SAHAANA CHHABRIA

20161201
BALLB SECTION B
Criminal Code of Procedure

SECTION 95: WRITERS WRITE FOR GOVERNMENTS TO BAN

Under section 95 of the Code of Criminal Procedure, the State Government is granted the
power to pass an order banning or forfeiting any book, newspaper or document, provided the
aforesaid mentioned publications violate certain provisions of the Indian Penal Code
(Sections 124-A. 153-A, 153-B, 292, 293 AND 295-A)1. The provision also states for a
notification to be released by the State Government, setting out the grounds, base on which,
the government has reached its decision. In the notification, the State Government is required
to state the facts, reasons and circumstances upon which its opinion has been formed2.
Section 96 of the code should be read along with section 95. It enables the aggrieve party to
challenge the order passed under section 95, in a High Court having the appropriate territorial
jurisdiction of the State which passes the order. There have been a plurality of cases requiring
the intervention of the High Courts, to examine the decision of the State Governments. The
following research paper seeks to discuss the ways in which the courts have dealt with the
conflict between the State Governments and aggrieved parties and to further examine the
grounds upon which various courts have upheld state bans.

The first case which will be deliberated upon is the book ban of scholar Maate Mahadevi. In
this case, the Supreme Court had to resolve a conflict between the right to express one’s
religious views, as per Article 25 of the Indian Constitution and the duty of the state to restrict
such an expression, provided the circumstances allow for its intervention. The government
banned her book titled “Basava Vachna Deepthi” in 1998 and the Karnataka High Court,
upheld the ban in 2003. Following which, an appeal was filed in the Supreme Court. The
controversy that led to the ban involved the act of the writer changing the pen name of 12th
century social reformer saint Basavanna to “Linga Deva” from “Kundalasangama Deva”. The
High Court upheld the ban on the ground of preventing outrage and violate demonstrations
from the community of Lord Basavanna’s followers. The Supreme Court found no reason to
interfere with the judgement of the High Court3.

There are various flaws in the above judgement. To begin with, there has been a clear
violation of Article 19 (Freedom of speech) as the court has relied heavily upon its power to
restrict fundamental rights to uphold the ban in lieu of analyzing problematic aspects within
the text itself. The court has targeted the right of the individual to express herself by stating
that she had “no right” to substitute the name in dispute. Furthermore, it seems to be the case
that the court has laid heavy emphasis on the apprehension of a violent reaction from the
community of followers, in reaching its decision. It is my opinion that the courts have not
analyzed the merits of the text in reaching its decision but have used its power to restrict
fundamental rights in an arbitrary manner.
The next case that has also prioritized community sentiments over individual rights is the ban
of the book “The Adivasi will not dance” by Hansda Sowvendra Shekhar. The Jharkhand
1 R. V Kelkar and K. N Chandrasekharan Pillai, R.V. Kelkar's Lectures On Criminal Procedure(Eastern Book
Co 2014).
2Varsha Publications (P) Ltd v State of Maharashtra, 1983 Cri LJ 1446,1449 (Bom)
3 Livelaw network, 'SC Upholds Ban On Mate Mahadevi’S Book, Even While It Agreed She Has A Right To
Interpret Her Religion | Live Law' (Live Law, 2018)
Government has banned the book on the grounds that it may cause offence to the dignity of
women of the Santhal Community. The story in reference focuses on a young Santhal girl
who sleeps with a policeman in exchange for some food and a sum of Rs 50. A surge of
protests followed the release of the book and the government overtime decided on its ban
under section 295 (“Injuring or defiling place of worship with intent to insult the
religion of any class”) of the IPC4

It is unfortunate that the provision of section 95, allows for the governments to ban
publications, without any hassle, as seen in the above two cases. It is my view that such
indiscriminate banning not only curtails the freedom of speech and express but also obstructs
the flow discourse of thought within the society. It is through literature that various
drawbacks in society are brought to notice. It is important to note the underlying message that
books such as “The Adivasi will not dance” are trying to convey. For instance, the previously
mentioned short story off the young girl is a depiction of how those in power (the policeman)
abuse their position and authority. It also perhaps denotes the irony of a modern society that
yet only views its women as objects or as commodities. It further highlights the sad reality of
the those in poverty, being taken advantage of.

Yet another instance, wherein the court has erroneously upheld the ban of a book is the case
of the book “Godman to Tycoon: The untold story of Baba Ramdev”. The book was
published in 2017. Baba Ramdev filed a plea for the book to be banned on the ground that it
contained defamatory statements. It is important to note that the Delhi High Court retrained
the selling and publication of the book, without hearing the arguments of the writers or
publishers (Juggernaut books). The procedure followed by the court involved analyzing the
portions found be defamatory by Baba Ramdev and based on those portions, an injunction
was passed. The Supreme Court, on appeal by the publishers, has refused to lift the ban
placed upon the book5. It is also important to note that defamation as a ground to ban books is
not within the ambit of section 95.

The above example highlights various flaws within the actions of the judiciary. Firstly, the
principle of “audi alteram partem” has not been followed by the courts. It is the Latin Maxim
translating into “listen to the other side”. It is in the interest of natural justice that both parties
are to be heard. Furthermore, the above case reiterates the disinterested and inactive attitude
of courts when it comes to petitions involving books being banned. The court has not dwelled
deep into the merits of the case but has only analyzed “specific portions”. A similar instance
is the case of the book “Basava Vachna Deepthi” wherein the court did not analyze the merits
of the text, as mentioned earlier.

From the above case studies, it can be inferred that courts choose to place the interests of the
community on a higher pedestal, in comparison to the interests of individual interests. The
aim of section 95, as per the above case studies, is perhaps to safeguard the religious
sentiments of communities, with a motive to avoid violent demonstrations.
A trend may be observed within the courts, of using the ground of “public tranquility” to ban
various publications. So far only cases, wherein courts have upheld bans, have been
mentioned. The following paragraph will elaborate upon cases, which involve courts, lifting
such bans.
4 Radhika Santhanam, 'Review: Hansda Shekhar’S The Adivasi Will Not Dance Is A No-Holds-Barred
Account Of Life On The Margins' (The Hindu, 2018)
5 Gautam Bhatia, 'The Architecture Of Censorship' (The Hindu, 2018)
The first example refers to the book “Meesha”, a novel authored by the Malayalam writer S
Hareesh. The contention of the group of protesters was that the script included certain aspects
that were considered to be as insult to temple going women. The Supreme Court and the
government did not agree to ban the book, amidst all the ongoing protests. The Supreme
Court, in its judgement, cited the importance of appropriate use of the power to restrict
fundamental rights. The court stated that although the freedom of a writer is not absolute,
before a restriction is imposed, it is one of the duties of the court to investigate as to whether
there exists any aspect of the publication that is within the ambit of Article 19 (2) of the
Indian Constitution. The Court went on to mention that it is the duty of the reader to
understand the circumstances and situation and to not assume that everything written is
deliberately done so with a malicious intention to corrupt the minds of the youth6. It is
interesting to note that this judgement, instead of critiquing the writer or publisher, has placed
certain duties upon the reader. The next example is the controversy surrounding the book
“Shivaji-The Hindu King in Muslim India”. The author of the book is James Laine. The
Supreme Court did not accept the plea of the Maharashtra government to ban it. According
to the government, the book supported social enmity between the Marathas and Brahmins.
The High Court was of the view that the notification released by the government was not
valid as the Supreme Court has squashed the proceedings against the author over contentions
that the book promoted social enmity.

Furthermore, the High and the Supreme Court agreed upon the fact that the appropriate
procedure was not followed while invoking the ban on the book. From this case, it may be
observed that the State Government and the judiciary is not always in agreement, with respect
to the decision of banning of books.

CONCLUSION

I would like to conclude with the importance of the State Government, in using their powers
to ban with utmost discretion. The Supreme Court has acknowledged the importance of
fundamental rights and has stated the banning of such publications under section 95, gas a
direct impact on the freedom of speech and expression. The Supreme Court, in view of the
same has stated that section 95 is to be interpreted in a narrow manner and the power to ban
any publication must be in accordance with procedure7. The notification is required to state
the facts forming the opinion of the State Government, or else, it will be declared as invalid8.
To prevent arbitrary banning of books the Supreme Court has established the ‘reasonable
reader’ test. Before banning a book, the government is required to investigate as to whether
the contents of the publication would offend not only “hypersensitive” and “paranoid”
readers but “reasonable” and “strong- minded” individuals as well9.

Scholar Gautam Bhatia in his book titled offend, shock or disturb further emphasizes upon
the significance of fundamental rights. He argues that as per the case of Hanam Das v State of
Uttar Pradesh 10, there exists a mandatory requirement of a thorough investigation to
6 Radhakrishnan Varenickal vs Union of India, No. 904 04 2018
7 India News, 'Supreme Court Lifts Ban On James Laine's Book On Shivaji - Times Of India'
8Anand Chintamani Dighe v State of Maharashtra, 2002 Cri LJ 8 (Bom)
9 Samanwaya Rattray, 'Reasonable Reader' Test For Book Bans Judge Contents First, Says SC'
(Telegraphindia.com, 2018).
10 1961 AIR 1662
determine as to whether the offending publication does violate any of the mentioned sections
of the Indian Penal Code, as mentioned under section 95 of the Code of Criminal Procedure.
This full-fledged investigation is required as fundamental rights are at stake. Thus, it is of
utmost importance for the State Governments and judiciary to aim at finding a balance
between the fundamental right of freedom of speech and expression and the power to ban
publications as under Section 95 of the Code of Criminal Procedure.