THE Raj bequeathed to the subcontinent a strong tradition of book banning as well as a legal mechanism for the aggrieved to challenge the ban in court. The tradition is excellently documented in Prof N. Gerald Barrier`s book Banned: Controversial Literature and Political Control in British India, 1907-1946.

The legal mechanism was embodied in Section 99-A of the Criminal Procedure Code 1898. It enabled `any person having any interest` in the banned literature to move the high court to set aside the ban.

The application had to be headed by a special bench of three judges, the order had to state the grounds which were limited to violations of specific provisions of the Indian Penal Code (IPC) of 1860. Sedition was one of them.

Another was Section 295-A on `deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious feelings`.

Anyone even slightly familiar with the English law will notice that the `guilty mind` is an essential ingredient of the offence.

Criminal laws are construed strictly. The accused gets the benefit of the doubt.

Section 295-A was inserted in the IPC and drew a well-reasoned response from a great liberal and champion of civil liberties, Mohammad Ali Jinnah, in the Central Legislative Assembly. He said on Sept 5, 1927: `I thoroughly endorse the principle, that while the measure should aim at those undesirable persons who indulge in wanton vilification or attack upon the religion of any particular class or upon the founders and prophets of a religion, we must also secure this very important and fundamental principle that those who are engaged in historical works, those who are engaged in the ascertainment of truth and those who are engaged in bona fide and honest criticism of a religion shall be protected.

Neither Jinnah nor the sponsors of the law would have imagined that nearly a century later, Section 295-A, would be invoked against a historian of repute Wendy Doniger.

Her work is entitled The Hindus: An Alternative History. The very subtitle suggests an effort at an original interpretation evenasherdoctoratesinSanskritandIndian Studies testify to a certain empathy for Hindu thought.

The critic was one Dinanath Batra of the Shiksha Bachao Andolan (Save Education Campaign). He is the head of the educational arm of the Rashtriya Swayamsevak Sangh. He had scored five such `victories` and warned that there were more `milestones` to be crossed. Public uproar encouraged one to feel that the man was baying at the moon and that the nadir of book-banninghad been reached.

In this, we were all wrong. For, precisely around the same time Orient Blackswan withdrew a bool< it had already published and sold last April: Communalism and Sexual Violence: Ahmedabad since 1969 by Megha Kumar.

This is far worse than the state banning a book under the colour of a law. It is an extralegal act by a non-state actor. The book records Ahmedabad`s history over a period spanning five decades, specifically examining the infliction of sexual violence against Muslim (and in one case Hindu) women in three major episodes of Hindu-Muslim rioting.

The author reveals: `The ostensible reason Orient Blackswan has given is that, on April 14, the Shil(sha Bachao Andolan Samiti, an affiliate of the RashtrivaSwayamsevak Sangh, served a legal notice to one of Orient Blackswan`s older textbooks.

What is saddening is the absence of public protests against this vicious trend. Newspaper editorials are no substitute for thoseprotests. The silence speaks a lot for the political clime.

Public opinion in poisoned clime can be very repressive; scholars, intellectuals, students and teachers cannot compete against hooligans. The state, moreover, always plays safe.

In 1989, in a case concerning the film Ore Oru Gramathile, the Tamil Nadu government pleaded that it had aroused protests by Dalits and might create a law and order problem.

The Supreme Court`s stinging rebuke applies to all such situations: `We want to put the anguished question, what good is the protection of freedom of expression if the state does not take care to protect it? If the film is unobjectionable and cannot be constitutionally restricted under Article 19(2), freedom of expression cannot be suppressed on account of threat of demonstration and processions or threats of violence. That would be tantamount to negation of the rule of law and surrender to blackmail and intimidation. It is the duty of the state to protect the freedom of expression since it is a liberty guaranteed against the state.

In the quarter century which has elapsed since the court has given quite a few judgments on free speech; but none as strong as the one of 1989. • The writer is an author and a lawyer