DIPAK KUMAR SEN, A.C.J.

(1) CHANDMAL Chopra, the appellant and one Setlal Singh moved this Court under Art. 226 of the Constitution at about the end of March, 1985 for a Rule Nisi against the State of West Bengal, the respondent, calling upon the latter to show cause why a writ of mandamus should not be issued directing the respondent to declare that each copy of the Koran whether in original Arabic or in its translation in any other language be forfeited to the Government and that the said Rule should be made absolute.

(2) THE case in the petition was, inter alia, that the writ petitioners were citizens of India and engaged in social work and that the respondent was a public authority.

(3) THE Koran, also spelt as quran and stated to be religious book of the Muslims all over the world was written originally in the arabic and available throughout India in the original Arabic or in its translations in Urdu, Bengali, Hindi, English and other languages.

(4) THE Koran it was alleged incited violence, disturbed public tranquillity, promoted, on grounds of religion, feelings of enmity, hatred and ill-will between different religious communities and insulted the religion or religious beliefs of other communities in India.

(5) IN support of the aforesaid, portions of various parts of Koran included in surahs and ayats therein were quoted in the petition, in extenso.

(6) IT was contended that the publication of the Koran containing the aforesaid offending portions was punishable under S. 153a and S. 295a of the Indian Penal Code and as such came within the mischief of S. 95 of the Cr. P. C. , 1973. As a public authority the respondent had a duty to invoke the said S. 95 of the Cr. P. C. and to forfeit all copies of the Koran and seize the same wherever found in India.

(7) IT was alleged that by a letter dt. 16th March, 1985 addressed to the Secretary, Department of Home, Government of West Bengal, the appellant had called upon the respondent Government but the respondent had failed to comply with the demand. It was contended that the respondent by refusing to make the declaration as sought for had failed to discharge its statutory duty laid down in S. 95 of the Cr. P. C. , 1973.

(8) THE learned Judge to whom the writ petition was assigned heard the application only to decide whether a Rule Nisi should be issued on the application or not. The State of West Bengal appeared at the hearing and opposed the application. The Union of India intervened and supported the State of West Bengal.

(9) AFTER hearing the parties, the learned Judge by his judgment and order dt. 17th May 1985 dismissed the application. It was held by the learned Judge that the Koran was the basic text of Muslim religion and was a sacred scripture. Following the decision of the Supreme Court in Veerabhadran Chettiar v. Ramswami Naicker, reported in AIR 1958 SC 1032 [LQ/SC/1958/96] the learned Judge held further that the Koran was an object held sacred by a class of persons within the meaning of S. 295 of the I. P. C. and as such it fell beyond the purview of S. 295a of the Code.

(10) THE learned Judge held that portions of the Koran had been quoted by the petitioners out of context and the same did not reflect any malicious or deliberate intention of outraging the religious feelings of non-muslims. It was noted that there were various interpretations of the different verses of the Koran.

(11) THE learned Judge held that the orders sought for by the writ petitioners would contravene the preamble of the Constitution and violate the provisions of Art. 25 thereof. India, being a secular State, each and every religion practised or professed had to be treated equally and protected. The Koran as the basic text book of a religion occupied the position similar to that of the Bible, Gita, Ramayana and Mahabharata. Orders, if any, passed against the Koran would take away the secularity of India and would deprive a section of its citizens of their right to profess and practice their religion freely. In fact, the proposed action would amount to abolition of the Muslim religion itself which would not exist without Koran. The Court could not sit in Judgment on holy books like Koran, Bible, Gita and Granth Sahib.

(12) CONSIDERING the history and the source of Koran, the learned Judge observed that according to the Muslim belief the Koran was of divine origin revealed to the Prophet. The philosopy and the principle laid down in Koran had no earthly source.

(13) THE learned Judge held further that Koran had been in existence for long and had been interpreted and translated throughout the ages and up till now no one has chosen to challenge the book.

(14) THE learned Judge also held that public tranquillity had not been disturbed at any material time by reason of the existence of the Koran and there was no reason to apprehend that there was likelihood that there would be such disturbance in future. On the other hand, the proceedings initiated by the writ petitioners could be said to have promoted on the ground of religion disharmony or feelings of enmity, hatred or ill-will between the different religions and the proceedings initiated by the petitioners itself offended S. 295a of the Penal Code.

(15) THE learned Judge held that no prima facie case was made out for invoking the writ jurisdiction of this Court and that this Court had no power or jurisdiction to pass the orders prayed for.

(16) THE present appeal is from the said judgment and order dt. 17th May 1985, by Chandmal Chopra one of the writ petitioners.

(17) AT the hearing before us, the appellant, who appeared in person, submitted that India was a secular State according to its Constitution. The appellant cited standard Dictionaries like Webster, Oxford and Chambers for the meaning of the expression secular, according to the dictionaries the expression meant, inter alia, a system which disregards or rejects any form of religious faith or worship; a view of life which accepted as a premise that religion and religious consideration should be ignored or excluded; not concerned or dedicated to the service of religion or religious uses. The appellant submitted that Courts of law in a secular State could not come to a finding that any particular book or text was of divine origin or source. A matter of belief of the persons professing the religion could not be adopted by Court of law.

(18) THE appellant next submitted that the learned Judge by placing Koran beyond the scrutiny of Courts abridged the principle of supremacy of law and the Constitution. On an analyis of the Koran and the principles laid down therein, such a conclusion was not warranted. He submitted further that in Veerabhadran Chettiar (1958 Cri LJ 1565) (SC) (supra) the Supreme Court had only observed that some books including Koran were considered to be sacred by certain communities. In any event, whether Koran was divine book or not was not in issue before the Supreme Court and the Supreme Court did not examine the said book to determine the said question. The said decision was not relevant in the context of the instant proceedings.

(19) THE appellant submitted next that the learned Judge erred in holding that the Koran being protected under S. 295 of the Penal Code was immune from the operation of S. 295a thereof. It was submitted that Ss. 295 and 295a of the Code were independent of each other and operated in their respective fields. In spite of S. 295 of the Code, the State could demolish a temple constructed in an unauthorised manner illegally. The only question to be determined was whether any action was called for against the Koran under S. 95 of the Criminal Procedure Code, 1973 read with Ss. 153a and 295a of the Penal Code,

(20) SECTION 95 of the Cr. P. C. did not make any distinction between religious and other books and applied to all books irrespective of their contents.

(21) THE appellant next submitted that Art. 25 of the Constitution was subject to public order and morality and therefore, if passages from the book Koran were found to be detrimental to the public order or immoral then Art. 25 of the Constitution would not stand in the way of an action under S. 295a of the Penal Code.

(22) IT was next submitted that the fact that Koran had been in circulation for a number of years was no justification for not taking any action against the book as it was being continued to be published, circulated and sold presently.

(23) IT was next submitted that the learned Judge was not entitled to rely on alternative interpretation of the offending portions of the Koran without considering the entire book and the context in which the said offending passages occurred.

(24) IT was next submitted that the finding of the learned Judge that there was no deliberate or malicious intention of outraging the religious feelings of non-muslims in the Koran was not correct, as the said offending portions of the book ex facie indicated such intention.

(25) THE appellant admitted that forfeiture of the Koran might amount to abolition of the religion itself but a Court of law was bound to decide and pronounce judgment on law as it stood and was not concerned with the result. It was submitted that the writ petitioners had made out a prima facie case and the learned Judge erred in dismissing the writ petition at the preliminary stage.

(26) IN support of his contentions, the appellant relied on and cited Ramlal Puri v. State of Madhya Pradesh, reported in AIR 1971 Madh Pra 152. In this case a version of the Ramayana written by the head of a particular school of Jain sect, was forfeited by the Government of Madhya Pradesh under S. 99a of the Cr. P. C. 1898 which was in pari materia with the provisions of S. 95a of the Cr. P. C. , 1973. The said action was challenged before the High Court. A Full Bench of the Madhya Pradesh High Court held that the offending book sought to give an objective picture of past events without comment and the facts in the book were based on earlier Jain version of the Ramayana and, therefore, did not come within the mischief of S. 295a of the Penal Code. The contents of the offending book were noted in the context of the original Ramayana.

(27) LEARNED Advocate General who appeared for the State of West Bengal submitted that the instant proceedings were motivated inasmuch as by initiating such proceedings a particular established religion of India was sought to be belittled and the prevailing harmony between the different communities and religions was sought to be disturbed. There was no immediate cause or reason why a religious text book or scripture accepted for ages was sought to be impugned.

(28) RELYING on the preamble and Art. 25 of the Constitution the learned Advocate General submitted that S. 95 of the Cr. P. C. must be read subject to the said provisions of the Constitution. It was abundantly clear that established and accepted religions in India and their basic texts and scriptures were not subject to judicial review and must be excluded from consideration by Courts in any proceeding whatsoever. In any event, the appellant and the other writ petitioner had posed a question before this Court which was primarily theological and could not be discussed or determined in Court.

(29) THE learned Solicitor General also intervened in this appeal on behalf of Union of India. He opposed the appeal and adopted the submissions made on behalf of the State of West Bengal by the learned Advocate General. He submitted further that the book Koran was universally known as the holy book of Islam and was regarded by persons professing the religion to be the true words of God revealed to the Prophet Mohammad. He referred to the 15th edition of the New Encyclopaedia Britannica, Vol. 15 where historical facts relating to or touching Koran had been discussed, He also cited the Universal Declaration of Human Rights which was adopted by the United Nation in its General Assembly in 1948. In Art. 18 of the said Declaration it was laid down that every one had the right to freedom of thought, conscience and religion which included freedom to manifest his religion or belief in teaching, practice worship and observance.

(30) LEARNED Solicitor General also submitted that the wirt petition was otherwise not maintainable inasmuch as any action under S. 95 of the Cr. P. C. , 1973 was to be taken by the Government only on the basis of its subjective opinion. It was not open to the Court to impose its opinion on the State and direct the latter to act thereon. When the State took action under the said S. 95 it had to state the grounds of its opinion on which the order was passed. Only then the High Court had jurisdiction under S. 96 of the Cr. P. C. to adjudicate on the validity and the sufficiency of such opinion. This jurisdiction could be exercised only by a Bench consisting of three learned Judges.

(31) LEARNED Solicitor General drew our attention to several decisions which are noted hereafter. (a) Harnam Das v. State of Uttar Pradesh, reported in AIR 1961 SC 1662 [LQ/SC/1961/222] . This decision of the Supreme Court was cited for the following observations : "the order of forfeiture with which S. 99d is concerned is indisputably an order under s. 99a. Now, an order under that section is essentially an order of the Government and of no one else. " "now assume that in an application made to set it aside, the High Court was not satisfied that view A could offend community X but thought that another expression of view of the same book which we will call B, offended the religious beliefs of a different community, say community Y. If in such a case the High Court upheld the order, which, if the view of the Court below is right, it could do, there would really be an order of forfeiture made by the High Court and not by the Government, because the Government in stating the grounds of its opinion had not, since it did not say so, thought that view B could offend the religious beliefs of community Y. We think it impossible that the sections concerned contemplated such a result; the Code nowhere provides for an order of forfeiture being made by the High Court. " (b) Public Prosecutor v. P. Ramaswami, reported in (AIR 1964 Mad 258 [LQ/MadHC/1963/352] : 1964 (1) Cri LJ 672). This decision was cited for the proposition that under S. 295a of the Penal Code only the aggravated forms of insult to religion perpetrated with the deliberate and malicious intention of outraging the religious feeling of a class of citizens was punishable. In reiterating this principle, the Madras High Court followed the decision of the Supreme Court in Ramjilal Modi v. State of U. P. reported in AIR 1957 SC 620 [LQ/SC/1957/36] . (c) Ahmedabad St. Xaviers College Society v. State of Gujarat, reported in AIR 1974 SC 1389 [LQ/SC/1974/170] . This decision of the Supreme Court was cited for the following observations on Art. 25 of the Constitution and the expression secular :

"the object of Arts. 25 to 30 was to preserve the right of religious and linguistic minorities, to place them on a secure pedestal and withdraw them from the vicissitudes of political controversy. . . . . . . . . "

"as long as the Constitution stands as it is today, no tampering with those rights can be countenanced. Any attempt to do so would be not only an act of breach of faith, it would be constitutionally impermissible and liable to be struck down by the courts. Although the words secular State are not expressly mentioned in the Constitution, there can be no doubt that our Constitution makers wanted establishment of such a State. The provisions of the Constitution were designed accordingly. There is no mysticism in the secular character of the State. Secularism is neither anti-God, nor pro-God; it treats alike the devout, the agnostic and the atheist. It eliminates God from the matters of the State and ensures that no one shall be discriminated against on the ground of religion. The Constitution at the same time expressly guarantees freedom of conscience and the right freely to profess, practise and propagate religion. The Constitution-makers were conscious of the deep attachment the vast masses of our country had towards religion, the sway it had on their minds and the significant role it played in their lives. To allay all apprehensions of interference by the legislature and the executive in matters of religion, the rights mentioned in Arts. 25 to 30 were made a part of the fundamental rights and religious freedom contained in those Articles was guaranteed by the Constitution. "

(d) Lalai Singh Yadav v. State Uttar Pradesh, reported in 1971 Cri LJ 1773 (All) (FB). In this case a book containing a compilation of speeches of late Dr. Ambedkar was sought to be forfeited under S. 99 of the Cr. P. C. , 1898. the said action was challenged and a Full Bench of the Allahabad High Court held that the offending book contained rational criticism of the Hindu religion and there was nothing objectionable therein which might be said to insult Hindu religion or promote disharmony or hatred between different castes. There was nothing which could be said to be punishable under S. 153a or under S. 295a of the Penal Code. The forfeiture was set aside. (e) M/s. Varsha Publications Pvt. Ltd v. State of Maharashtra reported in 1983 Cri LJ 1446 (Bom). In this case it was held by a Special Bench of the Bombay High Court that an article on history and religion based on research and reference book could not be forfeited under S. 95 of the Cr. P. C. , 1974. It was observed that historical events could not be kept forever secret on the ground that it might promote violence, enmity or hatred. An attempt to extinguish history by prohibiting publication under S. 95 has to be treated as mala fide.

(32) TO appreciate the controversy involved in this appeal and the scope thereof it is necessary to consider the preamble and Art. 25 of the Constitution as also the relevant sections of the Penal Code and the Cr. P. C. The relevant portions thereof are set out hereunder: preamble

"we the people of India, having solemnly resolved to constitute India into a sovereign socialist secular democratic republic and to secure to all its citizens :. . . . . . . Liberty of thought, expression, belief, faith and worship. "

Article 25 : (1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion. " indian Penal Code section 153a" (1) Whoever- (a) by words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony of feelings of enmity hatred or ill-will between different religious, racial language or regional groups or castes or communities, or (b) commits any act which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities, and which disturbs or is likely to disturb the public tranquillity, or" "shall be punished with imprisonment which may extend to three years, or with fine, or with both. "

Section 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. "

Criminal Procedure Code, 1973 Section 95" (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 S. 124a or S. 153a or S. 153b or S. 292 or S. 293 or S. 295a of the 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 authorise 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. "

(33) IT appears to us that it has been established, that:

(a) Islam is an accepted religion of a large number of citizens of India and also of a large number of persons outside India. (b) Koran is the basic religious text or scripture of Islam. (c) The followers of Islam believe that Koran is of divine origin being revelations made by God to Mohammad the Prophet of Islam. (d) The Koran is considered to be a holy book by the followers of Islam.

(34) IN any event, we can take judicial notice of the aforesaid facts. In that view, we hold that the Courts cannot sit in judgment over the Koran or the contents there of in any legal proceedings. Such adjudication of the religion itself is not permissible. Similarly the Courts cannot and will not adjudicate on theories of philosophy or of science or scientific principles.

(35) EVEN an attempt to consider the Koran in the context of S. 95 of the Cr. P. C. , 1973 would be infructuous at the inception inasmuch as the preamble of our Constitution and Art. 25 thereof throw a protective shield over matters of religion including the holy religious books and scriptures. Any attempt to impugn Koran in the manner as has been sought to be done would infringe the right to freedom of religion including the right to profess, practise and propagate religion.

(36) EVEN otherwise, it appears to us that the Koran apart from being a holy religious book is also an important historical document and the distribution and propagation thereof cannot be suppressed under S. 95, of the Cr. P. C. We respectfully agree with the view taken by the Bombay High Court in M/s. Varsha Publications Pvt. Ltd. (1983 Cri LJ 1446) (supra).

(37) WE take note of the fact that the Koran has been accepted as a holy through the ages. It is read, followed, published and distributed in ail civilised countries of the world. There has been no interference with Koran either in India or in any other country up till now. It is too late in the day for the writ petitioners to contend that publication and propagation of Koran would cause disharmony between communities and religions and the tenets of Koran constitute an insult to other religions or communities.

(38) WE also hold that the writ petition is not maintainable otherwise inasmuch as under S. 95 it is for the State Government to form its opinion before taking any action under the said section and this Court cannot project its own opinion and call upon the State Government to act thereon. We also feel that the mischief sought to be curbed under Ss. 153a and 295a of the Penal Code and S. 95 of the Cr. P. C. , 1973 would be aggravated and not controlled by pursuing the instant proceedings.

(39) FOR the reasons as aforesaid, we are unable to accept the contentions of the appellant. We agree with the judgment and order dt. 17th May, 1985.

(40) THE appeal is dismissed. There will be no order as to costs.

(41) SHYAMALKUMARSEN,j. :- While agreeing with my learned brother I wish to add the following : the question before us is if the petitioners prayer for Rule Nisi on the respondent State of West Bengal to show cause why a writ of mandamus should not be issued directing it to declare each copy of the Koran, whether in the original Arabic or in its translation in any of the languages be forfeited to the Government can be allowed. Koran is the basic text of Muslim religion. Innumerable Muslims in India and abroad offer their prayer and worship God through this religious text enumerated in Koran. Any order passed declaring the said religious text as forfeited to the Government will be contrary to the provisions and spirit of the Constitution of India, particularly the Preamble and Article 25 thereof. Accordingly such a prayer for issue of Rule Nisi really goes against the provisions of the Constitution and as such the Court cannot allow such a prayer. For this reason alone the prayer for issue of Rule Nisi should be rejected. The writ petitioner appearing in person submitted that anybody who destroys, damages or defiles any object held sacred by any class of person with the intention of defiling or insulting the religion of any class of person shall be dealt with according to S. 295 of the Penal Code and according to him there are such offending expressions in the Koran which are set out in the writ petition which come within the purview of the said section and as such the State should take appropriate action for forfeiting the publication of Koran. Nobody can dispute that the Koran or the provisions contained in Koran are held in high esteem by large number of persons professing Islamic faith in India and abroad. Therefore, it appears to me that the provisions of S. 295,i. P. C. are intended to protect any object held sacred including the spiritual content contained in Koran and if the petitioners submission is accepted and his prayer is allowed that would be going against the provisions of S. 295 of the I. P. C. The said section is intended to protect any object held sacred by any class of persons. The petitioners prayer intends to take away that protection and goes against the spirit of the said provision. The decision in the case of S. Veerabhadran Chettiar v. E. V. Ramaswami Naicker reported in AIR 1958 SC 1032 [LQ/SC/1958/96] relied upon by the learned Solicitor General intervening on behalf of Union of India is necessary to be considered in this connection. The Supreme Court in the said decision has considered and interpreted the said S. 295 of the Penal Code. In the words of the Supreme Court "the section has been intended to respect the religious susceptibility of persons of different persuations or creeds. Courts have got to be very circumspect in such matters and to pay due regard to the feelings and religious emotion of different classes of persons with different beliefs, irrespective of the consideration whether or not they share those beliefs, or whether they are rational or otherwise, in the opinion of the Court". In a secular State as in India the court cannot interfere in religious, sacred beliefs and faith of the citizen and if such prayer is allowed the same would be going against the principle of secularism enshrined in our Constitution. Accordingly this application should be dismissed. Petition dismissed.