Guest post by RAJSHREE CHANDRA

The immediate motivation for writing this piece has been the passionate and often partisan debate that surrounded the publication of the new, annotated critical edition of B. R. Ambedkar’s work, Annihilation of Caste (AoC) by Navayana Publishing. Sufficient water has flowed under the bridge to soften the various sharp edged stones and so it is perhaps time for some dispassionate perspective on the matter.

There are two kinds of debate that got triggered off by the publication of AoC. One of course relates to the 124 page provocative introduction to AoC written by Arundhati Roy titled ‘The Doctor and the Saint’ – The “Doctor” being Ambedkar and the “Saint” referring to Gandhi. The other relates to questions of ownership of archival material and questions of its fair dissemination. While the former has been hotly, and often intractably, debated by experts, scholars, followers and fans of Gandhi and Ambedkar, it is the latter that has received less attention than it deserves.

The question is important: It does not merely relate to the question of who owns Ambedkar, but in general relates to a wider question of authorship and representation of intellectual heritage. And as I have argued in my earlier posts on Kafila [1], for me the legal question is preceded by a normative concern and a political question, which is this: Should the answer to the question of who speaks for and about Ambedkar be selective? And relatedly, should ideas, works and publications of our thinkers and philosophers be policed and guarded by caretakers and/or representatives deemed to be “authentic” and/or “legal”? But before I come to these questions let me briefly contextualize the publication of AoC, as only a specific instance of his large body of work.

AoC was published in 1936 by Ambedkar himself, after the Lahore based Jat-Pat Todak Mandal cancelled his presidential address on grounds that it was too adversarial and radical. Ambedkar, in the prologue to first edition of AoC writes, ‘[t]he notice of cancellation came long after my presidential address had been printed. The copies of this address are now lying with me. As I did not get an opportunity to deliver the address from the presidential chair the public has not had an opportunity to know my views on the problems created by the Caste System…I have decided to put the printed copies of the address in the market. The accompanying pages contain the text of that address.’

Ambedkar initially published 1500 copies(at his own cost and at what was then a steep price of eight annas). They sold out almost immediately and a second edition was brought out in 1937 as Annihilation of Caste: With a Reply to Mahatma Gandhi. A third edition was published, again by Ambedkar himself, in1944. He initially intended to recast the essay so as to incorporate into it another essay of his called ” Castes in India, their Origin and their Mechanism “, which appeared in the May 1917 issue of the Indian Antiquary Journal.But since he ‘could not find time’ he put out only a reprint of the second edition.

When Ambedkar died in 1956 without leaving a will,the family or the legal heirs became the default bearers and copyright holders, as is usually the case unless the right has been assigned away to a third party. The family has in turn handed over the rights (it seems) to the Maharashtra State government on payment of royalty, which then set up the rather oddly named Babasaheb Ambedkar Source Material Publication Committee (BASMPC) in 1976 to collate, manage, publish and license the use of Ambedkar’s works. The Committee functions as a wing of and under the control of the Department of Higher and Technical Education, Government of Maharashtra.

As per the Indian Copyright Act (1957), copyright shall subsist in any literary works, published within the lifetime of the author, until 60 years from the author’s death. This means that copyright over Ambedkar’s works exists till 2016 (or 2017, if it is to be counted form the “from the beginning of the calendar year next following the year in which the author dies” – Section 22, Chapter V). In effect it means that copyright can be owned at least till 2016. The point, however, that has been brought to light by a recent controversy and legal quagmire involving Navayana’s publication of AoC, is the question of who owns archives in general and, importantly, can they be owned and can ownership be policed and asserted with any degree of fairness and justice to scholarship of both Ambedkar and the scores of scholars attempting to work, enrich and systematize particular piece/s of Ambedkar’s work.

Ownership issues relating to both the copy –AOC – and often, relatedly, of his ideas has remained overdetermined with issues of Dalit ontologies, tied subjectivities and questions of right to represent and re-present Ambedkar.On the one hand, there is a Committee that adjudicates who gets to access and publish works of Ambedkar, on the other there are some Dalit scholars and Ambedkarites who regard the very act of a savarna “speaking Ambedkar” to be an act of appropriation that forms yet another iteration of the “over-powering” of Dalit voice. Some, though not all, of it has the potential for an intellectual and political engagement. But the key point here is that both these forums lay the ground for discriminatory, often arbitrary denial of access to the work of Ambedkar as a thinker, philosopher,  leader,  jurist,  nationalist,  contrarian nationalist, Dalit activist, who was pioneering and prolific.

It is for a reason that I use these multiple epithets, mainly to draw attention to the varied nature of his intellectual legacy, from which different people/s, groups, scholars can draw variously. Ambedkar was a prolific writer. One gets a sense of how much he wrote through even a cursory perusal of the content of the 22 Volumes published by the BASMPC. Countless notes and unfinished drafts also remain scattered, unassimilated outside of the 22 volumes. In a blogpost, Praveen Khobragade recounts how many copies (for instance, four copies of Riddles in Hinduism), unpublished manuscripts, uncounted precious documents and important papers were recklessly removed out of Savita Ambedkar’s (his wife) residence (26 Alipore Road, Delhi), ‘many of them destroyed and reduced to waste paper due to the reckless handling and rain the same night’ (26 January, 1967).

Of the archives with BASMPC, Volumes 1 – 17 were collated and edited by the late Vasant Moon and Volumes 17 -22 by his successor, Hari Narke from 2002 onwards. There are reports on how Hari Narke has “miserably failed as Editor”, how he has neither collected “new” literature nor published any volume of his own accord except the volumes 21 and 22, and how Volumes 21 and 22 are full of “innumerable mistakes”, “substandard editing” and how Volumes 19 and 20 were taken by him to London “without the permission of the government” and how they were“released there even prior to their release in India”. The photo biography published by the BASMPC in 2010 is a “storehouse of factual and grammatical glitches”, rare photographs do not carry basic information such as corresponding names, dates, events, errors of information and so on.To place a vast complex collection of material in the hands of body that may have highly questionable scholarly credentials and then to grant it the power to assert its copyright / licensed status to exclude scholars and publishers from using the archive to bring out critical editions of Ambedkar’s works is to actually diminish Ambedkar and his vast and vastly influential intellectual legacy.

Annhilation of Caste has rarely been out of print and multiple editions circulate both as copyrighted copies and in the public domain. AoC has been published widely, sometimes with the permission of BASMP and at times without. These include Mulk Raj Anand’s Annhilation of Caste: An Undelivered Speech (Arnold Publication, 1996); Annihilation of Caste (New York: Columbia University, 2004); The Essential Writings of B.R. Ambedkar edited by Valerian Rodrigues (OUP, 2002). Then there are editions and publications in regional languages such as Tamil and Marathi. Organizations such as Dalit Murasu in Tamil Nadu have been bringing out inexpensive copies of the classic and have sold over 17000 copies (as cited by in Down to Earth, 30 April, 2013). Apart from AoC, Ambedkar’s Buddha and His Dhamma has been published by Columbia University sourced from Dr. Babasaheb Ambedkar: Writings and Speeches, Vol. 11 (Bombay: Education Department, Government of Maharashtra, 1992); a critical edition of the same has been edited by Aakash Singh Rathore and Ajay Verma published by OUP in 2011. Last year, Planning Commission member Narendra Jadhav published Ambedkar Speaks, an expensive selection of Ambedkar’s speeches. Also, well before BASMAPC started publication in 1979, Bhagwan Das, who had had close access to Ambedkar as a research assistant, had edited, compiled and produced a four-volume Thus Spoke Ambedkar series between 1963 and 1980. Together with Lahori Ram Balley of BheemPatrika, he pioneered the publication of Ambedkar’s writings and speeches.These were ‘perhaps the first, professional efforts to publish Ambedkar’s writings in one place’.

In some of these cases, especially those that relate to the critical editions published by big publishing houses, the copyright has been claimed by the author/s (in Narendra Jadhav’s case, for instance, the copyright is owned by his wife Vasundhara Jadhav), indicating deeply imbricated and therefore tenuous copyright claims.Needless to say that not only does this make for a vast public domain of Ambedkar’s works, but also for nebulous copyright claims. At best, these claims may translate into royalties to copyright holders but the exclusionary part of the copyright claim – i.e the ability of the copyright claim to exclude others from using the same material – would tend to be very tenuous, in the absence any one copy that can be proven to be the source. Copyrights claims in such cases can at best be nebulous rights claims that neither have clear obligations attached to them nor have sharply defined duties or, in Hohfeldian parlance, duty correlatives of forbearance or omission.

When S. Anand, publisher of Navayana, sought permission from the BASMPC to bring out a critical edition of AoC (which included a 124 page introduction by Arundhati Roy and annotations in the main text by him) he may have thought that the copyright rules entail an obligation upon him to approach and seek the permission of BASMPC in early 2013. After a long wait, which included several reminders and phone calls, the Committee in November 2013, through a telephonic communication, denied permission. An RTI was filed by Navayana asking for the grounds on which previous publications were granted or denied permission, but this did not yield clear responses. Subsequently, Navayana seeking relief filed a suit in Delhi Court. The Delhi High Court sent a notice to the defendants – the Maharashtra State Government – asking them to prove their copyright. It was then that the Maharashtra State government submitted an affidavit in the HC stating that it does not have a copyright and that it is merely a license holder. Navayana withdrew the suit as the very grounds of exclusion (of its right to publish AoC) seemed no longer valid and of any legal consequence.

Meanwhile, also doing the rounds were reported claims, (see Arunabh Saikia here), that because Navayana published the critical edition of AoC without the explicit permission of BASMP Committee, it was a violation of copyright that should attract legal action. The “legal action” argument is problematic because it presumes that the Committee can have valid and legitimate grounds to grant selective access and permissions.And precisely because all such selections will be based on some arbitrary criteria, we need apply a cautionary principle when invoking “law” and its presumed objectivity

There are two kinds of issues that are thrown up here. The first relates to the viability of a copyright claim where there has been a large, ungoverned and unregulated public domain which has been “appropriated”, drawn upon, used freely, published, republished new editions, critical editions, edited editions, blogs with downloadable pdf versions and so on. When legal claims of copyright have remained legally unasserted or unclaimed for long, there will be, as there should be, a plethora of works, interpretations, appropriations, legal claims and moral claims that are neither mutually exclusive not exclusively proprietorial. The point I am trying to make is that a lot of Ambedkar’s work existed and continue to exist in the public domain. Multiple copyright and license claims (OUP, Arnold, Family, Maharashtra State Government for instance) only indicate that authorships that have disseminated and dispersed without clear, legal, assertable proprietorial claims, are difficult to police.

Knowledge resources in any case present troubling and tenuous claims for intellectual property ownership. As I have argued elsewhere the problem lies in the nature of the ‘things’: ideas are not like tables or televisions that deplete or exhaust with use! Explaining the distinction, Thomas Jefferson [in 1813] stated evocatively: “If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea. . . . Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.” This is an intuitively powerful distinction, one which informs the common sense of people in their everyday conduct but one which is increasingly ignored by contemporary jurisprudence. Being non-rivalrous (i.e it does not rival another persons simultaneous use) and non-excludable (one person’s use does not divest another of similar and/or concurrent use), it is in the nature of “knowledge” that it lends itself to becoming a public or “commons” resource.

But, this is a point G. Sampath fails to consider when he censures Arundhati Roy for upholding the rights of the Dongria Kondh Adivasis ‘to keep the bauxite in the Niyamgiri hills, and about the central role of their deity, Niyamraja, in giving them a sense of identity and community’, but for not acknowledging the right of the ‘Dalits’ wish to keep Ambedkar for Dalits alone’. There are a couple of fallacious assumptions here. The Dongria Kondh struggle was never about “keeping bauxite” – that’s a fact check; it was about “keeping” the Niyamgiri mountain, which is considered to be the abode of their deity,  Niyamraja. Bauxite was incidental to their main fight as it lay within the premises of their Deity. They were fighting to preserve/protect the abode – the physical, tangible, determinate space – of Niyamraja. The destruction or appropriation of tangible objects like mountains presents a substantively different issue of ownership or claim, where its destruction would divest the present claimants of both its use and/or ownership. This was not a fight about claiming or being the authentic representatives of Niyamraja, as in the case of Ambedkar, even if we were, for the sake of an argument, to suspend objections about the deification of Ambedkar. Both Ambedkar and Niyamraja can be “worshipped” without depriving simultaneous and concurrent worships.

The second issue that I alluded to earlier relates to both a normative and a political question. It asks, should intellectual heritage, public works be the exclusive claim of a body, or committee, or family or community? Is there a concern for the social value of invaluable archives such as that of Ambedkar’s (or Nehru’s or Periyar’s) that should precede concerns of legal claims and representations? Archives are repositories of histories, of lived lives, links to future and, most importantly, engines of creativity, scholarship. To re-collect and re-present the past is to produce something new, or if you like, produce the future.Works such as those of Ambedkar provide a vocabulary for new political assertions, identities and reworked social structures. For such works and similar archives we need to assess the potential for harm that obstacles like their exclusionary (copyright) assertions present. The harm that restricted access can cause can be assessed in terms of restrictions of freedom, rights and scholarly growth of an archive/tradition, and that needs to be weighed against the gains accrued by assertions of licensed restrictions. This is not a crude cost benefit analysis butis one that should underlie the conduct of both politics and political morality.

There is legal precedence for such a version of political morality in the Periyar judgement (Periyar Self Respect Propaganda Institution (PSRP) vs. Periyar Dravida Kazagham), a case that centered on the issue of access and publication of Periyar (E.V) Ramasami’s works. Periyar Ramasami, a great visionary, founder of the Self-Respect Movement in 1926, trenchant critic of caste, religion, and mainstream nationalism, wanted widespread dissemination of his ideas and works. He printed his works on cheap paper so they could be distributed free. After Periyar’s death in 1973, his manuscripts were held by Periyar Self Respect Propaganda Institution (PSRP). In August 2008, PSRP filed a copyright infringement suit to restrain Periyar Dravida Kazhagam (PDK) from publishing Periyar’s works (specifically the compilation of the weekly journal started by Periyar, Kudiyarasu). In its judgement in July 2009, the Madras High Court gave two legal reasons why Periyar could not be considered the intellectual property of PSRP. One, that Periyar died intestate and that there was no written or other materials to show that a copyright has been reserved by him as an author of those articles or that he assigned it in favour of PSRP. Two, creativity standards that underlie claims of authorship do not apply to works of compilations and can at best be viewed as a ‘result of the labour, skill and investment of capital, lacking even minimal creativity. It does not as a whole display sufficient originality so as to amount to an original work of the author’[emphasis mine]. For these reasons the Court ruled that the compilation of Kudiyarasu did not create any copyright for PSRP (Para 38) and therefore re-publication of Periyar’s works did not constitute an infringement of copyright.

There was a dramatic “caveat” presented by the Court towards the end of the judgement. After recounting how Periyar freely distributed his ideas and works, the Court stated: The year 2009 is going to be the 130th year of his birth and it is painful to see a legal battle on copyright issues over his writings. In this fratricidal dispute, his ideas should not be submerged in court dockets. It is hope of this court that reason will prevail. Our motto should be: “Let hundred flowers bloom and thousand thoughts contend.”

The Court  “caveat” in a sense is mindful of the “harm principle”, and the harm caused when archives are bounded or submerged in legality. The question of legitimacy often needs to be freed from the question of legality. So, instead of merely asking whether there can be legal grounds of access, we also need to ask the question whether there can be legitimate grounds on which particular interests can be considered as not worthy of access and/or license to publish ? I do not have access to the grounds on which BASMPC denied permission to Navayana (and allegedly to other scholars as well) to bring out a critical edition. And I also do not wish to second guess the Committee’s motivation and conflate it with issues of “authentic representation”, “authentic victimhood”, “Dalit essentialism”, “power differentials leading to appropriation” etc (see here for a discussion). These are important, (and as all important issues are) contestable issues that relate to issues of Dalit representation, about who gets to speak for whom and about whom and instead of whom, and may even have the potential to get causally tied to the issues of who gets to legally publish and who does not. But those are separate questions, and important and elliptically tied as they may be, I want focus on whether these questions should relate to law or whether they are best kept outside the purview of law and its adjudicatory mechanisms?

Claiming intellectual heritage on grounds of “authenticity” is a dangerous precedent for democracies that function through laws and courts and governments and committees. This means that we should insist that people/groups/communities are subject only to the determinate and predictable demands of the law, not to the potentially arbitrary authority of persons and their discursive perceptions of authentic inclusions and exclusions.

[1] Copyrights versus The Right to Copy – A Normative Perspective

Is there anything like ‘copying’ fairly?