Book the law, not the victims

It was bound to become a sort of moral hazard. Once Penguin had caved in, others would follow. The organisation that had lodged the plaint against Penguin Publishers would have smelt blood with its first major scalp.

It would probably have done a Google search and found Aleph Book Company also had a book on Hinduism by Wendy Doniger. Last week, the entity promptly issued a warning to Aleph, asking it to withdraw and pulp the book by March 10.

On March 10, a news report quoted the chairman of Aleph saying the book was out of stock and would not be reprinted until the offending passages had been examined “to determine how best to resolve the situation.”

A situation it certainly is. And we still don’t know how the resolution will pan out. But the publishers’ tactful response must be disappointing to those who had protested Penguin’s caving in to a plaintiff that many thought had no case.

But to expect mainstream publishers to carry the torch of freedom — like the samizdat dissident publishers in censor-thick societies or those small, struggling ones in western societies that braved conventional morality codes to publish the likes of Henry Miller, Lawrence Ferlinghetti and James Joyce — is to bark up the wrong tree.

What is common between Penguin, Aleph, rationalist Sanal Edamaruku and Karthik, a student from Hyderabad? Sanal was recently hauled over the coals by Catholic organisations in Mumbai for casting doubts on a “miracle” at the foot of a cement crucifix in Bandra. Kartik questioned the existence of God on a Hanuman Jayanthi day, and claimed a constitutional right to his opinion.

All of them were victims of groups that do not think there is any such thing as freedom of expression on religious orthodoxy. What they do is reach out for Section 295A of the Indian Penal Code to snuff out all the views that challenge orthodoxy.

And, sadly, these groups get all the help they need in the law, specifically Section 295A that leaves the door wide open for bullies of all sorts to run riot on India’s fragile social space of free speech.

It’s worth citing the Section 295A in the IPC in some detail to get a sense of its lethal potency: “Deliberate and malicious acts, intended to outrage religious feelings, or any class by insulting its religion or religious beliefs — whoever, with deliberate and malicious intent of outraging the religious feelings of any class of citizens of India, by words, either spoken or written, or by signs or by visible representations or otherwise, insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.”

As American philosopher Martha Nussbaum pointed out recently, the notion of ‘group defamation’ — a touchy subject in Europe with its growing minorities — seems to drive the sentiment of this law.

But this is not an Indian law in the strict sense of the word. It is a colonial one framed as part of the IPC in 1860. That date is important. The IPC came into being three years after the Mutiny, a truly national uprising to overthrow colonial rule by force. Determined to check its repeat, a new discourse on governance was introduced.

India, it was held, was a land of warring communities, in permanent conflict with one another and it was only the British rule that could enable them to live together in an uneasy peace.

We inherited the law and its false premise of a Hobbesian society pulling itself asunder but for the mediation of the state; a society at war with itself, a land of not just famines and pestilence but of communities engaged in perpetual conflict.

These two discourses on Indian society and the state operate as the guiding lights of Section 295A. The law is deliberately and ominously ambiguous using words such as “feelings” “insults”, “outrage” as punishable offence invests the state with the authority to step in, break up a “fight.”

‘Outraged’ feelings are assuaged by either a prison sentence, fine or, if it serves state power, broken bones and vandalised property. Needless to say, such lawlessness would only strengthen that ‘fiction’ of a society at war with itself and the role of the state as the arbiter of peace and its freedoms.

But the real threat to freedom in society, in fact, flows from the law itself. Its ominous ambiguities can stifle any contrarian view about established religious orthodoxy. That is pretty evident in the instances cited above.

What is not so obvious and certainly more lethal are the law’s ambiguities and absolutist interdictions; they allow the state not just to snuff out contrarian views but public conversations on religious beliefs.

For a society with so many communities staying cheek by jowl, it is surprising that there is barely any communication, conversations between them, conversations that led in pre-British times to a great flowering of the inner life for millions.

Conversations allowed the “argumentative” Indian deep insight into her country’s religions through an expanding inclusive social space.

Section 295A virtually put a stop to these exchanges by demonising the value of free exchange and thus narrowing the social space for the argumentative Indian. In fact, the hidden yet blatant interdictions are the prime functions of the law: to prevent “outrage” to religious “feelings” yes, but primarily to discourage the free flow of discourse on matters of religion. Section 295A ‘ghettoises’ conversations on religions within respective communities first and then snuffs them out by deifying orthodoxy alone.

Section 295A’s Hobbesian view of society actually promotes dysfunctional communities, like couples sharing the same house with their unspoken unshared hatreds and prejudices.

The fear of outraging prevalent dogmas even turns the intellectual space sterile. Serious studies on Indian or Indic religions are to be found in western groves of academe, not so much in Indian.

Finally, Doniger or Penguin suffer the bigotry of the law as much as the followers of multiple orthodoxies denied the fresh air of dialogues and conversations with each other.