I am writing here as a publisher and as someone who has to deal with
injunctions against books on a regular basis. I wanted to use this
blog to think a little about how these injunctions work and what they
mean for us publishers.

In the last year at Penguin, I have encountered two injunctions
against our books. Of the two most of you will know about one.
Siddharth Deb’s The Beautiful and the Damned had a chapter on Arindam
Chaudhuri, the founder of the IIPM business school, which was
excerpted in Caravan. Chaudhuri put an injunction against it out of a
small court in Assam and we had to publish the book without the
chapter.

The second was a biography of Tamil Nadu CM, Jayalalitha called
Jayalalitha: A Portrait. Jayalalitha took out an injunction against it
after an excerpt had appeared in Outlook. The book has never been
published.

My hunch is that injunctions against books are more common in India
than UK or USA. (If anyone has data about this, I’d love to see it).
I called the lawyer Saikrishna this morning and asked why. Sai argues
that India’s legal framework and its stand on free speech are
identical to Britain, citing the famous Khushwant Singh vs Menaka
Gandhi case. In 1995 Singh had published his memoirs, Truth, Love and
a Little Malice (also by Penguin) which included descriptions of
Maneka’s relationship with her in laws. Gandhi slapped an injunction
against the book on grounds of defamation but in a landmark judgement,
the injunction was overruled. Sai has recently won a case against the
Tatas who put an interim injunction against a Tata vs Turtle video
game Greenpeace had created.

We may have significant legal precedents for overturning injunctions
but there are two things that make it difficult.  First – that a
nationwide injunction can be placed from anywhere in the country and
not all courts are equally diligent in assessing the claims of the
injunction. This might make an Indian more ‘trigger happy’ than if he
were elsewhere. Arindam Chaudhuri worked out of a small court in
Assam, Jayalalitha from her home state.

Second, Sai reckons us publishers don’t fight hard enough. This could
be true. Legal cases are expensive. We’ve probably spent more on the
Jayalalitha book than we would have ever made on it.  Often I think in
matters of free speech, the daily pragmatism of money, effort and time
wins out over the big idea.

Its interesting though that the minus side seem paltry next to the
plus side. We live in a country that has seen major free speech
victories.  Both Aryama Sunderam  (the lawyer on the Singh vs Gandhi
case) and Sai told me that on the whole they feel confident about
overturning injunctions related to free speech.

My views as a publisher have been usually the opposite. Injunctions
make things costly, time consuming, and take our energies away from
the work we’re really meant to do. And so we try and avoid them as
much as possible. Apart from the fact that we don’t fight hard enough
for them, I wonder whether it means we impose a kind of self
censorship on ourselves.

A month or so ago, I got one my editors to make a list of who were the
key people we ought to have proper biographies of.  The idea was to
then work our way through the list and commission these. Bal
Thackeray’s name was on the list and my editor said, but is it worth
it? Surely the Sena will make too much trouble? It’s not just
politics. Which publisher in India would commission a no-holds barred
book on our most powerful businessmen? Who would write it?

There’s another larger question tied to this. Are one of the reasons
these questions loom larger for us because our society is
‘over-respectful’? I wonder to what extent this culture of respect
means we can’t bear anything but hagiographies? That the ‘trigger
happy’ quality of our injunctions has a deeper social source?

We recently commissioned a book on a big industrialist from a very
senior business journalist who has an amicable relationship with him.
We wanted the book to be an evenhanded account of  the industrialist’s
recent ventures but when he learnt about the book, he made sure none
of his close associates talked to the journalist and that book, I
think, is going to take some time to be written! Most publishers and
editors can give you countless such examples. Are we more resistant to
criticism?

These are some of the discussions we’re having at our editorial
meetings and it seems to me that these questions about what books are
possible – what do we commission, who writes them and how – and the
question of injunctions and free speech are entwined.  For this
reason, all us editors think that perhaps its time we moved to the
unauthorized biographies. But we’ve discovered as in the case of the
industrialist’s book, it’s as hard to do that. Access is closed off,
and many of the writers don’t want to unduly upset their powerful
subjects.

All of my questions would be better served with more length and time
than I have but I wanted to leave some of these tangled thoughts with
you.  My own thinking has become more pragmatic and more belligerent.
I think as publishers we should commission what we want and we have
enough legal precedent to protect ourselves. The problem is that none
of us have the time and money to wage a constant war. But I am
increasingly thinking that perhaps we should take the next injunction
we are faced with and really fight it out. In the meantime, the
conversations and arguments in our editorial table will continue. Some
questions will be resolved pragmatically, some with fervour, but
at least we’re talking.

(Chiki Sarkar is Publisher, Penguin India. The views in this article are  personal and are not representative of Penguin)

More posts from Banned Books Week, here.