New Delhi, Aug 29: The Supreme Court today declined to entertain a public interest litigation challenging the Jammu and Kashmir Government’s notification dated August 5, which declared 25 books as forfeited for allegedly inciting secessionist tendencies and undermining the sovereignty and integrity of India. The apex court, however, granted liberty to the petitioner to approach the High Court of Jammu & Kashmir and Ladakh for appropriate relief.
The petition, instituted by Advocate Shakir Shabir, also assailed the constitutionality of Section 98 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), contending that the provision is ultra vires Articles 14, 19(1)(a), 19(2) and 21 of the Constitution. Section 98 empowers state governments to declare publications forfeited and to authorize search and seizure of such material.
A bench comprising Justices Surya Kant, Joymalya Bagchi and Vipul M Pancholi, after hearing Senior Advocate Sanjay Hegde for the petitioner, observed that the High Court would be the appropriate forum to adjudicate the dispute in the first instance. The Court remarked that since several of the proscribed books are authored by individuals from the region, the High Court is better equipped to examine both factual and constitutional aspects.
Rejecting a plea for transfer of the matter to another High Court, the bench cautioned against bypassing jurisdictional forums, observing that such practice could have a demoralizing impact on the judicial process. The bench clarified that no opinion was expressed on merits. Dictating the operative portion of the order, Justice Surya Kant stated: “Having regard to issues sought to be raised, we are satisfied that the petitioner can seek redressal thereof effectively by way of writ petition under Article 226. The case is disposed of with liberty to the petitioner to approach the High Court. We request the Chief Justice of the High Court to constitute a three-judge bench presided over by His Lordship and endeavor to decide the matter expeditiously.”
The impugned notification was issued under Section 98 BNSS by the Home Department of Jammu and Kashmir “by order of the Lieutenant Governor.” The order declared the identified works to be forfeited on the ground that they were found to propagate narratives capable of exciting secessionism, promoting radicalization, glorifying terrorism, vilifying security forces, and thereby endangering national sovereignty. It cited provisions of the Bharatiya Nyaya Sanhita, 2023, particularly Sections 152, 196 and 197.
The notification specifically referenced that the circulation of such literature could adversely impact the psyche of youth, foster a culture of grievance and victimhood, and contribute to extremist tendencies. It further noted that distortions of historical facts and glorification of militants within these publications risk creating alienation and pathways to violence.
Among the books declared forfeited are “The Kashmir Dispute 1947-2012” by A.G. Noorani, “Azadi” by Arundhati Roy, “Contested Lands” and “Kashmir at the Cross Roads” by Sumantra Bose, “A Dismantled State” by Anuradha Bhasin, and the volume “Kashmir and the Future of South Asia” edited by Sugata Bose and Ayesha Jalal.
Under Section 98 of the BNSS, once such a notification is issued, every copy of the book or document stands forfeited to the Government, and police authorities across India are empowered to seize the same. Magistrates may also authorize search and seizure operations. The section contains an explicit bar on judicial review of such orders except in accordance with Section 99 BNSS.
