S. Murtaza Fazal Ali, C.J.
1. By virtue of Notification dated 14-12-73 the Government of Jammu and Kashmir declared the issue of the 'Illustrated Weekly of India Annual 1973' printed and published by Shri Uma Shankar at the Times of India Press and edited by Shri Khushwant Singh and all other documents containing copies, reprints and translations of or extracts from the said issue to be forfeited to the Government on the ground that the said issue contained an article entitled 'Jammu and Kashmir' which contravened the provisions of Section 153-A of the Ranbir P. C. The Notification further prohibited the import by post or otherwise into the State any copy of the said issue and all other documents containing copies or reprints etc. thereof.
2. By a composite petition the petitioners Messrs. Bennett Coleman and Co. Ltd. who are the proprietors of the weekly, Shri Romesh Chandra, Manager of the firm and Sri Khushwant Singh Editor of the Weekly have assailed the aforesaid Government Notification under Article 226 of the Constitution of India - Section 103 of the State Constitution and Section 99-B of the Criminal P. C. The undisputed fact is that the Illustrated Weekly of India is a notable English Magazine edited by Shri Khushwant Singh, the third petitioner, and managed by the second petitioner. The magazine took out an annual feature in 1973 containing a number of articles highlighting the cultural, social, economic growth and the demographical and geographical advancement of various States in India during the 26 years of independence. The State of Jammu and Kashmir being one of the States in India also figured in the magazine and an article on this State was written jointly by Messrs. Balraj Puri and Shamim Ahmad Shamim. As soon as the article was published serious exception was taken, to some portions of it relating to the characteristic features of all sections of the people residing in the State which led the State Government to pass the impugned notification so that the feelings of the people were not hurt or injured.
3. The petitioners have challenged the impugned notification on various grounds. In the first place it has been alleged that the ban imposed by the Government violated the fundamental right of the petitioners regarding freedom of speech and the implied right which is a consequence thereof, namely, the right of communication between one individual and another: secondly that the impugned notification impinged on the provisions of Section 99-A of the Criminal P. C. and was illegal, mala fide and outside the scope and ambit of the aforesaid section, and thirdly that the article in question contained no offensive or scurrilous matter and was not calculated or intended to contravene the provisions of Section 99-A of the Criminal P. C. Finally it was averred that the Government had not only banned the magazine in the State but had also prohibited the import into the State of its reprints or copies of other articles which had not been found to be offensive for circulation in India and that the Government had acted beyond the scope and ambit of Section 99-A.
4. The petition has been stoutly resisted by the State which has denied the allegations of mala fides and has taken the stand that some portions of the article on Jammu and Kashmir were intended to harm and injure the sentiments of all sections of the people living in the State and were calculated to promote hatred amongst these sections which compelled the Government to ban the issue of the Weekly under Section 90-A of the Criminal P. C. It was further submitted that the Government had passed the impugned notification after examining the matter fully and considering all the aspects of the matter including the one relating to the infraction of Section 153-A of the Ranbir P. C. The State further took the stand that in the circumstances it was not necessary to afford any opportunity to the petitioners to show cause before issuing the impugned notification. Finally it was argued that although the decision of the Government for banning the issue of the Weekly was taken by the Minister concerned, yet that would constitute the action of the Council of Ministers by applying the principle of the joint responsibility of the Cabinet.
5. Dr. Singhvi appearing for the petitioners has raised some of the points taken in the petition and has advanced the following arguments:
(1) That the notification under Section 99-A of the Criminal P. C. is liable to be quashed on the ground that it does not state the grounds of opinion framed by the Government.
(2) That a perusal of the article, particularly of the offensive portions, would show that neither the conditions mentioned in Section 99-A of the Criminal P. C. nor those specified in Section 153-A of the Ranbir P, C. apply to the present case and therefore the impugned notification cannot be supported in law.
(3) That the admitted stand taken by the State that the article in question was calculated to promote hatred amongst all sections of the people living in the State could not be a ground for the State to exercise its jurisdiction under Section 99-A which applies only to a case where some sections of the people only had been selected for an offensive or scurrilous comment.
Lastly it was submitted that the article read as a whole did not amount to any scandalization of the character of the people of the State, but on the other hand the general tenor of the article led to the irresistible inference that the characteristic features of the people were elated and eulogised and thus the petitioners had no intention to promote hatred amongst the people or to injure their sentiments.
6. The Advocate-General for the State submitted that the notification contained the grounds which led to the formation of opinion by the Government, and therefore the notification cannot be struck down on this score. Regarding the other argument the Advocate-General submitted that the conditions of Section 99-A of the Cr. P. C. were duly fulfilled in this case and this section contemplated a ban on publication even if it intended to promote hatred amongst some and not all sections of the people. It was also contended that the facts of the present case were squarely covered by Section 153-A (1) (b) of the Ranbir P. C.
7. We have heard arguments of the counsel for the parties as also the intervener, Mr. Balraj Puri at great length but in the view that we take in this case, we do not think it is necessary for us to go into the merits of the petition, because the petition succeeds on the short point taken by the counsel for the petitioners, namely, that the notification impugned does not contain any ground on the basis of which the Government expressed its opinion regarding banning of the issue of the Weekly in question. In order to understand this argument it may be necessary to quote in extenso the provisions of Section 99-A of the Criminal P. C. as follows--
(1) Where (a) any newspaper or book as defined in the Press and Publication Act No. 1 of 1989, or (b) any document-
Wherever printed, appears to the 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 State subjects or which is deliberately and maliciously intended to outrage the religious feelings of any such class, by insulting the religious or the religious beliefs of that class, that is to say, any matter the publication of which is punishable under Ss. (124-A) 153-A and 295-A of the R. P. C., the Government may, by notification in the Government Gazette, stating the grounds of their opinion declare every copy of the issue of the newspaper containing such matter, and every copy of such book or other document to be forfeited to the Government, and thereupon any police officer may seize the same, wherever found in Jammu and Kashmir State, 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.' Analyzing this section it would appear that the following conditions must be satisfied before an order under Section 99-A can be made:
(1) That the document or the paper or the book concerned must appear to the Government to contain any seditious matter or any matter which promotes or is intended to promote;
(2) feelings of enmity or hatred:
(3) between different classes of State subjects or which is deliberately or maliciously intended to outrage the religious feelings of any such class so as to make the matter punishable under Section 153-A or 295-A of the Ranbir P. C. Thus it is important that three important conditions must be satisfied:
(1) That the matter must be published.
(2) That there must be an actual promotion or a clear intention to promote feelings of enmity or hatred, and
(3) That the intention of the promotion of such feelings must be between different classes of State subjects only and, not to the entire people of the State. So far as the other clause which relates to outraging the religious feelings is concerned, that is not applicable to the present case as conceded by the learned Advocate-General. In these circumstances, therefore, a distinction has to be made between cases where the printed matter results in creating hatred between different State subjects without there being any intention on the part of the author to do so or to achieve that end, and class of cases where the author has a clear intention to promote enmity and hatred between different classes of State subjects. In our opinion the facts of the present case clearly show that there was absolutely no intention on the part of the authors to promote hatred between different classes of State subjects. We shall, however, refer to this aspect of the matter a little later.
8. It is sufficient to state that Section 99-A of the Criminal P. C. clearly mentions various grounds on the basis of which the Government can exercise its jurisdiction in passing an order under this section. In these circumstances before the Government chooses to exercise its jurisdiction it must clearly mention the grounds on the basis of which it forms its opinion regarding banning the article concerned and not merely pass a sweeping general order acting under Section 99-A of the Criminal P. C. This matter is concluded by a judgment of the Supreme Court in Harnam Das v. State of U.P. : 2SCR487 , wherein their Lordships observed as follows:
What then is to happen when the Government did not state the grounds of its opinion? In such a case if the High Court upheld the order, it may be that it would have done so for reasons which the, Government did not have in contemplation at all. If the High Court did that, it would really have made an order of forfeiture itself and not upheld such an order made by the Government. This, as already stated, the High Court has no power to do under Section 99-D. It seems clear to us, therefore, that in such a case the High Court must set aside the order under Section 99-D, for it cannot then be satisfied that the grounds given by the Government justified the order. You cannot be satisfied about a thing which you do not know. This is the view that was taken in Arun Ranjan Ghose v. State of West Bengal (1965) 59 Cal WN 493 and we are in complete agreement with it. The present case is a case of this kind. We think it was the duty of the High Court under Section 99-D to set aside the order of forfeiture made in this case.' It may be noted that in the case before their Lordships of the Supreme Court the order of the Government was couched in more or less the same language as the impugned Notification in this case and ran as follows:
In exercise of its powers conferred by Section 99-A of the Criminal P. C....the Government is pleased to declare the books....forfeited to Govt. on the ground that the said books contain matter, the publication of which is punishable under Sections 153-A and 295-A of the Indian Penal Code.
To the same effect is a decision of the Delhi High Court in Mohd. Khalid v. Chief Comrnr. AIR 1968 Delhi 13 at p. 15 - (1968 Cri LJ 50) (SB) wherein their Lordships observed as follows:
In the present case all that the Chief Commr. has stated in the impugned notification is that in his opinion the book in question is intended to promote feelings of enmity or hatred between different classes of citizens of India. Neither the passage in the book, on which opinion was based, has been referred to, nor is there indication of the different class of citizens between whom the book was alleged to promote feeling of enmity or hatred. The ground on which the opinion is based, is not given and the whole thing is left in the realm of vagueness.
The impugned order in the instant case runs in identical terms with Harnam Das's case (supra) and does not at all disclose the grounds on the basis of which the Government formed its opinion. The notification merely says that the published matter contravenes the provisions of Section 153-A of the R. P. C. but does not at all mention the various ingredients given in that section. The question of exercise of jurisdiction under Section 99-A of the Criminal p. C. is a matter of moment and amounts to a clear interference with the right of freedom of speech and therefore it was all the more incumbent on the Government to disclose which of the various grounds given in Section 99-A had led the Government to pass the impugned notification. Was it, for instance, a seditious matter? Was it a matter which promoted or intended to promote feelings of enmity between different classes of State subjects or was it a matter punishable under Section 153-A of the R. P. C? If reference has been made to Section 153-A of the R. P. C. then it is obvious that the section contains two different clauses, namely Section 153 (1) (a) and (b) and the two clauses contain different ingredients. The Government notification must clearly show on the face of it as to which of the two clauses had been infringed by the article concerned. A perusal of the impugned notification (supra) clearly shows that there is no reference to any of these matters; even when the notification says that the article contravenes Section 153-A of the R. P. C. it does not say as to which of the two clauses of this section has been contravened. In these circumstances we are satisfied that the instant case suffers from the same legal infirmities which were present in the order of the Government in Harnam Das's case (supra).
9. The Advocate-General, however, sought to repel the argument of the petitioners on this score by contending that the words 'the publication of which, contravenes the provisions of Section 153-A of the R. P. C.' are a sufficient compliance with the provisions of Section 99-A of the Criminal P. C. because once a reference is made to the publication of the article and contravention of the provisions of Section 153-A, the grounds of opinion of the Government are disclosed, The Advocate-General submitted that in Harnam Das's case before the Supreme Court the words used in the Government order were not 'contravening the provisions of Section 153-A' but punishable under Section 153-A. We are unable to agree with this argument of the Advocate-General. The distinction drawn by him appears to be too artificial and a distinction without any difference. It is obvious that an act would be punishable under Section 153-A of the R.P.C. if it contravenes the provisions of that section. Therefore the difference in the terminology of the words 'contravenes' and 'punishable' would hardly make any difference in construing the mandatory requirements of law. Moreover both Section 153-A (1) (b) and Section 90-A are called into operation only if the published matter tends to promote feelings of enmity or hatred between different classes of State subjects or sections of people and not where the sentiments of all classes of people are hurt.
10. In the instant case it is the consistent stand of the Government that the article tended to promote enmity or hatred amongst all sections or classes of State subjects, namely, the Brahmins, the Muslims, the Dogras, the Mahajans etc. In these circumstances it was all the more necessary for the Government to have clearly disclosed the grounds of its opinion on the basis of which the order under Section 99-A of the Criminal P. C was made.
11. For the reasons given above, we are clearly of the opinion that the present case is fully covered by the decision of the Supreme Court in Harnam Das's case : 2SCR487 (supra) and therefore the petition must succeed on the ground that the1 notification impugned does not fulfill the requirements of Section 99-A of the Criminal P. C. by not disclosing the grounds of the Government's opinion. In this view of the matter it is not necessary to enter into the merits of the petition.
12. We are, however, constrained to observe that the right of freedom of speech which includes the right of communication between individuals is an extremely valuable and precious fundamental right of the citizen, and hence the Government should not play or interfere with this sacrosanct privilege guaranteed by our Constitution merely to placate or appease the hypersensitiveness of an individual or a body of individuals. It is well settled that law takes into account the feelings and emotions of a prudent and balanced person and not that of an abnormal and hypersensitive person. The right of genuine criticism is inherent and implicit in the cherished concept of democracy, and if any fair, legitimate or constructive criticism is slashed down or scuttled, we shall be reducing our valuable democracy to an acrimonious farce. A perusal of the article published would clearly show that there was absolutely no intention on the part of the authors to hurt the feelings of the people or to promote hatred amongst them. In their historical description of Kashmir the authors have given the characteristic features of the people living in the State which is based on what had been said about the people by ace authors, poets, travellers and historians. On the other hand, the article contains some parts wherein tributes and encomiums have been showered on the people of the Stats. But at the same time we cannot help feeling that the writers of the article being experienced and eminent journalists should have taken care to use a more refined and subtle language in describing the characteristics of their own people. In other words the writers could have conveyed their central idea in a milder, and tamer tone, a saner and a softer language and an expression more sublime and subdued. It is true that some times it may become necessary while highlighting the virtues of a person or community to explore or elucidate its vices also but this should be done in such a dextrous manner as not to eclipse the virtues themselves. In this case a certain amount of poignant poise and adroit balance must needs have been struck. If the writers would have exercised this due caution, we are confident that this article would not have created the furore that it has', More than this we do not want to say at this stage because the petition must succeed on the preliminary point raised by Dr. Singhvi.
13. For these reasons, therefore, the petition is allowed and the impugned Notification of the Government dated 14-12-73 is set aside. The petitioners shall now be entitled to the return of all the magazines, books, documents and other things seized from them. In the circumstances of this case there will be no order as to costs.
Jaswant Singh, J.
14. I have had the advantage of going through the judgment prepared by my Lord the Hon'ble Chief Justice which contains an analytical and lucid exposition of the law relating to the conditions which are required to be satisfied for exercise of the power of forfeiture under Section 99-A of the Criminal P. C, end agree with the conclusion arrived at by his Lordship that the impugned notification which declares the forfeiture of the Illustrated Weekly of India (Annual 1973) cannot be sustained as it does not clearly mention the grounds on the basis of which the State Government formed its opinion.
Mian Jalal-Ud-Din, J.
15. I have the advantage of going through the lucid judgment prepared by my Lord the Hon'ble Chief Justice. I should, however, like to add a few words of my own.
16. The petition must succeed on the preliminary point raised by the learned counsel for the petitioner that the impugned order does not disclose the grounds of the opinion. I am at one with the observations made by the Hon'ble Chief Justice in regard to this aspect of the matter. But at the same time I can not refrain myself from expressing the. view that it was purposeless for the authors of the article to have made certain observations and also to have cited certain quotations of the travellers and historians making scurrilous attacks on the character of the inhabitants of the State when the idea behind the publication of the Magazine was to highlight the political, economic and social advancement of various States in India including that of the State of Jammu and Kashmir during the last two decades of indepedence. Character assassination and highlighting the various aspects of developmental work of the people did ill go together.
17. Dr. Singhvi the learned counsel for the petitioners in the course of his elaborate arguments invited our attention to the following quotation of the celebrated writer Voltaire:
I disapprove of what you say but I will defend to death your right to say it.
This quotation raises an interesting and' important question as regards the rights and privileges of the press in the country to give publicity to the views of its con-t tributors in its Magazines and journals. That the press must enjoy complete freedom of expression of its views is indeed an indisputable proposition. The press serves as an important and powerful media to ventilate the grievances of the citizens. Its right of constructive criticism is unquestionable. This right has been guaranteed to it fey Article 19 of the Constitution of India. But at the same time the views that it expresses must be with in permissible limits as set by the Constitution itself. The limitation of the press in the country is not to be construed in a different way than the freedom of speech and expression guaranteed to a citizen under the Constitution. In fact a constitution bench of the Supreme Court in : AIR1959SC395 has laid down the same proposition of law. S. R. Das, Section 4 in his leading judgment observed as follows:
Freedom of speech and expression, includes within its scope the freedom of the Press. Two things should be noticed. A non-citizen running a newspaper is not entitled to the fundamental right to freedom of speech and expression and, therefore, cannot claim, as his fundamental right, the benefit of the liberty of the press. Further, being only a right flowing from the freedom of speech and expression, the liberty of the Press in India stands on no higher footing than the freedom of speech and expression of a citizen and that no privilege attaches to the press as such, that is to say, as distinct from the freedom of the citizen.
That being so a great responsibility therefore lay on the authors of the article to have used more guarded language so that the public did not feel offended. To concede the authors the privilege of unbridled expression of their views would be the very antitheses of right of freedom of press. I, however, do not propose to say anything further in the matter as the petition is to succeed on a short point of, law as regards the non-disclosure of grounds on which the opinion was formed, and which disclosure is a mandatory requirement of law under Section 99-A, Cr. p. Code.