B.A., LLB [HONS.

]
SECOND SEMESTER-APRIL 2022
RESEARCH PROJECT

TOPIC;:SHIVAJI;HINDU KING IN ISLAMIC INDIA{AGAINST THE BAN]

SIBMITTED TO;
DR RAKESH NAMBIAR
ASSISTANT PROFESSOR
SCHOOL OF LAW,NMIMS[DEEMED-TO-BE UNIVERSITY}

SUBMITTED BY;
JAI SHARMA
A070
 INDEX

S. No. Particulars Page No.

1 Introduction to The Case 3

2 Facts of The Case 4

3 Legal Provisions 5-6

4 Judicial History 6

5 Analysis: Arguments 7-8

6 Counter Arguments 9-10

7 Conclusion & Prayer 11-12

8 Bibliography 12-13
INTRODUCTION

In 2003 Oxford University Press released a book by James W. Laine, Shivaji:

Hindu King in Islamic India, just as the monsoon's storms were arriving in the
subcontinent. The book offered a fascinating inquiry into the historiography
surrounding the Marathi monarch Sivaji (1627-80), who is best known throughout
India, and in the Western academy, as a Hindu king who heroically challenged the
archetypically villainous Indian Muslim ruler, Aurangzeb (1658-1707). In Shivaji
Laine it is brilliantly detailed how Marathi historians, biographers and
hagiographers have spun Sivaji's legacy into a Hindu one and set it against a
constructed Muslim enemy. Furthermore, Laine showed that in Sivaji's own time,
and largely under his control, Sivaji himself nurtured the persona of a kingly Hindu
Kshatriya (warrior) through his coronation ceremony in 1674 at Raigad, in
Maharashtra
On 5 January 2004 a group calling itself the Sambhaji Brigade attacked the
Bhandarkar Oriental Research Institute (BORI) in Pune, in the state of
Maharashtra, India. The attack was the preliminary culmination in a series of
increasingly disturbing and destructive events that were triggered by the
publication of James W. Laine's Shivaji: Hindu King in Islamic India (Oxford
University Press, 2003). Laine's book sparked controversy in India, leading Oxford
University Press India to withdraw it from the local market in November 2003.
This did not sufficiently appease those upset by the book. American professor
Laine had done some of the research for his book at BORI, and he thanked the
institute and some scholars affiliated with it in his acknowledgements; the institute
and its members were then targeted by those angered by the book. In December
2003 one of those thanked by Laine, historian Shrikant Bahulkar, was assaulted,
his face blackened by Shiv Sena activists.
FACTS OF THE CASE
[State of Maharashtra v. Sangharaj Damodar Rupawate, (2010) 7 SCC 398]

By a Notification dated 20-12-2006 issued under Section 95(1) CrPC, the

Maharashtra Government directed forfeiture of every copy of the book “Shivaji –
Hindu King in Islamic India” written by one Prof. James W. Laine. The
notification indicated that in the opinion of the Government, the circulation of the
said book, containing scurrilous and derogatory references to Shivaji, had resulted
in causing enmity between various communities and had led to acts of violence and
disharmony and that any further circulation of the said book was likely to result in
breach of peace and public tranquility. The said opinion was based on the grounds
that the author had made several derogatory references, specified in the schedule
appended to the notification, regarding Shivaji, in particular about his parentage
and the Bhosle family; the said derogatory references were prejudicial to the
maintenance of harmony between different groups and had disturbed the public
tranquility, the publication and circulation of the book had not only already
resulted in causing enmity between the persons who revered Shivaji and other
persons who might not so revere him but was likely to continuously cause such
enmity. For publication of the book an FIR for offences under Sections 153 and
153-A read with Section 34 IPC had been registered against the author. In a
petition filed under Section 96 CrPC read with Article 226 of the Constitution by
the respondents herein and certain others, the High Court set aside and quashed the
said notification. The State then filed the appeal thereagainst by special leave.
LEGAL PROVISONS
Section 153 in The Indian Penal Code
153. Wantonly giving provocation with intent to cause riot—if rioting be
committed—if not committed.—Whoever malignantly, or wantonly, by doing
anything which is illegal, gives provocation to any person intending or knowing it
to be likely that such provocation will cause the offence of rioting to be committed,
shall, if the offence of rioting be committed in consequence of such provocation,
be punished with imprisonment of either de-scription for a term which may extend
to one year, or with fine, or with both; and if the offence of rioting be not
committed, with imprisonment of either description for a term which may extend
to six months, or with fine, or with both.
Section 153 (a) in The Indian Penal Code
Promoting enmity between different groups on grounds of religion, race, place of
birth, residence, language, etc., and doing acts prejudicial to maintenance of
harmony.—
(1) Whoever—
(a) by words, either spoken or written, or by signs or by visible representations or
otherwise, promotes or attempts to promote, on grounds of religion, race, place of
birth, residence, language, caste or community or any other ground whatsoever,
disharmony or feelings of enmity, hatred or ill-will between different reli-gious,
racial, language or regional groups or castes or communi-ties, or
(b) commits any act which is prejudicial to the maintenance of harmony between
different religious, racial, language or regional groups or castes or communities,
and which disturbs or is likely to disturb the public tranquillity, 2[or] 2[(c)
organizes any exercise, movement, drill or other similar activity intending that the
participants in such activity shall use or be trained to use criminal force or violence
or knowing it to be likely that the participants in such activity will use or be trained
to use criminal force or violence, or participates in such activity intending to use or
be trained to use criminal force or violence or knowing it to be likely that the
partici-pants in such activity will use or be trained to use criminal force or
violence, against any religious, racial, language or regional group or caste or
community and such activity for any reason whatsoever causes or is likely to cause
fear or alarm or a feeling of insecurity amongst members of such religious, racial,
language or regional group or caste or community,] shall be punished with
imprisonment which may extend to three years, or with fine, or with both. Offence
committed in place of worship, etc.—(2) Whoever commits an offence specified in
sub-section (1) in any place of worship or in any assembly engaged in the
performance of religious wor-ship or religious ceremonies, shall be punished with
imprisonment which may extend to five years and shall also be liable to fine.

Section 295 (a) in The Indian Penal Code

Deliberate and malicious acts, intended to outrage reli-gious feelings of any class
by insulting its religion or reli-gious beliefs.—Whoever, with deliberate and
malicious intention of outraging the religious feelings of any class of 273 [citizens of
India], 274 [by words, either spoken or written, or by signs or by visible
representations or otherwise], insults or attempts to insult the religion or the
religious beliefs of that class, shall be punished with imprisonment of either
description for a term which may extend to 4[three years], or with fine, or with
both.

JUDICIAL PRECEDENTS
Ushaben Navinchandra Trivedi vs Bhagyalaxmi Chitra Mandir on 12
February, 1976
India being a home to several faiths and religions, blasphemy and matters of
religious interests have been dealt with seriously in the past.
Ms. Usha wants to file a suit against Bhagyalaxmi Theatre praying for a permanent
injunction (stay order) restraining the theatre from running the film named “Jai
Santoshi Maa”. Her contention is that the film hurt her religious feelings and
sentiments as Goddess Saraswati, Laxmi and Parvati were depicted as jealous and
were ridiculed. She cannot file a suit because injury to religious feelings is not a
legally recognized right.
ARGUMENTS
• Stray lines can’t be used to ban this book says Supreme court:
While lifting the ban on James Laine’s book on Shivaji, the Supreme Court
maintained that governments can’t extract stray sentences from portions of a book
and decide that the whole book needs to be banned.
• The effect of the words used in the offending material must be judged
from the standards of reasonable, strong-minded, firm and courageous
men, and not those of weak and vacillating minds, nor of those who scent
danger in every hostile point of view
Laine writing: “Maharashtrians tell jokes naughtily that Shivaji’s biological father
was Dadoji Kondeo Kulkarni”).
This statement – indeed, even the mere suggestion – is apparently considered an
outrageous insult and defamation of Shivaji, Shahaji, and Shivaji’s mother, Jijabai.
The claim is also widely considered unfounded and gratuitous; apparently this
particular ‘naughty joke’ is not familiar to most Maharashtrians (or at least none
appear to have come forward acknowledging that they’ve heard this sort of banter).

• Most of the events took place after Laine’s book had officially been
withdrawn from the Indian market, i.e. essentially no longer existed.
The banning of the book and the attacks on BORI and various scholars were thus
clearly aimed not only at this specific case, but at the whole enterprise of
scholarship, and of freedom of expression.
It cannot be found out from the notification as to which communities got
outraged by the publication of the book or it had caused hatred and animosity
between particular communities or group
The statement in the notification to the effect that the book is “likely to result in
breach of peace and public tranquility and in particular between those who revere
Shri Chhatrapati Shivaji Maharaj and those who may not” is too vague a ground to
satisfy the afore- enumerated tests.
Moreover, the High Court has also noted that the learned Associate Advocate
General was unable to produce or disclose any material or information to find out
as to which were the groups based on religion, race, language or religion or caste
or communities who do not revere Shri Chhatrapati Shivaji Maharaj.
If that be so, no fault can be found with the finding of the High Court to the effect
that there is nothing on record on the basis whereof the Government could form the
opinion that the book was likely to promote disharmony or feeling of enmity
between various groups or likely to cause disturbance to public tranquility and
maintenance of harmony between various groups.

• Laine did not write The Epic of Shivaji.

It is a direct translation of Sivabharata, a Sanskrit text written by Kavindra
Paramananda.

• OXFORD University Press (OUP), India, published the book in June

2003.
In August and September 2003, Marathi publications Sakal and Samna (the Shiv
Sena’s mouthpiece) wrote positively about the book. In fact, the Sena daily called it
a “good reference text

• Going Through Negative slump

It is believed that Bhonsle, who considers himself to be the original
protector of Shivaji’s legend by virtue of his lineage, was going through a
political slump.
He not only lost the last Assembly elections to a cousin but also got a bad
image after he was arrested in connection with the murder of an NCP
activist in 1999. So, clearly the political situation in the country must have
determined the banning a book that will definitely gain them support,
politically.
COUNTER ARGUMENTS
1- Under section 295A in the Indian Penal Code, hurting or intending to hurt
the sentiments of a certain community or religious group is considered a
crime that shall be punished with imprisonment of either description for a
term which may extend to 3 years or with fine or with both.

Supreme Court has lifted the ban on James Laine's controversial book on Shivaji.
Supreme court is the apex court of India and its decision are rational. If the book
ban was lifted then it is to be believed that the decision is correct. This book didn't
hurt feelings of any person or religion. It has just stated the facts and have just
made people know the past. It has affected the fundamental right to freedom of
speech and expression. The conditions statutorily mandated for exercise of power
under Section 95 of the Code [for banning a book] are lacking and therefore, the
action of the government cannot be sustainedz the Supreme court said in a 36-page
verdict.

2- The book “Shivaji: Hindu King in Islamic India” written by American

professor James Laine has deeply hurt the sentiments of a large section of people
in Maharashtra and all over India. It contains certain parts where it sheds a
negative light not only on the highly worshipped and celebrated king , Shivaji
Maharaj but also his mother, which in turn leads to dissent among people who
uphold and celebrate his legacy to this date...

Shivaji was undoubtedly a great man who was highly revered. We live in a
democracy and people should have the freedom of speech and expression. Even In
August and September 2003, Marathi publications Sakal and Samna (the Shiv
Sena's mouthpiece) wrote positively about the book. In fact, the Sena daily called it
a "good reference text" (quoted in "Censorship and Censureship).
3- Not only does the book incite anger and leads to dissent among the people of the
Marathi community but also through its contents and it’s title, divide two major
communities of India , namely, Hindu and Muslim which in turn, leads to further
worsening of the already fragile relations between the two communities .

Laine didn't write anything out of box. He wrote what happened in the past. He
stated the facts and let people know the truth.

4- Books are a powerful medium that can be constructively used to strengthen and
improve the sensitive balance between disputed communities rather than
worsening it.

Stray lines can’t be used to ban book. Even the Supreme Court maintained that
governments can’t extract stray sentences from portions of a book and decide that
the whole book needs to be banned.The effect of the words used in the offending
material must be judged from the standards of reasonable, strong-minded, firm and
courageous men, and not those of weak and vacillating minds, nor of those who
scent danger in every hostile point of view.

5- This particular piece of liters has proven to be more destructive and disturbing
than constructive and uniting for the population at large and hence , should be
banned for the foreseeable future..

It is manifest that the notification does not identify the communities between
which the book had caused or is likely to cause enmity.

Therefore, it cannot be found out from the notification as to which communities

got outraged by the publication of the book or it had caused hatred and animosity
between particular communities or groups.
CONCLUSION

Undoubtedly, the power to forfeit a newspaper, book or document is a drastic

power in as much as it not only has a direct impact upon the due exercise of a
cherished right of freedom of speech and expression as envisaged in Article
19(1)(a) of the Constitution, it also clothes a police officer to seize the infringing
copies of the book, document or newspaper and to search places where they are
reasonably suspected to be found, again impinging upon the right of privacy.
It is manifest that the notification does not identify the communities between
which the book had caused or is likely to cause enmity. Therefore, it cannot be
found out from the notification as to which communities got outraged by the
publication of the book or it had caused hatred and animosity between particular
communities or groups.
The High Court had, in its order, said the notification issued by the State
government was not sustainable in the light of the apex court’s order which had
quashed criminal proceedings against Mr. Laine over allegations that the book
promoted social enmity.
Laine and all the people involved in the making of this book faced death threats
and suffered for a long time for writing something that has already been said
before. India as a national, prides itself on the fact that its secular and peace loving
and at the same time people of the country try to destory everything and anything
that might be aginst their personal views. In total honesty India is becoming a
totalitarian nation rather than a democratic one.
PRAYER

Therefore, it is prayed, in the light of issues raised, arguments advanced

and authorities cited, that this Hon’ble Court may be pleased to:

HOLD, The ban on Book Shivaji: Hindu king in Islamic India (1996) by James
Laine lawful under Section 153 of the Indian Penal Code, Article 19(1) of the
Indian Constitution and Article 25 of the Indian Constitution.
DECLARE, the riots and protests against the book uncalled for and violation of
Fundamental Rights of the people.

And pass any order that this Hon’ble court may deem fit in the interest
of equity, justice and good conscience.

BIBLIOGRAPHY
• The Laine Controversy and the Study of Hinduism, JSTOR (2010),
https://www.jstor.org/stable/20106888?seq=1 (last visited Apr 2, 2022).

• Supreme Court AOR Examination – Leading Cases – State of Maharashtra

v. Sangharaj Damodar Rupawate, (2010) 7 SCC 398 | Tilak Marg,
Tilakmarg.com (2015), https://tilakmarg.com/notes/supreme-court-aor-
examination-leading-cases-state-of-maharashtra-v-sangharaj-damodar-
rupawate-2010-7-scc-398/ (last visited Apr 12, 2022).

• The reserved, James Laine s Shivaji: Hindu King in Islamic India and the
attack on the Bhandarkar Oriental Research Institute - the complete review
 Quarterly Complete-review.com (2022), https://www.complete-
review.com/quarterly/vol5/issue1/laine0.htm#intro (last visited Apr 12,
2022).
• Politics of Shivaji: The James Laine Affair, JSTOR,
https://www.jstor.org/stable/4419597?seq=1 (last visited Apr 1, 2022).
• https://indiankanoon.org/doc/1218090/ Article 19 in The Constitution of
India 1949, 21st June 3Pm
• https://indiankanoon.org/doc/631708/ Article 25 in The Constitution of India
1949, 21st June 3Pm
• https://indiankanoon.org/doc/345634/#:~:text=%E2%80%94(2)%20Whoeve
r%20commits%20an,also%20be
• %20liable%20to%20fine.%5D Section 153A in The Indian Penal Code, 21st
June 3Pm