The law comes before freedom of expression, says the lawyer who represents most publishers in India

Lawyer Dahlia Sen Oberoi has fought some of the most controversial cases in Indian publishing recently – from the legal battle launched against Wendy Doniger’s The Hindus or Vaasanthi’s Jayalalithaa: A Portrait. In a forthright interview with Scroll.in, she sets the record straight on what goes on behind the scenes in court, why one should be practical rather than “brave” about publishing, and how publishers and authors – in both India and abroad – should be mindful of the country’s laws, for freedom of speech and expression “is not an infinite and unconditional right”. Excerpts from the interview:

Tell us about your association with the publishing industry. Who was your first client? Did you win your first case or lose it?
I got associated with the publishing industry around 2000. Penguin India brought me my first case. It was not really a court case but reading and assessing a manuscript. Until then I frankly did not even know that lawyers were supposed to read and vet manuscripts! But because I am a lover of literature of any kind, and nurture a dream of being an author some day, I welcomed this extension to my “IP Lawyer” persona.

I was later told that I was the first lawyer in India to do so. And so here we are 17 years down the line, and even though I have a great team of lawyers supporting me in my legal practice, manuscript reading and vetting and assessment is something I do myself, and it remains the most favourite part of my profession.

I think the first court case brought to me was once again by Penguin India – it was the Khushwant Singh book on which Maneka Gandhi had obtained an injunction based on a newspaper report. Although the manuscript was given to me after the injunction was clamped on it, I was able to edit it for a successful launch. That I have always been a big fan of Khushwant Singh’s perhaps gave me that extra nudge to do a good job!

These days many publishing houses make it standard practice for all non-fiction books (and even select fiction titles) to undergo legal reads. In fact, a publishing house wanted to get one of my fiction submissions for a client legally vetted even before making an offer and signing the contract. How different was the approach towards legal issues in books in the past?
Well, in a convoluted way, you may want to blame me for this new practice!

Jokes apart, there is a reason behind this paranoia which, on the face of it, might appear to be madness to some, and unnecessary to most. Common Law is evolving at break-neck speed. As the “claims” go up exponentially, it is only logical that the safeguards too need to be taken up a notch or two!

Could our previous generation ever have imagined that an artiste’s voice could be protected or a doll with a likeness to a celebrity be injuncted upon? Personality and other rights are becoming more and more complicated as celebrityhood has taken on a new meaning. All this in addition to the already existing laws. Is it any wonder then that book publishing is not just the simple creative process one imagines or rather hopes it to be?

You mention fiction and I can comprehend why the publishing house would have asked for legal vetting. In a fiction publication of one of my clients, the cover design had well known logos of two fashion brands. Now even though the book had nothing to do with those fashion brands, and they had been inserted only to portray a character, these were registered trademarks. I advised my client to either remove the logos or take permission to use them. You simply cannot have a commercial product with the branding of another without permission! It may seem like an overreaction but I believe it was a disaster averted.

Some recent unfavourable judgements such as the injunction against the Jayalalitha biography by Vasanthi and more recently the pulping of the earlier edition of Wendy Doniger’s The Hindus has sent out what could be seen as “wrong” signals to the writing community.
Many a time, or indeed most of the time, people hear bits and pieces of news and jump to conclusions. Half-baked knowledge and understanding are dangerous. Rather than reacting emotionally, the writing community should try to understand what is within the realms of law and what is not. Laws are misinterpreted and misused in every sphere – the creative community should not feel singled out. Once creative people accept that they are common citizens of the country with no extra privileges nor liabilities, it will become easier for them to accept court verdicts and the existing legal system.

I feel indignation stemming from some sort of an imagined immunity mars common sense and judgment! Being an artiste myself, I understand and appreciate creative licence and freedom of expression, but I urge everyone to also be aware of and respect the laws of the land. You may or may not like a particular law, but until it is revoked you have to respect it.

Also, we must bear in mind that each case has its own particular set of facts and circumstances. Just because a previous case has seemingly similar facts to yours, it does not necessarily mean yours will suffer the same fate.

I was the lawyer representing the publisher and author in both the cases you mention above. For reasons of confidentiality, I am loath to discuss the cases in detail or explain to you what the compulsions were. (I am old-school – I shun the recent trend of dissecting clients’ cases by their lawyers in public. I think it is against all ethics and codes of conduct.)

But I urge you and the readers not to always believe what they read in the media. Litigation is a bundle of several factors. There is a lot that goes on in a courtroom that may not be comprehensible to the lay person. Did you know that the entire Jayalalithaa biography court case was argued in-camera?

Indeed the order was published but no one knew what was argued, except those of us who were inside the court. I was in Chennai almost every other week at that time as I was the lead Counsel for Penguin and Vaasanthi. I would go to court with just one junior colleague to assist me and sometimes the author and the editor would be present too. On the other side there would be the Advocate General with a retinue of lawyers defending the Chief Minister. All behind closed doors. There was raving and ranting and finger pointing. But not a whisper could be heard in the corridors of the Madras High Court! Quite an experience.

Even at that time I chose not to talk about the case because, like I said, there is confidentiality attached. All I would like to say is this: the injunction against the book was passed only at the first level – by the single judge of one Court. There was no appeal. In legal parlance, that cannot be accepted as either the law or the norm. Secondly, and this is more of a general observation, the Right to Privacy is something we as a nation are not very aware of and it is time we familiarised ourselves with this term. And lastly, rather, most importantly, it was the biography of Jayalalithaa – the Chief Minister of Tamil Nadu at that time. Need I say more?

In Wendy Doniger’s case, once again there was much hullabaloo in the media where certain sensational words – such as pulping – were caught on to and everything else forgotten. I do not think anyone tried to access the court documents or the affidavits or understand the reason behind the publisher’s decision at that time. Again, since I was the lead counsel in that case as well, all I would like to say here is that the decisions taken were in deference to the laws of the land.

The criminal complaints against Wendy Doniger and her publisher’s capitulation to Dinanath Batra didn’t stop the independent publisher Speaking Tiger from reissuing The Hindus.
You are implying that Speaking Tiger was braver than the others. I will caution you and others from jumping to any such conclusion. As I don’t tire from saying, there is much more here than meets the eye. We all have to exist in and make do with that grey zone, even those who are creatively superior!

In an article in Caravan, Doniger made the following observation, referring to the merger between Penguin Books and Random House: “My understanding is that there is a direct connection between the merger and the decision to drop the lawsuit. This was one reason why I said I did not blame Penguin India; I never said I didn’t blame Penguin International or the Penguin Group etc. I do blame them for a lot of things. Penguin India on the other hand, defended the book for four years and was, I am confident, going to go on defending it. I believe that after the merger Penguin Random House (as it had then become) put other people in charge of the book, who made the decision to drop the lawsuit.’ Would you agree that global multinationals are under great pressure when it comes to litigation?
Once again, I will refrain from answering this in detail – even though I am tempted to – as I am bound by confidentiality and was very much on ground zero at that time, part of all the action and explosions! All I will say is that I was part of the decision-making and to my knowledge the merger did not dictate the decisions taken on the court case.

Without going into any more specifics, I would like to ask you and your readers to try to understand the legal issues involved.

Is every author who writes a book that is to be published in India aware of all the legal claims that could be made on a publication? Does the average author know that claims such as hurting of religious sentiments or sedition are actually criminal offences in India? And that if such claims are made then people are personally liable?

Any passionate author would hate to see their book trimmed, but if the laws of the land so establish, whether rightly or wrongly, that certain content could be a criminal offence, then that author must bear in mind that even though they are passionate enough to go to prison for the cause, the individual office-bearers of the publisher could also land up in jail – merely for sitting on that chair in the publishing house!

It is time people understood that criminal offence is a “personal liability” and you cannot hide behind the façade of your company to escape it, as you would in a civil matter. So authors should spare a thought for the publishers when it comes to criminal offence claims.

I cannot stress enough that one needs to be aware of the laws. You cannot wish them away. You may criticise them, call them archaic and Draconian…but as long as they exist, you have to respect and honour them.

And beware of the lawyer who gives you a list of case law to defend you in case of an arrest. Freedom of speech and expression is not an infinite and unconditional right – and whoever tells you to the contrary is misguiding you.

And not for a moment am I saying that our courts are not liberal enough. In fact whenever such a matter goes to court, our judges usually treat it with the disdain it deserves. But is it really worth the risk?

One example that I frequently cite is that of one of the greatest artists of our times: MF Husain. It is great that all criminal claims against him were ultimately thrown out by our Supreme Court. But at what cost? He had to die outside his country and run for cover against all the criminal claims that were filed against him in India.

I am deeply curious and also perturbed about the issue of authorised versus unauthorised biographies in the Indian publishing context. While the former seems a safer and more attractive proposition in terms of packaging and marketing, many of these books end up reading like hagiographies because of excessive interference from the subject and and their family. Some publishers are also particular about using the word “official” or “authorised” on the covers of such books. In the US, unauthorised biographies are all the rage and authors are protected by the First Amendment. Indian laws, on the other hand, seem very ambiguous, as demonstrated by the judgment against Vaasanthi’s book. Your views?
There is no concept of authorised and unauthorised biographies in India. True. And it is also untrue that all you come up with is hero worship or hagiographies.

Anyone can write about anything or anyone as long as you are not violating any laws. Basically, in a biography people want to bring up dirt and for that, yes, your sources have to be impeccable. And then there is this beast called Right to Privacy – which, personally, I think is a good thing. Why not? Our courts say that if you want to talk about a person’s private life, either get their permission or write only that which is part of public records – there’s nothing ambiguous about this law.

And pardon me, but it has become fashionable to castigate India and her laws. Every country has its own sets of laws – some ridiculous, others strict. It is the duty of all citizens to be aware of and protect their country’s laws. That’s it.

Also, until a few years ago the international view was “anything goes in India”. I don’t know why that was the case. Perhaps because of some of our brothers (and sisters too!) who project India as a lawless state, or due to other deep-rooted prejudices. Which is why, typically, an author or publisher might have taken more safeguards in another country, but not so in India. And the moment murmurs were heard around India, its laws were criticised. I feel it is time that foreign authors sit up and take notice that they need to bear in mind the local laws in India just as they do for all the other countries of the world.

I am sorry, I think I have digressed from your main question about biographies. So yes, while there is no such concept of authorised biography or not, I can confirm that biographies can indeed be written without permission as long as laws are not violated.

A couple of years ago, an editor at Penguin India stood steadfast behind the authors of a satirical book (it mentioned the names of living politicians and media personalities) despite getting conflicting feedback from lawyers. Ultimately, he took very few of the suggestions into account. Do you think the legal vetting process is sometimes shaped and guided by the conviction and support of the editor assigned to a book?
It’s a hit and miss. Legal vetting is only a precaution. One looks out for possible violations and claims and either removes them or makes the book claim-proof. There is no guarantee or assurance of a definite third party action or of a definite risk cover. A lawyer can only make a calculated guess and advise safeguards in a reasonable manner. Ultimately it is the publisher’s or editor’s decision.

What happened with The Hindus needn’t repeat itself, but it would be foolish not to foolproof yourself against similar claims in future. So coming back to that brave Penguin editor, I am glad his book sailed through. But what if it hadn’t? He took a chance, and I believe it is best to be smart – neither false bravado nor excessive caution works. One needs to opt for the middle path.

Being practical is not always a bad thing, nor does it make you less creative or writer-sympathetic. Take your author into confidence. Work with them rather than against them. If an editor decides to edit out a few portions based on legal advice it is not because he is trying to stifle the author’s voice. He is simply trying to get the book out in the market. And isn’t that the ultimate goal? It has to be a joint effort, with neither party feeling cheated or short-changed.

A few years ago, the author of Breathless in Bombay, Murzban Shroff, was dragged to court for the use of the word ghati in one of his stories. He lamented that he did not get any support from his publisher or the writing community. Ironically, it was his editor at the American publishing house, St Martin’s Press, who came to court with him and also wrote to advocates of free speech to build support for his case. Do you think editors and publishers should be more forthcoming in their support during such legal battles? How do writers’ bodies support such authors?
Oh, absolutely. There is no question. There should be support.

I am not aware of how writers’ bodies support such authors but in 17 years of work in the publishing industry, I have seen all my publisher clients always unflinchingly supporting their authors.

Some day I would like to create a group of authors, publishers, agents and build support. Maybe very soon.

How immediate is the threat of physical intimidation and incarceration in some of the cases you have handled?
More than you would like to believe. The threat is always real. I talk from personal experience.

A lot of debut writers ask me if they should get their works copyrighted before submitting them to agents or publishers. When exactly does a work become an author’s copyright? Would you advise first-time writers across genres to register their works?
There’s no need to “get” a copyright as copyright comes into existence as soon as a work is created. So the moment you paint a picture, or write a song, or, indeed, write a book – copyright immediately and automatically comes into existence.

There’s no need to get anything registered. Just make sure you know your laws, your rights and liberally use the “c” in a circle declaring to the world that you are the owner of copyright.

Can ideas and book titles be copyrighted?
There is no copyright in an idea. An idea needs an expression to be subject matter of copyright.

A book title can be protected by trademark. And only if it is a distinctive word. Not a common word, such as “Borderlands”. No one author can claim a right on such a word. And no, there is no copyright in a word or a title.

A lot of writers complain that publishing agreements are one-sided and full of legal jargon. Do you think it is time to revisit contentious clauses like indemnity, legal costs to borne by authors and so on?
Of course it is always advisable to carefully think through contentious clauses. But when one is a young and budding writer (or any other artiste) one is so keen to showcase one’s work that one signs on any document as long as it promises the much needed expression. But should we blame the publisher in such a scenario? Not at all.

The publisher is right in protecting its own interests. So the author ought to be more careful – and not just once they become successful, because usually that is when realisation dawns. Until then, it is desperation that drives all decisions, which my lawyer brain admonishes, but my artiste heart sympathises with and understands.

A lot of publishers insist on retaining the right of first refusal (or option) clause for the writer’s next work, but neither publishers nor authors seem to take it seriously. Is the option clause legally enforceable?
A contract is between two parties – agreeing between themselves to comply with certain terms. If one party is in breach, the other can take it to court for enforcement of the contract. The contract itself is not an automatic right granted by law, but something that the parties have agreed to, and the clause can hence be enforced as part of the contractual obligation between them.

Do you represent authors too? How different is that from representing publishing houses?
Since I represent most of the publishing industry in India, the individual authors I have represented have come to me through publishing houses. I cannot recall ever representing an author who came to me independent of the publishing house, though I have always kept the author’s interest foremost in all my legal advice till date, and am happy to say that my publisher clients have enthusiastically shared the same view. After all, it all boils down to the author. It is the author who creates this wonderful industry, which I am privileged to be a small part of.

What are some of the high profile cases that you’re fighting now? How do you see them panning out?
High profile is a relative term. All my cases are very special to me.

In terms of book publishing, the most recent court case I was involved in was the Borderlands case. I represented Hachette.

And as you would have gathered by now, I am rather tightlipped about my cases...

Do you think there is greater threat of frivolous lawsuits and curtailment of speech in the prevailing climate? Have the number of cases against authors gone up in the last couple of years?
Frivolity, again, is a relative term. It all depends upon which side of the room you are sitting in.

But yes, like I have said before, common law is developing and with the advent of celebrity culture and more awareness of rights and easy access to court, lawsuits may go up in number.

As for curtailment of speech, don’t use this term lightly. There is no unfettered right of expression that one has, contrary to popular belief. It would be a good thing if we did, but we do not as of now. So until the fetters are removed, we will have to watch our words.

On a lighter note, did you legally vet your brother Palash Sen’s book, which was published by HarperCollins India? Did you find anything objectionable?
Hahahaha. No, I did not vet it. Though I did write a chapter for it!

Now that was an “authorised” biography – and going by your assessment of modern-day success, a look at its sales figures should answer your question about whether or not it had anything “objectionable” in it!