Book bans, copyright & the freedom of expression

Often, we come across news that a particular book has been banned by the Government. Similar incidents are witnessed with other copyrightable works as well, such as movies, songs, paintings, etc. Movies are stopped from being released or are even taken down from the theatres sometimes, sets are destroyed and artists are given threat calls. Authors, artists and other content creators face the hurdle of ban or censorship more often than we even realize. While it does not even come to the notice of a majority of the population; these practices affect the stakeholders, including each and every individual who contributes to the creation of such a work, a great deal.

To give the readers a brief background, any form of expression which is produced in any fixed medium is governed by the Copyright Act, 1957 (hereinafter, “the Act”). However, unlike the Trade Marks Act, 1999, that contains a provision referring to hurting religious sentiments and scandalous or obscene matters as absolute grounds for refusal for trademark registration, the Act does not expressly provide a way for any such restriction on the copyrightability of any work.

Section 13 of the Act lays down the criteria for works in which copyright subsists that does not require the content to be lawful. The only requirement mentioned therein is that the work must be original. However, through various judgments, courts have made it clear that a modicum of creativity is also required for any work to be original. Further, Chapter XIII of the Act lists down various offences under the Act that does not include “creation of any work”to be an offence if its content is “unlawful”.

In addition to these provisions, while the primary purpose of the Act is to provide monopoly rights to the author of any work over his creation, the law equally balances the right to freedom of expression guaranteed by the Indian Constitution through Section 52(1)(a). Therefore, the freedom of expression has never been undermined under the cover of the Copyright Law. Now, we understand that Article 19(1)(a) is not unconditional and that one cannot claim to enjoy one’s freedom by denying freedom to others. This right is subject to “reasonable restrictions” provided under Article 19(2) of the Constitution and, therefore, it is crucial to determine the line that demarcates what is covered under the fundamental right to freedom of expression and what may be prohibited as a “reasonable restriction” on an individual’s freedom of expression.

Though the copyright law does not prohibit the creation of any work based on quality or content, the contrary has been seen many times- books are banned, criminal cases are filed upon writers, etc. The law that authorizes the Government to do so is provided under Section 95 of the Code of Criminal Procedure, 1976 (hereinafter, “the Code”).

Section 95 of the Code provides that if any printed newspaper, book or document including any painting, drawing or photograph appears to the State Government that its publication is punishable under IPC amounting to an act of sedition, obscenity, anything prejudicial to national integration, or promotes communal enmity on different grounds of religion, language, etc. or outrages religious feelings by insulting someone’s religious beliefs by deliberate and malicious act, it may declare such work to be forfeited. Further, Section 96 of the Code provides that if anyone having an interest in such a work is aggrieved from such a forfeiture, he may apply to the High Court to set aside such declaration on the ground that the work in question did not contain such matter.

The reason why having such a provision is problematic is mainly two-fold. Firstly, the State Government is having an absolute power to curtail the freedom of expression in the name of “reasonable restrictions”. Their power is absolute because Section 95 does not require them to prove how the given provisions of IPC has been violated, and if it merely “appears” to them that any provision is violated, they may make a declaration of forfeiture. Though while declaring such forfeiture, the State Government is required to state the grounds, the same cannot be questioned before the ban is imposed and may be done only afterwards by applying to the High Court, which indeed is a long procedure. To make the situation worse, once the ban is imposed, it cannot be removed before the matter before the High Court is finally disposed of. This, almost every time, results in irreparable loss to the aggrieved party. Furthermore, most of the times, Government’s action is a result of political pressure or so-called ‘public outrage’ which is, in fact, their duty to control, in order to protect an individual’s right to freedom of expression including the right to dissent.

Secondly, it has often been seen that the Government abuses its power in such cases. While Section 95 limits the instances when a forfeiture may be declared, there have been many instances when the State Governments have gone beyond their power. For example, books have been banned at times only because it provided a humorous account of a person or system (The Heart of India by Alexander Campbell was banned nationwide because of its humorous account of Indian bureaucracy and economic policymaking, The Ramayana by Aubrey Menen was banned as it contained a light-hearted and funny version of the Indian mythological epic Ramayana).

While criticism of existing works has been expressly permitted under the Act, books have been banned several times because it contained harsh criticism of a public figure, a political party or a new government policy (e.g.-India Independent by Charles Bettelheim was banned for criticizing the policies of the Indian Governnemnt, etc.). Though criticism of any person, group or policy does not find any mention in the Act, through Section 52(1)(a), it suggests the intent of the lawmakers behind such a provision, i.e., to respect the freedom of expression of a person. Therefore, in my view, where the criticism of existing works is allowed as fair dealing, the provision must also be construed to allow individuals to criticize any person, group or policy as well.

It appears that India has not been very progressive in allowing publication or importation of books that deal with sensitive and controversial issues concerning religion, politics, business and economy. The same can be witnessed through many instances, e.g.- The True Furqan by Al Saffee & Al Mahdee was banned as it allegedly mocked Islam, Bhavsagar Granth which was written by around 30 authors under the direction of Baba Bhaniara was banned by the Punjab Government for hurting the religious feelings of Sikh community, What has religion done for mankind by Watchtower Bible and Tract Society was banned as it was claimed to refute Eastern religions, etc. These books are prohibited from being imported into India whereas they were well-received in other parts of the world. Such a Long Journey by Rohinton Mistry while it was shortlisted for the Booker Prize was dropped by the University of Mumbai from its English syllabus after Shiv Sena leader Bal Thackeray’s family alleged that it contained “derogatory” remarks about Maharashtrians. Lady Chatterley’s Lover which was banned on grounds of “obscenity” is still banned in India whereas the ban has been lifted long ago in many countries including Britain.

While we claim to be a diverse nation, the expressive voices of dissent are suppressed in the name of safeguarding public order, morality and decency. These major loopholes in the said provision along with its faulty execution have failed to protect the fundamental right to freedom of expression and therefore has been doing serious injustice for so long. Considering the lack of accountability, the power of the State Government must be limited. Further, Section 95 must be amended to restrict the IPC provisions so that writers feel free to express their views even on sensitive and controversial issues. Instead, major factual errors in account of a true incident is something which, in my opinion, should be considered as a ground upon which a ban may be put on any work but they must not be banned for containing mere dissent, criticism or humor. Also, the test for when a ban may be allowed must be stringent and properly executed. And if it appears that any particular expression may incite violence or disturb public order, morality or decency on any of the grounds mentioned under Section 95- the State must take active steps to protect the writers, artists and publishers instead of putting a blanket ban on their creations.