Open to insult

The courts cannot abdicate from their responsibility to freedom of expression

The annals of justice in India or abroad, have no precedent for the kind of order the high court of Orissa made in November on a petition to restrain publication of a biography of Aurobindo Ghose.

The petitioner, Gitanjali Devi, alleged that Peter Heehs’ book The lives of Sri Aurobindo was blasphemous and defamatory. The book, due for publication by Penguin India, was published last May by the Columbia University Press. Significantly, its import has not been banned. Peter Heehs, a scholar of note, is one of the founders of the Sri Aurobindo Ashram Archives at Pondicherry.

It was entirely for the court to decide whether the book violated the law.  Instead, it transferred the responsibility to the Government of India.

As her advocate summed up the order, “The high court has directed the Union information and broadcasting ministry to make a thorough inquiry into the contents of the book and ascertain whether it contains any defamatory comments about Sri Aurobindo”. He added that a no-objection certificate was required from the home ministry as well.

The order is open to five serious objections. First, it marks an unprecedented abdication of judicial power and responsibility in favour of an outside authority; worst of all, the State. The implications are grave and far reaching. Would the court adopt the same course if the charge is of sedition or defamation of a minister in office? Or, for that matter, of obscenity?

Secondly, the courts decide on the basis of evidence, oral documentary or circumstantial, on the facts. It has no power to receive opinions in evidence at all except in the very few exceptions listed, in sections 45 to 59, in the Indian Evidence Act, 1872. 

The group is appropriately headed “Opinions of third persons, when relevant”. That comprises opinion by “experts” on “a point of foreign law, or of science, or art, or as to the identity of handwriting or finger impressions’ plus “opinion as to the existence or right or custom’, usages, the set-up of any religious or charitable foundation or on “the relationship of one person to another”.  And, on nothing else.

Thirdly, blasphemy and defamation are mixed questions of law and fact.They
depend on an interpretation of the book and application of the law, including court
rulings. Babus are not equipped for that. Fourthly, will they hear the author and the publisher/before forming their opinions, give their report on oath, and step into the witness box to be cross-examined by the  author and the publishers? “Experts” who give evidence always do so.

If they do not, the very fundamentals of natural justice  are flouted. And lastly, if even a court of law invests the I & B Ministry with such a  lower, the government might well make  it the ministry of Truth with Orwellian consequences.

If a book is banned by a state government for blasphemy, sedition, incitement to communal discord or deliberate insult  to religion, the writer is entitled to move the high court to quash the order under S 96 of the CrPc. The petition must be heard by a bench of three judges.  Defamation is a personal wrong for which private complaints are filed in the magistrate’s court.

The law in respect of defamation of a dead person is clear. The court can be moved only by his “family or other near relations” (Explanation 1 to S. 499 of  IPC). The fact that he was a great man does not enlarge the category of those entitled to complain. This holds good for historical figures as well as heroes in the freedom struggle.

Their admirers and devotees cannot move the court. Gandhi and Nehru have not been spared by their critics. There are whole shelves of books attacking Churchill who saved Britain during the war.

As for religion, the law steps in only if words are uttered “with deliberate and malicious intention of outraging the religions feelings of any class of citizens” in order to “insult the religion or religious beliefs of that class” (S.295 - A of  IPC).

The law applies to writings as well as to films. It is not open to governments to cite popular feelings as an excuse to ban books or films. The Supreme Court’s comment in 1989 on the film ‘re Oru Gramathile’ are relevant. It is the duty of the State to protect the freedom of expression since it is a liberty guaranteed against the State.

The State cannot plead its inability to handle the hostile audience problem. It is its obligatory duty to present it and protect the freedom of expression. So, is it that of the courts of law.  It is unfortunate that in later cases the Supreme Court retracted from the stand it took in 1989.

The writer is a senior lawyer