There is a certain caution built into the publishing system. Call it prudence, call it cowardice or just plain pragmatism. When a publisher signs a contract with an author, the possibility of plagiarism, libel, defamation, obscenity, are all flagged as potential causes of breach of contract. Long discussions can follow on the indemnity clause, which fixes responsibility on the author and ensures that if the book ends up in litigation of any sort, the author will have to fight the case all the way through, alongside the publisher. But events don’t always unfold this way, as we saw in the Wendy Doniger case, where a book was withdrawn even before the matter reached the courts.
Most publishers will run content past a lawyer when it treads overtly political territory or mentions names in contexts that may be read as grounds for defamation. I remember changing the reference to a specific company known to be involved in dubious business dealings to “a group based in Delhi” in a book we published earlier this year. My colleagues in the art department have spent several hours pixellating penises in a graphic novel and masking other potentially “offensive” body parts on the basis of legal advice and to general hilarity in the office. Yet, none of this is a guarantee of safety because the laws, far from being clear on the subject of what can cause offence, encourage multiple interpretations, the full range of which no lawyer or publishing house could possibly anticipate. As a result, we often sought legal advice and then set it aside because it seemed to defeat common sense.
In mid 2011, we were hit by a controversy that in some ways exemplifies the situation. Great Soul: Mahatma Gandhi and His Struggle with India, by Joseph Lelyveld, was about to go to press when the Daily Mail in the UK did an early review that highlighted an alleged reference in the book to Gandhi as homosexual. The first reaction in India came in the form of a ban by Gujarat chief minister Narendra Modi—not that he or his advisers had read a word of the book. The central government was quick to follow, though it hurriedly withdrew its “condemnation” when it became clear that there was no public support for the ban, not even from Gandhi’s own family.
What gave us the courage to go ahead with printing and distributing the book then was, one, the reassurance of friends and friends-of-friends whom we called for advice—historian Ramachandra Guha, journalist Aniruddha Bahal and lawyer Prashant Bhushan; two, the understanding that there were enough legal precedents in our support; three, knowing that in this era of online retail and e-books, it would be near impossible for such an arbitrary ban to be upheld in practice; four, the assumption, which proved right, that the loony fringe would be uninterested in fighting a battle unlikely to fetch quick communal or caste dividends. And so it happened. We ended up selling three times the numbers we had hoped for pre-ban, and although retailers in Gujarat did not stock copies of the book, anybody who wished to read it could get their hands on it quite easily.
Has anything changed in the recent past to make things different, more difficult, perhaps, for writers and publishers? Yes and no. There is a greater awareness of the law, its loopholes and its policing, which makes publishers reluctant to bypass legal advice. At the same time, both writers and publishers have become careful to the point of self-censorship, crossing out what might cause offence to an individual or a community, at least to the best of their understanding. The argument in favour of such action is not indefensible: would you rather have the book out in some form and read than not give it a chance at all? If the joke earlier was about attracting a ban to drive sales, now there is a very real fear that even a controversy not backed by law could spell the death of a book. In the case of James Laine’s book Shivaji, for instance, the Supreme Court in 2010 may have struck down the ban on the book, but the fact remained that there was a great reluctance, especially in Mumbai, to display the book visibly. In the week the ban was lifted, a bookseller told me that he had received several phone calls from the local police station, ostensibly checking on the availability of the book. “When he asked if he could get a copy, the policeman was actually telling me, there had better not be one on sale,” he said.