The Limits of Speech in India

India is the world’s largest democracy, with possibly the world’s largest number of political parties (six national, twenty-two regional, and 1500+ official unrecognized parties), and what must surely be the most disputatious and argumentative broadcast media. Anyone who has ever watched the myriad prime time talk shows, with six to ten guests shouting at each other (sometimes the host, too), would know what I mean. It has also been my experience over the last nearly twenty-five years traveling to and engaging with India, that people love a good argument. You can have a fierce debate over a meal, and over very serious ideas, but by the time sweets come around you’ve moved on to something else—even if you still disagree. One of the great things about India, in my view, is the wonderful acceptance of vigorous disagreement.

So the announcement on February 11 that Penguin India had decided to withdraw from the market Wendy Doniger’s book, The Hindus: An Alternative History, came as sad news. Penguin also announced that they would destroy any remaining copies of the book. These actions represent the terms of an out-of-court settlement resulting from civil and apparently criminal proceedings against the book led by an NGO, the Shiksha Bachao Andolan. (Mint has an excellent profile here). The Wall Street Journal has made the settlement terms available online, which clarify that in exchange for the withdrawal of the book from India, “all the civil and criminal cases / complaints and any other actions initiated under the relevant laws” would be withdrawn. From Professor Doniger’s statement, it appears that the criminal cases were a decisive factor in Penguin’s decision to settle out of court rather than continue a long legal battle, as it had been doing since 2011. Professor Doniger cited a paragraph from the suit which referenced the section 295A of the Indian Penal Code as the crime the Shiksha Bachao Andolan accused her book of committing.

It’s worth taking a closer look at how Indian law treats speech to better understand the issues at stake. While the Indian constitution provides for “freedom of speech and expression” in the Fundamental Rights, it does so with caveats that such freedoms should not impinge upon laws providing for “reasonable restrictions” in the “interests of of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.” And the Indian Penal Code, which dates back to 1860 (use search tool here for official text), particularly section 295A, explicitly criminalizes “Deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs.” A related section, 298, criminalizes “Uttering words, etc., with deliberate intent to wound religious feelings.” 295A is punishable with up to three years in prison. So speech is free in India, as long as no one feels outraged or wounded specifically with respect to their religion.

The Doniger settlement comes on the heels of other book withdrawals or bans, such as a recent book on Air India, Joseph Lelyveld’s book on Gandhi, the scholar James Laine’s book about Shivaji, and of course the paradigmatic case, Salman Rushdie’s Satanic Verses back in 1988—to name just a few. Noting the larger context of what seems to be a growing list of books eliminated, a number of thoughtful writers have argued in the wake of the Doniger decision in defense of a free marketplace of ideas: Pratap Mehta, Nikhil Inamdar, Ashok Malik, Kenan Malik, Tunku Varadarajan, and others. All have expressed concern at the ease with which books have been subject to elimination in India due to the power of their ideas to offend, and what this narrowing of the bookshelves portends for India’s liberal values. (Here, the word “liberal” denotes not political partisanship, but rather commitment to the values of democracy, pluralism, and tolerance). The list is growing longer, and as Inamdar notes, there are implications for online speech as well. The worrisome aspect of erring on the side of protecting feelings rather than the fundamental right of freedom of speech and expression lies in its inherent arbitrariness: many may have taken great offense at Professor Doniger’s work, no doubt. But many may not.

The Shiksha Bachao Andolan, along with the signatories of an online petition, found The Hindus offensive in what appear to be at least three ways: first, that the book allegedly contained factual inaccuracies; second, that Professor Doniger used psychoanalytic concepts to analyze Hinduism, and wrote at length about sexuality, which petitioners found derogatory to their faith; and third, that she stated one of the great Indian epics, the Ramayana, was “created by human authors” and therefore a “work of fiction.”

These are all criticisms deserving of intensive debate, review, thorough explication, perhaps shouting to make oneself heard over the din, and certainly as many close written critiques as needed. Professor Doniger would be the first to listen to her critics, and has always been ready for a good debate. But threats of criminal penalties for scholarly interpretations? Disagreements and offense are an inevitable part of the fabric of any intellectual life, and there will always be someone somewhere whose sentiments are bruised. But one thing’s becoming clear: it is getting harder to reconcile the India that symbolizes robust democracy, pluralism on a grand scale, and the lessons of tolerance, with another India tiptoeing to avert hurt feelings.

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