APPENDIX: IN THE HIGH COURT OF JUDICATURE AT BOMBAY

APPENDIX
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

Writ Petition No. 5435 of 1989

1. Dr. Ravindra Ramdas.
2. Mr. Ravi Varma.
3. Mr. R.G. Menon.
4. Mr. P.C.C. Raja.

.... Petitioners

VERSUS

1. The Secretary,
....Union of India, Information and Broadcasting Department, New Delhi.
2. Director
....Doordarshan, New Delhi.
3. Mr. Sanjay Khan.
4. Union of India,
....New Delhi.
5. Mr. P. Upendra,
....Hon'ble Minister for Information and Broadcasting Department, New Delhi.
6. Mr. K.R. Malkani,
....Deen Dayal Research Institute, New Delhi - 110 019

Mr. M.D. Pathak for the petitioners.

Mr. R.V. Desai with Mrs. Neeta V. Masurkar and Mr. A.S. Khan for respondent nos. 1 and 2.

Mr. E.P. Bharucha i/b M/s Desai, Berjis & Company for respondent no. 3.

Coram: S.C. Pratap & A.V. Savant, JJ,

Thursday, 30th August, 1990.
Oral Order: (Per S.C. Pratap, J.)

1. This petition under Article 226 of the Constitution is directed against the TV serial "The Sword of Tipu Sultan".

2. Mr. M.D. Pathak, learned Counsel for the petition has, vehemently and with courage of his conviction, put forth before us the point of view of the petitioners and what, according to Mr. Pathak, large section of the Indian society considers and feels about this serial. He has invited our attention to a passage from the Kerala District Gazetteers, published by the Government of Kerala in 1962 as also passages from the Mysore Gazetteer, compiled for the Government and published in the year 1930. We decline to comment thereon but simpliciter reproduce the same in fairness to the petitioners. The passage from the Kerala District Gazetteers runs thus:

" ….In a proclamation issued to the people in 1788 he outlined his new scheme of social reform as follows: 'From the period of the conquest until this day, during twenty-four years, you have been a turbulent and refractory people, and in the wars waged during your rainy season, you have caused number of our warriors to taste the draught of martyrdom. Be it so. What is past is past. Hereafter you must proceed in an opposite manner, dwell quietly and pay your dues like good subjects and since it is the practice with you for one woman to associate with ten men, and you leave your mothers and sisters unconstrained in their obscene practices, and are thence all born in adultery, and are more shameless in your connections than the beasts of the fields: I hereby require you to forsake these sinful practices and be like the rest of mankind; and if you are disobedient to these commands, I have made repeated vows to honour the whole of you with Islam and to march all the chief persons to the seat of Government." Tipu's proclamation created universal resentment and the whole country rose in rebellion. Fearing forcible conversion about 30,000 Brahmins alone fled to Travancore. The Kottayam and Kadattanand Rajas sought the English East India Company's protection. Calicut was attacked in November, 1788. Tipu's officers laid hands on the Karanavappad of Manjeri. The Nairs of Calicut and South Malabar headed by Ravi Varma and other princes of the Padinjare Kovilakam turned in despair on their oppressors. Tipu set 6,000 troops under M. Lally to raise the siege, but Ravi Varma could not be driven out of the field.

Earlier, in 1789, Tipu himself came down to Malabar via the Tamarasseri Ghat to enforce his proclamation at the point of his sword. General orders were issued to his army that 'every being in the district without distinction should be burned, that they should be traced to their lurking places, and that all means of truth and falsehood, force or fraud should be employed to effect their universal conversion'. The Kadattanad Raja's fortified palace at Kuttipuram was surrounded and 2,000 Nairs, forced to surrender after a resistance of several days, were circumcised and regaled with beef. Several. Rajas and rich land owners fled to Travancore where the Dharma Raja rendered them all help to rehabilitate themselves in their new surroundings. The poor Nairs, however, retreated into the jungles and were relentlessly pursued by Mysorean troops. From their jungle homes the Nairs could engage themselves in a kind of guerrilla warfare against the enemy forces. Hence Tipu organised a regular and systematic Nair hunt with the help of his soldiers. He then proceeded to Cannanore and after celebrating the marriage of his son with the daughter of the Ali Raja, marched along the coast of Chowghat to overawe the native population by a show of his power. From there he retired to Coimbatore after making arrangements for the administrative reorganisation of the province and leaving a permanent army of occupation to frighten the population into passive submission."

3. The passages from the Mysore Gazetteer are as follows:

a. "The reversion of Mangalore to the possession of Tipu was signalized by the forcible circumcision of many thousands of Indian Christians and their deportation to Seringapatam. A revolt in Coorg next year led to the same treatment of the greater part of the inhabitants the occasion being marked by Tipu's assumption of the tide of Badshah. All Brahman endowments were at this period resumed."

b. "In January 1788 Tipu descended to Malabar, and remained there several months arranging for its effective administration and the reformation of its people, calling upon them either to give up their sinful practices or be honoured with Islam. He also ordered the destruction of Calicut and the erection of a new fortress of the name of Furruckku (Feroke), and then marched to Coimbatore in the monsoon. He also now began to lay claim on the tide of Paighambar, or apostle, on the ground of his religious successes, and symptoms of incipient madness, it is said, appeared. From Coimbatore he visited Dindigul, and meditated, it appears, the conquest of Travancore. Laying waste with fire and sword the territories of refractory palegars, he returned to Seringapatam, and devoted four months to a classification of Sayyids and Sheks in his army to distinct brigades, leaving for the time being the Patans and Moghuls to be intermixed with the Hindus. A simultaneous rebellion occurred now in Coorg and Malabar, and the Sultan, passing through Coorg to quiet it, entered Malabar. Large parties of the Nairs were surrounded and offered the alternative of death or circumcision. The Nair Raja of Cherkal, who had voluntarily submitted, was received and dismissed with distinction, but immediately after, on a false charge of conspiracy, was killed in a skirmish, his corpse being treated with every insult. Over 8,000 temples were also desecrated, their roofs of gold, silver and copper and the treasures buried under the idols amounting to many lakhs, being treated as royal plunder. Before leaving Malabar, Tipu visited Cannanore, where the daughter of the Beebee was betrothed to one of his sons. He also divided the country of Malabar into districts, each of which had three officers, charged respectively with the duties of collecting the revenue, numbering the productive trees, and seizing and giving religious instructions to Nairs. His orders were, that 'every being in the district, without distinction, should be honoured with Islam; that the houses of such as fled to avoid that honour should be burned; that they should be traced to their lurking places, and that all means of truth and falsehood, fraud or force, should be employed' to effect their universal conversion."

c. "…On the handle of the sword presented by him to Marquess Wellesly was the following inscription:
My victorious sabre is lightning for the destruction of the unbelievers. Haider, the Lord of Faith, is victorious for my advantage. And moreover, he destroyed the wicked race who were unbelievers. Praise be to him, who is the Lord of the Worlds! Thou art our Lord, support us against the people who are unbelievers. He to whom the Lord giveth victory prevails over all (mankind). Oh Lord, make him victorious, who promoteth the faith of Muhammad. Confound him, who refuseth the faith of Muhammad; and withhold us from those who are so inclined. The Lord is predominant over his own works. Victory and conquest are from the Almighty. Bring happy tidings, Oh Muhammad, to the faithful; for God is the kind protector and is the most merciful of the merciful. If God assists thee, thou will prosper. May the Lord God assist thee, Oh Muhammad, with mighty victory."

d. "On some gold medals, also found in the palace, the following legend, in Persian, was seen on one side: "Of God the bestower of blessings and the other, victory and conquest are from the Almighty". Apparently they were carved in commemoration of some victory probably after the war of 1780. The following is a translation of an inscription on the stone found at Seringapatam, which was to have been set up in a conspicuous place in the fort:

"Oh Almighty God! dispose the whole body of infidels! Scatter their tribe, cause their feet to stagger! Overthrow their councils, change their state, destroy their very root! Cause death to be near them, cut off from them the means of sustenance! Shorten their days! Be their bodies the constant object of their cares (i.e. infest them with diseases), deprive their eyes of sight, make black their faces (i.e. bring shame)."

4. Mr. Pathak also referred to the compilation which, according to the learned Counsel, contains some letters by Tipu himself. This compilation is styled as Tipu Sultan X-rayed by Dr. Muthanna and published in the year 1980. We are, however, not inclined to reproduce the contents thereof in this order.

5. Mr. Pathak also invited our attention to the following statement of the producer Mr. Sanjay Khan in paragraph 5 of his affidavit:

"The petitioners have by an amendment to their contempt petition alleged that the handle of 'The Sword of Tipu Sultan' bore an inscription as set out in para 14 B. I deny that the original Sword of Tipu Sultan bore any such inscription as alleged or at all."

Mr. Pathak submits that the sword of Tipu Sultan does bear an inscription and the same is as per the extract embodied in paragraph 14 B. He further submitted that the original sword is still there in the Government Museum at Mysore and the inscription can even now be checked. He also referred to Mr. K.R. Malkani's report which inter alia contains the following recommendation:

"However, because of the reported excesses of Tipu in Coorg and Kerala, there is a strong feeling, particularly in Kerala, against a Tipu TV serial, I, therefore, suggest the following. Tipu's sword used to carry an offensive engraving, as was probably the custom in those times. It is, therefore, suggested that the title of the serial be changed from 'The Sword of Tipu Sultan' to just 'Tipu Sultan'. A few years back when equestrian statue of Shivaji was to be put up in Minto Park, New Delhi, the Government suggested that the statue need not carry a sword; the sponsors agreed."

6. Since Mr. Malkani's report was heavily relied upon by the Government itself and as there was deviation from his recommendation regarding the serial title, we have, on the last occasion, suggested to the producer's learned Counsel, Mr. Bharucha, to consider whether the words "The Sword of" could be deleted retaining the title as "Tipu Sultan". However, on taking instructions, he informed us today that it would not be possible to do so. Be that as it may, we do not wish to pursue this aspect any further.

7. The main question is: In a case such as this what is the scope and ambit of the power of judicial review? Unfortunately for the petitioners, this question is no longer res integra. Tests and parameters stand already laid down by the Supreme Court in as many as three decisions. The first ruling is Ramesh Chotalal Dalal v. Union of India and others, AIR 1988 SUPREME COURT 755 relating to the serial "Tamas". The second decision is the one in Odyssey Communications Pvt. Ltd. v. Lokvidyan Sanghatana and others, AIR 1988 SUPREME COURT 1643 in the matter of the serial "Honi Anhoni". And the third is the one in S. Rangarajan v. P. Jagjivan Ram and others (1989) 2 Supreme Court Cases 574, overruling a Division Bench ruling of the Madras High Court reported in AIR 1989 Madras 149. In view of the law laid down by the Supreme Court in its rulings supra we feel it unnecessary to trek and traverse the same terra-firma over again.

8. As a result, the petition fails and the same is dismissed.

9. Mr. Pathak prays for leave to appeal to the Supreme Court. However, as order on this petition is based on the rulings of the Supreme Court itself, leave to appeal is declined.