Written
by Dr. Seshadri Kumar
16 February, 2014
Copyright © Dr. Seshadri Kumar. All Rights Reserved.
Disclaimer: All the opinions expressed in this article are
the opinions of Dr. Seshadri Kumar alone and should not be construed to mean
the opinions of any other person or organization, unless explicitly stated
otherwise in the article.
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Background
Wendy Doniger, a professor of religion at the University of
Chicago, wrote a book in 2009, titled “The Hindus: An Alternative History” that
became quite popular as a textbook in US universities that taught
Hinduism. Many Hindus took exception to
some of the content in the book, accusing it of sexualizing Hindu mythological references
in a manner that was offensive to them (e.g., an Oedipus complex analysis of
Ganesha’s relationship with his father Shiva).
There was a court case in India, which ended in an out-of-court
settlement whereby Penguin, the publisher of Doniger’s book, agreed
to remove all copies of the book from circulation and pulp them.
Reaction
The reaction from self-styled defenders of secularism has
been predictable: outrage. Comparisons
are made to the banning of the Satanic Verses; the withdrawal of the book
is linked to the rise of the Hindu right-wing; this is further linked to the
almost inevitable victory of Narendra Modi in the coming 2014 elections in May;
a
conclusion is made that “Hindu intolerance” is making free speech impossible in
India; lists
of past books banned in India are paraded and Doniger’s book is mentioned in
the same breath, with a lament on the state of censorship in India; Siddharth
Varadarajan, former editor of “The Hindu,” asks for Penguin to return his
copyright on his book to him and to pulp copies of his book as a protest;
Arundhati Roy protests Penguin’s decision, asking them to explain their
decision; and “The Hindu” innovatively
finds a way to somehow link this event with the 2002 riots in Gujarat and calls
it a manifestation of totalitarian tendencies of the Hindu right.
Analysis
All of these reactions are overblown hyperbole and just
plain nonsense. Why? Here are the facts.
1.
This is NOT a book ban. Book bans are carried out by the state. The state did not intervene in this case.
2.
There is a law in India: section 295A in the Indian Penal
Code, 1860, that reads, “Deliberate and malicious acts intended to outrage
religious feelings of any class by insulting its religion or religious
beliefs.-- Whoever, with deliberate and malicious intention of outraging the
religious feelings of any class of 6 [citizens of India], 7 [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 8 [three years], or with fine, or with both.”
3.
The language of section 295A is ambiguous, and
allows people to sue anyone who offends, willingly or not, their religious
beliefs by writing or speaking publicly about them. But this
was not a law created by the Hindu right, or even in independent India. It
was a British law, created to protect Islam from any Hindu writing derogatory
things about it. All that has
happened in this instance was that people have used this intolerant law on the
books in India to prosecute something that offended them.
4.
A Hindu religious group believed that Doniger’s
book was insulting to Hinduism and so filed a lawsuit against Penguin under
section 295A of the IPC. After fighting
the case in court for some time, Penguin thought it better to settle the case,
for reasons known only to them.
5.
So, in summary, there was a law that provided
relief to those who felt their religious sentiments were hurt by a book; a
party that felt its sentiments were hurt filed a legal case; and the defendant
settled out of court. There is nothing
illegal in this. This is not similar to
a case like that of James Laine, who wrote a biography of Shivaji that was
violently opposed by the Shiv Sena in Maharashtra,
leading to the ban of the book after much rioting. In the present case there was no violence; the state
never got involved; and the legal process was duly followed.
6.
If Hindus displayed intolerance to Wendy Doniger’s
writing, they did so within their legal right.
I am not going to discuss here whether or not what Doniger wrote was
offensive. That is beside the point
here. What is relevant is that the law
in India gives legal recourse to anyone who feels their religious sentiments
are hurt. To say that Hindus should NOT
avail of such a law is to DENY them the legal recourse provided by Indian law,
and is unfair. Keep in mind that section
295A is equally applicable to Muslims or Christians who feel that their sentiments
are hurt by a book or speech.
7.
One cannot conclude anything negatively about
the Indian courts and judiciary from this case either. Penguin could have waited for the court to
rule whether or not the learned judges found that there was something offensive
in the book to Hinduism or not and, more importantly, whether the offense was “deliberate
and malicious.” Why they did not is not
clear; but the
statement they released suggested that they believed that the law on the
books was ambiguous enough that they could not hope to win the case.
Conclusion
The real culprit in this case is the presence of section
295A in the IPC of 1860 that is still being used today. The presence of this law serves to remind us
that in India, the freedom of speech is not absolute. I am no fan of book bans and personally
believe that if a book offends you, don’t read it. But section 295A is a reality, and the
plaintiffs in this case merely asked for relief under the existing laws.
If Siddharth Varadarajan or Arundhati Roy are truly outraged
about what happened, they should expend their energies, not on the dramatics
they are indulging in, but in trying to get the offensive law from 1860 amended
so that freedom of speech is truly allowed in India. As long as section 295A is on the books, true
freedom of speech will not exist in India in matters of religion. It is silly and futile to argue that a law
should remain on the books, but no one should avail of its protections. It is something like saying that people
should not avail of a tax exemption provided under the tax code. If a particular tax exemption unfairly favours
a particular group, the correct recourse would be to lobby to correct the apparent
injustice, viz., change the law, not get angry at those who use the tax exemption. And that’s how we should react here as well. Doniger
herself has recognized this.
So here is what I propose.
I do not like section 295A, and would like to participate in a movement
to remove the section from the Indian Penal Code. I hope Siddharth Varadarajan and Arundhati
Roy will use their celebrity status to lead this movement. But I seriously doubt this movement will
succeed, even if Varadarajan and Roy agree to lead it – not only because of
Hindu fundamentalists, but equally because of Muslim and Christian fundamentalists,
who have also conveniently used this law to oppress (and sometimes ban) books
they didn’t like.
