- (1.) THIS is a petition under Article 226 of the Constitution. The prayer in the petition is that the following notification dated 18th August, 1966 published in the Gazette of India dated 27th August, 1966 be quashed: "Whereas in the opinion of the Central Government the book entitled "Tashkent Declaration and the Problem of Indo-Pak Minorities" written by Dr. A. J. Farid_I and printed at Chowdhury Press, 7 Zamir Mansion, Gwynne Road, Lucknow, contains prejudicial reports as defined in clause (7) of Rule 35 of the Defence of India Rules, 1962; Now, therefore, in exercise of the powers conferred by Rule 45 of the Defence of India Rules, 1962, the Central Government hereby- (a) prohibits the sale or distribution of the said book or any extract therefrom or of any translation thereof and declares the said book and every copy or transla tion thereof or extract therefrom, to be forfeited to Government; and (b) directs every person possessing any copy of the said book to deliver the same to the local police authorities." It Is a matter of common knowledge that on September 8, 1962 the Chinese attacked the northern border of India and that constituted a threat to the security of India. That is why on October 26, 1962 the President issued a Proclamation under Article 352 of the Constitution. This Proclamation declared that a "rave emergency existed whereby the security of India was threatened by external aggression. On the same day the Ordi nance was promulgated by the President. This Ordinance was amended by Ordinance No. 6 of 1962 promulgated on November 3, 1962. On this day, the President issued the Order under Art. 359(1), suspending the rights of citizens to move any Court for the enforcement of the rights conferred by Articles 21 and 22 of the Constitution for the period during which the proclamation of emergency Issued on October 26, 1962 would be in force. On November 6, 1962 the rules framed by the Central Government were published. Then followed an amendment of the Presidential Order on November 11, 1962. By this amendment for the words and figures "Article 21" the words and figures "Articles 14 and 21" were sub stituted. On December 6, 1962 Rule 30 as originally framed was amended and Rule 30-A added. Last came the Act on December 12, 1962. Section 48(1) of the Act has provided for the repeal of the Ordinance Nos. 4 and 6 of 1962. Sec. 48(2) provides that notwithstanding such repeal, any rules made, anything done or any action taken under the aforesaid two Ordinances shall be deemed to have been made, done or taken under the Act as if this Act had commenced on October 26, 1962. That is how the rules made under the Ordinance continued to be the rules under the Act and it is under Rule 45 that the impugned action was taken when the emergency was still in force. It may here be noted that the emergency came to an end in January. 1968.
(2.) AS Is well known Indo-Pakistan war broke out in September, 1965. It came to an end as a result of an agreement reached between India and Pakistan in January, 1966 popularly called "Tashkent Declaration". The petitioner published the booklet entitled "Tashkent Declaration and the Problem of Indo-Pak Minorities" in February, 1966. According to the petitioner, Jan Sangh which is a communal body, started propaganda against the said booklet so much so that a calling attention motion regarding it was admitted by the Speaker of the U.P. Legislative Assembly on llth April, 1966. Organizer, a weekly newspaper issued from Delhi commented adversely on this booklet in its issue dated 12th June, 1966 characterising it as a communal propa ganda. Sri Atal Behari Bajpayee, one of the leaders of the Jan Sangh party and a member of the Raiya Sabha gave notice on 20th June, 1966 of the question reproduced in paragraph 17 of the petition to be answered on the floor of the Rajya Sabha. The Deputy Minister answered that question on 20th August, 1966 stating that the Government of India had proscribed the booklet. The impugned notification was actually published subse quent thereto on August 27, 1966. From these facts the inference drawn by the petitioner as formulated in paragraph 21 of the petition is that the Central Government in taking the impugned actioji was influenced by the propaganda carried on by the Jan Sangh party and its action was arbitrary and mala fide. The above is one set of facts as set forth in the petition. The other set of facts is to be gathered from what is stated in paragraph 22 onwards. Briefly stated the case of the petitioner is that he incurred the displeasure of Sri Syed Ali Zaheer, the then Minister for Justice in the U.P. Government, by insisting on the Nagar Mahapalika to take action against Sri Syed Ali Zaheer for the removal of the encroachment committed by him by making his boundary wall after including a portion of the municipal land within the same. As stated in the petition, questions regarding the alleged encroachment by Sri Syed Ali Zaheer were put on the floor of the U.P. Assembly on 19th February 1965 and Sri Syed Ali Zaheer got a letter published in the National Herald dated 17th March, 1965 explaining his position in regard to the accusations made against him in respect of the alleg ed encroachment of municipal land. It is further pointed out that before the booklet was actually proscribed by the Central Government, it was in consultation with the Law Department of the State Government of which Sri Syed Ali Zaheer was in charge in capacity of Minister for Justice and, according to the petitioner, the Law Department of the State of Uttar Pradesh after examining the book found it objectionable and rcommended action against the petitioner with the result that it came to be proscribed in accordance with that recom mendation.
(3.) THE petitioner alleges that the booklet in question does not contain any objectionable matter and no reasonable person on its examination can come to a conclusion that it contains prejudicial reports as defined in clause (7) of Rule 35 of the Defence of India Rules, 1962. In his affidavit dated 6th September, 1968 the petitioner points out that much worse publications extracts from which have been filed as annexures 'A' to 'F' to the said affidavit escaped action at the hands of the Central Government and accordingly the impugned action deserves to be struck down as discriminatory. The main ground on which the impugned notifica tion is challenged is that the Central Government issued it without applying its mind and, as such, acted mala fide.;