SENTHIL MALLAR V GOVERNMENT OF TAMIL NADU

SENTHIL MALLAR V GOVERNMENT OF TAMIL NADU W.P.Nos.17615 of 2013 and 31237 of 2016 and MP.No.2 of 2013, WMP.Nos.27107 and 27108 of 2016

The bench constituting of  Hon’ble Justice M.M.Sundresh,Hon’ble Justice Pushpa Sathyanarayana and Hon’ble Justice R.Mahadevan dismissed both the writ petitions, that is, both W.P. No. 17615/2013 and W.P. No. 313237/2016

Why were W.P. No. 17615/2013 and W.P. No. 313237/2016 filed?

The Writ Petition in W.P No.17615/2013 has been filed to quash the impugned notification No.146 dated 30.05.2013 published by the first respondent in Tamil Nadu Government Gazette Extraordinary, whereby the book ‘Meendezhum Pandiyar Varalaru’ (‘TAMIL) written by the petitioner, has been forfeited by invoking the powers under Section 95 Cr.P.C on the ground that the contents therein are abusive and in the nature of promoting enmity between different castes. The Writ Petition in W.P.No.31237/2016 has been filed to quash the impugned notification No.182 dated 19.08.2015 published by the respondent Government in Tamil Nadu Government Gazette Extraordinary, whereby the book ‘Venthar Kulathin Iruppidam Ethu?’ (‘TAMIL’) written by the petitioner, which is a continuation of the earlier book, the subject matter of W.P.No.17615/2013, was ordered to be forfeited by invoking the powers under Section 95 Cr.P.C. Since the petitioner has authored both the books, both the writ petitions were clubbed and heard together, by consent of both the parties.

The Writ petitions was filed under Article 226 of the Constitution of India praying to issue a writ of Certiorari to call for the records from the respondent pertaining to the impugned notifications No.146 dated 30.05.2013 and No.182 dated 19.08.2015 respectively published through Tamil Nadu Government Gazette (Extraordinary) and quash the same.

Whether the above mentioned notifications No.146 dated 30.05.2013 and No. 182 dated 19.08.2015 can be quashed due to it violating the Fundamental Rights under our Constitution?

The petitioner argued that his work was purely sociological and determined to remove the stigma on the caste by declassifying the Pallar community from being categorised as ‘Adi-dravidars’ and ‘Dalits’, and thereby filed W.P. No. 31237 of 2016 alleging that the impugned notifications are in violation of Articles 14, 19(1)(a) and 21 of the Constitution of India. It was contended that the right to freedom of speech and expression is constitutionally protected, the contents of the books unless hit by Article 19(2), cannot be banned and in the present case, it cannot be said so. Under such circumstances, contending that the banning of both the books by invoking Section 95 (1) (a) of Cr.P.C as arbitrary and violating the freedom of speech, expression and personal liberty, the learned counsel sought to quash the impugned orders in both the writ petitions and allow the books to be released.

The State, on the other hand, in the counter affidavit, has justified the forfeiture of both the books. The Government order itself contains the extracts which strikingly are

provocative and entice violence disrupting the public harmony and peace in the state with various castes and sub-castes. The impugned orders were justified, contending that the right guaranteed under Article 19 (1)(a) is not absolute and would be subject to restrictions under Article 19 (2) and therefore, the state was very much well within its right to pass the impugned orders forfeiting the books. Further, as per Section 95 Cr.P.C, a book can be forfeited, if the publication and circulation of the same would lead to commission of offences punishable under Sections 124A or section 153A or section 153B or section 292 or section 293 or section 295A of the Indian Penal Code (45 of 1860 ).It was further contended that it is not necessary to give any opportunity when an official Gazette publication is effected invoking the powers under Section 95 of Cr.P.C and hence there is no abridgment of the fundamental rights.  The contents of the book are only the matter and the object of the same does not matter. The language and contents reveal that the intention of the author is to spread hatred and disharmony under the guise of research and therefore, the impugned orders which were passed after getting the intelligence report, are well within the authority of the respondent.

The Honourable High Court answered the contention that no opportunity was afforded to the petitioner before the impugned orders were passed and made the following observations:

“The purpose of Section 95 Cr.P.C is to prevent the disruption of public harmony, tranquility and peace, when it is instigated in the objectionable material in the opinion of the Government. It is sufficient, if the contents cause sufficient apprehensions about the incitement of violence between different classes of people. It is not a punitive action. It is an imminent action failing which, the purpose of Article 19 (2) and Section 95 of Cr.P.C would become redundant.

Therefore, we are of the view that while invoking the powers under Section 95, it is not necessary to hear the author of the book before passing orders and hence, the orders are not arbitrary.”

In this regard, it is appropriate to look into the judgment reported in 1985 Cr.L.J 797 (Pat), wherein, it has been held thus:

“The purpose here is preventive and not punitive. In view of the large scale public mischief apprehended, it is sought to be nipped in the bud by straightaway forfeiting the publications.” In the decision reported in 1993 Cr.L.J 2040 (P& H), the Punjab and Haryana High Court has observed as follows:

“It is not practicable to give opportunity of being heard to the person concerned before passing the order of forfeiture under Section 95.”

The Honourable Court stated,

“As rightly contended by the Learned Advocate General, the benefits of being caste under the Schedule are enjoyed by the members of the petitioner’s community. The petitioner cannot call himself as the voice of his community. Moreover, the notification or de-notification of a caste from the schedule or another category are within the domain of the Ministry of Social Justice and Empowerment. The decisions are still taken on the basis of social and economic factors by the National Commission for Scheduled Castes and the National Commission for Backward classes. It is always open to the petitioner to approach the appropriate Ministry.”

Thereby, it was held by the Honourable High Court of Madras that with the above directions, both the writ petitions are disposed of with no costs and consequently, any connected miscellaneous petitions are disposed of.

View/Download Judgment: K.Senthil Kumar Mallar v. The government of Tamil Nadu & anr.

– Tanvi Srivatsan

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