Bestseller II: How scholarly are our courts?

Yesterday I posted a piece on a judgement of the Bombay High Court banning a book.  I had mentioned the facts of the book and the main points raised by the author of the book.  Today, I am quoting the main points of the court’s judgement.  After that I argue that banning books on sensitive issues does not necessarily maintain or promote harmony in society.  It might in fact, curb opportunities for dialogue in society.

The judgement: The High Court upheld the ban on the book.  There were many procedural and substantive grounds given.  I am summarising only the substantive points:

The Constitution allows the state to frame laws to restrict our freedom of speech and expression in the “interest of public order”, and not just “maintenance of public order”.   Interest has a broader meaning than maintenance.

For a Notification banning books to be valid, the government’s opinion and reasons should be clearly mentioned in the notification.  In this case, they were clearly expressed.

An author has a right to put forth a perspective that a particular religion is not secular.  However, if a book reeks of hatred for a particular community… must pause and consider whether it is in the interest of general public to allow its circulation.”

According to us, the lurid details allegedly of Mohammad Paigambar’s life, the authenticity of which may be challenged by some, could have been avoided by

the author…..It is not possible for us to conclude that they are in the nature of historical research. We feel that the attempt is to show Mohammad Paigambar in poor light to hurt Muslim sentiments.”

Thus, Mohammad Paigambar is designedly painted as a debauched person and anything which can be said in his favour is discounted. “

We have no doubt that the author must be allowed to criticize Islam….But, here the criticism is not academic. The author has gone on to pass insulting comments on Muslims with particular reference to Indian Muslims.”

My argument: These points were made somewhere in between nearly 100-pages of a scholarly ‘exposition’ by the court.  The court examined a number of extracts quoted from the book, and referred to other books it considered scholarly and definitive, and tried to examine the true nature of the words and phrases of Muslim religious texts which had allegedly been wrongly represented.

I would like to point out some features of the government action and the court’s judgement:

1.  The government acted in 2007 when the book was first published in 2003.  It would be interesting to ponder over whether they would ban a book had it not sold 10,000 copies.

2. Banning the book may have done two things: (a) it may have sent out a signal that the government is ‘pseudo-secularist’, and over protective of minorities;, (b) it might also have stifled genuine debate by deciding for itself that the book is derogatory, insulting, and a threat to public order.

3. The length of the court’s ‘treatise’ on the authentic interpretation of the sources used and mis-quoted form nearly half the length of the 150-page judgement!!  The court, even though it said it has no business laying down authoritative interpretation of religious law, went ahead and did exactly that.

In any society, debate on religion and culture (as indeed so many other things) should take part in civil society.  That the government should be able to regulate matters inciting violence and hatred is granted, but does not this particular form of regulation i.e. banning a book, also stifle debate likely to happen in civil society when controversial arguments are made?

Consider an alternative scenario: The government does not have the power to ban a book outright.  it can however issue an ‘advisory’ stating that a particular book is factually incorrect/ provocative/ misrepresents historical facts, and so on.  If such a book does subsequently lead to a direct role in violence or public disorder, the government can ask the courts to ban it.

In such a case, if the government issues an advisory stating its reasons for doing so, information about the book and its contents will be given wider publicity.  Wider publicity will also in turn attract greater public scrutiny, greater criticism, greater debate, and if the material is truly objectionable, even a case for defamation.

Greater public scrutiny, in my opinion would also help different sections of society voice their opinions more often, and may also help in the expression of pent-up voices that are otherwise expressed with destructive intent.

In the occasional situation that a particular book etc. is taken to court, the court may be in a position to resolve a dispute between two people from different backgrounds in society.  In such a case, its 100-page ramblings might settle a question of authenticity of cultural and religious texts in a manner that gives closure to at least one individual in society.

In the present circumstances, the court usually has to decide on the very legitimacy of the government’s action of banning a book.  It might appease a community, but still leaves individuals simmering.

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