India: We Have Set Out A Checklist That Publishing Houses Operating In India Need To Keep In Mind Prior To Publishing Non-Fiction Works

Last Updated: 30 April 2019
Article by Obhan & Associates
  1. What are the legal aspects that an author or publisher should be aware of prior to publication of a book in India? India has several laws in place that regulate what content can be written and distributed. These laws establish that publication of certain content could give rise to complaints of a criminal or civil offence. For example, claims such as hurting of religious sentiments or sedition are criminal offences in India. Defamation in India is a civil as well as a criminal offence. Authors and publishers need to be mindful of these laws prior to publishing a book.
  2. How can an author or a publisher reduce the legal risks associated with publishing in India? A publishing house can prior to the publication of a manuscript undertake a legal read of the manuscript to understand any potentials claims that could be made with respect to the manuscript. A legal read of a non-fiction book is a standard practice undertaken by most publishing houses wherein a lawyer is asked to read and assess the content of a book in light of Indian laws.
  3. What are some of the potential claims or legal challenges that a publication can face in India? A legal read of a book can throw light on potential claims of defamation, outraging religious beliefs, sedition, breach of confidentiality, obscenity, intellectual property infringement as well as wrongful publication of maps.
  4. What is defamation? Under Indian law, defamation is both a criminal (punishable with imprisonment) as well as civil (punishable through the award of damages) offence . Defamation is defined under Section 499 of the Indian Penal Code, 1860 ("IPC"). The Section provides that whoever by words either spoken or intended to be read, or by signs or by visible, representations makes or publishes any imputation concerning any other person intending to harm, or knowing or having reasons to believe that such imputation will harm the reputation of such person, is said to defame that person (unless it falls within one of the stated exceptions). Criminal defamation is punishable with a fine and/or with imprisonment and is a personally liable offence. In recent years, the number of suits filed in Indian Courts where the complainant has alleged defamation has increased exponentially with some being settled out of court and a few others leading to certain matters not being published. The Supreme Court of India has as recent as May 2016 (in the decision of Subramanian Swamy vs. Union Of India, Ministry of Law &Ors), held that the right to reputation is an inextricable part of the constitutional right to life and criminal defamation is a means through which the State sustains and protects the reputation of an individual
  5. Are there any exceptions to defamation under Indian laws?  Yes, following are the exceptions to defamation:
  • Imputation of truth which public good requires be making or publishing;
  • Public conduct of public servant;
  • Conduct of any person touching any public question;
  • Publication of reports of proceedings of courts;
  • Merits of the case decided in court or conduct of witnesses and others concerned;
  • Merits of Public performance;
  • Censure passed in good faith by person having lawful authority over another;
  • Accusation preferred in good faith to authorized person; and
  • Imputation made in good faith by person for protection of his or other's interests.
  1. What are the provisions under Indian law regarding outraging the religious beliefs of persons/communities? Under Indian law, outraging religious beliefs is a criminal offence and is punishable with imprisonment. Section 295 A of the IPC criminalizes "deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs".
  2. What is sedition? Sedition is another criminal offence under the IPC that states that if a person by words or by signs, either spoken or written, or by visible representation, or otherwise brings or attempts to bring into hatred or contempt or excites or attempts to excite disaffection towards the Indian Government, such a person is said to have committed sedition. Sedition is punishable with imprisonment in India.
  3. Are there any laws in India on obscenity? Yes, as per Indian laws, if any book, drawing, painting, representation, if taken as a whole, is lascivious or appeals to prurient interest and tends to deprave and corrupt the persons who read, see or hear the matter contained will come under the purview of obscenity.
  4. Can published books containing unlawful content be seized? Yes, in the event that any newspaper, or book, or any document, wherever printed appears to the State Government to contain any matter the publication of which is punishable for claims with respect to sedition, promoting enmity between different groups on grounds of religion, race, place of birth, residence, language etc., promoting disharmony, outraging religious beliefs and obscenity, the State Government may, by notification declare every copy of the issue of the newspaper containing such matter, and every copy of such book or other document to be forfeited to Government, and thereupon may seize the same wherever found in India.
  5. Can a manuscript include copyrighted work? Under the Indian copyright law, the doctrine of fair use legitimizes the reproduction of a copyrightable work subject to a number of factors. One of the factors is the amount and substantiality of the portion used in relation to the copyrighted work as a whole. It may be reasonable to hold that the reproduction of the whole work or a substantial portion of it as such will not normally be permitted and only extracts or quotations from the work will alone be permitted even as 'fair dealing'. The quantum of extracts or quotations permissible will depend upon the circumstances of each case.
     
    Fair dealing is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work. It permits reproduction or use of copyrighted work in a manner, which, but for the exception carved out would have amounted to infringement of copyright. If a manuscript contains copyright protected work by another, the author or the publishers will first need to determine if the fair deal exception will apply.
  6. Is the consent of a copyright holder required while publishing images that are copyright protected? It is recommended that prior written consent of a copyright holder be obtained prior to using copyright protected images in a published book.
  7. What are the legal challenges faced while publishing maps in a book? Publication of any maps (including pre-independence maps) that depict Indian boundaries requires prior certification from the Survey of India ("SOI"). The Government of India requires that the maps proposed to be published in India should contain accurate and reliable information, particularly with regard to the external boundaries and coast-lines of India. The SOI has issued guidelines for publication of maps by private publishers ("Guidelines"). The Guidelines impose restrictions on the scale and contents of maps which are proposed to be published.
     
    Please note that publishing maps depicting inaccurate external boundaries and coast lines may attract certain legal penalties under the Official Secrets Act, 1923 (restricting the collection and sharing of information about 'prohibited places'), the Customs Act, 1962 (prohibiting the export and import of certain maps), and the Criminal Law (Amendment Act) Act, 1990. We would recommend determining if the maps proposed to be published comply with the Guidelines.
  8. Is it mandatory to provide sources and citations in a manuscript? Though it is not mandatory, but it is highly recommended to provide a manuscript with sources and citations. Under Indian laws, there are no specific guidelines on the mode of citation of references. It is prudent to make detailed and proper citation of the references. It should be noted that citation of the references covers the following areas:

(a) Owner/Author of the reference;
(b) Title of the reference;
(c) Publisher;
(d) Place and year of publication; and
(e) Any other information that may be relevant to identifying the source of the reference.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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