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THE TEST IN COURT
- Why blaming the law isnít good enough

In response to the controversy over the withdrawal of Wendy Donigerís book, The Hindus, Penguin belatedly put out a statement explaining its decision. Affirming their global commitment to freedom of expression, the publishers declared that they stood by their original decision to publish The Hindus. They attributed their decision to pulp the book to two considerations: 1) the nature of the Indian Penal Code, specially Section 295 A which makes it impossible, in their view, for publishers to stand up for free speech without putting themselves on the wrong side of the law and 2) their moral responsibility to protect their employees against threats and harassment.

Since the controversy broke there have been several opinion pieces making broadly the same point: they argue that singling Penguin out for blame is to mistake the villain of this piece. The real problem is the draconian nature of the Indian Penal Code and its threat of criminal proceedings that can lead to imprisonment. The effort ought to be to change the law, not name and shame individual publishers. For writers to withdraw their books from Penguin was pointless (according to this argument) because any Indian publisher put in Penguinís place would have likely done the same thing. Misdirected self-righteousness wasnít going to make the problem go away.

There is no question that sections of the Indian Penal Code are hostile to freedom of expression and ought to be amended. The question is, whether pending such a change, publishers have no choice but to capitulate in the face of a legal challenge that invokes these draconian sections. Before dealing with that question, I want to attend to another set of arguments that attempted to explain and sometimes, by implication, to justify, Penguinís decision to pulp Donigerís book.

These arguments were Ďrealistí in nature, in that they explained Penguinís decision as a cost-benefit calculation characteristic of corporate decision-making. Thus the smallness of the English non-fiction market was cited as a limiting condition, making it difficult for a publishing company to spend large sums of money on the legal defence of a book that was unlikely to make large profits in the first place. The contrast here was with filmmakers who, having invested large sums of money in making a movie, will go to great lengths to achieve a legal or out-of-court settlement to make sure the film is shown.

A variation on this companies-will-be-companies theme was the more cynical argument that Penguin and its foreign owners (Bertelsmann, Pearson) had sold out most of the current run of The Hindus and were not, therefore, going to waste money on litigating a book that was at the end of its sales life. Another wrinkle on this hard-nosed theme was the argument that since Wendy Doniger had moved on to Aleph for her next book, Penguin didnít even have the usual incentive of spending money to retain an author.

As explanations for Penguinís behaviour these speculations may or may not be true, but when they are used in a justificatory way, they become problematic. Sometimes the people making this argument seem to be urging Penguinís critics to grow up and accept that publishing companies are businesses that act on behalf on their shareholders and their bottom lines. To be outraged by this, therefore, is a kind of naivetť, a childish moralism, unbecoming in adults.

It is, of course, true that responsible publishing companies will attend to their bottom lines and also that legal costs can be crippling. But the argument that publishing books is no different from selling soap and therefore entails no extra-commercial responsibilities is simply wrong.

There is a moral economy to publishing. Readers, writers, newspapers, magazines, blogs and tweeters are part of this moral economy where writers write for considerably less than a living, where newspapers and magazines supply review space that they could otherwise sell to advertisers, where specialist book reviews journals like Biblio and the Book Review are run by people out of simple good will, and in the pages of which reviewers review for nearly nothing. Each time a broadsheet or a magazine reviews a mid-list novel, it is acknowledging that books matter in a way that canít be reckoned by accountants.

A business analyst once said to me, half-jokingly, that when she looked at the number of people large trade publishers like Penguin India employed and then looked at their turnover, she didnít know why they bothered. Even allowing for the fact that English language publishing in India is small, it isnít entirely exceptional in the small livings and the small profits that it offers. In most literary cultures in the world, making a living out of writing or huge profits out of publishing is hard. And yet books get written and published and bought and sold.

Publishers are central to this strange ecology. They arenít just profit-maximizing firms; theyíre Publishers, purveyors of Books. They absolutely do owe the books they publish a duty of care and writing them alibis by citing the constraints of commerce in a knowing way is both crass and unpersuasive.

To Penguinís credit, it hasnít made any of these arguments. Its position is that the law as it stands in India thwarts it from doing its duty by the book. Not being a lawyer I canít supply a definitive judgment on Penguinís assertion, but anecdotally, there seems to be evidence that publishers and authors do defend themselves in court against these menacing provisions of the law and do so successfully.

The nearest example I can think of was the litigation over James Laineís book on Shivaji in 2007. In response to the hostile reaction to Laineís book amongst certain readers in Maharashtra, OUP voluntarily agreed to withdraw the book. This capitulation didnít, by the way, forestall violence: a scholar who had helped Laine had his face blackened and the archive that Laine had used, the Bhandarkar Oriental Research Institute, was sacked.

If OUP had hoped that withdrawing the book would head off criminal prosecution, they were disappointed. An FIR was issued against the publisher and printer of the book in Pune (one charge, under Section 153 A, was Ďinciting class hatredí) and the printer was actually arrested. When the case (ĎManzar Sayeed Khan vs State Of Maharashtra, 2007í) came up before the Supreme Court, however, the government of Maharashtraís case against the author and the publisher of the book was found to be wanting.

The judges ruled that the book was a scholarly work and couldnít be judged by singling out an isolated paragraph. In a rebuke to the government of Maharashtra which had held Laine and OUP responsible for civil disorder and violence, the judges also ruled that ďit is the sole responsibility of the State to make positive efforts to resolve every possible conflict between any of the communities, castes or religions within the State and try every possible way to establish peace and harmony within the State under every and all circumstancesĒ. They allowed OUPís appeal and instructed the government of Maharashtra not to proceed against either the author or the publisher.

You could argue that this case wasnít exactly a blow for freedom of expression because the OUP had already withdrawn James Laineís book, but to make that argument is to miss the main point. OUP withdrew the book because it succumbed to intimidation; but when it was forced to test the question of criminal culpability in the courts, the courts found in its favour. The argument that an academic book couldnít be judged on the basis of a single, allegedly offensive paragraph, but had to be evaluated as a whole, was ratified by the Supreme Court. A important precedent was set.

Compare this with the Doniger outcome: a scholarly book is withdrawn and pulped, the judicial process is short-circuited before the lowest court gives a verdict because of a fear of criminal prosecution when, in fact, the Supreme Court has, as recently as 2007, ruled in the publisherís favour in precisely such a case.

Without trivializing the very real menace that sections like 295 A pose to freedom of expression, it is historically the case that in countries like Britain and the United States of America the law evolved via individual cases that people chose to test in the courts. It was judicial interpretation that changed the law in practice well before it was formally reformed. Penguin Random House India was right to point to the threat posed by the IPC to free expression; it was wrong, though, to suggest in its statement (and via its surrender) that the law as it existed offered no reasonable recourse.