New Delhi: Even as Penguin Books India on Friday defended its decision to withdraw Wendy Doniger's 'The Hindus', a Bangalore advocate, on behalf of readers, has issued a legal notice to the publisher asking it to give up its copyright. Advocate Lawrence Liang of the Bangalore-based Alternative Law Forum claims that Penguin India has violated freedom of speech and readers' rights by agreeing to destroy all copies of 'The Hindus'.
The 30-paragraph legal notice sent on behalf of Liang's clients, Shuddhabrata Sengupta and Aarthi Sethi, argues that because Penguin has agreed to withdraw the book from India and destroy all copies, after a legal dispute with a religious group, it has "effectively acknowledged that it is no longer interested in exercising its ownership in the work" and should surrender its copyright to the Indian public.
The notice adds that Penguin India withdrew the book despite the fact that there was no court order that mandates such withdrawal.
The notice also says that by Penguin acceding to the demands of a minority in pulping the book, it has discriminated between different readers by "conveniently choosing to acknowledge the claims and allegations of one particular class of readers who claim that their religious sentiments have been hurt by this book while ignoring the rights of many others who have found the book to be informative, enjoyable and insightful."
This came after Penguin Books India decided to withdraw all published copies of Wendy Doniger's book 'The Hindus: An Alternative History' from India and pulp their remaining copies, in a move that is seen as a curb on the freedom of expression and has angered many on social media websites. In a statement, it said it has followed the law of the land in which it operates.
(This article has been written by Kian Ganz, founder and publishing editor of Legally India, and reproduced with permission from www.legallyindia.com)
Here's the full text of the legal notice:
ALTERNATIVE LAW FORUM
122/4, Infantry Road, Opposite Infantry Wedding Hall
Bangalore - 560 001. Ph (+91) 8022865757,22868757,41130518
Penguin Books India Pvt. Ltd
11, Community Centre, Panchsheel park
New Delhi 110017
Legal notice for violation of rights of readers
Under instructions from, for and on behalf of my clients Sh. Shuddhabrata Sengupta
and Ms. Aal1iSethi, both residing at New Delhi, I serve upon you this legal notice for
the following reasons and purposes:
1. My client,Mr. Sengupta,is an artist and writer based in New Delhi with a longstanding interest in the comparative history of religions. Ms. Sethi is an anthropologist with a deep interest in Hindu philosophy. Both Mr. Sengupta and Ms. Sethi are avid bibliophiles, ardent supporters of freedom of speech and expression and have in the past been admirers of Penguin Books.
2. My clients were delighted when YOU NOTICEE published Wendy Doniger's "The Hindus: An Alternative History" and as people who have closely followed the scholarly contributions of the said author they regard this book to be a significant contribution to the study of Hinduism. They consider Ms. Doniger's translations of Indian classical texts and her work on various facets of Hinduism from morality in the Mahabaratato the erotic history of Hinduism as an inspiration for their own intellectual pursuits.
3. It has come to the notice of my clients that YOU NOTICEE have withdrawn publication of the book "The Hindus: An Alternative history" pursuant to an agreement entered between YOU NOTICEE and Shri. DinanathBatra; O.P.Gupta, Sharvan Kumar and a few other busybody etcetera's on the 4 th of February 2014. YOU NOTICEE have further agreed not to sell, publish or distribute the book and also to pulp all unsold copies of the book.
4. That YOU NOTICEE have chosen to withdraw the publication and circulation of "The Hindus" despite the fact that there is no court order that mandates such withdrawal is shocking and in absolute contravention of your responsibilities as a publisher-to the author, the book and to the reading community upon whose goodwill your fortune and reputation depends. In effect you have withdrawn the book on the basis of a legal threat thereby granting unauthorized groups and individuals the right to censor books. These groups and individuals believe that the threat of force is the best way to counter the written word and when publishers succumb to such pressures they perhaps need to rethink why they are in the book business at all. While they may both be birds, there is a world of difference between a Penguin and a chicken and the last time my clients checked, the penguin had not changed his feathers in the natural world.
5. That YOU NOTICEE have agreed to the aforementioned terms on the condition that Shri. Dinanath and the other busybodies shall withdraw all civil and criminal cases and complaints filed against you and the author is indicative that if not in the natural world, then at least in the publishing world the Penguin is mutating into a chicken. And furthermore by claiming that the aforementioned agreement has been entered into by YOU NOTICEE on your own 'free will', you insult one of philosophy's favoured concepts.
6. It has further come to our notice that the withdrawal of Wendy Doniger's book is merely one of many instances in which Penguin has refused to back its authors. Last year after the chief minister of Tamil Nadu Jayalalitha obtained an injunction in the Tamil Nadu high court against the publication of a biography of her life published by Penguin, YOU NOTICEE chose not to appeal the matter and allowed the book to vanish instead. When the state - traditionally the great censoring machine- chooses to ban a book it has to provide reasons and is subject to challenge, but when Penguin chooses to kill its own books beyond the pale of the law it amounts to an extra judicial killing of books and authors.
7. On the basis of your actions in the present instance as well as your complicity with the censorial instincts of the state as well as non state actors, my clients would like to put you on notice for the following. Violation of Freedom of Speech and Expression.
8. That YOU NOTICEE by withdrawing the book on the basis of a private agreement have seriously erred in your understanding of freedom of speech and expression as well as the role of publishers as participants in the world of ideas. It would help to refresh your memory about a case called Regina v. Penguin which was fought in 1960 over restrictive standards of obscenity and morality. It was YOU NOTICEE who published D.H.Lawrence's Lady Chatterly's Lover and defended it legally, intellectually and morally. The judgment in this case helped redefine and extend permissible freedoms in the world of letters.
9. That since YOU NOTICEE seem to be suffering from temporary amnesia about a small little doctrine called free speech that still exists in the Indian constitution, my clients would like to educate you about the following. The right of free speech and expression includes the right to receive and impart information. The Supreme Court of India has held that to ensure the free speech right of the citizens of this country, it is necessary that the citizens have the benefit of plurality of views and a range of opinions on all public issues. A successful democracy posits an 'aware' citizenry. Diversity of opinions, views, ideas and ideologies is essential to enable the citizens to arrive at informed judgment on all issues touching them. Secretary, Ministry of I & B vs. Cricket Association of BengalAIR 1995AIR SC 1236
10. That YOU NOTICEE have mistakenly assumed that because you own the right to publish the manuscript it also gives you the right to abrogate the right to free speech at your convenience. If YOU NOTICEE were in the business of manufacturing soaps it would matter very little if you chose to discontinue the manufacture a particular brand of soap at your will despite a public demand for the same. However as a publisher your business is imbued with a public interest that extends beyond your private interest. My clients bring to your attention a case in which the courts held that "there is no compulsion to construct a cinema theatre, but by undertaking to construct a theatre to exhibit cinematograph films therein, the owner created a right in the cine going public, to have an easy access to the theatre. Thereby the private properly of the owner is effected with public interest. It, thereby, ceases to be juris private and is clothed with public interest. When used in a manner detrimental to public interest or welfare it would effect the community at large. By using the owner's property as theatre he/it submits himself or itself to the regulations for common good. The public acquire, thereby, direct and positive interest in exhibition of cinematograph films". Deepak Theatre v. State of Punjab, AIR 1992 SC 1519
11. Being accountable as a public player, you are bound by the highest legal and moral obligation especially when your actions impinge on the right of a citizen to know.The Supreme Court has held "The people of this country have a right to know every public act, everything, that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. The right to know, which is derived from the concept of freedom of speech, thoughnot absolute, is a factor which should make one wary, when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security."State of UP v. Raj Narayan, (1975) 4 SCC 428
12. It has further been held by the Supreme Court that the media industry occupies a special place in public life and "the print media, the radio and the tiny screen play the role of public educators, so vital to the growth of a healthy democracy. Freedom to air one's view is the life line of any democratic institution and any attempt to stifle, suffocate or gag this right would sound a death-knell to democracy and would help usher in autocracy or dictatorship. (...) Therefore, in any set up, more so in a democratic set up like ours, dissemination of news and views for popular consumption is a must and any attempt to deny the same must be frowned upon unless it falls within the mischief of Article 19(2) of the Constitution." Life Insurance Corpn. Of India vs. Prof.Manubhai D. Shah AIR 1993 SC 171
13. That YOU NOTICEE have benefitted from the publication of Wendy Doniger's "The Hindus" as evidenced by the fact that the book has sold very well and even gone into multiple print runs in the last four years. The fact that Wendy Doniger is a full time academic paid by a university enables her to write books which are then made available to YOU NOTICEE without any costs incurred on the research or labour and the only payment made to the author is a small royalty payment based on the sales of the book. When authors assign or license their rights to you they do so as a matter of trust that you will take it upon yourself to protect their interests as you would your own
14. My clients have also taken note of your press statement in which you allege that Sec.295A of the Indian penal Code is choking free speech and making it difficult for publishers to continue with their work. While my clients are sympathetic and agree that we need to reform the laws we would like to assert that the only way in which that can happen is for publishers like yourself to take the legal battle to its logical end. Unlike an individual blogger who may not have the legal resources or bandwidth to be able to withstand harassment it is incumbent on publishers like yourself to set the highest standards as defenders of free speech.
Violation of the Rights of the Readers
15. That YOU NOTICEE are in serious breach of the rights of readers. The right to read has been recognized as a fundamental right. The right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings. Francis Coralie Mullin vs The Administrator, Union. AIR 1981 SC 746
16. That YOU NOTICEE are discriminating between different readers by conveniently choosing to acknowledge the claims and allegations of one particular class of readers who claim that their religious sentiments have been hurt by this book while ignoring the rights of many others who have found the book to be informative, enjoyable and insightful.My clients as ordinary readersrepresentthe passion, curiosity and interest of millions of readers who may not fit in within a narrow understanding of a religious community but nonetheless see themselves as the true inheritors of the epithet 'Ahl al-Kitab' or people of the book. YOU NOTICEE have gravely offended and hurt the sensibilities of my client and of the community of readers for whom the universe is a library which shapes their imaginative and moral life and your actions constitute a moral injury against all readers.
17. My clients as readers believes that the ability to read any book, undisturbed by busybodies, is a sacred right and while others may choose to disagree with the book they are free to register their protest in any constitutional manner without disturbing my clients right to be left alone with their books.
18. That even if you have failed to understand your legal obligation, as people involved in literary matters YOU NOTICEE may understand a few lessons from literary theory. Roland Barthes distinguished between readerly and writerly texts and if the reader is not a passive consumer of the meanings of a text but an active producer of meaning, then the reader acquires rights and interest in the text beyond the formal private contractual arrangements between publisher and author. Submission to threats creates a chilling effect
19. That it is incumbent on YOU NOTICEE as one of the most powerful publishing houses in the world to challenge unlawful demands for the banning of a book and if you fail to do so you legitimate illegal forms of censorship which could have a serious chilling effect on speech and particularly on smaller publishers. The Supreme Court has in the past alerted us to the dangers of using suppression as a political policy (GajananVisheshwarBirjur v. Union of India, 994 (72) E.L.T.788 (S.C.) and argued that freedom of expression which is legitimate and constitutionally protected, cannot be held to ransom, by an intolerant group of people". The courts have also recognized that the judicial process can be a means of harassment (Punjab National Bank v. Surendra Prasad Sinha, 1993 Supp (1) 5CC 499, and that is clearly the case in the present instance when miscellaneous busybodies have filed complaints and a civil suit against the author and YOU NOTICEE. However in a matter which concerns the rights of readers and the public, this is no longer a private affair and by consenting to withdraw the book you also foreclose the possibility of the public to participate in the litigation entirely.
20. My client would like to bring to your attention that even if you do not act from a sense of public interest it might be worth considering that the greatest threat in the long run of your actions will be on your private interests namely book publishing. If the example set by YOU NOTICEE is followed by everyone else, there will be very little left to publish since it is difficult to imagine any book which does not potentially upset, outrage or hurt one community or the other. If we were to ban all books that offends our delicate sentiments, then we would be left with precious little (all comedies would certainly have to go) and you would have to seriously consider an alternative business- perhaps printing happily safe greeting anniversary cards.
21. My client would also like to alert your attention to the sentiments expressed in a book published by YOU NOTICEE as a 'Penguin Classic'. Vladimir Nabokov's 'Invitation to a Beheading' warns of a situation where censorship which begins with the banning of books ends up as a poisonous vine which threatens an entire ecology of thought. He says "It is desirable that the inmate should not have dreams at all, or if he does, should immediately himself suppress nocturnal dreams whose context might be incompatible with the condition and status of the prisoner, such as: resplendent landscapes, outings with friends, family dinners, as well as sexual intercourse with persons who in real life and in the waking state would not suffer said individual to come near, which individual will therefore be considered by the law to be guilty of rape." My clients charge YOU NOTICEE of trampling not just on the rights of free speech but on violating the right to interiority that books guarantee us. To quote the author William Gass "When we deny to others their interior life, we deny ourselves all knowledge of it. We are unaware of what, unhindered, they would choose to do, how they presently feel, the strength of their resolve, what may in consequence ensue". This is a perspective that is also reflected in the opinion of courts and in the Hussain case the Delhi high court alert us to the danger of intolerance in a democracy like India. According to the courts "In a free democratic society tolerance is vital especially in large and complex societies comprising people with varied beliefs and interests. An intolerant society does not brook dissent". M.F. Hussain v. Raj Kumar Pandey, http://indiankanoon.org/doc/1191397/
22. In the same judgment, the Delhi high court continues "There might be people who may actually get offended by those of Hussain's paintings or others but the right course of action for them, is to simply shrug it off or protest peacefully. In my considered view, criticism of art may be there. Rather, there are many other more appropriate avenues and fora for expression of differences of opinion within a civil society. But criminal Justice system ought not to be invoked as a convenient recourse to ventilate any and all objections to an artistic work. It should not be used as a mere tool in the hands of unscrupulous masters which in the process can cause serious violations of the rights of the people especially taking into consideration the people in the creative fields. Such a pernicious trend represents a growing intolerance and divisiveness within the society which pose a threat to the democratic fabric of our nation".
23. In the notice sent to YOU NOTICEE the miscellaneous busy bodies have claimed that the book has violated various penal provisions including Sections 153, 153A, 295A, 298 and 505 of the Indian Penal Code. They have also claimed that the book has the effect of provoking potential violence an 'inducing the commission of offences against the state and against public tranquility'. My client would like to understand if you had sought legal advice before agreeing to withdraw the book because if you had, you would have perhaps have realized that merely alleging that you are in violation of any of these provisions or that a book would result in inciting hatred against a community or inciting violence, is inadequate and the law has set standards of proof to show a direct causal link which just does not exist in the present case. Any anticipated danger arising from the exercise of free speech should not be remote, conjectural or far-fetched. It should have proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interest
24. By agreeing to the ridiculous terms set in the private contract between YOU NOTICEE and the miscellaneous busybodies you render hard won rights - the right to criticize, the right to dissent and the right to offend- vacuous. If YOU NOTICEE were so concerned about upsetting people, you should perhaps have gently refused the manuscript when it was sent to you. But by undertaking to publish the book (presumably after many editorial discussions) you implicitly take up the responsibility not just of printing and circulating the book by virtue of ownership, but you also of owning up to the book and its content. My clients do not believe that The Hindus is either a malicious or a mischievous book intended to hurt the sentiments of any community. At any rate YOU NOTICEE should be aware that the courts of this country in determining how we determine whether someone has been hurt have laid down that the test is not that of a person on a short fuse but a reasonable person.
25. It may indeed be the case that any book published by YOU NOTICEE runs the risk of upsetting someone, but the law reminds us that mere discomfort or irritation cannot be a ground to curb the artistic or scholarly freedom. By entering into a private contract of this kind YOU NOTICEE are encouraging the use of legal and extra legal threats as the basis of curbing dissent. Perhaps NOTICEE would do well to learn from the courts who have recognized that "These days unfortunately some people seem to be perpetually on a short fuse, and are willing to protest often violently, about anything under the sun on the ground that a book or painting or film etc. has "hurt the sentiments" of their community. These dangerous tendencies must be curbed. We are one nation and must respect each other and should have tolerance."HimsaVirodhakSangh v. MirzapurMotiKureshJamat&Ors. JT 2008 (3) SC 421 Our courts have also eloquently stated that the right to dissent is the hallmark of a democracy. In real democracy the dissenter must feel at home and ought not to be nervously looking over his shoulder fearing captivity or bodily harm or economic and social sanctions for his unconventional or critical views. By acting in the manner that you have done YOU NOTICEE are hereby guilty of displacing dissenters from the comforts of their legal and moral home - a space that some call democracy.
26. By responding in the manner that you have, YOU NOTICEE have effectively legitimsed the use of penal provisions by bullies to silence writers and artists. The structure of penal provisions for hate speech laws privilege subjective feeling of hurt or outrage that someone may feel about an expressive or artistic statement and enables the person, like the proverbial spoilt brat to run to daddy (in this case the police), to complain. It matters very little that the brat may have over reacted or was even making a complaint out of maliciousness. It is the contention of my clients that in these confusing times of social media and immediate communication YOU NOTICEE have lost track of what it means to be a publisher and would like to remind you that being a publisher is a public responsibility which puts you in a position of incredible power - since you are the intermediary of freedom of thought -and even a child watching Spiderman would be able to tell you that with great power comes great responsibility. To revert to the words of WillamGass again "And if we are free to express ourselves, we are bound to give offense: a joke, a gesture, a point of view, a choice of words, a jeer. Some tyrannies are made of toes. And if you move you'll step on twenty. Yet who is really hurt by boorish behavior but the boor? No, the tyranny of the one, the few, the many: each must be opposed, as must be resisted all brutal, all subtle, all soft, all comfortable, all easy and agreeable suppressions of the self". It is perhaps time that YOU NOTICEE took a little time off to reflect on your legal and moral obligations and maybe in the time off take a few dance lessons recognizing that even the greatest dancers will have to occasionally step on the toes of tyrants
27. And to aid these reflections on this significant date of the 14th of February, my clients suggest that, YOU NOTICEE may start with the concluding words of the preface of the very book which YOU NOTICEE have decided to pulp, wherein Wendy Doniger justifies her scholarly exegesis of the Hindu texts and philosophical traditions on the grounds of love. She notes that, "...I intend to go on celebrating the diversity and pluralism, not to mention the worldly wisdom and sensuality, of the Hindus that I have loved for about fifty years now and still counting." Her passionate embrace of the Hindu texts indeed adheres to the fundamental meaning of philosophy itself - which YOU NOTICEE may, or may not, know is a compound word from the ancient Greek, literally meaning "love (philo) of wisdom (sophia)". It is a truism held by all sensible persons that in order to love something requires that first we know it. In their demand that this book be withdrawn from the public Sri Dinanath and other busybodies etcetera's are in fact doing untold harm to our capacity to love these texts by taking away the wisdom through which we may know them. Rather than fighting for our right to love, by upholding the right to read on which the right to love depends, YOU NOTICEE have joined hands with enemies of love an wisdom everywhere by separating readers from the objects of their passion and affections.
28. Accordingly my clients demand that YOU NOTICEE rescind on the contract that you have entered into with miscellaneous busybodies and immediately commence the publication of Wendy Doniger's "The Hindus: An Alternative history" and leave the messy act of pulping to those better suited for it -juicers and grinders.
29. That in the event you choose to betray our sanguinity about your judgment by abandoning your Penguinity then you have effectively acknowledged that you are no longer interested in exercising your rights as the owners of the copyright in the said work and that you shall license the said work under a general public license which will enable any person to copy, reproduce and circulate whether in print or electronically within the territory of India without the risk of infringing your copyright or hurting your sentiments.
30. My clients understand that under normal circumstances if a publisher chooses to relinquish rights assigned to them by an author such rights revert back to reading public and as such it is only fair that you return to the public what you have taken away from it- the right to read and dissent.
Kindly note that if you do not comply with the demand of my client within clear 7 days of the receipt / first tender of this legal notice, we shall deem that you have consented to grant a general public license for the publication of the book. We also reserve the right to take any other necessary legal action to give effect to our reasonable demand Kindly take notice.
Copy of this notice is retained in our records for further action if required.
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