A legal flaw

Print edition : March 07, 2014

Dinanath Batra, all-India convenor of Shiksha Bachao Andolan Samiti, with Karnataka Higher Education Minister D.H. Shankaramurthy, during a discussion on "sex education in schools", on April 20, 2007. Photo: V. Sreenivasa Murthy

The Penguin case raises doubts about the state’s ability to protect writers’ freedom of expression from those seeking to impose unreasonable restrictions.

“A liberal tolerance of a different point of view causes no damage. It means only a greater self-restraint. Diversity in expression of views whether in writings, paintings or visual media encourages debate. A debate should never be shut out. 'I am right' does not necessarily imply 'You are wrong'. Our culture breeds tolerance--both in thought and in actions."

Justice Sanjay Kishan Kaul of the Delhi High Court in Maqboo Fida Husain vs Rajkumar Pandey on May 8, 2008.

THE out-of-court settlement Penguin India reached with Dinanath Batra, a retired schoolteacher, and its decision to recall, withdraw and pulp all unsold copies of Wendy Doniger’s book The Hindus: An Alternative History, may have brought to a close the legal battle between the publishing house and Batra. But it has led to a huge crisis of confidence in the ability of the Indian state and its institutions, including the judiciary to protect the freedom of expression, from those seeking to impose unreasonable restrictions.

Batra and five others representing the Shiksha Bachao Andolan Samiti had registered two criminal complaints before the Hauz Khas Police Station, New Delhi, in 2010 and 2013, and filed a civil suit (No.360 of 2011), which is pending before the court of the Additional District Judge at Saket District Courts, New Delhi, in 2011.

On February 4, after Penguin agreed to withdraw all the copies of the book from India within a period of six months, Batra and his associates agreed to take back with immediate effect all the civil and criminal cases/complaints and any other legal actions initiated by them against Penguin India, Wendy Doniger and Penguin United States, who are the defendants in the civil suit.

On February 10, the Additional District Judge of Saket District Court, Balwant Rai Bansal, accepted the agreement and passed a consent order, dismissing the suit as withdrawn. The two criminal complaints filed before the Hauz Khas Police Station also stood withdrawn following the agreement. The case throws light on how legal provisions are allowed to be abused by those opposed to the freedom of expression of authors and academics.

In their civil suit, the six plaintiffs, including a freedom fighter, a former Ambassador, and a history teacher, invoked Section 91 of the Civil Procedure Code (CPC). Section 91(1) of the CPC says that in the case of a 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.

In their suit, the plaintiffs sought deletion of “objectionable” passages and “inaccuracies” in the book.

Among the passages cited are:

Mahatma Gandhi and Vivekananda advised people to eat beef;

Rani Lakshmibhai was loyal to the Britishers;

The hero of post-War independence, Mangal Pandey, was under the influence of opium;

Shivling is a representation of male sex organ in erection;

Laxman was lustful towards Sita in Ramayana;

Lord Ram said an idiot will not send his good son like him to forest for the sake of a pretty woman.

It is clear that the deletion of such passages would have resulted in the author rewriting the entire book, and no court would have granted such a relief. It has been held in many cases by appellate courts that the effect of a work on a reasonable person has to be understood as a whole, rather than by picking one sentence here or there, and studying it in isolation. On July 9, 2010, while lifting the ban on James Laine’s book on Chhatrapati Shivaji, the Supreme Court said:

“The intention of the author has to be gathered from the language, contents and import of the offending material. If the allegations made in the offending article are based on folklore, tradition or history something in extenuation could perhaps be said for the author….”

It further held: “The effect of the words used in the offending material must be judged from the standards of reasonable, strong-minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view. The class of readers for whom the book is primarily meant would also be relevant for judging the probable consequences of the writing.”

These binding observations must have convinced the District Judge that the suit lacked merit, and that there was sufficient ground to dismiss it at the admission stage itself. Considering that The Hindus is an academic book meant for scholarly readers, and that the author had no intention of hurting the sentiments of the readers, this section of the CPC should not have come to the aid of the plaintiffs.

The expression “public nuisance” used in Section 91 has not been defined. Examples of nuisance to the public as defined in this provision include obstruction of a public highway, pollution of public waterways, storage of inflammable materials, endangering life, health or property of public and ringing of bell day and night. While there have been several examples of the state seeking forfeiture of books under Section 95 of the Code of Criminal Procedure (CrPC), individuals seeking deletion of sentences in a book under Section 91 of CPC are rare.

While individuals have a right to seek legal remedy under Section 91, it is for a judge to apply his/her mind and not entertain frivolous and vexatious suits.

In the case of criminal complaints filed with the police station, Section 499 and 295A of the Indian Penal Code (IPC) were invoked. Section 499 deals with defamation while Section 295A deals with deliberate and malicious acts intended to outrage the religious feelings of any class by insulting its religion or religious beliefs. Both these provisions are inapplicable in this case: casting aspersions on historical or mythological characters is not defamatory.

Provisions of Section 295A would be invoked if the offending “act” is deliberate and malicious, with an intention to outrage religious feelings, which is not the case in this instance. Had the publisher challenged these criminal complaints in a court, there was a fair likelihood of them being quashed for these reasons. The police, too, could have refused to register such frivolous complaints.

Both in civil and criminal cases, the legal process itself constitutes punishment to the defendant, in terms of loss of time and resources expended in defending oneself from legal injury, and the resultant mental harassment, sometimes accompanied by physical threats and intimidation.

It is in order to avoid such harassment that Justice Sanjay Kishan Kaul in his judgment quashing multiple proceedings against painter M.F. Husain sought legislative steps to end this menace. The then Additional Solicitor General, Gopal Subramanium, had promised the court that he would advise the government to enact appropriate legislative amendments keeping in mind the need to balance interests between the person aggrieved and the accused so as to prevent the harassment of artists, authors, film-makers and others in the various creative fields. The judge hoped that this aspect would get the attention it deserved and the legislature would examine the feasibility of possible changes in law.

Six years after the Husain judgment, the government is yet to take any initiative to strengthen the legislative regime to nip in the bud any attempt to use the legal process as an instrument to harass creative artists and writers.

As Akhil Sibal, advocate who defended Husain against his legal harassers, told Frontline: “Penguin perhaps had no option, but to put a quietus to it, as in the alternative, it would have waged a lone battle, and faced a great deal of harassment, in the absence of support from society. There is need to begin a reverse trend, and send a counter message of intolerance against hate campaigns.”

Had the support from civil society for Penguin, which is visible now on social media sites, been louder when the civil suit and the criminal complaints were filed, Penguin could have continued the legal battle against its harassers.