Social censorship and the legitimacy of book bans

Today, Rajeev Dhawan has written an interesting article in Mail Today on the Tasleema Nasrin controversy. With the controversy on the film Aaja Nachle also throwing up similar issues, there is likely to be extraordinary interest on free speech jurisprudence. In today’s piece, Dhawan remarks:

Where free speech is not bona fide but malevolent, free speech must also be confronted with free speech. Death threats, physical intimidation and coercion can never be the right answer. The limit to free speech is that it should not be malevolent or invite breakdowns of law and order. But even hate speech must be answered with free speech and protest and not coercion, threats and mayhem.

Referring to Taslima’s apology, he said:

Writers cannot be coerced into an apology. But where apologies are offered ( as in the case of the painter Hussain), they must be accepted in good faith as part of peaceful living….Blind in its perceptions, India’s colonial law on censorship contains the formula of prosecute, persecute, forfeit and punish. Malicious prosecutions have made Hussain an outlaw. …Taslima may be provocative, but appears to espouse social reform and not hurt the sentiments of others – even if she looks back in anger.”

Dhawan concludes that Taslima may not be controversial, but simply one caught up in a controversy.

Even as I liked Dhawan’s exposition of the principles that ought to govern this debate, I discovered a major factual error in his piece. He wrote: “Left to itself, the law may be wiser and more astute. The Supreme Court upheld the striking down of James Laine’s book on Shivaji even though Hindutva’s lumpen forces burnt the book and attacked the Bhandarkar Institute under circumstances that could only be regarded as shameful.”

These are the facts:
1. The Supreme Court on April 5, 2007 quashed the FIR registered against Laine by the Maharashtra Government for causing disharmony between communities through his book on Chhatrapati Shivaji, published in 2003. The order is here.
The Court reasoned in this case that it is the sole responsibility of the
State to make positive efforts to resolve every possible conflict
between any of the communities, castes or religions within the
State and try every possible way to establish peace and
harmony within the State under every and all circumstances.

The Court accepted the submission of the appellant’s counsel in this case, Soli Sorabjee that the book was written with its objective to review the historical facts of a great historical figure, therefore, the book has to be read and examined as a whole and a solitary paragraph does not provide any cogent ground to file FIR against the appellants, being publisher and printer of the book.

2. Based on this judgment. the Bombay High Court lifted the ban on the book. The judgment is here.

3. The Maharashtra Government challenged this order in the Supreme Court through SLP (Civil)8931 of 2007. (State of Maharashtra v. Sangharaj Damodhar Rupawate). Supreme Court has stayed the operation of the High Court’s Order, thus allowing the ban to continue. The last hearing of the case was on October 11, 2007.

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