THE ORDER TO BAN THE BOOK IS ULTRA VIRES

It is humbly submitted before the Hon’ble Court that Order to ban the book by Respondent is
ultra vires and unconstitutional to the provisions mentioned under Section 95 (b) of Cr.PC.
The Order is merely based on the express reference to the fact that there was a divergence of
views between the communities in the State and to overcome their inability to maintain the
law and order, the Respondent have issued the Order.

It is pertinent to note that Natural justice is an essential element of the procedure established
by law. The concept of natural justice implies 'fair play in action'. Fair play in action demands
that before any prejudicial or adverse action is taken against a person, he must be given an
opportunity to be heard.1

Conditions for validity of an order of forfeiture. For the validity of an order of forfeiture two
things are necessary :(i) that the Government had formed the opinion that concerning
document contains any matter the publication of which is punishable under Sections 153-A or
295-A of the Penal Code; (ii) that the Government has stated in the order the grounds which
had led to the formation of the opinion. If either of the two conditions are not complied with,
the High Court must set aside the order of forfeiture.2

The vague and ambiguous scope of the Order makes it vulnerable to being struck down as
arbitrary and disproportionate as it does not provide grounds of opinion by the Respondent as
it was mentioned in Section 95 (a) of Cr.PC.

In Sangharaj Damodar Rupawati & others v. Nitin Gadre and others3, it was held that there
was failure by the State to show that publication has resulted in disturbance of public
tranquility or maintenance of public harmony between various groups. Mere vandalization of
a research institute after publication of book is not sufficient to justify forfeiture. Hence
notification declaring forfeiture of book was held liable to be quashed. Further it was held
that there is no formulation of opinion by the State Government reflected in the notification.
Neither any opinion by the State Government is stated, though that is mandatory. Total
absence of such expression of opinion, therefore, vitiates the impugned declaration of
forfeiture.

1
Barjinder Singh vs State Of Punjab Through The Chief 1993
2
Sadhu Singh Hamdrad Trust v. State of Punjab, 1992 Cr. L.J. 1002 (Punj & Har); Ser also M/s. Varsha
Publications v. State of Maharashtra, 1993 Cr. L.J. 1446.
3
Also, in Mohammed Khalid v. Chief Commissioner of Delhi4, it was held that the grounds of
opinion are vital and essential part of the notification because it is those grounds which would
reveal the justification for the issuance of the notification. A notification which does not
incorporate the grounds of the opinion, would not be in conformity with law. The law in this
respect has to be substantially complied with and it is not enough to merely reproduce the
language of the relevant sections of the Penal Code without specifying as to how or in what
manner there has been contravention of the provisions of those sections. The High Court may
set aside the order of forfeiture where no grounds are stated by the Government in the
notification or where the court is not satisfied that the opinion could have been arrived at on
the grounds stated in the notification.5

It is brought to the kind notice of the Court that in the instant case grounds of the opinion
have to be stated in the Order. The grounds of opinion must mean conclusion of and on facts,
on which the opinion is based. A mere repetition of an opinion or reproduction of the relevant
statutory provision will not answer the requirement of a valid notification. The validity of the
order would depend upon the merits of the grounds. There is no such ground stated in the
impugned Order by the Respondent and just cited the provisions from IPC which does not
validate the Order to ban the book.

STARTING It is contended that a law interfering with the freedom of speech and expression
and imposing a punishment for its breach is ultra-vires since the procedure adopted by the
Respondent interferes with the Part III of the Constitution. 

It is pointed out that under Art.19 (1) (a) and (g) of the Constitution gives a citizen to have a
right to freedom of speech and expression and to practice any profession or to carry on any
occupation, trade or business.6 It was observed by the Supreme Court that no person can live
without the means of living, that is, the means of livelihood and the easiest way of depriving
a person of his right to life would be to deprive him of his means of livelihood to the point of
abrogation.7

In the present case, the Respondent have banned the publication of book by its Order due to
which the Petitioner have lost his means of livelihood because the publication of the book
was the only manner through which the Petitioner can earn and live his life with dignity.

5
Harman Dass v. State of Up 1961
6

7
Bombay Pavement Dweller's case [A.I.R. 1986 S.C. 180],
Since the Order has deprived out his right to speech and expression and right to occupation,
the Petitioner cannot enjoy his livelihood enshrined under Article 21 of the Constitution.

In Anand Chintamani Dighe v. State of Maharashtra8, the court held that the forfeiture of the
book by the state govt. order as the notification did not set out facts which formed the basis of
opinion of the State Government. The Court, therefore, held that it did not fulfil the
mandatory requirement of Section 95 (1), Cr.P.C. Mere reference of Sections 153-A and 295-
A of I.P.C. in the notification could not save notification against consequences of invalidity.
The State Government had exercised its powers under Section 95 extraneously and, therefore,
the forfeiture of the Book was ultra vires the Section 95 (1).