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HindustanTimes Wed,26 Nov 2014
A bonfire of free speech
First Published: 23:39 IST(4/3/2014)
Last Updated: 23:42 IST(4/3/2014)

Three weeks after surrendering before an intolerant petitioner who sought to ban a book he didn’t agree with, Penguin India appears unwilling to re-examine its decision to withdraw and pulp all copies of Wendy Doniger’s The Hindus: An Alternative History. Penguin’s decision flies in the face of a publisher’s duty to stand up for freedom of speech. It also betrays a lack of understanding of the law on free speech, not to speak of the way the Indian judiciary has interpreted the law whenever demands for censorship have been made. Ironically, Penguin’s cowardice in the face of the demands of self-righteous lobbies will only encourage further demands for book bans and directly undermine the commercial foundations of the publishing industry as a whole.

Not surprisingly, writers have condemned Penguin for being party to an ugly attack on academic freedom. Some, including the two of us, have registered our anger by asking Penguin to cancel our own book contracts and pulp whatever copies remain lest we too be sold down the river by a publisher that does not have the stomach to defend the titles it brings out. As of this writing, our demands have still not been accepted.

Prompted by Penguin’s self-serving defence that it was the Indian Penal Code (IPC) which forced its hand on the Doniger book, many writers have urged the Government of India to amend specific sections of the IPC — especially 153A and 295A — which make the promotion of enmity towards, or the deliberate insult of, a religious group a criminal offence.

While there is scope for debate over these provisions and the manner of their implementation — including the paradox that hate speech which directly incites violence rarely attracts penal action — the demand for amendments will not progress very far. The political class simply has no appetite for them. Remember: not a single major political party has spoken out in favour of Doniger’s academic freedom.

Indeed, virtually all Indian parties, from right to left, have been party at one time or another to the banning of books or films, art exhibitions or plays, talks or concerts, using the very laws we are now hoping they will be willing to amend.

Moreover, of what use will an amended law be when bans are informally imposed on books and films through political pressure? Jitendra Bhargava’s The Descent of Air India was withdrawn by Bloomsbury India after Praful Patel — the former civil aviation minister — objected to the manner in which he had been portrayed, presumably the reference to an official Canadian investigation into allegations that a bribe was paid by during his tenure. In the case of The Red Sari by Javier Moro, supposedly a fictionalised biography of Congress president Sonia Gandhi, political and diplomatic strings were pulled to get its original publisher in Spain to withdraw the India rights, thus killing the English translation of the book before it could even go to press.

But if we look at the chequered history of book and film bans in India over the past three decades, there is one relatively bright spot. While political parties have almost invariably chosen the path of illiberalism, courts have tended to construe constitutional restrictions on free speech rather tightly.

Many examples may be cited from the Supreme Court, but its 1989 judgment in the case of Oru Oru Gramathile stands out. Though the film had a censor certificate, the Tamil Nadu government banned it, citing threats to public order. Lifting the ban, the apex court said that the correct approach in judging the effect of exhibition of a film or of reading a book “is the standard of an ordinary reasonable man…not that of an out-of-the ordinary or hypersensitive man”. That judgment itself echoed Justice Vivian Bose from 1947: “That the effect of … words must be judged from the standards of reasonable, strong minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view.”

Had Penguin fought the hypersensitive man who wanted Doniger’s book banned, there is every reason to assume the Supreme Court would have backed it.

Ideas and arguments, especially controversial and even provocative ones, have been intrinsic to the writing and distribution of books since time immemorial. They are also intrinsic to the functioning — and security — of a democratic, open society. Justice Louis Brandeis of the US Supreme Court declared in a landmark opinion in 1927 that “without free speech and assembly, discussion would be futile; Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears.”

Indians must not allow the little men with irrational fears to determine what books they can read, films they can watch, writers they can play host to, or artists and musicians they can patronise.

Instead of withdrawing Doniger’s book, Penguin must go back to court, tear up the instrument of surrender it signed with the book pulpers, and declare that it is willing to fight for democracy in India. It will have the support of hundreds of lawyers in this struggle, and of course the backing of the country’s writers, readers, publishers and lay public too.

Jyotirmaya Sharma is a professor of political science at the University of Hyderabad and Siddharth Varadarajan is a Senior Fellow at the Centre for Public Affairs and Critical Theory, New Delhi
The views expressed by the authors are personal


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