November 6, 2015
You might be puzzled by the strange title of this note on curtailments to Constitutional freedom of speech in the judgement on a recent case. I wish to emphasise my disdain at the Supreme Court’s judgement in Devidas Ramachandra Tuljapurkar v. State of Maharashtra & Ors. Criminal Appeal No. 1179 of 2010. It is a 145 page judgement, but in actuality, it can be summed up by just two words: “blank space”. I wistfully wanted a title that alludes to Gandhi, but will settle for Shakespeare’s Macbeth; “but now I am cabined, cribbed, confined, bound in/ To saucy doubts and fears.” The judgment appears to me as a rebuking and watchful Banquo’s ghost as it curbs my liberty to imagine, read, and write since I fear that were I to do so, it would attract Section 292 of Indian Penal Code, 1860, that criminalises the use of provocative expression “such as to tend to deprave and corrupt”. Dworkin notes that freedom is anything that you want to do without the government’s constraint while liberty is that part of freedom which the government would do wrong to constraint. He argues for the citizen’s right to liberty. Rights to free speech derive from the right to govern themselves which, in turn, is derived from personal responsibilities. However, the Hon’ble Supreme Court has denounced this notion about liberty. And, further, it has strengthened the hands of this dictatorial government to restrict the freedoms under Article 19 of the Constitution, especially Article 19 (1)(a).
The issue before the Court was whether the poem titled “Gandhi Mala Bhetala” ("I met Gandhi") in the magazine titled Bulletin, published in July-August, 1994, meant for private circulation amongst the members of All India Bank Association Union, could admit the framing of charges under Section 292 IPC against the author, the publisher, and the printer. This issue led to the core question: whether in a poem or written text, the use of the name of a historically respected personality by way of allusion or symbol was permissible.
Gopal Subramaniam, the learned counsel for the appellant, contended that a poem or a write-up is indeed a part of free speech and expression, as perceived under Article 19(1)(a) of the Constitution. Learned Amicus Curiae, Fali Nariman submitted that the Constitution does not recognise absolute freedom and Article 19(2) of the Constitution regulates the same and Section 292 of IPC is a provision which is saved by Article 19(2).
Subramaniam referred to the Black’s Law Dictionary that defines obscenity as follows: “Obscene, adj. (16c) – Extremely offensive under contemporary community standards of morality and decency; grossly repugnant to the generally accepted notions of what is appropriate.” He pleaded that Hicklin test in its original, that provided that a publication could be banned if it had a tendency to deprave and corrupt those whose minds are open to such immoral influences, has been abandoned in the United Kingdom and the approach has been more liberal with regard to the developments in the last and the present century.
Let us quickly look at three cases that have been crucial in interpreting the constituents of the freedom of speech. In Roth v. United States, 354 U.S. 476 (1957), the Court repudiated the Hicklin test and defined obscenity more strictly, as material whose "dominant theme taken as a whole appeals to the prurient interest" to the "average person, applying contemporary community standards." Moreover, Congress could ban material, "utterly without redeeming social importance". In Marvin Miller vs. State of California 413 US 15 (1973): 93 S.Ct. 2607, the US Supreme Court rejected the redeeming social value test laid down in Roth and introduced a new three pronged test: (a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. In the third case that I would like to refer to, Vereinigung Bildender Kinstler v. Austria Application No. 68354/2001, the painting in question showed a collage of various public figures such as Mother Teresa, the former head of the Austrian Freedom Party (FPO) Mr. Jorg Haider, in sexual positions. While the naked bodies of these figures were painted, the heads and faces were depicted using blown-up photos taken from newspapers. The eyes of some of the persons portrayed were hidden under black bars. The Austrian Court permanently barred the display of the painting on the ground that it debased the plaintiff and his political activities. The European Court of Human Rights ruled that such portrayal amounted to a caricature of the persons concerned using satirical elements. It noted that satire is a form of artistic expression and social commentary and, by its inherent features of exaggeration and distortion of reality, naturally aims to provoke and agitate. Accordingly, any interference with an artist's right to such expression must be examined with particular care.
The Hon’ble Supreme Court also referred to K. T. Shah’s speech in the Constituent Assembly Debates with respect to the freedoms under the Constitution: “Any exception which is made, unless justified by the spirit of the Constitution, the Constitution as a whole and every part of it included, would be a violation of the freedoms guaranteed hereby.” (December 1, 1948). Ironically, the Court refers to many progressive judgements and writings on the freedom of speech and expression and liberty before pronouncing a judgement which curtails the said freedom and liberty.
In paragraph 69, the Court discusses Gajanan Visheshwar Birjur v. Union of India (1994) 5 SCC 550, wherein this Court was dealing with the order of the confiscation of books containing Marxist literature. The Court, referring to the supremacy of the fundamental right to freedom of speech and expression, observed that the Constitution of India permits a free trade in ideas and ideologies and guarantees freedom of thought and expression, the only limitation being a law in terms of Clause (2) of Article 19 of the Constitution. The Court further observed that thought control is alien to our constitutional scheme and referred to the observations of Robert Jackson, J. in American Communications Association v. Douds 339 US 382 with reference to the US Constitution wherein it was stated that thought control is a copyright of totalitarianism, and it was unacceptable. The Court finally stated that it is not the function of our Government to keep the citizen from falling into error; it is the function of the citizen to keep the Government from falling into error. Unfortunately, in the present case, the Court does the opposite, and limits the free speech of citizens.
In Sahara India Real Estate Corpn. Ltd. v. SEBI (2012) 10 SCC 603 it was held that “freedom of expression has a capacious content and is not restricted to expression of thoughts and ideas which are accepted and acceptable but also to those which offend or shock any section of the population. It also includes the right to receive information and ideas of all kinds from different sources.” J.S. Mill writes in On Liberty, “the principle requires liberty of tastes and pursuits; of framing the plan of our life to suit our own character; of doing as we like, subject to such consequences as may follow: without impediment from our fellow creatures, so long as what we do does not harm them, even though they should think our conduct foolish, perverse, or wrong.”
After such references, the Court held, “We have used the expression ‘historically respected personalities’. It is true that the Constitution does not recognize any personality whether historically or otherwise as far as Article 19(1)(a) is concerned. While dealing with the facet of obscenity, this Court has evolved the test. The test evolved by this Court, which holds the field today is the ‘contemporary community standards test’.
It is immensely incongruous when the Court observes in paragraph 92, “We are reminded of what Voltaire said, “I do not agree with what you have to say, but I’ll defend to the death your right to say it” or for that matter what George Orwell wrote, “If liberty means anything at all, it means the right to tell people what they do not want to hear”.
To reproduce certain extracts from the judgement which makes the Hon’ble Court’s rationale look specious and paradoxical, one can scrutinise paragraphs 94 and 96:
94. 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.
96 quotes Mill’s point of view that “poetry is, but the thought and words in which emotion spontaneously embodies itself.” It is Subramaniam’s further submission that 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.
Further, in paragraph 101 the Court exercises censorship, and remarks: “The learned friend of the Court has referred to certain stanzas of the poem. We do not intend to reproduce them in their original form. But we shall reproduce them with some self-caution.” The degree of caution exercised by them makes it impossible for anyone to discern the contents of the poem.
In paragraph 102 of the judgement, the Court notes that “Submission of Mr. Nariman, learned amicus curiae, is that 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. According to him, the poem does not subserve any artistic purpose and is loathsome and vulgar and hence, it comes within the sweep of Section 292 IPC. This contention was upheld by the Supreme Court.
Since I cannot make references to Gandhi, I would just quote him: “I want freedom for the full expression of my personality.” Had he been alive today, he would have certainly been harrowed by this judgement. India already has a long list of books that it has banned. Certain content contained in some of those books on historical personalities is of a sexual nature. Therefore we are deprived of getting an opportunity to read The Great Soul by Joseph Lelyveld (as it was alleged that the book portrays Gandhi as bisexual) or Reminiscences of Nehru Age by M.O. Mathai since it contains details about the personal lives of Jawaharlal Nehru and Indira Gandhi. These banned books, the pulping by Penguin of Wendy Doniger’s The Hindus, and the Censor Board’s egregious attitude towards creativity seem like a prequel to this pusillanimous judgment. It is time that we asked ourselves the question: what is it that we want? Creative expression to be debilitated and throttled due to this weal of censorship? Voltaire had written, “Tolerance has never provoked a civil war; intolerance has covered the Earth in carnage1. “However, the present plight of freedom of expression is melancholic, more so for a country that fought for press freedom valiantly, such as in the case of “Bellona’s Bridegroom”. As early as 1824, Raja Rammohun Roy had protested against a regulation restricting the freedom of the press. One of the central human capabilities propounded by Nussbaum is the entitlement of being able to use the senses to imagine, think, and reason in relation to experiencing and producing works and events of one’s own choice. The capabilities approach provides the philosophical underpinning for an account of core human entitlements that should be respected and implemented by the governments of all nations, as a bare minimum of what the respect for human dignity requires. I hope that our government and courts will be persuaded by this sound fundamental argument.
The judgement deprives me essentially of my freedom of choice, which I believe is the most important freedom. And further, it violates the rule of law by setting a different rule for ordinary citizens and a different rule for “historically respected personalities”. However, let us fight for this entitlement, this freedom to imagine, read and receive information, and not be vanquished in our struggle to uphold this most fundamental of freedoms. To quote Gandhi, the “historically respected personality” around whom the current controversy has been playing out in our courts: “The golden rule is to act fearlessly upon what we believe to be right.”
Devyani Tewari, B.A. L.L.B. (Hons.), NALSAR University of Law (2013), is currently Research & Advocacy Officer, Lawyers Collective- Women’s Rights Initiative, New Delhi.
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