Holding

Section 95 CrPC is a constitutionally valid preventive provision; the State’s forfeiture order stands if the publication appears to contain matter punishable under the specified IPC sections, and the petitioner must rebut this prima facie case.

Summary

The author Dr. P.V. Narayana published a novel titled "Dharmakaarana" depicting the 12th‑century saint Basaveshwara, which included a controversial Chapter 12 alleging the saint's sister bore an illegitimate child. Several eminent persons complained that the chapter insulted religious sentiments, prompting the Karnataka Government to issue a notification under Section 95 of the CrPC ordering forfeiture of all copies. The author challenged the order by filing a petition under Section 96, which the Karnataka High Court dismissed. On appeal, the Supreme Court held that Section 95 is a valid preventive measure not violative of Article 19(1)(a) and that the State need only show that the publication appears to contain matter punishable under specified IPC sections; the burden of disproving this lies on the petitioner. The Court found the notification was based on a balanced assessment and not mala‑fide, and that the offending chapter was indeed objectionable, justifying forfeiture. Consequently, the appeal was dismissed, upholding the forfeiture order.

Issues considered

Whether an order under Section 95 of the Code of Criminal Procedure forfeiting a publication violates the freedom of speech guaranteed under Article 19(1)(a) of the Constitution
Whether the State Government’s notification was issued mala‑fide or without a proper basis
Who bears the onus of proof under Sections 95 and 96 of the CrPC – the State or the petitioner
Whether the content of Chapter 12 of the novel constitutes objectionable matter punishable under IPC sections 124‑A, 153‑A, 153‑B, 292, 293 and 295‑A
Whether the forfeiture of the novel is a permissible restriction in the interest of public order

Legislation cited

Code of Criminal Procedure, 1973s. 95, s. 96
Constitution of Indias. Article 19(1)(a), s. Article 51A(h)
Indian Penal Code, 1860s. 124-A, s. 153-A, s. 153-B, s. 292, s. 293, s. 295-A
Press and Registration of Books Act, 1867

Subjects

freedom of speechSection 95 CrPCforfeiture of publicationpublic orderreligious sentimentIndian Penal CodeArticle 19preventive lawKarnataka

Judgment

A SRI BARAGUR RAMACHANDRAPPA AND ORS.
v.
STA TE OF KARNA TAKA AND ORS.

MAY2, 2007

B [B.P. SINGH AND H.S. BED!, JJ.]

Code of Criminal Procedure, 1973: Sections 95 and 96.

Farfeiture of certain publications-Novel "Dharmakaarana "-
C Forfeiture of copies of-Petitioner published a novel entitled
"Dharmakaarana" portraying the story of a great saint of the 12th Century
narrated in first person, the narrator being the saint himself-The family of
the saint consisted of individuals of progressive thought who sought to
promote social reform in Hindu society and for that purpose preached that
D all were equal-The novel was selected by the Karnataka Sahitya Academy
for its annul award as the best novel for the year 1995--Some eminent figures
in the field of literature and otherwise, including a former Vice President of
India, wrote to the State Government that some of the statements made
therein were objectionable, inflammatory, hurtful and insulting to the
sentiments and feelings of the followers of the said saint and suggested that
E the novel should be forfeited-The State Government issued a Notification
under S. 95 Cr.P.C. ordering forfeiture of the novel-A petition under S.96
Cr.P.C. was filed by the petitioner on which the matter was referred for
-
decision to a Bench of 3-Judges of the High Court-The Judges examined
the matter in exrenso and dismissed the petition-The High Court held that
F an order under S. 95 Cr.P.C. was justified if it appeared to the State Government
that the published material contained objectionable matter and that such a
matter was maliciously intended to promote feelings of enmity and hatred
between different classes of the citizens of India-Correctness of-Held: India
is a country with vast disparities in language, culture and religion and
unwarranted and malicious criticism or interference in the fail of others
G cannot be accepted-The Government, thus, has the power of nulli.fY a
publication which endangers public order-The State Government had applied
its mind to the contents of the novel and the allegations made therein aud
taken a balanced and reasoned decision on the matter--Section 95 of the
Code is not violative of Article 19(J)(a)-Chapter 12 is not in sync with the

H 1086
BARAGURRAMACHANDRAPPAv.STATEOFKARNATAKA 1087

,. rest of the novel and has been deliberately designed to be hurtful and to A
bring the family of the saint to shame-Hence, but justified-Constitution of
India, I950, Arts, l9(J)(a) and 51-A(h)-Penal Code, 1860, Ss. 124-A, 153-
A, 153-8,292, 293 and 295-A.

Petitioner No. 11 published a novel entitled "Dharmakaarana"
portraying the story of a great saint of the 12th Century narrated in first B
person, the narrator being the saint himself. The family of the saint consisted
of individuals of progressive thought who sought to promote social reform in
Hindu society and for that purpose preached that all were equal. The book
was selected by the Karnataka Sahitya Academy for its annual award as the
best novel for the year 1995. Some eminent figures in the field of literature
and otherwise, including a former Vice President oflndia, wrote to the State
c
Government that some of the statements made therein were objectionable,
inflammatory, hurtful and insulting to the sentiments and feelings of the
followers of the said saint and suggested that the novel should be forfeited.

The State Government issued a Notification under Section 95 of the D
Code of Criminal Procedure, 1973 ordering forfeiture of the book. A petition
under Section 96 of the Code was filed by petitioner No. II on which the matter
was referred for decision to a Bench of 3-Judges of the High Court. The
Judges examined the matter in extenso and dismissed the petition.

,... The High Court held that an order under Section 95 of the Code was E
justified if it appeared to the State Government that the published material
contained objectionable matter and that such a matter was maliciously intended
to promote feelings of enmity and hatred between different classes of the
citizens of India. Hence the appeal.

Dismissing the appeal, the Court F
t
HELD: 1. It is true that the inclusion of a scientific temperament and a
spirit of enquiry is essential for human development and is a sine qua non
for progress and for social change and Article 51-A(h) of the Constitution
clearly recognizes this principle. Likewise, Article 19(l)(a) of the Constitution
gives every citizen the right to freedom of speech and expre_ssion and this
G
freedom is yet another vehicle towards the same direction and goal.
[Para 7) [1093-A, BJ

Indian Express Newspapers (Bombay) Pvt. Ltd v. Union ofIndia, (1985)
1 sec 641, referred to. H
1088 SUPREME COURT REPORTS (2007] 5 S.C.R.

A 2. It is, however, clear that the freedom of speech and expression is not
unfettered and Section 95 of the Code of Criminal Procedure, 1973 exemplifies
this principle on the understanding that this freedom must be available to all
and no person has a right to impinge on the feelings of others on the premise
that his right to freedom of speech remains unrestricted and unfettered. It
cannot be ignored that India is a country with vast disparities in language,
B culture and religion and unwarranted and malicious criticism or interference
in the faith of others cannot be accepted. [Para 8] (1093-E, F]

State of Uttar Pradesh v. Lalai Singh Yadav, (1976] 4 SCC 213, followed.

S. Rangarajan v. P. Jagjivan Ram, (1989] 2 SCC 574, referred to.
c
3. The Government, thus, has the power to nullify a publication which
endangers public order, although the freedom of expression in this situation
is undoubtedly restricted even though such freedom "is an indicator of the
permanent address of human progress". It must also be noted that it would be
difficult to examine all publications on a common yardstick and what may be
D -a laughable allegation to a progressive people could appear as sheer heresy
to a conservative or sensitive one. [Para 11] (1095-C, DJ

4. Merely because some eminent personalities or group of persons had
taken it upon themselves to bring to the notice of the State Government as to
the inflammatory and baseless statements that had been made, it would not
E amount to an abdication of the State of its functions. The impugned
Notification shows that the State Government had applied its mind to the
contents of the novel and the allegations made therein and taken a balanced
and reasoned decision on the matter. [Para 12] (1095-E, F]

5. It will be seen that Section 95 and Section 96 of the Code when read
F together are clearly preventive in nature and are designed to preempt any
disturbance to public order. At the same time, Section 95 does not by itself
create a criminal offence and the reference to the various Sections of the
Penal Code, 1860 are merely descriptive of the kind of offences which need
to be prevented by a declaration under Section 95. In this view of the matter,
G the contention of the appellant that the onus of proof would lie on the State
Government is not acceptable as the intention has, to some extent, to be inferred
from the nature of the publication. It is true that a forfeiture of a newspaper
or book or a document is a serious encroachment on the right of a citizen,
but if forfeiture is called for in the public interest it must without a doubt
have preeminence over any individual interest
H [Para 15) [1097-G; 1098-A, B]
BARAGURRAMACHANDRAPPA '" STATEOFKARNATAKA[H.S. BEDl,J.] J089
State of Uttar Pradesh v. Latai Singh Yadav, (1976) 4 SCC 213 and Nand A
)- Kishore Singh v. State ofBihar, AIR (1986) Pat 98, referred to.

6. Section 95 of the Code is not violative of Article 19(1)(a) of the
Constitution, as the action taken thereunder is of a preventive nature and
that an extremely efficacious remedy under Section 96 of the Code is available
to an aggrieved party or a person. It is significant, and it is clear from the B
very large number of judgments, that most of the matters pertain to attacks
on minorities or religious and social groups or individuals who are perceived
as being prodigals or heretics and, therefore, unacceptable to the conservatives
amongst the mainstream. It cannot be overemphasi7.ed that India is a country
with huge diversities in language and religion and the weaker amongst them C
must be shown extra care and consideration. [Para 18) (1099-B, C, DJ

Bobby Art InternatiOnal v. Om Pal Singh Hoon, (1996) 4 SCC 1,
referred to.

7. Chapter 12 is not in sync with the rest of the novel and has been D
deliberately designed to be hurtful and to bring the family of the saint to shame.
The novel with its complimentary passages in favour of the saint is merely a
camouflage to spin and introduce a particularly sordid and puerile story in
Chapter 12. [Para 23) [1104-G; 1105-A)

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1228 of E
1998.

From the Final Judgment and Order dated 16.04.1998 of the High Court
of Karnataka at Banglore in Criminal Petition No. 2081 of 1997.

Raju Ramachandran, Lalit Mohini Bhat, Naveen R. Nath and Anitha F
Shenoy for the Appellants.

S.S. Javali, Anil K. Mishra, Vikrant Yadav, R. Hedge, Gurdutt Ankolekar,
Naresh Kaushik, B.S. Methaila, Arnita Kalkal, Anish Dhingra and Lalita Kaushik
for the Respondents.
G
The Judgment of the Court was delivered by

HARJIT SINGH BEDI, J. I. This appeal by special leave arises out of
the judgment of the Karnataka High Court whereby the petition made by the
tenth petitione:- under Section 96 of the Code of Criminal Procedure for setting
H
1090 SUPREME COURT REPORTS (2007] 5 S.C.R.

A aside of the Notification dated 27th June 1997, forfeiting all copies of the -.\,
novel "Dharmakaarana" under Section 95 of the Code, has been dismissed.

2. The matter arises out of the following facts :

Basaveshwara, a great saint of the 12th Century, also known as
B "Basavanna" was born in Bagewadi in Bijapur District, Karnataka State. His
elder sister Akkanagamma was a saintly woman. Her son Channabasaveshwara
too grew up to be a great social reformer and a preacher of Veerashaivism,
a religious sect, and of the Basava Philosophy. The family consisted of
individuals of progressive thought who sought to promote social reform in
C Hindu society and for that purpose preached that all were equal.

3. Petitioner No. I I Dr. P.V. Narayanna published a novel in 1995 entitled
"Dharmakaarana" portraying the story of B1saveshwara, Akkanagamma and
Channabasaveshwara narrated in first person, the narrator being Basaveshwara
himself. The book was selected by the Karnataka Sahitya Academy for its
D annual award as the best novel for the year 1995. It appears that some eminent
figures in the field of literature and otherwise, including Shri B.D. Jatti, the
former Vice-President oflndia wrote to the State Government that some of the
statements made therein were objectionable, inflammatory, hurtful and insulting
to the sentiments and feelings of the Veerashaivas and the followers of
Basaveshwara, and suggested that the novel should be forfeited. It also
E appears that the Akhila Bharat Veerashaiva Mahasabha filed a suit in the City
Civil Court at Bangalore seeking an injunction restraining the Government
from conferring the award on the Author and for an order banning the
publication and sale of the book on which such an order was in fact made.
Faced with this delicate situation, the State Government issued a Notification
F dated 27th March 1997 under Section 95 of the Code of Criminal Procedure
(hereinafter called the 'Code'), ordering the forfeiture of the book. A petition
was thereafter filed under Section 96 of the Code and while the matter was
yet pending (and observing that the notification had not been issued by the
competent authority) the State Government withdrew the said Notification
and issued a fresh one on 27th June 1997. A petition under Section 96 of the
G Code was again filed by the Author Dr. P.V. Narayana, on which the matter
was referred for decision to a Bench of 3-Judges under sub-Section (2) of
Section 96 thereof. The Judges examined the matter in extenso and by their
judgment & Order dated 16th April 1998 dismissed the petition. This judgment
has been impugned before us after special leave. The Court relying on several
H judgments of this Court and High Courts held that an order under Section 95
BARAGURRAMACHANDRAPPA 1•. STATEOFKARNATAKA [H.S. BEDl,J.] J091

., of the Code was justified if it appeared to the State Government that the A
published material contained objectionable matter and that such matter was
maliciously intended to promote feelings of enmity and hatred between different
classes of the citizens of India as envisaged under Sections 124-A, 153-A,
153-B, 292, 293 and 295-A of the Indian Penal Code, and that such a Notification
could not be said to be ultra-vires of Article 19(1 )(a) of the Constitution of
India as it was a reasonable restriction imposable under the Article. It further B
observed that the onus to prove that the publication did not fall within the
parameters of Section 95 of the Code rested on the person who challenged
~ the Notification by filing a petition under Section 96. The Court then went on
to examine the facts of the case in the background of the legal position and
observed that the story projected by the author in Chapter 12 that C
Channabasaveshwara was the illegitimate son of Akkanagamma as he had
been conceived out of wedlock was indeed hurtful . The Court further held
that the allegation that it was the public odium that had followed the pregnan:.:y
that had compelled Basaveshwara and Akkanagamma to leave their home at
Bagewadi and shift to Koondusama was again an unwarranted accusation
and without any basis. The Court finally found that the explanation tendered D
by the author for the change of residence was the subject matter of a raging
debate amongst historians and religious functionaries and he had merely
adopted this story for the Novel, was unacceptable and without any foundation.

4. It is these circumstances that the matter has come before us.
E
5. We have heard the learned counsel for the parties and gone through
the record carefully. At the very outset, Mr. Raju Ramachandran, the learned
senior counsel for the appellants has pointed out that the entire matter would
have to be examined in the backdrop of the philosophy and principles
underlying sub-clause (h) of Article 51-A of the Constitution of India which F
t envisaged the development of a scientific temperament, a feeling of humanism
and a spirit of inquiry and reform and the fundamental right to freedom of
speech and expression guaranteed under Article 19(1)(a) of the Constitution
and the proscription or ·forfeiture of a publication by the issuance of a
Notification under Section 95 of the Code must therefore strike a balance
between the two and as the Notification appeared to have been issued by the G
~ State Government not on its own assessment or volition but under pressure
from persons of high social and political standing, it was unsustainable. It has
also been pleaded that from the book read as a whole it was clear that
Basaveshwara, Chennabasaveshwara and Akkanagamma had been depicted
H
1092 SUPREME COURT REPORTS [2007] 5 S.C.R.

A as saintly persons and social reformists, who had visualized a new direction
for society with the thesis that all men were equal and had attempted to
remove the social and religious disparities not only by precept but by practice
as well. It has finally been pleaded that there was no malicious intention in
the publication of the book as it had the character of a novel with a historical
background in as much that the circumstances leading to the birth of
B Chennabasaveshwara and the departure of Basaveshwara and Akkanagamma
from Bagewadi was a matter of much debate and discussion amongst the
Veerashaivas themselves as also well known authors belonging to the
community and as such a fresh interpretation given to the controversy by the
author did not justify the forfeiture of the book.
c 6. The lea.med Advocate General for the State of Karnataka has, however,
pointed out that the freedom of speech am.: expression did not mean a licence
to an author to spew invective and vitriol and that the contents of the Book
which the author himself claimed to be a novel had to be scrutinized in the
light of the circumstances of those who were likely to read it. He has urged
D that the attack on Akkanagmma was designed to portray her as of dubious
character particularly in Chapter I2, and even assuming that the author had
a right to his opinions, it did not justify baseless allegations against persons
who were venerated and revered by millions in South India as the story that
Channabasaveshwara was the illegitimate child of his mother was clearly a
E matter of deep concern. The learned Advocate General has also highlighted
that the circumstances leading to the change of residence from Bagewadi to
Koondusama was indeed a matter of debate, yet it had never been suggested
till now that it was the ignominy of the pregnancy that had prompted the
change. It has also been pleaded that in the light of the clear terminology of
Section 96 of the Code the onus to show that the offensive publication did
F not violate Section 95 lay on the author himself more particularly as it appeared
from a reading of Chapter I2, that the contents therein were prima facie +
intended to hurt the sentiments of a section of the community.

7. The arguments raised by the Advocate General have been supported
by the lea.med counsel for the mtervener, who added that a reading of the
G Novel showed that the attack (though veiled) was in essence an attack on
Basaveshwara as he had objected to the ritualism promoted by the Brahmin
and had preached that all men were equal, the cobbler and the king being
cited as an example, which was in stark contrast to what had been preached
earlier. In reply Shri Ramachandran has reiterated that the book was only a
H novel and it had to be assessed as such and as the forfeiture of the book
BARAGURRAMACHANDRAPPA v. STA TE OF KARNATAKA [HS. BED!, J] J093

). · would enure for all time the satisfaction of the Government under Section 95 A
of the Code must be beyond doubt and without malice or outside influence.
It is true that the inculcation of a scientific temperament and a spirit of
enquiry is essential for human development and is a sine qua non for progress
and for social change and Article 51-A (h) of the Constitution clearly recognizes
this principle. Likewise Article 19 (l)(a) of the Constitution gives every citizen B
the right to freedom of speech and expression and this freedom is yet another
vehicle towards the same direction and goal. This Court in Indian Express
Newspapers (Bombay) Pvt. Ltd. & Ors. v. Union of India & Ors., [\ 985] \ SCC
~ 641 held:

"Freedom of expression, as learned writers have observed, has C
four broad social purposes to serve: (i) it helps and individual to
attain self fulfillment, (ii) it assists in the discovery of truth, (iii) it
strengthens the capacity of an individual in participating in decision-
making and (iv) it provides a mechanism by which it would be possible
to establish a reasonable balance between stability and social change.
All members of society should be able to form their own beliefs and D
communicate them freely to others. In sum, the fundamental principle
involved here is the people's right to know. Freedom of speech and
expression should, therefore receive a generous support from all those
who believe in the participation of people in the administration."

8. It is however clear that the freedom of speech and expression is not E
unfettered and Section 95 of the Code exemplifies this principle on the
understanding that this freedom must be available to all and no person has
a right to impinge on the feelings of others on the premise that his right to
freedom of speech remains unrestricted and unfettered. It cannot be ignored
that India is country with vast disparities in language, culture and religion and F
t unwarranted and malicious criticism or interference in the faith of others
cannot be accepted. This Court while discussing the scope of Section 99-A
of the old Code (corresponding to Section 95 of the Code) in the Constitutional
context in [1976] 4 SCC 213 State of Uttar Pradesh v. Lalai Singh Yadav
observed as under:
G
"After all fundamental rights are fundamental in a free republic,
except in times of national emergency, when rigorous restraints,
constitutionally sanctioned, are clamped down. We are dealing with
the Criminal Procedure Code and Penal Code and these laws opernte
at all times. We have therefore to interpret the law in such a manner
H
1094 SUPREME COURT REPORTS (2007] 5 S.C.R.

A that liberties have plenary play, subject of course to the security
needs of the nation, as set out in the Constitution and the laws." ~

9. It was also observed that it was the duty of the State, being a State
based on secular principles, not to take sides with one religion or the other
but to "create conditions where the sentiments and feelings of people of
B diverse or opposing beliefs and bigotries are not so molested by rigid writings
or offensive publications as to provoke or outrage groups into possible
violent action" and that a drastic restriction on the right of a citizen imposed
by Section 99-A required that a strict construction be put on its applicability.
It finally concluded that: ~

c "Construed in th is condescend constitutional conspectus, bears
out our interpretation. In the interests of public order and public
peace, public power comes into play not because the heterodox few
must be suppressed to placate the orthodox many but because
everyone's cranium must be saved from mayhem before his cerebrum
D can have chance to simmer. Hatred, outrage and like feelings of large
groups may have crypto-violent proneness and the State, in its well-
grounded judgment, may prefer to stop the circulation of the book to
preserve safety and peace in society".

xxx xxx xxx xxx
E 'The State, in India, is secular and does not take sides with one
religion or other prevalent in our pluralistic society. It has no direct
concern with the faiths of the people but is deeply obligated not
merely to preserve and protect society against breaches of the peace
and violations of public order but also to create conditions where the
F sentiments and feelings of people of diverse or opposing beliefs and
bigotries are not so molested by ribald writings or offence publications
as to provoke or outrage groups into possible violent action.
Essentially, good government necessitates peace and security and
whoever violates by bombs or books societal tranquility will become
target of legal interdict by the State."
G
I0. While further delineating the circumstances under which this
provision could be applied this Court in [1989] 2 SCC 574 S.Rangarajan v.
P.Jagjivan Ram & Ors., observed:

"The standard to be applied by the Board or Courts for judging the
H
BARAGURRAMACHANDRAPPAv.STATEOFKARNATAKA[H.S.BEDI,J.] 1095

film should be that of an ordinary man of common sense and prudence A
and not that of an out of the ordinary or hypersensitive man. We,
however, wish to add a word more. The Censors 13oard should exercise
considerable circumspection on movies affecting the morality or
decency ofour people and cultural heritage of the country. The moral
values in particular, should not be allowed to be sacrificed in the guise B
of social change or cultural assimilation. Our country has had the
distinction of giving hirth to a galaxy of great sages and thinkers. The
great thinkers and sages through their life and conduct provided
principles for people to follow the path of right conduct. There have
been continuous efforts at rediscovery and reiteration of those
principles." c
11. The Government thus has the power to nullify a publication which
endangers public order, although the freedom of expression in this situation
is undoubtedly restricted even though such freedom "is an indicator of the
permanent address of human progre;s". It must also be noted that it would
be difficult to examine all publications on a common yardstick and what may D
be a laughable allegation to a progressive people could appear as sheer
heresy to a conservative or sensitive one.

12. Mr. Ramachandran 's arguments that the action taken by the State
Government was not on its own volition and was therefore mala fide must also
be rejected. We are of the opinion that merely because some eminent E
personalities or group of persons had taken it upon themselves to bring to
the notice of the State Government as to the inflammatory and baseless
statements that had been made, it would not amount to an abdication of the
State of its functions. The impugned Notification shows that the State
Government had applied its mind to the contents of the novel and the F
t allegations made therein and taken a balanced and reasoned decision on the
matter.

13. It has been argued by Mr. Ramachandran that as Section 95 of the
Code dealt with what was in fact in the nature of a criminal offence, an opinion
had to be recorded by the State Government that the novel was malicious and G
intended to outrage the feelings of a group or class of citizens and in the
absence of either of these ingredients, no order under Section 95 of the Code
could be justified. Elaborating his submission he has pointed out that the
impugned Notification did not specifically state that the Novel had been
written with a deliberate and malicious intention to outrage the feelings of the H
1096 SUPREME COURT REPORTS [2007] 5 S.C.R.

A followers of Basaveshwara. It has, on the contrary, been submitted by the
learned Advocate General that Section 95 of the Code did not constitute a
criminal offence as it was merely descriptive and designed to ensure that
preventive action was taken before the offences referred to therein could
actually be committed. He has emphasized that the word "appear" in Section
95 of the Code had to be read in this context and after the State Government
B had taken the decision that the offending publication did "appear" to be
offensive, the onus shifted to the opposite party to show to the contrary as
was discernible from a bare reading of Section 96 of the Code. The learned
Advocate General has also placed reliance on the Full Bench judgment of
Patna High Court reported in AIR (1986) Patna 98 Nand Kishore Singh v.
C State of Bihar in support of this argument.

14. It would be evident from what has been observed above, the matter
would have to be examined in the light of the provisions of Section 95 and
96 of the Code. These Sections are reproduced hereunder:

D Section 95 Power to declare certain publications forfeited and to issue
search warrants for the same. (I) Where

(a) any newspaper, or book, or
(b) any document,

E wherever printed appears to the State Government to contain any matter the
publication of which is punishable under Section 124A or Section 153A or
Section l 53B or Section 292 or Section 293 or Section 295-A of the Indian
Penal Code (45 of 1860), the State Government may, by notification, stating
the grounds of its opinion, declare every copy of the issue of the newspaper
F containing such matter, and every copy of such book or other document to
be forfeited to Government, and thereupon any police officer may seize the
same wherever found in India and any Magistrate may by warrant authorize
any police officer not below the rank of sub-inspector to enter upon and
search for the same in any premises where any copy of such issue or any
such book or other document may be or may be reasonably suspected to be.
G (2) In this section and in section 96, -
(a) "newspaper" and "book" have the same meaning as in the
Press and Registration of Books Act, 1867 (25 of 1867);
(b) "document" includes any painting, drawing or photograph, or
H
BARAGURRAMACHANDRAPPAv.STATEOFKARNATAKA(HS.BEDI,J.] 1097
other visible representation. A
(3) No order passed or action taken under this section shall be called
in question in any Court otherwise than in accordance with the
provisions of section 96.

Sec.96. Application to High Court to set aside declaration of forfeiture.
B
(I) Any person having any interest in any newspaper, book or other
document, in respect of which a declaration of forfeiture has been
~ made under Section 95, may, within two months from the date of
publication in the Official Gazette of such declaration, apply to the
High Court to set aside such declaration on the ground that the
issue of the newspaper, or the Book or other document, in respect
c
of which the declaration was made, did not contain any such
matter as is referred to in sub-Section(!) of Section 95.
(2) Every such application shall, where the High Court consists of
three or more Judges, be heard and determined by a Special Bench
D
of the High Court composed of three Judges and where the High
Court consists of less than three Judges, such Special Bench shall
be composed of all the Judges of that High Court.
(3) On the hearing of any such application with reference to any
newspaper, any copy of such newspaper may be given in evidence
E
in aid of the proof of the nature or tendency of the words, signs
or visible representations contained in such newspaper, in respect
of which the declaration of forfeiture was made.
(4) The High Court shall, if it is not satisfied that the issue of the
newspaper, or the book or other document, in respect of which the F
t application has been made, contained any such matter as is referred
to in sub-section(!) of section 95, set aside the declaration of
forfeiture.
(5) Where there is a difference of opinion among the Judges forming
the Special Bench, the decision shall be in accordance with the G
opinion of the majority of those Judges.

15. It will be seen that Section 95 and Section 96 of the Code when read
together are clearly preventive in nature and are designed to pre-empt any
disturbance to public order. At the same time, we find tha~ Section 95 does
not by itself create a criminal offence and the reference to the various sections H
1098 SUPREME COURT REPORTS [2007] 5 S.C.R.

A of the Penal Code are merely descriptive of the kind of offences which need
to be prevented by a declaration under Section 95. In this view of the matter,
Mr. Ramachandran's assertion that the onus of proof would lie on the State
Government is not acceptable as the intention has, to some extent, to be
.•
inferred from the nature of the publication. It is true that a forfeiture of a
newspaper or book or a document is a serious encroachment on the right of
B a citizen, but if forfeiture is called for in the public interest it must without
a doubt have pre-eminence over any individual interest. We also endorse the
argument of the learned Advocate General that the State Government must
take a pragmatic approach in the matter as explained by this Court in Lalai
Singh Yadav 's case (supra):
c "The rule of human advance is free thought and expression but the
survival of society enjoins reasonable curbs where public interest calls for it.
The balance is struck by governmental wisdom overseen by judicial review.
We speak not of emergency situations nor of constitutionally sanctified
special prescriptions but of ordinary times and of ordinary laws." While
D dealing with somewhat similar issues, the Patna High Court in Nand Kishore 's
case (supra) observed:

"It would be somewhat fallacious to mathematically equate the
proceedings under Ss.95 and 96 of the Code with a trial under S.295-
A of the Penal Code with the accused in the dock. The stringent
E requirements of the mens rea to be proved and established are for the
purpose of a conviction under this offence which carries a sentence
up to three years and fine and further went on to hold but indeed to
require that a deliberate and malicious intention must first be proved
at the threshold stage before the Government by evidence as a
F condition for acting under S.95( I), as if an accused person was in the
dock, would, in effect, virtually frustrate the preventive purpose of the
+
said section."

16. The Court then went on to elucidate that Section 95 did not require
that it should be "proved" to the satisfaction of the State Government that
G all requirements of the punishing sections including mens rea were fully
established and all that S.95(1) therefore required was that the ingredients of
the offence(s) should "appear" to the Government to be present. The Court
further opined that the general rule that a man was presumed to intend the
natural consequences of his act would be attracted, and in conclusion
observed:
H
BARAGUR RAMACHANDRAPPA v. STATE OF KARNA TAKA [H.S. BEDI.J.] 1099
"The onus to dislodge and rebut the prima facie opinion of the A
Government that the offending publication comes within the ambit of the
relevant offence including its requirements of intent is on the applicant and
such intention has to be gathered from the language, contents and import
thereof."

17. It must also be observed that Section 96 itself takes care of any B
misuse of the authority conferred under Section 95 and the right of an
individual vis-a-vis the larger public interest can be put under scrutiny as the
final decision is left to a High Court Bench of (if possible) three Judges.

18. To sum up, Section 95 of the Code is not violative of Art.19(1)(a) C
of the Constitution, as the action taken thereunder is of a preventive nature
and that a extremely efficacious remedy under Section 96 of the Code is
available to an aggrieved party or person. It is significant, and it is clear from
the very large number of judgments that have been cited before us, that most
of the matters pertain to attacks on minorities or religious and social groups
or individuals who are perceived as being prodigals or heretics and therefore D
unacceptable to the conservatives amongst the mainstream. It cannot ever be
over emphasized that India is a country with huge diversities in language and
religion and the weaker amongst them must be shown extra care and
consideration.

19. It is in this background the facts of the case now need to be E
examined. It has been emphasized by Mr. Ramachandran that as per the
judgment of this Court in Bobby Art International and Ors. v. Om Pal Singh
Hoon and Ors., (1996] 4 SCC I the book as a whole had to be looked at and
a stray sentence here or there picked up out of context could not be taken
into account and that assessed on this principle the impugned judgment and F
order was unjustified as almost the entire novel was in praise of Basaveshwara
+
and his family. Elaborating his argument, Mr. Ramachandran has pointed out
that even the story portrayed in Chapter 12 had not been revealed for the first
time, as the circumstances leading to the birth of Channabasaveshwara and
the reason for the change in residence from Bagewadi to Koondusama had
been a matter of study, debate and speculation in the Veerashaiva community G
- for generations, and had found its echo not only in numerous books and
articles but in lore and legend as well, and has in this connection, referred
us to Annexure P7 and to four documents collectively appended as Annexure
PS.

20. The learned Advocate General has, on the contrary, submitted that H
1100 SUPREME COURT REPORTS (2007] 5 S.C.R.

A the author himself had identified "Dhannakaarana" as a Novel and it had
therefore to be presumed that the story had no historical basis, and was a
figment of the author's imagination and Chapter 12 when viewed in this
background was clearly an affront to the sentiments of the Veerashaivas.

21. As already mentioned above, the Novel is in the first person, the
B narrator being Basaveshwara himself. At the initial stage he talks very lovingly
of his sister and the care that she had taken of him (as a mother would a child)
recalling that his mother had died when he was very young. He further talks
about his younger days and his absorption and study of the Hindu religion >-
and his learning of Sanskrit Shalokas from a Brahmin. He then refers to a
c change in his outlook and his dislike for blind ritualism, and a re-examination
of the ills afflicting Hindu Society, the complete dominance of the Brahm in
over every facet of life, and of the inequities in the social order. He then
narrates a story about a woman, Jabala by name, who was said to be a
"debased one " and goes on to state that when Jabala was questioned by
her son as to the identity of his father, she had replied that she was unable
D to identify him as she had been with many men and when this story was
narrated in all innocence by the boy to his teacher the teacher was greatly
impressed by his honesty and courage to face the truth and accepted the boy
as his disciple. With this background, the story of Nagakka's pregnancy out
of wedlock is now narrated and is, for reasons of authencity and precision
reproduced hereunder in extenso from the translation provided by the learned
E
counsel for the appellant:

"I was saying that Nagakka started looking after house-hold chores.
The responsibility of kitchen was entirely hers-excepting the three
days of her monthly period. I would have my food in Vishweshvara
F mama's home; and some woman-folk of that house would bring food
for akka, those three days. The life went on like this. But once, for a 1
long time that three-day period never came to akka what could I know
about all that? When they asked me about it, I expressed my ignorance.
That day wife of Vishweshvara mama herself came to our house. She
asked to keep out for some time, and I did so. Where else could I go;
G I went to their house to play with boys of my age-group.

I was about fifteen years of age then. I felt as if I knew about
..
certain things, and still had no clear idea. I had only a very vague idea
of akka's monthly three-day period, without certainly. After some
moments, atte came to her house, where I was playing, with panting
H
BARAGUR RAMACHANDRAPPA v. STATE OF KARNA TAKA [H.S. BEDI,J.] 1101
breath; and explained something to mama, all in a hushing manner, and A
concluded saying, 'things seem to have gone wrong.' Though I could
not get any definite idea of their talk, it was clear that something fussy
had taken place. I came back home running; even though it was
already evening, there seemed no light inside the house.

When I entered the house, I heard sobs emitting from within thick B
darkness; I rushed towards the direction of that sound. I found akka
sitting in a comer. 'What has happened, akka?' I asked, where upon

-
the weeping became intense. I lit the lamp with anxiety; I saw akka
\
sitting with her head on bent knees. I shook her body rigorously,
when I felt her body burning like live-ember; I was not sure if she had
been having fever since morning or she had caught it lately. Her face
c
had beads of sweat all over; her face was like the corpse of full-moon
floating across the day time sky, luster-less. I put many questions,
compelled her to answer, I also wept, but not a word from her ; She
was sitting as if petrified stabbing her eyes at nowhere. The words
atte had uttered before mama-three-day-period, going wrong etcetera- D
were causing some amorphous ideas in me. But it was impossible for
me to get angry with Nagakka, even if dissatisfied only mock-anger,
never real. That whatever she had done, she could not have erred-
was my firm belief. After trying long to make her speak in vain, I kept
quiet. We were two in the house. It was pitch dark outside; and what
else could be there inside as well? More than the gravity of her E
wrong-deed, I was worried about what these people could do to her.
No food; no sleep. The long night was like the frightful mouth of a
demon gaping at us.

The night passed by somehow. The next morning Vishweshvara
mava came. And tried to elicit information from akka by putting several
F
questions, but she was silent as if she had been mute. When he was
unable to get any information, he turned to me in frustration and only
said, what next?' I felt like weeping but was not able to speak. I only
waved my head to signal that I did not know things either. Finally he
declared: 'In what way can I help you? I shall arrange a meeting of G
the mahajanas at ten galiges after sun-rise. We would all be bound by
• the decision of the assembly.' He went away, instructing, 'You should
come with your sister when sent for.' Though he had it in a low tone,
it seemed to be tough.

We spent the time as we had the night. I was in utter confusion, H
1102 SUPREME COURT REPORTS (2007) 5 S.C.R.

A not knowing what to do. The neighbours started coming to our house,
as if they came to know of the developments. The young ones tried
to pep into the house with curiosity, while some elderly persons went
directly into the house and heaped on her the oft-asked question,
'what happened?' Unhhum: Akka never parted her lips ! Whether she
could not speak, or she had stubbornly decided not to speak, she was
B dumb to all queries. Silence was the only answer for all kinds of
questions: slow and sympathetic ones, scolding, rough ones and

c
sarcastic remarks. A few were fed up with her testing silence would
cursingly say, 'to hell with you' and go. Some remarks, 'She would
only reap what she has sown' I was helpless to the core, was only
smouldering with anger at the remarks by the visitors. If my position
was that, what should have been her state!
>
-
Time passed somehow. We were sent for by Vishweshvara
Somayaji, as told earlier. I made akka stand with difficulty, and got her
walk with my support. The assembly was full with members; we were
D asked to stand in a corner. After all the important persons came, the
volley of q11estions started from all sides. 'What is the matter?' was
the summary of all questions. Nagakka wa~ a personification of silence.
She must have lost all her faculties. 'Give her a couple of thrashes,
she would part her lips,' suggested someone. 'Tche tche, could we lift
our hands on a girl?' Countered another. 'What else should be done
E with such bad characters?' 'Why should we beat? Only the parents
are empowered to do that. We should only go according to the
shastras.' A bundle of suggestions, strewn astray.

Could all the hearing have happened so swiftly? It, I fact, took
quite a long time. Only I do not have the details in my memory. Why
F should I remember all that now and bring irritation to myself? I shall
come to the concluding part of the deliberations. The mahajanas
consulted among themselves extensively, at the end of which, one of
them said to me, 'Look, Basavaraja, it seems your sister has conceived
before marriage, or we do not know definitely about it. But she has
G not kept regular period. She never utters a word in answer to our
questions. So, we are compelled to conclude that she has erred.' This ~~

was an introduction before spelling out their verdict. I was not able
to say anything, and I did not have anything to say, either. The same
gentleman continued, 'Well, we are left with two options regarding
this: One, she should subject herself to "ghatashraddha", and you
H
BARAGUR RAMACHANDRAPPA v. STATEOFKARNATAKA (H.S. BED!,J.] 1103

,: must disown her completely, let her get lost, and you can continue to A
stay in the Agrahara. What can you do, you are innocent. But, she
has to take punishment.' My heart started throbbing swiftly. Should
Nagakka be left to go away? Tears rolled down my cheeks in spate.
I cast a tearful glance at akka. She was like a standing corpse, petrified
without an iota of reaction. He went on to say, 'The second option
is, in case you are ready to part ways with your akka, both of you B
would face excommunication from us. If that is what you choose, you
should quit for ever the Agrahara by this evening.' 'Right' the
{ assembly concurred with the verdict. Their life in the Agrahara would
go on as usual, even if there would be two souls less there!

Nagakka was the same unmoving epitome of silence as she was
c
since last night. She did not even look at me. She did not weep, not
a drop of tear in her eyes! 'I cannot live without akka,' I said with my
choking-voice. Everything had been settled; we had severed our
connection with our native place for ever.
D
I came back to "our" house, again giving support to akka to keep
her steps. I quickly made a bundle of a few of our clothes and got
ready to leave, muttering, 'Let us be gone from here. No more of living
with these demons.' I came out of the house forcefully pushing akka
forward. Though we were walking with our heads bet, we were aware
that innumerable pairs of eyes were fixed on us. After slowly taking E
a turn from our lane, we reached the outskirts of the village. Who can
do us what, with their anger? What can the village do to us with its
wrath? When we came to the parting road, I turned towards the
Agrahara once and spat "thoo" with gusto and moved ahead without
looking back."
F
22. A bare perusal of the above reveals that as a matter of fact Jabala
has been equated with Nagakka in terms of being of low character and
whereas the former had become pregnant, without a marriage the latter had
been visited by so many men that she did not know who had fathered her
son. As this story had been told by Basaveshwara himself in first person we
G
note the insidious and inflammatory suggestion, that he like Jabala's son, did
-
~

• not shrink from facing the truth about his closest relative his sister with whom
he shared a mother son relationship. It is true that if the allegations made in
Chapter 12 were based in folk lore, tradition or history some thing in extenuation
could perhaps be said for the author. In this connection, Mr. Ramachandran
has referred us to Annexures P7 and PS with the petition. Annexure P7 is the H
1104 SUPREME COURT REPORTS (2007] 5 S.C.R.

A translation of a blurb printed on the back cover of the Novel and while
referring to the credentials of the author it reads that the 12th Century :>(

constituted an enlightened period in the history of the Kannada country and
that Basaveshwara was the beacon of that period, and that the Novel had
been written after delving deep into his personality and the traditions of the
Veerashaiva Community. Annexure P7, thus, does not in any way advance the
B petitioner's case and is in fact neutral. Annexure P8 (Colly) is, however,
material and we have therefore perused all the documents very carefully with
- the counsel for the parties. The first document referred to by Mr. Ramachandran
is a translation of an Article by Dr. M.M. Kalburgi, Vice-Chancellor of the
Kannada University at Hampi, in the magazine 'Marga'. It reads that > ...
c Chennabasavanna was regarded as the son of Nagalambike, though the
identity of the father was not known and several alternatives have thereafter
been spelt out. We find however that there is no suggestion whatsoever that
Akkanagamma had conceived out of wedlock. Reference has also been made
to an Article written by Dr. B.V. Mallapur, Reader in Kannada, Kamataka
University, Dharwad and published by the Department of Kannada and Culture,
D Bangalore, which refers to the speculation as to the circumstances leading to
the birth of Channabasavanna and several theories have been mooted but
again without any suggestion of illegitimacy. Our attention has then been
drawn to an article by Dr. R.C. Hiremath, an expert in the history of the
Veerashaivas, and he too refers to the speculation as to the birth of
E Channabasavanna, and to the belief amongst common folk of the region that
if those who were childless were to sing a particular lullaby they would be
endowed with children, and reference is made to the fact that Akkanagamma
had inadvertently swallowed some 'prasada' and had become pregnant thereby,
but there is again no suggestion as to her conception out of wedlock. The
author has also cited the other instances .like those of Shankaracharya, Seeta
F and Jesus who are believed to have taken birth in unusual circumstances.

23. We notice from Annexure PS that there is no indication in any of
the articles that Akkanagamma was of low character to be equated with Jabala
or the slightest hint that Akkanagamma had conceived Channabasaveshwara
outside her marriage and had left Bagewadi in shame for that reason. We
G therefore endorse the suggestion made by the learned Advocate General and
the counsel for the intervener that Chapter 12 is not in sync with the rest of
the novel and has been deliberately designed to be hurtful and to bring the
.. ~
-
family to shame. We also have no hesitation in observing that the novel with
its com'plimentary passages in favour of Basaveshwara
,, .. is merely a camouflage
H
BARAGUR RAMACHANDRAPPA v. STA TE OF KARNA I AKA [H.S. BEDI,J.] J 105

to spin and introduce a particularly sordid and puerile story in Chapter 12. A

24. As the forfeiture of the novel would have the result of shutting out
its publication and distribution for all time, we had requested Mr.
Ramachandran to consult his client to find out if he could be persuaded to
remove the portions which had been found to be offensive by the State
Government. Mr. Ramachandran had however come back and informed us that B
the author was willing to remove only three or four references from the novel,
which we have found on examination, would be only cosmetic changes and
would not satisfy the need of the hour. We, accordingly, dismiss the appeal.

v.s.s. Appeal dismissed. C