1. This petition has been filed to quash the Government notification dated 12-2-1971 forfeiting the posters printed and published by the petitioner.
2. The petitioner is a Hindu. He belongs to the Asthika Sangam, Madras. The circumstances under which the petitioner placed orders to print the posters leading to the order of Government forfeiting the posters are stated to be as follows:
3. The petitioner learnt from the Press that at the instigation of Thiru E. V. Ramaswami Naicker, the Leader of Dravida Kazhagam, several tableaus depicting the picture of Gods Rama and Muruga were being beaten by a chappal in a procession held at Salem on 23rd and 24th January 1971. The petitioner being a Hindu and being a member of Asthika Samagam was very much wounded by the activities carried on by the party belonging to Thiru E. V. Ramaswami Naicker. The Government of Tamil Nadu did not take any action against the person who took part in the said procession in spite of opposition by the public through reports in several newspapers. The petitioner, therefore, placed an order with Aspy Litho Works Madras, to print posters depicting the very acts done to Hindu Gods and the propaganda carried on by the party belonging to the Dravida Kazhagam Leader. Just at or about the time when the posters were about to be pasted in the several parts of the city, the Government of Tamil Nadu issued a Notification G. O. Ms. No. 491 Home dated 12-2-1971 directing the posters to be forfeited to the Government on the ground that the said posters contained matters which promote or intend to promote the feelings of enmity and hatred between different classes of citizens of India or which is deliberately or maliciously intended to outrage the religious feelings of any such class by insulting the religion or the religious feelings of that class. In consequence of the Government Order, the impugned posters were forfeited from the, Press.
4. The petitioner submitted that the posters were printed to condemn what the Leader of Dravida Kazhagam party and his followers did at Salem. The cartoons depict the Leader of the Dravida Kazhagam party Thiru E. V. Ramaswami Naicker raising chappal to beat Gods Rama and Muruga by his right hand and holding a pamphlet in his left hand containing the words "Matran Manaivivai pendana sattathil idam vendum" The poster is marked as Ex. A On the top of the poster, there is a heading printed in the following terms:
"Ramanaiyum Muruganiayum seruppal adithavanin silaigalai thirandha seedarukka ungal vottu."
The petitioner further submitted that the Government Order forfeiting the posters were passed with a view to prevent the election propaganda against the Government headed by Thiru M. Karunanidhi.
5. The Home Secretary of the Government of Tamil Nadu filed a counter stating that the action of the petitioner in publishing the cartoon was with the deliberate and malicious intention of outraging the religious feelings of the citizens of India by visible representations and his intention in doing so, was to promote on grounds or religion, feelings of enmity and hatred and the Government, therefore, issued order forfeiting the said posters. It was further submitted in the counter that action was taken against the persons responsible for the acts complained of by the petitioner as regards the incident at Salem.
6. The impugned order the Government runs thus:
"1. Whereas it appears to the Government nor of Tamil Nadu that a poster with the heading "Sri Ramanaiyum Muruganaiyum seruppal aditha periarin silaigaliaithirandhu seedarukka urgal vottu" has been printed and published;
2. And whereas the said poster contains the pictures of God Rama and Muruga;
3. And whereas in the said poster, it is depicted that Thiru E. V. Ramaswami Naicker is raising a chappel to beat God Rama and Muruga by his right hand;
4. And whereas the said E. V. Ramaswami Naicker is holding a pamphlet in his left hand containing the words Matran Manaiviyai pendana sattathil idam vendum".
5. And whereas in the opinion of the Government the aforesaid poster contains matters which promote or are intended to promote feelings of enmity or hatred between different classes of citizens of India or which is deliberately and maliciously intended to outrage the religious feelings of any such class by insulting the religion or the religious feelings of that t class;
6. And whereas the publication of the said matter is punishable under Section 153-A of the I.P.C., 1860 (Central Act 45 of 1860).
Now, therefore, in exercise of the powers conferred by Section 99-A, Cri. P. C., 1898 (Central Act V of 1898) the Governor of Tamil Nadu hereby declares-
(a) that every copy of the said order: and
(b) all other documents containing copies, reprints and translations of extracts from. the said poster.
shall be forfeited to the Government."
7. This order was purported to have been made under Section 99-A. Cri. P. C.
8. Sri V. K. Thiruvenkatachari, the learned counsel for the petitioner contended that the impugned order does not state the grounds on which the opinion was formed by the Government as required under S. 99-A Crl. P. C. and that, therefore, the order is bad and has to be quashed. The learned counsel further contended that the posters were printed only for the purpose of condemning the acts committed by the Dravida Kazhagam party in Salem procession, which wounded the religious feelings of Hindus and for expiring the indifferent attitude of the Government in not having taken immediate action against the offenders and contended that they were not printed with a view to promote feelings of enmity between two religious groups or with the intention of deliberately or maliciously outraging the religious feelings and, therefore, the matter contained in the poster was not publishable under Section 153-A S. 295-A, I.P.C. and the Government order on this ground also is bad and unjustifiable. In respect of the first contention it will be necessary to note Section 99-A, Cri P. C. under which the impugned order was made.
9. Section 99-A, so far as relevant is in these terms:
"Where any newspaper, or book.....or any document............. appears to the State Government to contain any seditious matter or any matter which promotes or is intended to promote feelings of enmity or hatred between different classes of the citizens of India or which is deliberately and maliciously intended to outrage the religious feelings of any such class by insulting the religion or the religious belief of that class, that is to say, any matter the publication of which is punishable under Section 124-A or Section 153-A or Section 295-A. I.P.C. the State Government may, be notification, in the official Gazette, stating the grounds of its opinion, declare every copy of the such book............to be forfeited to Government."
It is clear from the terms of the section that an order can be made only when the Government forms certain opinion and that opinion is that the document concerning which the order is proposed to be made contains any matter. the publication of which is punishable under Sec. 124-A or 153-A or 295-A. I.P.C. It is also clear that the Government has to state the grounds of its opinion in its order. Therefore two essential things which are required for passing the order under Section 99-A are : (1) the formation of opinion as required under the section; and (2) the grounds on which such opinion in formed to be stated in the order. These two things are mandatory. The order made in this case states that the Government has formed its opinion that the matter contained in the poster is punishable under Section 153-A, I.P.C. but it has not stated the grounds on which that opinion was formed. The order merely reproduces the matter contained in the poster in paragraphs 1 to 4 and repeats the ingredients of Sections 153-A and 295-A I.P.C., in paragraph 5; but it does not say how, in what manner and whose religious beliefs are wounded. Nor does it say that the matter in the poster promotes feelings of hatred between two identifiable, district and separate classes or communities or groups of persons based upon religion, race, language, caste or community. It is not known from the order as to why the Government thought that such offence to religion has been caused.
10. The Supreme Court has laid down in a substantially similar case, reported in Harnamdas v. State of Uttar Pradesh, that is obligatory on the part of the Government making an order under Section 99-A to state the grounds of its opinion in declaring the seizure of the impugned document to be forfeited to Government. That was a case where the Government of Uttar Pradesh made an order under Section 99-A. Cri. P. C. forfeiting certain books published by the author of those books and that order so far as it is material was in the following terms:
"In exercise of its powers conferred by Section 99-A, Cri. P. C................the Government is plead to declare the books..........forfeited to Government on the ground that the said books contain matter, the publication of which is punishable under Section 153-A and 295-A. I.P.C. "
The validity of that order was challenged in the Uttar Pradesh High Court. While the High Court holding that the requirement to state the grounds under Sec.99-A was mandatory and that a mere citation of the words of the section would not do, agreed with the earlier decision of the Special Bench of that court that the High Court in view of the provisions of Sec. 99-B. Cri. P. C., was precluded from considering any other point than the question whether in fact the document comes within the mischief of the offence charged, it refused to set aside the order on account of the omission to state the grounds of the opinion and then proceeded to examine the books for itself and found that their contents were obnoxious and highly objectionable and dismissed the application observing that the appellant had entirely failed to show that the books did not contain matters which promoted feelings of enmity and hatred between different classes or which did not insult or attempt to insult the religion or religious beliefs of the Sikhs. Thereupon, the author of the books aggrieved by the order obtained special leave for appeal to the Supreme Court and the Supreme Court, while considering the scope of Section 99-A in respect of the order made by the Government, which is substantially similar to the impugned order made by the Government in this case as conceded by the learned Advocate General excepting paragraph 5 of the said order, the like of which was not found in the order passed by the Uttar Pradesh Government, stated as follows:
"Two things appear clearly from the terms of this section. The first thing is that an order under it can be made only when the Government forms a certain opinion. The opinion is that the document concerning which the order is proposed to be made, contains 'any matter the publication of which is punishable under Section 124-A or Section 153-A or Section 295-A, I.P.C.' Section 124-A deals with seditious matters, Section 153-A with matters promoting enmity between different classes of Indian citizens and Section 295-A with matters insulting the religion or religious beliefs of any class of such citizens. The other thing that appears from the section is that the Government has to state the grounds of its opinion. The order made in this case, no doubt stated that in the Government's opinion the books contained matters the publication of which was punishable under Sections 153-A and 295-A, I.P.C. It did not, however, state, as it should have, the grounds of that opinion. so it is not known which communities were alienated for each other or whose religious beliefs had been wounded according to the Government, nor why the Government thought that such alienation or offence of religion had been caused."
The Supreme Court further stated while considering the scope of Section 99-A read with Section 99-D of the Code in the following terms:
"Now Section 99-D is concerned with setting aside an order. That order is one made under Section 99-A. An order under that section 99-A. An order under that section can be made only when certain things have appeared to the Government and the Government to state the grounds of its opinion. It is this order, that is, the order, based on the grounds stated, which the party affected has been given by Section 99-B the right to move the High Court to set aside. It would follow that all that Section 99-B can require the party to do is to show that that order was improper. Whether that order was proper or not would of course, depend only on the merits of the grounds on which it was based; whether another order to the same effect could have been made on other grounds is irrelevant, for that would not show the validity of the order actually made; that order would be bad if the grounds on which it is made do not support it. Two order, though both saying that a publication contains matters which offends the same section of the Penal Code cannot be the same or an identical order if the reasons why they are considered so to offend the section of the Penal Code concerned are different. Now Sec. 99-B says that a person affected by the order may move the High Court to set it aside on the ground that the book 'did not contain any seditious or other matter of such a nature as is referred to in sub-section (1) of Section 99-A'. The matter mentioned here must, for the reasons stated, refer only to such matter on which for the grounds stated by it, the government's opinion has been based."
In the result, the Supreme Court held that on the failure of the Government to set out the grounds from its opinion as required under Section 99-A of the Code. the High Court should have set aside the order under Section 99-D and that it was the duty of the High Court under that section to set aside the order of forfeiture if it was not satisfied that the grounds on which the Government formed its opinion could justify that opinion and where no grounds of its opinion are given at all, The High Court must set aside the order for it cannot then be satisfied that the grounds given by the Government justified the order. Ultimately, the Supreme Court allowed the appeal on the ground that the order did not disclose the grounds for the opinion formed by the Government and directed return of documents seized under that order. The learned Advocate General does not dispute, in view of this decision that it is essential that the grounds of the opinion formed by the Government should be stated in the order. He conceded that the order passed by the Uttar Pradesh Government concerned in the Supreme Court case is substantially similar to the instant order, the only difference being according to him, that in paragraph 5 of the impugned order, the State Government had stated the grounds for the opinion formed by it.
11. The learned Advocate General while conceding that paragraphs 1 to 4 in the impugned order do not constitute the grounds for the opinion, contends that the grounds were mentioned in paragraph 5 of the said order. Paragraph 5, as we have noted, earlier repeats only what is found in the earlier portion of Section 99-A constituting the offence under Section 153-A and Section 295-A, I.P.C. what is contained in paragraph 5 can at best be only the opinion formed by the Government. The earlier portion of Sec. 99-A beginning with the words "where............. appears to the State Government to contain any seditious matter..................." and ending with the words "that is to say, any matter the publication of which is punishable under Section 124-A or Section 153-A or Section 295-A, I.P.C." do indicate the opinion to be formed and when such opinion is formed, the latter portion of the said section says that " the State Government may be notification in the Official Gazette stating the grounds of its opinion, declare....... every copy of such book...........to be forfeited to Government".
The earlier portion is distinct from the latter portion. The former concerns the opinion to be formed and the latter, the grounds to be stated in the Notification in the Official Gazette, Paragraph 5 is a mere citation of words found in the earlier portion of Section 99-A and there is no indication at all anywhere in the order that the Government had considered the effect of the poster proposed to be forfeited, and if it has considered, it would have certainly given grounds or reasons which weigh with the Government to form such an opinion. It would have stated which were the groups between whom hatred was promoted or attempted to be promoted. If the Government had considered that he poster had offended Section 153-A or Section 295-A, it should have had reasons for forming such an opinion. The Legislature has specifically made it obligatory that the Government should mention those grounds or reasons which influenced them to form such an opinion, so that such grounds mentioned in the order might be subjected to judicial scrutiny as provided under Section 99-D, Cri. P. C.
12. The learned Advocate General points out that what we are concerned in this case is picture and not a book and that the matter contained in the picture does not require any investigation for any one to form an opinion about it, as it can be seen easily, whereas an enquiry and investigation might be necessary for the purpose of finding out which passages in a book would come within the mischief of Section 99-A of the Code. He makes this difference to show that there was no difficulty for the Government to have formed an opinion without investigation or enquiry as any one who sees the picture can come to the same opinion as the Government had come to. There is no substance in this. Whether it is a picture or a book, what is contained there in will be "matter". The matter in respect of which the publication is made punishable under Section 153-A or Section 295-A is one thing and the formation of opinion by the Government that such matter comes within the mischief of Section 99-A is another thing. Again, the grounds or the reasons which weighed with them to come to such an opinion is a third thing. The existence of a matter may be the subject matter for the formation of certain opinion, but the matter cannot be confused with the opinion itself or with the grounds which influenced that opinion. The Government after having set out the matter contained in the poster, and while stating its opinion about the matter in the order, it should have also stated as to how, why and in what manner and between which groups the feelings of enmity or hatred the printing and publication of the said poster had promoted or attempted to promote. No such grounds are stated in the order. We are, therefore, of the view that the impugned order does not state the grounds for the opinion it has formed, it has to be quashed on this ground alone.
13. Even if what is contained in paragraph 5 of impugned order is to be construed as a ground--which we have held, is not--yet we are unable to see as to how the poster promotes or attempts to promote feelings of enmity or hatred between two religious groups. The petitioner is admittedly a Hindu. He belongs to Asthika Sangham which believes in orthodox Hindu religion. He stated that what was done by the leader of Dravida Kazhagam party and his followers at Salem, had wounded his religious feelings. The Government did not take any action against those persons who are responsible for such acts shown in the poster, and, therefore, he printed the posters of the purpose of not only condemning the acts committed by those persons involved in Salem incident but also to bring it to the notice of the public and appeal to them not to vote for a person, who according to him, was the disciple of the Leader of the party who committed those acts depicted in the cartoon. The petitioner being an orthodox Hindu believing in idol worship cannot be said to have promoted or attempted to promote feelings of enmity or hatred between two Hindu religious groups by printing and publishing this poster. There is clear indication in the poster itself, as seen from the words written on the top of the poster, that the posters were printed and published as part of the election propaganda against a particular political party. That the respondent construed it as such is disclosed in what is stated by them in paragraph 3 of their counter viz "that if the petitioner had really and genuinely intended only to condemn the alleged acts of beating the pictures of Sri Rama and Muruga, it was not necessary for the petitioner to have printed the words found on the top of the poster as heading for the cartoon". In these circumstances, we are satisfied that the Government had no basis for forming the opinion to make an order under Section 99-A.
14. We accordingly allow the petition and set aside the Government Notification of forfeiture dated 12th February 1971. The learned Advocate General represented at the Bar that the seizure of the posters was made by the police in the course of an investigation in respect of a crime alleged to have been committed under Section 295-A, I.P.C. The petitioner stated in his petition that the impugned posters were forfeited form the printing press in consequence of the order passed by the Government. In these circumstances, we order that the petitioner will be entitled to the return of the posters forthwith, if any, seized in consequence of he forfeiture order made by the Government. No costs.
15. Petition allowed.