Bypassing legal process

Print edition : February 20, 2015

PERUMAL Murugan’s Tamil novel Madhorubagan (One Part Woman), published in 2010, has not yet been banned officially despite demands from protesting groups in Tiruchengode, in Tamil Nadu’s Namakkal district (“Rage over a custom”, Frontline, January 23, 2015). But the State government, through the district administration, got the author to offer an unconditional apology, to delete the offending portions in the next edition, and to take back unsold copies of the novel.

This “unofficial” ban was decided on at a “peace committee” meeting held on January 12 at the behest of the Revenue Divisional Officer, Namakkal, in Namakkal, between the protesting groups and Murugan, who did not have a face-to-face dialogue with the representatives of the protesters.

Even as the criticism of their role in silencing Murugan mounted in civil society, the members of the Sangh Parivar, such as the Hindu Munnani and the Rashtriya Swayamsewak Sangh (RSS), pretended to keep a distance from the protesters and disown any responsibility for their actions. This only heightened the concerns. If persons without any organisational backing could browbeat an administration into securing an unofficial ban on a book without following due legal process, the portents are indeed ominous for the survival of freedom of expression, despite clear and robust constitutional guarantees. Taking a serious note of this, the Madras High Court’s First Bench, comprising Chief Justice Sanjay Kishan Kaul and Justice M.M. Sundresh, expressed its concern over extrajudicial groups wielding power to decide what is right and what is not, and what authors can write and what they cannot. The Bench agreed to hear a petition filed by the Tamil Nadu Progressive Writers and Artists Association to declare the minutes of the January 12 “peace committee” meeting null and void and make Murugan a respondent in the case.

The Bench disapproved of the peace committee meeting and said the authorities should have advised the protesting groups to lodge complaints if they were aggrieved by his writings. The Bench suggested that the petitioner instead of limiting its prayer only to quashing or staying Murugan’s undertaking should go into the larger issue of freedom of expression and the threats it faced so that the court could pass detailed orders.

Justice Kaul’s intervention has raised hopes of the court revisiting the case decided by him as a judge of the Delhi High Court in 2008 while disposing of an appeal by M.F. Husain against notices issued by various courts on complaints that his paintings denigrated Hindu deities. In that case, Justice Kaul quashed multiple proceedings against Husain and sought legislative steps to prevent harassment of artists, authors, film-makers and others in various creative fields. While the government is yet to do anything 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, the controversy over Perumal Murugan’s novel shows an attempt to circumvent the legal process and its safeguards in order to achieve a similar result.

The “undertaking” obtained from Murugan under duress by the Namakkal administration has no sanctity in law, and the publisher and readers of his book have rightly ignored his appeal, made on his Facebook page while he was in distress, not to promote or read his books.

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.”

If the publication of Murugan’s Tamil novel in 2010 did not constitute any threat to public order in Tamil Nadu, its translation into English in 2014 could hardly be said to have the potential to disrupt peace in the State. The novel’s reference to a social custom which sanctioned extramarital sex of childless women in a particular region of the State more than 75 years ago could hardly be interpreted as the author’s intention to denigrate contemporary Tamil society or women. The resort to extraconstitutional methods to silence Murugan has exposed the protesters’ nature, and therefore their arguments against the novel lack any legal standing. The appellate courts have, in many cases, held 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.

In S. Khushboo vs Kanniammal, the Supreme Court held on April 28, 2010, that even though the constitutional freedom of speech and expression is not absolute and can be subjected to reasonable restrictions on grounds such as “decency and morality”, among others, we must lay stress on the need to tolerate unpopular views in the sociocultural space. “The framers of our Constitution recognised the importance of safeguarding this right since the free flow of opinions and ideas is essential to sustain the collective life of the citizenry. While an informed citizenry is a precondition for meaningful governance in the political sense, we must also promote a culture of open dialogue when it comes to societal attitudes,” the court said. It added, “While there can be no doubt that in India, marriage is an important social institution, we must also keep our minds open to the fact that there are certain individuals or groups who do not hold the same view. To be sure, there are some indigenous groups within our country wherein sexual relations outside the marital setting are accepted as a normal occurrence.”

V. Venkatesan

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