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#youhadonejob: Or, A Quick Legal Primer for Publishers. Or, What (Not) to Do When Dinanath (and other busybodies) Strike

June 6, 2014

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.

Therefore:

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.

Justify your cowardice by producing paranoia about “the safety of friends, staff and families”.

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.

23 Comments leave one →
  1. B Muralidharan permalink
    June 6, 2014 9:41 AM

    It’s probably got to do more with financial, rather than legal, advisors to the oligarcs in publishing ‘business’. May be they have an insurance to claim when they destroy their print copies!

  2. June 6, 2014 9:24 PM

    Well said. Only a coward attempts to silence his opponents instead of rebutting their points. Oh, and banning a book is the best way to make sure that everyone reads it.

  3. June 6, 2014 9:34 PM

    Speaking of Dinanath (satire): RSS man demands ban on ancient Hindu texts that “offend millions”

    http://webcache.googleusercontent.com/search?q=cache:http://hahakar.me/2014/02/13/rss-man-demands-ban-on-ancient-hindu-texts-that-offend-millions/

  4. Sharmishtha permalink
    June 7, 2014 12:38 AM

    This piece is helpful for those who write with a particular political set of values in mind and risk the wrath of the law accordingly. Publishers, though, are a *business*. They calculate the *financial* risk of giving in or not to a particular demand, not any real ethical risks of doing so. Unfortunately, since legal notices are also delivered with the unstated threat of mob action and property damage to follow in case of non-compliance, I don’t particularly blame any of the receivers of legal notices for what is 100% the fault of the senders and of a state that is unable to enforce laws against hooligans. Could the publishers have more backbone? Sure. But if I were running a business, I don’t know what set of factors would go into my calculations about responding to these kinds of things. I suspect they would be mainly financial.

  5. June 7, 2014 1:43 AM

    What books were banned when Atalji was in power ? List them please

    • Nivedita Menon permalink*
      June 7, 2014 11:29 AM

      Why dont you guys do your own homework? “List them please”, indeed! The point is that all political tendencies in India demand bans – Hindu Right, Muslim Right, Congress, BJP, Shiv Sena, whatever. The PM himself or herself does not have to move a finger.
      Actually I guess your question basically makes no sense. Are you suggesting that Vajpayee was himself a fearless defender of freedom of expression? Or that the BJP is? Or that the Hindu Right defends the right to dissent from, mock, and caricature those in power? (The murder of Mohsin Sadiq Shaikh, the techie working in Pune, ostensibly provoked by certain derogatory Facebook posts on The Great God Thackeray, should give us the answer to that last question, anyway.)

      In what way is the Hindu Right different from the Muslim Right that has for all practical purposes exiled Tasleema Nasreen? Unless Vajpayee has come out with a statement when in power or out of it, that denounces the strong arm tactics of these violent Hindu Right groups, he is as responsible as any other PM for the attacks on freedom of expression in India.

      • koregaon permalink
        June 7, 2014 9:25 PM

        There is no difference. The hindu right fights for the greater power and influence of hindus, the muslim right does that for muslims.

  6. Vistasp Hodiwala permalink
    June 7, 2014 8:00 AM

    Fabulous piece and absolutely worth sharing. One more case whether it was the author who went through a two year legal torture and not the publisher is the less reported but equally harrowing Breathless in Bombay one, a collection of short stories where one story charged with ‘fomenting ill-will between communities’ under a non-bailable section here in Maharashtra and the other in the South on charges of ‘obscenity’. In both cases after a protracted legal battle (where as usual the lower courts messed it up), the Higher Courts acquitted the author of the charges in the strongest language possible.

  7. Venkateswara Rao K permalink
    June 9, 2014 10:40 PM

    Interesting read and informative. Reminds me of a Telugu booklet by “Bojja Tarakam”, on what to do when arrested by police, many years ago.That one was packed with information. May be the tone of this blog post could have been less flippant. “For the love of all the fornicating gods and goddesses..” is unnecessary and needlessly provocative. Also I wonder if those rich publishers really need unsolicited legal advice. An army of lawyers must be guiding them what and what not to do.

  8. June 10, 2014 10:26 AM

    #youhavenojob
    Actually, it’s you folks who need to do your homework. Wendy Doniger’s On Hinduism is back in print, it has been quietly put back into the market with no changes from Aleph whatsoever. That’s how good publishers fight censorship – by doing their job and not screaming from the ramparts about freedom of speech.
    This piece was nothing but self-congratulatory and not at all useful with its mockery – much like that notice you sent Penguin. If you really want to fight for freedom of speech, take the rights of these books and publish them yourselves – it’s not that difficult. I could list the process for you just as you have been kind enough to enumerate the ‘legalities’ of a legal notice. And let’s talk about self-censorship and Navayana, and while we’re at it, maybe the spineless litfest directors who couldn’t protect Rushdie also deserve your amusement and attention.

    • Nivedita Menon permalink*
      June 10, 2014 12:58 PM

      Atul, can you give us some evidence to back your claim that On Hinduism is “back in print”? It was never out of print of course, but Aleph did decide to withdraw the book, and the co-publisher of Aleph, Ravi Singh, resigned in protest over this decision. This was in April. Has there been any new development? I know it is available on-line, but in shops?
      And of course, if Aleph withdraws its decision to withdraw the book, it would be certainly due to the widespread protests, including by writers on Kafila, and internally by people like Ravi Singh. I dont see how such a decision, if it has indeed been taken, would contradict this particular post. And the predictable snide reference to Rushdie is also misplaced, because Shuddhabrata has been more than even-handed in his defence of freedom of expression all round! Perhaps YOU should do some homework before leaping to attack.
      And do give us the reference to the latest situation on On Hinduism – I do hope you’re right!

  9. Atul permalink
    June 10, 2014 6:07 PM

    Nivedita,
    I have a copy of On Hinduism (first edition) and know that the book was in fact, not withdrawn, but sold out (thanks to the controversy generated by SBAS vs. Penguin’s publication of Wendy’s The Hindus). If you read any of the articles from the time, you’ll note that booksellers said it sold out very quickly (they said out of stock not publisher has bought back copies as would otherwise be the case) and then the publishers gave out the cryptic statement that they had never withdrawn the book, they had no more copies, and they were to form a committee to ‘review’ the book, the members of which they did not share, though if I remember correctly, they mentioned scholars/historians would be on this mysterious review panel.
    As for Ravi Singh quitting, I cannot say what happened, he is famously tight-lipped and most reports said he was unavailable for comment – that we, the media deduced this had something to with the Wendy episode makes sense – he is Wendy’s editor and likely to have been miffed.
    I just went to Midland (Aurobindo) last week, and On Hinduism is there – and I know it’s a reprint because it has review quotes on the back cover (including a typo).
    I do think the Kafila team should consider buying rights for these books no one wants touch and self-publish them, perhaps? With all the signature campaigns you run, wouldn’t it make sense if we all got together and DID something about banned books, besides ‘rehash[ing] arguments on the importance of free speech and the circulation of books and words and texts.’, non?

    • Nivedita Menon permalink*
      June 10, 2014 7:06 PM

      We certainly need alternative forums for publishing, and some ideas are cooking in different forums. But Kafila buying rights to these books from large, often multinational corporate publishers? We’re just a bunch of people who run Kafila in the time we make after our full time jobs of teaching and journalism and such-like. We dont get a paisa of funding. We just write a lot for free!

      • Abu Fitna permalink
        June 10, 2014 9:06 PM

        That’s rich, “write a lot for free.” Do you think people will spend money to read your stuff?

        • Nivedita Menon permalink*
          June 11, 2014 8:32 AM

          Actually, they do! More than half of Kafila members have published books that are bought in their thousands, and some of us are journalists, and many of us write for commercial publications also – so yes, people do pay to read us! But you can read us for free on Kafila.
          My dear anonymous troll Abu Fitna – better to keep your mouth shut and let people think you are a fool than open it and dispel all doubt!

  10. kabir permalink
    June 10, 2014 10:58 PM

    I’m not sure if Dinanatha Batra is at it again. More like another major publishing house is at it again.

    I don’t think anyone can just shoot off such legal notices to Samna and Panchjanya, which probably do carry legally impermissible content, and expect the same rate of success as Dinanath Batra’s against these publishing houses?

    DB is probably a retired man with time to pursue what he, with his limitations, surely believes to be his duty as a citizen and a hindu. He is entitled to his misconceived notions. As long as he is not threatening or committing violence or committing any crime.

    The difficulty lies with the unwarranted fantastic exaggerated threat perceptions of the Management and Counsels – in house and external – of these publishing houses. or do they think they have some sort of strategy working. i don’t know. wish these guys could be invited to discuss how to sensibly respond to 295A based threats.

  11. June 11, 2014 11:35 PM

    Sanal Edamaruku is exile precisely for fear of Section 295A. >> The Indian miracle-buster stuck in Finland http://www.bbc.com/news/magazine-26815298

  12. Yeah ChillingEffect! permalink
    June 13, 2014 10:19 AM

    Legal notices come in different shapes. Publications can also be printed books, e-Books or even blogs. The allegation can also be various: e.g. copyright infringement, defamation, trademark infringement, or just about anything that can scare you.

    It helps to familiarize yourself with samples. Here is one example of a $1 billion defamation notice http://www.popehat.com/2013/05/15/omics-publishing-group-makes-a-billion-dollar-threat/ (interesting example of publisher against blogger!) and when you get something like this, you are welcome to contribute it to the Chilling Effects project as a study specimen, for example here is a trademark threat from an Indian school to their Parents Association: http://www.chillingeffects.org/protest/notice.cgi?NoticeID=33101
    and you can find many more samples at the site http://www.chillingeffects.org/

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