ANAND CHINTAMANI DIGHE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) ON 3rd December, 1998, the Government of Maharashtra, in exercise of powers conferred by section 95 (1) of the Code of Criminal Procedure, 1973, declared that every copy, including the manuscript or any other form of the play entitled "mee Nathuram Godse Boltoy" and its translations in Gujarati or any other language shall stand forfeited to Government. The Gujarati translation of the original in Marathi is entitled "gandhi Ke Godse". In these proceedings, the order of forfeiture has been sought to be impugned. In view of the provisions of sub-section (2) of section 96 of the Code, the petition has been heard by a Special Bench of three Judges. In the petition as originally filed, the writer of the play was the second petitioner before the Court. The first petitioner claimed that he was a social worker, inter alia, working for an institution known by the name and style of the "hindu Manch" of the District of Thane. The first petitioner has since expired, after the matter was heard and judgment was reserved. The name of the first petitioner is deleted from the array of parties and the petition is disposed of on the basis that the writer of the play who is now the sole petitioner moves the Court for relief against the order of forfeiture.

(2.) TRANSLATED literally, the title of the play "mee Nathuram Godse Boltoy" means "i am Nathuram Godse Speaking". The play was written in 1988. The Gujarati version of the play was approved by the Censor Board without any deletion and it was stated before us that 25 performances of the play in Gujarati took place. The Maharashtra Stage Performances Scrutiny Board granted in November 1997, its authorisation for the staging of the performances of the play. The permission granted by the Board on 26th November, 1997, a copy of which is placed in the file tendered to the Court on behalf of the State Government by the Learned Additional Advocate General shows that permission for staging the play was granted without the exclusion or deletion of any part thereof. The underlying report dated 24th November, 1997 of Smt. Lalita Bapat, a Member of the Scrutiny Board, set out that there was nothing objectionable in the play and that accordingly, permission should be granted for staging the play in the "universal Category", meaning thereby that it was suitable for general viewing. The play was accordingly staged from time to time. According to the petitioner, an emoted reading of the play was slated to take place on 19th May, 2000 at the Gadkari Rangayatan, Thane at 9 p. m. before a private audience consisting of persons invited by the Hindu Manch. In the course of a meeting held on 15th May, 2000 with the Commissioner of Police, Thane, the petitioner was informed, this being also recorded by a letter of the said date, that the scripts of the play in Marathi, Gujarati and all other languages had been forfeited to the State Government by a notification dated 3rd December, 1998. The petitioner was, in the circumstances, informed that since all the scripts of the play have been forfeited to Government, no performance of the play should be staged as planned. According to the petitioner, the notification of the Government dated 3rd December, 1998 was not served on him at any date prior to the communication of the Police Commissioner and the petitioner was unaware of the order of forfeiture. The order of forfeiture which has been passed by the State Government, brief as it is, may be extracted hereinafter since it is upon the validity of that order that the claim for relief in these proceedings must depend. The order provides thus: "whereas it appears to the Government of Maharashtra that the script of the Marathi play "mee Nathuram Godse Boltoy" written by Shri Pradeep Dalvi, published in the form of printed document (containing 23 pages) and its Gujarathi translation "gandhi Ke Godse" contains derogatory references towards Mahatma Gandhi and certain communities, which are likely to disturb the public tranquility, promote disharmony or feelings of enmity, hatred or ill-will among the different groups or communities; And whereas the reading of the said play shows that it is written with deliberate and malicious intention to outrage the feelings of the persons who follow and believe in the teachings of Mahatma Gandhi; and whereas the Government of Maharashtra is of the opinion that the publication of the said play is punishable under sections 153-A and 295-A of the Indian Penal Code (45 of 1960); now, therefore, in exercise of the powers conferred by sub-section (1) of section 95 of the Code of Criminal Procedure, 1973 (2 of 1994) the Government of Maharashtra hereby declares that the every copy (including manuscript or any other form) of the said play, in Marathi and translation thereof in Gujarathi or any other languages, shall be forfeited to Government. " The petitioner has also adverted to the fact that on 17th May, 2000 an order came to be passed and served under section 144 of the Code of Criminal Procedure, 1973 prohibiting the petitioner from holding the stage performance which was proposed to be held on 19th May, 2000 within the jurisdiction of the Thane Police Commissioner.

(3.) THE learned Additional Advocate General has placed before the Court, the relevant files containing the decisions formulated in regard to the play which form the subject matter of these proceedings. Affidavits have been filed in these proceedings on behalf of the State and the concerned authorities. The learned Additional Advocate General relies upon a decision taken by the State Cabinet on 18th July, 1998 for prohibiting the staging of performances of the play. The decision of the cabinet has also been relied upon in the affidavit in reply dated 16th June, 2001 and is annexed as Exhibit 3 to the affidavit sworn by Shri Satish R. Patankar, Desk Officer in the General Administration Department of the State Government. The decision which was taken on 18th July, 1998 was to prohibit the performances of the play. The decision records that it was based upon the possibility of a deterioration in the law and order situation and upon the advice of the Central Government that a prohibition should be imposed on the performances of the play in Marathi, Gujarati and other languages. The cabinet decision, it must be noted, was in the matter of prohibiting the stage performances of the play and did not authorise action under section 95 of the Code of Criminal Procedure, 1973 of forfeiting the script of the play. Following the decision of the cabinet of 18th July, 1998, a communication dated 21st July, 1998 was addressed by the Desk Officer in the Home Department to the Commissioner of Police, Greater Bombay calling upon him to cancel the performance licences which had been granted for the staging of the play. The affidavit in reply in these proceedings also adverts to a letter dated 17th July, 1998 addressed by the Additional Secretary to the Government of India in the Ministry of Home Affairs to the Chief Secretary of the Government of Maharashtra. The letter of the Union Government was in response to a communication dated 16th July, 1998 addressed on behalf of the State Government to the Joint Secretary in the Ministry of Home Affairs. The communication addressed by the State Government sets out that the Maharashtra Stage Performances Scrutiny Board had granted Censor clearance for the performance of the play. According to the said communication, Smt. Lalita Bapat, a member of the Board had cleared the script on 24th November, 1997 certifying that she did not find anything objectionable in the script and that consequently the play be certified in the "universal" Category of viewership. The Chairman of the Board while issuing the certificate had clarified that no cut had been directed to be made in the script. The play, it was stated, was staged on 10th July, 1998 at the Shivaji Mandir Theatre, at Dadar, Mumbai. In response to the aforesaid letter of the State Government, the Additional Secretary in the Ministry of Home Affairs, Government of India, addressed a letter dated 17th July, 1998 which has been placed on the record of the proceedings as Exhibit 1 to the affidavit in reply dated 16th June, 2001. The letter of the Union Government was to the following effect: