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1988 DIGILAW 60 (CAL)

Jayati Laila Kabir v. Union of India

1988-02-24

BHAGABATI PRASAD BANERJEE

body1988
Judgment : This writ application was moved by the petitioner on 19th February, 1988 challenging the order and direction issued by the Central Government by which the Director, National Library, Calcutta was directed to carry the sealed boxes/sealed cover containing the first thirty pages of the selected substantial portion of the publication "India Wins Freedom" by Maulana Abul Kalam Azad at New Delhi. 2. The petitioner's case, in short, in the writ application is that the Central Government has no role to play in the matter and as such the Central Government has no authority or jurisdiction to issue any direction upon the Director, National Library, Calcutta to take the sealed cover contrary to the terms and conditions under which the same was kept in the custody of the Director of the National Library, Calcutta. The facts of this case, in short, is that, it is alleged, that the late Maulana Abul Kahm Azad had during his life time dictated and given certain notes to late Professor Humayun Kabir (referred to as Composer) as to how India has attained the freedom and as to the parts played by Maulana Abul Kalam Azad and other leaders in the struggle for freedom; and that the Composer had out of the materials obtained from the late Maulana Abul Kalam Azad composed a book, which was finally approved by the late Maulana Abul Kalam Azad. But it was decided by the late Maulana Abul Kalam Azad that thirty paces containing selected substantial portions of the said book should be published after thirty years of his death. It also appears that it was decided that one copy of the said thirty pages should be kept in the custody of the Director, National Library. Calcutta and the other copy at the National Archives, New Delhi, late Professor Kabir accordingly wrote letters to the Director of the National Archives, New Delhi and the Director of National Library, Calcutta seeking their consent to accept the said sealed cover on the explicit understanding that the seal will be opened only on 22nd February, 1988, Thereafter, it appears that the National Archives, New Delhi and the National Library, Calcutta agreed to such proposal and that from the letter dated 3rd April, 1958 it appears that the late Prof. Kabir wrote- "I am sending the sealed cover containing Maulana Sahib's manuscript. Kabir wrote- "I am sending the sealed cover containing Maulana Sahib's manuscript. As I hive already informed you, the seals are not to be broken till the 22nd February, 1988. When the seals are broken, Orient Longmans or their successors should have the first option in publishing a complete version of Maulana Sahib's autobiography, incorporating the passages which will then be released to the public, In case Orient Longmans do not publish such a version, the National Archives in consultation with the National Library and the Indian Council for Cultural Relations, may arrange for the publication of such a complete text. "It further appears that on the 2nd September, 1958 the late Prof. Humayun Kabir who was then Minister of Indian Council for Cultural Relations entered into an agreement with the Orient Longmans Private Limited. "It further appears that on the 2nd September, 1958 the late Prof. Humayun Kabir who was then Minister of Indian Council for Cultural Relations entered into an agreement with the Orient Longmans Private Limited. In the preamble of the laid agreement it is stated as follows :- "WHEREAS the late Maulana Abul Kalam Azad had during his life time dictated the given certain notes to the Composer above-named as to whom how India had attained freedom and the part played by himself and the other leaders in the struggle for freedom WHEREAS the Composer had out of the materials obtained as aforesaid composed a book AND WHEREAS the said book as finally composed by the Composer was approved by the late Maulana Abul Kalam Azad AND WHEREAS the complete book as composed aforesaid has been deposited under sealed cover with the National Archives, New Delhi and the National Library, Calcutta, with instructions that the seals would be broken on 22nd February, 1988 and the complete book would be made available at that time AND WHEREAS the Composer, as desired by the late Maulana Abul Kalam Azad, had selected substantial portions of the book for the present publication under the title INDIA WINS FREEDOM (hereinafter referred to as the Work) AND WHEREAS the late Maulana Abul Kalam Azad had during his lifetime expressed the wish that the Work should be published and the royalties received from the sale thereof as mentioned hereunder should be distributed equally between him and the Composer AND WHEREAS the sole legal heirs, Fatima Begum of Shirin Nadi, Bhopal and Nooruddin Ahmed of 8 Neenabagh, New Delhi, of the late Maulnna Abul Kalam Azad had agreed to the publica1ion of the Work by the Publishers abovenamed on the terms and conditions as desired by the late Maulana Abul Kalam Azad during his lifetime as aforesaid and had agreed to the arrangement made in this regard between the Composer and the Publishers." The said agreement, inter alia, provides how the royalty should be distributed. It may be mentioned that late Prof. It may be mentioned that late Prof. Kabir did not keep any royalty reserved for himself or his heirs and on the contrary, it was directed that one-half of the amount of royalty which is payable to the Composer, in accordance with the wishes of the late Maulana Abul Kalam Azad will be paid annually for the prizes, one for the best essay in English on Islam to be written by a non-Muslim citizen of India or Pakistan and the other to a Muslim citizen of India or Pakistan for the best essay in English on Hinduism. Some heirs of the late Maulana Abul Kalam Azad, would be receiving the royalties payable under the agreement being the half share of the late Azad. The late clause of the agreement provides as follows :- "It is further agreed and understood that the Publishers shall have the first option to publish the complete book as originally composed and now lying under sealed cover with the National Archives, New Delhi and the National Library, Calcutta when the seals are broken on 22nd February, 1988 as mentioned in the preamble of the agreement." 3. Mr. Pradip Kumar Ghosh, learned Counsel appearing for the petitioner, contended in the first place that the Central Government has no authority or jurisdiction to issue any direction for transfer of the manuscript kept in the National Library, Calcutta for its onward transmission to New Delhi and for handing over the same to the authorities of the National Archives. It was further contended that such a transfer of manuscript from Calcutta to New Delhi and handing over the same to the National Archives and releasing the same together at a function at New Delhi would frustrate the very purpose of keeping the said manuscript at two different places with a specific direction to break open the seal on 22nd February, 1988. It was further submitted that if that was done there, in that event doubts and dispute with regard to the authenticity of such a historical document would raise unnecessarily, It was convended that everyone is interested to see that such a historical document is published in such manner so that its authenticity could not be doubted by any person. 4. It was further submitted that if that was done there, in that event doubts and dispute with regard to the authenticity of such a historical document would raise unnecessarily, It was convended that everyone is interested to see that such a historical document is published in such manner so that its authenticity could not be doubted by any person. 4. On the said writ application this Court passed an order on 19th February, 1988 directing the Director, National Library, Calcutta not to transmit the said manuscript to Delhi in a sealed cover and it was further ordered that the same should not be opened along with the copy at Delhi until further order. It may be mentioned that this Court did not pass any order regarding the manuscript kept in the National Archives, New Delhi and that the same was not the subject-matter of the writ application. 5. Srimati Bhubaneswari Kumari, one of the Directors of Orient Longmans Pvt. Limited, appeared in person and made submissions and pointed on that under agreement Orient Longmans have the authority to publish the same and the petitioner and others have no right in the manuscript except that the heirs of the Late Azad would be entitled to some royalty. She made elaborate submissions with regard to the rights of the Orient Longmans in this matter. This Court is not called upon to adjudicate any of the disputes between the heirs of the late Azad and late Prof. Kabir and/or the respondent, Orient Longmans Pvt. Ltd. This writ Court is not competent to go into this question as to who are the persons who had the copyright and/or right to publish of the said manuscript. 6. At the hearing of the case the attention of this court was drawn to an order passed by the District Judge. Delhi at the instance of Mr. Navi Hussain and Dr. 6. At the hearing of the case the attention of this court was drawn to an order passed by the District Judge. Delhi at the instance of Mr. Navi Hussain and Dr. (Mrs.) Nazma Heptulls, who filed a suit against the Orient Longmans and others whereby, it appears that the heirs of the late Azad sought for a declaration with regard to the copyrightes, & right in relation to the said Maulana Abul Kalam Azad's book "India Wins Freedom" and this court was also informed that the District Judge, Delhi passed an interim order whereby the Director, National Library, Calcutta and the National Archives, New Delhi have been restrained from breaking the sealed cover and making it over to the publishers Orient Longmans. That is a suit between the heirs of the late Maulana Abul Kalam Azad and the publishers with regard to the claim for copyright over the manuscript in question. This court has not been called upon to adjudicate any of the disputes between the parties as such and the right or interest of the heirs of the late Abul Kalam Azad and the heirs of the late Prof. Humayun Kabir and the Orient Longmans Ltd. had not been adjudicated by this court which are left open for adjudication in other proceedings. The question regarding the copyright in posthumous works, that is, works which had not been published during the lifetime of the late Abul Kalam Azad, whether exclusively belongs to the heirs of the late Azad or jointly with the heirs of the late Prof. Kabir and whether the agreement in question created any right in favour of the publishers Orient Longmans are question which cannot be adjudicated with the frame work of the writ petition and the writ court is also not competent to make any determination on these question. The scope of the writ application is whether the Central Government had any power to issue any such direction as hereinbefore stated. It further appears that the Central Government ultimately decided not to held the ceremony on 22nd February, 1988 because of the interim order passed by this Court in the matter in the meantime. 7. The scope of the writ application is whether the Central Government had any power to issue any such direction as hereinbefore stated. It further appears that the Central Government ultimately decided not to held the ceremony on 22nd February, 1988 because of the interim order passed by this Court in the matter in the meantime. 7. Though it was a private publication thirty years back but it contains publication regarding some historical facts and information as to how India has attained freedom and the part played by the late Maulana Abul Kalam Azad and the other leaders in the struggle for freedom and as it was decided to publish the thirty pages of that book after thirty years from the death of the late Maulana Abul Kalam Azad it appears that the said publication had become public in character. 8. It also appears that these 30 pages were kept in sealed covers and for the safe custody of the same, the same was entrusted to the authorities of the National Library, Calcutta and National Archives, New Delhi, who are public authorities and they are keeping the same for thirty years considering its national importance. Now though the writ petition is that the instance of some of the heirs of late Professor Kabir, this Court cannot lost sight of millions of people of this country who have a very real interest in such publication which is of some national importance as they would disclose as to how India has attained freedom and the part played by late Maulana Azad and other leaders for the freedom of the country, according to the late Maulana Azad. Naturally, the people of this country have a very real interest in such publications as they are also entitled to know the contents of such documents. 9. Now, the question is whether such publication should be interfered with by the Courts and whether the Courts will slop publication of such historical documents of national importance. Whatever may be the contents of such documents or manuscripts, in my view, the Court will not take a legalistic view of the matter inasmuch as this is the rarest of rare cases where the Court had to intervene. At the very outset, a point was taken by the respondents that the petitioner has no locus standi in this matter. Whatever may be the contents of such documents or manuscripts, in my view, the Court will not take a legalistic view of the matter inasmuch as this is the rarest of rare cases where the Court had to intervene. At the very outset, a point was taken by the respondents that the petitioner has no locus standi in this matter. The words person aggrieved are of wide import and should not be subjected to a restrictive interpretation in the peculiar circumstances of the case. Even assuming that the writ application was filed not by the heirs of late Prof. Kabir but by a citizen of this country, in that event also this writ petition could have been entertained if there is genuine grievance in the matter inasmuch as in this case the Court is dealing with a historical document which was kept in sealed covers for the last thirty years and when the target date for breaking open the seals had come, unfortunately, this has become the subject matter of litigation as a result whereof the seals could not be broken on the date fixed. The agreement, inter alia provided :- "Whereas the complete book as composed aforesaid has been deposited under sealed cover with the National Archives, New Delhi and the National Library, Calcutta, with instructions that the seal would be broken open on 22nd February, 1988 and complete book could be made available at that time." In my view, the National Library and the National Archives have been entrusted with the duties under can agreement or otherwise to break open the seal on 22nd February, 1988. This was also the desire of the late Maulana Abul Kalam Azad which was translated into action through the late Prof. Humayun Kabir. From the document and the agreement produced before this Court, it appears that nothing was said about the manner in which the seal will be broken and the persons concerned who would be present at that time and whether the two manuscripts would be taken together and would be disclosed together. Incidentally, it may be mentioned that apart from dealing with the directions given by the Government of India, the Court, in my view, has some duty to perform in this case considering the peculiar nature and facts and circumstances of the case. Incidentally, it may be mentioned that apart from dealing with the directions given by the Government of India, the Court, in my view, has some duty to perform in this case considering the peculiar nature and facts and circumstances of the case. It has been proved by all the parties including the petitioner and the Publisher that the seal should be broken in Calcutta and the desire of the late Maulana Azad should have been translated into action. It may be mentioned that by the letter dated 15th February, 1988 Director of the National Library of Calcutta was requested by Sri R.C. Tripathi, Joint Secretary. Ministry of Human Resources and Culture, Government of India, to being the sealed covers kept in the Notional Library, Calcutta, to New Delhi so that the two sets could be opened together on 22nd February, 1988, But the petitioner's apprehension was that if that was done, then in the event there was every likelihood of creating suspision and doubt in the minds of the people of India including the petitioner as to the authencity of such a historical document inasmuch as there may be some scope for changing the material portion may be of such manuscripts. 10. On the basis of the documents produced before this Court, I am not inclined to hold that the Central Government has acted illegally or wrongfully in issuing such directions in this matter inasmuch as there is nothing unusual to break open the seals of the historical documents by holding a ceremony, to fulfil the desire of late Moulana Azad. But, at the same time, nothing should be done unnecessary to create any doubt and suspicion in the minds of the people regarding such historical documents: The prayer as made by the parties before this court has created a problem for this court inasmuch as if a relief be given in this case, then in that event, the Court must proceed to solve the dispute by following a procedure for the ends of justice by making a departure from the traditional views based on legal technicalities and precedence and, in my view, in a matter like this, simply because the matter is pending before this Court, the Court should not fold its hands and blame others and/or ask the parties to multiply the litigation for obtaining appropriate reliefs. This is a very easy thing to do but this would frustrate the very purpose of such publication and in such a fashion a historical document might be lost and the right of the people of this country to know the contents of such historical documents would be frustrated and made nugatory. It is not the duty of the Court to stand in the way and to stop publication of the documents which are of national importance and which contain some historical facts. Can it be allowed to be confined to some private individuals at the costs of the national interest and/or at the costs of the people's desire and aspiration in this behalf. In my view, the Court will not approach in this matter in a purely legalistic fashion as otherwise it would frustrate the desire of a great national leader of this country, late Moulana Azad. In my view, the people of this country have equally a right to know the contents of these historical documents and such right of the people should not be taken away simply because the public are not before this Court. Any prohibitive order in this behalf, in my view, would be prejudicial to the public interest and if the court stands in the way, I am afraid the people will start losing confidence in the judicial system of the country and Court will be a party to the matters concerning national importance pertaining to freedom of India. Freedom fighters fought for the freedom of India and for the people of India. The people of India have equally a right to know the history of the freedom fighters of the country. 11. Considering the facts and circumstances of this case and rival contentions of the parties and considering the gravity of the situation, I make the following orders : (a) There will be no impediment on the part of the Director of the National Library, Calcutta, in breaking open the seals immediately to make the same available to the public through press and mass media. I am not adjudicating the rights of M/s. Orient Longmans Private Ltd. regarding publication and/or the rights of the heirs of late Moulana Azad and of late Prof. I am not adjudicating the rights of M/s. Orient Longmans Private Ltd. regarding publication and/or the rights of the heirs of late Moulana Azad and of late Prof. Humayun Kabir in the matter and/or to lay down the terms and conditions of such publication and this would be governed by the terms and conditions of the agreement, if at all. The right of the people to know the contents of the documents and the right of publication are two different things and the right of publication and the right of goodwill is not the subject-matter of this writ petition. 12. I make it clear that I am not passing any order adjudicating any of such rights of the parties excepting that I direct that the seals should be broken immediately at Calcutta and should be made known to the public. However, the only requirements that the Director of the National Library is to fulfil is that before the seal is broken he shall invite the heirs of late Maulana Azad and late Prof. Kabir as also eminent historians available in the city, according to his own choice and also Mr. Kulwant Singh, who is stated to be the present Private Secretary to his Excellency, the Governor of West Bengal and who it is stated was the Private Secretary of the late Prof. Kabir at the relevant time, and/or any other educationalist or persons of high status. (b) After the seal is broken, as directed above, the Director shall make a xerox copy of the manuscripts and keep one such copy under the joint seals of the Director and the heirs of late Maulana Azad and of late Prof. Kabir at the relevant time, and/or any other educationalist or persons of high status. (b) After the seal is broken, as directed above, the Director shall make a xerox copy of the manuscripts and keep one such copy under the joint seals of the Director and the heirs of late Maulana Azad and of late Prof. Kabir and the same be kept in the custody of the authorities of the National Libraries and after the book is published by M/s. Orient Longmans or any other publishers after resolving the disputes of the parties in respect of which a suit is pending in Delhi to fix up a date convenient to the Director of the National Library when the publication, if any, is to be made on the basis of the manuscript and to compare the publication along with the manuscript so that there may not be any apprehension in the mind of the public that anything has been done or any interpolation has been done and the people may think that the said publication was an untempered historical events on the basis of the said manuscripts. 13. Before I part with this matter, one thing must be made clear that the press have a right to freedom of speech and expression guaranteed under Art. 19(1)(a) of the Constitution of India and the right of the press in such matter should not be taken away. As such, immediately after the seal is broken and xerox copies are made and kept in a sealed cover, the Director will hold a press conference and would disclose the contents of the documents in such a manner as the Director may think fit and proper so that the people may know the gist of the substance through the press without prejudice to the rights and contensions of the parties in any other proceedings. 14. The writ application is disposed of as above. 15. There will be no order as to costs. After the judgment is delivered the prayer was made for stay of operation of the above order by the Director, Orient Longmans who appeared in the matter 'in person' on the ground that if the publication is allowed to be made on the above terms that would seriously affect the financial interest of the Company. After the judgment is delivered the prayer was made for stay of operation of the above order by the Director, Orient Longmans who appeared in the matter 'in person' on the ground that if the publication is allowed to be made on the above terms that would seriously affect the financial interest of the Company. Though I am not inclined to stay the operation of the above order, but as a matter of Judicial discipline let the operation of the above order be stayed for three days from date.