- (1.) This appeal by special leave arises out of the judgment of the Karnataka High Court whereby the petition made by the tenth petitioner under Section 96 of the Code Of Criminal Procedure, 1973 for setting aside of the Notification dated 27th June 1997, forfeiting all copies of the novel "Dharmakaarana" under Section 95 of the Code, has been dismissed.
(2.) The matter arises out of the following facts : Basaveshwara, a great saint of the 12th Century, also known as "Basavanna" was born in Bagewadi in Bijapur District, Karnataka State. His elder sister Akkanagamma was a saintly woman. Her son Channabasaveshwara too grew up to be a great social reformer and a preacher of Veerashaivism, a religious sect, and of the Basava Philosophy. The family consisted of individuals of progressive thought who sought to promote social reform in Hindu society and for that purpose preached that all were equal. Petitioner No.11 Dr. P.V. Narayanna published a novel in 1995 entitled "Dharmakaarana" portraying the story of Basaveshwara, Akkanagamma and Channabasaveshwara narrated in first person, the narrator being Basaveshwara himself. The book was selected by the Karnataka Sahitya Academy for its annual award as the best novel for the year 1995. It appears that some eminent figures in the field of literature and otherwise, including Shri B.D. Jatti, the former Vice-President of India wrote to the State Government that some of the statements made therein were objectionable, inflammatory, hurtful and insulting to the sentiments and feelings of the Veerashaivas and the followers of Basaveshwara, and suggested that the novel should be forfeited. It also appears that the Akhila Bharat Veerashaiva Mahasabha filed a suit in the City Civil Court at Bangalore seeking an injunction restraining the Government from conferring the award on the Author and for an order banning the publication and sale of the book on which such an order was in fact made. Faced with this delicate situation, the State Government issued a Notification dated 27th March 1997 under Section 95 of the Code Of Criminal Procedure, 1973 (hereinafter called the 'Code'), ordering the forfeiture of the book. A petition was thereafter filed under Section 96 of the Code and while the matter was yet pending (and observing that the notification had not been issued by the competent authority) the State Government withdrew the said Notification and issued a fresh one on 27th June 1997. A petition under Section 96 of the Code was again filed by the Author Dr. P.V. Narayana, on which the matter was referred for decision to a Bench of 3-Judges under sub-Section (2) of Section 96 thereof. The Judges examined the matter in extenso and by their judgment & Order dated 16th April 1998 dismissed the petition. This judgment has been impugned before us after special leave. The Court relying on several judgments of this Court and High Courts held that an order under Section 95 of the Code was justified if it appeared to the State Government that the published material contained objectionable matter and that such matter was maliciously intended to promote feelings of enmity and hatred between different classes of the citizens of India as envisaged under Sections 124-A, 153-A, 153-B, 292, 293 and 295-A of the Indian Penal Code, 1860, and that such a Notification could not be said to be ultra-vires of Article 19(1)(a) of the Constitution Of India, 1950 as it was a reasonable restriction imposable under the Article. It further observed that the onus to prove that the publication did not fall within the parameters of Section 95 of the Code rested on the person who challenged the Notification by filing a petition under Section 96. The Court then went on to examine the facts of the case in the background of the legal position and observed that the story projected by the author in Chapter 12 that Channabasaveshwara was the illegitimate son of Akkanagamma as he had been conceived out of wedlock was indeed hurtful . The Court further held that the allegation that it was the public odium that had followed the pregnancy that had compelled Basaveshwara and Akkanagamma to leave their home at Bagewadi and shift to Koondusama was again an unwarranted accusation and without any basis. The Court finally found that the explanation tendered by the author for the change of residence was the subject matter of a raging debate amongst historians and religious functionaries and he had merely adopted this story for the Novel, was unacceptable and without any foundation.
(3.) It is these circumstances that the matter has come before us.;