#youhadonejob: Or, A Quick Legal Primer for Publishers. Or, What (Not) to Do When Dinanath (and other busybodies) Strike
This post is co-authored by Aarti Sethi and Shuddhabrata Sengupta
Dinanath Batra is at it again. Not content with having bullied Penguin and Aleph into withdrawing Wendy Doniger’s “The Hindus: An Alternative History”, and “On Hinduism”, respectively, he has now trained his guns on Orient Blackswan. And, in what seems to be emerging as a frighteningly predictable pattern, Orient Blackswan has succumbed to Dinanath Batra’s “legal suits”, not just by agreeing to consider the withdrawal of a book that had attracted Batra’s attention, but also by withdrawing another book, on sexual violence during communal riots in Gujarat, as a ‘preventive measure’ regardless of the fact that it had not even been targeted by Batra and his organization. Clearly these are interesting times for publishing in India.
There is no need to rehash arguments on the importance of free speech and the circulation of books and words and texts. These have been extensively discussed here on Kafila, and everywhere else. At this stage it might be useful to simply clarify some pressing “legal” matters as there seems to be a bewildering confusion rife amongst publishers as to what exactly a legal notice is. Thus, to begin:
What a Legal Notice Is:
A Legal Notice is a grouse sent by registered post and has the same legal standing. Namely, none whatsoever. Any crank with half an hour, a typewriter and money for postage can send a legal notice to anyone about anything. You do not even have to get a lawyer to draft it. You just need a few minutes on the internet where pre-drafted forms are available for free. Or, just for fun, try drafting one yourself. Since it has no legal validity anyway, be creative!
Now that we know what a legal notice is, let us look at what a legal notice is not.
What a Legal Notice is Not:
An First Information Report (FIR)
A police complaint
A police and/or court proceeding
A Court Order
A legal injunction
To clarify again: a legal notice is simply a private communication between a private party and another private party.
It has nothing to do with the state. Therefore there is no point crying foul about repressive laws and the like on receiving a legal notice. This is a red herring deployed by a craven publishing house because it has nothing at all to do with the law or the police. We could conceivably send Dinanath Batra a legal notice tomorrow alleging his morning walks are in contravention of Section 33 of the Bombay Police Act 1961 which regulates the conveying of a wild or dangerous animal through a street. If on the basis of our allegation he then chose to stay at home for the rest of his life, it would make India a better place, but would also be exceedingly dumb. As dumb as the actions of publishers to withdraw books on receiving a legal notice from him, alleging that the book is in contravention of XYZ provision of the law.
What to do should you receive one:
First, don’t panic. (See above viz. definition of legal notice).
Second, Do Nothing At All. Just sit tight and wait to see what happens next. Which most likely will be: nothing at all.
If, however, you have time on your hands and wish to take further action, consider the possibilities below.
There are many ways to use a legal notice. Simply do with it what you would with any unwanted piece of paper: shred it, recycle it, sell it in the kabadi with your old newspapers.
For the artistically inclined, fold into bewildering and complex origami figures, for the anally inclined use as toilet paper, for the nasally inclined a handy wipe for sniffly days, for the crazily inclined, go wild! etc etc…
If it is printed only on one side, then of course you have more options. You can:
Draw on it, doodle on it, write love notes on it, paint Dinanth Batra astride a horse composed of naked ladies, etc etc…
What Not to Do Should You Receive One:
Withdraw a book.
Pulp a book
Send an already published manuscript for “pre-release” review.
Oh but, but. but – what about 295a?!?!
Confronting Your Fears: The Bogeyman of Section 295-A
While we sympathize with the publishers who are feeling frustrated about dealing with the particularly repugnant features of 295a (such as the fact that it is a cognizable offense liable for arrest without warrant), let us also be clear, that a lot of people, in a lot of professions and vocations in India, routinely deal with the ‘threat’ of punitive laws. This is done not specially, but as a matter of course. This is the way things are, and it does not matter if you have the BJP or the Congress or the CPI(M) or the AAP or the TMC or the Janata Dal or the DMK or the AIADMK calling the shots. Lets face it, culturally, Indian politics is authoritarian and repressive, and that is the way it is, and is likely to be. We have to live in this situation, do the work we have to do. Books were banned when Nehru was in power, when Indira Gandhi was in power, when her son was in power, when Atal Behari Vajpayee was in power, and books and their authors, in a lot of Indian languages, and in English, continue to face difficulties today. This is nothing new, nor is it only about books.
Documentary filmmakers for instance, have been effectively, and quietly organizing against censorship (while dealing with the same set of laws) for several decades. It does not stop them from making films, it does not stop independently organized film festivals from showing them. They have good lawyer friends.
Ask any journalist, trade union activist, lawyer engaged in civil liberties work, doctors who do prison work, and even scientists (physicists, mathematicians, biologists and environmental scientists) who write and work against the nuclear energy establishment in India – and you will see that all of these different kinds of people routinely deal with the threat of the criminal provisions of repressive laws in the course of their work. Even people who undertake to do regular teaching, and may be leading a demonstration against their worsening work conditions, or against the mindlessness of the current F.Y.U.P programme, say in Delhi University, have to consider that their actions may invite a whole host of repressive laws, which contain criminal provisions, including imprisonment.
Everyone of these different kinds of people – (and by no means are the majority of them activists, or even want to be activists) knows how to work with anticipatory bail. Given the generality of this situation we find the special ‘nervousness’ of the publishing fraternity in Delhi somewhat amusing. We do not have any desire to see anybody go to prison or to have to see the prospect of the harassment of a long drawn out trial – but then, either you decide not to publish anything remotely controversial or interesting, or, if you do, you deal with the consequences. Unless the publishing industry believes it lives, or should live, in a specially cocooned little bubble untouched by the sorts of questions that assail most people in the course of their daily lives, their whinging and whining about punitive laws is a tad pathetic.
Because, and this should come as no surprise, in independent India not a single mainstream publisher has ever been imprisoned under any provision of the law. The people dealing in words who have had to face the wrath of the state are those accused under sedition charges and waging war on the state: writing, publishing and distributing “banned literature” from the far-left and far-right political spectrum. These organizations do not count either Penguin, or Orient Blackswan, or Aleph on their list of members. In rare isolated cases, there have been arrests of small regional publishers such as Abdul Rehman, managing director of Nanma Books Kozhikode, Kerala, who was arrested for publishing a Malayalam translation of an Urdu book ‘Dawat air Jihad’ under section 153a and b (causing enmity between different religious groups) of the IPC. At which point we don’t remember any of the big publishers making a hue and cry about the “repressive regulation of publishing”.
This is a far cry from, say the situation in France, where, in 1963, the publisher of the famous Olympia Press, Maurice Gerodias, was exiled from France, fined 20,000 dollars, jailed for a year and banned from publishing anything for 20 years under France’s obscenity laws.
In a comparable case from the same period in India, the publisher (Shitangsu Kumar Dasgupta, Ananda Publications) and writer (Samaresh Basu) of the Bengali book/novel Prajapati, were accused of writing and publishing an obscene book by one Amal Mitra. This accusation was upheld in the Bankshal Sessions Court Calcutta in 1968 and in the West Bengal High Court in 1969. They were ordered to pay a fine of Rs. 201 within two months, failing which there would be a jail term. There was an appeal in the Supreme Court and in 1985 the SC declared Prajapati free from the charges of obscenity. In another case the Bengali novelist Buddhadev Bose’s book Raat Bhor Brishti, translated as It Rained All Night, was banned by West Bengal government in 1967 on charges of obscenity. The book was withdrawn, copies were pulped, and the conviction was later overturned by the High Court. It may not be difficult to find other such instances, from other Indian languages, but the judicial record is not yet full of mainstream publishers going to jail.
It is certainly not our case that India is somehow an exemplary democracy when it comes to books and publications and intellectual/cultural liberty. On the contrary. Those writing books, making art or films deemed “offensive” by one or another section of one or another community have had to face terrible consequences on their lives: Salman Rushdie, Tasleema Nasreen, M.F. Hussain are tragic and exemplary figures of this tendency to violent sensitivity amongst right-wing bigots from all persuasions. Journalists routinely face repression and harassment (both from state and non-state actors) for their reporting, especially in conflict zones. Contempt of Court, Defamation and Libel and Sedition laws have been abused by the state whenever if has found it necessary to do so.
However, in each case, members of the general public have continually agitated against the bans and raised questions regarding the obvious injustice of the circumstances. Further, in all these instances, it is the author not the publisher who has had to face the consequences. Our point is simply this – taking action to transform a climate repressive to the publishing trade into one that is more open cannot wait for the laws to be changed. It has to be done, even while repressive laws stand on the statute books, by challenging them through acts of courageous publishing, and by fighting each case in the courts until the idiocy of these laws is amply demonstrated. If publishers feel that they can protect themselves and their interests through gratuitous self-censorship they are basically agreeing to lose the war before even entering the battle. Nothing can be more detrimental to the interests of readers than publishers who refuse to be responsible to the ethical demands of their own vocation. To be a publisher who refuses to stand by his/her writers and readers, is like being a doctor who violates the Hippocratic oath.
If indeed you as a publisher feel there is an immediate threat to staff and offices by goons and lumpens, go to the police and register a complaint, move a sessions court indicating the same, be proactive. If you consent to live under the laws of a state, then at least make use of them as per requirement. The law isn’t just for cranks like Dinanath, you can use it too. In case you think we are advocating you martyr yourself for the cause, by no means. Because, as you will see below, the consequences of simply doing your job as a mainstream publisher in India are really not that dire. The courts in India have (often) been on the side of authors publishers and books.
The Law and the Courts (often) are On Your Side:
Courts in India do not have bad a record when it comes to defending the rights of freedom of speech when it comes to books. An article by the legal scholar Saurav Datta, published in the DNA newspaper, gives a history of Indian court decisions in similar cases which bears being quoted at some length
” The courts have a long tradition of protecting freedom of speech by upholding the right to express divergent and alternative views on religions even if they rile a majority of believers. Moreover, in order for the law to clamp down on freedom of expression, it is incumbent upon the petitioner to prove real, imminent danger to communal harmony, and not merely vague allegations of malicious intentions and purportedly scurrilous statements. This “proof” mandates the shunning of passages randomly clubbed together, entirely out of context. Most importantly, the interpretation must be based on the perspective of a reasonable, liberal person, not the vacillating minds of doubting Thomases pathologically wired to smelling danger in every contrarian point of view.
Of the series of judgements in this regard, three are the most apposite.
Back in 1976, the Uttar Pradesh government banned social historian 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. Then, in 2001, when the BJP government in Delhi sought to proscribe SAHMAT’s posters depicting the Ram Katha (an alternative narrative of the Ramayana) in the Buddhist and Jain traditions, the Delhi High Court put its foot down on not allowing free speech to be trampled by insular bigotry.
James W Laine and Oxford University Press’s victory over the Shiv Sena in 2010 was another robust defence against the likes of Batra and his motley squad of cruising fanatics. The Supreme Court, in 2010, acknowledged and praised Laine’s book Shivaji: Hindu King in Islamic India, holding that a scholarly work would never be deemed as being malicious or scurrilous enough to attract those dreaded censorious provisions.
As recently as 2011, the Delhi High Court again acted as the bulwark. Shabnam Virmani’s documentary Had-Anhad (Bounded-Boundless) on Kabir’s interpretation of the Ramayana and his message of communal harmony raised the hackles of the Hindu right and was also caught in the Censor Board’s dragnet. Among other things, the phrase “that militant Ram used to stoke Hindu-Muslim hatred in India today” was picked on, bereft of context, and singled out as the principal culprit. Not only did the court emphasise upon the need to uphold, protect and promote diversity of interpretations, howsoever “offensive”, but while dismissing the apprehensions of communal conflagrations, it went a step ahead, holding that restrictions on expression must be justified “on the anvil of necessity and not on the quicksand of convenience or expediency.”
Lest some fanatic proclaiming some other “faith” crawls out of the woodwork and screams holy murder, the courts’ “secular” approach to free speech deserves a mention here. 2005 witnessed the Calcutta High Court quash the West Bengal government’s ban on Taslima Nasreen’s Dwikhandita despite Islamic fundamentalists threatening a bloodbath. And in 2006, both the Madras and Andhra Pradesh High Courts refused to play tango with the government, which had given in to incensed Christians and banned the screening of the film The Da Vinci Code (based on Dan Brown’s novel of the same name).”
Which means that if publishers wait till the matter actually reaches the inside of a courtroom, instead of cravenly pulling and “re-pre-post reviewing” their titles in the face of non-threats by bullies, there is a good chance they will obtain favorable verdicts. Going to court, if it actually even comes to that, means that the question of censorship, democracy and public intellectual life can be debated, discussed, challenged, and talked about in the public domain, between readers and writers and all those who care about critical thought and the circulation of words and ideas. Backroom deals (such as between Penguin and DB, and the recent capitulation by OB) are particularly galling because they render the question of the free circulation of words and texts as reducible simply to a property relationship between an author, a publisher and a bully with too much time on his hands.
And finally, as Datta’s text above makes clear, it is for the courts, not Dinanath, to decide whether a text invites censure under 295a or not. If as a publisher you buckle without the matter ever reaching court you self-censure. The idiocy of this as a strategy on the part of institutions tasked with the custodianship of words should be clear to any sensible person. Why publishers, big publishers at that, with time and money and lawyers (should they require them) and enormous public goodwill and support seem to think self-censorship makes any sense at all is baffling. More than anything, as commercial outfits, its bad for business. How exactly do you wish to be perceived? As people committed to the sanctity of the free circulation of words and ideas in an increasingly repressive environment, or as entities who have not even the staying power to see a matter actually become a something as opposed to the nothing that these “threats” currently are?
You have one job only. By simply doing your job as publishers you contribute to keeping alive a democratic culture of critical intellectual public life in this country. By not doing your job you contribute to the slow transformation of India into an authoritarian police state in which every idea, thought, word and book deemed dangerous by a hardline majoritarian dispensation is marked for slaughter. It is really that simple. It is absolutely critical in the times in which we live that publishers continue to insist on publishing books that are critical of settled structures of power. Especially, as we have already explained (see above), there is no immediate threat to you, your offices, your staff, your families. For the love of all the fornicating gods and goddesses, stop doing Dinanath’s job for him. Clearly he’s better at it than you are. Stick to doing your own.
Which is, lets try this one more time: Publishing Books and Defending Your Manuscripts and Authors.