Five Questions on Penguin Books withdrawing, “The Hindu’s: An Alternative History”

When the story of Penguin India withdrawing Wendy Doniger’s book, “The Hindu’s : An Alternative History”, first broke out, it was through a leaked settlement agreement between the Publisher and Shiksha Bachao Andolan, the Plaintiff in a civil suit filed in the Saket District Court..Though the contents of the civil suit were not revealed, the leaked settlement disclosed of an additional two criminal complaints filed with the Hauz Khas Police Station in New Delhi, India. The settlement posed some difficult questions on the rise of intolerance and growing censorship in India..Through this article, Apar Gupta seeks to answer the legal issues which spring from it..1.What are the legal implications of the settlement?.This is a private settlement which is valid in the territory of India. It only binds the publisher which has undertaken to pulp the unsold copies. It is anticipated that unsold copies are with vendors on lines of credit and hence will be recalled by the Publisher. Hence, in effect future sales are prevented. There is no finding of legality of the book itself. In a sense, libraries can still stock it, readers can still read it and literature festivals can still hold panel discussions on it..This should be loaded with an important caveat. Given the rise in intolerance, public displays of the book may invite criminal action. This is not a finding of guilt or innocence, but is the commencement of a legal process. This may start with the filing of a criminal complaint with the Police or even the registration of a FIR. One has seen such actions being taken against the public recital of verses from the Satanic Verses in Jaipur, which was prohibited only for import under the Customs Act..2. Are there ways to challenge the ban?.Firstly it should be understood that the book has not been “banned”. Banned as a term of law, would imply a determination of illegality. Secondly, the settlement is pursuant to a civil suit filed against Penguin. It is improbable that such a settlement can be challenged through either an appeal against the decree or an independent writ by a third party..It is important to remember, that this settlement has been reached in a private suit as opposed to an administrative action under Section 95 of the Code of Criminal Procedure. The Code of Criminal Procedure, under Section 96 recognises the right of an independent right of any third party to challenge the notification before a specially constituted bench of a State High Court. Even in the case of the notification under Section 10 of the Customs Act under which the import of several books, for eg. the Satanic Verses, has been prohibited, it can be challenged in writ jurisdiction..However these avenues seem severely limited at present. If a third party does wish to proceed ahead with publishing and distributing the book, it can be by first applying for a compulsory license under the Copyright Act, since at present Penguin holds the rights to it and is not making it available. Even this process will be legally protracted without the prospect of any commercial gain. Negotiating with the law at present remains a difficult prospect. In such case, most have already created online copies of the book and are distributing them online. Though technically it constitutes infringement, in a way the settlement has been defeated by wider dissemination..3. Why was such a settlement reached?.Many people forget that content laws which criminalise speech apply equally against the Author as much as the Publisher. Here it is not only delays in determination of liability (as suggested by the case being pending for 4 years), but also doctrinal indeterminacy. This indeterminacy is for the penal provisions which exist under our statutes and applied in an inconsistent manner negating any predictability for publishers and authors. It is my reading of the settlement, that it was necessitated more due to the pending criminal complaints for which complaint cases could be filed or FIR’s could be registered..Take for instance, the offence of obscenity under Section 292 of the Indian Penal Code, 1860. The central doctrine for a work to be declared obscene is the nebulous hicklin test which lends great uncertainty as to the outcome of the case. Even the Supreme Court in the recent case of, Aveek Sarkar v. State of West Bengal, after first expressly rejecting the Hicklin Test, seeks to apply it implicitly. This is typical in the tendencies of adjudication, where the tests for liability are tweaked as per the sensibility of the content and the conscience of the court..Secondly, beyond the legal risks the publication may have also factored in the commercial reasons for acceding to the settlement. It may have run its first print in a limited set of copies which may not have sold widely and may not have intended to have a second print. In such a situation it may have factored in financial concerns as well..4. Many people say the media outrage is selective and the prohibition is through a court order. Why are people making such a big deal out of it?.I would disagree that media outrage has been selective with respect to this publication. Even the criminal complaints lodged against the authors who recited passages from the Satanic Verses at the Jaipur Literature Festival was extensively covered in the mainstream press. As many know, Satanic Verses as a book has offended the muslim community..The point which is being lost in this debate is that provisions under the Indian Penal Code, 1860 are religion agnostic. In a sense they provide for criminal remedies for offence caused to any religious or ethnic group. This is not focussed towards protecting any special religious group. Given this the legal analysis if critical of such laws, should be on the basis that it provides criminal remedies to the constituents of religious groups with the lowest levels of tolerance across all denominations..5. Shouldn’t there be limits on freedom of speech? Why are many people citing precedent from the United States, their free speech standards are different from ours..Yes, there should be limits on freedom of speech. However one can notice an interesting trend where the limits prescribed under Article 19(2) are being impugned not by law but by technology. Today an incredible amount of expression is being facilitated online, on social media platforms incorporated in the United States..It is understandable that they have historically complied with laws where they are incorporated. Hence, by design much of these platform subscribe to the high barriers to interference set by the 1st Amendment. To my mind, with each act of legal censorship which is sanctioned, the reasonable restrictions as prescribed under Article 19(2) are being thrown into conflict with the cultural expectations of the 1st Amendment standard..In terms of the law itself, the Supreme Court of India has been cautious to import precedent from the United States Supreme Court on the right to speech and expression. This is clearly articulated in R. Rajagopal v. State of Tamil Nadu and is a position which continues..(Apar Gupta is a Partner at Advani & Co.)