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2005 DIGILAW 634 (CAL)

Sujato Bhadra v. STATE OF WEST BENGAL

2005-09-22

ALOK KUMAR BASU, DILIP KUMAR SETH, SOUMITRA PAL

body2005
Judgment : SETH, J. (1.) I have the privilege of going through the judgment prepared by His Lordship the Honble Alok Kumar Basu, J. I fully concur with the view and the reasoning given therein. However, I would like to add a few words of mine in support of the judgment prepared by His Lordship. (2.) Before we embark upon deciding the question whether the book "Dwikhandita" written by Taslima Narseen of Bangladesh could be proscribed in India, we may note some of the relevant facts, which require attention for the purpose of answering the question. These are : (1) that the book "Dwikhandita" is the third volume of the auto-biolographical trilogy of the author (2) that she, herself a woman, had written the alleged offending part in the context of the status of women in the society in Bangladesh emanating from adopting of Islam as a State religion; (3) that she was expressing her own view and political thoughts/philosophy in relation to the Constitution of Bangladesh of which secularism was one of its salient features since deviated from, subsequently, by the State by adoption of Islam as a State religion doing away with the secularism to suit the particular purpose of the particular ruler; (4) that the author has been in exile from her own motherland for some of her earlier writings that she understood to be the result of religious fundamentalism against which she was unable to obtain any protection from the State machinery in her own motherland; (5) that she was attempting to expose the politico religious situation affecting the society as a whole pushing the position of women into an absolute insolent and abominable existence dominated by the male counterparts in the name of religion aided and abated by the State machinery guided by the State religion; (6) that she was attempting to strike hard to deliver a shock in order to awake the sleeping dormant conscience of the people of Bangladesh to restore secular democracy initially subscribed by the Constitution of Bangladesh and eradicate the maladies of the society and for paving the ways for emancipation of the women and the society ; (7)that she had pointed out of the darkness befalling the State of Bangladesh and . the society on account of religious belief by pointing out the debilities and ill effects inherent in the religious belief opposed to the true religion preached by lalsm, a religion of humanity and mankind. (3.) The intention of the author, who herself profess the same religion, has to be gathered from the context of the book itself which is argued to be an eye-opener pointing out her fingers to the inconsistency in the Holy Scriptures, relying on history and other authentic biographies of the Holy Prophet and the Holy Koran and other Holy Scriptures. It is also to be noted that the passage was written in the context of the position of women in Bangladesh being appraised in the light of adopting of the State religion at the cost of secularism and democracy with different standard for women and men. (4.) That the author is a feminist attempting to emancipate the feminine of her own country and to secure for them a respectable position in the society in Bangladesh and eager to the restoration of democracy and secularism opposed to the religious fundamentalism in Bangladesh so as to enable her to come back to her own motherland the urge whereof is apparent in volumes from her writings. Her entire effort in the book is directed towards the situation in Bangladesh alone. (5.) Keeping this background in mind, we may now proceed to examine the book in its context as a whole and scrutinize the offending passages for the purpose of ascertaining whether the proscribing of the book by the Government of West Bengal could be justified when published by a publisher in West Bengal/India in Bengali language. (6.) Before we proceed to do so, we may discuss the law on the subject and the principles emerging therefrom since settled by the Apex Court in similar such cases and then to apply the same in the facts and circumstances of this case in order to ascertain as to whether the offending passages could be brought to book by reason of the provisions contained in Sections 95 of the Code of Criminal Procedure (Cr. P.C.) and Section 295A of the Indian Penal Code (I.P.p.). Preliminary objection : Locus standi of the petitioner : (7.) However, we may first deal with the preliminary objection with regard to the locus standi of the petitioner to move this petition. P.C.) and Section 295A of the Indian Penal Code (I.P.p.). Preliminary objection : Locus standi of the petitioner : (7.) However, we may first deal with the preliminary objection with regard to the locus standi of the petitioner to move this petition. In the petition, it is alleged that the petitioner is a citizen of India. He owns a copy of the forfeited book. He has a proprietary right in the copy of the said book within the meaning of Article 300A of the Constitution of India. Further, under Article 19(1)(a) of the Constitution of India, he has a fundamental right to freedom of speech and expression as enshrined therein. He claims that he has freedom to seek, receive and impart information from the said book as part of his such fundamental and legal right. The order of forfeiture has impaired his fundamental and legal right. Therefore, he claims himself to be a person who falls within the ambit of the expression "any person having any interest in any .... book" as provided in Section 96 of the Cr. P.C. (8.) We are in agreement with this proposition. In our view, the petitioner, as claimed by him, is such a person having interest in the book within the meaning of Section 96 Cr. P.C. for the reasons following. For this proposition, we may rely on the decision in Union of India v. Association for Democratic Reforms and Anr., JT 2002 (4) SC 501 wherein it was held that :- "(2) Every one shall have the right to freedom of expression; this right shall include freedom to seek receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice." (9.) Section 96 Cr.P.C. provides for an application to the High Court to set aside the order of forfeiture by a person having any interest in any book in respect of which a declaration of forfeiture has been made under Section 95 for setting aside such declaration on the ground that the book did not contain any such matter referred to in Section 95 (1). Section 96 uses the phrase "any person having any interest in any.... book" since proscribed. The phrase any interest in any ... book cannot be circumscribed by any condition. Section 96 uses the phrase "any person having any interest in any.... book" since proscribed. The phrase any interest in any ... book cannot be circumscribed by any condition. Such intention includes the interest of a person who is owner of a copy of such book and wants to retain with him, read it and discuss with others and share or impart information out of it. Similarly, the phrase any person includes anyone having such interest. By reason of such declaration in view of Section 95, the petitioner runs the risk of his book being seized by any police officer and also the risk of search of any premises where he might keep the book. Therefore, we are of the view that the petitioner is a person coming within the purview of Section 96 Cr. P.C. having locus standi to move this petition for setting aside the order of forfeiture. However, in his usual fairness Mr. Balai Chandra Roy, learned Advocate General, though did not conceded the point, but did not elaborate his submission on this point. Therefore, we overrule the preliminary objection and hold that the petitioner has locus standi to maintain this petition before this Court. Section 95 : Scope and Impact : (10.) In order to substantiate the situation, we may beneficially quote Section 95 Cr.P.C. as follows :- "95. Power to declare certain publications forfeited, and to issue search-warrants for the same (1) Where-(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 295A 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 (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". (11.) Section 95 Cr. P.C. empowers the State Government to declare certain publications forfeited. Such power is exercisable where it appears to the State Government that any book contains any matter punishable under Section 295A I.P.C. The State Government may, by notification stating the grounds of its opinion, declare every copy of such book to be forfeited to the Government. Upon such declaration any police officer is authorized to seize the same wherever found in India. This declaration also authorizes any Magistrate to authorize any police officer, not below the rank of sub-inspector, by warrant, to enter upon and search for any such book reasonably suspected to be in any premises. Thus, in order to proscribe a book, the State Government has to form an opinion Such opinion is to be stated in the form of grounds in the notification of the declaration that might be issued by the State Government. The opinion that has to be formed is in relation to a book to the extent that the book contains matter punishable under Section 295A I.P.C. It is not an absolute power. It is a power, the exercise whereof, is dependent on the containing of matters punishable under Section 295A I.P.C. Unless the matter attracts the mischief of Section 295A I.P.C., the book cannot be proscribed. It is a power, the exercise whereof, is dependent on the containing of matters punishable under Section 295A I.P.C. Unless the matter attracts the mischief of Section 295A I.P.C., the book cannot be proscribed. Section 295A I.P.C. : Scope, Ambit and Effect: (12.) Section 295A I.P.C. reads thus :-"295A Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of citizens of India, by words, either spoken or written, or by signs or by visible representations or otherwise insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both." (13.) In order to attract the mischief of the provision of Section 295A in the present case, the following ingredients are to be satisfied, viz; a person (1) by written words (2) with deliberate and malicious intention (3) of outraging the religious feelings (4) of any class of citizens of India (5) insults or attempts to insult the religion or the religious beliefs of that class. In other words, (1) the intention has to be deliberate and malicious both and (2) for outraging the religious feelings (3) of a class of citizens of India (4) in order to insult or attempt to insult the religion or religious belief of that class i.e. ; in India (5) by written words. (14.) It may also be noted that Section 295A confines the effect of the offending only on the citizens of India; whereas whoever may be the author. In this case, we are concerned with the impact of the book on the citizens of India. The author is not a citizen of India. She, therefore, cannot claim any fundamental right of freedom of speech or expression guaranteed under Article 19(1)(a) of the Constitution of India; but the writ petitioner can. When tested in a case where the author is not a citizen of India, the standard of the principle cannot be deviated from those applicable to a citizen, in view of Article 14 attracting the principle of arbitrariness. However, in this case, the writ petitioner, a citizen of India, is seeking to establish his freedom of speech and expression. Section 96 Cr. However, in this case, the writ petitioner, a citizen of India, is seeking to establish his freedom of speech and expression. Section 96 Cr. P.C. : Scope and Ambit: (15.) Before we discuss the matter further, we may also examine the scope of High Courts interference under Section 96 Cr. P.C. Sub-section (4) of Section 96 empowers the High Court to set aside the declaration of forfeiture if it is not satisfied that the book proscribed does not contain any such matter referred to in Section 95(1) Cr. P.C. This so appears from subsection (4) of Section 96, which reads thus :-"(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." (16.) The High Court can go into the merits of the decision of the Government to forfeit the book. The said power is in the nature of an appeal. The High Court, however, cannot issue a different order of forfeiture by itself. In order to buttress this proposition, we may refer to the decisions in Gopal Vinayak Godse v. UOI, 1971 Cr. LJ 324 (Paras-51,52) and Harnam Das v. State of U.P., AIR 1961 SC 1662 (paras-9 to 12). The principle : (17.) Section 295A I.P.C. was tested on the anvil of constitutionality and validity in Ramji Lal Modi v. State of U.P., AIR 1957 SC 620 wherein the Apex Court while holding the constitutionality of the said section taid down that insults to religion offered unwittingly or carelessly or without any deliberate or malicious intention to outrage the religious feelings of that class do not come within the section (para-9). (18.) Therefore, Insult or attempt to insult the religion or religious belief when made with an intention, which must be deliberate or malicious, of outraging the religious feelings of a class of citizens of India, then only the provisions of Section 295A would be attracted. The outrage to religious feelings or insult to religion or religious belief if made unwittingly or carelessly or without any deliberate and malicious intention, then the same would not come within the purview of Section 295A I.P.C. The expression deliberate and malicious is indicative of the intention of the legislature. The outrage to religious feelings or insult to religion or religious belief if made unwittingly or carelessly or without any deliberate and malicious intention, then the same would not come within the purview of Section 295A I.P.C. The expression deliberate and malicious is indicative of the intention of the legislature. The conjunction and conjoins both. It must be both deliberate and malicious i.e. deliberately malicious. If it is made knowingly, but with an intention not deliberate nor malicious, but with an intention oriented by clinching or revitalizing or striking a blow for the well being of the society or for emancipation of the women, which is necessary for the mankind, in that event, such outraging of religious feelings or insult to religion or religious belief, though may be intentional but can not be termed deliberate and malicious even if it is not made unwittingly or carelessly. If it is inflicted in good faith by an author in his/her endeavour or object to facilitate some measure on social reform by administering such a shock to the followers of the religion, as would ensure notice being taken by any criticism so made, would not attract the mischief of Section 295A by reason of the phrase "with deliberate and malicious intention" qualifying the intention. In order to establish the ingredient of Section 295A to be applicable in a case it is to be established that the author had the requisite mens rea deliberate and malicious to outrage the religious feelings of a class of citizens of India and to insult or to attempt to insult the religion and religious beliefs of that class of citizens of India. The offence must be intended deliverately and maliciously for the citizens of that class in India. Therefore, we are to examine whether the offending passage was (1) written (2) with the deliberate and malicious intention (3) of outraging the religious feelings to insult the religion or religious beliefs (4) of a particular class of citizens (5) of India. The intention of the author has to be found out from the book itself having regard to the context in which it was written. (19.) The author has written the passages in the book. The passages tend to outrage the religious feelings of the followers of a particular religion. These also tend to insult the religion or religious beliefs. The intention of the author has to be found out from the book itself having regard to the context in which it was written. (19.) The author has written the passages in the book. The passages tend to outrage the religious feelings of the followers of a particular religion. These also tend to insult the religion or religious beliefs. If this is intended deliberately and maliciously to offend the Indian citizens of that class, then only the mischief of Section 295A I.P.C. will be attracted. The intention must both be deliberate and malicious and must be meant for the Indian citizens of that class, (20.) In the present case, admittedly, the author was dealing with the position of women in Bangladesh and the impact of the State religion to subvert secularism and democracy in the socio-religio-politico context of the State of Bangladesh and its Constitution. If it appears that it was a shock meant for the citizens of Bangladesh to bring to their notice the effect of the State religion vis-a-vis the position of women in the society and its ill effects and impact which needs to be eradicated and such shock is aimed at reviving secularism, restoring democracy and emancipating women for the well being of the society in Bangladesh, then whether it can be said that it was intended to insult the religion or religious belief for outraging the religious feelings of the citizens of India. (21.) Admittedly, India is secular. In India, there is no State religion. In India, there is democracy. In India, women are free and stand in equal footing and no discrimination is permissible in any respect with regard to the status of women in the society, social or political or in respect of employment or otherwise. The position of women in India even of that particular class stands on equal footing with the counterparts belonging to other class. In any event the author was concerned with the politico-religious impact on the society emerging in Bangladesh only and not in India. Therefore, she cannot be said to have intended to insult the religion or religious beliefs of any class of citizens of India to outrage their religious feelings. By no stretch of imagination such an intention even without being deliberate or malicious could be discovered from the alleged offending passages of the book. Therefore, she cannot be said to have intended to insult the religion or religious beliefs of any class of citizens of India to outrage their religious feelings. By no stretch of imagination such an intention even without being deliberate or malicious could be discovered from the alleged offending passages of the book. (22.) This principle finds support from the report of the Select Committee published on 17th September, 1927 in the Gazette of India from where we may extract the voice of the Select Committee, viz. :- "Further, we were impressed by an argument to the effect that an insult to a religion or to the religious beliefs of the followers of a religion might be inflicted in good faith by a writer with the object of facilitating some measure of social reform by administering such a shock to the followers of the religion as would ensure notice being taken of any criticism so made. We have therefore amplified the words with deliberate intention by inserting reference to malice, and we think that the section which we now evolve will be both comprehensive and at the same time of not too wide an application." Deliberate and Malicious: (23.) Now we may examine the scope of the expression deliberate and malicious qualifying the intention in Section 295A. The word deliberate is defined in Blacks Law Dictionary, 6th Edition, pages 426-427 as :-"Well advised ; carefully considered ; not sudden or rash; circumspect; slow in determining ; willful rather than merely intentional. Formed arrived at, or determined upon as a result of careful thought and weighing of considerations, as a deliberate judgment or plan". "By the use of this word, in describing a crime, the idea is conveyed that the perpetrator weights the motives for the act and its consequences, the nature of the crime, or other things connected with his intentions, with a view to a decision thereon; that he carefully considers all these, and that the act is not suddenly committed". "By the use of this word, in describing a crime, the idea is conveyed that the perpetrator weights the motives for the act and its consequences, the nature of the crime, or other things connected with his intentions, with a view to a decision thereon; that he carefully considers all these, and that the act is not suddenly committed". The word "malicious" has been defined in Blacks Law Dictionary, 6th Edition, page 958 as characterized by, or involving, malice, having, or done with, wicked, evil or mischievous intentions or motives." (24.) In order to find out the meaning of the word malicious, we may fall back on the passage by Bayley, J., in Bromage v. Prosser, 1825 (4) B and C 247 at page 255 viz., "Malice in common acceptance means ill will against a person, but in its legal sense it means a wrongful act, done intentionally, without just cause or excuse." The man acts maliciously when he willfully and without lawful excuse does that which he knows will injure another person or his property. The term malicious means wicked, perverse and incorrigible disposition. It means and implies an intention to do an act, which is wrongful, to the detrimental of another where any person willfully does any act injurious to another without lawful excuse he does it maliciously Whether a person has acted maliciously is a question of fact to be proved. (25.) In order to establish malice as contemplated by Section 295A, it is not necessary to prove that the accused bore ill will or enmity against specific persons. If the injurious act was done voluntarily without a lawful excuse, malice may be presumed. Malice is often not capable of direct and tangible proof and in almost all cases has to be inferred from the surrounding circumstances having regard to the setting, background and connected facts in relation to the offending article. The Select Committee in their report published in Gazette of India dated 17th September, 1927 stated that the essence of the offence is "that the insult to religion or the outrage to religious feelings must be the sole, or, primary, or at least deliberate and conscious intention. We have accordingly decided to adopt the phraseology of Section 298 which requires deliberate intention in order to constitute the offence with which it deals." (26.) In state of A.P. and Ors. We have accordingly decided to adopt the phraseology of Section 298 which requires deliberate intention in order to constitute the offence with which it deals." (26.) In state of A.P. and Ors. v. Goverdhanlal Pitti, 2003 (4) SCC 739 , it was held that "The legal meaning of malice is "ill will or spite towards a party and any indirect or improper motive in taking an action". This is sometimes described as malice in fact. Legal malice or malice in law means something done without lawful excuse. In other words, it is an act done wrongfully and willfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. It is a deliberate act in disregard of the rights of others. (See Words and Phrases Legally Defined, 3rd Edn., London Butterworths, 1989)." (27.) In Smt. S. R. Venkataraman v. Union of India and Anr., AIR 1979 SC 49 the Apex Court held that malice in law is, however, quite different from malice in fact. Thus malice in its legal sense means malice such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse, or for want of reasonable or probable cause. Viscount Haldane described it as follows in Shearer v. Shields, 1914 AC 808 at p. 813:- "A person who inflicts an injury upon another person in contravention of the law is not allowed to say that he did so with an innocent mind; he is taken to know the law, and he must act within the law. He may, therefore, be guilty of malice in law, although, so far the state of his mind is concerned, he acts ignorantly, and in that sense innocently.," Outraging the religious feelings : (28.) In Section 298 I.P.C., the word wounding has been used. Whereas in Section 295A I.P.C., the word outraging has been used Outraging is a much stronger word than wounding. In Murrays Dictionary outrage is explaned as "to wrong grossly, treat with gross violence or indignity. The Select Gommittee in their report stated : We think that to penalies even an intentional outrage or attempted outrage upon the-religious feelings of any class would be casting the net too wide for the cases with particular reference to which the Bill has been introduced. The Select Gommittee in their report stated : We think that to penalies even an intentional outrage or attempted outrage upon the-religious feelings of any class would be casting the net too wide for the cases with particular reference to which the Bill has been introduced. At the same time, we realise that the reference to the outraging of religious feelings was inserted to provide for the case of an insult to the founder of a religion or a person held sacred by the followers of a particular religion where such an outrage does not amount to an insult of the religion. It has in one instance been held that an insult to the founder of a religion is not necessarily an insult to the religion although it may outrage the religious feelings of the followers of that religion. We have therefore provided that the new section shall only apply in case where a religion is insulted with the deliberate intention of outraging the religious feelings of its followers. In other words, the words used should be such as are bound to be regarded by any reasonable man as grossly offensive and provocative and maliciously and deliberately intended to outrage the feelings of any class of citizen of India, though, however, the truth of the allegations cannot be a good defence to charge under Section 295A." (29.) The Select Committee in their report stated that : "to make it clear that an attack on a founder is not omitted from the scope, of the section, we have specifically made punishable an insult to the religious beliefs of the followers of any religion" (Gazette of India, dated September 17,1927) In Ambalal Paragji, 1929 Crim. Appeals Nos. 17 and 18 of 1929 decided by Patkarand Baker, JJ., on April 12, 1929 (Unreported Bombay case) Baker, J. held that: "The violently abusive and obscene diatribe against the offender or prophet of a religion or against a system of religion may amount to an attempt to stir up hatred or enmity against the persons who follow that religion. To attribute to the Mahomedan religion the teachings of the doctrine of Dawood a heretic, is insulting to that religion, and if done, deliberately and maliciously, would fall under Section 295A. To attribute to the Mahomedan religion the teachings of the doctrine of Dawood a heretic, is insulting to that religion, and if done, deliberately and maliciously, would fall under Section 295A. There is a further reference to God, who, according to the Mahomedan, is a celibate, having given permission to Mahomedan males to have as many as four wives to boot and have as many non-Mahomedan women as they like and other liberties with regard to women. I agree with the Sessions Judge as regarding this as insulting to the Mahomedan religion and if the insult is malicious and deliberate with the intention of outraging the feeling of Mahomedans the publication would be an offence under Section 295A." In Shri Krishna Sharma, 1955 (8) Sau. L.R. 42 (FB), it was held that anything, which preaches insult to religion or religious beliefs of another class, definitely tends to disturb public order. (30.) The question remains and has to be looked into in the present perspective in an era of women emancipation and the society, both national and international, advocating gender justice pointing out to the ills in the society perpetrated in the name of custom or religion or faith now being sought to be eradicated. A conscientious and conscious effort is being undertaken internationally to reach justice to the gender by removing inequality. God has created all human beings as equal and a custom or a social system making women less equal whether supported by religion or not is now has to be given a different look. Could an attempt to remove such malaise and ills by delivering/administering a shock and that too by a follower of the same religion be counted to be perceived by a deliberately malicious intention? It is high time that we look at this and do not close our eyes simply because it has a sanction by religion and when sought to be pointed out the followers of such religion cannot so claim when in the context and the surrounding circumstances, it is extremely difficult to find out any malice. It is high time that we look at this and do not close our eyes simply because it has a sanction by religion and when sought to be pointed out the followers of such religion cannot so claim when in the context and the surrounding circumstances, it is extremely difficult to find out any malice. (31.) The question has to be looked into having regard to the present day context, particularly, in India; where the State does not follow any religion and the Constitution ensures secularism and gives equal right to men and women and discrimination is ruled out irrespective of sex caste, creed or religion; where the Government of India is taking bold steps to reserve seats in Panchayats, and the Parliament is considering to reserve seats in the legislatures for the women, with a view to uplift the status of the women in the society; and where different High Courts and the Supreme Court are heavily coming down upon the gender inequalities in every sphere of life whether sanctioned by custom or religion or faith or any kind of system; and where many other social welfare organizations are advocating the cause of uplifting and emancipation of the women to raise themselves at the same platform with their counterparts with equal rights since guaranteed under the Constitution of India. In the above perspective can a citizen of India, whatever class he may belong to, feel when such attributes are made with reference to the religion or religious beliefs by a follower of the same class in the social perspective of a foreign country within the socio-religio-politico context of that country being moved by a sincere effort to strike at the root of the inequalities perpetrated through State religion of that foreign country, as outraging of religious feelings to insult or attempt to insult the religion or religious beliefs of that class in India a different country with deliberate malicious intention! In any event, can it be said that the author has authored the passage with a deliberate malicious intention of outraging the religious feelings to insult or attempting to insult the religion and religious belief of the follower of that religion in India or of that religion in general When the world is marching forward towards achieving equality to men and men, women and women and men and women grown ups and children, poor and rich, white and coloured through the United Nations Organizations and other world or international organizations and the world has gone global, a new approach is definitely necessary for the cause of humanity. The superstition, beliefs, faiths, customs, usages, social taboos spreading its tentacles to keep particular sections of the human race subjugated as sub-human being are subjects from which every human being is attempted to be freed. This in an area which the fundamentalists intend to keep gray and would always attempt to generate the voice of fundamentalism making the area grayer perpetrating the maladies affecting the society, and thwarting the social sensitization and the social awareness and social evolution and development, and attempt to create a barrier against the progress, and want the society to step backward, and keep the situation as it stood in the medieval period. What might have been good and right, what might have been the need of the hour in those medieval periods cannot be questioned now. Nor anyone can question the wisdom of the Holy Prophet and the wisdom of the holy scriptures. But history has shown us that the evolution of the mankind is continuous through the ages, and many customs, systems and beliefs have since changed through evolution. Nor anyone can question the wisdom of the Holy Prophet and the wisdom of the holy scriptures. But history has shown us that the evolution of the mankind is continuous through the ages, and many customs, systems and beliefs have since changed through evolution. Many ills and maladies ingrained in the society have been eradicated or removed mostly through the people following the same religion by their own emancipating thoughts and ideologies and sometimes striking very hard at the faiths and beliefs of the followers of that particular custom/system sanctioned by religion (32.) India as a progressive country thriving for achieving the goal of equality in particular the gender equality and the rules and laws being framed for preaching such gender equality and gender sensitization which we the people in India are following, are enough to prevent the State Government to presume that we the people of India, to whatever class we may belong or whatever religion we may follow, particularly, the people of West Bengal, who are known for their emancipated attitude, political sensitization and open mindedness and who are known for their apathy to and have broken the barriers of caste, creed and religious distinction, and who are known to be the most politically sensitized people throughout India and also known for being free from communalism which the history has seen for a long time viz. that no communal riot had ever erupted between any communities in West Bengal, would be so unreasonable, immature and susceptible ! Could the State of West Bengal may have any ground to assume that these people would be so immature and susceptible to think that the author had deliberately intended with malice to hurt their religion or religious feelings or beliefs! On the other hand, such a system is not being perpetrated in India and India having emancipated from such a situation giving the same rights and light of education to the women of all class would have any faint ray of idea that these citizens of that class to be so less intelligent, less mature that it would not be intelligible to them as to what the author had intended to. Such a presumption not only might tend to cast an aspersion but also might tend to inflict an insult to that class of citizen. Such a presumption not only might tend to cast an aspersion but also might tend to inflict an insult to that class of citizen. It would rather tend to be disheartening to note that the Government of West Bengal does not have faith and confidence about the maturity of its own citizens of that class and tend, on the other hand, to recognize the soaring voice of fundamentalism and ignore the rational voice of the mass who did not take exception though the book was read by them over a considerable period before being prescribed. Justification or Lawful Excuse : (33.) Our attention has been drawn to various passages from the glorious Koran, Bhukhari Sharif. A Challenge To Islam For Reformation by Gunter Luling. And Muhammad Is His Messenger (Annemarie Schimmel). Arabia before Islam (The Formation of Islam-Jonathan P. Beikey). Islam and Religion (Dictionary of Marxist Through Tom Bottamore), Women before Islam (Foundation of Islam Benjamin Walker), Mohammad Maxima Rodinson (Birth of a Prophet) and Faith Freedom Org. (Mariyah the sex salve of the Holy Prophet) in order to show that the passage did not contain any statement without lawful excuse. Inasmuch as Mr. Bagchi wanted to point out by drawing out attention to various passages from those books, the extracts whereof have since been xeroxed and annexed in his Affidavit-in-Reply, that the statements made in the said passages cannot be brushed aside as simple fall-out and that it has some historical basis. (34.) It may be noted that we are not of the view that if a truth is spoken, it would not attract the mischief of Section 295A when it is oriented by deliberately malicious intention to outrage the religious feelings or to otherwise insult or attempt to insult the religion or religious belief of a particular class. On the other hand, we say that if the statements are founded on historical truth or though there may be difference of opinion, but not to the extent of absurdity and are accepted as historical truth in the academic sphere, then the question has a bearing on the intention of the author to ascribe the same as deliberate and malicious. The support of historical truth may lead the Court to presume that there is no malice. The support of historical truth may lead the Court to presume that there is no malice. But, at the same time, the Court has to examine, even if it might presume absence of malice, the surrounding circumstances and the facts in order to arrive at a conclusion with regard to the existence or deliberate malicious intention on the part of the author. This examination leads us to the question, which is to be gathered from the text and the scheme/central theme of the whole book and the surrounding circumstances.