Arun Shourie’s essay titled “A few extracts from the book”. In this essay he has raised some of important questions that the Indian liberal should always remember.
“To assess the anger that the Gujarat government has worked up, ask three questions:
Is it just this book alone that asserts that mistakes by Congress leaders contributed to the outcome? Was that fact not acknowledged by the Congress leaders themselves?
When the book speaks of the vacillations, mistakes and compromises of the Congress leaders does it mean, “the vacillations, mistakes and compromises of the Congress leaders - excluding Sardar Patel”?
Manifestly not. So, is the author guilty of insulting Sardar Patel or not? Should the Gujarat government not, therefore, ban the book? And so, the final question:
Whose book are we talking about?
The book is The Tragedy of Partition by one of the longest-serving and most revered pillars of the RSS, H.V. Seshadri. It is the standard text of the RSS on the Partition. It is sold at every RSS bookshop, and read, its message is internalised, by every RSS swayam sevak.
Now that the Gujarat government knows the name of the author, two further questions:
Is there one passage in Jaswant Singh’s book, even one passage that casts the Sardar’s role into graver doubt than Seshadri’s book?
Is the Sardar’s reputation, in the view of those prancing about to shield it, so fragile that such references as there are in Jaswant Singh’s book or Seshadri’s will undermine it?
Nor is Seshadri’s book alone in documenting the lapses of the Congress leaders. Professor R.C. Majumdar nailed the lapses extensively in lectures that the Bharatiya Vidya Bhavan published. He nailed them in his three-volume study, History of the Freedom Movement in India. The lapses are nailed even more firmly in Struggle for Freedom, which forms Volume XI of the great series, The History and Culture of the People of India, ‘prepared under the direction of’, as the cover of each volume says, that other distinguished son of Gujarat, K.M. Munshi — one of the closest associates of the Sardar himself. And they are nailed — not as lapses, but as inexcusable blunders — in the work on the Partition of India of the greatest constitutional scholar we have had since Independence, H.M. Seervai.”
The most important essay is “The ban and the law” in which Arun Shourie discusses who the book is banned without specific reasons.
“The Indian Express (August 23, 2009) reported a senior official of the state’s home department as saying, “The legal department must have gone through the book. I have not read it.” “When contacted, state law secretary M.H. Shah also expressed ignorance about the reason for the ban,” the paper reported. But a ban nonetheless — The moving finger having writ…
But, lo and behold! In the notification banning the book, there is no reference to the Sardar at all! The notification declares, “the contents of the book are highly objectionable and against the national interest... the contents of the book are misleading to the public and are against the tranquility of the public and against the interests of the state” — hence the book is to be forfeited and its publication, display, sale and distribution “and any kind of its use” are prohibited.
The 669-page book was released in Delhi late in the evening on August 17. The ban was announced on the 18th by sojourners in Shimla. The notification by an undersecretary in Gandhinagar is dated August 19. Talk of speed-reading!
Apart from the fact that the ban was manifestly announced before the book was read, the question that arises is: Does a government in India have the right to ban a book because it finds its contents
“highly objectionable” — obviously in the present case in regard to facts, for no one is alleging that the contents are pornographic;
- “against the national interest”;
- “misleading to the public”;
- “against the tranquility of the public”; and
- “against the interests of the state.”
And can a government ban a book on these grounds without giving any particulars at all?
Most of the grounds that have been listed are so ridiculous that, even a moment’s consideration will show them up. The government of Gujarat thinks that the contents are ‘misleading to the public’? Were that to be a valid ground, the government of Gujarat would have had license to ban almost all newspapers since the post-Godhra riots as it has been deeply convinced that their contents have been grossly ‘misleading to the public’.
‘Against the interests of the state’? Consider a report that calls into question the claims on which a state government has attracted foreign investors. Were it to be circulated, investors would pack up and leave. The report, howsoever well researched, would be ‘against the interests of the state’, would it not? Hence, ban and prohibit and forfeit!
‘Against the national interest’? The lie to this is given by the fact that chief ministers of other states that are under the BJP itself have stated categorically that they are not going to ban the book. Are they oblivious of the national interest?
Gopal Vinayak Godse, the brother of Nathuram Godse, the assassin of Mahatma Gandhi, wrote a book. The theme of the book was that Gandhiji had been assassinated for his policy of appeasing the Muslims, which in turn had led to the Partition of India. The Delhi administration passed an order banning and forfeiting the book. The case came before the Bombay High Court. The judgement of the Court shows that it had no doubt at all about the import of the book: citing the book’s arguments and narrative, the Court noted that through these, the assassination had not just been explained, it had in a sense been ‘extolled’. Yet, the Court held in favour of Godse’s brother and, not only held the forfeiture to have been wholly unjustified, it decreed that the administration shall pay the costs of litigation to Godse.
These passages include Godse’s assertion to the effect that Pakistan had been given cash balances at Mahatma Gandhi’s instance, that men and women had been moved by Nathuram Godse’s deed, that they had offered great and spontaneous support to him and his relatives after the assassination, that Sardar Patel had opposed Gandhiji on the payment of cash balances and so on.
- “Pyarelal’s book bears out the petitioner in a large measure and in any event no charge can be made against him that in regard to the events surrounding the fact history has been distorted by him. It is also necessary to remember that if the claim of an author that he is an historian is not fully borne out, one cannot infer from that alone that the author had an oblique intention in straying from the strict path of history. Much less can one infer that such an oblique intention was of the nature mentioned in Section 153A of the Indian Penal Code.”
It repeatedly dismisses the pleas of the prosecution regarding several passages by affirming that sentences and passages cannot be torn out of context to make a fanciful charge stick. As the Court puts it: “A passage here or a passage there, a sentence here or a sentence there, a word similarly, may, if strained and torn out of context, supply inflammatory matter to a willing mind. But such a process is impermissible. We must read the book as a whole, we must not ignore the context of a passage and we must try and see what, reasonably, would be the reaction of the common reader?”
Another well-known case, M/s Varsha Publication Pvt. Ltd. vs State of Maharashtra, provides an even more exact. What the Court said in this case has a direct bearing on a book such as that of Jaswant Singh, a book that advances a thesis that is at variance with much of what we have been brought up to believe. The Court held,
- “We have already observed that the very purpose of writing the article is a sort of historical research and it is based on a number of reference books and other material. It is true that sometimes in a given case even a truthful account may come within the mischief of S. 153A. But this will be too broad a proposition. Different considerations will prevail when we are to consider a scholarly article on history and religion based upon research with the help of a number of reference books. It will be very difficult for the state to contend that a narration of history would promote violence, enmity or hatred. If such a convention is accepted, a day will come when that part of history which is unpalatable to a particular religion will have to be kept in cold storage on the pretext that the publication of such history would constitute an offence punishable under S. 153A of the IPC. We do not think that the scope of S. 153A can be enlarged to such an extent with a view to thwart history. For obvious reasons, history and historical events cannot be allowed to be looked upon as a secret on a specious plea that if the history is made known to a person who is interested to know the history, there is likelihood of someone else being hurt. Similarly, an article containing a historical research cannot be allowed to be thwarted on such a plea that the publication of such a material would be hit by S. 153A. Otherwise, the position will be very precarious. A nation will have to forget its own history and in due course the nation will have no history at all.”
Transpose these observations to Jaswant Singh’s book — the endnotes of which alone, listing sources and explanations for each observation and event, traverse sixty-seven pages. The Court continued,
- “This result cannot be said to have been intended by the Legislature when S. 153A of the IPC and S. 95 of the Cr. P.C. were enacted [exactly the two sections invoked in the Gujarat government’s notification!]. If anybody intends to extinguish the history (by prohibiting its publication) of the nation on the pretext of taking action under the above Section his act will have to be treated as a mala fide one.”
The Customs confiscated them, and banned their distribution, etc. The Supreme Court came down heavily on the Customs and its notification. It observed,
- “It would be seen immediately that the confiscation orders are totally bald and devoid of any findings in terms of Notification No. 77. The order does not say which of the books fall within the mischief of which clause of the notification. It is not as if the notification proscribes these books by name, i.e., by title. It only says that import of books containing matter of the nature mentioned therein is prohibited. The books imported are writings, speeches and works of Mao, besides the works of Marx, Engels and Lenin. If they were proposed to be confiscated, it was obligatory upon the authority to say which book contained words of the nature mentioned in the notification.”
How does the Gujarat government’s notification banning Jaswant Singh’s book stand against this requirement?
In Jaswant Singh’s case the notification banning the book has come without any inquiry, to say nothing of even the semblance of a show cause notice. In the case we are considering, a show cause had been issued. The Court came down on it for the same reason — it had nothing specific in it. The Supreme Court held,
The show-cause notices themselves are bald and drawn up in a casual manner. It must be remembered that the order of confiscation affects not only the fundamental right of the petitioner to carry on his occupation and business but also his fundamental right of freedom of speech and expression (including his freedom to propagate the thoughts and ideas which he thinks are in the best interest of this nation). In such a case, it was required of the officer to point out which book contains words, signs or visible representations which are likely to incite or encourage any person to resort to violence or sabotage for the purpose of overthrowing or undermining the Government established by law in India or in any State thereof or its authority in any area or that they attract any of the other clauses in Notification No. 77. Absence of such specification both in the show-cause notices and the final orders must be held to vitiate the action taken.”
And when, far from the show cause notice not recording any particulars, the notice itself has not been issued at all?
Nor was that all. What the Supreme Court went on to say has an even more direct bearing on what the Gujarat government has done. It held,
- “Before parting with this case, we must express our unhappiness with attempts at thought control in a democratic society like ours. Human history is witness to the fact that all evolution and all progress is because of power of thought and that every attempt at thought control is doomed to failure. An idea can never be killed. Suppression can never be a successful permanent policy. Any surface serenity it creates is a false one. It will erupt one day. Our Constitution permits a free trade, if we can use the expression, in ideas and ideologies. It guarantees freedom of thought and expression - the only limitation being a law in terms of clause (2) of Article 19 of the Constitution. Thought control is alien to our constitutional scheme?”
The court declared, “It is our firm belief, nay, a conviction which constitutes one of the basic values of a free society to which we are wedded under our Constitution that there must be freedom not only for the thought that we cherish, but also for the thought that we hate.” And this is not to be an abstract commitment. The Court held that the danger which is alleged to be liable to follow the dissemination of an idea must not be remote, conjectural or far-fetched; it must be proximate and it must have a direct nexus with what is being said or exhibited. To warrant restriction by the state, “The expression of thought should be intrinsically dangerous to the public interests. In other words, the expression should be inseparably locked up with the action contemplated like the equivalent of a ‘spark in a powder keg.’”
The Court concluded its judgment with words which apply in particular to the sort of circumstances which we are considering. It said:
- “Freedom of expression which is legitimate and constitutionally protected, cannot be held to ransom by an intolerant group of people. The fundamental freedom under Article 19(1)(a) can be reasonably restricted only for the purposes mentioned in Article 19(2) and the restriction must be justified on the anvil of necessity and not the quicksand of convenience or expediency. Open criticism of government policies and operations is not a ground for restricting expression. We must practice tolerance to the views of others. Intolerance is as much dangerous to democracy as to the person himself.”
