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Book Banning

The Constitution guarantees the freedom of expression, but on the statutes are provisions which empower the central and state governments to ban and seize books on unconstitutional grounds and to even launch criminal proceedings.

CIVIL LIBERTIES

Book Banning

A G Noorani

morality; …(t) the prevention of dissemination of documents containing any matter which is likely to prejudicially affect friendly relations with any foreign state or is derogatory to national prestige; (u) the prevention of the contravention of any law for the time be-

The Constitution guarantees the freedom of expression, but on the statutes are provisions which empower the central and state governments to ban and seize books on unconstitutional grounds and to even launch criminal proceedings.

Diet for Art’s Sake: Book on Trial from Madame Bovary to Lolita by Elizabeth Ladenson; Cornell University Press; pp 272, $ 29.95.

B
ook banning is a civilised form of the vice of book-burning which is a sure symptom of fascism. India has a formidable record of book banning. As with much else, independent India simply took over the habits of the British raj. In 1976, at the height of the Emergency, Manohar Publishers reprinted in India, to their great credit, N Gerald Barrier’s formid able book Banned: Controversial Literature and Political Control in India 1907-47 based on a thorough research in the archives in India and Britain. It cove red books relating to “religious controversy”, “nationalist, secular politics” and “patriotic poetry and songs”, it provided a guide to banned literature and indicated to the reader where to find the collections of banned literature in India and in Britain. Some, like the Report of the Kanpur Riots Inquiry (1931), have been reprinted after independence.

The raj did not confer fundamental rights on its subjects. The Constitution of India recognises that citizens are entitled to such rights. Books are banned by recourse to two statutes. One method is to prevent their import from outside; another is to confiscate books published or sold here. Section 11(1) of the Customs Act, 1962 reads:

If the central government is satisfied that it is necessary so to do for any of the purposes specified in subsection (2), it may, by notification in the official gazette, prohibit either absolutely or subject to such conditions (to be fulfilled before or after clearance) as may be specified in the notification, the import or export of goods of any specified description.

Subsection (2) says:

The purposes referred to in subsection

(1) are the following: (a) the maintenance of the security of India; (b) the maintenance of public order and standards of decency or ing in force; and (v) any other purpose conducive to the interests of the general public.

This provision is patently unconstitutional for three reasons. First, the grounds go far beyond those mentioned in Article 19(2) of the Constitution on which alone the fundamental right to freedom of speech and expression may validly be restricted. Neither “national prestige” nor “the interests of the general public” figure there. As the Supreme Court pointed out in the Sakal Papers Case (1962), this precious right “cannot, like the freedom to carry on business, be curtailed in the interests of the general public”.

Secondly, Article 19(2) says that the restrictions must be “reasonable”. The court has ruled repeatedly that a provision which confers unfettered power or which does not provide for appeal to an independent body is unreasonable. Section 128 of the Act provides for appeal from Caesar to Caesar; from the collector to the board of revenue and from an official of lower rank to the appellate collector of customs. Thirdly, it is manifestly unreasonable that even after its clearance, the book’s circulation should depend on the will of the customs.

The other method is to use Section 95 of the Criminal Procedure Code, 1973 a faithful replica of its ancestor S 99-G of 1898. It empowers the state government to declare “forefeited to the government” any newspaper, document or book which, in its opinion, offends against the following provisionS of the penal code; namely, S 124-A (“sedition”), S 153-A (promoting ill will “between different…groups” based on religion, language, caste, etc), S 153-B (imputing disloyalty to the country to any such group); S 292 (obscene literature); S 293 (sale of obscene literature to the young); or S 295-A (insult to religious feelings of any group of citizens with “deliberate and malicious intention of outraging the religious feelings” of that class).

S 153-A and 295-A are commonly abused for political ends. S 153-A comes in only when ill will is aroused between diffe rent

december 1, 2007 Economic & Political Weekly

CIVIL LIBERTIES

communities. S 295-A applies when a particular group is insulted, (a) by outraging its “religious” feelings, and (b) the insult is “deliberate or malicious”. It has no application if a historical figure is criticised, however, unfairly, even if it arouses emotions in the region. Besides, it applies only to “insult” to religious feelings and by a “deliberate and malicious acts”.

But state governments freely invoke S 295-A to ban scholarly works to quell agitations, sometimes invoking S 153-A as well for that job. On the other hand, S 153-A is never seriously used to silence Bal Thackeray or the hate mongers of the RSS and the BJP.

S 95 of the criminal procedure code provides a safeguard. In the notification forfeiting the book the state government must state “the grounds of its opinion”. Bare assertion will not do. S 96 enables “any person having any interest” in the forefeited book to apply to the high court to quash the order. Such an application must be heard by a special bench of at least three judges. The word “interest” should cover the reader as well.

This proceeding is one form of trial of a book. The other is in a criminal prosecution under the penal code before a magistrate or sessions judge. We abolished juries long ago. In 1965 the Supreme Court upheld the conviction of a bookseller for being in possession of Lady Chatterly’s Lover (Ranjit D Udeshi vs State of Maharashtra AIR 1965 S C 881). The court’s ruling in the Bandit Queen case (Bobby Art International vs Om Pal Singh Hoon (1996) 4 SCC 1), upholding depiction of frontal nudity in a movie, gives ground for hope that the 1965 ruling will be reversed. It is absurdly illiberal.

The labours of Elizabeth Ladenson, of the Columbia University, will be of immense help in mounting such a challenge. Her narrative starts from Madame Bovary, for which Flaubert was tried in France in 1857, and ends with Fanny Hill written in the 18th century but put on trial in the United States in 1966. Trials concerning novels like Tropic of Cancer, Lolita, Lady Chatterly’s Lover and the works of Marquis’de Sade are also covered. They were trials by jury. She also discusses movie adaptations of the novels. It is much more than a legal problem. Not surprisingly, lawyers innocent of anything besides the law find themselves out of their depths. It is simply a matter of literacy.

In England, Penguin Books published the novel in 1960. A prosecution was launched. It failed mise rably. The defence had waived its claim to an all-male jury.

The author’s comments on the proceedings are instructive:

While artistic merit was a major component of the defence, it was Lawrence’s place in 20th century literature in general that provided the main justification in aesthetic terms. The novel itself was characterised on the basis of its moral value. This was, certainly, in strict keeping with all other such arguments over the course of at least a century, perfectly reasonable and accurate in terms of the author’s evident intent, and at the same time somewhat disconcerting when one considers that it had originally been not merely banned as immoral but described as, for instance, ‘the most evil outpouring that has ever besmirched the literature of our country’. The witnesses all testified to the moral seriousness of the book and its social and even educational merit, insisting on Lawrence’s great importance as an author, while also observing that Lady Chatterly was not his best effort. It was an impressive line-up, including, as mentioned earlier, not only E M Forster but Dame Rebecca West, among other literary figures.

The trial proved a trailblazer. Obscenity, defined in archaic terms, fell into disrepute in the west. It lingered in India.

The main question this book tries to answer is, how does an “obscene” book become a “classic”? Its main attempt at an answer is that over the course of roughly a century, from the mid-19th century to the 1960s,

Two ideas which had already been circulating for sometime in the form of avant-garde heresy, gradually became accepted clichés, and then grounds for legal defence. The first is most conveniently encapsulated in the formula ‘art for art’s sake’ the notion that a work of art functions on its own terms, exists in a calm independent of conventional morality, and should therefore be exempt from the strictures of moral judgment. The second is that of ‘realism’. The idea that the function of the work of art may legitimately include, and perhaps should even obligatorily take on, the representation of all aspects of life, including the more unpleasant and sordid. Both these ideas now seem obvious, but they were unmentionable for a very long time.

The cases analysed in detail in the book show how outdated are the notions of obscenity in India.

Economic & Political Weekly december 1, 2007

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