Full Judgment Text
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 904 OF 2018
N. Radhakrishnan …Petitioner(s)
@ Radhakrishnan Varenickal
VERSUS
Union of India and others …Respondent(s)
J U D G M E N T
Dipak Misra, CJI
A writer or an author, while choosing a mode of expression,
be it a novel or a novella, an epic or an anthology of poems, a
play or a playlet, a short story or a long one, an essay or a
statement of description or, for that matter, some other form, has
the right to exercise his liberty to the fullest unless it falls foul of
any prescribed law that is constitutionally valid. It is because
freedom of expression is extremely dear to a civilized society. It
Signature Not Verified
Digitally signed by
CHETAN KUMAR
Date: 2018.09.05
12:08:12 IST
Reason:
holds it close to its heart and would abhorrently look at any step
taken to create even the slightest concavity in the said freedom. It
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may be noted here that we are in this writ petition, preferred
under Article 32 of the Constitution, dealing with creativity and
its impact and further considering the prayer for banning a book
on the foundation that a part of it is indecent and offends the
sentiments of women of a particular faith. Having said this, we
would like to refer to two authorities highlighting the importance
of creativity and necessity of freedom of expression and how the
principle of pragmatic realism assures the said creative
independence as civilization, indubitably a progressive one,
perceives and eagerly desires for its accentuated protection,
nourishment and constant fostering. It is so because curtailment
of an author’s right to freedom of expression is a matter of
serious concern.
2. In Devidas Ramachandra Tuljapurkar v. State of
1
, the Court, dealing with the meaning
Maharashtra and others
of the words “poetic licence”, observed:
“… it can never remotely mean a licence as used or
understood in the language of law. There is no
authority who gives a licence to a poet. These are
words from the realm of literature. The poet assumes
his own freedom which is allowed to him by the
fundamental concept of poetry. He is free to depart
from reality; fly away from grammar; walk in glory by
1 (2015) 6 SCC 1
3
not following systematic metres; coin words at his own
will; use archaic words to convey thoughts or attribute
meanings; hide ideas beyond myths which can be
absolutely unrealistic; totally pave a path where
neither rhyme nor rhythm prevail; can put serious
ideas in satires, ifferisms, notorious repartees; take aid
of analogies, metaphors, similes in his own style,
compare like “life with sandwiches that is consumed
everyday” or “life is like peeling of an onion”, or
“society is like a stew”; define ideas that can balloon
into the sky never to come down; cause violence to
logic at his own fancy; escape to the sphere of
figurative truism; get engrossed in the “universal eye
for resemblance”, and one can do nothing except
writing a critical appreciation in his own manner and
according to his understanding. When a poet says “I
saw eternity yesterday night”, no reader would
understand the term “eternity” in its prosaic sense.
The Hamletian question has many a layer; each is free
to confer a meaning; be it traditional or modern or
individualistic. No one can stop a dramatist or a poet
or a writer to write freely expressing his thoughts, and
similarly none can stop the critics to give their
comments whatever its worth. One may concentrate
on Classical facets and one may think at a
metaphysical level or concentrate on Romanticism as
is understood in the poems of Keats, Byron or Shelley
or one may dwell on Nature and write poems like
William Wordsworth whose poems, say some, are
didactic. One may also venture to compose like
Alexander Pope or Dryden or get into individual
modernism like Ezra Pound, T.S. Eliot or Pablo
Neruda. That is fundamentally what is meant by poetic
licence.”
2
3. In Raj Kapoor and others v. State and others , Krishna
Iyer, J., speaking for himself, while quashing the criminal
proceedings initiated against the petitioner therein for the
2 (1980) 1 SCC 43
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production of the film, namely, ‘ Satyam, Sivam, Sundaram ’,
observed:
“12. … Jurisprudentially speaking, law, in the sense of
command to do or not to do, must be a reflection of the
community’s cultural norms, not the State’s
regimentation of aesthetic expression or artistic
creation. Here we will realise the superior
jurisprudential value of dharma , which is a beautiful
blend of the sustaining sense of morality, right
conduct, society’s enlightened consensus and the
binding force of norms so woven as against positive
law in the Austinian sense, with an awesome halo and
barren autonomy around the legislated text is fruitful
area for creative exploration. But morals made to
measure by statute and court is risky operation with
portentous impact on fundamental freedoms, and in
our constitutional order the root principle is liberty of
expression and its reasonable control with the limits of
‘public order, decency or morality’. Here, social
dynamics guides legal dynamics in the province of
‘policing’ art forms.”
[Emphasis added]
4. The learned Judge further went on to say:
“15. … The relation between Reality and Relativity
must haunt the Court’s evaluation of obscenity,
expressed in society’s pervasive humanity, not law’s
penal prescriptions. Social scientists and spiritual
scientists will broadly agree that man lives not alone
by mystic squints, ascetic chants and austere
abnegation but by luscious love of Beauty, sensuous
joy of companionship and moderate nondenial 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’.
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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.”
[Emphasis added]
5. We have referred to the aforesaid decisions in the beginning
as we intend to adjudicate the lis on the touchstone of “pragmatic
realism”. When we say “pragmatic realism”, it has to be
understood in the context of creativity, for the present Writ
Petition preferred under Article 32 of the Constitution seeks for
issue of an appropriate writ to ban the novel, namely, “Meesha”
meaning Moustache which appeared in a popular Malayalam
weekly, “Mathrubhumi”, published from Kozikhode, Kerala and
circulated throughout the country and abroad.
6. It is averred by the petitioner that the said literary work is
insulting and derogatory to temple going women and it hurts the
sentiments of a particular faith/community. It is further asserted
that the portion of the book ‘Meesha’ which was published in
‘Mathrubhumi’ shows temple going women in bad light and it has
a disturbing effect on the community.
7. It is contended that the editor of ‘Mathrubhumi’ has failed
in his duty by not editing or scrutinizing the portion of the book
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‘Meesha’ which was published in the weekly. It is put forth by the
petitioner that he has approached this Court singularly for the
protection of the legitimate interest of the women community.
The petitioner submits that such writings which have appeared
in ‘Mathrubhumi’ are not a manifestation of the freedom of
expression but are collusive efforts aimed at dividing the society,
for such imputations are discriminatory against women and
threaten the very fabric of the society which embodies within
itself the virtues of pluralistic community, religion and gender
balance. The petitioner avers that defamatory and degrading
publications which cater to perverted and communal minds need
to be checked and nipped in the bud as they have a tendency to
propel the general public to view the women community as mere
sexual and material objects which, in turn, denies the women
community their fundamental rights and also jeopardizes their
safety and wellbeing.
8. It is also alleged by the petitioner that the impugned
incriminating material appearing in ‘Mathrubhumi’ defiles the
places of worship and causes the public to look down upon them
with contempt and ridicule, whereas worshipping of deities by
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visiting the temples with purity of body and mind is an integral
part of the Hindu religion.
9. It is urged that the said publication in ‘Mathrubhumi’ has
the proclivity and potentiality to disturb the public order, decency
or morality and it defames the women community, all of which
are grounds for the State to impose reasonable restrictions under
Article 19(2) on the fundamental right of freedom of speech and
expression. To buttress his stand, the petitioner has submitted
that after the publication of the incriminating material, women
visiting temples are subjected to ridicule and embarrassment
through various social media platforms and instances such as
these are bound to have an adverse effect on the liberty, freedom
and empowerment of women.
10. The petitioner has also averred that if such a work of
literature is not checked, it may trigger a ‘Charlie Hebdo’ kind of
a backlash in our country and, therefore, it is necessary for this
Court to lay down guidelines to regulate and prohibit, those who
control/manage/publish both on print and electronic media
platforms, from publishing such insensitive, incriminating and
defamatory articles which could disrupt the peaceful coexistence
of various communities and religions in the country.
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11. In view of the aforesaid, the petitioner has prayed to this
Court to issue a writ of Mandamus or any other writ/directions
to the Respondent No. 1, the Union of India, the Respondent No.
2, the State of Kerala and the Respondent No. 4, the Chief Editor
of ‘Mathrubhumi’ weekly, to search and seize all copies of
‘Mathrubhumi’ weekly volume2 dated 11.07.2018 from all the
States and/or issue a writ of prohibition or any other directions
to the Respondents to prevent any further publication/circulation
of the novel titled ‘Meesha’ in the form of a book or in any other
form including the internet. The petitioner has also prayed to
issue appropriate directions in the nature of mandamus or
otherwise to the Ministry of Information and Broadcasting, New
Delhi, to frame such guidelines as to prevent the recurrence of
such instances which have the tendency to cause threat to the
integrity of the society and the safety of women.
12. It may be noted here that when the Writ Petition was listed
on 02.08.2018, this Court, before issuing notice, deemed it
appropriate to pass an order on the same date which reads as
follows:
“Mr. M.T. George, learned counsel shall file within five
days hence the central theme of the book and the
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three chapters, which have been published in a weekly
newspaper, namely, Mathrubhumi.”
13. In pursuance of the aforesaid order of this Court, Mr. M.T.
George, learned counsel appearing on behalf of the Chief Editor
of ‘Mathrubhumi’, the Respondent No. 4 herein, has filed the
translated copy of the central theme of the book ‘Meesha’ along
with an English translation of the three chapters of the novel.
14. A perusal of the central theme of ‘Meesha’ reveals that the
th
book is a narration which revolves back to the 19 century and
extends to the present times with Vavachan alias Meesha
(Moustache), Paviyam, Chella and Sita as its central characters.
Vavachan is one of the six children of Paviyam and Chella and
their family is engaged in agriculture for a living. The novel
begins with young Vavachan travelling in a boat with his father
for gathering fodder grass. On the way, Paviyam tries to steal a
bunch of raw bananas from a Pulaya (farm) but his attempt was
foiled by a young woman of the household, named, Sita.
Vavachan at his young age is stunned and baffled when he sees
the halfnaked body of Sita. After this rendezvous, a storm hits
and Paviyam, the father, along with his son Vavachan lose their
way. After the storm subsides and time passes, Vavachan comes
10
across two men who tell him that the world was about to witness
a big war and they were going to Malaya (town) to escape a
famine. Vavachan gets hooked with the idea of Malaya though he
had no idea as regards its location.
15. As the narration proceeds, Vavachan along with his family
lived in constant hunger. One day, a theatre group comes to their
village from Malabar. The proprietor of the theatre group needs
an actor with a big and ferocious moustache to play the role of a
policeman. But there was no one in the village who was sporting
a big moustache as it was considered as act of defiance especially
among the lower castes. The proprietor of the theatre group
comes across Vavachan who had never shaven in his life and
sported thick hair and a beard. The proprietor gave Vavachan a
tonsure treatment, that is to say, he shaved his head but allowed
a ferocious Moustache (Meesha) to remain. Thereafter, Vavachan
was put on stage where he only has to scream twice blood
curdling ‘daa’ (you).
16. In response, people got scared and ran away from the scene
and Vavachan’s moustache, which he refused to shave off even
after the show, became a notorious legend. The upper caste
people who resented Vavachan’s Moustache ascribed to him
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every kind of crime, even though he was innocent and just
wanted to go to Malaya and marry the girl, Sita, who had
bedazzled him when he was young and whom he had seen
halfnaked.
17. When the period of famine and hunger struck, Vavachan,
with armed men after him, fled from his village and hid in the
fields of Kuttanadan where labyrinthine canals and marshes saw
human presence only during the farming season. Gradually, with
the passage of time, Vavachan got immersed in the Kuttanadan
environment where he encountered the myths, legends, folklore
and superstitions ingrained among the people.
18. Paviyam and Chella, the parents of Vavachan, die without
seeing him. But after Chella’s death, he returns to his native
village and runs away with a book from Kalan and reads it fully.
The stories of (Meesha) Vavachan alias Moustache get etched in
the region’s subconsciousness. The moustache becomes a
legend himself with super natural powers. The landlords and the
government become afraid that Meesha’s activities would hurt
the farming activities in Kuttanadan and they deploy a legendary
subinspector named Thanu Linga Nadar to deal with Meesha.
However, at that time, Kuttanadan witnessed a deluge and
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Nadar’s mysterious death increased Meesha’s terror.
Subsequently, Meesha locks horns with a local strongman named
Karumathara Ittichan and rumors went around that Meesha was
killed in fight with Ittichan.
19. But Meesha had reached Kumarakom, an important place
in northern Kuttanadan, where an Englishman called Brenen
Sayip (Saheb) had installed a machine to pump out water from
the fields of Kuttanadan. Refusing to divulge the secret of the
machine, Brenen Saheb charges hefty amounts from the people.
Avarachan, a man interested in science, manages to steal the
secret with the help of Meesha. Meesha works as a help of Baker
Sayip who has vast fields and also conducts missionary work in
the region. There Meesha befriends a fisherman called Ouseph,
who was born to a Malayali woman from Baker Sayip’s father.
20. Baker Sayip is a wellknown crocodile hunter who was
known to have caused the extinction of crocodiles in the
Vembanad Lake. However, the last crocodile is after Baker for
revenge. In the end, it is Meesha who conquers the crocodile and
due to this feat of Meesha, Baker Sayip becomes his bête noire.
When Meesha realizes that Baker has turned against him, he
escapes from there along with Ouseph.
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21. Thereafter, Meesha comes across a prostitute, Kuttathi, who
had heard about the adventures of Meesha. One Kunjachan, the
son of the lake area’s owner troubles Kuttathi and is a big
nuisance for her. Meesha slams Kunjachan as well. In return,
Kuttathi, with the assistance of one Narayanan, who also sports
a moustache, helps Meesha to find his childhood crush Sita.
Meesha saves Sita from a robber called Katta Pulavan.
Thereupon, Meesha asks Sita to accompany him, but Sita is
unwilling and refuses to submit herself to Meesha.
22. Thus, Vavachan alias Meesha, who is able to defeat
everyone in life, is defeated by a woman in the end.
23. Presently, we may refer to and quote the dialogue from the
book “Meesha” that has impelled the petitioner to move this
Court in the instant writ petition. The English translation of the
dialogue appears at page twentysix of the translated copy of the
three chapters submitted by Mr. M.T. George, learned counsel
appearing for the Respondent No. 4, the Chief Editor of the
weekly ‘Mathrubhumi’. It reads thus:
“Why do these girls take bath and put on their best
when they go to the temple?” a friend who used to
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join the morning walk until six months ago once
asked.
“To Pray”, I said.
“No”, he said. “Look carefully, why do they need to
put their best clothes in the most beautiful way to
pray? They are unconsciously proclaiming that they
are ready to enter into sex”, he said. I laughed.
“Otherwise,” he continued, “why do they not come to
the temple four or five days a month? They are
letting people know that they are not ready for it.
Especially, informing those Thirumenis (Brahmin
priests) in the temple. Were they not the masters in
these matters in the past?”
24. The primary issue that emerges for consideration is whether
the aforesaid portion of the book ‘Meesha’ which the petitioner
asserts to be derogatory to the women community is an
aberration of such magnitude which requires the intervention of
this Court on the ground that it has the potentiality to disturb
the public order, decency or morality and whether it defames the
women community, and, therefore, invites imposition of
reasonable restriction under Article 19(2) of the Constitution.
25. For deciding this question, we must advert to the
fundamental idea behind art and literature and the liberalism
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associated with artistic expression. Literature symbolizes freedom
to express oneself in multitudinous ways. One should never
forget that only when creativity is not choked, it helps the society
to be able to accept the thoughts and ideas of a free mind.
26. Literature can act as a medium to connect to the readers
only when creativity is not choked or smothered. The free flow of
the stream of creativity knows no bounds and imagination brooks
no limits. A writer or an artist or any person in the creative
sphere has to think in an unfettered way free from the shackles
that may hinder his musings and ruminations. The writers
possess the freedom to express their views and imagination and
readers too enjoy the freedom to perceive and imagine from their
own viewpoint. Sans imagination, the thinking process is
conditioned.
27. Creative voices cannot be stifled or silenced and intellectual
freedom cannot be annihilated. It is perilous to obstruct free
speech, expression, creativity and imagination, for it leads to a
state of intellectual repression of literary freedom thereby
blocking free thought and the fertile faculties of the human mind
and eventually paving the path of literary pusillanimity. Ideas
have wings. If the wings of free flow of ideas and imagination are
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clipped, no work of art can be created. The culture of banning
books directly impacts the free flow of ideas and is an affront to
the freedom of speech, thought and expression. Any direct or
veiled censorship or ban of book, unless defamatory or
derogatory to any community for abject obscenity, would create
unrest and disquiet among the intelligentsia by going beyond the
bounds of intellectual tolerance and further creating danger to
intellectual freedom thereby gradually resulting in "intellectual
cowardice" which is said to be the greatest enemy of a writer, for
it destroys the free spirit of the writer. It shall invite a chilling
winter of discontent. We must remember that we live not in a
totalitarian regime but in a democratic nation which permits free
exchange of ideas and liberty of thought and expression. It is only
by defending the sacrosanct principles of free speech and
expression or, to borrow the words of Justice Louis Brandeis,
"the freedom to think as you will and to speak as you think" and
by safeguarding the unfettered creative spirit and imagination of
authors, writers, artists and persons in the creative field that we
can preserve the basic tenets of our constitutional ideals and
mature as a democratic society where the freedoms to read and
write are valued and cherished.
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28. The aforesaid also calls from the readers and admirers of
literature and art to exhibit a certain degree of adherence to the
unwritten codes of maturity, humanity and tolerance so that the
freedom of expression reigns supreme and is not inhibited in any
manner. The flag of democratic values and ideals of freedom and
liberty has to be kept flying high at all costs and the Judiciary
must remain committed to this spirit at all times unless they
really and, we mean, really in the real sense of the term, run
counter to what is prohibited in law. And, needless to emphasise
that prohibition should not be allowed entry at someone’s fancy
or view or perception.
29. In
Samaresh Bose and another v. Amal Mitra and
3
another , the question that arose before this Court was whether
the accused persons had committed an offence under Section
292 IPC. In the said case, an author had written a novel under
the caption ‘ Prajapati’ which was published in ‘ Sarodiya Desh ’.
The contention before the trial court was that the novel was
obscene and both the accused persons, namely, the author and
the publisher had sold, distributed, printed and exhibited the
same. The accused persons who faced trial stood convicted.
3 (1985) 4 SCC 289
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Their conviction was affirmed by the High Court. This Court,
while dealing with the issue for the purpose of deciding the
question of obscenity in any book, story or article, opined:
“29. … The decision of the court must necessarily be
on an objective assessment of the book or story or
article as a whole and with particular reference to the
passages complained of in the book, story or article.
The court must take an overall view of the matter
complained of as obscene in the setting of the whole
work, but the matter charged as obscene must also be
considered by itself and separately to find out whether
it is so gross and its obscenity so pronounced that it is
likely to deprave and corrupt those whose minds are
open to influence of this sort and into whose hands
the book is likely to fall. Though the court must
consider the question objectively with an open mind,
yet in the matter of objective assessment the
subjective attitude of the Judge hearing the matter is
likely to influence, even though unconsciously, his
mind and his decision on the question. A Judge with a
puritan and prudish outlook may on the basis of an
objective assessment of any book or story or article,
consider the same to be obscene. It is possible that
another Judge with a different kind of outlook may not
consider the same book to be obscene on his objective
assessment of the very same book. The concept of
obscenity is moulded to a very great extent by the
social outlook of the people who are generally expected
to read the book. It is beyond dispute that the concept
of obscenity usually differs from country to country
depending on the standards of morality of
contemporary society in different countries. In our
opinion, in judging the question of obscenity, the
Judge in the first place should try to place himself in
the position of the author and from the viewpoint of
the author the Judge should try to understand what is
it that the author seeks to convey and whether what
the author conveys has any literary and artistic value.
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The Judge should thereafter place himself in the
position of a reader of every age group in whose hands
the book is likely to fall and should try to appreciate
what kind of possible influence the book is likely to
have in the minds of the readers. …”
The Court, further analyzing the story of the novel, expressed
thus:
“35. … 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 and disgusted. Equally
in some portions, the words used and description
given may not appear to be in proper taste. In some
places there may have been an exhibition of bad taste
leaving it to the readers of experience and maturity to
draw the necessary inference but certainly not
sufficient to bring home to the adolescents any
suggestion which is depraving or lascivious.”
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30. In this regard, we may refer with profit to the
pronouncement in Bobby Art International and others v. Om
4
, popularly known as “Bandit
Pal Singh Hoon and others
Queen case ”. The Court analysed the storyline, the humiliation
faced by the female child, the torment faced by her and,
eventually, the innocent woman becoming a dreaded dacoit and
observed that to appreciate the story, the character of the person
portrayed had to be viewed. In that context, the Court held:
“27. 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 by the Tribunal to the film ‘Schindler’s
List’ was apt. There is a scene in it of rows of naked
men and women, shown frontally, being led into the
gas chambers of a Nazi concentration camp. Not only
are they about to die but they have been stripped in
their last moments of the basic dignity of human
beings. Tears are a likely reaction; pity, horror and a
fellowfeeling of shame are certain, except in the
pervert who might be aroused. We do not censor to
4 (1996) 4 SCC 1
21
protect the pervert or to assuage the susceptibilities of
the oversensitive. ‘Bandit Queen’ tells a powerful
human story and to that story the scene of Phoolan
Devi’s enforced naked parade is central. It helps to
explain why Phoolan Devi became what she did: her
rage and vendetta against the society that had heaped
indignities upon her.”
The aforesaid, as is evident, appreciates the agonies and
torture suffered by the protagonist and the nature of depiction of
the scenes on celluloid and lays down the principle not to be
guided by the sensitivity of a pervert viewer. The principle of
assuagement is not to be taken recourse to so as to make the
idea of freedom of expression susceptible to suit the views and
perceptions of a pervert thinker or viewer. Similarly, while
reading a book, the setting, the constituents that constitute the
elements of the character and the purpose are to be kept in view.
31. In this context, reference to the view expressed in Viacom
18 Media Private Limited and others v. Union of India and
5
others would be apposite. In the said case, the challenge was to
the ban imposed by four States for screening the movie
‘ ’. The Court quashed the notifications of banning on
Padmaavat
the bedrock that the expression of an idea through the medium
of cinema which is a popular medium has its own status and the
5 (2018) 1 SCC 761
22
artistic expression should not be tinkered with. The Court went
on to observe that if intellectual prowess and natural or
cultivated power of creation is inhibited without the permissible
facet of law, the concept of creativity would pave the path of
extinction; and when creativity dies, values of civilization corrode.
The Court, in the said context, reproduced a passage from an
order in Nachiketa Walhekar v. Central Board of Film
6
which reads as under:
Certification
“Be it noted, a film or a drama or a novel or a book is a
creation of art. An artist has his own freedom to
express himself in a manner which is not prohibited in
law and such prohibitions are not read by implication
to crucify the rights of expressive mind. The human
history records that there are many authors who
express their thoughts according to the choice of their
words, phrases, expressions and also create
characters who may look absolutely different than an
ordinary man would conceive of. A thought provoking
film should never mean that it has to be didactic or in
any way puritanical. It can be expressive and
provoking the conscious or the subconscious
thoughts of the viewer. If there has to be any
limitation, that has to be as per the prescription in
law.”
32. In Adarsh Cooperative Housing Society Ltd. v. Union of
7
, the issue before this Court was whether
India and others
screening of feature film, which incorporated a perception with
6 (2018) 1 SCC 778
7 2018 (4 ) SCALE 390
23
regard to a particular situation, would affect the trial which
involved the petitioner, the society or the exercise of “error
jurisdiction” of the appellate court. This Court negatived the said
contention and ruled that courts of law decide the on the basis
lis
of the materials brought on record and not on the basis of
imagination as projected in the language of the theatre or a script
on celluloid. The Court opined thus:
“…there can be multitudinous modes, manners and
methods to express a concept. One may choose the
mode of silence to be visually eloquent and another
may use the method of semi melodramatic approach
that will have impact. It is the individual thought and
approach which cannot be curbed.”
And again:
“…the doctrine of subjudice may not be elevated to
such an extent that some kind of reference or allusion
to a member of a society would warrant the negation of
the right to freedom of speech and expression which is
an extremely cherished right enshrined under the
Constitution. The moment the right to freedom of
speech and expression is atrophied, not only the right
but also the person having the right gets into a semi
coma. We may hasten to add that the said right is not
absolute but any restriction imposed thereon has to be
extremely narrow and within reasonable parameters.
In the case at hand, we are obligated to think that the
grant of certificate by the CBFC, after consulting with
the authorities of the Army, should dispel any
apprehension of the members or the society.”
24
33. It would usher in a perilous situation, if the constitutional
courts, for the asking or on the basis of some allegation
pertaining to scandalous effect, obstruct free speech, expression,
creativity and imagination. It would lead to a state of intellectual
repression of literary freedom. When we say so, we are absolutely
alive to the fact that the said right is not absolute but any
restriction imposed thereon has to be extremely narrow and
within the reasonable parameters as delineated by Article 19(2) of
the Constitution. Here, we may remind ourselves of the
expression used by George Orwell. It is free thinking and
intellectual cowardice. Creative writing is contrary to intellectual
cowardice and intellectual pusillanimity.
34. Keeping in view the aforesaid principles, the objections
raised as regards the contents of the novel and the language
used which is reflected in the dialogue as reproduced
hereinbefore are to be decided. The grievance, as is reflectible,
pertains to derogatory comments on women, especially when
they go to temple. As stated earlier, it is the duty of the Court to
see whether such a dialogue was contrived to give rise to any
kind of sensuous situation or projection of a class to humiliate
them. A creative work has to be read with a matured spirit,
25
catholicity of approach, objective tolerance and a sense of
acceptability founded on reality that is differently projected but
not with the obsessed idea of perversity that immediately
connects one with the passion of didacticism or, for that matter,
perception of puritanical attitude. A reader should have the
sensibility to understand the situation and appreciate the
character and not draw the conclusion that everything that is
written is in bad taste and deliberately so done to pollute the
young minds. On the contrary, he/she should elevate
himself/herself as a cowalker with the author as if there is
social link and intellectual connect. The feeling of perverse
judging should be abandoned. A creative writing is expectant of
empathetic reading. It is not averse to criticism but certainly
does not tolerate unwarranted protest. The author of “Wuthering
Heights” expects the readers to appreciate the morbidity that
surrounds the character of “Heathcliff”. Similarly, the great poet
of “Nala Damayanti” desired the readers to enjoy the description
of the beauty of the princess appreciating the narrative but not to
engage in pervert thinking.
35. One has to understand and appreciate the characteristics of
the character and the plots and subplots that are woven in the
26
story. The character of Meesha as has been projected shows the
myriad experiences with different situations. The situations, as
we find, can be perceived as certain subplots which evolved
around the fundamental characteristics of the protagonist. The
theory of consistency of character as adopted by certain writers
seems to have been maintained in the narrative. The situations
and the treatment of situations may be different but the basic
response of the protagonist remains unchanged. All these, we
say, can be from one reader’s point of view. To another reader, it
may seem that the subplots have been enthusiastically
contrived to bring in tempting situations to draw the protagonist
in and to exposit chain reactions. Appreciated from either point
of view, it cannot be denied that it is a manifestation of creativity.
The perception of a character which is in consonance with the
story invites empathetic readers to view him/her from a different
perspective. A reader with mature sensibility would connect with
the plight of the protagonist or may distance himself/herself by
expressing the view that the projection is derogatory and hurtful
to a section of people. He/she treats the novel as scandalous
and offensive. The Court is not to be swayed by any kind of
perception. One may have a grave dislike towards a particular
27
manner of expression but that would not warrant for issue of a
mandamus from the Court to ban the book or the publication.
The language used in the dialogue cannot remotely be thought of
as obscene. The concept of defamation does not arise. Nurturing
the idea that it is derogatory and hurtful to the temple going
women would tantamount to pyramiding a superstructure
without the infrastructure.
36. If one understands the progression of character through
events and situations, a keen reader will find that beneath the
complex scenario, the urge is to defeat and to conquer and not to
accept a denial. Both the facets are in the realm of obsession and
the author allows the protagonist to rule his planet. His
imagination encircles his world. A reader has the liberty to
admire him or to sympathise. Either way, the dialogue to which
the objection is raised is not an intrusion to create sensation. It
is a facet of projection of the characters. It is, in a way,
imaginative reality or as Pablo Picasso would like to put it,
“ Everything you can imagine is real ”. A pervert reader may
visualise absence of decency or morality or the presence of
obscenity but they are really invisible.
28
37. If books are banned on such allegations, there can be no
creativity. Such interference by constitutional courts will cause
the death of art. True it is, the freedom enjoyed by an author is
not absolute, but before imposition of any restriction, the duty of
the Court is to see whether there is really something that comes
within the ambit and sweep of Article 19(2) of the Constitution.
At that time, the Court should remember what has been said in
8
S. Rangarajan v. P. Jagjivan Ram and others wherein, while
interpreting Article 19(2), this Court borrowed from the American
test of clear and present danger and observed:
“45. … Our commitment of freedom of expression
demands that it cannot be suppressed unless the
situations created by allowing the freedom are
pressing and the community interest is endangered.
The anticipated danger should not be remote,
conjectural or farfetched. It should have proximate
and direct nexus with the expression. The expression
of thought should be intrinsically dangerous to the
public interest. In other words, the expression should
be inseparably locked up with the action contemplated
like the equivalent of a “spark in a power keg”.”
38. To apply the said litmus test, it is to be borne in mind that a
book should not be read in a fragmented manner. It has to be
read as a whole. The language used, the ideas developed, the
style adopted, the manner in which the characters are portrayed,
8 (1989) 2 SCC 574
29
the type of imagery taken aid of for depiction, the thematic
subsidiary concepts projected and the nature of delineation of
situations have to be understood from an objective point of view.
There may be subjective perception of a book as regards its worth
and evaluation but the said subjectivity cannot be allowed to
enter into the legal arena for censorship or ban of a book.
39. Quite apart from the above, the creativity and the author’s
perception of the universe are to be borne in mind. What is true
to poetry is applicable to novels or any creative writing. It has to
be kept uppermost in mind that the imagination of a writer has
to enjoy freedom. It cannot be asked to succumb to specifics.
That will tantamount to imposition. A writer should have free
play with words, like a painter has it with colours. The passion of
imagination cannot be directed. True it is, the final publication
must not run counter to law but the application of the rigours of
law has to also remain alive to the various aspects that have been
accepted by the authorities of the Court. The craftsmanship of a
writer deserves respect by acceptation of the concept of objective
perceptibility.
40. It ought to be remembered that eventually, what the great
writer and thinker Voltaire had said ― “ I may disapprove of what
30
you say, but I will defend to the death your right to say it ”
becomes the laser beam for guidance when one talks about
freedom of expression.
41. In view of the aforesaid analysis, the writ petition, being
devoid of merit, stands dismissed. However, there shall be no
order as to costs.
…………………………….CJI
(Dipak Misra)
……………………………….J.
(A.M. Khanwilkar)
New Delhi; ...………………….………..J.
September 05, 2018 (Dr. D.Y. Chandrachud)