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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.