Of 'chicken' publishers and repressive laws

IN Media Freedom | 16/02/2014
Give up publisher's rights to publish to a general public and revise Sec 153 A and 295 A of the IPC to protect academic and artistic freedom
two responses to Penguin on the Doniger book issue. A FREE SPEECH HUB report
The shocking decision of Penguin India to withdraw and destroy all copies of ‘The Hindus: an alternative history’ published in 2009, has upset and alarmed a wide cross-section of people. While there has been strong condemnation of the decision, we bring you two responses that raise pertinent questions on the rights of readers and protections for artistic and academic freedom from repressive sections of the Indian Penal Code.
 
In a scathing attack on Penguin ‘chickening out’ of its responsibilities as a publisher,Advocate Lawrence Liang has, on behalf of his clients, Shuddabrata Sengupta and Arthi Sethi, sent a legal notice demanding that Penguin surrender its copyright and grant a general public license to enable any person to copy, reproduce and circulate Wendy Doniger’s ‘The Hindus’.
 
The legal notice argues that, since the publisher had decided to destroy all copies of the book, it effectively acknowledged that it was no longer interested in exercising its ownership of the title of the book and should surrender its copyright to the general public.
 
The publisher should then grant a general public license within a week to enable any person to copy, reproduce and circulate Wendy Doniger’s ‘The Hindus’, the legal notice said.
 
Referring to the injunction obtained by Tamil Nadu Chief Minister J Jayalalitha against Penguin’s proposed biography of her, the notice said that the publisher ‘chose not to appeal the matter and allowed the book to vanish instead. When the state – traditionally the great censoring machine- chooses to ban a book it has to provide reasons and is subject to challenge, but when Penguin chooses to kill its own books beyond the pale of the law it amounts to an extra judicial killing of books and authors’.
 
Regretting the fact that Penguin had defended publishing ‘Lady Chatterley’s Lover’, the notice has talked of the publisher’s duty to publish! It cited a case in which the courts held that “there is no compulsion to construct a cinema theatre, but by undertaking to construct a theatre to exhibit cinematograph films therein, the owner created a right in the cine going public, to have an easy access to the theatre. Thereby the private properly of the owner is effected with public interest. It, thereby, ceases to be juris privati and is clothed with public interest. When used in a manner detrimental to public interest or welfare it would effect the community at large. By using the owner's property as theatre he/it submits himself or itself to the regulations for common good. The public acquire, thereby, direct and positive interest in exhibition of cinematograph films” (Deepak Theatre v. State of Punjab, AIR 1992 SC 1519).
 
Apart from seeking to establish the rights of readers, the notice has also said that succumbing to threats constitutes a chilling effect and says: By agreeing to the ridiculous terms set in the private contract between YOU NOTICEE and the miscellaneous busybodies you render hard won rights – the right to criticize, the right to dissent and the right to offend- vacuous.
 
It adds: under normal circumstances if a publisher chooses to relinquish rights assigned to them by an author such rights revert back to the author, but in light of the arguments of the rights of the reader that have been made, we believe that you have trespassed on the rights of the reading public and as such it is only fair that you return to the public what you have taken away from it- the right to read and dissent.
 
Petition on reforming Sec 153 A and 295A
 
In another response, historians and writers have sought a reform of Sec 153A (Promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony and 295A (Deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs)of the Indian Penal Code.
In an online petition, they have urged lawmakers, jurists and the legal bureaucracy include necessary provisions in these laws to protect works of serious academic and artistic merit from motivated, malicious and frivolous litigation.
The signatories are historian Romila Thapar, Ananya Vajpeyi (Centre for the Study of Developing Societies, New Delhi), Sheldon Pollock, Partha Chatterjee (both of Columbia University, New York), Laurie Patton (Duke University, North Carolina) and David Shulman (Hebrew University of Jerusalem, Israel).
In the petition, they said:
this case is only the latest in a long series of outrages against freedom of expression. Academic, intellectual and artistic expression of any kind is becoming increasingly hazardous in India. What has happened to Professor Doniger and many other scholars before her can happen to any one of us at any time. Indian laws and legislation governing the freedom of expression not only fail to protect us from harassment and intimidation, but in fact prevent us from doing our work in a respectful, fair and democratic environment. 
More worrying, the laws dealing with insult and injury to the sentiments of groups and communities (organized around religion, caste or any other form of identity) are routinely used to curb the freedom of expression, both within the legal justice system and in public discourse more generally.
In our view, the way to respond to ideas one dislikes is not to censor them but to produce better ones. Such was the practice of India's great intellectual traditions in the past. Litigation like this, undertaken in the name of defending those traditions, in fact profoundly demeans them.
We make the following demands:
1. That there be a reform of Sections 153A and 295A of the Indian Penal Code—governing intellectual and artistic freedoms and the right to self-expression, as well as protecting against insult and injury to communities, and the incitement of communal hatred. We ask that lawmakers, jurists and the legal bureaucracy include necessary provisions in these laws to protect works of serious academic and artistic merit from motivated, malicious and frivolous litigation.
2.  That Penguin Random House at the highest levels of management and decision-making continue to contest the Legal Demand # 254/LN/0310 up to the higher courts, so that a good precedent upholding freedom of expression is established, and in future publishing houses, including Penguin India, are able to publish works and support their authors without the threatening prospect of litigation, fear and censure.
To read the petition, click here.
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