ISSUE 1: WHETHER THE PETITION FILED BY MR.

SLOVAS MISHI IN INSTANT

CASE IS MAINTAINABLE OR NOT?

[¶1] It is humbly contended that the instant writ petition filed by Mr. Slovas Mishi is
maintainable under Article 226 of Indian constitution read with Sec. 482 of Code of Criminal
Procedure. The Petitioner seeks to establish that; (A) The petitioner has a bona fide interest
and hence he has a locus standi, (B) There was violation of fundamental rights & there exists
substantial questions of law, (C) There is no requirement for the Petitioner to exhaust
alternate remedies as (i) Principle of Res Sub Judice will not apply in the instant case and (ii)
The rule of exhaustion of alternate remedies is not binding on this Hon'ble Court if there is
violation of fundamental rights and (D) The Hon’ble Court is a “Sentinel on the Qui Vive”,
(E) This Hon'ble Court has an obligation to entertain the instant petition.

(A)The petitioner has a locus standi

[¶2] It is most humbly submitted that, this Hon'ble Court itself has held that a writ petition
which complains of violation of fundamental rights is maintainable. 1 “Locus standi” is right
of party to appear and be heard on question before any tribunal. 2 In other words, the term
“locus standi” can be understood as legal capacity to challenge legislation, an order or a
decision.3 Further, if court finds question raised to be of substantial public interest, issue of
locus standi of person placing relevant facts and materials before court becomes irrelevant.4

[¶3] Furthermore, the petitioner will be deemed to have sufficient interest to maintain a
petition as a member of the public because it is the right of the public to be governed by laws
made in accordance with the Constitution and not laws made by the legislature in violation of
the constitutional provisions.5 In arguedno, rights of Mr. Slovas Mishi to practice his freedom
of speech and expression is in question.6 Hence, the matter concerned is a matter of public
interest and national importance. Hence, it is humbly submitted before this court that the
matters involve question of law of general public importance and therefore, the petition is
maintainable under article 226 of the Constitution of India.

1
Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802.
2
Wharton’s Law Lexicon, 15th Edn. p.1019 (2009).
3
Ramchandran V.G., Law of Writs, 26, 6th Edition (2006).
4
T.N. GodavarmanThirumulkpad v. UOI, (1997) 2 SCC 267.
5
D.C. Wadhwa v. State of Bihar, AIR 1987 SC 579.
6
Moot Compromise, Para 21
[¶4] To invoke the writ jurisdiction it is not necessary that the fundamental right must have
been actually infringed even a threat to the same would be sufficient. 7 In M Janardhan Rao v.
Joint Commissioner of Income Tax,8 it has been held that facts and circumstances of case
must contain substantial question of law for a petition to be maintainable. 9 Applying doctrine
of ‘reasonable apprehension’, this Hon’ble Court may interfere directly in said case.10 Public
Function is one which “seeks to achieve some collective benefit for public”. 11 Further under
well-established doctrine of Parens Patriae, it is obligation of State to protect and take into
custody rights and privileges of its citizens for discharging its obligations.12

(B) There was violation of fundamental rights and exist Substantial Questions of Law

[¶5] It is submitted that Part III of the Constitution which deals with “Fundamental rights” is
regarded as the basic structure of the Constitution. 13 The doctrine of basic structure not only
applies against the amendments under the exercise of constituent power 14 but also against
exercise of legislative15 and executive power.16 The fundamental rights are fundamental in the
sense that human liberty is predicated on their availability and vice versa, and thus they
cannot be waived.17The facts and the circumstances of the case must disclose a substantial
question of law for a petition to be maintainable.18 In casu, which clearly shows that
fundamental right has been infringed so this writ petition must be declared maintainable.19

[¶6] Further in order to establish violation of Article 21, the act should be subjected to the
equality test of Article 1420 and test of reasonableness under Article 19.21 Article 14 strikes at
arbitrariness because it negates equality22 and permeates the entire fabric of Rule of Law.23
Therefore, every action of State must be guided by reason for public good and not by whim,
7
Roop Chand v. State of Punjab, AIR 1963 SC 1503; Maganbhai v. Union of India, AIR 1969 SC 783; D.A.V
College v. State of Punjab, AIR 1971 SC 1731.
8
M Janardhan Rao v. Joint Commissioner of Income Tax, (2005) 2 SCC 324.
9
Sakti Steel Traders vs. Ashok Chakraborty and Ors. MANU (1992) 2 CALLT 279 HC.
10
Susmita Gayen vs. The State of West Bengal and Ors. MANU (2021) WB 84 HC.
11
Binny Ltd. And Anr. v. Sadasivan and Ors. AIR 2005 SC 320.
12
Charan Lal Sahu v. Union of India, AIR 1990 SC 1480.
13
I.R Colho v. State of Tamil Nadu, (1998) 7 SCC 550.
14
Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225; Smt. Indira Nehru Gandhi v. Raj Narain, 1975
Supp. SCC 1.
15
Waman Rao v. Union of India, (1981) 2 SCC 362.
16
S.R Bommai v. Union of India, (1994) 3 SCC 2.
17
Basheshar Nah v. I.T. Commissioner, AIR 1959 SC 149; Olga Tellis v. Bombay Municipal Corporaion, AIR
1986 SC 180; Nar Singh Pal v. UOI, 3 SCC 589.
18
M. Janardhan Rao v. Joint Commissioner of Income Tax, (2005) 2 SCC 324.
19
Moot Proposition, para 21
20
Balaram Poddar and Ors. v. Bhaskar Chandra Mondal and Ors. MANU (1998) WB 0147 HC.
21
Maneka Gandhi v. Union of India, AIR 1978 SC 597.
22
Suresh Chandra Sharma v. Chairman, AIR 2005 SC 2021.
23
Bachan Singh v. State of Punjab, AIR 1982 SC 1325.
caprice, and abuse of power.24 Article 19 provides that a restriction can be characterized to be
reasonable if it strikes a balance between the fundamental right and restriction imposed
thereon.25 Liberty of individual and protection of the FR are very essence of democratic way
of life adopted by constitution, and it is privilege and duty of this court to uphold those
rights.26 When the petitioner establishes infringement of his FR, the court has no discretion
but to issue an appropriate writ in his favor.27

(C) There is no requirement for the Petitioner to exhaust alternative remedies

(i) Principle of Res Sub Judice will not apply in the instant case

[¶7] It is contended that Supreme Court has held that High Courts can, in exercise of its
powers under Section 482 of the Code of Criminal Procedure, quash criminal proceedings
even with respect to non-compoundable offences after taking into account the nature and
heinousness of the offence and other factual aspects.28

[¶8] “Under Article 226 of the Constitution, the High Court, having regard to the facts of the
case, has a discretion to entertain or not to entertain a writ petition. 29 But the High Court has
imposed upon itself certain restrictions one of which is that if an effective and efficacious
remedy is available30, the High Court would not normally exercise its jurisdiction. 31 But the
alternative remedy has been consistently held by this Court not to operate as a bar in at least
three contingencies32, namely, where the writ petition has been filed for the enforcement of
any of the Fundamental Rights33 or where there has been a violation of the principle of
natural justice or where the order or proceedings are wholly without jurisdiction or the vires
of an Act is challenged.”34

[¶9] Where there is well-founded allegation that fundamental right has been infringed
alternative remedy is no bar for entertaining writ petition and granting relief. 35 In Prem
Chand Garg, it was held that this right is absolute and may not be impaired on any ground. 36
24
Haryana Development Authority v. Dropadi Devi, (2005) 9 SCC 514.
25
Om Kumar v. Union of India, AIR 2000 SC 3689.
26
Daryao v. State of UP, AIR 1961 SC 1457.
27
T.N. GodavarmanThirumulkpad v. UOI, (1997) 2 SCC 267.
28
Ramgopal v. State of Madhya Pradesh, AIR 1968 MP 188.
29
Ajoy Kumar Ghosh v. The State of West Bengal and Ors. MANU (1994) WBHC 520.
30
The University of Calcutta and Ors. v. Shyamal Kumar Das and Ors. MANU (1984) WBHC 401.
31
United Province Electric Supply Co. and Ors. vs. Industrial Tribunal (III) Allahabad and Ors. MANU (1974)
WBHC 0428.
32
Jai Ram Manohar Lal v. National Building Material Supply Gurgaon MANU (1969) SC 0016.
33
State of Rajasthan v. Prakash Chand and Ors. MANU (1998) SC 0807.
34
Whirlpool Corporation v. Registrar of Trademarks, Mumbai, (1998) 8 SCC 1.
35
State of Bombay v. United motors Ltd. AIR 1953 SC 252.
36
Prem Chand Garg v. Excise Commissioner, AIR 1963 SC 996.
The mere existence of an adequate alternative legal remedy cannot be per se be a good and
sufficient ground for throwing out a petition under Art. 226 if the existence of a fundamental
right and a breach, actual or threatened, of such right and is alleged is prima facie established
on the petition.37 Moreover, this Hon’ble Court has on multiple occasions expressly rejected
an argument that called for exhaustion of local remedies.38 Further a Full Bench Judgement in
case of Ram Pal Yadav v. State of U.P.39 is clear and categorical that unless there is a matter
pending before the subordinate court no application under S.482, CrPC can be entertained by
H.C.40 In other words it means that till the stage of Criminal Investigation of a criminal case
and thereafter till the filing of charge sheet and taking cognizance of the offence by the court,
no application can be made in H.C. For quashing the FIR or investigation U/s 482 CrPC.

(ii) The rule of exhaustion of alternate remedies is not binding on this Hon'ble Court if
there is violation of fundamental rights

[¶10] The power under Article 226 of the Constitution to issue writs can be exercised not
only for the enforcement of fundamental rights, but for any other purpose as well. 41 “In an
appropriate case, in spite of availability of the alternative remedy, the High Court may still
exercise its writ jurisdiction in at least three contingencies: (i) where the writ petition seeks
enforcement of any of the fundamental rights; (ii) where there is failure of principles of
natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the
vires of an Act is challenged.”42

[¶11] A rule of self-imposed restraint by the judiciary that requires exhaustion of local
remedies constitutes an extra-constitutional partial suspension and is therefore,
unconstitutional.43 The Constitutional obligation of this Hon'ble Court as the guarantor of
fundamental rights has been interpreted broadly44 and as one that exists independent of any
other remedy that may be available.45 This is particularly true in cases of grave public

37
K.K. Kouchunni v. State of Madras, AIR 1959 SC 725.
38
Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1295; Romesh Thappar v. The State of Madras, AIR
1950 SC 124.
39
Ram Pal Yadav v. State of U.P, (1989) CrLJ 1013.
40
A.N. Sehgal and Ors. v. Raje Ram Sheoram and Ors. MANU (1991) SC 0333.
41
Radha Krishna Industries v. State of Himachal Pradesh, AIR 2021 SC 334.
42
Harbanslal Sahnia v. Indian Oil Corpn. Ltd, (2003) 2 SCC 107.
43
A.N. Sehgal and Ors. v. Raje Ram Sheoram and Ors. MANU (1991) SC 0333.
44
MC Mehta v. Union of India, AIR 1987 SC 1086.
45
Nilabati Behera v. State of Orissa, AIR 1993 SC 1960.
importance.46 Consequently, it is submitted that a refusal to entertain instant petition would be
inconsistent with constitutional obligation.47

[¶12] The existence of an alternative remedy does not operate as an absolute bar on the writ
court48 as it is a process that the court chooses to opt out of convenience and discretion. 49
Under special circumstances the High Court may grant writ remedies to a Petitioner even
with the existence of an alternative remedy.50 Where public functionaries are involved and the
matter relates to the violation of Fundamental Rights or the enforcement of public duties 51,
the remedy would still be available under the Public Law notwithstanding that a suit could be
filed for damages under Private Law.52 Thus the existence of an alternative remedy is no
ground for refusing writ, where there has been a contravention of fundamental right.53

(D) The Hon’ble Court is a “Sentinel on the Qui Vive”

[¶13] This Hon’ble Court has repeatedly assumed the role of the “sentinel on the qui vive” 54
to enforce fundamental rights of the people. It is humbly submitted that in light of the
prevailing circumstances in Indica, which continuously depriving the fundamental rights of
Mr. Slovas Mishi. It is the duty of the Courts to examine the merits of each case with respect
to the prevailing situation, looking at the fundamental rights violations which restrict to
follow its religion in unreasonable manner.55 Hence, the case involves the matter of general
public importance and it directly and substantially affects the rights of the parties as the order
is erroneous and prejudicial to the interest of the petitioners.56 It was held by the Hon'ble
Court in the case of Confederation of All Nagaland State Services Employees' Assn. v. State
of Nagaland,57 that the writ petitions should be agitated at the first instance before the High
Court of Judicature exercise of its power under Art. 226 of the Constitution.58

46
The J.K. Cotton Spinning and Weaving Mills Co. Ltd. vs. The State of Uttar Pradesh and Ors. MANU (1960)
SC 0287.
47
Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 129.; Romesh Thappar v. The State of Madras, AIR
1950 SC 124.
48
Shivram Poddar v. ITO, AIR 1964 SC 1095.; also see JUSTICE B L HANSARIA’S, WRIT JURSIDICTION
(3 ed. 2005).
49
JUSTICE B L HANSARIA’S, WRIT JURSIDICTION (3 ed. 2005); Union of India v. Hidalco Industries
(2003) 5 SCC 194.; Union of India v. Bajaj Tempo Ltd., (1998) 9 SCC 281.
50
Whirlpool Corporation v. Registrar of Trade Marks, (1998) 8 SCC 1.
51
S. Gopal Reddy v. State of Andhra Pradesh, MANU (1996) SC 055.
52
The Chairman, Railway Board & Ors v. Mrs. Chandrima Das & Ors., (2000) 2 SCC 465.
53
Himmatlal v. State of M.P., (1954) SCR 1122.
54
State of Madras v. V.G. Row, AIR 1952 SC 196.
55
Moot Compromise, Para 2
56
Ajeet Singh Singhvi and Ors. v. State of Rajasthan, MANU (1991) SC 0652.
57
Confederation of All Nagaland State Services Employees' Assn. v. State of Nagaland, (2006) 1 SCC 496.
58
Ahmedabad Municipal Corpn. and Ors. v. Nilaybhai R. Thakore and Ors. MANU (1999) SC 0669.
[¶14] It is humbly submitted that substantial and grave injustice has been done to the rights of
the petitioner and that the case in question presents features of sufficient gravity to warrant a
review of the decision appealed against.59 Where writ petition is challenging the
Constitutional validity of any provision, then the petitioner should file writ petition before
High Court under Art. 226 of the Constitution. 60 In Kanubhai Brahmbhatt v. State of
Gujarat,61 the Supreme Court held that a petitioner claiming of infraction of his fundamental
right should approach High Court rather Supreme Court in the first instance as High Court
under Art. 226 has much wider than the powers of the Supreme Court under Art. 32 of the
Constitution.62

(E) This Hon'ble Court has an obligation to entertain the instant petition

[¶15] It is contended that there is no bar to the maintainability of a quashing petition under
section 482 of Criminal Procedure Code, 1973 (CRPC) even where the chargesheet has been
filed.63 Writ Jurisdiction Under Article 226 Can Be Invoked To Quash FIR If It Is Found To
Be Abuse Of Process Of Law.64 The courts have the obligation to satisfy the social
aspirations of the citizens because the courts and the law are for the people and expected to
respond to their aspirations.65 It is well settled that Article 226 confers a discretionary power
on the High Courts to make or issue appropriate orders and writs for the enforcement of any
of the rights conferred by Part III of the Constitution66 or for any other purpose.67

[¶16] Whenever there is infringement of a fundamental right, no question of delay arises for
consideration.68 It is humbly submitted that the petitioner is entitled to relief because, the
infringement of fundamental rights, as conferred by the provisions of Part III of Constitution,
is involved in this application. 69 Hence, writ petition can be filed with respect to such
infringement.70 It is urged that the banning of book is in violation Art. 19 (1) (a) and (g) and
the same have been issued without any basis and thereby tantamount to abuse of the

59
M. Pentiah and Ors. v. Muddala Veeramallappa and Ors. MANU (1960) SC 0263.
60
State of West Bengal v. Ratnagiri Engineering Private Limited, (2010) 4 SCC 453.
61
Kanubhai Brahmbhatt v. State of Gujarat, AIR 1987 SC 1159.
62
P.N. Kumar v. Municipal Corp of Delhi, (1988) 1 SCR 732.
63
Anand Kumar Mohatta and Anr v. State (Government of NCT of Delhi) AIR 2019 SC 210.
64
Arnab Manoranjan Goswami vs. The State of Maharashtra and Ors. MANU (2020) SC 902.
65
Durga Das Basu, Commentary on the Constitution of India (Nagpur: LexisNexis Butterworth Wadhwa, p.
6719, Vol. 6, 8 th ed., 2012).
66
Bannari Amman Sugars Ltd. v. C.T.O., (2005) 6 SCC 625.
67
Udai Bhan Singh v. State of U.P. & Ors., AIR 1974 All 202.
68
Haji Suleman Yusuf Bhat v. Custodian of Evacuee Property, AIR 1954 Madh B 173.
69
S. G. Jaisinghani v. Union Of India And Ors., AIR 1967 SC 1427.
70
Alok Mittal & Ors. v. Government of Haryana & Ors., 2008 (98) SLJ 369 CAT.
process.71 Freedom of speech and freedom of trade are the basic features of a democratic
system.72

[¶17] Thus, banning of books and registration of FIR amounts to gross violation of
fundamental rights of the Petitioners. 73 Rather, the police should evolve a mechanism to
ensure law and order without infringing the fundamental right to expression and right to trade
and other basic rights guaranteed by the Constitution.74

Hence, it must be declared by this Hon’ble Court that the instant writ petition is
maintainable.

ISSUE 2: WHETHER THE BAN ON SALE , PURCHASE OR CIRCULATION OF BOOK

‘BLOOD AND FIRE IN TAPOVAST’ IN ANY MANNER IS VIOLATIVE OF
FUNDAMENTAL RIGHTS?

[¶18] It is humbly submitted before this Hon’ble court that the ban on sale, purchase or
circulation of book ‘Blood and fire in Tapovast’ in any manner is violative of fundamental
rights of speech and expression. The petitioner to this extent seeks to established that the
fundamental right has been violated. (A) Ban of the Book titled ‘Blood and Fire in Tapovast’
is in Violation of right to speech and expression under Art. 19(1)(a). (B) Ban of the sale,
purchase or circulation of the Book is in Violation of right to practise any profession under
Art. 19(1)(g), (C) The Book ‘Blood and Fire in Tapovast’ not fall within the ambit of Art. 19
(2) i.e., reasonable restrictions as Slovas’ work is not against the National security, Friendly
relations with other nations State and public order. (D) the Book ‘Blood and Fire in Tapovast'
not harming the public morality and decency as it gets disqualified with the Test of obscenity
and it not spreading the Hate rates. Lastly, (E) Ban of the Book is in Violation of right to
livelihood under Art. 21.

(A) Ban of the Book titled ‘Blood and Fire in Tapovast’ is in Violation of right to speech
and expression under Art. 19(1)(a)

[¶19] It is humbly submitted that the Art. 19(1)(a) mandate that the all citizens shall have the
right to freedom of speech and expression75 as the Justice Patanjali has rightfully held that
71
Moot Proposition, para 21
72
In Re: Ramlila Maidan Incident v. Home Secretary & Ors., (2012) 5 SCC 1.
73
M. Kasirajan v. The District Collector, AIR 2013 SC 210.
74
K. Thiagarajan @ Thozhar Thaigu v. The Commissioner of Police, AIR 2013 SC 203.
75
INDIAN CONST. art. 19, § 1, cl.(a).
19(1)(g) is the very basis and essence of the constitution and our democracy. 76 Freedom of
speech and expression also includes artistic speech as it includes the right to paint, sign,
dance, write poetry, literature and is covered by Article 19(1)(a) because the common basic
characteristic of all these activities is freedom of speech and expression, 77 further this
protection is available to the speaker as well as the recipient. 78 It occupies a preferred position
in the hierarchy liberties giving succour and protection to all other liberties. It is the mother
of all liberties.79

[¶20] Further, Patanjali Shastri, J. in A.K. Gopalan case, observed, “man as a rational being
desires to do many things, but in a civil society his desires will have to be controlled with the
exercise of similar desires by other individuals”. 80 The freedom of Speech and Expression is
indeed a very high one as recently the Apex Court in Khushboo v. Kannaiammal,81 upholds
the right to freedom of speech and expression. The ultimate goal of every democratic state is
that “no idea should go unheard”82 as the human personality finds it maximum development
in an atmosphere of free speech and expression.83 The reasonableness of the restraint would
have to be judged by the magnitude of the evil which it is the purpose of the restraint to curb
or to eliminate.84 The Court does not have the power to restrict speech, censor films, ban
books, and force people to say (or not to say) certain things. What the Court does have the
power to do is to review State action that falls under the above categories, and test it for
constitutionality.85

[¶21] Furthermore, the issue of ban on sale, purchase or circulation 86 has discussed by this
Hon’ble court i.e., whether ‘advertising’ would fall under the scope of this Art. 87 also the
freedom of the press is regarded as a “species of which freedom of expression is a genus” 88
and the Apex court has observed that the right to freedom of speech cannot be taken away

76
Romesh Thappar v Union of India, AIR 1950 SC 124.
77
Maneka Gandhi v. Union of India AIR 1978 SC 597.
78
Tata Press v. MTNL AIR 1995 SC 2438.
79
Report of the Second Press Comm., Vol. I,34-35.
80
A.K Gopalan v State of Madras, AIR 1950 SC.
81
Khushboo v. Kannaiammal, (2010) 5 SCC 600.
82
Sakal Papers v. Union of India, AIR 1962 SC 305.
83
C.K.N. Raja, Freedom of speech and expression, Under the constitution of India and the United States,
Karnataka University, Dharwad, p.9, (1979).
84
Collector of Customs v. Sampathu Chetty, 1963 AIR SC 316.
85
Union of India v Naveen Jindal, (2004) 2 SCC 510.
86
Moot Proposition, para 19.
87
Odyssey Communications Pvt., Ltd. v. Lok Vidyayan Sanghatana, AIR 1988 SC 1642.
88
Sakal Papers v. Union of India, AIR 1962 SC 305.
with the object of placing restrictions on the business activities of citizens, 89 as this right is
extended to right to communicate and circulate information through any medium including
print media, audio, television broadcast or electronic media, 90 there is no separate guarantee
of freedom of the press and the same is included in the freedom of expression, which is
conferred on all citizens.91 The purpose of the press is to advance the public interest by
publishing facts and opinions.92 Freedom of speech and expression includes right to impart
and receive information which includes freedom to hold opinions”. 93 The poet assumes his
own freedom which is allowed to him by the fundamental concept of poetry.
He is free to depart from reality; fly away from grammar; walk in glory by not following
systematic metres.94

(B) Ban of the sale, purchase or circulation of the Book is in Violation of right to
practise any profession under Art. 19(1)(g)

[¶22] It is humbly submitted that the ban of the sale, purchase or circulation of the Book95 has
violated the constitutional mandate of Art.19(1)(g) which states that all citizens shall have the
right to practise any profession, or to carry on any occupation, trade or business. 96 “The
limitation imposed on the freedom should be reasonable and not arbitrary or excessive, or
beyond what is required in the situation in interest of general public.” 97 Where a statute
empowers the specified authority to take preventive action against citizens, it is essential that
it should expressly make it the duty of the said authority to satisfy themselves fully before
exercising such power”98 however, no such satisfaction shown by the authority. Hon’ble SC
has observed that the right to carry on trade or business envisaged in Article 19(1)(g) of the
Constitution is also subject to statutory regulation. 99In N. Radhakrishnan v. Union of India, 100
it's a slippery slope when it comes to deciding what can be published, what is ignorant, what
is moral, what is vulgar and what is obscene. Something that offends one person may not
offend the other and vice versa.
89
Bennet and Coleman & Co. v. Union of India (1973) 2 SCR 757., also see; Indian Express Newspapers
(Bombay) P. Ltd v. Union of India, (1985) SCC 1 641.
90
Maneka Gandhi v. Union of India AIR 1978 SC 597.
91
Virender v. State of Punjab, AIR 1958 SC 986.; Sakal Papers v. Union of India AIR 1962 SC 305.
92
Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India. AIR 1986 SC 515.
93
Union of India v. Assn. for Democratic Reforms, (2002) 5 SCC 294.
94
Devidas Ramachandran Tuljapurkar v. State of Maharashtra & Others, (2015) 6 SCC 1.
95
Moot Proposition, para 19.
96
INDIAN CONST. art. 19, § 1, cl.(g).
97
MRF Limited v. Inspector, Kerala Government, AIR 1999 SC 188.
98
The State of Madhya Pradesh v. Baldeo Prasad, (1961) SCR 1 970.
99
Sushila Saw Mill v. the State of Orissa, (1995) SCC 5 615.
100
Radhakrishnan v. Union of India, (2018) 9 SCC 725.
[¶23] Further, right to carry on any occupation, trade or business is fundamental Under
Article 19(1)(g) as such, such restriction could have been imposed by enacting a law, 101
human rights are derived from the dignity and worth inherent in the human person. 102
valuable right as provided under Article 19(1)(g) is available to all the citizens who are free
to choose any trade, business, profession etc.103 In Indian Handicrafts Emporium v. Union of
India,104 the fundamental right to trade has to be balanced with demands of social interest,
however in this present case many people have praised his work as a classic piece of modern
literature.105

(C) The Book ‘Blood and Fire in Tapovast’ not fall within the ambit of Art. 19 (2) i.e.,
reasonable restrictions

[¶24] It is humbly submitted that the, hon’ble SC has refused to ban the controversial book
saying every author or writer has a fundamental right to speak out ideas freely and express
thoughts adequately.106 For a law or decision to be called proportionate, it must pass all the
four stages i.e., Legitimate goal stage, suitability or rational connection stage, necessity stage,
balancing stage in the test of proportionality. 107 In determining reasonableness of a restriction,
the under the average prudent man standard108 and is guided cripples, viz., the restriction
must, (i) strike a balance between freedom and social control; 109 (ii) bear a rational and direct
relation to the object that the legislature seeks to control; 110 and (iii) not be arbitrary or
excessive.111 However, this post argues that the ban being a prima facie violation of Article
19(1)(g) needed to be examined and scrutinised thoroughly within the framework of the
doctrine of proportionality.112 Though the Supreme Court of India has applied (and
interpreted) the doctrine of proportionality, this post focuses on the four-limb test laid down
in Modern Dental College v. State of M.P.113

[¶25] Further, any law which be made under Clauses (2) to (6) of Article 19 to regulate the
exercise of the right to the freedoms guaranteed by Article 19(1)(a) to (e) and (g) must be 'a
101
Union of India v. Mool Chand Khairati Ram Trust, MANU (2018) SC 0716.
102
Valsamma Paul v. Cochin University, MANU (1996) 3 SCC 545.
103
B.P. Sharma vs. Union of India and Ors, MANU (2003) SC 0598.
104
Indian Handicrafts Emporium v. Union of India, AIR 2003 SC 3240.
105
Moot Proposition, para 20.
106
L.N.V. Veeranjaneyulu v. Union of India and Ors. MANU (2017) SCOR 450.
107
Modern Dental College & Research Centre v. State of Madhya Pradesh & Ors., (2016) 7 SCC 353.
108
H.B. Khare v. State of Delhi, AIR 1950 SC 211.
109
Dwarka Prasad v. State of Uttar Pradesh, AIR 1954 SC 224.
110
Arunachala Nadar v. State of Madras, AIR 1959 SC 300.
111
Romesh Thapper v. State of Madras, AIR 1950 SCR 594.
112
Farooq Ahmed v. Union Territory of J&K, AIR 2021 SC 764.
113
Modern Dental College v. State of M.P, (2016) 7 SCC 353.
law' having statutory force and not a mere executive or departmental instruction." 114 the main
purpose of restricting the exercise of the right is to strike a balance between individual
freedom and social control.115 If there is a direct nexus between the restrictions and the object
of the Act, then a strong presumption in favour of the constitutionality of the Act will
naturally arise.116 Prevailing social values as also social needs which are intended to be
satisfied by restrictions have to be borne in mind. 117 However in this present case no kind of
satisfaction have shown as the people who read this book found it to be the work of art.118

(i) Slovas’ work is not against the National security

[¶26] It is submitted that the slovas’ work is based on the historical facts, the Trus, who are
original inhabitants of the Tapovast region in Indicus,119 and merely in the name of national
security and safeguarding the state, the author cannot be subjected to arrest and detention
because it is violative of freedom of expression,120 it was not a necessary interference with his
rights in a democratic society 121
also observed in Vereniging Weekblad Bluf v.
Netherlands.122

[¶27] Further, the exercise freedoms, since it carries with it duties and responsibilities, maybe
subject restrictions or penalties as are prescribed by law and are necessary in a democratic
society, in the interests of national security. 123 In State of Bihar v. Shailabala Devi,124 Hon’ble
Apex Court observed that the gestures, graphical representation having a high probability of
causing the problem in the state can be restricted and are covered within the purview of
Article 19(2). Reasonable restrictions can be imposed on the freedom of speech and
expression, in the interest of the security of the State. 125 However no part of this book contain
any statement or chapter which is against the national security, even this book is the outcome
of 10-year research126 and intellectual labour.

114
Bijoe Emmanuel and ors. v. State of Kerala, MANU (1986) 3 SCC 615.
115
Saghir Ahmad and Anr. v. State of U.P. and Ors, (1955) 1 SCR 707., also see: J.K. Industries Ltd. v. Chief
Inspector of Factories and Boilers, (1997) ILLJ 722 SC.
116
Kavalappara Akottarathil Kochuni v. States of Madras, AIR 1960 SC 1080, O.K. Ghosh v. E.X. Joseph,
(1960) 3 SCR 887.
117
State of UP. v. Kaushaliya, MANU (1964) 4 SCR 1002.
118
Moot Proposition, para 17.
119
Moot Proposition, para 1.
120
Mukong v. Cameroon, (1995) 2 IHRR 131.
121
Okcuoglu v. Turkey, (1999) ECHR 42.
122
Vereniging Weekblad Bluf v. Netherlands, (1995) ECHR 3.
123
Subramanian Swamy vs. Union of India and Ors, MANU (2016) SC 0621.
124
State of Bihar v. Shailabala Devi, (1952) SCR 654.
125
People’s Union for Civil Liberties (PUCL) v. Union of India, (2002) 3 SCR 294.
126
Moot Proposition, para 2.
 (ii) Slovas’ work is not affecting the Friendly relations with other nations State

[¶28] It is humbly submitted that the Slovas had put his heart and soul in writing and research
which not affecting the friendly relation127 and the State can impose reasonable restrictions on
the freedom of speech and expression, if it hampers the friendly relations of India with other
State or States.128 The question is rather the extent to which it is necessary to qualify the one
right in order to protect the underlying value which is protected by the other and the extent of
the qualification must be proportionate to the need, 129 as it is an attribute that must, just as
much as freedom of expression, be protected by society's laws, 130 although the State
empowered to impose "reasonable restrictions" on the freedom of speech and expression "in
the interests of the security of the State, friendly relations with foreign States.131

[¶29] Further, the right to freedom of speech and expression has been described as the
"touchstone of individual liberty" and "the indispensable condition of nearly every form of
freedom."132 The plain meaning of the clause guaranteeing free speech and expression is that
Indian citizens are entitled to exercise that right wherever they choose, regardless of
geographical considerations, subject of course to the operation of any existing law or the
power of the State to make a law imposing reasonable restrictions in the security of the State,
friendly relations with foreign States provided in Article 19(2).133 However nothing in this
book affecting the friendly relation.

(iii) Slovas work is not against the public order

[¶30] The standard of morality changes with changing times,134 as the public order135 was
added in order to meet the situation arising from the Hon’ble SC decision in Romesh
Thapar’s, case.136 As per hon’ble SC, public order is different from law and order and
security of state,137 the expression 'public order' connotes the sense of public peace, safety and
tranquillity.138 According to the Court, “public order” was synonymous with public

127
Moot Proposition, para 2.
128
The Constitution (First Amendment) Act of 1951.
129
Doughlas v. Hellol Ltd. (2001) QB 967.
130
Hill v. Church of Scientology of Toronto, (1995) 2 SCR 1130.
131
Subramanian Swamy v. Union of India and Ors, MANU (2016) SC 0621.
132
Palko v. Connecticut, (1937) 302 US 319.
133
Maneka Gandhi v. Union of India AIR 1978 SC 597.
134
Ranjit. Udeshi v. State of Maharashtra, AIR 1965 SC 881.
135
The Constitution (First Amendment) Act, 1951.
136
Romesh Thapper v. State of Madras, 1950 SCR 594.
137
Kishori Mohan v. State of West Bengal, (1972) 3 SCC 845.
138
Om Prakash v. Emperor, AIR 1948 Nag, 199.
tranquillity and peace, while undermining the security of, or tending to overthrow the State. 139
The newly-minted Article 19(2) came to be interpreted by the Supreme Court, it was
contended that while some instances of outraging religious beliefs would lead to public
disorder,140 in this case no public order has been violated in any manner as many people
praised his.141

[¶31] Further, it would defer to the government’s determination of when public order was
jeopardised by speech or expression.142 However, in Superintendent, Central Prison v. Ram
Manohar Lohia,143 the Supreme Court changed its position, and held that there must be a
“proximate” relationship between speech and public disorder, and that it must not be remote,
fanciful or far-fetched. However, in this present case, book shops and stalls selling Book
were vandalised by the Trus people but those who read the book found it to be a work of
art,144 it is clear to seen that the public order has intentionally disturb by the Trus people.

(D) The Book ‘Blood and Fire in Tapovast' not harming the public morality and decency

[¶32] It is humbly submitted that the Book of Slovas not harming the public morality and
decency as it is a work of fiction based on the historical facts, 145 hon’ble SC held in Bal
Thackeray v. Prabhakar Kashinath Kunte,146 that “the ordinary dictionary meaning of
‘decency’ indicates that the action must be in conformity with the current standards of
behaviour or propriety, etc. For reasons both textual and philosophical, mistaken in equating
“morality” with either “public morality” or “individual morality”; and that, in the alternative,
the best interpretation was reading it to mean “constitutional morality” 147 as it subjective in
nature in the sense that what is wrong for that may right for other and vice-versa. Same
references can be drawn as because one side peoples are against the book, other side reading
the same they were found it as a part of art, 148 even many films producer has appreciated the
work. “An expression of opinion in favour of non-dogmatic and non- conventional morality
has to be tolerated as the same cannot be a ground to penalise the author.”149

(i) It gets disqualified with the Test of obscenity

139
Brij Bhushan vs State of Delhi, AIR 1950 SC 129.
140
Ramji Lal Modi v. State of Uttar Pradesh, AIR 1957 SC 620.
141
Moot Proposition, para 20.
142
Virendra v. The State of Punjab & Another, (1957) INSC 63.
143
Superintendent, Central Prison v. Ram Manohar Lohia, AIR 1960 SC 633.
144
Moot Proposition, para 17.
145
Moot Proposition, para 1.
146
Bal Thackeray v. Prabhakar Kashinath Kunte, (1996) SCC 1 130.
147
Ranjit D. Udeshi v. State of Maharashtra, (1965) SCR 1 65.
148
Moot Proposition, para 17.
149
S. Khushboo v. Kanniammal, AIR 2010 SC 3196.
[¶33] It is humbly submitted that the “The question whether a particular article or story or
book is obscene or not does not altogether depend on oral evidence” 150, dialogue to which
objection was raised is not an intrusion to create a sensation. If the books are banned on such
allegations, there will be no creativity. 151 In Odyssey Communications v. Lokvidayan
Sanghatana,152 the Court blithely employed the phrase “public morality”, without any
argument further, in Bobby Art International v. Om Pal Singh Hoon,153 the case about
screening of the Bandit Queen, the Court allowed the screening of the film, including scenes
of rape and frontal nudity, because it found on fact that impugned scenes advanced the
message of film, and were not designed to “titillate the cinema-goer’s lust “.

[¶34] Furthermore, the hon’ble SC observed that the question of obscenity must be seen in
the context in which the photograph appears and the message it wants to convey. The court
further said that the correct test to determine obscenity would be Community Standards Test
and not Hicklin Test.154 In Regina v. Butler,155 the community standards test was held to be
the dominant test. The court had applied the community standards test and not Hicklin test in
Towne Cinema Industries v. The Queen.156 However if we consider the community standard
test then also nothing in this book had seen obscene as the majority of people has appreciated
the work of Slovas. In Sanskar Marathe v. The State of Maharashtra,157 the court specifically
held that only those expressions that influence or instigate hatred against the government or
may cause public disorder are punishable.

(E) Ban of the Book curtailing the right to livelihood under Art. 21

[¶35] It is humbly submitted that the ban on sale purchase or circulation of Book 158 has
violated the livelihood of author. In Olga Tellis v. Bombay Municipal Corporation,159 a five-
judge bench implied that ‘right to livelihood’ is borne out of the ‘right to life’, as no person
can live without the means of living, that is, the means of Livelihood. K. Ramaswamy J., in
Calcutta Electricity Supply Corporation Ltd. v. Subhash Chandra Bose,160 held that right to

150
Samaresh Bose and Ors. v. Amal Mitra and Ors, MANU (1985) SC 0102.
151
Bobby Art International v. Om Pal Singh Hoon, (1996) 4 SCC 1., Raj Kapoor v. State, (1980) 1 SCC 43.,
Samaresh Bose v. Amal Mitra, (1985) 4 SCC 289.
152
Odyssey Communications v. Lokvidayan Sanghatana, 1988 Suppl. (1) SCR 486.
153
Bobby Art International v. Om Pal Singh Hoon, AIR 1996 SC 1846.
154
Aveek Sarkar v. State of West Bengal, 2005 (2) CHN 694.
155
Regina v. Butler, (1992) 1 SCR 452.
156
Towne Cinema Industries v. The Queen, (1985) 1 SCR 494.
157
Sanskar Marathe v. The State of Maharashtra, 2015 SCC Bom 587.
158
Moot Proposition, para 19.
159
Olga Tellis v. Bombay Municipal Corporation, (1985) 2 SCR Supp 51.
160
Calcutta Electricity Supply Corporation Ltd. v. Subhash Chandra Bose, (1991) 2 SCR Supp 267.
social and economic justice is a fundamental right under Art. 21.The Court went on to
observe that if intellectual prowess and natural or cultivated power of creation is
inhibited without the permissible facet of law, the concept of creativity would pave
the path of extinction; and when creativity dies, values of civilization corrode. 161 The Court
opined thus: there can be multitudinous modes, manners and methods to express a concept.
One may choose the mode of silence to be visually eloquent and another may use the method
of semi melodramatic approach that will have impact. It is the individual thought and
approach which cannot be curbed.162however in this present case ban of book has destroyed
not only the 10-year research of author but also curtailed the livelihood which is protected
under Art.21.

Hence, it is humbly submitted that the ban on sale, purchase or circulation of book ‘Blood
and fire in Tapovast’ in any manner is violative of fundamental rights.

ISSUE 3: WHETHER THE REGISTRATION OF FIR(S) A GAINST SLOVAS MISHI

UNDER INDICUS PENAL CODE CAN BE QUASHED?

[¶36] It is humbly submitted that the FIRs registered by Trus Swabhiman Sangathan under
Section 153A, 153B, 292, and 295A of the Indicus Penal Code are completely baseless and
malicious as the book titled “Blood and Fire in Tapovast” falls within the ambit of freedom
of speech and expression of the citizen. The Petitioner to this extent seeks to establish that the
charges framed against Slovas Mishi are malicious and are invalid. (A) The book Blood and
Fire in Tapovast results from academic research and there exist no promotion of any enmity
and any assertion as prejudicial to nation interest (B) The Book Can’t be considered as
obscene as in insult to any religion or to its sentiments (C) The book is also in accordance
with the Press and Registration of Books Act, 1867.

(A) The book Blood and Fire in Tapovast results from academic research and there exist
no promotion of any enmity and any assertion as prejudicial to nation interest

[¶37] It is humbly that the book was approved by the concerned publication departments and
they have only published the book and the petitioner had no intention to humiliate or create
heartedness among any religious group or community163 and when it was brought to the

161
Viacom 18 Media Private Limited and others v. Union of India and others, (2018) 1 SCC 761.
162
Adarsh Cooperative Housing Society Ltd. v. Union of India, 2018 (4) SCALE 390.
163
Manzar Sayeed Khanv v. State of Maharashtra and Another, AIR 2007 SC 2074.
notice that there were oppositions, the counsel himself has presented the source of his finding
as it aims to publish the true historical facts of an influential community drawn from the
Trusvit - a sacred book of Trus after 10 years of extensive research and study.164

(i) Intention on the Part of Author under Section 153A and 153B is clearly missing

[¶38] It is humbly submitted that in order to attract the offence under Section 153A of the
IPC, the act of the accused must be made with an intention to promote enmity between two
groups on the grounds of religion, race, place of birth, residence, language etc and doing acts
prejudicially to maintenance of harmony and it must instigate the feelings of enmity, hatred
or ill will between different religious, racial, language or regional groups or castes or
communities and it must be prejudicially to maintenance of harmony between different
religious, racial, language or regional groups or castes or community and likely to disturb
public tranquility.165

[¶39] In the decision reported in Bilal Ahmed Kaloo v. State of Andhra Pradesh, 166 the
Hon’ble Supreme Court has held that in order to attract the offence under Section 153A of the
Indian Penal Code, mens rea is the necessary ingredient. If there is no intention to cause any
ill will or hatred feeling of persons mentioned in the section, merely because some
publication is made, is not sufficient to attract the offence under Section 153A of the Indian
Penal Code. This was followed in the decision reported in Manzar Sayeed Khan v. State of
Maharashtra and Another167. The Constitution Validity of Section 153A of the Indian Penal
Code was upheld by the Allahabad High Court in Sheikh Wajih Uddin v. The State.168

[¶40] Further, in the decision reported in Joseph Bain D'Souza and Another v. State of
Maharashtra and Others169 the Bombay High Court has held that: “In order to see as to
whether the said articles come within the ambit or purview of Sections 153A and 153B of the
Code, Court will have to read the articles as a whole and not out of the context. Court also
cannot go into the motive of writing those articles. Motive is irrelevant. The articles when
read as a whole must fall within the mischief of Sections 153A and 153B of the Code. If,
after reading the articles, Court comes to the conclusion that the same are likely to promote ill
will, spite and hatred amongst the communities, then the said articles or editorials will come
within the mischief of Section 153A and 153B of the Code.”
164
Moot Proposition, para 1.
165
Joy Cherian v. Sub Inspector of Police, Thampanoor and Ors. MANU (2015) KE 0642.
166
Bilal Ahmed Kaloo v. State of Andhra Pradesh, AIR 1997 SC 3483, 1997 Cri. L.J. 4091.
167
Manzar Sayeed Khan v. State of Maharashtra and Another, AIR 2007 SC 2074; 2007 Cri. L.J. 2959.
168
Sheikh Wajih Uddin v. The State, AIR 1963 All. 335.
169
Joseph Bain D'Souza and Another v. State of Maharashtra and Others, 1995 Cri. L.J. 1316.
[¶41] Further so, under the circumstances, it was observed in the decision that even if some
of the persons are likely to be agitated on account of the observations made in the article, that
alone is not sufficient to bring that article under the mischief of Sections 153A and 153B of
the Indian Penal Code. In the decision reported in Balwant Singh v. State of Punjab 170, it has
been observed that: “Mere casual raising of some slogans, a couple of times by accused
persons without intention to incite people to create disorder neither constitute any threat to
Government of India nor it give rise to feeling of enmity of hatred among different
communities or religious or other groups so as to attract the offence under section either
124A or 153A of the IPC.”

[¶42] Moreover, in The State of Bihar v. Ghulam Sarwar and Another 171, the Patna High
Court has held that: “The mens rea of the authors is the main ingredient of the offence under
Section 153A. In order to ascertain the intention of the accused, the offending article or the
pamphlet must be read as a whole and that the circumstances attending the publication must
also be taken into account.” It is clear that merely because some publications have been made
without the intention to create any enmity between the two groups or sentiments which is
likely to affect the public disorder is not sufficient to attract the offence under Section 153A
of the Indian Penal Code.172 Recently, the Delhi High Court in Vineet Jindal v. Salman
Khurshid173 has categorically stated that “the court can’t do anything if people are feeling so
sensitive with publication of a single book.” The Court also remarked while dismissing the
petition that “Ask people not to buy the book or read it. Tell people it is badly authored, read
something better.”

(B) The Book Can’t be considered as Obscene and as insult to any religion Sentiments

[¶43] It is humbly submitted that the book can’t be simply considered as an Obscene and the
author can’t be simply booked under Section 292 of IPC. The meaning of the term
“obscenity” has to be appositely understood, the Black's Law Dictionary that defines
obscenity as follows: Obscene, adj. (16c) - Extremely offensive under contemporary
community standards of morality and decency; grossly repugnant to the generally accepted
notions of what is appropriate. Under the Supreme Court’s three-part test, material is legally
obscene-and therefore not protected under the First Amendment-if, taken as a whole, the
material (1) appeals to the prurient interest in sex, as determined by the average person

170
Balwant Singh and Another v. State of Punjab, AIR 1995 SC 1785.
171
The State of Bihar v. Ghulam Sarwar and Another, AIR 1965 Patna HC 393.
172
Joy Cherian v. Sub Inspector of Police, Thampanoor and Ors. (2015) KE 0642.
173
Vineet Jindal v. Salman Khurshid, AIR 2021 SC 456.
applying contemporary community standards; (2) portrays sexual conduct, as specifically
defined by the applicable state law, in a patently offensive way; and (3) lacks serious literary,
artistic, political, or scientific value.174 Further, the High Court of Madras in Public
Prosecutor v. A.D. Sabapathy175, has opined that the word “obscene” must be given its
ordinary and literal meaning, that is, ‘repulsive’, ‘filthy’, ‘loathsome’, ‘indecent’ and ‘lewd’.

(i) The book is seriously a literary work as an exception to Section 292 of IPC

[¶44] It is humbly submitted that in Shri Chandrakant Kalyandas Kakodkar v. The State of
Maharashtra176, the courts reiterated the ratio as was laid down in Ranjit Udeshi’s case 177 and
held that the concept of obscenity would differ from country to country depending on the
contemporary standards of the society. But to insist that the standard should always be for the
writer to see that the adolescent ought not to be brought into contact with sex or that if they
read any references to sex in what is written whether that is the dominant theme or not, they
would be affected, would be to require authors to write books only for the adolescent and not
for the adults.178 Thus, what one has to see is whether a class, not an isolated case, into whose
hands the book, article or story falls suffer in their moral outlook or become depraved by
reading it or might have impure and lecherous thought aroused in their minds.179

[¶45] In Ranjit Udeshi’s case180 Court held that the delicate task of deciding what is artistic
and what is obscene has to be performed by courts and as a last resort by the Supreme Court
and, Therefore, the evidence of men of literature or others on the question of obscenity is not
relevant. To fall within the scope of 'obscene' under Section 292 & 294 IPC, the ingredients
of the impugned matter/art must lie at the extreme end of the spectrum of the offensive
matter.

The legal test of obscenity is satisfied only when the impugned art/matter can be said to
appeal to an unhealthy, inordinate person having perverted interest in sexual matters or
having a tendency to morally corrupt and debase persons likely to come in contact with the
impugned art. It must also be remembered that a piece of art may be vulgar but not obscene.
In order to arrive at a dispassionate conclusion where it is crucial to understand that art from

174
Miller v. California 413 U.S. 15, 93 S. Ct. 2607 (1973).
175
Public Prosecutor v. A.D. Sabapathy, AIR 1958 Mad. 210.
176
Shri Chandrakant Kalyandas Kakodkar v. The State of Maharashtra, 1970 CriLJ 1273.
177
Ranjit D. Uddeshi v. State of Maharashtra, 1965 SCR (1) 65.
178
Maqbool Fida Husain vs. Raj Kumar Pandey, (2008) DELHI HC 0757.
179
Devidas Ramachandra Tuljapurkar vs. State of Maharashtra and Ors., (2015) SC 0612.
180
Ranjit D. Uddeshi v. State of Maharashtra, 1965 SCR (1) 65.
the perspective of the painter, it is also important to picture the same from a spectator's point
of view who is likely to see it.181

(ii) The Petitioner has not intended to outrage or insult any religious institution

[¶46] It is humbly submitted that the Supreme Court upheld the constitutionality of the said
section in Ramji Lal Modi v. State of U.P.182 The Court held that Sec 295A IPC does not
penalise any and every act of insult to or attempts to insult any religion or the religious
beliefs of a class of citizens. The Court cautioned that only those acts of insults or attempts to
so insult can be penalised under this provision which are perpetrated with the deliberate and
malicious intention of outraging the religious feelings of that class. The Court further
clarified that the provision would only apply to such aggravated forms of insult to religion,
that is calculated to disrupt the public order. Further, the intention to offend the citizens of a
certain faith must both be deliberate and malicious and must be meant for the Indian citizens
of that class.183 While attracting Sec 295-A IPC, the intent of the author must be malicious as
well as deliberate.184

[¶47] It is submitted that there was no ill will or ill intention to hurt the feelings of the public
at large while writing/publishing the said book. It was specifically mentioned in the preface
also that the book was written/published by taking all due care and caution. No offence is
made out under Section 295-A IPC against the petitioners as the purpose to write/publish the
book was not to hurt the feelings of any individual in any manner. The material, which has
been published in the book, was collected by the petitioners from various other books.185 

[¶48] While interpreting the words “deliberate and malicious intention” in Sec 295A, the
Allahabad High Court in Kali Charan Sharma v. King Emperor,186 held that “This matter
must be judged primarily by the language of the book itself though it is permissible to receive
and consider external evidence either to prove or to rebut the meaning ascribed to it in the
order of forfeiture. If the language is of a nature calculated to produce or to promote feelings
of enmity or hatred the writer must be presumed to intend that which his act was likely to
produce....”

181
Maqbool Fida Husain vs. Raj Kumar Pandey, (2008) DELHI HC 0757.
182
Ramji Lal Modi v. State of U.P, (1957) SCR 860.
183
Sujata Bhadra vs. State of West Bengal, (2005) SCC Cal 516.
184
Maninder Singh and another v. State of Punjab and another, AIR 2018 P&H HC 253.
185
IBID
186
Kali Charan Sharma v. King Emperor AIR 1927 Allahabad 649 (SB).
[¶49] In the present case, no material has been placed before this Court to show as to how the
feelings of the complainant as well as the members of the Society/Community have been
hurt. Everything as mentioned in the complaint appears to be predesigned, predetermined as
nothing has been shown as to how the public at large have come to the conclusion that their
feelings were hurt. Simply it has been stated that large section of Community, even without
indicating which Community, was likely to be incised. Even there is no indication regarding
existence of requisite ingredients of Section 295-A IPC. In view of facts as mentioned above,
no offence is made out under Section 295-A IPC.

(C) The book is also in accordance with the Press and Registration of Books Act, 1867

[¶50] It is humbly submitted that Section 3 of the Press and Registration of Books Act, 1867
enjoins that the freedom of press involves the readers’ right to know all sides of an issue of
public interest. It is said that in a democracy the right to free expression is not only the right
of an individual but rather a right of the community to hear and be informed. 187 In the instant
case, ‘Blood and Fire in Tapovast’ is in accordance with Section 3 because it aims to do fact
check and report the true historical facts of the community 188 to the public as the readers has
the right to know all truth of Historical importance. Moreover, freedom of expression
includes the freedom of propagation of ideas, their publication and circulation 189 and right to
answer the criticism levelled against such views,190 the right to acquire and import the ideas
and information about matter of common interest.191

[¶51] Therefore, it has been declared that overbroad restrictions on freedom of speech and
expression are invalid.192 Open criticism and operations are not a ground for restricting
expression. In the instant case, the restriction was unreasonable as there was no evil caused
by ‘Blood and Fire in Tapovast’ because it aims to publish the true historical facts of an
influential community drawn from the Trusvit – a sacred book of Trus after 10 years of
extensive research.

[¶52] In the instant case, Slovas Mishi was exercising his freedom of expression with
objective of doing a fact check and report the true affairs of the state and in regard to
publication of his research work in the form of book.

187
Sujata v. Manohar, “T.K. Tope’s, Constitutional Law of India” Eastern Book Co., Lucknow, p. 143 (2010).
188
Moot Proposition
189
Romesh Thapper v. State of Madras, (1950) SCR 594.
190
L.I.C. v. Manubhai D. Shah, AIR 1993 SC 171.
191
Hamdard Dawakhana v. Union of India, AIR 1960 SC 554.
192
Amnesty International v. Sudan, (2000) AHRLR 297.
Hence, it is humbly pleaded that the FIRs filed under Sections 153 A, 153 B, 292 and 295 A
of the Indicus Penal Code, 1861 by Trus Swabhiman Sangathan must be quashed.