Freedom of speech and expression not absolute in the context of obscenity #indianlaws

Considering matter from the point of obscenity, contemporary community standards test is the main criterion and it has to be appreciated on the foundation of modern perception, regard being had to the criterion that develops the literature

Court had following interesting question to adjudicate upon in the instant matter:

“Whether in a write-up or a poem, keeping in view the concept and conception of poetic license and the liberty of perception and expression, use the name of a historically respected personality by way of allusion or symbol is permissible.”

The Controversy in the present matter pertained to the question as to whether the poem titled “Gandhi Mala Bhetala” (‘I met Gandhi’) in the magazine named the ‘Bulletin’ which was published, in July-August, 1994 issue, meant for private circulation amongst the members of All India Bank Association Union, could in the ultimate eventuate give rise to framing of charge under Section 292 of the Indian Penal Code against the author, the publisher and the printer. 

The question thus framed in the factual matrix of the case was that despite all the poetic licence and liberty of perception and expression, whether ‘poem’ or ‘write-up’ can use the name of a historically respected personality by way of an allusion or symbol in an obscene manner. 

It was observed that the court has to take an overall view of the matter with there being an objective assessment and the Judge must in the first place put himself in the position of the author and, thereafter, in the position of reader of every case and must eliminate the subjective element or personal preference; a novel cannot be called obscene usually because of slang and unconventional words in it; the court has to see that the writing is of such that it cannot bring home to the adolescences any suggestion which is depraving or lascivious and that the concept of obscenity usually differs from country to country depending on the standards of morality of contemporary society in different countries.

It was held that considering matter from the point of obscenity, contemporary community standards test is the main criterion and it has to be appreciated on the foundation of modern perception, regard being had to the criterion that develops the literature. There can neither be stagnation of ideas nor there can be staticity of ideals. The innovative minds can conceive of many a thing and project them in different ways. The Court may sometimes have referred to various books on literature of the foreign authors and expressed the view that certain writings are not obscene, but that is not the applicable test. It may at best reflect what the community accepts Right to Freedom of Speech and Expression under the Constitution.

In reference to right to freedom of speech and expression it was observed that the Supreme Court has from time to time expanded the scope of the right to freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution by consistently adopting a very liberal interpretation.

There should not be narrow or condensed interpretation of freedom of speech and expression, but that does not mean that there cannot be any limit. Constriction is permissible under Article 19(2) of the Constitution and in Ranjit D. Udeshi case, the Constitution Bench has upheld the constitutional validity of Section 292 IPC.

The Constitution does not recognize any personality whether historically or otherwise as far as Article 19(1)(a) is concerned. But it would be incorrect if the concept of personality test is applied, a new ingredient to Section 292 IPC would be added which is in the realm of legislature.

It was held that Section 292 IPC uses the term ‘obscene’. While dealing with the facet of obscenity, the Court has evolved the test which holds the field today is the ‘contemporary community standards test’. That does not really create an offence or add an ingredient to the offence as conceived by the legislature under Section 292 IPC. It is a test thought of by this Court to judge obscenity. The said test has been evolved by conceptual hermeneutics.
The question uses the words ‘historically respected persons’ which contextually in the present case would mean Mahatma Gandhi, the Father of the Nation. 

It was observed and held that there can be no two opinions that one can express his views freely about a historically respected personality showing his disagreement, dissent, criticism, non-acceptance or critical evaluation. If the image of Mahatma Gandhi or the voice of Mahatma Gandhi is used to communicate the feelings of Gandhiji or his anguish or his agony about any situation, there can be no difficulty. The issue in the instant case, whether in the name of artistic freedom or critical thinking or generating the idea of creativity, a poet or a writer can put into the said voice or image such language, which may be obscene. 

There can be “art for art’s sake” which would include a poem for the sake of thought or expression or free speech and many a concept. The present question involves the question of sustainability of order of Charge framed in regard to Poem in question for the purposes of Section 292 IPC. The High Court categorically opined in the impugned finding that there was a prima facie case for proceeding against the accused under Section 292 IPC. 
On Appellant’s behalf it was contended that the poem does not use obscene words and it does not come within the ambit and sweep of Section 292 IPC. The poet has expressed himself as he has a right to express his own thoughts in words and further the poem actually expresses the prevalent situation in certain arenas and the agony and anguish expressed by the poet through Gandhi and thus, the poem is surrealistic presentation. 
Whether the poem has any other layer of meaning or not, cannot be gone into at the time of framing of charge. The author in his own understanding and through the process of trial can put his stand and stance before the learned trial Judge.

The words that have been used in various stanzas of the poem, if they are spoken in the voice of an ordinary man or by any other person, it may not come under the ambit and sweep of Section 292 IPC, but the moment there is established identity pertaining to Mahatma Gandhi, the character of the words change and they assume the position of obscenity. To put it differently, the poem might not have been obscene otherwise had the name of Mahatma Gandhi, a highly respected historical personality of this country, would not have been used. 

Free speech is a guaranteed human right and it is in fact a transcendental right. The principle pertaining to the freedom of speech has to be interpreted on an extremely broad canvas and under no circumstances, any historical personality can cause an impediment in the same. 

It was held that freedom of speech and expression has to be given a broad canvas, but it has to have inherent limitations which are permissible within the constitutional parameters. The freedom of speech and expression as enshrined under Article 19(1)(a) of the Constitution is not absolute in view of Article 19(2) of the Constitution. The said right is a right of great value and transcends and with the passage of time and growth of culture, it has to pave the path of ascendancy, but it cannot be put in the compartment of absoluteness. There is constitutional limitation attached to it. In the context of obscenity, the provision enshrined under Section 292 IPC has its room to play. By bringing in a historically respected personality to the arena of Section 292 IPC, neither a new offence is created nor an ingredient is interpreted. The judicially evolved test, that is, “contemporary community standards test” is a parameter for adjudging obscenity, and in that context, the words used or spoken by a historically respected personality is a medium of communication through a poem or write-up or other form of artistic work gets signification. That makes the test applicable in a greater degree. 

For better understanding the court cited an example – A playwright conceives a plot where Mahatma Gandhi, Vishwakavi Rabindra Nath Tagore, Sardar Vallabh Bhai  Patel meet in heaven and they engage themselves in the discussion of their activities what they had undertaken when they lived in their human frame. In course of discussion, their conversation enters into the area of egoism, thereafter slowly graduates into the sphere of megalomania and eventually they start abusing each other and in the abuses they use obscene words. The question would be whether the dramatist can contend that he has used them as symbolic voices to echo the idea of human fallacy and it’s a creation of his imagination; and creativity has no limitation and, therefore, there is no obscenity. But, the author has chosen historically respected persons as medium to put into their mouth obscene words and, ergo, the creativity melts into insignificance and obscenity merges into surface even if he had chosen a “target domain”. He in his approach has travelled into the field of perversity and moved away from the permissible “target domain”, for in the context the historically respected personality matters.

When the name of Mahatma Gandhi is alluded or used as a symbol, speaking or using obscene words, the concept of “degree” comes in. To elaborate, the “contemporary community standards test” becomes applicable with more vigour, in a greater degree and in an accentuated manner. What can otherwise pass of the contemporary community standards test for use of the same language, it would not be so, if the name of Mahatma Gandhi is used as a symbol or allusion or surrealistic voice to put words or to show him doing such acts which are obscene. While so concluding, we leave it to the poet to put his defense at the trial explaining the manner he has used the words and in what context. 

In the instant matter, the Appellant had however after the publication of poem in question after coming to know about the reactions tendered unconditional apology in the next issue of the magazine’. Once he had tendered the unconditional apology even before the inception of the proceedings and almost more than two decades ago, the charges were held to be liable to be quashed. 

[Devidas Ramachandra Tuljapurkar vs. State of Maharashtra & Ors.]
(SC, 14.05.2015 – Criminal Appeal No. 1179 of 2010)