2015 (5) TMI 1137 - SC - Indian Laws

Reference to a historically respected personality - 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 IPC against the author, the publisher and the printer - 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 - Concept of obscenity Held that - 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. We only opine that view of the High Court pertaining to the framing of charge under Section 292 IPC cannot be flawed. Coming to the case put forth by the appellant-publisher, it is noticeable that he had published the poem in question, which had already been recited during the Akhil Bhartiya Sahithya Sammelan at Amba Jogai in 1980, and was earlier published on 2.10.1986 by others. The appellant has published the poem only in 1994. But immediately after coming to know about the reactions of certain employees, he tendered unconditional apology in the next issue of the Bulletin . Once he has tendered the unconditional apology even before the inception of the proceedings and almost more than two decades have passed, we are inclined to quash the charge framed against him as well as the printer. We are disposed to quash the charge against the printer, as it is submitted that he had printed as desired by the publisher. Hence, they stand discharged. However, we repeat at the cost of repetition that we have not expressed any opinion as to the act on the part of the author of the poem, who is co-accused in the case, and facing trial before the Magistrate in respect of the offence punishable under Section 292 IPC. It shall be open for him to raise all the pleas in defence, as available to him under the law. At this juncture, we are obliged to mention that Mr. Nariman, learned friend of the Court also in course of hearing, had submitted that the appellant having offered unconditional apology immediately and regard being had to the passage of time, he along with the printer should be discharged.

Issues Involved:

1. Whether the poem "Gandhi Mala Bhetala" published in the Bulletin could give rise to framing of charges under Section 292 IPC against the author, publisher, and printer.
2. The applicability of poetic license and freedom of speech under Article 19(1)(a) of the Constitution in the context of using historically respected personalities.
3. The interpretation and application of the concept of obscenity under Section 292 IPC.
4. The relevance of the contemporary community standards test in determining obscenity.
5. The impact of using the name of Mahatma Gandhi in the poem on the charge of obscenity.

Detailed Analysis:

1. Framing of Charges under Section 292 IPC:

The core issue revolved around whether the poem "Gandhi Mala Bhetala" could lead to charges under Section 292 IPC. The Court noted that the poem was published in a magazine for private circulation among the members of the All India Bank Association Union. The Magistrate had earlier declined to discharge the accused under Section 292 IPC, a decision upheld by the Additional Sessions Judge and the High Court.

2. Poetic License and Freedom of Speech:

The Court examined the extent to which poetic license and freedom of speech under Article 19(1)(a) could be exercised. Mr. Subramanium argued that poetic freedom is a fundamental right and should not be restricted by concepts of "license" or "permissibility." The Court clarified that while freedom of speech is a fundamental right, it is not absolute and must be balanced against public decency and morality as per Article 19(2).

3. Concept of Obscenity under Section 292 IPC:

The Court delved into the definition and tests of obscenity, referring to various international and national judgments. It highlighted that obscenity must be judged by contemporary community standards and that material is obscene if it tends to deprave and corrupt persons who are likely to read, see, or hear it. The Court also referred to the test laid down in Ranjit D. Udeshi v. State of Maharashtra, which emphasized that obscenity must be weighed against social purpose or profit.

4. Contemporary Community Standards Test:

The Court reiterated that the contemporary community standards test is the prevailing standard for determining obscenity. This test considers the current societal norms and values. The Court noted that the test has evolved over time and must be applied in a manner that reflects the changing perceptions and attitudes of society.

5. Impact of Using Mahatma Gandhi's Name:

The Court emphasized that using the name of Mahatma Gandhi, a historically respected personality, in a manner that could be perceived as obscene, enhances the degree of scrutiny under the contemporary community standards test. The Court stated that the use of Gandhi's name in a poem with obscene words could potentially change the character of the words and make them obscene. The Court left it open for the poet to defend the context and usage during the trial.

Conclusion:

The Court upheld the framing of charges under Section 292 IPC against the author but quashed the charges against the publisher and printer, noting that they had tendered an unconditional apology and considerable time had passed. The Court reiterated that freedom of speech and expression is not absolute and must be balanced against public decency and morality. The contemporary community standards test remains the primary criterion for judging obscenity, and the use of a historically respected personality like Mahatma Gandhi in an obscene context warrants greater scrutiny.

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