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Publish and Be Damned in India

by Rajeev Dhavan, 7 September 2009

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From: Mail Today
24 August 2009

The country needs statutory safeguards against the colonial- era powers that the states have to ban books

India guarantees free speech, but takes it away at will. Free speech is expensive. Censorship free. If the government does not get you, the goons will. If the goons are unleashed, their party bosses will act as pontiffs. The spiral of social and state censorship in India is increasing.

Jaswant Singh is an amiable man — not normally controversial. But he is caught in the worst controversy of his life — humiliated by his political friends and unceremoniously expelled from the BJP without the dignity of courtesy or due process. His book Jinnah: India - Partition - Independence presses the case for Jawaharlal Nehru, Sardar Vallabhbhai Patel, Mahatma Gandhi and Lord Louis Mountbatten as the guilty men of Partition — to partially absolve Mohemmad Ali Jinnah. Here, I am not really concerned with the merits of the controversy espoused by politicians like Ram Manohar Lohia, lawyers like H. M. Seervai, historians like Ayesha Jalal, British apologists like Alan Campbell- Johnson. History’s laws of causality are not so remote from commonsense or law. It seems incongruous to totally absolve Jinnah of his blackmail and insist that only the blackmailed goofed. Yet the latter cannot be given absolution. This argument will continue. No one can stop or silence it.

In our times the forces of censorship have been apocalyptically unleashed like the dogs of war. India suffers two kinds of extreme censorship: social and state.

The advent of social censorship is as frightening as it is spectacular. Hindutva’s protest against Deepa Mehta’s Fire and the Water . The filming of the latter stopped in Benares. Hussain’s paintings targeted for destruction. Art galleries destroyed in Gujarat. The library of the Bhandarkar Institute in Poona ransacked.

An academic work on Shivaji banned in Maharashtra which even the Supreme Court dealt with circumspectly.

Even actors like Amitabh Bachchan are immediately and respectfully apologetic lest their films meet tension on the circuit. The now immortalised Michael Jackson paid respects to the Shiva Sena supremo to safeguard his concert. The BJP has impliedly supported this thuggery since its political existence depends on maintaining this vitriol. What was silent emerges in Arun Jaitley attack on Jaswant Singh’s book that his political party cannot “ allow any member, more so a frontline leader, to write and express views against the party’s core ideology”.

History

It is idle to contend that it is the RSS that is holding the BJP back. It is the BJP that flaunts its Hindutva based censorship and uses it to political advantage. Disciplining Jaswant Singh is one thing, banning his book quite another.

With this we move to state censorship.

To ban and burn books seems medieval. Under Indian law banned published material suffers forfeiture under Section 95 of the Criminal Procedure Code ( Cr. P. C.) — to lie in government godowns with rats, mice and eventually be pulped or burnt. Books and material can be banned in three principal ways : ( i) ban of import and export under customs laws by the Union Government, ( ii) ban by state governments, ( iii) ban under local laws. Salman Rushdie’s Satanic Verses was banned in 1988 under customs law. So, too, in 1951 a photograph of Nehru wearing imperial robes! The book and film Nine Hours to Rama; earlier during the British period Katherine’s Mayo’s Mother India. Mrs. Gandhi banned Michael Brecher’s biography of Nehru in 1975.

This is a deadly power.

But the real ban and forfeiture power vests with the states under the Cr. P. C. against publications on sedition, national integration, obscenity, promoting religious and other enmity between groups, or deliberately and maliciously outraging religious feelings.

There is a rich history of bans including parts of Dayanand Saraswati’s Satyaratha Prakash , books on Islam and Christianity, The Communist Manifesto , Lenin’s Imperialism and so on. After independence, various states exercised this power principally to deal with communal situations, obscenity or political bans. In the last category was a ban on Congress Ka Khuni Itihas upheld by the Rajasthan High Court in 1951 and Sheikh Abdullah’s speeches in Nawa- i- Kashmir protected from ban by the Patna High Court in 1963 on a technicality. The courts were reasonably vigilant. In 1971, a ban on Agnee Pareeksha based on the Jain Ramayana was quashed by the Madhya Pradesh High Court, as also the Periyar Ramayana by Justice Krishna Iyer’s pathbreaking judgment in the Supreme Court in 1977.

The ban on the play Me Nathuram Godse Boltoy was quashed by the Bombay High Court in 1971. Sahmat’s poster on the several versions of the Ramayana was quashed in the year 2000 by the Delhi High Court. Conversely the Supreme Court upheld the ban on Lady Chatterji’s Lover in 1965 which continues today.

Arbitrary

The power of ban is irresponsibly exercised. In 1995, Maharashtra banned Salman Rushdie’s The Moor’s Last Sigh because Bal Thackeray felt that a character had similarities to him. The Supreme Court overturned this ban. In 2003, West Bengal banned Taslima Nasreen’s Dwikhandito . In 2004, Maharashtra banned Laine’s Shivaji which was objected to by the High Court and the matter is before the Supreme Court. In 2009, the UP government banned Jaishree Mishra’s Rani . Curiously apart from state censorship, court ordered litigation bans on grounds of defamation were imposed. Such as the Delhi High Court on Kuldip Nayar’s India House on lawyers objections, Khushwant Singh’s book on Maneka Gandhi’s objection which were later lifted. A Madhya Pradesh police officer got relief from MP High Court in 2009 on Dominique Lapierre’s Five Past Midnight in Bhopal . McDonald’s Polyester Prince on Dhirubhai Ambani is also enmeshed in litigation bans.

The state’s ban power, devised by the British in 1899 has become an irresponsible shoot- from- the- hip power as we can see in the UP ban of 2008, the West Bengal ban of 2003 and the Maharashtra bans of 1955 and 2004.

Modi

Modi and the Sangh Parivar have violently supported an abuse of social and state censorship. Statutory bans require ( a) an exact delineation of the offending material ( b) clear reasons for the ban and ( c) in the specific categories of sedition, communalism, obscenity and the like. Bans should come after due process, but most states rely upon a “ ban- first- and- judicial- process” later clause.

Modi’s ban seems outrageous. It is clearly for political reasons. The excuse of inspiring enmity between groups to breach public order is a hoax. Gujarat has become a state where the ruling party manufactures disorder and then, appropriates draconian powers for communal use. If the ban is to safeguard Sardar Patel’s reputation and win the vast ‘ Patel’ vote, this smells of political mala fide . Modi would like to be seen as the ruthless Chhota Sardar who acts decisively. But abusing state power in such a way is a roguish exercise.

What do we do with this power? After 110 years, these provisions empowering the state to exercise vicious powers for party political purposes need to be reviewed. Pre-censorship powers should not exist at all.

Even if a ban is absolved, it takes years through the judicial process.

Arguments and thoughts should be answered as arguments and thoughts.

Censorship is never the answer. Take away free speech and Indian democracy would be fatally bruised. Elected dictators like Modi are ill equipped to exercise this brahma astra which should suffer new direct statutory safeguards against political abuse.

Alternatively they should be abolished altogether.

The writer is a Supreme Court lawyer