SRINAGAR: The Jammu & Kashmir and Ladakh High Court will constitute a Special Bench of three judges to hear a petition challenging a government notification that declared 25 books on Kashmir's political and social history as "forfeited" under Section 98 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).
Chief Justice Arun Palli indicated on September 30, 2025, that orders would be passed shortly for constituting the Special Bench required under the statute to hear such applications. The matter was mentioned before the Chief Justice by Advocate Vrinda Grover, who submitted that the petitioners were approaching the court under Section 99(1) BNSS seeking to set aside the government notification.
The notification, published in the official Gazette on August 5, 2025 (S.O. 203), was issued by the Home Department of the Government of Jammu & Kashmir. It declared the 25 listed books as forfeited for allegedly "propagating false narratives and secessionism."
The notification states that "systematic dissemination of false narratives and secessionist literature" has contributed to youth radicalization in J&K by glorifying terrorism, vilifying security forces, distorting historical facts, and promoting alienation. It declares the books "excite secessionism and endanger the sovereignty and integrity of India," thereby attracting provisions of Sections 152, 196, and 197 of the Bharatiya Nyaya Sanhita, 2023 (BNS).
The petition has been filed by four prominent individuals with deep connections to Kashmir's history and governance. Air Vice Marshal (Retd.) Kapil Kak is a war veteran who served in two Indo-Pak wars, recipient of the Ati Vistishta Seva Medal and Vishishta Seva Medal, and a Kashmiri Pandit with an active interest in Kashmir's literature and history.
Dr Sumantra Bose is the author of two books mentioned in the forfeiture list (Serial No. 11 and 15). He is a Professor who taught International and Comparative Politics at the London School of Economics for over two decades and is also the grandnephew of Netaji Subhas Chandra Bose and grandson of Sarat Chandra Bose.
Dr Radha Kumar is an expert on conflict and peace-making who has worked on Jammu and Kashmir for 30 years. She was a member of the Government-appointed Group of Interlocutors for Jammu and Kashmir (2010-2011) and is currently Co-Chair of the Forum for Human Rights in Jammu and Kashmir, which has produced annual reports on the state of human rights for the past six years.
Wajahat Habibullah was the first Chief Information Commissioner of India under the Right to Information Act and served in the Indian Administrative Service in the J&K cadre from 1968 to 2005.
Advocates Vrinda Grover, Adil Pandit, Soutik Banerjee, Devika Tulsiani, and Ratna AppnSupender are appearing for the petitioners.
The petition, filed under Section 99 read with Section 528 BNSS, raises several substantive legal grounds challenging the constitutional and procedural validity of the forfeiture order.
The petitioners argue that the notification is "arbitrary, sweeping, and unreasoned," failing to meet legal requirements under Section 98 BNSS. The core deficiency is that the order does not identify any specific portions of the books to demonstrate how they allegedly propagate secessionist narratives, nor does it provide a reasoned basis for forfeiture.
The petition states that "the order merely reproduces statutory language without indicating any facts, passages, or representations from the books that purportedly offend the law."
The petition further argues that it is settled law that an administrative or quasi-judicial order having civil consequences must disclose reasons which must form part of the order itself, and the reasons cannot be supplied at a later stage.
The petition emphasizes a crucial legal distinction between the government's "opinion" and the "grounds" for forming that opinion, arguing that the notification merely reproduces the opinion of the State Government without elucidating the grounds for forming that opinion, as mandated by law.
The petition argues that the onus is on the Respondent to demonstrate through reasons incorporated in the notification what portions of the 25 books have been identified as propagation of "false narrative and secessionism" and on what basis.
Omnibus and opaque orders without material particulars are an abuse of the legal process and cannot survive judicial scrutiny on the touchstone of fairness and reasonableness, the petition states.
The petition contends that as a clear restriction on the fundamental freedom of speech and expression and the allied right to know, the order must meet the proportionality test laid down by the Supreme Court in various judgments including Modern Dental College & Research Centre vs State of Madhya Pradesh (2016), K.S. Puttaswamy vs Union of India (2017 and 2019), and Gujarat Mazdoor Sabha vs State of Gujarat (2020).
The Supreme Court judicially reviewed internet shutdown orders in the Union Territory of J&K by applying the proportionality test in Anuradha Bhasin vs Union of India (2020), and similarly, although the notification has been passed under a statutory regime, it is not immune from proportionality analysis, the petition notes.
The petitioners argue the order fails the "least restrictive measure" prong of the proportionality test.
The petition emphasizes that many of the 25 books are academic works of history and literature published by leading presses including Oxford University Press, Stanford University Press, Cambridge University Press, Routledge, and others.
The petition argues that the conspectus of the 25 books pertains largely to the socio-political life of Kashmir and the myriad political struggles interwoven into the cultural history of the valley. These books, most of which are works of academia, serve as records in the discipline of history.
The petition contends that the power under Section 98 BNSS cannot be used to erase lived realities and people's histories, as that would amount to an erasure of the nation's history which violently militates against the people's right to know, an inalienable facet of the right to freedom of speech and expression guaranteed under Part III of the Constitution in Article 19(1)(a).
Works of history, published through academic rigour, research and thoroughness, are open to be debated, but cannot be erased on the basis of fleeting sensitivities that may get hurt of people incapable of engaging with dissenting or alternate views, the petition contends.
Constitutional Concerns
The petition points out a striking fact: despite the books ranging from 1927 to 2023 in publication date, spanning nearly a century, not a single FIR has been registered against the authors or publishers of any of these books, to the best of the petitioners' knowledge and as per information publicly available.
The notification makes bald reference to penal provisions under Sections 152, 196 and 197 BNS without any indication of any pending FIR or investigation against any of the 25 books. The notification states mechanically that the books attract these provisions without reference to even a singular FIR having been registered against the publication of all 25 books.
The petition raises significant concerns about Section 152 BNS, which is referenced in the notification. Section 152 BNS is the "de-colonized" version of Section 124A IPC (sedition) brought in with the new criminal laws, which is presently the subject matter of a constitutional challenge before the Supreme Court of India. In the lead matter in that batch of cases, the operation of Section 124A IPC has been stayed by the Apex Court vide order dated May 10, 2022.
The petition also argues that the offences punishable under Sections 197 and 198 BNS (formerly Sections 153-A and 153-B IPC) require the published content to meet the standards laid down in judgments of the Supreme Court in Manzar Sayeed Khan vs State of Maharashtra (2007), Amish Devgan vs Union of India (2021), Patricia Mukhim vs State of Meghalaya (AIR 2021 SC 1632), and Javed Ahmad Hajam vs State of Maharashtra (2024).
The notification fails to demonstrate how the ingredients of these offences are attracted to any portions of the 25 books.
The petition invokes fundamental constitutional values relating to freedom of thought and expression. It cites the Supreme Court's judgment in Imran Pratapgarhi vs State of Gujarat (2025), where the Court, referring to Shreya Singhal v Union of India, observed that "when it comes to democracy, liberty of thought and expression is a cardinal value that is of paramount significance under our constitutional scheme. It is one of the most basic human rights."
The petitioners seek quashing and setting aside of the August 5, 2025, notification, direction for return of all copies of books forfeited under the order, and any other relief the court deems fit. They have also filed an application for interim stay on the operation of the notification pending disposal of proceedings.
The petition emphasizes the urgency of interim relief by pointing out that under Section 98 BNSS, any police officer is empowered to seize the 25 books wherever found in India, and any Magistrate may authorize police officers to enter and search premises where it is reasonably suspected that any copy of the books may be found.
By virtue of the notification, the books are liable to be abandoned, seized and erased from circulation in an irreversible manner. Sections 98 and 99 BNSS do not provide any mechanism for the storage and preservation of the forfeited books for any time period pending the adjudication of the challenge to the forfeiture order.
The petition notes that the 25 books were published between 1927 and 2023, and as such there is no urgency for the implementation of the forfeiture order, given that the books have been in wide circulation for a long period of time.
The petition pleads that a stay on operation of the notification will not in any manner cause prejudice to the government, while the execution of the order would cause irreversible harm to the public at large.
The statutory period to challenge the order is 60 days from the date of publication, which commenced on August 5, 2025, making the petition time-sensitive.
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