J&K High Court Denies Interim Stay on Forfeiture of 25 Books, Issues Notice on Challenge

Srinagar, J&K – The Jammu & Kashmir and Ladakh High Court has declined to grant interim relief in a series of petitions challenging the Union Territory government's August 5 notification, which ordered the forfeiture of 25 books on Kashmir's history and politics. While refusing to stay the ban, a special three-judge bench issued notice to the government, setting the stage for a significant legal battle over the scope of executive power, freedom of speech, and the procedural safeguards required for such drastic measures.

The special bench, comprising Chief Justice Arun Palli, Justice Rajnesh Oswal, and Justice Shahzad Azeem, heard challenges to the government's order, which invoked powers under the new criminal procedure code to declare the books forfeited for allegedly "propagating false narratives and secessionism." The court, however, dismissed a Public Interest Litigation (PIL) on the same matter, remarking that it was not in the 'public interest' and that '90% of people would not understand the issue.'

The case, titled Swastik Singh v. UT of J&K (Home Department) and connected petitions, pits a group of eminent authors, scholars, and public figures against the state, questioning the very foundation of the government's sweeping order.

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The Government's Order and the Petitioners' Challenge

At the heart of the dispute is a notification issued by the Home Department of the Government of J&K, which declared 25 books "forfeited" under Section 98 of the Bharatiya Nyaya Suraksha Sanhita (BNSS), 2023. The list includes acclaimed academic and literary works by authors such as Sumantra Bose, A.G. Noorani, Arundhati Roy, Seema Kazi, and Victoria Schofield, published by prestigious presses including Oxford University Press and Stanford University Press.

The government's notification contends that the "systematic dissemination of false narratives and secessionist literature" has contributed to youth radicalisation by glorifying terrorism, vilifying security forces, and promoting alienation. It alleges that the books excite secessionism and endanger India's sovereignty, thereby attracting penal provisions under Sections 152 (acts endangering sovereignty), 196 (promoting enmity), and 197 (imputations prejudicial to national integration) of the Bharatiya Nyaya Sanhita, 2023 (BNS).

The primary challenge was mounted by petitioners including Air Vice Marshal (Retd.) Kapil Kak, author Dr. Sumantra Bose, peace scholar Dr. Radha Kumar, and former Chief Information Commissioner Wajahat Habibullah. Their petition, filed under Section 99 read with Section 528 of the BNSS, argues that the government’s order is a colorable exercise of power that is legally untenable.

Appearing for some of the petitioners, Senior Advocate Rajiv Shakdher and Advocate Vrinda Grover argued that the forfeiture order is "arbitrary, sweeping, and unreasoned," fundamentally failing to meet the stringent legal requirements for such an action. The core of their argument rests on the principle that the state must provide specific, reasoned grounds for its decision, a requirement they claim the J&K government has brazenly ignored.

The petition highlights a critical legal deficiency: "The order merely reproduces statutory language without indicating any facts, passages, or representations from the books that purportedly offend the law." This, the petitioners argue, renders the notification void ab initio.

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The Legal Framework: Reasoned Orders and Judicial Scrutiny

The petitioners have anchored their case in a rich vein of constitutional jurisprudence that mandates reasoned decision-making by the executive, especially when fundamental rights are at stake. The power to forfeit publications, historically under Section 95 of the Code of Criminal Procedure, 1973, and now under its successor, Section 112 of the BNSS (the source text refers to Section 98 BNSS, which appears to be an error), is an extraordinary power that directly curtails the freedom of speech and expression under Article 19(1)(a).

The challenge, filed under Section 99 of the BNSS (equivalent to Section 96 CrPC), allows any person with an interest in the publication to apply to the High Court to set aside the forfeiture on the ground that the publication does not contain the offending matter described by the government.

The petitioners heavily relied on the Supreme Court's landmark judgment in Narayan Das Indurakhya v. State of Madhya Pradesh (1972) . In that case, the Court held that an order of forfeiture must disclose the grounds for the government's opinion, stating that merely quoting statutory provisions is insufficient. The government cannot simply form an 'opinion'; it must articulate the 'grounds' for that opinion, allowing for effective judicial review.

Further buttressing their argument, the petitioners cited precedents such as Harnam Das v. State of Uttar Pradesh and Arun Ranjan Choudhury v. State of West Bengal . These judgments established that the grounds for forfeiture must relate directly to the "import, effect, or tendency" of the publication, which can only be demonstrated by analysing specific excerpts or content. By failing to identify any objectionable passages in the 25 books, the petitioners contend the government's order is based on an unstated and unchallengeable opinion, violating principles of natural justice and due process.

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Implications of the High Court's Decision

While the denial of interim relief means the ban on the 25 books remains in effect for now, the High Court's decision to issue notice on the main petitions is a crucial development. It signals that the court finds the petitioners' arguments substantive enough to warrant a full hearing on the merits. The judiciary will now be tasked with scrutinizing whether the government's notification passes the muster of procedural fairness and substantive reasonableness.

For the legal community, this case presents a critical test of the new criminal codes—the BNS and BNSS. It will be one of the first major challenges to the executive's use of forfeiture powers under the new procedural framework. The outcome could set a vital precedent on the evidentiary burden the state must meet when it seeks to proscribe literature on grounds of national security.

The court’s eventual ruling will have far-reaching implications:

1. Procedural Safeguards: It will clarify the extent to which the government must provide detailed, book-specific reasons for forfeiture, reinforcing or weakening the principles laid down in Narayan Das .
2. Freedom of Academic and Political Speech: The case directly impacts the freedom of scholars, authors, and publishers to engage with sensitive and contentious political issues, particularly concerning regions like Kashmir. A ruling in favour of the government could have a significant chilling effect on academic and journalistic expression.
3. Judicial Review of Executive Action: The High Court's final decision will be a statement on the judiciary's role in holding the executive accountable for actions that curtail fundamental rights. It will determine whether a blanket, unreasoned order can survive judicial scrutiny in the name of national security.

As the case proceeds, legal experts will be watching closely. The central question remains whether the government’s opinion, however strongly held, can substitute for the legally mandated grounds required to justify the forfeiture of literature. The Jammu & Kashmir and Ladakh High Court is now poised to provide an answer that will resonate well beyond the valley.