Martha Nussbaum has written a piece for the Indian Express on the suppression of Wendy Doniger’s book, Penguin’s collapse and capitulation, Section 295A of the Indian Penal Code, hate speech, group defamation, threats and more.

…now, with the withdrawal and pulping of Wendy Doniger’s The Hindus: An Alternative History, the bullies have scored a major victory. Penguin, after fighting the legal case against Doniger for four years, suddenly folded, saying that it would be difficult to continue defending Doniger without “deliberately placing themselves outside the law” — the law in question being Section 295A of the Indian Penal Code, which forbids “deliberate and malicious acts intended to outrage religious feelings of any class of citizens”.

Penguin’s claim is ridiculous. The lawsuit is extremely weak. It is poorly written and argued, contains absurd errors (even the purported quotes from the book are inaccurate), and its attempt to satisfy the law’s demand for malicious intent is childish —  accusing Doniger, a secular Jew, of “Christian missionary zeal” and suggesting that her historically accurate references to sexual elements in the tradition were motivated by her being “a woman hungry of sex”.

I had a look at the lawsuit, and dang, she’s not kidding. That’s for another post.

Part of what’s so absurd, Nussbaum goes on to point out, is that Doniger admires Hinduism, she considers it better than rival religions.

The case, then, was eminently winnable, and Penguin’s attempt to hide behind the law is a transparent excuse for cowardly capitulation. The real story is told in Penguin’s statement that they “have a moral responsibility to protect our employees against threats and harassment where we can”. Fear of violence has won; the conglomerate caves before a vague (or perhaps not-so-vague) threat. Such things have, deplorably, happened before. This time, however, there is the prospect (on which the lawsuit’s primary plaintiff, Dina Nath Batra, waxes ecstatic in an interview to The New York Times) that the RSS will soon have the power to suppress all the books it doesn’t like.

And maybe some day all the religions in all the countries will have that power, and everything except religion will be gone.

So what about the law, Nussbaum asks. It doesn’t do everything, but it can help the bullies. (This is basically the argument in Does God Hate Women? Religion doesn’t cause all the bad things, but it sure does help to make them respectable.)

Group defamation is a trendy topic in the law. Particularly in Europe, where incivility to minorities is distressingly common and well-meaning people want to protect their dignity, it has become fashionable to defend such laws or urge their adoption where (as in the US) they are not yet present. A particularly influential argument for group defamation laws was recently made by the eminent British legal scholar Jeremy Waldron, in The Harm in Hate Speech. Waldron’s concerns are admirable: equal respect and full inclusion. How, he asks, can Muslim immigrants ever feel themselves fully equal citizens when a sign can be put up on a New Jersey street saying, “Muslims and 9/11! Don’t serve them, don’t speak to them and don’t let them in.” (The example is apparently fictional.) Waldron argues that the usual ways of dealing with such insults (non-discrimination laws, social norms) are insufficient: the law must intervene, ensuring that minorities have confidence that their dignity will not be assailed by public utterances.

Nussbaum discusses some problems with that idea.

A third problem is that when the topic is either sex or religion, almost anything anyone says will offend someone. Pluralistic societies contain puritans who feel sexual references demean their dignity and others who think that the suppression of sex removes a vital part of their dignity; they contain religions, and strands within religions, which harbour mutual suspicion and animosity. Group libel laws, according to Waldron, make society safe for all groups. What they really do is prevent all serious public debate or research on these touchy topics, since someone somewhere is sure to feel insulted.

As we keep seeing, over and over again.

The suppression of Doniger’s book was not caused by Section 295A. It was caused by bullying, power politics and cowardice. But law has given public sanctity to bad behaviour, allowing Penguin to portray itself as law-abiding rather than egregious, and allowing the plaintiffs to represent themselves as wounded citizens seeking justice, rather than the ominous thugs they are.

Exactly. That’s just what religion can also do. That’s why bad laws and bad religions are bad.

In the US, without such laws, scholars of Hinduism have been threatened with violence. But the thugs who threaten them put themselves outside the law and are investigated by legal authorities: scholar Paul Courtright’s house was staked out by the FBI after Hindu rightwing threats apropos of his book on Ganesha. Policemen pay attention to law, and so do law professors. At the time, the head of the HSS (the RSS’s American wing) was a law professor. So far was Ved Nanda from hauling Courtright into court that he issued a public apology to him for the harassment, in my hearing, at a conference sponsored by Doniger and me at the University of Chicago (about democracy and the Hindu right, shortly to appear as an edited book, whether anyone in India will be able to read it or not). After all, Nanda, as a law professor, had to be manifestly on the side of law. Tough laws protecting free speech create social norms which make it impossible for a respectable law professor to defend such intimidation tactics. Later, when threats were directed toward employees of the Harvard University Press before the publication of my own 2007 book, The Clash Within: Democracy, Religious Violence and India’s Future, I called Nanda and asked him to stop the people who were doing this — and the pressure stopped. After all, the bullies were on the wrong side of the law. To my knowledge, no work of scholarship on Hinduism has been suppressed in the US, though many have been amply insulted.

That is a fascinating pair of anecdotes.

Law, in short, is not everything, but it is not nothing either. Group defamation laws issue an invitation to thugs to suppress speech that they don’t like, while representing themselves as the righteous ones. Unfortunately, in today’s political climate in India, there are all too many people ready to take up this ugly invitation.

Still, it’s interesting that Penguin fought the David Irving case despite Britain’s horrendous libel law, but ended up giving in to India’s horrendous law.