Devangshu Datta: A history of censorship in India

VIEWPOINT

In 1988, the home ministry cited the concerns of various religious forums to justify demands for a ban on Salman Rushdie's novel The Satanic Verses (TSV) on the grounds that it could cause public unrest. The ban was granted, despite the concerns of the author, the publisher and civil rights groups about censorship and freedom of speech, on the grounds of "avoiding communal tension". The ban continues to be in force.

TSV caused a global furore but it is only one of hundreds of books and periodicals that have been banned at various times by the Indian authorities. Sadly, the constitutional protection of the Freedom of Expression (Article 19) is hedged with all sorts of caveats about being "subject to reasonable restriction""in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence", etc.

The gobbledygook means that if a government agency (or an individual) believes that these "reasonable restrictions" apply to a specific case, it can appeal for a suspension of the Freedom of Expression. If the court is convinced, the publication in question may be banned. In each case, the author and publisher have the right to appeal against the ban. Due process is always followed.

Every banned book and periodical is notified under the Customs Act, 1962, and listed in the Customs Law Manual. You can look up each case for details of the legal processes involved. In every instance, a state government or central government agency or less often, a private individual, approached a court and made a representation, stating the reasons why a ban was desirable.

Quite often, the right to appeal against a ban has been successfully exercised. For example, Khushwant Singh's novel The Company of Women survived a challenge in the Madras High Court when a private citizen filed a PIL stating that he was offended by a raunchy encounter between an Indian man and a Pakistani woman that included the immortal line "Pakistan must be on top!" The court threw it out after consulting the home ministry, saying that it trusted to the "Good Sense of readers", though subsequent editions were revised to omit the scene.

Again, in 2005, the Calcutta High Court lifted a ban imposed by the government of West Bengal on Taslima Nasreen's Dwikhondita, observing this was "unjustified" and "untenable". And, The God of Small Things survived two challenges in Kerala, one on grounds of obscenity, the other for making derogatory references to the EMS government of 1959.

However, when it came to the Internet, the GoI appears to have quietly shelved its commitment to due process. To put it in a nutshell, under the IT Act, 2000, bans and blocks on websites can be asked for by a string of listed government departments on roughly the same grounds as bans on printed material.

However, there is no need to go to court. The Computer Emergency Response Team (CERT) of the department of telecommunications receives the request, processes it and informs all Internet Service Providers. A CERT order blocking a website is sufficient to keep it out of Indian cyberspace.

The list of blocked sites is not made public; the name of the organisation asking for the ban is not made public; the grounds are not made public; there is no right to redress; there is no process of appeal. Even the Saudis are more transparent.

Is the CERT competent at this task? Not on its track record. For the past week, it has blocked access to millions of websites apparently because somebody (we don't know who) was offended by the diary of a US republican supporter (exposingtheleft.blogspot.com) and the 2004 journal of a teenaged virgin (princesskimberly.blogspot.com). It has attempted to obfuscate the issue by making vague references to national security, which are quite as ludicrous as the blocks themselves.

Is this constitutional? You tell me!