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Could Penguin have won? Is Hinduism a soft target? Can a virgin give birth to a baby? Kian Ganz in Q&A with CNN-IBN viewers

Kian Ganz: Laws protecting religious sentiment need a long, hard look
Kian Ganz: Laws protecting religious sentiment need a long, hard look
Legally India editor Kian Ganz was in an online Q&A today, fielding some excellent and insightful questions on freedom of speech for an hour from CNN-IBN’s viewers.

The discussion of course comes on the eve of a media storm surrounding the controversial agreement by Penguin to pulp all India-based copies of Wendy Doniger’s The Hindus: An Alternative History.

It was a fun session!

Do read and let us know your thoughts (and please excuse typos and any over-long passages).

Why can't we fight the cases legally and arrive at a decision? Asked by: Embassy, Aizwal

Hi Aizwal, thanks, that's a very good question, and also a rather complicated one...

No one knows right now why Penguin chose to settle the criminal and civil cases.

My suspicion for why they did boils down to two different reasons.

1. Fighting a legal case such as this one can take many many years, potentially, and would likely involve at least one appeal to the Supreme Court of India, which is not cheap, nor would winning be a certainty.

2. What do you win by fighting it legally? Penguin would have spent a lot of money and effort in standing up for something some of its executives probably believed in. And some of those executives could have risked imprisonment or other legal intimidation tactics, possibly.

Ultimately, Penguin is a business and I'd believe they took a rational business call: let's settle and agree to destroy the book, then leak the settlement and watch the book leap back into the best seller ranks.

That possibly seems much more effective and more of a victory than a protracted legal battle ever could have.

Don't you think that Hinduism is a soft target? Asked by: Naina, Bangalore

Thanks for your question Naina. If you think Hinduism is a soft target, then all religion is a soft target, in fairness.

Let's look at the history of banned or censored books: almost all of them deal with religion in some way, whether it's the Satanic Verses or an alternative history of Hinduism.

There are several reasons perhaps why this is so.

1. Historians are only in recent years beginning to study religion as a historical discipline, which also shifts copies of books. And study of religion can actually be very important, in taking the hard edge off religion and the conflicts that religion has often caused, by looking at it in a more detached manner.

2. In India, the laws that are best at restricting publication and freedom of speech, are mostly drawn up to protect religious sentiment (or rather, they pretty much ban you from "offending" anyone who's religious).

If you write a book that tries to look at the 'divine' from an academic or critical perspective, I guess some people will always be offended.

Hi, Read your website. Its superb. What’s your personal opinion on the controversy? Asked by: Leela, New Delhi

Thank you Leela, that's very kind!

My personal opinion is that the petitioners in the case have scored a massive own goal.

If their aims, if we are being charitable, are honestly held and they filed the petition out of their personal conviction, they would have preferred that no Hindu would ever have to read that book.

With the very public settlement and Penguin agreeing to destroy and not sell the copies only in the Indian territories, they have achieved the exact opposite.

Everyone has been talking about a 4-year-old book that was doing reasonably well, and catapulted it into the international best seller lists.

And it's not like you can't order the book from foreign websites (for a much higher price), since this the book hasn't been banned in India.

For Penguin, it's really a massive PR win. And although they did risk looking like a bit of a pushover, sympathy of most of the media and Twittering classes seems to be firmly on their side as a 'victim'.

The petitioners did not indulge in threats and violence but took recourse to law. Why is that a problem? Asked by: Ankush

Hi Ankush.

I think the law can at times be as frightening when brought to bear against free speech, as overt violence or threats.

Indian defamation law, for example, can carry a jail terms, which has been heavily criticised by human rights organisations. This is often used by the powerful and big corporations to stifle dissent and suppress the voice of activists, for example.

And often quite violently too - while I think the risk for Penguin execs to have been arrested in this case was minimal (because they can afford good lawyers) the prospect of the state and police acting against you and throwing you in jail, even for just a few days, over a book is really worrying, and arguably suppression of speech by the state-sponsored machinery is terrifying.

Same goes for a lot of the laws that the petitioners invoked in the Penguin case, which all related to offending religious sentiments in some way, and all carry stiff prison sentences...

What do you say about mis-representations, misinterpretations and mischief masquerading as an academic work? The errors in this book are too ghastly for a person to have made then inadvertently Asked by: Ankush

An interesting point Ankush.

I have to admit that I haven't read the book myself but I have read reviews and talked to friends who have, and at face value it doesn't seem like anything is outright malicious in the book.

From what I understand, Dr Doniger is a bit of an expert on the topic and has researched it exhaustively.

But if there are errors in the book, which is always possible, then those errors should be pointed out and should fight it out in the free market of ideas.

That's what academia and (social) science is about, and that is also where religions and religious scholars should get their strength from, rather than from banning books that they disagree with.

Why did the scholar petitioner in the case not write his own rebuttal to the book or newspaper articles, rather than banning it?

(Here's an interesting interview from today with one of the petitioners by the way: http://www.livemint.com/Specials/ZL8MkEyTobNWPEQm05jYDL/Dinanath-Batra-Here-comes-the-book-police.html )

Legally, what happens to such cases? Asked by: Sahar, Delhi

Well, without going into too much detail, pretty much anything can happen in such cases unfortunately.

My personal, non-practising lawyers' opinion, is that Penguin would have had a good chance of fighting the cases and ultimately possibly even have won them.

If you look at the Indian Penal Code provisions that the petitioners called on, they all pretty much require "malice" of some sort to make a good case.

(E.g.: Section 295A of the IPC states: "Deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs. Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of citizens of India, by words, either spoken or written").

The petitioners also threatened criminal action under Section

  • 153 (wantonly inciting a riot),
  • 153A (promoting enmity between different groups on basis of religion and “doing acts prejudicial to maintenance of harmony),
  • 298 (uttering words with deliberate intent to wound religious feelings of any person),
  • 505(2) (statements creating or promoting enmity, hatred, or ill-will between classes).

That said, however good their case, Penguin could have easily lost in the Delhi high court (or someone could have started proceedings in another court, for example) - at the lower courts, such cases are really hard to predict, and sometimes if you're litigating there you might as well toss a coin.

But if Penguin had lost and would have appealed to the Supreme Court, I think there's a good chance that they could have found some sympathetic judges who might have placed some limits with their ruling on how much these laws can be used to stifle (allegedly) fair free speech in future.

That would have been useful. But expensive. And again, no success would be guaranteed and while appealing, the high court's potential judgment could have resulted in a temporary ban on the book in India anyway.

To cut a long story short, […] legally, what happens in such cases is usually unpredictable and very long.

Why are we even discussing this???...My question is, can a virgin give birth to a baby??? Asked by: isham

I believe there have been many books written about that exact question, which have also caused controversy, outrage and legal suits from the Christian fringe in other countries.

Religion is undoubtedly very important in the world, not just historically. Millions of people live their lives by interpretations of ancient texts. And often there is disagreement even within a religious community on how that text should be interpreted (witness the many branches of Christianity, Islam and Hinduism alone, and the fundamental doctrinal differences they have).

And indeed, the effects of religious fundamentalism are being felt particularly nowadays.

Therefore, I feel that public study and debate of religions is very important and should not be swept under the carpet or gagged, just because some sensitive clerics get offended.

Why do people even talk about freedom of expression ? What about the Danish cartoonist ? Asked by: isham

Hi Isham,

Some lawyers, politicians and philosophers have argued that freedom of expression is one of the most important rights in any democracy.

Without citizens being allowed to express dissent, democracy becomes pointless and robs the people of much of its power. How can you be an informed electorate if debate is being suppressed?

And religion kind of ties into that, despite India's constitutional secularism, in practice religion has a massive influence on voters and parties.

Therefore it's important to be able to talk about it.

The Danish cartoon, is quite a can of worms, and there probably isn't enough space to go into it here.

Freedom of speech is not absolute (one classical example is that you should not be allowed to cry 'fire' without reason in a crowded cinema, causing a stampede).

But in many cases, such as in the Danish cartoons, there is no easy right and wrong answer, I think.

Not publishing a cartoon because you are afraid you'll offend someone, is ridiculous and a dangerous precedent.

Likewise, publishing something when you know it's going to result in violence, is thoroughly irresponsible.

Publishers and authors are really stuck between a rock and a hard place...

Opposing a book may be legally correct. But, what about freedom of expression? Where to draw a line? Is not it a gray area? Asked by: Shubha Murthy, Bangalore

Yes, I agree Shubha, freedom of expression is pretty much gray all over...

I think the risk is that right now the laws, as they stand in India, are to a large part artefacts of the ancient British-colonial penal code, which was written for a different time, without the internet which makes speech travel further than it ever has in human history.

And many of the laws were written and enforced by a colonial regime to 'control' a multi-ethnic and religious population.

Yet they are still around and are regularly resurrected to stifle free speech.

Reform, either by Parliament and the Law Commission, or in a test case in the Supreme Court, really wouldn't be a bad idea at all right now...

Hi, I read you in 'Mint'. You write so well. Do you think that among all, books related to any religion are the most sensitive? Asked by: Harshitha, London

Thanks Harshita, that's very kind of you to say.

I think that:

1. Yes, those who are very religious are often the most easily offended.

2. The law gives those who are offended about religion (rather than someone who's offended about a political biography), a much greater arsenal to fight with, though I believe there are nearly as many legal avenues to those offended about issues such as caste, etc too.

Let's look at some of the sections of the Indian Penal Code (IPC) that the petitioners used against Penguin.


"Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of citizens of India, by words, either spoken or written, or by signs or by visible representations or otherwise insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."

Or 153A.

1[ "Promoting enmity between different groups on ground of religion..." "- Whoever- (a) by words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill- will between different religious, racials, language or regional groups or castes or communities"


"298. Uttering words, etc., with deliberate intent to wound religious feelings.-- Whoever, with the deliberate intention of wounding the religious feelings of any person, utters any word or makes any sound in the hearing of that person or makes any gesture in the sight of that person or places any object in the sight of that person, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both."


"295A. 5[ Deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs.-- Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of 6[ citizens of India], 7[ by words, either spoken or written, or by signs or by visible representations or otherwise] insults or attempts to insult the religion or the religious beliefs of that class"

Or 505(2):

"Whoever makes, publishes or circulates any statement or report containing rumour or alarming news with intent to create or promote, or which is likely to create or promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, feelings of enmity, hatred or ill- will between different religious, racial, language or regional groups or castes or communities"

Sorry for overloading you with legal verbiage, but many of those are worth reading for just how wide they are and how easy they are to potentially fall foul of...

I think with such laws, it's pretty much impossible to have any rational discussion about religion at all, without opening yourself up to a potential law suit.

All you really need, is someone who is enraged enough by what you've written.

I did an article in Mint a few years ago on a similar point. If you're not bored of reading law-like stuff, do have a look: https://www.legallyindia.com/201209143113

Thanks for the other reply too Kian. I have read the book. I am nowhere a scholar as Prof Doniger is but even I could make out the faults in her conclusions, a partial listing of which I presented on my blog. Errors can creep in. That per se is not the issue. The bigger issue is intent and the presentation. Prof Doniger certainly did not display any respect in his words and her conclusions are designed to demean and insult. Compare that with the works of Prof Diana Eck. No Hindu will ever have any issue with the latter. Asked by: Ankush

Perhaps, I can't really argue with you in detail on that Ankush.

But I would like to point out that under most of the laws that would result in imprisonment for upsetting religious feelings, one would have to be able to prove "malice" of Dr Doniger.

And proving malice in a court of law is pretty hard.

A much more likely explanation for Dr Doniger's conclusions that are different from yours could be that she chose to focus on the controversial parts of Hinduism that others have shied away from in the past.

And if you focus on the controversial, particularly when writing about things that happened eons ago, where actual scientific historical evidence is scarce and usually unreliable, then there are bound to be parts that are perhaps not 100% right or impossible to prove as right.

If you're interested in this kind of area, Reza Azlan's recently-published (and similarly controversial book) about Jesus, called 'Zealot', should also be a worthwhile read that might illustrate just how hard it is to write authoritatively about religion (though Azlan makes a pretty good stab at it, some might argue that even attempting to pierce the veil of religious texts and myths is impossible).

Is not freedom of expression a relative term? Even the one who oppose also have the same right. Correct? Asked by: Edwina, Bangalore

Thank you so much for all your really fascinating, gritty questions, and sorry I didn't manage to get around to all!

But I hope we managed to cover some of the ground you find interesting and I hope you enjoyed the chat as much as I did.

Thanks! Kian

Ps: Shameless plug, if you're interested in law and the like, do check out http://www.legallyindia.com some time!

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