shunned them. 255. Applying these broad tests, the book read as a whole cannot be held to contain matter which promotes feelings of enmity and hatred between Hindus and Muslims in India. That however is but one aspect of the matter. Specific objection is taken to as many as fifty-two passages in the bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch an insinuation cannot be reasonably construed as promoting enmity and hatred between Hindus and Muslims. When the publisher says that Savarkar will be remembered, what is being conveyed to the readers is that Savarkar who always stood for one and undivided India and who had strong differences with Gandhiji on the question of making concessions to Muslims will be remembered by those who lost their homes and hearths in the bloodshed which accompanied partition. Nathuram Godse, says the publisher, may perhaps be remembered and here what is being conveyed to the readers is that Nathuram stood for the integrity of the country and he might be remembered as a person who committed the murder of Gandhiji because his policy of appeasement led to the partition of the country. 257. We must make it plain that we should not be taken as expressing our agreement with the views of the publisher or of the writer. The question before us is not whether the assessment made by the publisher or the writer of the historical situation is strictly correct. One might have an honest difference of opinion in regard to the views expressed by the publisher and the writer that Gandhiji's policy of appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... troversy normally, but the question regarding the payment of cash-balances became Ultimately connected with the invasion of Kashmir by Pakistani tribesmen and the endorsement of that aggression by the Pakistan Government. At pages 20, 21 and 23 of the book the author has reproduced extracts from 'Indian Information' dated the 2nd of February. 1948 from which it is clear that Sardar Vallabhabhai Patel and Mr. Shanmukham Chetti were clearly of the view that the cash-balances should not be paid unless the Kashmir affair was settled. In fact, the latter who was then the Finance Minister said that India would not be deterred from the right path by a campaign of hectoring, bullying and scandalizing on the part of responsible ministers of a neighbouring country, meaning thereby Pakistan. The extract quoted from 'Indian Information' at page 23 shows that the Government declared in clear terms that the decision not to pay the cash-balances was being withdrawn and the financial agreement with Pakistan was being implemented immediately in view of the appeal made by Gandhiji to the nation. The Prime Minister also issued a notification in which it was stated that the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that within twenty-four hours of the commencement of the fast, the Cabinet of the Indian Union met on the lawns of Birla House round Gandhiji's fasting bed to consider afresh the issue of Pakistan's share of the cash-balances. On the 15th the Government of India announced its decision to pay the sum of rupees fifty-five crores immediately. Pyarelal says at page 719 that in regard to this decision of the Government of India Gandhiji said that the motive behind that decision ...... was my fast. It changed the whole outlook. Without the fast, they could not go beyond what the law permitted and required them to do...... At page 720 the author says that the revocation of the Cabinet decision in regard to the release of Pakistan's share of the cash-balances proved for Sardar Patel the proverbial last straw on the camel's back. 262. We have referred to the account given by Pyarelal at some length, because time and again it was argued before us that the petitioner has distorted history to suit his own purpose and that the account given by him of many a historical event like the crucial fast contains only half-truths. In our opinion. Pyarelal's book bears out the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stood. 265. Now in regard to the first group of these passages, it is necessary to mention that the instances which the author has cited are not shown to be imaginary and we see no reason why they should be dismissed as mere figments of the author's imagination. In fact, some of the more important references to how Nathuram was received, are borne out by what Mr. G.D. Khosla, who was one of the three Judges of the Punjab High Court which heard the appeal has said in his book The murder of the Mahatma . At page 267 of the book he says: The highlight of the appeal before us was the discourse delivered by Nathuram Godse in his defence. At page 273, it is stated that Nathuram had made full use of his talents during the trial and at the hearing of the appeal and that he made moving references to historical events and ended his peroration on a high note of emotion, reciting verses from Bhagwadgita. At page 274, the author says: The audience was visibly and audibly moved. There was a deep silence when he ceased speaking. Many women were in tears and men were coughing and searching for their handkerchiefs. The silence was accentuated and made deeper by the sound of an occasiona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he in any sense felt that the act of Nathuram was praise-worthy. In fact, the author has said at several places in the book (see, for example, page 313) that the fact that Sardar Patel had made a political assessment of the act of Nathuram cannot mean that he sympathized with that act. 268. The argument of the learned Advocate General is that the object of the author in glorifying Nathuram is to show that he and Gandhiji were on the same pedestal, that in fact Nathuram was on a higher pedestal, that he was like Arjun fighting evil at the call of duty and that his doubts resolved and his mind became composed as Arjun's became after listening to the discourse of Srikrishna. Now, there is no question that the one thread which runs through the entire book is that Nathuram's act in assassinating Gandhiji should be dissociated from the motives which accompanied it and that though the act may be condemned, the motive could be praise-worthy. Nathuram, says the author, loved his motherland no less than anyone else and he committed the murder of Gandhiji out of that love. He thought that Gandhiji's policy of appeasement of Muslims had led to the partition of the country and ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a matter of history, the view was widely held that some members of the Muslim League were opposed to the British quitting the country and handing it over in the charge of the majority community in India. We do not think that a reference to such a fact several years after India attained independence is capable of promoting feeling of enmity or hatred between the two communities. 271. The passage at page 117 refers to the evidence given by the approver. Badge, to the effect that in a meeting which had taken place in about 1946-47, Savarkar had stated: The policy of the Congress is detrimental to the interests of Hindus, Muslims should be economically boycotted and if they committed an act of aggression, Hindus should prepare themselves to resist it. Hindus should therefore learn how to use the arms . After reproducing this portion from Badge's evidence, the author has stated that Savarkar denied that any such meeting had taken place but he added that even assuming that it had taken place, no exception could be taken to anything which he is alleged to have said in the meeting. We think that far more is being read in such passages than is intended by the author or than can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... released from jail in 1937. The author says that since 1937 Savarkar thought it necessary to undertake one more movement in addition to the freedom movement. He undertook the task of showing how wrong the policy of one-sided 'Ahimsa' was. 274. We have stated more than once that the book does not profess to deal with any contemporary problem touching the relations between Hindus and Muslims in India. The policy pursued by Gandhiji, the consequent division of the country and the countless miseries which were inflicted on the people are what the author wants to put before his readers. He of course puts something more before his readers and that is that Nathuram's act was not the act of an insane person, that the murder of Gandhiji was a political murder and that an assessment of Nathuram as an individual should be made apart from Nathuram as a murderer. 275. Reliance is then placed on passages occurring at pages 22, 24, 100 and 101 as showing that the Indian National Congress was consistently partial to Muslims under the leadership of Gandhiji and that the interests of the Hindus were totally sacrificed. We have already dealt with the passage at page 22 which refers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... demand of Hindu Sabha was that what belongs to Hindus should not be taken away and gifted to the Muslims. The basic objection of the author is really to the creation of a separate State of Pakistan and in fact, the whole of the seventh chapter Throw My Ashes Into The Indus in which passages at pages 100 and 101 occur contains an exposition of Apte's attitude in regard to the creation of a separate State of Pakistan. The author says that after it was clear that the sentence of death was to be executed, Nathuram and Apte were asked to express their final desire. They said that their one desire was that their ashes should be immersed in the Indus. The account of the conversation between the author and Apte in regard to this matter shows the reasons why such a desire was expressed. The Indus which had become red by bloodshed was once a part of India and Nathuram and Apte desired that their ashes should be treasured so that they could be immersed in the Indus, if at any time in the future, the Indus again became a part of India. We are unable to appreciate that the observations made by the author in the context of this attitude can promote feelings of enmity and hatred between ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Ambala to meet him and that he had taken the courage to write what was a last letter to them, not for the purpose of assuaging their grief. He says that Bhagwan Srikrishna, who had preached Geeta had killed an Aryan King like Shishupal with his Sudarshan Chakra, not on the battle field but at the place where the Rajasuya Yagna was performed. Who could say whether Shrikrishna had committed a sin or not? Both in war and otherwise he had killed many an egoistic and important person for the welfare of the world. He had also exhorted Arjun to kill his own kith and kin. 279. Now, passages like this have a bearing on the thesis of the writer that criminality attaching to the act of a murderer should be assessed apart from the motive behind the act and the meritoriousness otherwise of the individual who does the act. There is no doubt that Gandhiji's murder has been extolled and one cannot possibly appreciate it. But the question before us is not whether the book is bad for that reason. Our task is to see whether the glorification of Nathuram or the justification of his dastardly act can be said to be reasonably connected with the problem of Hindu-Muslim amity. We think not. We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that Savarkar was, with a thoroughly unrealistic pose. It looked as if the Government thought that a war had broken out between a Muslim nation and a Hindu nation, that the commander of the Muslim nation had been killed and that the Muslim nation, aflame with a revengeful feeling, that just as the Hindu nation had killed their commander so will they kill theirs, had vowed to entrap the commander of the Hindu nation, A great deal was said about this involved passage but we are unable to read it as containing matter which would promote feelings of enmity and hatred between Hindus and Muslims. The author gives his own reasons why Savarkar was implicated in the charge of conspiracy. It is in that context that he says that the Government was full of revenge towards Savarkar. Therefore, it took a wholly unrealistic attitude that a war, as it were, had broken out between a Muslim nation and a Hindu nation, that Gandhiji, the commander of the Muslim nation had been killed and that the Muslim nation, inspired by a feeling of revenge that just as the Hindu nation had killed their commander so will they kill theirs, had resolved to capture Savarkar, the commander of the Hindu nation. This r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... do not feel embarrassed in saying this......... . In the eighth chapter on Savarkar, the author has stated at the top of page 130 that Savarkar, never desired that the Hindus should be given any higher rights than the Muslims. What Savarkar used to say was that the Hindus should not be deprived of their rights and those rights should not be conferred on others. At page 220 which occurs in the twelfth chapter Journey in Darkness the author says that Nathuram and Apte had a certain philosophy and they had become so one with that philosophy that they considered their own lives as insignificant before it. The author continues: Their philosophy may be right or wrong. This is not the place to decide that question. Nor would it be proper for me to express any opinion about it. I am after-all a convict in the episode relating to Gandhiji's assassination and howsoever I may try, my discussion of that subject cannot ever be impartial. At page 279 of the book which occurs in the chapter Struggle for Survival , the author says that the attitude of the accused in the Gandhi trial was not that there was a foreign regime or that the Government did not belong to them. The motive behind the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may warrant. What we have to consider is whether these reliefs or any of them can be granted to the petitioner under Article 226 of the Constitution. 287. It may be recalled that we were invited by both the sides to consider the merits of the book, regardless of our conclusion on the other legal and constitutional questions, including the question of jurisdiction under Section 99B of the Code of Criminal Procedure. Though it was not stated expressly by the learned Advocate General that if we found that the order of forfeiture is not justified on merits, we should grant appropriate relief to the petitioner, we suppose that the purpose of asking us to consider the merits of the book in any event, was to enable us to follow up our conclusion by passing a final order consistently with our view about the merits of the book. For example, if we were to come to the conclusion that the order of forfeiture is justified on merits, Counsel for the petitioner could not have complained if, consistently with our conclusion, we had dismissed the petition in so far as it purports to be under Article 226 also. That, we take it, would be the necessary consequence of his having asked us to go into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at can be issued in India with those in England, but only draws an analogy from them. That apart, High Courts can also issue directions, orders or writs other than the prerogative writs. The High Courts are enabled to mould the reliefs to meet the peculiar and complicated requirements of this country. But, to say that Article 226 confers very wide powers on the High Courts to reach injustice wherever it is found is not to say that the High Courts can function arbitrarily under this article. Some limitations are Implicit in the article and others may be evolved to direct the article through defined channels. 291. The limitations on the power of the High Court to issue writs, orders or directions either for the enforcement of fundamental rights or for any other purpose are apparent from decisions like Veerapa v. Raman Raman Ltd. [1952]1SCR583 , Sangram Singh v. Election Tribunal, Kotah [1955]2SCR1 and Thansingh v. Supdt. of Taxes [1964]6SCR654 . In Veerappa's case it was held that however extensive the jurisdiction of the High Court under Article 226 may be, it is not so wide or large as to enable the High Court to convert itself into a Court of Appeal and examine for its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntravened Article 311(2) of the Constitution. Venkatarama Aiyar, J. who delivered the judgment of the Court observes that the point which arose for determination in the case was whether the dismissed servant was denied an opportunity to present his case, which in turn depended mainly on the question whether he was prevented from cross-examining the witnesses who gave evidence in support of the charge. It was said that it was not the practice of the Court to decide matters of that type in a writ petition and therefore the petition was liable to be dismissed on that ground. In K.S. Rashid and Sons case [1954]25ITR167(SC) petitions were filed under Articles 226 and 227 of the Constitution for challenging certain Income Tax investigation proceedings held under Act No. 30 of 1947. It was held that the petitioners had already availed themselves of the remedy provided for under Section 8 (5) of that Act and the reference had already been made to the High Court in terms of that provision which was awaiting decision. Therefore, it was not proper to allow the petitioners to invoke the jurisdiction of the High Court under Article 226. 294. In Himatlal v. State of M. P. [1954]1SCR1122 the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be in the best position to decide upon the validity of the order. That, it is said would avoid a conflict of jurisdiction among the different High Courts. Now, in regard to several all-India legislations, the same question would arise but we are not aware that it was ever held that the High Court should refuse to exercise its jurisdiction under Article 226 even if the contravention of a fundamental right is established, because different High Courts might arrive at different conclusions and therefore ,the proper remedy would be to approach the Supreme Court under Article 32. 297. We have upheld the constitutional validity of Section 99A of the Code of Criminal Procedure as also of Section 153A of the Indian Penal Code. We are however of the view, that the particular order of forfeiture dated the 26th September, 1968 passed by the 2nd Respondent is unconstitutional because it affects the fundamental right of the petitioner under Article 19(1)(a) of the Constitution. It also affects the fundamental right of the publisher under Article 19(1)(g). We have taken this view because it seems to us impossible on any reasonable view to hold that the book Gandhi-assassination And I con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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