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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.