Recently, Shiksha Bachao Andolan and Penguin Books India Ltd. entered into a settlement through mutual negotiation to the effect that the latter would recall and withdraw all copies of the book “The Hindus: An Alternative History” within six months from the Indian territory. It was also agreed that Penguin would hereinafter not sell, publish or distribute the book and that all the recalled/ withdrawn/ unsold copies would be pulped. In lieu of this, Shiksha Bachao Andolan would withdraw all civil and criminal cases against the publisher.
The debate surrounding Penguin’s decision has been characterized by a stark absence of nuance. While those supporting Penguin’s recall have been sweepingly categorized as Hindutva conspirators, those opposing the recall have been grouped as liberal secularists. In the process of engaging in such sweeping and convenient generalizations, the contours of the debate have been blurred. In this post, we intend to facilitate a more nuanced debate by examining two legal and constitutional issues that Penguin’s recall has thrown up.
I. Four corners of the law
The law at the centre of the controversy is Section 295A of the Indian Penal Code, which punishes deliberate and malicious acts “intended to outrage religious feelings of any class by insulting its religion or religious beliefs”. While Penguin’s recall of the book has been termed as “cowardly capitulation”, it is essential to note that as long as Section 295A exists in the statute book, the petitioners cannot be faulted for taking recourse to it. What we must question is the very existence of the provision in this form as well as its application.
As Martha Nussbaum correctly points out, religion and sex are sensitive topics regarding which anything said by anyone may be considered offensive. Therefore, a question warranting examination is whether the standards of free speech that are generally applied, should be relaxed or diluted when it comes to sensitive matters such as religion and sex? Would the fact of people taking offence to something justify a differential treatment of the norms of free speech? An answer in the affirmative might be construed as caving in to fear of violence, bullying and power politics. An answer in the negative might be accused of being ignorant to social sensitivities.
II. Free speech issue (or not)?
In this article, Sandeep Balakrishna argues that the recall of the book is not a free speech issue at all because firstly, the parties did not contravene the provisions of the law regarding free speech and secondly, the book has been voluntarily withdrawn by the publisher and not banned. However, we opine that this is veritably a free speech issue. Section 295A of the IPC is antithetical to the freedom of speech and expression in more ways than one. The provision is regressive and stands at odds with the ideals of free speech which aim to create an environment of access to scholarship and literature, freedom to read and write as per one’s choice and the opportunity to judge and critique a work for oneself. The law itself can be used as an instrument of fear by the majority.
In a statement released by Penguin India, the publisher made it clear that its employees had been threatened and harassed. As a major publisher it had the moral responsibility to protect its employees. Even though the liberal secularist clan has been blaming the publisher for its decision to pulp the book, we believe that it is the law which is guilty of fostering a culture of taking offence. It is troubling that the law could make a major publisher like Penguin cave in to demands at the district court level. This is the chilling effect that the law produces on all citizens, which itself is a free speech issue. Sometimes, lawsuits are filed just for the purpose of creating a chilling effect: these lawsuits have come to be called SLAPP suits. For further information, see this blog post which covers the rise of SLAPP suits in India.
This post has been authored by Sohini Chatterjee & Vasujith Ram, members of the Constitutional Law Society and students at the West Bengal National University of Juridical Sciences.