RECLAIMING THE VERSES: UNVEILING BUREAUCRATIC INEFFICIENCIES AND FREE SPEECH RESTRICTIONS

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“A knife was a tool, and acquired meaning from the use we made of it. Language, too, was a knife. I could cut open the world and reveal its meaning, its inner workings, its secrets, its truths. It could cut through from one reality to another.” – Salman Rushdie, Knife: Meditations After an Attempted Murder. 

In The Customs Act, 1962, Section 11B confers power on the central government to notify goods: “If, having regard to the magnitude of the illegal import of goods of any class or description, the Central Government is satisfied that it is expedient in the public interest to take special measures for the purpose of checking the illegal import, circulation or disposal of such goods, or facilitating the detection of such goods, it may, by notification in the Official Gazette, specify goods of such class or description.” On October 5, 1988, the Indian government, using this power, issued a customs notification to ban Rushdie’s book The Satanic Verses as a response to widespread backlash which it had been receiving from Muslim organisations and leaders nationally as well as globally. After this, the unfurling of the agitation reached another crescendo with a 1989 fatwa issued by Iran's then Supreme Leader Ayatollah Ruhollah Khomeini, wherein he ordered the assassination of Rushdie.

In Iran, the banning of books is often enacted through fatwas that serve as legal decrees that impact cultural and legal norms profoundly. Other books that find themselves on the list of banned books by the Iranian government for similar reasons, on the onset of curtailing literature and dissenting voices that challenge Islamic values or societal norms are The Blind Owl by Sadeq Hedayat, Women Without Men by Shahrnush Parsipur, and The Da Vinci Code by Dan Brown. This particular fatwa of 1989 was the beginning of Rushdie's hiding for nearly the next decade. Accordingly, efforts to unsettle the ban culminated in the writ petition Sandipan Khan filed in 2019. Khan sought to import The Satanic Verses directly from publishers or through alternative supply chains, arguing that the ban was unconstitutional and beyond the powers granted to authorities under Indian law. His petition highlighted that in none of the formal documentation could the ban be located, raising issues regarding its lawful nature. Khan's legal team filed an RTI in 2017 for a copy of the novel. On 5 November, 2024, the judges, while resorting to the only solution at hand stated, "In light of the aforesaid circumstances, we have no other option except to presume that no such notification exists, and therefore we cannot examine the validity thereof and dispose of the writ petition as infructuous.

On the Right to Information Wiki, it is expressly stated that ‘missing files’ under RTI has no legality as it is not recognized as an exception by RTI Act. By practice, ‘missing file’ cannot be read as an exception in addition to exceptions prescribed by RTI Act. It amounts to breach of Public Records Act, 1993 and punishable with imprisonment up to a term of five years or with fine or both. Public Authority has a duty to initiate action for this kind of loss of public record, in the form of ‘not traceable’ or ‘missing’…A thorough search for the file, inquiry to find out public servant responsible, disciplinary action and action under Public Records Act, reconstruction of alternative file, relief to the person affected by the loss of file are the basic actions the Public Authority is legitimately expected to perform.”

In the present case, while no loss has been caused to the applicant, it brings to light an important aspect of ‘missing files’, in this case a missing government notification can lead to catastrophic consequences for the bureaucratic system. 

Controversies surrounding missing files exchanged among the authorities in India have frequently highlighted extensive inefficiencies within the system and administrative workings. One major instance was related to the unearthing of various high-profile corruption cases, where allegations pertaining to the disappearance of important documents had arisen due to negligence or the malefic intentions of rival political parties. These situations attracted huge political consequences, with counter-allegations of intent to obstruct the course of justice and an attempt to foil accountability emerging thereafter. A second instance would relate to the files of public sector units where various discrepancies in documentation were attributed to the delay in arbitration proceedings or litigation. These occasions set an exchange over not maintaining proper records, which turned out to be an impediment during the legal remedy process. This blame game did not only show that the bureaucratic mechanisms are nowhere close to perfect, but also augmented public distrust in the efficacy of the judicial regime whereby stakeholders question the truth and dependability of government processes. The predicaments thus indicate a dire need for efficient document management systems and transparency to eliminate such occurrences in the future. 

The disappearance of the ban notification also draws our attention to the inefficiencies in the data and record management infrastructure in the Indian judiciary. The issue of missing case files in the Indian judiciary has garnered significant attention due to its implications for justice delivery and administrative efficiency. According to the last data from the Union Law Ministry in 2018, at least 149 case files have gone missing from various high courts across India over the past decade. The highest number of missing files—106, was reported by the Calcutta High Court, followed by the Rajasthan High Court with 31 files, the Chhattisgarh High Court with 12, and one from the Allahabad High Court. These figures indicate a troubling trend where sensitive and potentially important legal documents are unaccounted for, raising questions about the integrity of judicial processes. This statistic not only highlights alarming flaws in the workings of the judicial system but also foreshadows the possibility of eroding public trust. This infrastructural and procedural delay affects the public’s right to speedy trial as guaranteed under Article 21 of the Indian constitution.  

While some steps have been taken in pursuance of resolving the tedious filing system in court complexes, several lacunae still persist. Under the National eGovernance Plan, the eCourts Mission Mode Project has been implemented to facilitate the rollout of the new e-filing system (version 3.0) in India, which includes upgraded features and draft eFiling rules circulated to High Courts, marking a significant advancement in the management of court documents. As of June 30, 2023, nineteen High Courts have adopted these model rules, reflecting a growing recognition of the need for efficient digital processes in the judicial system. 

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However, the continued absence of key documents has the potential to cause a slowdown in proceedings, denial of rights, and mistaken judgments. Without the ability to produce those needed records, cases may be stalled, and litigants made to wait for prolonged periods of uncertainty and frustration. This holds true especially for marginalised communities who are already disenfranchised by the judicial system. However, in the words of Hon’ble Former Chief Justice of India Dipak Misra, ‘docket explosion’ must be seen as indicative of the Indian public’s faith in its judiciary. If this is to be taken positively, a counter presumption of living up to that faith also rests with the courts.

This whole episode also spotlights a significant conundrum between free speech and censorship which has time and again plagued the Indian judiciary and brought up the need to ponder and deliberate upon the delicate balance which the judges must maintain between freedom of speech and expression and preventing public unrest and dissent. There have been instances wherein benches have questioned the State and the governments on the daintiness with which they approach the issue of free speech but the vigour with which they demand censorships.

Pursuant to Article 19(1)(a) of the Constitution of India, all citizens are guaranteed the fundamental right to freedom of speech and expression, thereby facilitating free dialogue and exchange of ideas in a democratic society. However, the right to free speech is not absolute; it is subject to reasonable restrictions under Article 19(2) that allows the government to impose restrictions on speech in the interests of sovereignty, public order, and morality. This creates an extensive censorship regime, sometimes confusing the outer limits of free speech and raising the spectre of overreaching authorities in potentially silencing dissenting voices.

In the case of S. Rangarajan Etc vs P. Jagjivan Ram the bench stated while reversing the judgement of the High Court “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 sentiments expressed resonate deeply with the controversy surrounding Salman Rushdie's The Satanic Verses. By succumbing to public emotion and calls for action, as opposed to ensuring the establishment and triumph of artistic commentaries and free discussions, the authorities let the thundering herd run ever so much over the Constitution's guarantees. Justice Rangarajan found that being guided by excessive intolerance can actually destroy democracy: "Intolerance is as harmful to democracy as it is to the individual." 

As society navigates through these complex matters, it will be incumbent upon the judiciary and government authorities to maintain the guarantees of the Constitution, which is the ambition to protect artistic expression against unwarranted interference or suppression. Robust mechanisms ought to be instituted to deal with documentation in legal form for various procedures on an extremely urgent basis as only this shall protect the ideals of freedom of expression which prove to be fundamental in maintaining a vibrant democratic society where diverse voices can flourish without fear of reprisal.

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By Khushi Mishra Khushi Mishra is a Second year Law student at the School of Law, Guru Gobind Singh Indraprastha University, Main Campus. 

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