Book Forfeiture in Jammu & Kashmir

Source : Indian Express 

Introduction 

On 5th August 2024, the Jammu & Kashmir Home Department issued a notification declaring 25 books as "forfeited," effectively banning their circulation in the region. This action was taken on the sixth anniversary of Article 370's abrogation, targeting works by authors like A.G. Noorani and Arundhati Roy. The government claimed these books contained "false narratives" and promoted secessionist ideology that could misguide youth and encourage alienation from the Indian state. 

Why did the Jammu & Kashmir government forfeit 25 books on the anniversary of Article 370’s abrogation? 

• The notification categorized 25 books across various genres - including political biographies, historical accounts, and academic works - as containing material that glorifies terrorism and incites violence.  
• The Home Department stated that continued circulation of these works could influence youth in ways that promote anti-national sentiments.  
• The timing of this action, coinciding with the Article 370 abrogation anniversary, adds political significance to the government's decision to remove these materials from public circulation. 

What are the legal provisions under Section 98 BNSS, 2023 for forfeiting books and other materials? 

Section 98 BNSS, 2023: Scope of Materials Subject to Forfeiture 

• Newspapers: Any periodical publication registered under Press and Registration of Books Act, 1867 
• Books: All printed publications as defined under Press and Registration of Books Act, 1867 
• Documents: Broadly includes any painting, drawing, photograph, or other visible representation beyond traditional written materials 
• Geographic Origin: Materials can be forfeited regardless of where they were printed (includes foreign publications) 

Triggering Conditions - Content Must Be Punishable Under BNS 2023: 

• Section 152: Acts endangering sovereignty, unity and integrity of India 
• Section 196: Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language 
• Section 197: Imputations, assertions prejudicial to national integration 
• Section 294: Obscene acts and songs in public places 
• Section 295: Injuring or defiling place of worship with intent to insult religion 
• Section 299: Deliberate and malicious acts intended to outrage religious feelings 

What is the Process, Authority, And Constitutional Framework for Book Forfeiture Under Section 98 BNSS, 2023? 

Government's Authority and Process: 

• Subjective Satisfaction: State Government must form opinion that material contains punishable content 
• Mandatory Notification: Official gazette notification required stating specific grounds for the government's opinion 
• Immediate Effect: Forfeiture becomes effective immediately upon notification publication 
• Complete Ban: Covers printing, publication, sale, and distribution of forfeited materials 

Enforcement Mechanisms: 

• Universal Police Power: Any police officer (regardless of rank) can seize forfeited materials anywhere in India 
• Search Warrant Authority: Magistrates empowered to issue search warrants for suspected premises 
• Minimum Rank Requirement: Only sub-inspector rank or above can execute search warrants 
• Reasonable Suspicion Standard: Search can be conducted where materials "may be or may be reasonably suspected to be" 
• Premises Definition: Includes any location where banned materials might be stored or distributed 

Judicial Review Limitations: 

• Exclusive Jurisdiction: Orders under Section 98 can only be challenged as per Section 99 provisions 
• No Collateral Attack: Courts cannot examine forfeiture orders through alternative legal proceedings 
• Structured Review Process: Challenges must follow specific procedural requirements laid down in subsequent sections 

Constitutional Balance: 

• Article 19(1)(a) guarantees freedom of speech and expression to all citizens 
• Article 19(2) permits "reasonable restrictions" in the interest of sovereignty, state security, public order, and preventing incitement to offenses 

Legal Process: 

• Government must form an opinion that material meets the criteria under relevant sections 
• Reasons for forfeiture must be recorded and published in official notification 
• Police officers gain powers to search premises and seize banned materials 
• Effect is immediate upon notification 

Judicial Oversight: 

• Affected parties can challenge forfeiture orders in the High Court having jurisdiction over the area 
• Supreme Court precedent in State of Maharashtra v. Sangharaj Damodar Rupawate (2010) established key principles for valid forfeiture notifications: 
  • Government must state clear grounds for its opinion based on facts 
  • Order must be justified by the merits of stated grounds 
  • Content should be evaluated considering author's intention and potential impact on readers 
  • Government need not prove offense beyond reasonable doubt but must show offense ingredients appear present 

Conclusion 

The Jammu & Kashmir book forfeiture represents the state's use of immediate legal powers to control literature deemed harmful to public order and national integrity. While the government invokes legitimate concerns about maintaining sovereignty and preventing youth radicalization, such actions must balance free speech rights with security considerations. The availability of judicial review through High Court challenges ensures constitutional safeguards remain in place, though the immediate effect of forfeiture creates practical constraints on literary freedom until such challenges are resolved.