Aarti Sethi and Shuddhabrata Sengupta - Doniger Controvery, Free Speech Law, a Quick Legal Primer for Publishers

6/6/2014 #youhadonejob: Or, A Quick Legal Primer for Publishers. Or, What (Not) to Do When Dinanath (and other busybodies) Strike | Kafila

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#youhadonejob: Or, A Quick Legal Primer for Publishers. Or,What (Not) to Do When Dinanath (and other busybodies) Strike

JUNE 6, 2014tags: Communalism and Sexual Violence: Ahmedabad Since 1969, Dinanath Batra, Megha Kumar, Orient Blackswan, Wendy

Donigerby Aarti SethiThis post is co-authored by Aarti Sethi and Shuddhabrata Sengupta

Dinanath Batra is at it again. Not content with having bullied Penguin and Aleph into withdrawing Wendy Doniger’s “TheHindus: An Alternative History”, and “On Hinduism”, respectively, he has now trained his guns on Orient Blackswan. And, inwhat seems to be emerging as a frighteningly predictable pattern, Orient Blackswan has succumbed to Dina Nath Batra’s “legalsuits”, not just by agreeing to consider the withdrawal of a book that had attracted Batra’s attention, but also by withdrawinganother book, on sexual violence during communal riots in Gujarat, as a ‘preventive measure’ regardless of the fact that it had noteven been targeted by Batra and his organization. Clearly these are interesting times for publishing in India.

There is no need to rehash arguments on the importance of free speech and the circulation of books and words and texts. Thesehave been extensively discussed here on Kafila, and everywhere else. At this stage it might be useful to simply clarify somepressing “legal” matters as there seems to be a bewildering confusion rife amongst publishers as to what exactly a legal notice is.Thus, to begin:

What a Legal Notice Is:

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http://kafila.org/tag/megha-kumar/

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A Legal Notice is a grouse sent by registered post and has the same legal standing. Namely, none whatsoever. Any crank withhalf an hour, a typewriter and money for postage can send a legal notice to anyone about anything. You do not even have to get alawyer to draft it. You just need a few minutes on the internet where pre-drafted forms are available for free. Or just for fun trydrafting one yourself. Since it has no legal validity anyway, be creative (http://kafila.org/2014/02/17/legal-notice-to-penguin-books-india-for-violation-of-rights-of-readers/)!

Now that we know what a legal notice is, let us look at what a legal notice is not.

What a Legal Notice is Not:

An First Information Report (FIR)

A police complaint

A police and/or court proceeding

A Court Order

A legal injunction

To clarify again: a legal notice is simply a private communication between a private party and another private party.

It has nothing to do with the state. Therefore there is no point crying foul about repressive laws and the like on receiving a legalnotice. This is a red herring deployed by a craven publishing house because it has nothing at all to do with the law or the police.We could conceivably send Dinanath Batra a legal notice tomorrow alleging his morning walks are in contravention of Section 33of the Bombay Police Act 1961 which regulates the conveying of a wild or dangerous animal through a street. If on the basis ofour allegation he then chose to stay at home for the rest of his life, it would make India a better place, but would also beexceedingly dumb. Indeed as dumb as the actions of publishers to withdraw books on receiving a legal notice from him, allegingthat the book is in contravention of XYZ provision of the law.

Therefore:

What to do should you receive one:

First, don’t panic. (See above viz. definition of legal notice).

Second, Do Nothing At All. Just sit tight and wait to see what happens next. Which most likely will be: nothing at all.

http://kafila.org/2014/02/17/legal-notice-to-penguin-books-india-for-violation-of-rights-of-readers/



If, however you have time on your hands and wish to take further action, consider the possibilities below.

There are many ways to use a legal notice. Simply do with it what you would with any unwanted piece of paper: shred it, recycleit, sell it in the kabadi with your old newspapers.

For the artistically inclined, fold into bewildering and complex origami figures, for the anally inclined use as toilet paper, for thenasally inclined a handy wipe for sniffly days, for the crazily inclined, go wild! etc etc etc…

If it is printed only on one side, then of course you have more options. You can:

Draw on it, doodle on it, write love notes on it, paint Dinanth Batra astride a horse composed of naked ladies, etc etc…

What Not to Do Should You Receive One:

Withdraw a book.

Pulp a book

Send an already published manuscript for “pre-release” review.

Justify your cowardice by producing paranoia about “the safety of friends, staff and families”.

Oh but, but. but – what about 295a?!?!

Confronting Your Fears: The Bogeyman of Section 295-A

While we sympathize with the publishers who are feeling frustrated about dealing with the particularly repugnant features of295a (such as the fact that it is a cognizable offense liable for arrest without warrant), let us also be clear, that a lot of people, in alot of professions and vocations in India, routinely deal with the ‘threat’ of punitive laws. This is done not specially, but as amatter of course. This is the way things are, and it does not matter if you have the BJP or the Congress or the CPI(M) or the AAPor the TMC or the Janata Dal or the DMK or the AIADMK calling the shots. Lets face it, culturally, Indian politics is authoritarianand repressive, and that is the way it is, and is likely to be. We have to live in this situation, do the work we have to do. Bookswere banned when Nehru was in power, when Indira Gandhi was in power, when her son was in power, when Atal BehariVajpayee was in power, and books and their authors, in a lot of Indian languages, and in English, continue to face difficultiestoday. This is nothing new, nor is it only about books.



Documentary filmmakers for instance, have been effectively, and quietly organizing against censorship (while dealing with thesame set of laws) for several decades. It does not stop them from making films, it does not stop independently organized filmfestivals from showing them. They have good lawyer friends.

Ask any journalist, trade union activist, lawyer engaged in civil liberties work, doctors who do prison work, and even scientists(physicists, mathematicians, biologists and environmental scientists) who write and work against the nuclear energyestablishment in India – and you will see that all of these different kinds of people routinely deal with the threat of the criminalprovisions of repressive laws in the course of their work. Even people who undertake to do regular teaching, and may be leadinga demonstration against their worsening work conditions, or against the mindlessness of the current F.Y.U.P programme, say inDelhi University, have to consider that their actions may invite a whole host of repressive laws, which contain criminalprovisions, including imprisonment.

Everyone of these different kinds of people – (and by no means are the majority of them activists, or even want to be activists)knows how to work with anticipatory bail. Given the generality of this situation we find the special ‘nervousness’ of thepublishing fraternity in Delhi somewhat amusing. We do not have any desire to see anybody go to prison or to have to see theprospect of the harassment of a long drawn out trial – but then, either you decide not to publish anything remotely controversialor interesting, or, if you do, you deal with the consequences. Unless the publishing industry believes it lives, or should live, in aspecially cocooned little bubble untouched by the sorts of questions that assail most people in the course of their daily lives,their whinging and whining about punitive laws is a tad pathetic.

Because, and this should come as no surprise, in independent India not a single mainstream publisher has ever beenimprisoned under any provision of the law. The people dealing in words who have had to face the wrath of the state are thoseaccused under sedition charges and waging war on the state: writing, publishing and distributing “banned literature” from thefar-left and far-right political spectrum. These organizations do not count either Penguin, or OB, or Aleph on their list ofmembers. In rare isolated cases, there have been arrests of small regional publishers such as Abdul Rehman, managing directorof Nanma Books Kozhikode, Kerala (http://timesofindia.indiatimes.com/india/Kerala-publisher-arrested-over-jihad-book/articleshow/23224730.cms), who was arrested for publishing a Malayalam translation of an Urdu book ‘Dawat air Jihad’under section 153a and b (causing enmity between different religious groups) of the IPC. At which point we don’t remember anyof the big publishers making a hue and cry about the “repressive regulation of publishing”.

This is a far cry from, say the situation in France, where, in 1963, the publisher of the famous Olympia Press(http://en.wikipedia.org/wiki/Olympia_Press), Maurice Gerodias (http://en.wikipedia.org/wiki/Maurice_Girodias), was exiledfrom France, fined 20,000 dollars, jailed for a year and banned from publishing anything for 20 years under France’s obscenitylaws.

http://timesofindia.indiatimes.com/india/Kerala-publisher-arrested-over-jihad-book/articleshow/23224730.cms

http://en.wikipedia.org/wiki/Olympia_Press

http://en.wikipedia.org/wiki/Maurice_Girodias



In a comparable case from the same period in India, the publisher (Shitangsu Kumar Dasgupta, Ananda Publications) and writer(Samaresh Basu) of the Bengali book/novel Prajapati (http://en.wikipedia.org/wiki/Prajapati_(novel)), were accused of writingand publishing an obscene book by one Amal Mitra. This accusation was upheld in the Bankshal Sessions Court Calcutta in 1968and in the West Bengal High Court in 1969. They were ordered to pay a fine of Rs. 201 within two months, failing which therewould be a jail term. There was an appeal in the Supreme Court and in 1985 the SC declared Prajapati free from the charges ofobscenity. In another case the Bengali novelist Buddhadev Bose’s book Raat Bhor Brishti (http://www.sify.com/news/for-non-bengali-india-here-s-buddhadeva-bose-s-controversial-work-ians-book-review-with-image-news-national-kdwkukiebba.html),translated as It Rained All Night, was banned by West Bengal government in 1967 on charges of obscenity. The book waswithdrawn, copies were pulped, and the conviction was later overturned by the High Court. It may not be difficult to find othersuch instances, from other Indian languages, but the judicial record is not yet full of mainstream publishers going to jail.

It is certainly not our case that India is somehow an exemplary democracy when it comes to books and publications andintellectual/cultural liberty. On the contrary. Those writing books, making art or films deemed “offensive” by one or anothersection of one or another community have had to face terrible consequences on their lives: Salman Rushdie, Tasleema Nasreen,M.F. Hussain are tragic and exemplary figures of this tendency to violent sensitivity amongst right-wing bigots from allpersuasions. Journalists routinely face repression and harassment (both from state and non-state actors) for their reporting,especially in conflict zones. Contempt of Court, Defamation and Libel and Sedition laws have been abused by the state wheneverif has found it necessary to do so.

However, in each case, members of the general public have continually agitated against the bans and raised questionsregarding the obvious injustice of the circumstances . Further, in all these instances, it is the author not the publisher who hashad to face the consequences. Our point is simply this - taking action to transform a climate repressive to the publishing tradeinto one that is more open cannot wait for the laws to be changed. It has to be done, even while repressive laws stand on thestatute books, by challenging them through acts of courageous publishing, and by fighting each case in the courts until theidiocy of these laws is amply demonstrated. If publishers feel that they can protect themselves and their interests throughgratuitous self-censorship they are basically agreeing to lose the war before even entering the battle. Nothing can be moredetrimental to the interests of readers than publishers who refuse to be responsible to the ethical demands of their ownvocation. To be a publisher who refuses to stand by his/her writers and readers, is like being a doctor who violates theHipprocratic oath.

If indeed you as a publisher feel there is an immediate threat to staff and offices by goons and lumpens, go to the police andregister a complaint, move a sessions court indicating the same, be proactive. If you consent to live under the laws of a state, thenat least make use of them as per requirement. The law isn’t just for cranks like Dinanath, you can use it too. In case you think we

http://en.wikipedia.org/wiki/Prajapati_(novel)

http://www.sify.com/news/for-non-bengali-india-here-s-buddhadeva-bose-s-controversial-work-ians-book-review-with-image-news-national-kdwkukiebba.html



are advocating you martyr yourself for the cause, by no means. Because, as you will see below, the consequences of simplydoing your job as a mainstream publisher in India are really not that dire. The courts in India have (often) been on the side ofauthors publishers and books.

The Law and the Courts (often) are On Your Side:

Courts in India do not have bad a record when it comes to defending the rights of freedom of speech when it comes to books. Anarticle by the legal scholar Saurav Datta, published in the DNA newspaper (http://www.dnaindia.com/analysis/standpoint-how-wendy-doniger-and-her-publisher-can-rescue-on-hinduism-1966761), gives a history of Indian court decisions in similarcases which bears being quoted at some length

http://www.dnaindia.com/analysis/standpoint-how-wendy-doniger-and-her-publisher-can-rescue-on-hinduism-1966761



” The courts have a long tradition of protecting freedom of speech by upholding the right to express divergent and alternative views onreligions even if they rile a majority of believers. Moreover, in order for the law to clamp down on freedom of expression, it is incumbent uponthe petitioner to prove real, imminent danger to communal harmony, and not merely vague allegations of malicious intentions andpurportedly scurrilous statements. This “proof” mandates the shunning of passages randomly clubbed together, entirely out of context. Mostimportantly, the interpretation must be based on the perspective of a reasonable, liberal person, not the vacillating minds of doubting Thomasespathologically wired to smelling danger in every contrarian point of view.

Of the series of judgements in this regard, three are the most apposite.

Back in 1976, the Uttar Pradesh government banned social historian and cultural activist Periyar’s Ramayan – A True Reading – ostensiblybecause the anti-majoritarian, anti-Aryan narrative of the book had hurt Hindus’ feelings. The Supreme Court not only quashed the ban, butalso took the government to task for pandering to the eulogy of its supporters by seeking to drown out reasoned and measured criticism of afaith. Then, in 2001, when the BJP government in Delhi sought to proscribe SAHMAT’s posters depicting the Ram Katha (an alternativenarrative of the Ramayana) in the Buddhist and Jain traditions, the Delhi High Court put its foot down on not allowing free speech to betrampled by insular bigotry.

James W Laine and Oxford University Press’s victory over the Shiv Sena in 2010 was another robust defence against the likes of Batra andhis motley squad of cruising fanatics. The Supreme Court, in 2010, acknowledged and praised Laine’s book Shivaji: Hindu King in IslamicIndia, holding that a scholarly work would never be deemed as being malicious or scurrilous enough to attract those dreaded censoriousprovisions.

As recently as 2011, the Delhi High Court again acted as the bulwark. Shabnam Virmani’s documentary Had-Anhad (Bounded-Boundless)on Kabir’s interpretation of the Ramayana and his message of communal harmony raised the hackles of the Hindu right and was also caughtin the Censor Board’s dragnet. Among other things, the phrase “that militant Ram used to stoke Hindu-Muslim hatred in India today” waspicked on, bereft of context, and singled out as the principal culprit. Not only did the court emphasise upon the need to uphold, protect andpromote diversity of interpretations, howsoever “offensive”, but while dismissing the apprehensions of communal conflagrations, it went astep ahead, holding that restrictions on expression must be justified “on the anvil of necessity and not on the quicksand of convenience orexpediency.”

Lest some fanatic proclaiming some other “faith” crawls out of the woodwork and screams holy murder, the courts’ “secular” approach to freespeech deserves a mention here. 2005 witnessed the Calcutta High Court quash the West Bengal government’s ban on Taslima Nasreen’sDwikhandita despite Islamic fundamentalists threatening a bloodbath. And in 2006, both the Madras and Andhra Pradesh High Courtsrefused to play tango with the government, which had given in to incensed Christians and banned the screening of the film The Da VinciCode (based on Dan Brown’s novel of the same name).“

Which means that if publishers wait till the matter actually reaches the inside of a courtroom, instead of cravenly pulling and “re-



pre-post reviewing” their titles in the face of non-threats by bullies, there is a good chance they will obtain favorable verdicts.Going to court, if it actually even comes to that, means that the question of censorship, democracy and public intellectual life canbe debated, discussed, challenged, and talked about in the public domain, between readers and writers and all those who careabout critical thought and the circulation of words and ideas. Backroom deals (such as between Penguin and DB, and the recentcapitulation by OB) are particularly galling because they render the question of the free circulation of words and texts asreducible simply to a property relationship between an author, a publisher and a bully with too much time on his hands.

And finally, as Datta’s text above makes clear, it is for the courts, not Dinanath, to decide whether a text invites censure under295a or not. If as a publisher you buckle without the matter ever reaching court you self-censure. The idiocy of this as a strategyon the part of institutions tasked with the custodianship of words should be clear to any sensible person. Why publishers, bigpublishers at that, with time and money and lawyers (should they require them) and enormous public goodwill and supportseem to think self-censorship makes any sense at all is baffling. More than anything, as commercial outfits, its bad for business.How exactly do you wish to be perceived? As people committed to the sanctity of the free circulation of words and ideas in anincreasingly repressive environment, or as entities who have not even the staying power to see a matter actually become asomething as opposed to the nothing that these “threats” currently are?

You have one job only. By simply doing your job as publishers you contribute to keeping alive a democratic culture of criticalintellectual public life in this country. By not doing your job you contribute to the slow transformation of India into anauthoritarian police state in which every idea, thought, word and book deemed dangerous by a hardline majoritariandispensation is marked for slaughter. It is really that simple. It is absolutely critical in the times in which we live that publisherscontinue to insist on publishing books that are critical of settled structures of power. Especially, as we have already explained(see above), there is no immediate threat to you, your offices, your staff, your families. For the love of all the fornicating gods andgoddesses, stop doing Dinanath’s job for him. Clearly he’s better at it than you are. Stick to doing your own.

Which is, lets try this one more time: Publishing Books and Defending Your Manuscripts and Authors.

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Aarti Sethi and Shuddhabrata Sengupta - Doniger Controvery, Free Speech Law, a Quick Legal Primer for Publishers