Legal experts agree that the 1988 ban on The Satanic Verses does not mean that you cannot quote from it. They have questioned what purpose a ban serves when a book can be read online. And the Supreme Court has made observations on when a book can be banned in the first place.
A 2010 judgment from the Supreme Court,lifting the ban on James W Laines Shivaji – The Hindu King in Muslim India,says the words in a book must be judged by the standards of reasonable,strong-minded,firm and courageous men,and not those of weak and vacillating minds,nor of those who scent danger in every hostile point of view.
The effect of the words used in the offending material must be judged from the standards of reasonable,strong-minded,firm and courageous men,and not those of weak and vacillating minds,nor of those who scent danger in every hostile point of view, the court had observed. The class of for whom the book is primarily meant would also be relevant for judging the probable consequences of the writing.
Four writers were threatened with criminal prosecution for reading out passages from Salman Rushdies The Satanic Verses at the Jaipur Literary Festival,sparking debate on the very necessity of continuing with the ban under Section 11 of the Indian Customs Act,1962. The provision proscribes the import of the book to India.
Merely banning the book does not mean you cannot quote from it. It is different from a hate speech, said senior advocate Anil B Divan,who also questioned the point of banning a book.
What is the meaning of a ban on the import of the book (classified as goods under the section) when you can read it on the internet? If I got a copy of the book,you cannot prevent me reading or communicating it. The ban on the book does not mean you cant discuss it.
Senior advocate Rajeev Dhavan said,What is wrong with the process of a ban under the Customs Act is that there is no prior notice to the people affected,so it has not really been contested. In this case most of the people responsible for bringing out the book are outside. If there was notice,they would come to defend the book.
Asked if the ban can now be challenged in a court of law,he said,Theoretically it can be contested. Somebody can come and challenge the ban as a violation of free speech. They can contest the ban on the ground that it is available on the Net,but nobody wants to mention that. It is silly.
For prosecuting the four writers,the state government would have to prove that the very act of reading out has offended the people,Dhavan said. He pointed out: Prosecution can be under Section S 153 A or 295 A of the IPC. But sanction has to be got from the Central government under 196 CrPC. Section 153 A deals with promoting enmity between different groups on several grounds,including religion. Offence includes expression through words spoken or written. Under Section 295 A,commission of deliberate and malicious acts intended to outrage religious feelings of any class by insulting their religion or religious beliefs is an offence. This too can be committed by words spoken or written,but here,the prosecution has to prove malice and deliberate intent on the part of the accused.
Referring to the circumstances when the ban was imposed in 1988,Dhavan said it came when the Shah Bano case was decided. But this ban was very serious as it dealt with free speech of a book which is globally available. This was the strictest kind of ban available, he said. Referring to the Jaipur Litfest controversy,he said,The use of this ban now as a communal balance wheel is simply absurd.
Director-in-charge of the premier Indian Law Institute,New Delhi,and media laws expert Professor S Sivakumar said the Jaipur Litfest controversy is about how mere reading was seen as propagation. But Professor C Rajkumar,Vice-Chancellor with O P Jindal Global University,said the current controversy can be used as an opportunity to evolve the ban laws.
The law is evolutionary and should move the way society is moving. This controversy should be used to revisit the whole area of banning books and put in perspective with contemporary understanding in a liberal and democratic society, he said.