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Opinion

India book recall and the Law of Hurt Sentiments

Unencumbered freedom of expression remains a utopian dream with religious electioneering a sad reality in the country.

Last updated: 18 Feb 2014 04:47
Saurav Datta

Saurav teaches media law and jurisprudence in Bombay and Pune. You can follow him on @SauravDatta29
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Some groups alleged that Wendy Doniger's book on Hinduism hurt religious sentiments [EPA]

Amidst the bitter turf war being waged over Penguin India's "voluntary" withdrawal of Wendy Doniger's The Hindus-An Alternative History, two statements eerily stand out for their unanimity.

"[The] withdrawal of this book is an outcome of a valid, legal battle fought by people of eminence in this vibrant democracy." claimed Monika Arora, Dina Nath Batra's counsel.

" ... a publishing company has the same obligation as any other organisation to respect the laws of the land in which it operates, however intolerant and restrictive those laws may be." - Penguin India's statement on why it
capitulated in so spectacularly a meek manner.

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Rarely does one get to see such "united", contrived efforts to abide by the law, that too, by opponents who ought to be at daggers drawn. Contrived, because Batra who with his legal notice bludgeoned his way to victory, and equally because Penguin India, for whatever reasons it might have, did not demonstrate the spinal fortitude it had exhibited almost twenty-five years ago, when Salman Rushdie's The Satanic Verses faced the ire of murderous mobs.  

As the cacophonic pillorying of Penguin India's apparent pusillanimity gets shriller and the demand for free speech libertarianism gets more vociferous, it becomes incumbent to take a critical look at the set of laws which lie at the heart of this darkness of censorship by stealth and coerced consent.

Yes, this pulverising censorship was clandestine because unlike previous instances, those offended by the book resorted not to vandalism but carefully calibrated, dogged legal strategy. There was no furore; only a fait accompli when Penguin
India's "settlement" became public over social media.

It is equally imperative to rise above a Manichean view of the law, and be aware of its potential because in India every issue of free speech, especially if related to any expression or commentary over religion, is inextricably entangled with the fearful spectre of incendiary, communal, hate speech.

'Law of hurt feelings'

It isn't very difficult to understand why Sections 153A, 298 and 295A of the Indian Penal Code, which can collectively be termed as 'the law of hurt feelings', would go against the conscience of a secular liberal who is committed to a hitherto unencumbered right to freedom of expression.

Not only does it cultivate a legal vocabulary of hurt sentiments, but also, in trying to assuage wounded religious sentiments, it conversely creates a legal category of hatred.

Joseph D'Souza's case provides the best example. D'Souza had taken Maharashtrian political leader Bal Thackeray to court over an alleged Islamophobic speech.

In a ruling that shocked many, the Bombay High Court had held that Thackeray’s invective was not directed at Muslims as a whole, but only "anti-national Muslims".

Moreover, this law's provenance lies in colonialist and pioneer of Anglicist education in India Lord Macaulay's scathing assessment of Indians as 'emotionally excitable subjects', a population of despotic, stultifying people mired in superstition.

One can of course criticise Macaulay and his antediluvian, notions, but in respect of this law, he was not only prophetic, but also prescient. "No offence in the entire Code is so likely to lead to tumult, to sanguinary outrage and even to armed insurrection."

The violent history of communal riots both in pre and post-Independence India bear ample and spine-chilling testimony to Macaulay's truth.

When one considers Batra's accusations of maliciously maligning Hinduism, the publishing giant’s surrender seems pusillanimous. This is because even if an expression of an alternate viewpoint is perceived to be insulting, the deliberate attempt at incitement of communal hatred in order to justify censorship remains a prerequisite.

Role of the State

Moreover, what is the role of the State, which has a constitutional mandate to protect and uphold the freedom of expression? Three incidents provide the answers, which are reasons for grave consternation. In 1976, the Uttar Pradesh government banned social historial and cultural activist Periyar's Ramayan-A True Reading ostensibly because the anti-majoritarian, anti-Aryan narrative of the book had hurt Hindus' feelings.

The Supreme Court not only quashed the ban, but also took the government to task for pandering to the eulogy of its supporters by seeking to drown out reasoned and measured criticism of a faith.

1987 witnessed the Congress government in Maharashtra reneging on its undertaking to publish B R Ambedkar's Riddles of Hinduism because of the book's strident anti-Brahminical tone, and obviously because it did not want to antagonise the right-wing Shiv Sena and the upper-caste majority of Hindus.

A massive rally by Dalits and protests all across the State finally made the government keep its word, but not before exposing its cynical approach towards a constitutional mandate.

And then, in 2001, the BJP government in Delhi sought to proscribe SAHMAT's [http://www.sahmat.org/] posters which depicted the Ram Katha (an alternative narrative of the Ramayan) in the Buddhist and Jain traditions.

Obviously, the Hindu Right has always been hostile to any divergence from the insularly singular meaning of Hinduism which it champions as the only truth.

The Delhi Court, while calling out the government's obvious attempt at majoritarian appeasement, upheld the expression of an alternative, minority view, even if it appears as repugnant to a large section of followers of a faith.

In both these cases, the courts were categorical that a real imminent attempt at communal strife remains an essential prerequisite for any ban. So where does that leave us with the law? Should consciencitious citizens call for its abrogation?

Just as one is about to say a resounding YES, it deserves noting that religious electioneering is a sad reality in India. And as we stand on the brink of the General Elections, where "secularism" is the Indian politician's (irrespective of which political party he belongs to) "election haberdashery" (to borrow Justice Krishna Iyer’s words), the real reason for the free speech libertarians' demand hits us.

The lumpen elements of the Hindu Right want a free hand in hatemongering, because despite the BJP's Prime Ministerial candidate's poll plank of economic growth and development, the Ram Mandir still occupies a pride of place in the party's election manifesto.

1077

The views expressed in this article are the author's own and do not necessarily reflect Al Jazeera's editorial policy.

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