Dr. Shashi Tharoor, introduced in the Lok Sabha — The Freedom of Literature Bill, 2018: This Bill removes the anti-blasphemy law (S. 295A & 298 of the IPC) and removes the criminalization of spreading ‘prurient literature.’ It also substantially curbs the power of the Government to ban books.

Here's an explanatory note from his office, explaining it in totality.

FREEDOM OF LITERATURE BILL, 2018





PURPOSE:

The purpose of the Bill is to amend and remove provisions of the law which can be misused to harass authors, by vested interests. The laws listed below are widely worded and can be used to subject authors to a long drawn legal battle, the cost involved in the process alone is enough to deter authors. Therefore, the Bill reviews and revises some of these provisions to restrict their scope.









1. BLASPHEMY LAWS

The text of the section 295A of the IPC reads as follows:





“ 295A. Deliberate and malicious acts, intended to outrage religious feelings or 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, 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.”

This provision of law raises a serious question, if a person deliberately hurts religious sentiments by criticising a faith, must such individual face criminal prosecution by the State. In a theonomous legal system, where the law of the land is assumed to have divine sanction, is one in which the recognition of intentionally outraging religious sentiments as a criminal offence would be tenable. However, the Constitution of India envisages a democratic society where autonomy is given to the citizens, enshrined through the freedom of speech and expression.





The Supreme Court however upheld the validity of Section 295A in Ramji Lal Modi vs The State of U.P. (AIR 1957 SC 620), by pointing out that only deliberate and malicious acts are covered by this section. However, to determine whether religious feelings have been outraged, one must go by the sentiments of the religious class. Thus, any criticism of a highly revered figure can also ‘outrage’ such devotee. Such criticism may not be borne out of any unwitting remark but maybe due to an intentional criticism of such figure.

malicious’ intention in Section 295-A refers to. The Karnataka High Court in State of Mysore v. Henry Rodrigues (1962 CriLJ 564) held that in order to establish malice, it was not required to show any form of ill will or hatred towards the religious community. If any statement or an injurious act was made without any lawful excuse, then malice can be inferred. Section 295-A of the IPC once again came into the limelight in the Wendy Doniger controversy. Wendy Doniger, a famed Indologist, had authored the ‘The Hindus: An Alternative History’ (Doniger, 2009) which was published by Penguin publishers.

The book was a detailed discussion on the Hindu faith, which went into an analytical discussion on the behaviour of Hindu gods in a controversial manner. For instance, the book discusses Ram’s decision to banish Sita because people doubted her chastity and how a god wanted the abortion of a child after ‘raping’ the worshipper though abortion is a mortal sin according to the Dharmic texts. This led to a major furore among Hindu right-wing organisations in India led by Dinanath Batra, who threatened to use Section 295-A against the publisher. Penguin buckled under the pressure and pulped all copies of Doniger’s book in India and issued a statement stating that the wide reach of Section 295-A of the IPC makes it difficult for them to fight a legal battle and that such a law is a concern for the defence of fundamental rights. It is also ambiguous as to what ‘’ intention in Section 295-A refers to. The Karnataka High Court in State of Mysore v. Henry Rodrigues (1962 CriLJ 564) held that in order to establish malice, it was not required to show any form of ill will or hatred towards the religious community. If any statement or an injurious act was made without any lawful excuse, then malice can be inferred. Section 295-A of the IPC once again came into the limelight in the Wendy Doniger controversy. Wendy Doniger, a famed Indologist, had authored the ‘’ (Doniger, 2009) which was published by Penguin publishers.The book was a detailed discussion on the Hindu faith, which went into an analytical discussion on the behaviour of Hindu gods in a controversial manner. For instance, the book discusses Ram’s decision to banish Sita because people doubted her chastity and how a god wanted the abortion of a child after ‘’ the worshipper though abortion is a mortal sin according to the Dharmic texts. This led to a major furore among Hindu right-wing organisations in India led by Dinanath Batra, who threatened to use Section 295-A against the publisher. Penguin buckled under the pressure and pulped all copies of Doniger’s book in India and issued a statement stating that the wide reach of Section 295-A of the IPC makes it difficult for them to fight a legal battle and that such a law is a concern for the defence of fundamental rights.





Therefore, the Bill deletes S.295A of the IPC. Provisions such as S.153A already exist, to criminalize attempts to cause communal divisions within society.





Section 298 of the IPC reads as follows:





“298. Uttering, words, etc., with deliberate intent to wound the religious feelings of any person.—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.”





This section is similar to S.295A, it criminalizes speech which may be critical of religious organizations or religious figures, and therefore a major deterrent to free expression in India.

2. OBSCENITY LAWS

Numerous laws in India penalize obscene content, and is often used to target publications or literature, which may contain sexual expressions and description of nudity. The main laws provide the basis for criminalization of obscenity are-





a) Section 292 of the IPC which criminalizes the sale and distribution of obscene books, writings, paintings etc. As per this section, something is considered to be obscene if it “is lascivious or appeals to the prurient interest or if its effect, or (where it comprises two or more distinct items) the effect of any one of its items, is, if taken as a whole, such as to tend to deprave and corrupt person, who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.”





b) Section 293 of the IPC, which criminalizes the sale or distribution of any obscene thing to anyone below the age of twenty years.





c) Section 67 of the IT Act, 2000 which criminalizes the electronic transmission of “any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons”





d) The Indecent Representation of Women (Prohibition) Act, 1986 criminalizes any indecent representation of women, which means “the depiction in any manner of the figure of a woman, her form or body or any part thereof in such a way as to have the effect of being indecent, or derogatory to, or denigrating, women, or is likely to deprave, corrupt or injure the public morality or morals”

November 1960: Two women outside a book shop in London, with paperback copies of 'Lady Chatterley's Lover' by D H Lawrence, after a jury at the Old Bailey decided that it was not obscene. [courtesy TIME]



The laws on obscenity seek to promote public decency and morality, a feature of a paternalistic State which prescribes the terms of individual conduct and imposes social norms of the majority and orthodoxy. It is not in consonance with a liberal State, which allows the flow of free speech, including works which may be considered as “prurient” or “obscene” for others. Books such as “Lady Chatterley's Lover" was banned due to obscenity laws. The laws on obscenity seek to promote public decency and morality, a feature of a paternalistic State which prescribes the terms of individual conduct and imposes social norms of the majority and orthodoxy. It is not in consonance with a liberal State, which allows the flow of free speech, including works which may be considered as “” or “” for others. Books such as “" was banned due to obscenity laws.





community standards test’, which was adopted by the Supreme Court in Aveek Sarkar v State of West Bengal . As per the test, for something to be obscene it ‘should be suggestive of deprave mind (sic) and designed to excite sexual passion in persons who are likely to see it, which will depend on the particular posture and the background in which the nude/semi-nude woman is depicted . Only those sex-related materials which have a tendency of “exciting lustful thoughts” can be held to be obscene, but the obscenity has to be judged from the point of view of an average person, by applying contemporary community standards.’ The test for whether something amounts to obscenity is the ‘’, which was adopted by the Supreme Court in. As per the test, for something to be obscene it ‘





However, the Courts have failed to explain why the arousal of sexual feelings due to some book or painting is a criminal act. This is a classic case of morals being imposed on the citizens through the rigours of criminal law. The wide ambit of obscenity laws act as a major deterrent to literary freedom in the country.





It must be noted that Section 292 of the IPC exempts works of literature from its ambit, however, it is left to the discretion of the judge as to whether some work is indeed in the interest of literature and if it is justified as having some ‘public good.’ Wide discretion to the Courts is not a procedural safeguard against misuse, as judges apply their personal prejudices while determining such questions. It is also exhausting for an author to get drawn into a legal battle, and to prove that his or her work is for the ‘public good.’





Therefore, the Bill deletes Section 292 of the IPC. Section 293 deals with distribution of obscene things to persons below the age of 20 years. This section still has a functional purpose, since children may not be mature enough to deal with ‘obscene’ literature. Therefore, Section 293 is amended to state that the sale of obscene objects to a child i.e. a person below the age of 18 years, is a criminal offence.





Similarly, Section 67 of the IT is amended by the Bill to criminalize the transmission of obscene matters to anyone who does not consent to receive such things. It should not criminalize mere transmission of literature or pictures, which society may consider as prurient or ‘corrupt.’ Section 67 at the same time is amended to include child pornography in its ambit for punishment, as the distribution of child porn has no legal justification since children cannot consent to engage in sexual activities.





The Indecent Representation of Women (Prohibition) Act, 1986 is also amended by the Bill to state that indecent representation is any depiction which is derogatory to women, i.e. encouraging misogyny or discrimination. The obscenity element is removed from the definition.





3. CUSTOMS ACT

Section 11 of the Customs Act, 1962 empowers the Central Government to ban the import of any good, including books. This section was used to impose a ban on the import of Salman Rushdie’s book ‘Satanic Verses.’ The exercise of such powers to ban books from other countries, is a violation of a citizen’s right to receive and consume literature of his or her choice.





Therefore, the Bill amends this section to state that the import of a book cannot banned, barring exceptional circumstances where the distribution of the book is likely to lead to a break down in public order despite the State taking all reasonable measures to prevent the same. Public disorder is a higher threshold than the break down of ‘law and order’ as noted by various judicial precedents. The break down of public order is an aggravated form of the break down of law and order. The higher threshold should weed out any use of this law to stop books based on political considerations.





4. PROCEDURE TO BAN BOOKS

appears” to be in violation of the law, not necessarily an actual violation, it can exercise this power without seeking the confirmation of the Court that such violation exists. Section 96 CrPc allows the author to file an appeal, however, by leaving it to the publisher or author to enter into a legal process to life the ban is time consuming and has a deterrence effect on such authors. As constitutional scholar Gautam Bhatia has pointed out “ Under Section 95 of the CrPc, the State Government can ban and forfeit a book, if it appears to be in violation of S.153A, 153B (causing communal divisions), S. 292 (obscenity law), S. 295A (anti-blasphemy law), S. 124A (sedition). The Government can thus ban a book, if it “” to be in violation of the law, not necessarily an actual violation, it can exercise this power without seeking the confirmation of the Court that such violation exists. Section 96 CrPc allows the author to file an appeal, however, by leaving it to the publisher or author to enter into a legal process to life the ban is time consuming and has a deterrence effect on such authors. As constitutional scholar Gautam Bhatia has pointed out “ Section 95 ensures that the economic burden of a ban falls upon the writer or the publisher, who must approach the court. It also ensures that while the court deliberates and decides the matter, the default position remains that of the ban, ensuring that the publication cannot enter the marketplace of ideas during the course of the (often prolonged and protracted) legal proceedings.





In order to remove this burden on authors, the Bill shifts the burden on the Government. Therefore, under the Bill, the Government can temporarily suspend the distribution and circulation of a book for a period of 30 days, and within 15 days of suspending the book, the Government must go to the High Court to file a petition to seek a permanent ban on the book. The High Court is given a time limit of 3 months to determine whether or not the book should be banned. The grounds for banning the book has also been severely restricted by the Bill. The provisions relating to obscenity and blasphemy have been dropped from the list of grounds to allow a ban.





This new procedure will be useful to weed out frivolous cases in a time bound manner, and at the same time gives enough leeway to the Government to suspend books which constitute hate literature, in order to prevent the outbreak of communal violence.