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.
1. The Secretary,
....Union of India, Information and Broadcasting
Department, New Delhi.
....Doordarshan, New Delhi.
3. Mr. Sanjay Khan.
4. Union of India,
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
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."
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
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.
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