AMONG the bad habits which we inherited from the British Raj, is a marked propensity to ban books. In 1976, a distinguished American scholar, N. Gerald Barrier published a book with the pithy title Banned. It documented all the books and pamphlets which the British banned in India from 1907 till independence. About the only redeeming feature in the recent unseemly furore in India over Joseph Lelyveld’s book Great Soul: Mahatma Gandhi and His Struggle with India is that the governments of India and of the states refused to ban it. The only and ugly exception was the government of Gujarat, headed by Narendra Modi, under whose watch a pogrom of Muslims was staged in 2002. He hoped to win kudos for being the first to ban and now finds himself alone and ridiculed.

Book-banning is inspired by the same mentality which promotes book-burning. It is no function of the state to prescribe a select bibliography to its citizens and undermine the fundamentals of democracy. Before pursuing this theme, however, one must reckon with a certain trend in the West which justifies wilful intentional insult as an exercise of free speech; specifically insult to the faith of Islam and to Prophet Muhammad (PBUH). In truth, the trend has only accentuated in recent months; for, as James Carrol recalled, in an article in The New York Times earlier this month, “Contempt towards the religion of Muhammad is a foundational pillar of western civilisation. That it is unacknowledged only makes it more pernicious.”

Minou Reeve’s splendid work Muhammad in Europe documents 1,000 years of western denigration. The Danish cartoons are in that tradition. The answer lies not in a frenzy of book-banning, still less in violence but in a two-pronged approach. One is the approach of Sir Syed Ahmad Khan the founder of the Aligarh movement. As Dr Zakir Hussain reminded the students of the Aligarh Muslim University when he was its vice-chancellor, Sir Syed’s answer to William Muir’s biased Life of Muhammad was a work of scholarship entitled A Series of Essays on the Life of Muhammad and Subjects Subsidiary Thereto.

A marked feature of the style of advocates of book-banning is a reluctance to join in reasoned refutation. The other prong is recourse to judicial verdict. Books cannot be banned by a mere executive order unless it is supported by law. The law can be challenged as an infringement of the right to freedom of speech and expression if it gives carte blanche to the state. Section 11 of India’s Sea Customs Act, 1962 gives New Delhi unfettered power to prohibit import of any literature inter alia for any “purpose conducive to the interests of the general public”. This is patently unconstitutional.

Salman Rushdie won sympathy from some in India because his book The Satanic Verses was banned under this act. The issue got blurred. It was clearly defined by a great English judge Lord Scarman who regretted that the law of blasphemy protected Christianity alone. He ruled in the House of Lords in 1979 “I do not subscribe to the view that the common law offence of blasphemous libel serves no useful purpose in the modern law. On the contrary, I think that there is a case for legislation extending it to protect the religious beliefs and feelings of non-Christians. The offence belongs to a group of criminal offences designed to safeguard the internal tranquillity of the kingdom. In an increasingly plural society such as that of modern Britain it is necessary not only to respect the different religious beliefs, feelings and practices of all but also to protect them from scurrility, vilification, ridicule and contempt.”

That is an abuse of the right to free speech which is unprotected under Article 19 (3) of the International Covenant on Civil and Political Rights, Article 19 of the Pakistani constitution and Article 19 (2) of the Indian constitution.

The law provides a mechanism for striking a fair balance between the right and its limits. Pakistan and India inherited the Criminal Procedure Code, 1898 and amended it. Section 99B empowered the state to forfeit literature which offended against the law. In India, that category was significantly expanded in the new code of 1973, based on the old one. It includes deliberate and malicious insult to religion. However, every such order was open to challenge, under S. 99C of the code of 1898, to a review by a three-man bench of the high court. The 1973 code retains these provisions.

Advocates of book-banning have no patience with the legal route. They prefer, instead, to whip up mass frenzy and take the law into their own hands. It is a consistent feature of such agitations that they are based on ignorance of the contents of the book. They rely on a ready response from the growing constituency of bigotry. On Jan 5, 2004 in Poona (now Pune), men of the Sambhaji Brigade ransacked the premises of an internationally famous institution of learning, the Bhandarkar Oriental Research Institute, damaging several rare manuscripts and priceless articles. Its crime? It had permitted James Laine to draw on its resources to write his book Shivaji: Hindu King in Islamic India. He had consulted over 30 works in Marathi. The book was published by a highly respected firm, Oxford University Press. Activists across India and abroad denounced the vandalism and the Maharashtra government’s ban. It was quashed by the Supreme Court in July 2010.

The furore over Joseph Lelyveld’s book was based on a review by Andrew Robinson in The Wall Street Journal before its publication in India. No one accepts the reviewer’s inference that the book described Gandhi as a “racist” and a “bisexual”.

The material on which Lelyveld drew is available in published works. Underlying the shrill cries for bans on books is a shrewd assessment of the weakness of governments and their abject surrender to frenzy.

In 1989, the Supreme Court of India asked, in a case of film censorship: “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? …It is the duty of the state to protect the freedom of expression since it is a liberty guaranteed against the state. The state cannot plead its inability to handle the hostile audience problem. It is its obligatory duty to prevent it and protect the freedom of expression.”

The writer is an author and a lawyer.