Full Judgment Text
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CASE NO.:
Appeal (crl.) 1228 of 1998
PETITIONER:
Sri Baragur Ramachandrappa & Ors
RESPONDENT:
State of Karnataka & Ors
DATE OF JUDGMENT: 02/05/2007
BENCH:
B.P. SINGH & HARJIT SINGH BEDI
JUDGMENT:
J U D G M E N T
HARJIT SINGH BEDI,J.
This appeal by special leave arises out of the
judgment of the Karnataka High Court whereby the petition
made by the tenth petitioner under Section 96 of the Code of
Criminal Procedure for setting aside of the Notification dated
27th June 1997, forfeiting all copies of the novel
"Dharmakaarana" under Section 95 of the Code, has been
dismissed.
The matter arises out of the following facts :
Basaveshwara, a great saint of the 12th Century,
also known as "Basavanna" was born in Bagewadi in Bijapur
District, Karnataka State. His elder sister Akkanagamma was
a saintly woman. Her son Channabasaveshwara too grew up
to be a great social reformer and a preacher of Veerashaivism,
a religious sect, and of the Basava Philosophy. The family
consisted of individuals of progressive thought who sought to
promote social reform in Hindu society and for that purpose
preached that all were equal.
Petitioner No.11 Dr. P.V. Narayanna published a
novel in 1995 entitled "Dharmakaarana" portraying the story
of Basaveshwara, Akkanagamma and Channabasaveshwara
narrated in first person, the narrator being Basaveshwara
himself. The book was selected by the Karnataka Sahitya
Academy for its annual award as the best novel for the year
1995. It appears that some eminent figures in the field of
literature and otherwise, including Shri B.D. Jatti, the former
Vice-President of India wrote to the State Government that
some of the statements made therein were objectionable,
inflammatory, hurtful and insulting to the sentiments and
feelings of the Veerashaivas and the followers of
Basaveshwara, and suggested that the novel should be
forfeited. It also appears that the Akhila Bharat Veerashaiva
Mahasabha filed a suit in the City Civil Court at Bangalore
seeking an injunction restraining the Government from
conferring the award on the Author and for an order banning
the publication and sale of the book on which such an order
was in fact made. Faced with this delicate situation, the State
Government issued a Notification dated 27th March 1997
under Section 95 of the Code of Criminal Procedure
(hereinafter called the ’Code’), ordering the forfeiture of the
book. A petition was thereafter filed under Section 96 of the
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Code and while the matter was yet pending (and observing
that the notification had not been issued by the competent
authority) the State Government withdrew the said Notification
and issued a fresh one on 27th June 1997. A petition
under Section 96 of the Code was again filed by the Author Dr.
P.V. Narayana, on which the matter was referred for decision
to a Bench of 3-Judges under sub-Section (2) of Section 96
thereof. The Judges examined the matter in extenso and by
their judgment & Order dated 16th April 1998 dismissed the
petition. This judgment has been impugned before us after
special leave. The Court relying on several judgments of this
Court and High Courts held that an order under Section 95 of
the Code was justified if it appeared to the State Government
that the published material contained objectionable matter
and that such matter was maliciously intended to promote
feelings of enmity and hatred between different classes of the
citizens of India as envisaged under Sections 124-A, 153-A,
153-B, 292, 293 and 295-A of the Indian Penal Code, and
that such a Notification could not be said to be ultra-vires of
Article 19(1)(a) of the Constitution of India as it was a
reasonable restriction imposable under the Article. It further
observed that the onus to prove that the publication did not
fall within the parameters of Section 95 of the Code rested on
the person who challenged the Notification by filing a petition
under Section 96. The Court then went on to examine the
facts of the case in the background of the legal
position and observed that the story projected by the author in
Chapter 12 that Channabasaveshwara was the illegitimate son
of Akkanagamma as he had been conceived out of wedlock
was indeed hurtful . The Court further held that the allegation
that it was the public odium that had followed the pregnancy
that had compelled Basaveshwara and Akkanagamma to leave
their home at Bagewadi and shift to Koondusama was again
an unwarranted accusation and without any basis. The Court
finally found that the explanation tendered by the author for
the change of residence was the subject matter of a raging
debate amongst historians and religious functionaries and he
had merely adopted this story for the Novel, was unacceptable
and without any foundation.
It is these circumstances that the matter has
come before us.
We have heard the learned counsel for the parties
and gone through the record carefully. At the very outset,
Mr. Raju Ramachandran, the learned senior counsel for the
appellants has pointed out that the entire matter would have
to be examined in the backdrop of the philosophy and
principles underlying sub-clause (h) of Article 51-A of the
Constitution of India which envisaged the development of a
scientific temperament, a feeling of humanism and a spirit of
inquiry and reform and the fundamental right to freedom of
speech and expression guaranteed under Article 19(1)(a) of the
Constitution and the proscription or forfeiture of a publication
by the issuance of a Notification under Section 95 of the Code
must therefore strike a balance between the two and as the
Notification appeared to have been issued by the State
Government not on its own assessment or volition but under
pressure from persons of high social and political standing, it
was unsustainable. It has also been pleaded that from the
book read as a whole it was clear that Basaveshwara,
Chennabasaveshwara and Akkanagamma had been depicted
as saintly persons and social reformists, who had visualized a
new direction for society with the thesis that all men were
equal and had attempted to remove the social and religious
disparities not only by precept but by practice as well. It has
finally been pleaded that there was no malicious intention in
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the publication of the book as it had the character of a novel
with a historical background in as much that the
circumstances leading to the birth of Chennabasaveshwara
and the departure of Basaveshwara and Akkanagamma from
Bagewadi was a matter of much debate and discussion
amongst the Veerashaivas themselves as also well known
authors belonging to the community and as such a fresh
interpretation given to the controversy by the author did not
justify the forfeiture of the book.
The learned Advocate General for the State of
Karnataka has, however, pointed out that the freedom of
speech and expression did not mean a licence to an author to
spew invective and vitriol and that the contents of the Book
which the author himself claimed to be a novel had to be
scrutinized in the light of the circumstances of those who were
likely to read it. He has urged that the attack on
Akkanagmma was designed to portray her as of dubious
character particularly in Chapter 12, and even assuming that
the author had a right to his opinions, it did not justify
baseless allegations against persons who were venerated and
revered by millions in South India as the story that
Channabasaveshwara was the illegitimate child of his mother
was clearly a matter of deep concern. The learned Advocate
General has also highlighted that the circumstances leading to
the change of residence from Bagewadi to Koondusama was
indeed a matter of debate, yet it had never been suggested till
now that it was the ignominy of the pregnancy that had
prompted the change. It has also been pleaded that in the
light of the clear terminology of Section 96 of the Code the
onus to show that the offensive publication did not violate
Section 95 lay on the author himself more particularly as it
appeared from a reading of Chapter 12, that the contents
therein were prima facie intended to hurt the sentiments of a
section of the community.
The arguments raised by the Advocate General have been
supported by the learned counsel for the intervener, who
added that a reading of the Novel showed that the attack
(though veiled) was in essence an attack on Basaveshwara as
he had objected to the ritualism promoted by the Brahmin and
had preached that all men were equal, the cobbler and the
king being cited as an example, which was in stark contrast to
what had been preached earlier. In reply Shri Ramachandran
has reiterated that the book was only a novel and it had to be
assessed as such and as the forfeiture of the book would
enure for all time the satisfaction of the Government under
Section 95 of the Code must be beyond doubt and without
malice or outside influence.
It is true that the inculcation of a scientific
temperament and a spirit of enquiry is essential for human
development and is a sine qua non for progress and for social
change and Article 51-A (h) of the Constitution clearly
recognizes this principle. Likewise Article 19 (1)(a) of the
Constitution gives every citizen the right to freedom of speech
and expression and this freedom is yet another vehicle
towards the same direction and goal. This Court in Indian
Express Newspapers (Bombay) Pvt. Ltd. & Ors. Vs. Union
of India & Ors. (1985) 1 SCC 641 held:
"Freedom of expression, as learned writers
have observed, has four broad social purposes to
serve: (i) it helps and individual to attain self
fulfillment, (ii) it assists in the discovery of truth,
(iii) it strengthens the capacity of an individual in
participating in decision-making and (iv) it provides
a mechanism by which it would be possible to
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establish a reasonable balance between stability
and social change. All members of society should
be able to form their own beliefs and communicate
them freely to others. In sum, the fundamental
principle involved here is the people’s right to know.
Freedom of speech and expression should, therefore
receive a generous support from all those who
believe in the participation of people in the
administration."
It is however clear that the freedom of speech and
expression is not unfettered and Section 95 of the Code
exemplifies this principle on the understanding that this
freedom must be available to all and no person has a right to
impinge on the feelings of others on the premise that his right
to freedom of speech remains unrestricted and unfettered. It
cannot be ignored that India is country with vast disparities in
language, culture and religion and unwarranted and malicious
criticism or interference in the faith of others cannot be
accepted. This Court while discussing the scope of Section
99-A of the old Code (corresponding to Section 95 of the Code)
in the Constitutional context in (1976) 4 SCC 213 State of
Uttar Pradesh vs. Lalai Singh Yadav observed as under:
"After all fundamental rights are
fundamental in a free republic, except in
times of national emergency, when
rigorous restraints, constitutionally
sanctioned, are clamped down. We are
dealing with the Criminal Procedure Code
and Penal Code and these laws operate at
all times. We have therefore to interpret
the law in such a manner that liberties
have plenary play, subject of course to the
security needs of the nation, as set out in
the Constitution and the laws."
It was also observed that it was the duty of the
State, being a State based on secular principles, not to take
sides with one religion or the other but to "create conditions
where the sentiments and feelings of people of diverse or
opposing beliefs and bigotries are not so molested by rigid
writings or offensive publications as to provoke or outrage
groups into possible violent action" and that a drastic
restriction on the right of a citizen imposed by Section 99-A
required that a strict construction be put on its applicability. It
finally concluded that:
"Construed in this condescend
constitutional conspectus, bears out our
interpretation. In the interests of public
order and public peace, public power comes
into play not because the heterodox few must
be suppressed to placate the orthodox many
but because everyone’s cranium must be
saved from mayhem before his cerebrum can
have chance to simmer. Hatred, outrage and
like feelings of large groups may have crypto-
violent proneness and the State, in its well-
grounded judgment, may prefer to stop the
circulation of the book to preserve safety and
peace in society".
xxx xxx xxx xxx xxx
"The State, in India, is secular and does
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not take sides with one religion or other
prevalent in our pluralistic society. It has no
direct concern with the faiths of the people
but is deeply obligated not merely to preserve
and protect society against breaches of the
peace and violations of public order but also
to create conditions where the sentiments
and feelings of people of diverse or opposing
beliefs and bigotries are not so molested by
ribald writings or offence publications as to
provoke or outrage groups into possible
violent action. Essentially, good government
necessitates peace and security and whoever
violates by bombs or books societal
tranquility will become target of legal interdict
by the State."
While further delineating the circumstances under
which this provision could be applied this Court in
(1989) 2 SCC 574 S.Rangarajan Vs. P.Jagjivan Ram & Ors.
observed:
"The standard to be applied by the Board or
Courts for judging the film should be that of
an ordinary man of common sense and
prudence and not that of an out of the
ordinary or hypersensitive man. We, however,
wish to add a word more. The Censors Board
should exercise considerable circumspection
on movies affecting the morality or decency of
our people and cultural heritage of the
country. The moral values in particular,
should not be allowed to be sacrificed in the
guise of social change or cultural assimilation.
Our country has had the distinction of giving
birth to a galaxy of great sages and thinkers.
The great thinkers and sages through their life
and conduct provided principles for people to
follow the path of right conduct. There have
been continuous efforts at rediscovery and
reiteration of those principles."
The Government thus has the power to nullify a
publication which endangers public order, although the
freedom of expression in this situation is undoubtedly
restricted even though such freedom "is an indicator of the
permanent address of human progress". It must also be noted
that it would be difficult to examine all publications on a
common yardstick and what may be a laughable allegation to
a progressive people could appear as sheer heresy to a
conservative or sensitive one.
Mr. Ramachandran’s arguments that the action taken by
the State Government was not on its own volition and was
therefore mala fide must also be rejected. We are of the
opinion that merely because some eminent personalities or
group of persons had taken it upon themselves to bring to the
notice of the State Government as to the inflammatory and
baseless statements that had been made, it would not amount
to an abdication of the State of its functions. The impugned
Notification shows that the State Government had applied its
mind to the contents of the novel and the allegations made
therein and taken a balanced and reasoned decision on the
matter.
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It has been argued by Mr. Ramachandran that as
Section 95 of the Code dealt with what was in fact in the
nature of a criminal offence, an opinion had to be recorded by
the State Government that the novel was malicious and
intended to outrage the feelings of a group or class of citizens
and in the absence of either of these ingredients, no order
under Section 95 of the Code could be justified. Elaborating
his submission he has pointed out that the impugned
Notification did not specifically state that the Novel had been
written with a deliberate and malicious intention to outrage
the feelings of the followers of Basaveshwara. It has, on the
contrary, been submitted by the learned Advocate General
that Section 95 of the Code did not constitute a criminal
offence as it was merely descriptive and designed to ensure
that preventive action was taken before the offences referred to
therein could actually be committed. He has emphasized that
the word "appear" in Section 95 of the Code had to be read in
this context and after the State Government had taken the
decision that the offending publication did "appear" to be
offensive, the onus shifted to the opposite party to show to the
contrary as was discernible from a bare reading of Section 96
of the Code. The learned Advocate General has also placed
reliance on the Full Bench judgment of Patna High Court
reported in AIR 1986 Patna 98 (Nand Kishore Singh Vs.
State of Bihar) in support of this argument.
It would be evident from what has been observed
above, the matter would have to be examined in the light of
the provisions of Section 95 and 96 of the Code. These
Sections are reproduced hereunder:
Section 95 Power to declare certain publications
forfeited and to issue search warrants for the same. \026 (1)
Where \026
(a) any newspaper, or book, or
(b) any document,
wherever printed appears to the State Government to contain
any matter the publication of which is punishable under
Section 124A or Section 153A or Section 153B or Section 292
or Section 293 or Section 295-A of the Indian Penal Code (45
of 1860), the State Government may, by notification, stating
the grounds of its opinion, declare every copy of the issue of
the newspaper containing such matter, and every copy of such
book or other document to be forfeited to Government, and
thereupon any police officer may seize the same wherever
found in India and any Magistrate may by warrant authorize
any police officer not below the rank of sub-inspector to enter
upon and search for the same in any premises where any copy
of such issue or any such book or other document may be or
may be reasonably suspected to be.
(2) In this section and in section 96, -
(a) "newspaper" and "book" have the same meaning
as in the Press and Registration of Books Act, 1867
(25 of 1867);
(b) "document" includes any painting, drawing or
photograph, or other visible representation.
(3) No order passed or action taken under this section
shall be called in question in any Court otherwise than in
accordance with the provisions of section 96.
Sec.96. Application to High Court to set aside declaration
of forfeiture. \026
(1) Any person having any interest in any newspaper,
book or other document, in respect of which a
declaration of forfeiture has been made under Section
95, may, within two months from the date of
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publication in the Official Gazette of such declaration,
apply to the High Court to set aside such declaration
on the ground that the issue of the newspaper, or the
Book or other document, in respect of which the
declaration was made, did not contain any such
matter as is referred to in sub-Section(1) of Section
95.
(2) Every such application shall, where the High Court
consists of three or more Judges, be heard and
determined by a Special Bench of the High Court
composed of three Judges and where the High Court
consists of less than three Judges, such Special
Bench shall be composed of all the Judges of that
High Court.
(3) On the hearing of any such application with reference
to any newspaper, any copy of such newspaper may
be given in evidence in aid of the proof of the nature
or tendency of the words, signs or visible
representations contained in such newspaper, in
respect of which the declaration of forfeiture was
made.
(4) The High Court shall, if it is not satisfied that the
issue of the newspaper, or the book or other
document, in respect of which the application has
been made, contained any such matter as is referred
to in sub-section(1) of section 95, set aside the
declaration of forfeiture.
(5) Where there is a difference of opinion among the
Judges forming the Special Bench, the decision shall
be in accordance with the opinion of the majority of
those Judges.
It will be seen that Section 95 and Section 96 of the
Code when read together are clearly preventive in nature and
are designed to pre-empt any disturbance to public order. At
the same time, we find that Section 95 does not by itself
create a criminal offence and the reference to the various
sections of the Penal Code are merely descriptive of the kind of
offences which need to be prevented by a declaration under
Section 95. In this view of the matter, Mr. Ramachandran’s
assertion that the onus of proof would lie on the State
Government is not acceptable as the intention has, to some
extent, to be inferred from the nature of the publication. It is
true that a forfeiture of a newspaper or book or a document is
a serious encroachment on the right of a citizen, but if
forfeiture is called for in the public interest it must without a
doubt have pre-eminence over any individual interest. We also
endorse the argument of the learned Advocate General that
the State Government must take a pragmatic approach in the
matter as explained by this Court in Lalai Singh Yadav’s case
(supra):
"The rule of human advance is free thought and
expression but the survival of society enjoins reasonable curbs
where public interest calls for it. The balance is struck by
governmental wisdom overseen by judicial review. We speak
not of emergency situations nor of constitutionally sanctified
special prescriptions but of ordinary times and of ordinary
laws." While dealing with somewhat similar issues, the Patna
High Court in Nand Kishore’s case (supra) observed:
"It would be somewhat
fallacious to mathematically equate the
proceedings under Ss.95 and 96 of the
Code with a trial under S.295-A of the
Penal Code with the accused in the dock.
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The stringent requirements of the mens
rea to be proved and established are for
the purpose of a conviction under this
offence which carries a sentence up to
three years and fine and further went on
to hold but indeed to require that a
deliberate and malicious intention must
first be proved at the threshold stage
before the Government by evidence as a
condition for acting under S.95(1), as if
an accused person was in the dock,
would, in effect, virtually frustrate the
preventive purpose of the said section."
The Court then went on to elucidate that Section 95
did not require that it should be "proved" to the satisfaction of
the State Government that all requirements of the punishing
sections including mens rea were fully established and all
that S.95(1) therefore required was that the ingredients of the
offence(s) should "appear" to the Government to be present.
The Court further opined that the general rule that a man was
presumed to intend the natural consequences of his act would
be attracted, and in conclusion observed:
"The onus to dislodge and rebut the prima facie opinion
of the Government that the offending publication comes within
the ambit of the relevant offence including its requirements of
intent is on the applicant and such intention has to be
gathered from the language, contents and import thereof."
It must also be observed that Section 96 itself takes care
of any misuse of the authority conferred under Section 95 and
the right of an individual vis-a-vis the larger public interest
can be put under scrutiny as the final decision is left to a High
Court Bench of (if possible) three Judges.
To sum up, Section 95 of the Code is not violative of
Art.19(1)(a) of the Constitution, as the action taken
thereunder is of a preventive nature and that a extremely
efficacious remedy under Section 96 of the Code is available
to an aggrieved party or person. It is significant, and it is clear
from the very large number of judgments that have been cited
before us, that most of the matters pertain to attacks on
minorities or religious and social groups or individuals who
are perceived as being prodigals or heretics and therefore
unacceptable to the conservatives amongst the mainstream.
It cannot ever be over emphasized that India is a country with
huge diversities in language and religion and the weaker
amongst them must be shown extra care and consideration.
It is in this background the facts of the case now need
to be examined. It has been emphasized by
Mr. Ramachandran that as per the judgment of this Court in
Bobby Art International and Ors. Vs. Om Pal Singh Hoon
and Ors. (1996 ) 4 SCC 1 the book as a whole had to be
looked at and a stray sentence here or there picked up out of
context could not be taken into account and that assessed on
this principle the impugned judgment and order was
unjustified as almost the entire novel was in praise of
Basaveshwara and his family. Elaborating his argument, Mr.
Ramachandran has pointed out that even the story portrayed
in Chapter 12 had not been revealed for the first time, as the
circumstances leading to the birth of Channabasaveshwara
and the reason for the change in residence from Bagewadi to
Koondusama had been a matter of study, debate and
speculation in the Veerashaiva community - for generations,
and had found its echo not only in numerous books and
articles but in lore and legend as well, and has in this
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connection, referred us to Annexure P7 and to four
documents collectively appended as Annexure P8.
The learned Advocate General has, on the contrary,
submitted that the author himself had identified
"Dharmakaarana" as a Novel and it had therefore to be
presumed that the story had no historical basis, and was a
figment of the author’s imagination and Chapter 12 when
viewed in this background was clearly an affront to the
sentiments of the Veerashaivas.
As already mentioned above, the Novel is in the first
person, the narrator being Basaveshwara himself. At the
initial stage he talks very lovingly of his sister and the care
that she had taken of him (as a mother would a child) recalling
that his mother had died when he was very young. He further
talks about his younger days and his absorption and study of
the Hindu religion and his learning of Sanskrit Shalokas from
a Brahmin. He then refers to a change in his outlook and his
dislike for blind ritualism, and a re-examination of the ills
afflicting Hindu Society, the complete dominance of the
Brahmin over every facet of life, and of the inequities in the
social order. He then narrates a story about a woman,
Jabala by name, who was said to be a "debased one " and goes
on to state that when Jabala was questioned by her son as to
the identity of his father, she had replied that she was unable
to identify him as she had been with many men and when
this story was narrated in all innocence by the boy to his
teacher the teacher was greatly impressed by his honesty and
courage to face the truth and accepted the boy as his disciple.
With this background, the story of Nagakka’s pregnancy out of
wedlock is now narrated and is, for reasons of authencity and
precision reproduced hereunder in extenso from the
translation provided by the learned counsel for the appellant:
"I was saying that Nagakka started looking
after house-hold chores. The responsibility of
kitchen was entirely hers-excepting the three days
of her monthly period. I would have my food in
Vishweshvara mama’s home; and some woman-
folk of that house would bring food for akka, those
three days. The life went on like this. But once,
for a long time that three-day period never came to
akka what could I know about all that? When
they asked me about it, I expressed my ignorance.
That day wife of Vishweshvara mama herself came
to our house. She asked to keep out for some time,
and I did so. Where else could I go; I went to their
house to play with boys of my age-group.
I was about fifteen years of age then. I felt
as if I knew about certain things, and still had no
clear idea. I had only a very vague idea of akka’s
monthly three-day period, without certainly. After
some moments, atte came to her house, where I
was playing, with panting breath; and explained
something to mama, all in a hushing manner, and
concluded saying, ’things seem to have gone
wrong.’ Though I could not get any definite idea of
their talk, it was clear that something fussy had
taken place. I came back home running; even
though it was already evening, there seemed no
light inside the house.
When I entered the house, I heard sobs
emitting from within thick darkness; I rushed
towards the direction of that sound. I found akka
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sitting in a corner. ’What has happened, akka?’ I
asked, where upon the weeping became intense. I
lit the lamp with anxiety; I saw akka sitting with
her head on bent knees. I shook her body
rigorously, when I felt her body burning like live-
ember; I was not sure if she had been having fever
since morning or she had caught it lately. Her face
had beads of sweat all over; her face was like the
corpse of full-moon floating across the day time
sky, luster-less. I put many questions, compelled
her to answer, I also wept, but not a word from her
; She was sitting as if petrified stabbing her eyes at
nowhere. The words atte had uttered before
mama-three-day-period, going wrong etcetera--
were causing some amorphous ideas in me. But it
was impossible for me to get angry with Nagakka,
even if dissatisfied only mock-anger, never real.
That whatever she had done, she could not have
erred--was my firm belief. After trying long to make
her speak in vain, I kept quiet. We were two in the
house. It was pitch dark outside; and what else
could be there inside as well? More than the
gravity of her wrong-deed, I was worried about
what these people could do to her. No food; no
sleep. The long night was like the frightful mouth
of a demon gaping at us.
The night passed by somehow. The next
morning Vishweshvara mava came. And tried to
elicit information from akka by putting several
questions, but she was silent as if she had been
mute. When he was unable to get any information,
he turned to me in frustration and only said, what
next?’ I felt like weeping but was not able to
speak. I only waved my head to signal that I did
not know things either. Finally he declared: ’In
what way can I help you? I shall arrange a
meeting of the mahajanas at ten galiges after sun-
rise. We would all be bound by the decision of the
assembly.’ He went away, instructing, ’You should
come with your sister when sent for.’ Though he
had it in a low tone, it seemed to be tough.
We spent the time as we had the night. I was in
utter confusion, not knowing what to do. The
neighbours started coming to our house, as if they
came to know of the developments. The young
ones tried to pep into the house with curiosity,
while some elderly persons went directly into the
house and heaped on her the oft-asked question,
’what happened?’ Unhhum: Akka never parted her
lips ! Whether she could not speak, or she had
stubbornly decided not to speak, she was dumb to
all queries. Silence was the only answer for all
kinds of questions: slow and sympathetic ones,
scolding, rough ones and sarcastic remarks. A few
were fed up with her testing silence would
cursingly say, ’to hell with you’ and go. Some
remarks, ’She would only reap what she has sown’
I was helpless to the core, was only smouldering
with anger at the remarks by the visitors. If my
position was that, what should have been her
state!
Time passed somehow. We were sent for
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by Vishweshvara Somayaji, as told earlier. I made
akka stand with difficulty, and got her walk with
my support. The assembly was full with members;
we were asked to stand in a corner. After all the
important persons came, the volley of questions
started from all sides. ’What is the matter?’ was
the summary of all questions. Nagakka was a
personification of silence. She must have lost all
her faculties. ’Give her a couple of thrashes, she
would part her lips,’ suggested someone. ’Tche
tche, could we lift our hands on a girl?’ Countered
another. ’What else should be done with such bad
characters?’ ’Why should we beat? Only the
parents are empowered to do that. We should only
go according to the shastras.’ A bundle of
suggestions, strewn astray.
Could all the hearing have happened so swiftly?
It, I fact, took quite a long time. Only I do not have
the details in my memory. Why should I remember
all that now and bring irritation to myself? I shall
come to the concluding part of the deliberations.
The mahajanas consulted among themselves
extensively, at the end of which, one of them said
to me, ’Look, Basavaraja, it seems your sister has
conceived before marriage, or we do not know
definitely about it. But she has not kept regular
period. She never utters a word in answer to our
questions. So, we are compelled to conclude that
she has erred.’ This was an introduction before
spelling out their verdict. I was not able to say
anything, and I did not have anything to say,
either. The same gentleman continued, ’Well, we
are left with two options regarding this: One, she
should subject herself to "ghatashraddha", and
you must disown her completely, let her get lost,
and you can continue to stay in the Agrahara.
What can you do, you are innocent. But, she has
to take punishment.’ My heart started throbbing
swiftly. Should Nagakka be left to go away? Tears
rolled down my cheeks in spate. I cast a tearful
glance at akka. She was like a standing corpse,
petrified without an iota of reaction. He went on to
say, ’The second option is, in case you are ready to
part ways with your akka, both of you would face
excommunication from us. If that is what you
choose, you should quit for ever the Agrahara by
this evening.’ ’Right’ the assembly concurred with
the verdict. Their life in the Agrahara would go on
as usual, even if there would be two souls less
there!
Nagakka was the same unmoving epitome
of silence as she was since last night. She did not
even look at me. She did not weep, not a drop of
tear in her eyes! ’I cannot live without akka,’ I said
with my choking-voice. Everything had been
settled; we had severed our connection with our
native place for ever.
I came back to "our" house, again giving
support to akka to keep her steps. I quickly made
a bundle of a few of our clothes and got ready to
leave, muttering, ’Let us be gone from here. No
more of living with these demons.’ I came out of
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the house forcefully pushing akka forward.
Though we were walking with our heads bet, we
were aware that innumerable pairs of eyes were
fixed on us. After slowly taking a turn from our
lane, we reached the outskirts of the village. Who
can do us what, with their anger? What can the
village do to us with its wrath? When we came to
the parting road, I turned towards the Agrahara
once and spat "thoo" with gusto and moved ahead
without looking back."
A bare perusal of the above reveals that as a matter of
fact Jabala has been equated with Nagakka in terms of being
of low character and whereas the former had become
pregnant, without a marriage the latter had been visited by so
many men that she did not know who had fathered her son.
As this story had been told by Basaveshwara himself in first
person we note the insidious and inflammatory suggestion,
that he like Jabala’s son, did not shrink from facing the truth
about his closest relative \026 his sister with whom he shared a
mother \026 son relationship. It is true that if the allegations
made in Chapter 12 were based in folk lore, tradition or
history some thing in extenuation could perhaps be said for
the author. In this connection, Mr. Ramachandran has
referred us to Annexures P7 and P8 with the petition.
Annexure P7 is the translation of a blurb printed on the back
cover of the Novel and while referring to the credentials of the
author it reads that the 12th Century constituted an
enlightened period in the history of the Kannada country and
that Basaveshwara was the beacon of that period, and that the
Novel had been written after delving deep into his personality
and the traditions of the Veerashaiva Community. Annexure
P7, thus, does not in any way advance the petitioner’s case
and is in fact neutral. Annexure P8 (Colly) is, however,
material and we have therefore perused all the documents very
carefully with the counsel for the parties. The first document
referred to by Mr. Ramachandran is a translation of an Article
by Dr. M.M. Kalburgi, Vice-Chancellor of the Kannada
University at Hampi, in the magazine ’Marga’. It reads that
Chennabasavanna was regarded as the son of Nagalambike,
though the identity of the father was not known and several
alternatives have thereafter been spelt out. We find however
that there is no suggestion whatsoever that Akkanagamma
had conceived out of wedlock. Reference has also been made
to an Article written by Dr. B.V. Mallapur, Reader in Kannada,
Karnataka University, Dharwad and published by the
Department of Kannada and Culture, Bangalore, which
refers to the speculation as to the circumstances leading to the
birth of Channabasavanna and several theories have been
mooted but again without any suggestion of illegitimacy. Our
attention has then been drawn to an article by Dr. R.C.
Hiremath, an expert in the history of the Veerashaivas, and
he too refers to the speculation as to the birth of
Channabasavanna, and to the belief amongst common folk of
the region that if those who were childless were to sing a
particular lullaby they would be endowed with children, and
reference is made to the fact that Akkanagamma had
inadvertently swallowed some ’prasada’ and had become
pregnant thereby, but there is again no suggestion as to her
conception out of wedlock. The author has also cited the
other instances like those of Shankaracharya, Seeta and Jesus
who are believed to have taken birth in unusual
circumstances.
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We notice from Annexure P8 that there is no indication in
any of the articles that Akkanagamma was of low character to
be equated with Jabala or the slightest hint that
Akkanagamma had conceived Channabasaveshwara outside
her marriage and had left Bagewadi in shame for that reason.
We therefore endorse the suggestion made by the learned
Advocate General and the counsel for the intervener that
Chapter 12 is not in sync with the rest of the novel and has
been deliberately designed to be hurtful and to bring the
family to shame. We also have no hesitation in observing
that the novel with its complimentary passages in favour of
Basaveshwara is merely a camouflage to spin and introduce a
particularly sordid and puerile story in Chapter 12.
As the forfeiture of the novel would have the result
of shutting out its publication and distribution for all time, we
had requested Mr. Ramachandran to consult his client to
find out if he could be persuaded to remove the portions which
had been found to be offensive by the State Government. Mr.
Ramachandran had however come back and informed us that
the author was willing to remove only three or four references
from the novel, which we have found on examination, would
be only cosmetic changes and would not satisfy the need of
the hour. We, accordingly, dismiss the appeal.