Print edition : April 04, 2014

Wendy Doniger.

Activists of the Akhil Bharatiya Vidyarthi Parishad protesting near the U.S. Embassy in New Delhi on May 25, 2010, against the American writer Wendi Doniger's book "The Hindus: An Alternative History". Photo: Shanker Chakravarty

It is truly amazing that the attack on Wendy Doniger’s book The Hindus: An Alternative History succeeded as it did because the sections of the law invoked in the complaints against the book do not at all apply to the facts of the case.

PENGUIN BOOKS has a reputation any publisher would be proud of. It published Bernard Shaw, Somerset Maugham, Aldous Huxley and Evelyn Waugh. Half a century ago, it published D.H. Lawrence’s Lady Chatterley’s Lover fully conscious of the gruelling battle it would have to fight in court. The Director of Public Prosecutions, Sir Theobald Mathew, decided to bring proceedings. Penguin won after a riveting trial, but with a bill estimated at £14,000, almost half a million pounds in modern terms.

It makes one sad to find Penguin Books India submitting to the attack launched by a Rashtriya Swayamsewak Sangh (RSS) outfit and submitting in patent, egregious ignorance or misreading of the law. Or, was it to pressure? It is truly amazing that the attack should have succeeded as it did, in respect of a book of high scholarship by an acknowledged scholar, in legal proceedings that were doomed to collapse. The book by Wendy Doniger, an Indologist and the Mircea Eliade Distinguished Service Professor of History of Religions at the University of Chicago. It is entitled The Hindus : An Alternative History. The subtitle suggests an effort at an original interpretation even as her doctorates in Sanskrit (Harvard) and Indian Studies (Oxford) testify to a certain empathy for Hindu thought.

The assailant was one Dinanath Batra of the Shiksha Bachao Andolan Samiti (Save Education Campaign), or SBAS. He is the head of the Vidya Bharati Akhil Bharatiya Shiksha Sansthan, the educational arm of the RSS. He told Divya Trivedi of Fron tline that the SBAS had set up 20 core committees in Ahmedabad, Delhi, Amritsar, Jabalpur and other parts of the country to discuss strategies on how to bring to book literature which was perceived by it to be not in line with the “cultural and spiritual heritage” of India. “Wherever it is found to disrespect the sentiments or distort facts, we will agitate at the State level and pursue legal action. We have won the battle, we will win the war,” he said.

His outlook was well reflected in these remarks: “There are so many Mohammedans and Christians in the country. Can’t drown them all in the sea. They should live in India as Indians.” Shades of the Jan Sangh’s Indianisation campaign of 40 years ago (“In their bad books” and “A legal flaw”, Frontline, March 7, 2014).

Winning with a toy gun

Penguin’s capitulation has whetted the Parivar’s appetite. It has tasted blood. Its organ Organiser of February 23 lists its conquests (see box). Its next target, as it proclaimed on March 1, is another book by Wendy Doniger, On Hinduism, published in 2013. The Hindus was published in 2009. Batra said: “I have won the battle but am yet to win the war…. We are pursuing legal action against several other authors and publishers who have taken it upon themselves to distort Hindu religion” ( Indian Express, February 12, 2014).

It is humiliation enough that the SBAS has won a “battle”. What is galling is that it won it by simply brandish ing a toy gun. It is singularly unfortunate that this aspect has been completely overlooked in the debate on the book. The SBAS pursued two remedies, civil and criminal. It brought a civil suit on March 19, 2011, after it had filed a complaint in the Hauz Khas police station in New Delhi on April 29, 2010, as also one in 2013. The suit was filed under Section 91 of the Code of Civil Procedure, 1908. The complaints were filed under Section 295A of the Indian Penal Code (IPC), 1860. Neither applies at all to the facts of the case. Batra pointedly said: “ The defendants approached us for a settlement and we agreed.” An agreement was signed on February 4. Accordingly, on February 10, an order was made, by consent, by Additional District Judge of Saket District Court Balwant Rai Bansal on a joint application of Gaurav Shrinagesh, CEO of Penguin Random House India, and Batra. The agreed terms are extremely drastic: “The second party (Penguin India) shall ensure that the book is completely withdrawn/cleared from Bharat (Indian territory) at the earliest, and within a period not exceeding six months, starting from the date on which this agreement is signed by the parties.”

Batra claimed that the book was based on “unreliable, unauthentic and one-sided sources” and that “it has not only used and misused but abused Indian history and religion in an undignified manner. It is a misinterpretation of Hindu dharma and its glorious past. That the defendant along with the author has selected scattered events of their choice and given them their own interpretation.” This charge does not even remotely fall under Section 295A.

In a statement on February 14, Penguin India explained why it had caved in: “We stand by our original decision to publish T he Hindus, just as we stand by the decision to publish other books that we know may cause offence to some segments of our readership. The IPC, and in particular Section 295A of that code, will make it increasingly difficult for any Indian publisher to uphold international standards of free expression without deliberately placing itself outside the law. This is, we believe, an issue of great significance not just for the protection of creative freedoms in India, but also for the defence of fundamental human rights.” This will not work. Section 295A did not apply at all. And Section 295A has not prevented the publication of heretical books since 1927 when the clause was inserted in the IPC.

Wendy Doniger agreed with her publishers in her anguished comment: “I am troubled by what it foretells for free speech in India in the present, and steadily worsening, political climate. And as a publisher’s daughter, I particularly wince at the knowledge that the existing books (unless they are brought out quickly by people intrigued by all the brouhaha) will be pulped. But I do not blame Penguin Books, India. Other publishers have just quietly withdrawn other books without making the effort that Penguin made to save this book. Penguin, India, took this book on knowing that it would stir anger in the Hindutva ranks, and they defended it in the courts for four years, both as a civil and as a criminal suit. They were finally defeated by the true villain of this piece—the Indian law that makes it a criminal rather than civil offence to publish a book that offends any Hindu, a law that jeopardises the physical safety of any publisher, no matter how ludicrous the accusation brought against a book.” Both publisher and author are wildly wrong.

Neither the civil suit nor the criminal complaint had the slightest chance of success. Both should, and, indeed, would, have been rejected.

Section 91(1) of the Code of Civil Procedure reads thus: “In the case of public nuisance or other wrongful act affecting, or likely to affect, the public, a suit for a declaration and injunction or for such other relief as may be appropriate in the circumstances of the case may be instituted—(a) by the Advocate-General, or (b) with the leave of the court, by two or more persons, even though no special damage has been caused to such persons by reason of such public nuisance or other wrongful act.” Did the court, indeed, accord that “leave”? The words “public nuisance” have acquired a precise connotation. They have a technical import. They do not signify just any act which offends but public nuisances that affect public rights such as an obstruction on a public highway. In the entire century in which the Code has been in force, there is not a single case which can possibly support a complaint of the kind Batra made in his suit. It simply discloses no “cause of action” and was liable to be dismissed summarily on this ground alone.

Sir Dinshaw F. Mulla’s commentary (on the Code’s predecessor) has served as a Bible since it was first published in 1990. The 17th edition (2007) by S.K. Sarvaria and Srigdha Sarvaria sums up the cases thus: “Acts which merely offend the sentiments of a class do not amount to a public nuisance. In India, it must often happen that acts are done by the followers of one creed which must be offensive to the sentiments of those who follow other creeds. Upon this principle, it has been held that the placing of a Mahommedan symbol in the neighbourhood of a Hindu temple is not a public nuisance, though likely to cause annoyance to Hindus. Similarly, it is not a public nuisance, to expose on the verandah of a house meat cut up for a dinner, though it may annoy the feelings of Jains frequenting a temple close by the house. But wilfully slaughtering cattle in a public street so that the groans and blood of the animals could be heard and seen by the passers-by is a public nuisance, for, it must necessarily cause annoyance to every one of the passers-by, Hindu, European, Mahommedan or other, who was not utterly devoid, not merely of refinement, but also of all proper feelings” (page 103, LexisNexis, Butterworths, New Delhi). Even if Section 91 applied, what was the cause of action which could warrant a civil suit? Section 295A of the IPC cannot be invoked in a civil suit, nor Section 91 of the Civil Procedure Code in a criminal case. They cannot be telescoped into one.

Deliberate and malicious

Section 295A was inserted in the IPC by the Criminal Law Amendment Act, 1927. It reads thus: “Whosoever, with deliberate and malicious intention of outraging the religious feelings of any class of citizens of India, by words, either spoken or written or by signs or by visible representation or otherwise insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.”

Anyone literate enough to read it and blessed with a modicum of intelligence to understand it will notice that it applies only if there is a “ deliberate and malicious intention of outraging the religious feelings” of any community. It is a settled principle that penal statutes must be interpreted strictly and every ingredient of a criminal offence must be proved, for example, the malicious intention.

Speaking on Section 295A in the Central Legislative Assembly on September 5, 1927, Mohammed Ali Jinnah said: “I thoroughly endorse the principle, that while the measure should aim at those undesirable persons who indulge in wanton vilification or attack upon the religion of any particular class or upon the founders and prophets of a religion, we must also secure this very important and fundamental principle that those who are engaged in historical works, those who are engaged in the ascertainment of truth and those who are engaged in bona fide and honest criticisms of a religion shall be protected. Sir, there is, therefore, really no difference of opinion between the Honourable Home Member who represents the government and this side of the House.”

The Statement of Objects and Reasons attached to the Bill also emphasised the element of malicious intent. “The prevalence of malicious writings intended to insult the religion or outrage the religious feelings of various classes of His Majesty’s subjects has made it necessary to examine the existing provisions of the law with a view to seeing whether they require to be strengthened. Chapter XV of the IPC, which deals with offences relating to religion, provides no penalty in respect of writing of the kind described above. Such writings can usually be dealt with under Section 153A, IPC, as it is seldom that they do not represent an attempt to promote feelings of enmity or hatred between different classes. It must be recognised, however, that this is only an indirect way of dealing with acts which may properly be made punishable themselves, apart from the question whether they have the further effect of promoting feelings of enmity or hatred between classes. Accordingly, it is proposed to insert a new section in Chapter XV of the IPC with the object of making it a specific offence intentionally to insult or attempt to insult the religion or outrage or attempt to outrage the religious feelings of any class of His Majesty’s subjects.”

However, the Supreme Court put the matter beyond all doubt as far back as in 1957 in the case of Ramjilal Modi vs S tate of Uttar Pradesh (AIR 1957 S.C. 620). It ruled that Section 295A “only punishes the aggravated form of insult to religion when it is perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class. The calculated tendency of this aggravated form of insult is clearly to disrupt the public order and the section, which penalises such activities, is well within the protection of Clause (2) of Article 19 as being a law imposing reasonable restrictions on the exercise of the right to freedom of speech and expression guaranteed by Article 19(1)(a)’’.

Would Batra have ever been able to prove that the scholar Wendy Doniger had that malicious intention? He would have had to face another equally impossible hurdle. Section 196(1) lays down that no court shall take cognisance of any offence punishable inter alia under Section 295A “except with the previous sanction” of the State or Central government. Would Batra have received that sanction for his complaint from the Delhi or the Central government?

Thus, even on the very face of the suit or complaint, it was liable to be rejected in limine (summarily). The law invoked in each case did not apply. Surely, the High Court is there to ensure such a dismissal even if the District Judge or the Magistrate or the police did not follow the law. There is also the Supreme Court which gave relief to Oxford University Press on July 9, 2010, in James Laine’s book on Shivaji. It quashed the investigation itself holding that there was no mens rea (the guilty intent) and that the book had to be read as a whole ( Manzar Sayeed Khan vs State of Maharashtra (2007), five Supreme Court cases!).

The question, therefore, arises: Why did Penguin Books India cave in to Batra? Section 499 of the Penal Code on defamation also does not apply. Explanation 1 says that imputations on a deceased person is liable to prosecution only if it is “intended to be hurtful to the feelings of his family or other near relatives”. It does not apply to “imputations” on national or regional heroes or historic figures no matter how deeply their noisy devotees profess to love them.

This was a private litigation but one affected with a clear public interest. The pulping of Wendy Doniger’s book affects the citizen’s right to know, which is an integral part of the fundamental right to freedom of speech and expression, as the Supreme Court has repeatedly held. Batra brandished a double-barrelled toy gun: a civil suit based on no cause of action and a complaint under Section 295A of the IPC. But the IPC cannot be involved in a civil suit just as a criminal court will not entertain a civil case. This is not a matter entirely between Penguin India and Batra. It affects us all.

Since the public interest is manifestly involved it would be worthwhile for any correspondent to seek and publish copies o f the (a) texts of the two complaints to the police at the Hauz Khas police station; (b) the text of the plaint in the civil suit; (c) the proceedings in the court seized of the civil suit (How far had they gone? What took place?); and (d) the police response, if any, to Batra’s two complaints. All these are in the public domain. Certified copies can be demanded under Section 76 of the Indian Evidence Act, 1872, as also, under the Right to Information Act. One hopes that Lawrence Liang of the Bangalore-based Alternative Law Forum and other activists will join hands to give battle in this noble cause. The people have a right to know. We all have to ensure that this conquest will be Batra’s last.

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