Free speech and the death of a book

Updated on Jan 26, 2021 06:15 AM IST

In the last four years, I have dealt with two such cases, and I have a small list of books. Most of my fellow publishers have also dealt with such cases in the last few years — in some cases they have won, in others they have withdrawn the book. A legal tool that is to be used sparingly is turning into a weapon wielded with far less care, far less thought.

The legal tool of temporary injunction has become a gagging tool for plaintiffs to shut down books that portray them in harsh light (Shutterstock)
The legal tool of temporary injunction has become a gagging tool for plaintiffs to shut down books that portray them in harsh light (Shutterstock)
ByChiki Sarkar

Last week, we at Juggernaut Books were served a cease and desist notice. The notice came from a school in Gurugram for one of our books about a murder of a student. The case became sensational, popularly known as “The ‘X’ (x, standing for the name of the school) School Murder”.

The school hadn’t read the book, it was yet to be published. It was dismayed at the title — “The ‘X’ School Murder” — which it felt was defamatory. Moreover, a district court had ruled that the school’s name couldn’t be used while discussing the case in order to protect the identity of the juvenile who had been accused of the crime.

We received a court summon that very week where, among other things, we argued that the phrase “The ‘X’ School Murder” had been used widely across every media outlet from 2017 to even a week ago. Even the father of the accused had used the school’s name in a court case.

We had used the title because it was how the case was known, and that, irrespective of this book, the name of the school was now associated with the crime, and unless they sued every media house (which they haven’t), this association was not going to vanish.

That very day, the court granted a temporary injunction till the matter was decided. As we know in India, a temporary injunction, in practice, tends to be almost permanent — stretching for months and often years.

Temporary injunctions only work if they are temporary. In the United States, for example, the courts paused the distribution of Mary Trump’s book on her uncle, former President Donald Trump, for a single day, till the matter was heard. It then heard the case and ruled in Mary Trump and her publisher’s favour.

In contrast, our book on Ramdev remains locked up since 2017 because the main defamation case hasn’t been resolved and there is an injunction on the book till then. Our case opposing the injunction is also in limbo. This may be the fate of this book too.

Now, you can agree that the school had an argument. It’s only reasonable for it to want to erase this unpleasant history. Or you could see it the other way. The school has used an order that was passed to protect the juvenile accused, to protect itself and its reputation.

Both arguments are fair. And I am not going to push you to take sides. But what you should worry about is the process.

We had a strong argument and yet the injunction was granted in the first hearing, i.e. without the proper trial where substantial arguments, and proof are presented by lawyers on both sides. It was granted in a system where the resolution will take a long time.

In theory, every lawyer will tell you that the courts tend to be extremely careful when passing pre-emptive injunctions because of this. What might be regarded as a temporary measure to maintain status quo, until a more informed decision can be made, can easily become the new status quo. The result? In the name of fairness, a book is gagged.

Indeed, the law in India is very protective of free speech and temporary injunctions are meant to be allowed only in very rare cases. We have a number of landmark cases — Khushwant Singh v Menaka Gandhi, Greenpeace v Tata — that lay the ground for this. In injunctions, the Indian courts follow the common law where you aren’t supposed to issue injunctions against defamation. A judge is only supposed to grant an injunction if the defendant has almost a zero chance of winning a case. Yet, as in all things, theory doesn’t marry practice in the Indian courts.

Indian courts have continued to deal interim/temporary injunctions fairly frequently in my years as a publisher. In fact, in my 15-odd years as a publisher in India, I have never won an injunction case in the first instance. It’s only in an appeal that I have seen some wins. In the last four years alone, I have dealt with two such cases, and I have a small list of books.

The temporary injunction on paper may seem a reasonable response. In practice, it has become a gagging tool for plaintiffs to shut down a book that portrays them in harsh light. It is all too easily granted and, in my experience at least, Indian judges lean towards granting them.

A legal tool that is to be used as an exceptional case, is turning into a weapon wielded with far less care, far less thought. The outcome? The death of a book.

Chiki Sarkar is the founder-publisher of Juggernaut Books

The views expressed are personal

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