Wendy Doniger's 'The Hindus': The offensive law of “offended” feelings

On 16 May 1951, in the course of a debate in Parliament, Jawaharlal Nehru lamented, “We had found this magnificent Constitution… which was kidnapped and purloined by lawyers.”

A very cherished right, a fundamental right at that, of this “magnificent” Constitution is the right to freedom of speech and expression. But twenty five years after Salman Rushdie, and in the present maelstrom of Wendy Doniger and Penguin, this fundamental right resembles a mangled heap. 

Not only has it been purloined by everyone with his own vested agenda, it has also been hijacked, manipulated, contorted, to justify risible speech, censorship by both stealth and force, and for lubricating the wheels of political juggernauts of all hues and colours. And in case you missed it, a pitched battle is being fought between groups, each of which claims its own right to an absolutist freedom of expression, and in a tragicomic manner, a lacerating sharp turf war is being waged to claim the sole privilege to freedom of expression.

Zealots expressing uninhibited glee over their latest conquest, mortified authors, writers, and anybody who sincerely cares and loves freedom of expression vent their ire at Penguin India, and in the middle, a group of “law abiding citizens”. Let me explain. Penguin India sought to justify its capitulation by saying, “a publishing company has the same obligation as any other organisation to respect the laws of the land in which it operates, however intolerant and restrictive those laws may be.” 

And, Dina Nath Batra’s lawyer Monika Arora’s defence: “(The) withdrawal of this book is an outcome of a valid, legal battle fought by people of eminence in this vibrant democracy.”

So, when “the right” is pillorying the “libtards and the “secular commentariat”, and the latter is in turn excoriating “fringe loonies” and a cravenly coward publishing house, what is the real issue which goes abegging?

It is the law. That very law which gratuitously allows “hurt sentiments” to be litigated, championed, and used as a truncheon against anyone you disagree with. Sections 295A and 153A of the Indian Penal Code – they are the main culprits. It is easy for the charlatan and the knave to claim he was merely seeking to enforce his legal rights, and it is equally lazy for one truly committed to free speech to miss the target by a wide margin and heap all anger on party which is wringing its hands in despair (however contrived that might be).

The provenance of this law goes back to the colonial era, but the grotesque offsprings it has helped spawn continue to haunt us even to this day. And from what Mr Batra and others of his ilk proclaim as the agenda for the immediate future, it can only get worse. Do note that the sledgehammer blow to Doniger’s book was dealt by this very law. 

It allows for a merger of strategies used by the Left, the Right and the Centre in so far as censorship is concerned. The Congress and the Left used to muzzle free speech by getting authors and publishers trapped in the internecine alleys of the legal system (and by system I mean both the substantive law which allows a case to be filed, as well as the procedural law, which is an excruciating punishment in itself). Earlier the lumpen elements of the Right used vandalism for browbeating free speech, but now, as Mr Batra’s feat demonstrates only too clearly, a fait accompli is presented after getting the opponent beleaguered in a surreptitious legal battle. A new method of justifying censorship has also emerged – first get the book annihilated (or “pulped”, since that seems to be the raging currency now), and then substantiate the intolerance by claiming how hurtfully blasphemous it was.

Because of the law of hurt feelings, religious sensitivity has become an excuse for threats, offence has become something to be greedily grabbed, and then gratuitously pumped back out with a mixture of aggression and self-pity. 

One lesson we must learn from the Rushdie saga is how and why the UK Home Office resolved not to allow any further blasphemy prosecutions. It realised “how inappropriate legal mechanisms are for dealing with matters of faith and individual belief; the strength of a person’s own belief is the best armour against mockers and blasphemers”.

One needs to end on a note of caution. Because this law has allowed a really “secular” bevy of hate-mongers to prosper from their offerings: Modi, Bal Thackeray, Sarpotdar, Togadia, Varun Gandhi, Owaisis, Maudhani and the legions before and after them, we have got to call out and shun all the free speech absolutists and libertarians and their knavish tricks, because the fundamental right to speak and speak out should not be allowed to be tarnished by being made into a rallying cry for “religious electioneering”.

Saurav teaches Media Law & Jurisprudence in Mumbai and Pune. Follow him on twitter @SauravDatta29.