Penguin's options: fight or leave

BY ANUP KUMAR| IN Media Freedom | 18/02/2014
If we do not want matters to be resolved on the street, we can't claim free speech protections for critical scholarship and publication, and yet avoid defending the right when challenged in a court of law,

Let me state at the outset that my argument here has nothing to do with the quality and the seriousness of the scholarship, which I think should be left to experts in psychoanalytic approaches to historiography and ‘hermeneutics of suspicion.’ To readers interested in thoughtful reviews of the book -- I recommend check here in Himal, review by Diwas Kc, and here in TLS by David Arnold.  

I think, the demand made by Shiksha Bachao Abhiyan (SBA) to withdraw and pulp The Hindus: An Alternative History, authored by Wendy Doniger, a scholar of Hinduism and Indian Studies at the University of Chicago, is offensive and outrageous. But then the decision by Penguin to comply is equally, if not more, outrageous.


This calls for a serious debate on free speech and its boundaries -- violence, hate and defamation -- in India.


In the Penguin affair, no doubt, the larger principle of scholarly inquiry and liberalism is at stake, which has been compellingly argued by many and perhaps best articulated by Bhanu Pratap Mehta:


"Liberal India has been silenced because it never understood that toleration does not, to use Govind Ranade's phrase, come in halves. You cannot pick and choose when to be tolerant. You cannot choose to be tolerant along partisan lines. Neither can you choose to be tolerant based on what you think are distinctions between good and bad scholarship, serious and scurrilous books. These distinctions are a good basis for criticism; they are not the best basis for deciding whom the law will protect. And R.V. Bhasin, author of a banned book on Islam, will be protected as much as Wendy Doniger. And so it should be. If you want a hundred flowers to bloom, a few weeds will grow as well."


That said, the Penguin affair behooves us to sort out the two issues – freedom of speech and legitimate concerns about defamatory and hate speech -- that often gets entangled in such cases.


Penguin's decision to not contest the case in the courts effectively means that the publisher has joined with SBA in striking a severe blow to free speech and liberalism in India.


After criticism from all quarters, including from the esteemed authors Penguin has published over the years, the publishing house issued a statement in which the company, in addition to highlighting the perceived concern for the safety of its employees, in case there was violence from the supporters of SBA, blamed the Indian laws, especially the sections 153A and 295A of the Indian Penal Code (IPC) that criminalises speech and permits a fringe group to speak on the behalf of an entire community. However, let us not forget that such groups can only file complaints; it is up to the Indian state (police, prosecutors and the court) to take cognizance of a FIR and dispense justice.


By agreeing to settle, Penguin has effectively given up on the fairness of the Indian legal system and capitulated even before the case went to trial.


I agree with Penguin, the author and many others who feel that criminalisation of speech is a real problem. A groups of scholars and writers (including this writer) have started petition campaign that wants the publisher to contest the case in the court of law and wants the government to exclude "serious academic and artistic merit from motivated, malicious and frivolous litigation" from 153A and 295A.


That said such an exemption is already guaranteed by the Indian constitution, but to make it operational, I think, it has to be advanced through the process of litigation, which builds the case law on the matter over the years and progressively reduces the misuse of 153A and 295A.


India still needs some sort of provision in the law that serves as deterrent against malicious intentions in view of the special historical, social, and political context of India.


Even most liberal jurists in India do not agree with a laissez faire approach to speech. A laissez faire approach to free speech is a good ideal that must serve as a North Star that guides, but for the time being it is not a destination where we are going to arrive at any time soon in India or for that matter anywhere else in the world. 


It has been argued by some that writers/artists should have the right to offend and those at the receiving end of such expressions must make their own counter arguments. A classic public sphere position to take.


However, such a position overlooks the relative power differential among the speakers involved in a controversy. This is especially an important aspect to consider when either the beliefs of the minorities are under attack and ridicule or there is a potential risk of violence between communities. It is also important when the vernacular publics and religious communities are embroiled in a controversy with secular academics, writer included, who are backed by resources not available to the marginalised.


Arguing against a laissez faire approach, legal philosopher Jeremy Waldron in his book The harm in Hate Speech has argued that a compelling reason for a provision in the law to ban and criminalise hate speech is essential because in most cases hate speech appropriates an issue of public concern and cynically uses it for political ends.


The history of free speech cases in all liberal democracies shows us that the right to freedom of expression and the press was advanced when publishers defended allegedly offensive and defamatory books in the courts of law to the fullest extent possible, right up to the Supreme Courts, not only in the West but also in India (See Hon. Supreme Courts opinion on James Laine's book)


Interestingly, in a statement issued by Monika Arora, lawyer for the SBA, applauded the decision by her client to resort to a legal mechanism rather than use protest and violence against the publisher.


If we hear the SBA lawyer, bracketing out the Hindutva prism, her argument seems more compelling than that of Penguin. If we do not want matters to be resolved on the street; we can't on the one hand claim free speech protections for critical scholarship and publication, and on the other hand, avoid defending the right when challenged in a court of law.


I think the SBA's reactionary claim that the book has defamed the Hindu community and the author’s intentions were malicious on the surface is ludicrous. And that is why Penguin should have contested that allegation. Even if the SBA would have succeeded in showing in the lower courts that there are indeed a few inaccuracies in the book, I am confident that the courts would have seen that there is no evidence for the application of 153A or 295A and the charge does not meet legal standard for "actual malice" required in a defamation case.


But I must confess it may be a challenging case, especially in view of the methodology used by the author --‘hermeneutics of suspicion’ and the selective use of sources -- in the book.


However, despite the protracted legal process, it is the duty of a publisher who has profited from the sales of the book to defend it when challenged and accused of plagiarism, defamation and hate. Let us keep in mind that book publishing is not speech for speech sake -- it is also a profit making enterprise.  


So finally, even though there is always a high probability that a reactionary group will resort to violence and mob justice, yet that should not weaken our faith in the Indian legal system. If Penguin feels this way, as the publisher's statement seems to suggest, I say pack your bags and leave.


Anup Kumar is an assistant professor in the School of Communication, Cleveland State University. He is the author of The Making of a Small State: Populist Social Mobilization and the Hindi Press in the Uttarakhand Movements (2011).


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