Gulabchandra Kammodlal JaIn Vs. the State Government of Madhya Pradesh and anr. - Court Judgment

Dixit, C.J.

1. This is an application under Section 12(5) of the Madhya Pradesh Public Security Act, 1959 (hereinafter referred to as the Act) to set aside an order passed by the Government on 19th September 1962 under Section 12(1) of the Act prohibiting absolutely the bringing into or sale, distribution, circulation, printing or publication within the State of Madhya Pradesh of all editions of a book bearing the title 'Madhyamik Samajik Adhyayan' containing the lesson titled 'Bharat Men Islam Ka Agman' and any newspaper, periodical, book, pamphlet or document containing the said lesson or its substance, translation or adaptation in any language. The application is also made to rest on Articles 226 and 227 of the Constitution for challenging the constitutionality of the Act and for making the prayer for the issue of a proper direction or order to quash the aforesaid order of the Government and for the issue of a writ of mandamus to the Board of Secondary Education, Madhya Pradesh to withdraw Memo No. Acd/1/575 dated the 15th October 1962 issued by the Board.

2. The ground on which the order was passed by the Government is contained in the preamble to the order which runs thus :

'Whereas the State Government is satisfied that the bringing into or sale, distribution, circulation, printing or publication within, the State of Madhya Pradesh, of the lesson titled Bharat Men Islam Ka Agaman ('Bharat Men Islam Ka Agaman') in all editions of the book titled Madhyamik Samajik Adhayan ('Madhyamik Samajik Adhyan') by Shri Gulabchandra Jain (hereinafter referred to as the said book) is or will be prejudicial to the maintenance of public order and offends against decency and morality;'

3. The petitioner Gulabchandra Jain is the author and publisher of the book in question. It was first published in July 1959 and ran into five editions, the last one being published according to the petitioner in July 1962, but in November 1962 according to the opponent State. The grievance of the petitioner is that the impugned order was passed by the State Government without any notice to him or without giving him any opportunity of showing that the lesson 'Bharat Men Islam Ka Agman' in the book was in no way prejudicial to the maintenance of public order and did not in any way offend against decency or morality and that in a number of books written and published by authors of repute in India and in other countries the same historical facts narrated in the offending lesson had been stated; and that the order passed by the Government was unreasonable and mala fide and that the Government did not arrive at the satisfaction it was required to under Section 12(1) of the Act before making the order. He contends that the Act is void for various reasons and violates the fundamental right guaranteed by Article 19 of the Constitution. The further complaint of the petitioner is that though he represented to the Government that there was no basis for passing the impugned order and that, if there was any, he should, be allowed to omit the objectionable part in the lesson and sell the book, and sent several reminders to the Government thereafter, no reliefwas granted to him and that on 12th November 1952 he was informed by the Secretary, Board of Education, tnat the matter was under examination; and tnat the Board was not justified in issuing a memo on 15th October 1962 to the principals of ah Higher Secondary and Multipurpose Higher Secondary Schools informing them that his book had been wholly banned and that it should not be used in the schools.

4. In the return filed on behalf of the state it is denied that the Act is unconstitutional and that the impugned order was mala fide. It has been averred therein that the prohibition imposed by the order of the Government dated 19th September 1962 applied only to tnose editions of the book which contain the lesson 'Bharat Men Islam Ka Agaman' and that it does not operate against any edition which does not contain the said lesson ana that the order was made by the Government after satisfying itself that the sale, distribution and circulation of the editions of the book containing the lesson would be prejudicial to the maintenance of public order and would otteno against decency and morality.

In order to show that the sale, distribution and circulation of the editions of the book containing the lesson was prejudicial to the maintenance of public order ana offended against decency and morality, the following statements have been made on behalf of the State in paragraph 15 of the return. They are :

'..... the respondent submits that there aresome passages in the lesson 36, styled 'Bharat Men Islam Ka Agaman', which are offensive to the religious susceptibilities of the Muslims. In addition to this book objection was taken to three other books namely 'Svarna Pushpa', 'Bharat Itahas Aur Sanskriti' and 'Great Personality' which contained matter offensive to Hindus and Jains. There was a great volume of protest against these books and agitation was started for getting the books witnarawn. The agitation grew in volume and momentum. So much so that the Chatra Sangh^abalpur took out a procession which went to the Circuit House No. 1 where the Chief Minister was camping and a demand was made that the books should be banned. An effigy of the Education Minister was also burnt in front of the Circuit House. The students dispersed after the Chief Minister assured them that inquiry would be made. The situation on the 7th September was explosive and the 'Pradeep' a Hindi newspaper praised the DIG, the Collector and the Superintendent or Police for their efficient handling of the situation. Similarly there was agitation in Bhopal by all the political parties. On the 15th September there was a public meeting in Bhopal in which resolution was passed for withdrawing these books from the approved text books and are (sic) banning the same. There was great apprehension of a breach of the peace. The State Govt. thereupon decided to take action under Section 12 of the Act. So far as tnis book is concerned only one lesson i.e. lesson No. 36 was banned. This lesson contained passages which offended against morality, and decency and created discontent among the people. Of the passage which was most offensive to the Muslims is this

cpiu esa gh muds ekrk firk ej x;s vkSj mudsHkj.k&iks;'k.k dk Hkkjr muds firkeg ij vk iM+kA ijUrq ckyd eksgEEn dh 13o'kZ dh voLFkk esa muds firkeg Hkh mUgsa vdsyk NksM dj bl lalkj ls py clsAbl cpiu esa eksgEen dks cM+h dfBukba;ka dk lkeuk djuk iM+kA FkksMs

le; ds ckn mudk HkkX; iVyk] os ,d /kuoku L=h dslaidZ esa vk;s] ftlls mudh vkfFkZd dfBukb;ka gy gqbZA

This passage also offends against decency and moralities inasmuch as it insinuates that the founder of Islam had illicit relations with a rich woman. The respondent is. annexing a list showing the extent of agitation against the books. The daily 'Nadeem' a Urdu paper of Bhopal published two articles on this book. The District Congress committee Bhopal also wrote to the Chief Minister complaining against the books. Regarding samajik Adhyayan it said:

'Similarly another book named 'Samajik Adhyayan' has been leading to wide spread resentment and wrath among, the Muslim Community.'

5. At the outset, it must be stated that the petitioner is not right in saying that the State Government has prohibited absolutely the bringing into or sale, distribution, circulation, printing or publication within the State of an editions of his book. The prohibition under the terms of the order is only with regard to those editions of the book which contain the lesson 'Bharat Men Islam Ka Agaman' and with regard to other publications containing the said lesson, or its substance, translation or adaptation in any language.

6. Before dealing with the question whether the lesson has the objectionable features on the basis of which the impugned order was made, it is necessary to refer to Section 12 of the Act. The material portion of that section is as follows:

'12(1) if the State Government is satisfied that the bringing into, sale, distribution or circulation of any newspaper, periodical, book or document or the printing or publication of any matter in any newspaper, periodical, book or document will undermine the security of the State or be prejudicial to the maintenance of public order or offend against decency or morality, it may by an order notified in the Gazette -

(i) prohibit either absolutely or for a specified period the bringing into, or sale, or distribution or circulation within the State of any such newspaper, periodical, book or document, as the case may be;

(ii) prohibit, either absolutely or for a specified period, the printing or publication of such matter; or

(iii) prohibit or regulate the making or publishing of any document or class of documents in respect of such matter;

Provided that no order made under this sub-sectionsolely for the purpose of maintenance of public order shallbe operative for more than three months from the makingthereof.

* * * * * (5) Any person aggrieved by an order under Sub-section (1) or Sub-section (3) may, within sixty days from the date of such order, apply to the High Court to set aside the order and upon such application, the High Court may pass such order as it deems fit, confirming, varying or reversing the order of the State Government and may pass such consequential or incidental order as may be necessary.'

7. It will be seen that an order under Section 12(1) can be made by the State Government only after satisfying itself as to the matters mentioned in Sub-section (1). The basis of the order is no doubt the satisfaction of the Government as to those matters. But this satisfaction is opento review by the High Court when the person aggrieved by an order made under Sub-section (1) moves the High Court for setting aside the order. This is clear from Sub-section (5) which gives to the aggrieved person the right to apply to the High Court to set aside an order made under Sub-section (1) or Sub-section (3) and which empowers the High Court to pass such order as it deems fit confirming, varying or reversing the order of the State Government and to pass such consequential or incidental order as may be necessary. When, therefore, a person applies to this Court under sub-section (5), what this Court has to see is whether, on the material that was before the State Government at the time of the making of the impugned order, the satisfaction ot the Government with regard to the objectionable character of the publication was real or illusory and whether that material affords any justification for confirming, varying or reversing the order of the State Government.

8. Now, under Section 12(1) the satisfaction of the Government must be on the point that the publication in respect of which an order is intended to be made 'will undermine the security of the State or be prejudicial to the maintenance of public order or offend against decency or morality'. That provision does not speak of mere tendency of the publication to undermine the security of the state or to prejudice the maintenance of public order or to offend against decency or morality. In connection with these matters the word 'will' has been used in Section 12(1). This word is a word of certainty and not one of speculation and uncertainty. The requisite satisfaction under Section 12(1) must, therefore, be as to whether the reasonable and natural effect of the sale, distribution or circulation of the publication in question would be to undermine the security of the State or to prejudice the maintenance of public order or to offend against decency or morality. In determining whether this would be the reasonable and natural effect of any newspaper, periodical, book or document, Section 12(1) must be construed in such a manner as to maintain the freedom of speech and expression and the right to practise any profession, or to carry on any occupation guaranteed by the Constitution, on the one hand, and to prevent licence which is an affront to an orderly society of which we are all members, on the other. The publication said to be ot the mischievous character mentioned in Section 12(1) must, therefore, be read as a whole in a fair, free and liberal spirit, and in a spirit of freedom and not with narrow-mindedness or with an eye of narrow criticism.

9. It must be remembered that action under Section 12(1) is by way of a precautionary measure. It is, therefore, not necessary that the publication complained of should have actually prejudiced the maintenance of public order or offended against decency or morality before any order in relation to it can be made under that provision. But it is essential that this should be the reasonable and natural effect of the publication if it is allowed to be sold, distributed or circulated freely in the State. Now, it is impossible to lay down any plummet line for determining where the innocuous character of any publication ceases and when in relation to it the objectionable character contemplated by Section 12(1) begins, in considering whether the publication complained of is of the type contemplated by Section 12(1), we must look to the circumstances of each case, the object and purpose of the publication, the time at which it is published, the class of people for whom it is meant and to whose hands it may fail, the effect it would produce on their minds, and the context in which the objectionable portion of it appears. It follows from this that for purposes of Section 12(1) a distinction mustnecessarily be drawn between a historical or literary worn, a scientific treatise, journals and text-books, on the onr hand, and writings such as newspapers, articles, pampmets and other publications meant for the common and ordinary man, on the other. Otherwise, no true and faithful history! of the country would ever be written and no scientific or literary works would ever be published, and that would not' be in public interest. The determination of the reasonable and natural effect of the publication must be with reference to the standard of a reasonable man for whom it is meant and not of an egoist or a fanatic or an eccentric or of the insensible or of the ultra-sensitive or of the depraved or of the rara avis or of the highly cultured and intelligent, or of the bigot.

10. Again, the truth or falsity of the objectionable matter in the publication is immaterial for determination of the question under Section 12(1). Indeed, truth is too often unpalatable to many who refuse to face it, and who, if they are hot-headed, are drawn to resort to violence ana disorder when told the truth. Equally irrelevant is the fact that the publication objected to contained matter more or less similar to the matter contained in other publications which are sold, distributed and circulated freely in We State. If the impugned matter is of the character falling under Section 12(1), then its quality in that respect is I not made better by examining other books and publications or by the fact that no action has been taken by the Government in regard to these other publications.

11. Bearing these principies'in mind it has to be determined whether, the lesson 'Bharat Men Islam Ka Agman' is of the nature described in Section 12(1). The impugnea order of the Government in relation to it is founded on the ground that it offends against decency and moraijty and that it is also prejudicial to the maintenance of public order. On reading the lesson very carefully we have no hesitation in saying that there is nothing in it which can bring it withn the purview of Section 12(1). The boon 'Madhyamik Samajik Adhyayafl' purports to be a text-DooK for 9th, 10th and llth standaras of Higher Secondary Schools and attempts to give a picture of social, cultural arid political history of some countries and particularly of India. It is written in pure Hindi and possesses some literary style. It is in Devanagari script and is obviously not intended tor those who cannot read that script or understand sanskmizea 1 Hindi.

In the lesson in question, the author has purported to give a historical description of the advent of Islam in India. This he has done under four heads:-

(i) Historical background;

(ii) Rise and expansion of Islam;

(iii) The entry of Islam in India; and

(iv) The impact of Islam influence on India. While dealing with the rise and expansion of Islam, the petitioner-author has given a very brief sketch in a few lines of the prophet Muhammad's life and career.

12. The passage in the lesson dealing with the life ana career of Muhammad when translated into English runs as follows:

'The followers of Islam religion are known as Militant-madans. Islam religion had its birth in Arabia and its founder was Hazrat Muhammad. He was born at Mecca in 570 A. u. .. His parents died in childhood and consequently the fcuroen of maintaining him fell on his grandfather. When Munammad was 13 years of age his grandfather died leaving him alone in the world. Thus Muhammad had to face great difficulties in phi Idhood... After some .time his fortune took a turn andhe came in contact with a rich woman and this solved his financial difficulties. He married at the age of 40. In course of time realization came on him that he was a Paigamber of Allah and began to preach others.

After enlisting many followers Muhammad Saheb went to Medina in 622 A. D. and it was from this year that the hijri year of the Muhammadans commenced. Muhammad collected a great army in Medina and attached Mecca and brought the town under his rule and authority. After this event, he increased in honour and prestige and in 662 A.D. (sic) when he died at the age of 63, an extensive and large part of Arab region was under his rule.

After his death, the Islam religion flourished very muchduring the time of his successors and it became the religionof almost all the residents of Arab land.'

13. Shri Dabir, learned counsel tor the petitioner, urged that this passage or other passages in the lesson did not contain anything which had not been written before by eminent authors and authorities on Islam religion. As we have said earlier, while determining whether the lesson in question is of the nature described in Section 12(1) of the Act, it would not be legitimate to compare the lesson with other publications containing similar matter. Confining ourselves to what has been written in the lesson itself ana reading it in a liberal and fair spirit, the question to be answered is; 'What impression does the lesson give to a person of ordinary commonsense for whom it is meant ana in whose- hands the book 'Madhyamik Samajik Adhyayan' is likely to fall?'

That question, in our view, admits of only one answer in the present case. The lesson has been written in plain language and not in any vitriolic language. In that lesson, a man of ordinary commonsense reading it will fail to find anything to offend his sense of decency and sound morafs or to provoke him to the degree of disorder. It does not use any strong words or even words of ornament or of figure of speech. It informs the readers in simple language and in brief of the life and career, of Muhammad and of the entry, growth and influence of Islam in India.

14. According to the return filed on behalf of the opponent-State the gravamen of the complaint against this lesson is in the statements occurring in the translated passage reproduced above, that Muhammad's parents died in his childhood and thereafter the burden of maintaining him fell on his grandfather who also died when Muhammad was 13 years of age; that he had to face many difficulties in this childhood; and that after some time his fortune turned and he came in contact with a rich lady which solved his financial difficulties. It has been averred in the return and it was also strongly argued before us on behalf of the State that the statement that Muhammad came in contact with a rich lady and his financial difficulties were solved as a result of it contained the insinuation that the founder or Islam had illicit relations with a rich woman.

We must confess our utter inability to comprehend howthe Hindi word (I) has the meaning sought tobe attributed to it on behalf of the State. The plain and well-settled meaning of that word is 'contact', and when itis said that a certain person came in (I) with another, all that is connoted is that he met the personand came in contact with him. The meaning of the word isnot altered to the sense of (I) if it is used in relation to a meeting between a man and a woman. Theword (I) is so simple and well known that nobody who knows the Hindi language can have the smallest difficulty in understanding it. It is really surprising that this word should have been taken to mean as suggestive of illicit intimacy by the Government of the Hindi speaking State of Madhya Pradesh where a very high standard of spoken and written Hindi prevails. The attempt to justify the impugned order by saying that in the lesson the petitioner has said that Muhammad had illicit connection with a rich woman appears to us bathetic, Learned Advocate General was unable to point out to us any other statement in the lesson which, according to the opponent-State, could be read as offending against decency or morality.

15. It has been stated in paragraph 4 of the return filed on behalf of the State that a mere reading of the lesson is sufficient to show 'that the contents are prejudicial to the maintenance of public order as it (the lesson) offends against the religious susceptibilities of the followers of Islam as also against morality and decency' and that 'there was great agitation against the contents of the lesson and a situation arose in which maintenance or public order was seriously jeopardised'.

In paragraph 12 the contents of the lesson are said to be 'objectionable per se' requiring no other evidence 'to prove that the same do not mean what is actually stated therein'. Similar statements are to be found in paragraph 15 of the return. But to us the prejudice to the maintenance of public order or offence against decency or morality or the wounding of the religious susceptibilities of the followers of Islam is not revealed by anything contained in the lesson. It is noteworthy that the book containing the lesson was first published and put into circulation in July 1959. The second, third and fourth editions of the book containing the lesson were published in 1959, 1960 and 1961. If the lesson had been inherently obnoxious bringing it within the mischief of Section 12(1), then action under that provision would and should have been taken in 1959 itself soon after it was published and put into circulation. But it took nearly three years after the first publication or the book before the alleged mischievous character of the lesson began to be felt by the Government and the impugned order was made on 19th September 1962. It is not the opponent's case that after the first publication of the book there were such political, social and ideological changes in the State that when the order assailed was passed on 19th September 1962, the writing and circulation of anything about Islam, and particularly of the lesson in question, was offensive not only to the most liberal-minded Muslims but also to the bigots of other communities.

16. According to the return, the order of prohibition was passed because of great agitation against the petitioner's book and other publications. It has been said that a month or so before the making of the impugned order protest meetings were held, demonstrations were staged, processions were taken out, letters, notices and news items appeared in newspapers, all for the purpose of securing a withdrawal of the petitioner's book as well as three other books, namely, 'Swarna Pushpa', 'Bharat Itihas Aur Sanskriti' and 'Great Personality'. It has been no doubt stated in the return that the State Government was satisfied that it was necessary to take action under Section 12(1) for the maintenance of public order.

But it is manifest from the return that the material on which the Government satisfied itself as to the necessity of making an order imposing prohibition against sale, circulation and distribution of the book 'Madhyamik SamajikAdhyayan' containing the lesson consisted of nothing else but what was said in an omnibus manner by way of protestat public meetings, in newspapers and in personal meetings with some ministers against three other books with which the petitioner's book was bracketed. Before us, issues of several newspapers containing reports of speeches made at public meetings, letters of protest and articles were placed to show the intensity of the agitation against the petitioner's book. But it was later admitted on behalf of the State that what appeared in those newspapers related to the other three books and not to the petitioner's book. Even it the Withdrawal of the book from circulation had been demanded by some speakers at public meetings or by correspondents to newspapers, that by itself would not have afforded any justification for reaching the requisite satisfaction for the making of an order under Section 12(1).

17. It may be conceded that opinions as reflected in the Press or expressed at public meetings can be taken into account while considering whether an order under Section 12(1) should or should not be made in regard to any publication. But agitation in the Press or on the platform cannot take the place of satisfaction which the Government is required to reach before making any prohibitory order under that provision. It would indeed be a dangerous doctrine to hold that repeated adverse expression of opinion in regard to a publication is by itself sufficient for themaking of an order under Section 12(1).

As we have stated earlier, the question whether anynewspaper, book or publication is of the nature described inSection 12(1) must be decided on the nature, object and purpose of the publication, the time of the publication, theclass of people for whom it is meant and the effect it would produce on the minds of the people into whose handsthe publication is likely to fall. If judged by the testsalready indicated the publication cannot be classed as oneInherently falling within the mischief of Section 12(1), itcannot become so by listening to the opinions of otherpeople with regard to it, or by resentment, indignation, andwild words expressed at public meetings or in newspapers. If in regard to any publication there is agitation demandingprohibition against its sale, distribution or circulation, thenit is the duty of the Government to consider dispassionatelywhether there is any foundation for the agitation and whether it is real and genuine springing out of unselfishmotives or whether it is inspired by interested persons.An order under Section 12(1) must be based on satisfactionas to the matters mentioned in that provision. It cannot bemade as a concession to popular clamour or by equatingpopular clamour with threat to public order. The threat tomaintenance of public order must be real and imminentbefore a prohibition under Section 12(1) can be imposed onthe ground that the sale, distribution or circulation of thepublication concerned would be prejudicial to the maintenance of public order. It must be remembered that actionunder Section 12(1), though taken for the maintenance ofpublic order, which is the first duty of the Government,does interfere with individual liberty and private rights. It is, therefore, essential that the power conferred by thatprovision must be exercised with great caution and regulated by a full observance of the limitations imposed by theprovision.

18. If, then, as we think, the lesson in question is not on the face of it of the character described in Section 12(1) and the material on the basis of which the Government satisfied itself on the point that the sale, distribution or circulation of the bock 'Madhyamik samajik Adhyayan' containing the lesson would be prejudicial to themaintenance of public order or would offend against decency or morality, consisted of nothing else but the agitation carried on in the press and on the platform against other publications, the order under challenge passed by the Government on-19th September 1962 cannot be sustained. It must, therefore, be set aside.

19. As the petitioner has taken the aid of Section 12 (5) of the Act for the relief of having the order dated 19th September 1962 set aside, it is not open to him to challenge the validity of Section 12. The relief claimed by him under Section 12(5) can be granted only if Section 12 is valid. The petitioner has no doubt invoked Articles 226 and 227 of the Constitution for this purpose. But the view we have taken of the matter renders it unnecessary for us to deal with the argument of the learned counsel for the petitioner attacking the constitutionality of the Act. In regard to constitutional questions, it is the wisest course not to express any opinion on them if their discussion or determination is not involved in the decision of the matter in which they are raised.

20. In regard to the memo dated 15th October 1962 issued by the Board of Secondary Education which the petitioner desires to have quashed, it is sufficient to say that the memo is not any order of the Government under Section 12(1) of the Act. It only purports to inform the Principals of all schools of the decision of the Government that the book 'Madhyamik Samajik Adhyayan' containing the lesson should not be used in schools as it had been banned by the Government. No doubt, the phraseology of the memo is not happy. But it would not be legitimate to read it as conveying to the Principals any suggestion with regard to the use of the book contrary to the terms of the order passed on 19th September 1962. The memo has to be read along with that order.

21. For these reasons, this petition is allowed and the order of the Government dated 19th September 1962 prohibiting absolutely the bringing into or sale, distribution, circulation, printing or publication within the State of Madhya Pradesh of all editions of the book 'Madhyamik Samajik Adhyayan' containing the lesson 'Bharat Men Islam Ka Agman' and any newspaper, periodical, book, pamphlet or document containing the lesson or its substance, translation or adaptation in any language, is set aside. The petitioner shall be entitled to costs of this petition. Counsel's fee is fixed at Rs. 200/-. The outstanding amount of the security deposit shall be refunded to the petitioner.