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TMI Blog2015 (5) TMI 1137X X X X Extracts X X X X X X X X Extracts X X X X ..... erwise 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion or symbol; (c) could that allusion be resorted to in a write-up or a poem; (d) whether the conception and concept of poetic license permits adopting an allusion; and (e) whether any of the above could involve ascribing words or acts to a historically reputed personality which could appear obscene to a reader. He has urged with solemn vehemence that when the author is not represented before the Court, adjudication on an important issue which fundamentally relates to freedom of thought and expression, would be inappropriate and 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 and that apart the expression poetic licence is neither a concept nor a conception because the idea of a poetic freedom is a guaranteed and an enforceable fundamental right and this Court should not detract and convert it into a permissive licence. Additionally, learned senior counsel has contended that quintessential liberty of perception and expression when placed in juxtaposition with poetic licence , is inapposite since the expression permissible sounds a discordant note with liberty of perception and expression , a sacros ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y respected personality was used in the backdrop of the use of the name of Mahatma Gandhi. When the name of such a respected personality is used as an allusion or symbol, and language is revoltingly suggestive whether that is likely to come within the perceived ambit and sweep of Section 292 IPC, whether it is permissible. We shall dwell upon this facet when we will discuss the poem in a prima facie manner, for the purpose of scrutinising the order framing charge; and we shall also deal with the submission of Mr. Subramanium, which has been assiduously put forth by him that the name of Gandhi has been used as a surrealistic voice and hence, the poet is entitled to use the language as a medium of expression in the poem. We do not intend to catalogue names of historically respected personalities as that is not an issue in this case. Here the case rests on the poem titled I met Gandhi . As far as the words poetic license , are concerned, it can never remotely mean a license as used or understood in the language of law. There is no authority who gives a license to a poet. These are words from the realm of literature. The poet assumes his own freedom which is allowed to him by the fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Padlalityam . Some critics like Vamana, stressing on soul of poetry perceive riti as Ritiraatma kavyasya . Some also subscribe to the theory that rasa gets expressed through dhvani. There are thinkers who compare writings of T.S. Eliot, when he states poetic delineation of sentiments and feelings, to have the potentiality of being associated with the element of surprise which is essential to poetry, and there he is akin to Indian poeticians like Kuntaka who called poetry vakrokti which he explains as vaidagdhyabhangibhaniti a mode of expression depending on the peculiar turn given to it by the skill of the poet. Some emphasise on best words used in best order so that poem can attain style and elevation. To put it differently, the poetic licence can have individual features, deviate from norm, may form collective characteristics or it may have a linguistic freedom wider than a syntax sentence compass. 4. We have emphasised on these facets as we are disposed to think that the manner in which the learned senior counsel has suggested the meaning of poetic license is not apt. Freedom of writing is not in question. That cannot be. And we say so without any fear of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as regards its phraseology, the meaning of the term obscenity has to be appositely understood. He has 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. Under the Supreme Court's three- part test, material is legally obscene - and therefore not protected under the First Amendment - if, taken as a whole, the material (1) appeals to the prurient interest in sex, as determined by the average person applying contemporary community standards; (2) portrays sexual conduct, as specifically defined by the applicable state law, in a patently offensive way; and (3) lacks serious literary, artistic, political, or scientific value. Miller v. Callifornia, 413 U.S. 15, 93 S.Ct. 2607 (1973). If there be no abstract definition, ... should not the word 'obscene' be allowed to indicate the present critical point in the compromise between candor and shame at which the community may have arrived here and now? United States V Kennerley, 209 F. 119, 121 (S.D.N.Y.1913) (per Hand.J. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , United States of America, European Courts and this Court to pyramid the proposition that the tests laid down by legal system including the authorities of this Court do not suggest that that the instant poem can remotely be treated as obscene. First, we shall dwell upon the tests and standards laid by various Courts and then the binding authorities of this Court and thereafter to the concept of freedom of speech and expression on the constitutional parameters and finally delve to adjudge the facet of obscenity and address applicability of the determined test in the context of the question and ultimately the nature of the poem and the justifiability of the order impugned. Test evolved in United Kingdom 12. As far as United Kingdom is concerned, Mr. Subramanium has referred to Regina v. Hicklin [LR 1868 3 QB 360], the meaning given by Cockburn C.J. and drawn our attention to the Article by J.E. Hall Williams in Obscenity in Modern English Law[20, Law and Contemporary Problems (1955): 630-647] wherein the learned author observed that Hicklin (supra) gave a complete go by to the principle of mens rea which propounds a certain degree of protection to the accused. The learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rary standards as being the level of something that is suitable for a fourteen- year-old school girl? Or do we go even further back than that, and are we to be reduced to the sort of books that one reads as a child in the nursery? The answer to that is: Of course not. A mass of literature, great literature, from many angles is wholly unsuitable for reading by the adolescent, but that does not mean that the publisher is guilty of a criminal offence for making those works available to the general public. In the ultimate eventuate, the learned Judge concluded, thus:- I do not suppose there is a decent man or woman in this court who does not whole-heartedly believe that pornography, the filthy bawdy muck that is just filth for filth s sake, ought to be stamped out and suppressed. Such books are not literature. They have got no message; they have got no inspiration; they have got no thought. They have got nothing. They are just filth and ought to be stamped out. But in our desire for a healthy society, if we drive the criminal law too far, further than it ought to go, is there not a risk that there will be a revolt, a demand for a change in the law, and that the pendulum may swi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the obscenity laws in England and Wales. In the said case, Michael Peacock, was charged on indictment with six counts under the 1959 Act for allegedly distributing the obscene DVDs that contained videos of homosexual sadomasochism and BDSM pornography. The accused in the said case successfully pleaded not guilty. The legal experts of England and Wales started opining that the 1959 Act had become redundant. 17. Relying on the aforesaid authorities, it is submitted by Mr. Subramanium, learned senior counsel appearing for the appellant that Hicklin test in its original has been abandoned in United Kingdom and the approach has been more liberal regard being had to the developments in the last and the present century. It is his submission that the perception of the Victorian era or for that matter, thereafter has gone through a sea- change in the last part of 20th century and in the first part of this century and the freedom of speech and expression has been put on a high pedestal in the modern democratic republic. It is urged by him that in the digital age, the writings and the visuals do no longer shock or deprave or corrupt any member of the society as the persons are capable enou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at obscenity is not within the area of constitutionally protected speech or press. 20. In Memoirs v. Masachusetts[383 U.S. 413 (1966)], while explaining the term obscenity , the Court referred to the Roth (supra) and stated thus:- 3. We defined obscenity in Roth in the following terms: [W]hether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest. Under this definition, as elaborated in subsequent cases, three elements must coalesce: it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value. After so stating, the U.S. Supreme Court proceeded to consider whether the book in question could be stated to be truly without social importance. Thus, there was no departure from the redeeming social importance test, but it also introduced contemporary community standards test. 21. In Marvin Miller vs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... For example, medical books for the education of physicians and related personnel necessarily use graphic illustrations and descriptions of human anatomy. In resolving the inevitably sensitive questions of fact and law, we must continue to rely on the jury system, accompanied by the safeguards that judges, rules of evidence, presumption of innocence, and other protective features provide, as we do with rape, murder, and a host of other offenses against society and its individual members.[16] 25. Under a National Constitution, fundamental First Amendment limitations on the powers of the States do not vary from community to community, but this does not mean that there are, or should or can be, fixed, uniform national standards of precisely what appeals to the 'prurient interest' or is 'patently offensive.' These are essentially questions of fact, and our Nation is simply too big and too diverse for this Court to reasonably expect that such standards could be articulated for all 50 States in a single formulation, even assuming the prerequisite consensus exists. When triers of fact are asked to decide whether 'the average person, applying contemporary community s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of contemporary state standards. In a law censoring speech, writing or publication, such an indeterminate test is intolerable. It means that anyone who publishers or distributes arguably obscene words or pictures does so at the peril of punishment for making a wrong guess about a future jury s estimate of contemporary state standards of prurience. As we understand, with the passage of time tests have changed and there are different parameters to judge obscenity but the authorities clearly lay down that the freedom of speech is not absolute on all occasions or in every circumstance. Comparables Test 26. Mr. Subramanium has pointed out that in American Jurisprudence the argument of comparables has gained considerable force in cases of obscenity and freedom of speech. He has referred to Joan Schleef s note on United States v. Various Articles of Obscene Merch[19] wherein the learned author has shown comparables test. Explaining the said concept, the learned author projects that the gist of the comparables argument is that in determining whether materials are obscene, the trier of fact may rely on the widespread availability of comparable materials to indicate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity standards are viable in a digital online world the High Court never could have imagined when it adopted Miller back in 1973. Unit such time, lower courts will be left to wrestle with these issues, with some seeming to clearly sidestep Miller on the taken-as-a whole requirement in contravention of the high court s admonishment in 2002 that this was as essential rule of First Amendment jurisprudence. Thus, the comparables test even if it is applied, the concept of contemporary comparative standards test along with other tests has not been abandoned. The learned author in his article has referred to the majority view in Ashcroft v. Free Speech Coalition[535 U.S. 234, 248 (2002)] where Justice Anthony Kennedy added:- Under Miller, the First Amendment requires that redeeming value be judged by considering the work as a whole. Where the scene is part of the narrative, the work itself does not for this reason become obscene, even though the scene in isolation might be offensive. Mr. Subramanium has urged that the comparables test has also been accepted in a different context by some High Courts in India. In this regard, he has been inspired by the ratiocination in Kavit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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. Among these persons was Mr. Meischberger, a former general secretary of the FPO until 1995, who at the time of the events was a member of the National Assembly. The Austrian Court permanently barred the display of painting on the ground that the painting debased the plaintiff and his political activities. The Association of Artists appealed to the European Court and the said Court thought it appropriate to come to the conclusion that the prohibition by the Austrian Court of the painting was not acceptable. It observed that though the painting in its original state was somewhat outrageous but it was clear that the photographs were caricature and the painting was satirical. We have been commended, in this regard, to certain passages by Mr. Subramanium. They read as follows:- 33. However, it must be emphasised that the painting used only photos of the heads of the persons co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... democratic society . Those who create, perform, distribute or exhibit works of art contribute to the exchange of ideas and opinions which is essential for a democratic society. Hence the obligation on the State not to encroach unduly on their freedom of expression. Artists and those who promote their work are certainly not immune from the possibility of limitations as provided for in paragraph 2 of Article 10. Whoever exercises his freedom of expression undertakes, in accordance with the express terms of that paragraph, duties and responsibilities ; their scope will depend on his situation and the means he uses (see Muller and Others v. Switzerland, judgment of 24 May 1988). 29. Learned amicus curiae has also referred to one of the dissenting opinions of Judge Loucaides, which is to the following effect:- The majority found that the images portrayed in the painting in question were artistic and satirical in nature . This assessment had a decisive effect on the judgment. The majority saw the painting as a form of criticism by the artist of Mr Meischberger, a politician and one of the persons depicted in it. It was he who brought the proceedings which led to the impug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gitimate expression of artists insulting pictures that undermine the reputation or dignity of others, especially if they are devoid of any meaningful message and contain nothing more than senseless, repugnant and disgusting images, as in the present case. As was rightly observed in the judgment (paragraph 26) Artists and those who promote their work are certainly not immune from the possibility of limitations as provided for in paragraph 2 of Article 10. Whoever exercises his freedom of expression undertakes, in accordance with the express terms of that paragraph, duties and responsibilities ; their scope will depend on his situation and the means he uses Nobody can rely on the fact that he is an artist or that a work is a painting in order to escape liability for insulting others. Like the domestic courts, I find that the painting in question undermined the reputation and dignity of Mr Meischberger in a manner for which there can be no legitimate justification and therefore the national authorities were entitled to consider that the impugned measure was necessary in a democratic society for the protection of the reputation or rights of others. The learned amicus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6] 12. In a word, a person's human dignity must be respected, regardless of whether the person is a well-known figure or not. 13. Returning to the case before us, we therefore consider that the reasons that led the court to find a violation (see paragraph 4 above) are not relevant. Such considerations must be subordinate to respect for human dignity. 30. Mr. Nariman, scanning the judgment has submitted that artistic freedom outweighs personal interest and cannot and does not trump nor outweigh observance of laws for the prevention of crime or laws for the protection of health or morals; that the limits of artistic freedom are exceeded when the image of a person (renowned or otherwise) is substantially deformed by wholly imaginary elements without it being evident from the work (in the present case from the poem) that it was aimed at satire or some other form of exaggeration; that the freedom of artistic creation cannot be claimed where the work in question constitutes a debasement and debunking of a particular individual s public standing; that the European law recognises that whosoever exercises freedom of expression undertakes in addition duties and responsibilit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther standpoint, whoever exercises his freedom of expression undertakes duties and responsibilities the scope of which depends on his situation and the technical means he uses. The Court cannot overlook such a person s duties and responsibilities when it enquires, as in this case, whether restrictions or penalties were conducive to the protection of morals which made them necessary in a democratic society . Mr. Subramanium, learned senior counsel has emphasised that the freedom of expression as protected by Article 10 of ECHR constitutes an essential basis of a democratic society and any limitations on that freedom have to be interpreted strictly. Mr. Subramanium has also referred us to Editorial Board of Pravoye Delo and Shtekel v. Ukraine[Application No. 33014/05, 5 May 2011], wherein the European Court, for the first time, acknowledged that Article 10 of ECHR has to be interpreted as imposing on States a positive obligation to create an appropriate regulatory framework to ensure effective protection of journalists freedom of expression on the Internet. He has also drawn our attention to Akda v. Turkey[Application No. 41056/04, 16 February, 2010], wherein the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce is intercut at frequent intervals with a second sequence in which one sees the body of Christ, fastened to the cross which is lying upon the ground. St Teresa first kisses the stigmata of his feet before moving up his body and kissing or licking the gaping wound in his right side. Then she sits astride him, seemingly naked under her habit, all the while moving in a motion reflecting intense erotic arousal, and kisses his lips. For a few seconds, it appears that he responds to her kisses. This action is intercut with the passionate kisses of the psyche already described. Finally, St Teresa runs her hand down to the fixed hand of Christ and entwines his fingers in hers. As she does so, the fingers of Christ seem to curl upwards to hold with hers, whereupon the video ends. Apart from the cast list which appears on the screen for a few seconds, the viewer has no means to knowing from the film itself that the person dressed as a nun in the video is intended to be St Teresa or that the other woman who appears is intended to be her psyche. No attempt is made in the video to explain its historical background. Thereafter dealing with the case, the European Court of Human Rights he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Profanation and serious attacks on the deeply held feelings of others or on religious or secular ideals can be relied on under Article 10 para 2 (art. 102) in addition to blasphemy. What was particularly shocking in the Wingrove case was the combination of an ostensibly philosophical message and wholly irrelevant obscene or pornographic images. In this case, the use of obscenity for commercial ends may justify restrictions under Article 10 para 2 (art 10-2); but the use of a figure of symbolic value as a great thinker in the history of mankind (such as Moses, Dante or Tolstoy) in a portrayal which seriously offends the deeply held feelings of those who respect their works or thought may, in some cases, justify judicial supervision so that the public can be alerted through the reporting of court decisions. Judge Pettit further proceeded to state:- The majority of the Video Appeals Committee took the view that the imagery led not to a religious perception, but to a perverse one, the ecstasy being furthermore of a perverse kind. That analysis was in conformity with the approach of the House of Lords, which moreover did not discuss the author s intention with respect to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the sense of sexual propriety of persons of ordinary sensitivity . In the circumstances, having regard to the margin of appreciation left to them under Article 10 part 2 (art. 10-2), the Swiss courts were entitled to consider it necessary for the protection of morals to impose a fine on the applicants for publishing obscene material. The applicants claimed that the exhibition of the pictures had not given rise to any public outcry and indeed that the press on the whole was on their side. It may also be true that Josef Felix Muller has been able to exhibit works in a similar vein in other parts of Switzerland and abroad, both before and after the Fri-Art 81 exhibition. It does not, however, follow that the applicants conviction in Fribourg did not, in all the circumstances of the case, respond to a genuine social need, as was affirmed in substance by all three of the Swiss courts which dealt with the case. In conclusion, the disputed measure did not infringe Article 10 (art. 10) of the Convention. [emphasis supplied) Perception and Perspective of this Court 34. Keeping in view the developments in other countries pertaining to the perception as regards obscenit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nment of either description for a term which may extend to five years, and also with fine which may extend to five thousand rupees]. Exception - This section does not extend to- (a) any book, pamphlet, paper, writing, drawing, painting, representation or figure- the publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, writing, drawing, painting, representation or figure is in the interest of science, literature, art or learning or other objects of general concern, or which is kept or used bona fide for religious purposes; (b) any representation sculptured, engraved, painted or otherwise represented on or in- any ancient monument within the meaning of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (24 of 1958), or any temple, or on any car used for the conveyance of idols, or kept or used for any religious purpose. 35. The said Section, prior to the present incarnation, read as follows:- 292. Whoever- (a) sells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation, or for purposes of sale, hire, distribution, public exhibition or circulation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as introduced by the Obscene Publications Act, 1925 (7 of 1925) to give effect of the International Convention for the suppression of or traffic in obscene publications signed by India in 1923 at Geneva. It does not go beyond obscenity which falls directly within the words public decency and morality of the second clause of the article. The word, as the dictionaries tell us, denotes the quality of being obscene which means offensive to modesty or decency; lewd, filthy and repulsive. It cannot be denied that it is an important interest of society to suppress obscenity. There is, of course, some difference between obscenity and pornography in that the latter denotes writings, pictures etc. intended to arouse sexual desire while the former may include writings etc. not intended to do so but which have that tendency. Both, of course, offend against public decency and morals but pornography is obscenity in a more aggravated form. Mr Garg seeks to limit action to cases of intentional lewdness which he describes as dirt for dirt's sake and which has now received the appellation of hard- core pornography by which term is meant libidinous writings of high erotic effect unredeemed by a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thood, the enquity of the confessional, and the questions, put to females in confession. It was bilingual with Latin and English texts on opposite pages and the latter half of the pamphlet according to the report was grossly obscene relating to impure and filthy acts, words or ideas. Cockburn, C.J. laid down the test of obscenity in the following words:- I think the test of obscenity is this, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall it is quite certain that it would suggest to the minds of the young of either sex, or even to persons of more advanced years, thoughts of a most impure and libidinous character. 38. After reproducing the said paragraph, the Court observed that the said test has been uniformly applied in India. Thereafter, the Court posed a question whether the said test of obscenity squares with the freedom of speech and expression guaranteed under the Constitution or it needs to be modified and if so, in what respects. The Court opined that the first of the said questions invite the Court to reach a de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s likely to fall. The interests of the contemporary society and particularly the influence of the book etc. on it must not be overlooked. Then the court stated:- A number of considerations may here enter which it is not necessary to enumerate, but we must draw attention to one fact. Today our National and Regional Languages are strengthening themselves by new literary standards after a deadening period under the impact of English. Emulation by our writers of an obscene book under the aegis of this Court's determination is likely to pervert our entire literature because obscenity pays and true Art finds little popular support. Only an obscurent will deny the need for such caution. This consideration marches with all law and precedent and this subject and so considered we can only say that where obscenity and art are mixed, art must be so preponderating as to throw the obscenity into a shadow or the obscenity so trivial and insignificant that it can have no effect and may be overlooked. In other words, treating with sex in a manner offensive to public decency and morality (and these are the words of our Fundamental Law), judged of by our National standards and considered like ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... country. But to insist that the standard should always be for the writer to see that the adolescent ought not to be brought into contact with sex or that if they read any references to sex in what is written whether that is the dominant theme or not they would be affected, would be to require authors to write books only for the adolescent and not for the adults. In early English writings authors wrote only with unmarried girls in view but society has changed since then to allow litterateurs and [pic]artists to give expression to their ideas, and emotions and objective with full freedom except that it should not fall within the definition of obscene having regard to the standards of contemporary society in which it is read. The standards of contemporary society in India are also fast changing. The adults and adolescents have available to them a large number of classics, novels, stories and pieces of literature which have a content of sex, love and romance. As observed in Udeshi (supra) if a reference to sex by itself is considered obscene, no books can be sold except those which are purely religious. In the field of art and cinema also the adolescent is shown situations which eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elf cannot be tolerated under the freedom of speech and expression and secondly, even if it were a legitimate restraint on the freedom, it must be exercised on very definite principles which leave no room for arbitrary action. The Court referred to the Khosla Committee that had addressed and examined history of development of film censorship in India. The Court adverted to various provisions of the Act and in that context observed that it has been almost universally recognised that treatment of motion pictures must be different from that of other forms of art and expression. The Court referred to the decision in Roth (supra), wherein three tests have been laid down as under: (a) that the dominant theme taken as a whole appeals to prurient interests according to the contemporary standards of the average man; (b) that the motion picture is not saved by any redeeming social value; and (c) that it is patently offensive because it is opposed to contemporary standards. The court observed that Hicklin test in Regina (supra) was not accepted in the said case. The Court also referred to Freadman v. Maryland[(1965) 380 US 51], which considered procedural safeguards and thereaft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to classify sex as essentially obscene or even indecent or immoral. It should be our concern, however, to prevent the use of sex designed to play a commercial role by making its own appeal. This draws in the censor s scissors. Thus audiences in India can be expected to view with equanimity the story of Oedipus son of Latius who committed patricide and incest with his mother. When the seer Tiresias exposed him, his sister Jocasta committed suicide by hanging herself and Oedipus put out his own eyes. No one after viewing these episodes would think that patricide or incest with one s own mother is permissible or suicide in such circumstances or tearing out one s own eyes is a natural consequence. And yet if one goes by the letter of the directions the film cannot be shown. Similarly, scenes depicting leprosy as a theme in a story or in a documentary are not necessarily outside the protection. If that were so Verrier Elwyn s Phulmat of the Hills or the same episode in Henryson s Testament of Cressaid (from where Verrier Elwyn borrowed the idea) would never see the light of the day. Again carnage and bloodshed may have historical value and the depiction of such scenes as the Sack of Del ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed a few witnesses and thereafter issued notices to the petitioners who rushed to the High Court but faced refusal on a technical foundation. This Court formulated two questions one of jurisdiction and consequent procedural compliance, the other of jurisprudence as to when, in the setting of the Penal Code, a picture to be publicly exhibited can be castigated as prurient and obscene and violative of norms against venereal depravity. The Court in that context observed:- 8. .....Art, morals and law s manacles on aesthetics are a sensitive subject where jurisprudence meets other social sciences and never goes alone to bark and bite because State-made strait-jacket is an inhibitive prescription for a free country unless enlightened society actively participates in the administration of justice to aesthetics. 9. The world s greatest paintings, sculptures, songs and dances, India s lustrous heritage, the Konaraks and Khajurahos, lofty epics, luscious in patches, may be asphyxiated by law, if prudes and prigs and State moralists prescribe paradigms and proscribe heterodoxies. It is plain that the procedural issue is important and the substantive issue portentous. 46. It is wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... luscious love of Beauty, sensuous joy of companionship and moderate non-denial of normal demands of the flesh. Extremes and excesses boomerang although, some crazy artists and film directors do practise Oscar Wilde s observation: Moderation is a fatal thing. Nothing succeeds like excess. 16. All these add up to one conclusion that finality and infallibility are beyond courts which must interpret and administer the law with pragmatic realism, rather than romantic idealism or recluse extremism. Pathak, J. (as His Lordship then was) in his concurring opinion, opined that there is no difficulty in laying down that in a trial for the offence under Sections 292 and 293 of the Indian Penal Code, a certificate granted under Section 6 of the Cinematograph Act by the Board of Censors does not provide an irrebuttable defence to accused who have been granted such a certificate, but it is certainly a relevant fact of some weight to be taken into consideration by the criminal court in deciding whether the offence charged is established. 47. Thus, from the view expressed by Krishna Iyer, J., it is vivid that the Court laid emphasis on social dynamics and the constitutional order which p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h her husband s friend. The witness also cited Tagore s another novel Chaturanga where an actual sexual act has been described in a very poetic and moving language. The said witness deposed that the novel has great social and moral value. 49. The Court proceeded to deal with many other witnesses at length and the view expressed by the Chief Presidency Magistrate and the learned Single Judge. We notice that this Court copiously quoted from the order of the learned Single Judge and thereafter proceeded to deal with the contentions. The Court referred to Section 292 as it stood at the time of initiation of the proceeding, referred to the decisions in Ranjit D. Udeshi (supra), Chandrakant Kakodar (supra) and thereafter observed that the novel Lady Chatterley s Lover which came to be condemned as obscene in India by this Court, was held to be not obscene in England by the Central Criminal Court. The two-Judge Bench reproduced a passage from Penguin Books Ltd. (supra). The Court referred to the obscenity test which rests with jury in England but with judges in India. In that context, the Court proceeded to state thus:- In deciding the question of obscenity of any book, story o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceeded to analyse the story of the novel and noted thus:- If we place ourselves in the position of readers, who are likely to read this book, - and we must not forget that in this class of readers there will probably be readers of both sexes and of all ages between teenagers and the aged, - we feel that the readers as a class will read the book with a sense of shock, and disgust and we do not think that any reader on reading this book would become depraved, debased and encouraged to lasciviousness. It is quite possible that they come across such characters and such situations in life and have faced them or may have to face them in life. On a very anxious consideration and after carefully applying our judicial mind in making an objective assessment of the novel we do not think that it can be said with any assurance that the novel is obscene merely because slang and unconventional words have been used in the book in which there have been emphasis on sex and description of female bodies and there are the narrations of feelings, thoughts and actions in vulgar language. Some portions of the book may appear to be vulgar and readers of cultured and refined taste may feel shocked an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the proposal of the respondent. The committee constituted in pursuance of order of this court observed that the film has a secular message relevant to our times and our society, however the film contains scenes and speeches which can influence negative passions and therefore the committee would like a larger committee to see the film and form an opinion before it is open to public viewing. Therefore, the Prasar Bharti Board previewed the documentary film and formed opinion that its production quality was unsatisfactory and its telecast would be violative of the policy of Doordarshan. The Court placing reliance on K.A. Abbas (supra) and other authorities did not accept the stand of the Doordarshan and dismissed the appeal. 52. In Ajay Goswami v. Union of India and others[(2007) 1 SCC 143] the petitioner agitated that the grievance of freedom of speech and expression enjoyed by the newspaper industry is not keeping balance with the protection of children from harmful and disturbing material. The further prayer made was to command the authorities to strike a reasonable balance between the fundamental right of freedom of speech and expression enjoyed by the press and the duties of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the prevalent sexual morality. On the other hand, the Constitution of India guarantees the right to freedom of speech and expression to every citizen. This right will encompass an individual s take on any issue. However, this right is not absolute, if such speech and expression is immensely gross and will badly violate the standards of morality of a society. Therefore, any expression is subject to reasonable restriction. Freedom of expression has contributed much to the development and well-being of our free society. 77. This right conferred by the Constitution has triggered various issues. One of the most controversial issues is balancing the need to protect society against the potential harm that may flow from obscene material, and the need to ensure respect for freedom of expression and to preserve a free flow of information and ideas. And again:- 79. We are also of the view that a culture of responsible reading should be inculcated among the readers of any news article. No news item should be viewed or read in isolation. It is necessary that a publication must be judged as a whole and news items, advertisements or passages should not be read without the accompanying m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court observed that an innocent woman had turned into a vicious criminal because lust and brutality had affected her psyche. The Court referred to the various levels of the film accusing the members of the society who had tormented her and driven her to become a dreaded dacoit filled with the desire to avenge. The Court expressed that in the light of the said story, the individual scenes are to be viewed. Thereafter, the Court ruled that:- First, the scene where she is humiliated, stripped naked, paraded, made to draw water from the well, within the circle of a hundred men. The exposure of her breasts and genitalia to those men is intended by those who strip her to demean her. The effect of so doing upon her could hardly have been better conveyed than by explicitly showing the scene. The object of doing so was not to titillate the cinemagoer s lust but to arouse in him sympathy for the victim and disgust for the perpetrators. The revulsion that the Tribunal referred to was not at Phoolan Devi s nudity but at the sadism and heartlessness of those who had stripped her naked to rob her of every shred of dignity. Nakedness does not always arouse the baser instinct. The reference b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mutual respect and tolerance, scenes showing comradeship, help and kindness which transcend the barriers of religion. Unfortunately, modern developments both in the field of cinema as well as in the field of national and international politics have rendered it inevitable for people to face the realities of internecine conflicts, inter alia, in the name of religion. Even contemporary news bulletins very often carry scenes of pitched battle or violence. What is necessary sometimes is to penetrate behind the scenes and analyse the causes of such conflicts. The attempt of the author in this film is to draw a lesson from our country s past history, expose the motives of persons who operate behind the scenes to generate and foment conflicts and to emphasise the desire of persons to live in amity and the need for them to rise above religious barriers and treat one another with kindness, sympathy and affection. It is possible only for a motion picture to convey such a message in depth and if it is able to do this, it will [pic]be an achievement of great social value. (Emphasis supplied) 55. In Gandhi Smaraka Samithi, v. Kanuri Jagadish Prasad[[(1993) 2 APLJ 91 (SN)]], the appellant fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 1241], wherein it has been observed thus:- It is true that prostitution has been always looked down upon with hatred throughout the ages by the society and particularly sex has been considered an ugly word and any talk about sex in our conservative society was considered a taboo not many years ago but with this country progressing materially and with the spread of education and coming of western culture, the society has become more open. It is indeed obvious that the phenomenon of call girls has peaked in our country amongst the affluent section of the society. The society is changing vastly with spiritual thinking taking a back seat and there is nothing wrong if a sociologist makes a research on the subject of call girls in order to know the reasons as to why and how the young girls fall in this profession of call girls and what society could do in order to eradicate or at least minimize the possibility of young budding girls joining this flesh trade. As a whole the book appears to be a serious study done on the subject of call girls. Mere fact that some sort of vulgar language has been used in some portions of the book in describing the sexual intercourse would not, in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her remarks by observing that girls should take adequate precautions to prevent unwanted pregnancies and transmission of venereal diseases. Subsequent to the publication in India today Dhina Thanthi, a Tamil daily carried a news item which first quoted the appellant s statement published in India Today and then opined that it had created a sensation all over the State of Tamil Nadu. The news item also reported a conversation between the appellant and a correspondent of Dhina Thanthi wherein the appellant had purportedly defended her views. However, soon after publication in Dhina Thanthi the appellant sent a legal notice categorically denying that she had made the statement as had been reproduced in Dhina Thanthi and required to publish her objection prominently within three days. The publication of the statements in India Today and Dhina Thanthi drew criticism from some quarters and several persons and organizations filed criminal complaints against the appellant. The appellant approached the High Court for quashment of the criminal proceeding but as the High Court declined to interfere, this court was moved in a special leave petition. The court perused the complaints which reve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... number of people who see nothing wrong in engaging in premarital sex. Notions of social morality are inherently subjective and the criminal law cannot be used as a means to unduly interfere with the domain of personal autonomy. Morality and criminality are not coextensive. 47. In the present case, the substance of the controversy does not really touch on whether premarital sex is socially acceptable. Instead, the real issue of concern is the disproportionate response to the appellant s remarks. If the complainants vehemently disagreed with the appellant s views, then they should have contested her views through the news media or any other public platform. The law should not be used in a manner that has chilling effects on the freedom of speech and expression . xxx xxx xxx 50. Thus, dissemination of news and views for popular consumption is permissible under our constitutional scheme. The different views are allowed to be expressed by the proponents and opponents. A culture of responsible reading is to be inculcated amongst the prudent readers. Morality and criminality are far from being coextensive. An expression of opinion in favour of non-dogmatic and non-conventional m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the Constitution Bench decision in Ranjit D. Udeshi (supra) and Chandrakant Kalyandas Kakodkar (supra). The two-Judge Bench referred to the principles stated in the aforesaid two decisions and the principles stated in Samresh Bose (supra). While quoting a passage from Samresh Bose (supra), the Court observed that the view expressed therein was the contemporary social standards in the year 1985. The Court further observed that while judging a particular photograph, and the article of the newspaper as obscene in 2014, regard must be had to the contemporary mores and the national standards and not the standards of a group of susceptible or sensitive persons. The Court referred to the pronouncement in Hicklin (supra) the majority view in Brody v. R[1962 SCR 681 (Can SC)], and the pronouncement in R. v. Butler[(1992) 1 SCR 452 (Can SC)] and opined thus:- 23. We are also of the view that Hicklin test[(1868) LR 3 QB 360] is not the correct test to be applied to determine what is obscenity . Section 292 of the Penal Code, of course, uses the expression lascivious and prurient interests or its effect. Later, it has also been indicated in the said section of the applicability of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our of skin matters little and love champions over colour. The picture promotes love affair, leading to a marriage, between a white-skinned man and a [pic]black- skinned woman. We should, therefore, appreciate the photograph and the article in the light of the message it wants to convey, that is to eradicate the evil of racism and apartheid in the society and to promote love and marriage between white-skinned man and a black-skinned woman. When viewed in that angle, we are not prepared to say that the picture or the article which was reproduced by Sports World and the Anandabazar Patrika be said to be objectionable so as to initiate proceedings under Section 292 IPC or under Section 4 of the Indecent Representation of Women (Prohibition) Act, 1986. Thus, the aforesaid decision applies the contemporary community standards test and rules that the factum of obscenity has to be judged from the point of view of an average person. 59. Very recently, in Shreya Singhal v. Union of India[2015 (4) SCALE 1], a two-Judge Bench of this Court, while dealing with the concept of obscenity, has held that:- 45. This Court in Ranjit Udeshi (supra) took a rather restrictive view of what w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity standards test, and it would, of course, depend upon the cultural, attitudinal and civilisational change. There has also been stress on the modernity of approach and, the artistic freedom, the progression of global ideas and the synchronisation of the same into the thinking of the writers of the age. In Samresh Bose (supra), in 1985, the Court analysed the theme of the novel and dwelt upon the description in the various parts of the book and found that there was no obscenity. In 2014, in Aveek Sarkar (supra), the Court has observed that was the contemporary community standards test in 1985 and there has been a change with the passage of time. We respectfully concur with the said view and hold that 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. As far as comparables test is concerned, the Court may sometimes have referred to various books on literature of the foreign author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the intention or meaning of the draftsmen who put in the other articles also. I suggest therefore that instead of making it subject to the provisions of this article, we should make it subject to the provisions of this Constitution. That is to say, in this Constitution this article will remain. Therefore if you want to insist upon these exceptions, the exceptions will also remain. But the spirit of the Constitution, the ideal under which this Constitution is based, will also come in, which I humbly submit, would not be the case, if you emphasise only this article. If you say merely subject to the provisions of this article, then you very clearly emphasise and make it necessary to read only this article by itself, which is more restrictive than necessary. .........The freedoms are curtly enumerated in 5, 6 or 7 items in one sub- clause of the article. The exceptions are all separately mentioned in separate sub-clauses. And their scope is so widened that I do not know what cannot be included as exception to these freedoms rather than the rule. In fact, the freedoms guaranteed or assured by this article become so elusive that are would find it necessary to have a microscope to di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regime and a Constitution was sought to be enacted in accordance with the genius of the Indian people. It certainly represented an amalgam of schemes and ideas adopted from the Constitutions of other countries. But the constant strain which runs throughout each and every article of the Constitution is reflected in the Preamble which could and can be made sacrosanct. It is not without significance that the Preamble was passed only after draft articles of the Constitution had been adopted with such modifications as were approved by the Constituent Assembly. The Preamble was, therefore, meant to embody in a very few and well-defined words the key to the understanding of the Constitution. 513. The history of the drafting and the ultimate adoption of the Preamble shows- (1) that it did not walk before the Constitution as is said about the Preamble to the United States Constitution; (2) that it was adopted last as a part of the Constitution; (3) that the principles embodied in it were taken mainly from the Objectives Resolution; [pic] (4) the Drafting Committee felt, it should incorporate in it the essential features of the new State ; (5) that it embodied the fundam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fortunes of fundamental rights, when the proletarist and the proprietarist have asserted them in Court, partially provoke sociological research and hesitantly project the Cardozo thesis of sub-conscious forces in judicial noesis when the cycloramic review starts from Gopalan, moves on to In re Kerala Education Bill[1959 SCR 995] and then on to All-India Bank Employees Association[1962 3 SCR 269], next to Sakal Papers[(1962) 3 SCR 842], crowning in Cooper and followed by Bennett Coleman[(1973) 2 SCR 757] and Shambhu Nath Sarkar[(1973) 1 SCC 856]. Be that as it may, the law is now settled, as I apprehend it, that no article in Part III is an island but part of a continent, and the conspectus of the whole part gives the direction and correction needed for interpretation of these basic provisions. Man is not dissectible into separate limbs and, likewise, cardinal rights in an organic constitution, which make man human have a synthesis. The proposition is indubitable that Article 21 does not, in a given situation, exclude Article 19 if both rights are breached. 97. We may switch to Article 19 very briefly and travel along another street for a while. Is freedom of extra-territorial t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 69. In Gajanan Visheshwar Birjur v. Union of India[(1994) 5 SCC 550], this Court was dealing with the order of confiscation of books containing the 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. 70. More important and relevantly lucid are observations in Sahara India Real Estate Corpn. Ltd. v. SEBI[(2012) 10 SCC 603], where while dealing with the freedom of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n clauses (2) to (6) of Article 19. One of the reasons for giving this liberty to the citizens is contained in the famous essay On Liberty by John Stuart Mill. He writes: Secondly, 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. According to Mill, therefore, each individual must in certain matters be left alone to frame the plan of his life to suit his own character and to do as he likes without any impediment and even if he decides to act foolishly in such matters, society or on its behalf the State should not interfere with the choice of the individual. Harold J. Laski, who was not prepared to accept Mill s attempts to define the limits of State interference, was also of the opinion that in some matters the individual must have the freedom of choice. To quote a passage from A Grammar of Politics by Harold J. Laski: My freedoms are avenues of choice through which I may, as I dee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the obscenity test, as understood by this Court in the context of Section 292 IPC. In the said case, the two-Judge Bench, while dealing with the content of freedom of expression, opined that:- There are three concepts which are fundamental in understanding the reach of this most basic of human rights. The first is discussion, the second is advocacy, and the third is incitement. Mere discussion or even advocacy of a particular cause howsoever unpopular is at the heart of Article 19(1)(a). It is only when such discussion or advocacy reaches the level of incitement that Article 19(1)(a). It is only when such discussion or advocacy reaches the level of incitement that Article 19(2) kicks in. It is at this stage that a law may be made curtailing the speech or expression that leads inexorably to or tends to cause public disorder or tends to cause or tends to affect the sovereignty integrity or India, the security of the State, friendly relations with foreign States, etc. Why it is important to have these three concepts in mind is because most of the arguments of both petitioners and respondents tended to veer around the expression public order. And again:- 47. What h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st evolved by this Court, 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. We appreciate the anxiety of Mr. Subramanium, learned senior counsel appearing for the appellant, and we are also absolutely conscious that this Court cannot create an offence which is not there nor can it add an ingredient to it. 74. Keeping this in view, we shall now proceed to deal with the historically respected persons . Though the question uses the words historically respected persons , contextually, in this case it would mean Mahatma Gandhi, the Father of the Nation. Though some may think it is patently manifest or known that Mahatma Gandhi is the Father of the Nation and the most respected historical personality in this country, yet we are obliged to reflect on Mahatma Gandhi to know how this Court has spoken about Mahatma Gandhi and how others have perceived the life of Mahatma Gandhi and Gandhian thought . Mr. Subramanium ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bjective was to build a new social order where man will not be a mere plaything in the hands of the State or a few privileged persons but there will be full scope and opportunity for him to achieve the maximum development of his personality and the dignity of the individual will be fully assured. 79. In Bangalore Water Supply Sewerage Board v. A. Rajappa[(1978) 2 SCC 213], this Court observed:- There is no degrading touch about industry , especially in the light of Mahatma Gandhi s dictum that Work is Worship . Indeed [pic]the colonial system of education, which divorced book learning from manual work and practical training, has been responsible for the calamities in that field. For that very reason, Gandhiji and Dr Zakir Hussain propagated basic education which used work as modus operandus for teaching. We have hardly any hesitation in regarding education as an industry. 80. In Minerva Mills Ltd. v. Union of India[(1980) 3 SCC 625], the Court noted thus:- 53. .... The emergence of Mahatma Gandhi on the political scene gave to the freedom movement a new dimension: it ceased to be merely anti-British; it became a movement for the acquisition of rights of liberty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... them adequate concessions, opportunities, facilities and representation in the services and, last but not the least, in the electorate so that their voices and views, grievances and needs in the Parliament and State legislatures in the country may be heard, felt and fulfilled. 85. In Pradeep Jain v. Union of India[(1984) 3 SCC 654], emphasising on formation of one nation, the Court observed:- This concept of one nation took firm roots in the minds and hearts of the people during the struggle for independence under the leadership of Mahatma Gandhi. He has rightly been called the Father of the Nation because it was he who awakened in the people of this country a sense of national consciousness and instilled in them a high sense of patriotism without which it is not possible to build a country into nationhood. 86. In Indra Sawhney v. Union of India[(1992) Supp. 3 SCC 217] and ors. the Court observed that it is Mahatma Gandhi, who infused secular spirit amongst the people of India. 87. In S.R. Bommai and others v. Union of India and others[(1994) 3 SCC 1] speaking on statesmanship, the larger Bench noted:- 24. Mahatma Gandhi and other leaders of modern times advocat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... part of lecture, we think it condign to refer to certain books of Mahatma Gandhi. Mr. Subramanium, learned senior counsel also referred to certain books indicating that there are many critical passages about Mahatma Gandhi. The books referred to by him are Great Soul: Mahatma Gandhi and his struggle India [ Lelyveld Joseph, Great Soul: Mahatma Gandhi and his struggle with India, Harpr Collins, 2011; page] and Sex and Power [ Banerjee Rita, Sex and Power: Defining History, Shaping Societies, Penguin, 2008; page 274]. In this regard we may also refer to Mahatma Gandhi The Early Phase Vol.I[Pyarelal, Navajivan Publishing House, 1965], Gandhian Constitution for Free India[Shriman Narayan Agarwal, Kitabistan, 1946], Gandhi s Philosophy of Law[V.S. Hegde, Concept Publishing Company, 1983], Mahatma Gandhi[Sankar Ghose, Allied Publishers Limited, 1991], The Myth of the Mahatma[MMichael Edwardes, UBS Publishers distributors Ltd., 1986], Gandhi Before India[Ramachandra Guha, Penguin Books, 2013], In Search of Gandhi[Richard Attenborough, B.I. Publications, 1982], Gandhi s View of Legal Justice[Ajit Atri, Deep Deep Publications Pvt. Ltd., 2007], Gandhi, Soldier of Non-Violence: An Intro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns that one can express his views freely about a historically respected personality showing his disagreement, dissent, criticism, non-acceptance or critical evaluation. 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. We have already discussed at length about the concept of poetic license and artistic freedom . 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. Concept of poetry 95. We do not intend to say that a poem should conform to the definition or description as many authors have thought of. According to Dr. Samuel Johnson, Poetry is metrical composition ; it is the art of uniting pleasure with truth by calling imagination to the help of reason ; and its essence is invention . 96. Mill s point of view poetry is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... valent situation in certain arenas and the agony and anguish expressed by the poet through Gandhi and thus, the poem is surrealistic presentation. That apart, contends Mr. Subramanium, that the poem, as one reads as a whole, would show the image or the surrealistic voice of Mahatma Gandhi, is reflectible. Learned senior counsel would submit that apart from two to three stanzas, all other stanzas of the poem uses Gandhi, which may not have anything to do with the name of Mahatma Gandhi. 101. Mr. Nariman, learned amicus curiae, per contra, would submit that the poem refers singularly and exclusively to Mahatma Gandhi in every stanza. 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. Some of them are:- (i) I met Gandhi on the road _____ in the name of ______ xxxx xxxx xxxx (ii) I met Gandhi In Tagore s Geetanjali, He was writing a poem On ________ xxxx xxxx xxxx (iii) When I met Gandhi On earth which is the property of the common man Playing husband- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m, can be composed through a merely voice explaining plurality of thought. He would submit the instant poem is one where there is transference of consciousness that exposes the social hypocrisy and it cannot be perceived with a conditioned mind. 104. The principle that has been put forth by Mr. Subramanium can be broadly accepted, but we do not intend to express any opinion that freedom of speech gives liberty to offend. As far as the use of the name of historically respected personality is concerned, learned senior counsel, while submitting so, is making an endeavour to put the freedom of speech on the pedestal of an absolute concept. 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. We have already opined that 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. We reiterate 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 abso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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. 106. 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.' See California v. LaRue, 409 U.S. 109, 117-118, 93 S.Ct. 390, 396-397, 34 L.Ed.2d 342 (1972). [16] The mere fact juries may reach different conclusions as to the same material does not mean that constitutional rights are abridged. As this Court observed in Roth v. United States, 354 U.S., at 492 n. 30, 77 S.Ct., at 1313 n. 30, 'it is common experience that different juries may reach different results under any criminal statute. That is one of the consequences we accept under our jury system. Cf. Dunlop v. United States 486, 499-500.' [17] 521 U.S. 844 (1997) [18] 732 P.2d 9 (1987) [19] Joan Schleef, Note, United States v. various Articles of Obscene Merch, 52, U. Cin. L. Rev. 1131, 1132 (1983) [28] Application No. 68354/2001, 25th January 2007 [29] See D. Feldman, Human Dignity as a legal value. Part I , (1999) Public Law pp.682 702 at p.697: The notion of dignity can easily become a screen behind which paternalism or moralism are elevated above freedom in legal decision-making. As another author has pointed out, [l] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ahrungen und Erlebnisse zu unmittelbarer Anschauung bringt. Sie gen gen damit den Anforderungen, die das Bundesverfassungsgericht als wesentlich f r eine k nstlerische Bet tigung ansieht ( BVerfGE 67, 213 [226] = EuGRZ 1984, 474 [477] unter Berufung auf BVerfGE 30, 173 [189]). Da mit ihnen gleichzeitig eine bestimmte Meinung zum Ausdruck gebracht wird, nimmt ihnen nicht die Eigenschaft als Kunstwerk. Kunst und Meinungs u erung schlie en sich nicht aus; eine Meinung kann - wie es bei der sogenannten engagierten Kunst blich ist - durchaus in der Form k nstlerischer Bet tigung kundgegeben werden (Scholz, a.a.O., Rdnr. 13). Ma gebliches Grundrecht bleibt in diesem Fall Art. 5 Abs. 3 Satz 1 GG, weil es sich um die spezielle Norm handelt ( BVerfGE 30, 173 [200]). It should be noted that in German Constitutional Law, freedom of the arts (Kunstfreiheit) is specifically protected by Art.5(3) of the Basic Law. The exercise of this freedom is not limited, as is freedom of expression, by the provisions of general laws or the right to reputation, but it must be considered in conjunction with other constitutional rights, notably the right to the free development of personality and human dign ..... X X X X Extracts X X X X X X X X Extracts X X X X
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