Meesha book controversy: Ban on literary work violates freedom of speech; test for such moves should be extremely stringent

The Supreme Court recently heard a petition for a ban on the Malayalam novel, Meesha. The novel is controversial because it purportedly depicts temple-going women in a bad light and the author’s remarks on the Brahmin community amount to casteist or racial slur. The publication of the book has led to public outburst and protests across India for hurting religious sentiments. While the Supreme Court has reserved judgment in the matter, the court has criticised the practice of banning books as it adversely affects the free flow of ideas. Calls for ban on books risk violating the right to freedom of speech and expression and the court, in deciding whether a prohibition on a book is justified, must balance free speech with public interest.

Cases involving controversial books in India

In 1988, the Indian government banned the import of Salman Rushdie’s The Satanic Verses under Section 11 of the Customs Act, 1962. Under Section 11, the Central Government may prohibit import/export of goods for specific purposes mentioned in the Customs Act including "the maintenance of public order and standards of decency or morality", "the maintenance of the security of India" and "any other purpose conducive to the interests of the general public".

Meesha book controversy: Ban on literary work violates freedom of speech; test for such moves should be extremely stringent

File image of author S Hareesh. Wikimedia Commons

The ban is still in place, however, it is not illegal for anybody to read or possess copies of The Satanic Verses which had already been imported in India prior to the ban; further, one can also download the book from the internet without running afoul of the import ban.

In 2003, the West Bengal government banned Taslima Nasreen’s book, Dwikhondito on the ground that the book would outrage the religious sentiments of the Muslim community. The Calcutta High Court lifted the ban in September 2005 observing that the book was an autobiographical account and not intended to outrage the feelings of any religious community.

In 2011, Three Hundred Ramayanas, an essay by renowned scholar, AK Ramanujan, was dropped from the history syllabus at Delhi University amid protests that the essay in recounting different versions of the Ramayana, offended Hindu beliefs.

Books in India have been banned for non-religious reasons as well. Ranjit Udeshi vs State of Maharashtra (1965) is a landmark case in which the Supreme Court ruled on what constitutes obscenity and the extent to which obscene content is protected under right to freedom of speech and expression in India. In this case, the petitioner was a bookseller who had been prosecuted for possessing copies of DH Lawrence’s novel, Lady Chatterley’s Lover, which had been banned in several countries including the UK, the US and India on the ground of obscenity.

The Supreme Court applied the Hicklin test which was first used in England in the case, Regina vs Hicklin and held that the content of Lady Chatterley’s Lover was obscene and that the ban was justified under Article 19(2) (restrictions on the freedom of speech and expression). The determinative question in the Hicklin test is: “whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such influences, and into whose hands a publication of this sort may fall". In 2014, the Hicklin test was rejected by the Supreme Court in Aveek Sarkar vs State of West Bengal wherein the court ruled that a nude picture of former German tennis star, Boris Becker, and his fiancée is not obscene within the meaning of Section 292 of the IPC (the law against obscenity).

Lady Chatterley’s Lover was also banned in the UK when it was published and only ‘expurgated’ and heavily censored books could be imported in the UK. In 1960, Penguin Books published an unexpurgated version of the book and was prosecuted in the UK under the Obscene Publications Act, 1959. The jury acquitted Penguin and the case was hailed as a victory for literary freedom in Britain. While the court upheld the Hicklin test, the court relaxed the application of the test to consider whether the book could be considered obscene “taken as a whole” instead of judging obscenity on isolated passages. It is interesting to note that while courts in the UK took into account the changing social mores of that time and lifted the ban on Lady Chatterley’s Lover as early as 1960, the book continues to be banned in India.

Relevant legal provisions in India

The provisions which are frequently invoked while banning literary works in India are:

  • Section 292 of the IPC: This section criminalises the sale of obscene books. Content is deemed to be objectionable if it is “lascivious or appeals to the pruri­ent interest” or if it is likely to “deprave and corrupt” a person.
  • Article 19(2) of the Indian Constitution: Under Article 19(2), reasonable restrictions may be placed on the right to freedom of speech and expression on specific grounds including public order, decency or morality.
  • Section 153B of IPC: It is an offence under Section 153B to make or publish any assertion which causes or is likely to cause “disharmony or feelings of enmity or hatred or ill-will” among members of any religious or regional group or caste or community. Taslima Nasreen’s Dwikhandita was banned under section 153B.
  • Section 95 of the Code of Criminal Procedure (CrPC): Section 95 of the CrPC empowers the government to declare publications (which contain matter punishable under section 153B) as forfeited and to issue search and seizure orders.

Book bans: balancing free speech and public interest

The question which inevitably arises in cases where the government or court orders ban on literary works, following protests by religious or political groups or members of the public, is: where does one draw the line between protecting freedom of speech (of the author) on the one hand and the public interest on the other.

Free speech activists often argue that the right to free speech includes the right to offend. The problem with assessing whether a literary work is obscene is that it is inevitably a ‘moral’ question which depends on the subjective judgment of the court or the government. What may be obscene or offensive to a member of a particular community may not be obscene or offensive to those outside of that community, or in some cases, even to other members within that community.

Also, social mores change with time — today, certain words and gestures which may have been considered offensive in the past have found their way into our day to day vocabulary, for instance, it is common to use the 'F' word even in a non-offensive context. Therefore, the definition of obscene is subjective and both context-and time-dependent.

A ban on literary works cannot become a culture in a country which is known and celebrated for its diversity. Banning literary works stifles dissent and promotes intolerance. The test for allowing bans on literary works should therefore be extremely stringent and the publication of works should be restricted only where the works amount to hate speech or could incite violence among communities.

The author is an LLM candidate at University of Cambridge

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Updated Date: Aug 09, 2018 10:04:33 IST

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