NEW DELHI, Aug 29: The Supreme Court today refused to entertain a public interest litigation challenging Jammu and Kashmir government’s notification which declared 25 books, including some written by prominent figures like A.G. Noorani and Arundhati Roy, as ‘forfeited’ over their alleged propensity to excite secessionism and endanger sovereignty of India.
The Court however granted liberty to the petitioner to move the J&K&L High Court for appropriate relief. It requested the Chief Justice of the High Court to list the matter before a 3-judge bench (presided over by the CJ) and decide the same at the earliest.
The petition, moved by Kashmir-based Advocate Shakir Shabir, also challenged Section 98 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), which deals with the power of a state government to declare certain publications forfeited and to issue search-warrants for same. It was claimed that the provision is ultra vires of Articles 14, 19(1)(a), 19(2) and 21 of the Constitution.
A bench of Justices Surya Kant, Joymalya Bagchi and Vipul M Pancholi passed the order, after hearing Senior Advocate Sanjay Hegde (for the petitioner) who argued that Section 98 BNSS has pan-India application and hence it is overbroad.
“Please see how the section operates. It has all-India operation, that’s the problem. Official of a small state can decide one series of books may be obscene…and then all over the country, they will be taken over. That is overbroad”, Hegde urged.
Deprecating a recent trend of litigants bypassing High Courts, the bench noted that the High Court would be in a better position to ascertain the issues, as some of the books forfeited are by locals of the area. It also rejected a prayer to have the matter decided by another High Court, remarking that the same would be “demoralizing”.
“Having regard to issues sought to be raised, we are satisfied that the petitioner can seek redressal thereof effectively by way of writ petition under Article 226. [Case is] disposed of with liberty to the petitioner to raise the contentions before High Court. We request Chief Justice of High Court to list before a 3-judge bench presided over by His Lordship and make an endeavor to decide it at the earliest. No opinion has been expressed on merits”, Justice Kant dictated.
On August 5, the J&K Home Department issued the impugned notification, stating therein that the identified 25 books were “found to excite secessionism and endangering sovereignty and integrity of India, thereby, attracting the provisions of sections 152, 196 & 197 of Bhartiya Nyaya Sanhita 2023”.
Issued by the order of the Lieutenant Governor, this notification further said that the subject works of literature “would deeply impact the psyche of youth by promoting culture of grievance, victim hood and terrorist heroism”. “Some of the means by which this literature has contributed to the radicalization of youth in J&K include distortion of historical facts, glorification of terrorists, vilification of security forces, religious radicalization, promotion of alienation, pathway to violence and terrorism etc”, it added.
The notification linked radicalization of youth and terrorist activities to “the systematic dissemination of false narratives and secessionist literature” disguised as historical or political commentary. In exercise of Section 98 BNSS, it directed that the publications of the 25 books, their copies and other documents be forfeited to the government.
Background
The impugned notification identified and declared as ‘forfeited’ books, including – Indian political scientist Sumantra Bose’s “Contested Lands” and “Kashmir at the Cross Roads (Inside a 21st Century Conflict)”, renowned Indian scholar A.G. Noorani’s “The Kashmir Dispute 1947-2012”, Indian journalist Anuradha Bhasin’s “A Dismantled State (The Untold Story of Kashmir after Article 370)”, Indian author and political activist Arundhati Roy’s “Azadi”, and “Kashmir & the future of South Asia” (edited by Indian historian and politician Sugata Bose alongwith Pakistani-American historian Ayesha Jalal).
Section 98 of BNSS, in exercise of which the J&K government declared the 25 books as forfeited, reads thus:
“(1) Where— (a) any newspaper, or book; or (b) any document, wherever printed, appears to the State Government to contain any matter the publication of which is punishable under section 152 or section 196 or section 197 or section 294 or section 295 or section 299 of the Bharatiya Nyaya Sanhita, 2023 (45 of 2023), the State Government may, by notification, stating the grounds of its 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 Government, and thereupon any police officer may seize the same wherever found in India and any Magistrate may by warrant authorise 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.
(2) In this section and in section 99,—
(a) “newspaper” and “book” have the same meanings as in the Press and Registration of Books Act, 1867 (25 of 1867);
(b) “document” includes any painting, drawing or photograph, or other visible representation.
(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 99. (LiveLaw)
