The Telegraph
Wednesday , February 26 , 2014
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Writers, academics and thinkers across India are a worried lot these days. The reason, they say, is that fringe groups are using various provisions of the Indian Penal Code (IPC), primarily Sections 295A and 153A, with impunity to put artistic freedom in jeopardy.

The latest event that has thrown proponents of freedom of expression into a tizzy is publishing house Penguin’s decision to pulp Wendy Doniger’s book, The Hindus, after a group called Shiksha Bachao Andolan Samiti went to court accusing it of “sexualising” Hindu deities. Writers such as historian Partha Chatterjee, author Ananya Vajpeyi, historian Romila Thapar, political psychologist Asish Nandy and others have made a petition to the law minister and legislators of both Houses of Parliament asking for a revision of certain laws. “…the laws dealing with insult and injury to the sentiments of groups and communities (organised around religion, caste or any other form of identity) are routinely used to curb the freedom of expression...,” the petition says.

Even in its statement explaining the decision to pulp the book, Penguin squarely blamed IPC provisions. It said, “We believe... the Indian Penal Code, and in particular Section 295A of that code, will make it increasingly difficult for any Indian publisher to uphold international standards of free expression without deliberately placing itself outside the law.”

Doniger’s book is not the only victim of IPC Section 295A, which stipulates that whoever with “deliberate and malicious intention 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, can be jailed for up to three years and/or can be penalised with a fine.

Apart from the high profile instances of Salman Rushdie’s The Satanic Verses and Taslima Nasreen’s Dwikhandito, which were banned for “outraging religious sentiments”, lesser known writers too have been drawn into court battles after being charged under this section. Take Kannada writer Yogesh Master whose novel Dhundhi portrays Ganesha as a non-Aryan hero and Tamil writer K. Senthil Mallar whose book Meendezum Pandiyar Varalaru traces the history of a Dalit community. The former was arrested by the Karnataka government and the latter’s book was banned by the Tamil Nadu government.

Even tweets by writers are being subjected to Section 295A. Controversial writer Taslima Nasreen is currently fighting legal cases because of her tweets on fatwas and other issues. “Section 295A was used against me in West Bengal, when the Left Front government banned my book Dwikhandito in 2003,” says Nasreen. “It was again used against me when a fanatic filed a case against me in Bihar in 2012 and yet again when the UP police filed a case against me in the state in 2013.”

But legal experts point out that the right to freedom of expression enshrined in the Constitution is not absolute — there are “reasonable restrictions” on this liberty. As Article 19(2) puts it, nothing prevents “the State from making any law... in the interests of the sovereignty and integrity of India, the security of the State... public order, decency or morality, or in relation to... defamation or incitement to an offence.”

There are other IPC sections too that circumscribe the liberty to express opinions freely in a book or otherwise. Sections 153A and 153B of the IPC penalise “promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc.,” and committing acts “prejudicial to maintenance of harmony” while sections like 292 (selling obscene material in printed form or otherwise), 294, 295, 295A and 298 (deliberate intention of wounding the religious feelings of any person) deal with measures to maintain decency and religious harmony.

“If there is freedom, there has to be restriction,” says Siddhartha Lahiri, advocate, Calcutta High Court. “In the West too, this is followed.”

Claudio Cicuzza, author and professor of religious studies, Webster University, Thailand, who has written several books on Hinduism and Buddhism in India, would broadly agree. “When a book is banned, it is always a defeat for freedom,” says Cicuzza. However, he says that the Indian government has the right to ban a book if it feels that “it can be dangerous for the stability of the country”. “And nobody can blame them for this decision — this is a purely political solution,” he says.

Others stress that the intention to hurt religious feelings requires a deliberate and malicious act which needs to be proved in court. The Supreme Court too has from time to time clarified that Section 295A can be applied only when there has been a deliberate and malicious attempt to hurt religious sentiments. While deciding on the Dwikhandito case in 2005, a Calcutta High Court bench too elaborated on the expression “deliberate and malicious”. “The conjunction ‘and’ conjoins both. It must be both deliberate and malicious i.e. deliberately malicious,” the court observed.

Many feel that such terms as “hurt”, “malicious”, “public order” or “morality” have not been properly defined in our laws and leave ample room for speculation and subjective interpretations. “The word, hurt, itself is suspect. Any group, minority or majority, can be hurt any time and you do not know why,” says Shiv Visvanathan, social scientist. “It has become a trigger word. I could send someone a Valentine’s Day card and that person could be hurt because he or she is an arch fundamentalist. Or if I say Tagore wrote bad poetry, some Bengalis can say they are hurt. It is not a question of intention anymore, but that of consequences.”

But lawyers say that there is a reason for keeping such terms vague in legal parlance. As Shameek Sen, assistant professor, National University of Juridical Sciences, Calcutta, observes, “Probably these words have been deliberately left vague so that the judiciary can use that vagueness to interpret reasonable restriction.”

Of course, in Doniger’s case, the matter didn’t go to the higher courts for any such deliberation as to whether or not the author intentionally and maliciously “sexualised” Hindu deities in her book and thereby “hurt” religious sentiments.

So is there a need to revise or scrap laws like Section 295A? Legal experts feel that it might not be wise to do away with them altogether. “These can be a safeguard against acts calculated to create religious disharmony, riots, etc.,” says Sen.

But right now intellectuals seem hell-bent on persuading the government to do something about the misuse of such laws. The writers’ petition demands a reform of Sections 153A and 295A. “We ask lawmakers, jurists and the legal bureaucracy to include necessary provisions in these laws to protect works of serious academic and artistic merit from motivated, malicious and frivolous litigation,” it says.

Whether the authorities are going to consider this plea and take steps to safeguard artistes from lawsuits on frivolous or, indeed, trumped up grounds, is anybody’s guess.