The issue of obscenity includes under its ambit related issues of decency, morality and righteousness. The debate over obscenity has intensified due to the spread of globalization. The society comprises of people, who adhere to different outlooks: from prudish to neutral to modern. Indian diaspora has not been very tolerant towards creative people in general. Celluloid, literature, press, et al. have been victims of cultural jingoism and rigid puritanism. Wendy Doniger, Tasleema Nasreem and Aseem Trivedi are just a few them. For some, Husain’s portrayal of Bharat Mata was celebration of nudity and the purest form of expression, whereas for others, it evoked lustful thoughts and offended patriotic sentiments.

The condemnation of obscenity in the society is reflected in the enactment of the common-law based anti-obscenity legislation under Section 292 of the IPC under which any publication which is “lascivious or appeals to the prurient interest” or “tends to deprave and corrupt persons” is criminalized. Despite having an express provision to that effect, the corpus of precedents testifies that the courts have gone beyond a literal interpretation of the provision.

The Supreme Court of India in the Devidas Ramachandra Tuljapurkar v. State of Maharashtra & Ors. case (‘Devidas’) revolves around the  private circulation of a poem, titled “Gandhi Mala Bhetala” (‘I Met Gandhi’) in the magazine named the ‘Bulletin’ published in 1994 issue, amongst the members of All India Bank Association Union.

The Court goes on to discuss obscenity laws of different jurisdiction viz. United States of America, United Kingdom, European Court, et al. Thereafter, the Court discusses corresponding case laws from India. Without giving a new test, the Court applies a new “community standard test” with different degrees for “historically respectable persons”.

Although the Court does not say so expressly, by application of this concept of “degrees” it has effectively overruled the Sarkar case. Prima facie this concept of degrees is both legally and literally inconsistent with “community standard test”. If community standard is the said standard, whatever be its value, it cannot be segregated into different standards. Legally speaking, the very use of “average person” standard is defeated the moment, for different persons, the standard is different.

The judgment is also problematic, because in one-hundred and five paragraphs not once does it deal with the question of substantive obscenity in the poem itself. The Court refers to certain text of the poem merely once. Even in that reference, the certain portions have not been mentioned, because it might not have been “appropriate” to mention them. Even if one were to imply that by stating that it is not “appropriate” to mention the censored parts, the Court meant that the censored parts were obscene, it is still inconsistent with the Roth test. It is primarily because, the Court did not discuss the “overall dominant theme” of the poem anywhere. The scrutiny of selective portions for determining obscenity is another close resemblance to the Hicklin test.

The crux of the legal reasoning, or rather the attempt is limited to a single passage. The Court makes general observations such as the fact that the right to freedom of speech and expression is not an unqualified one. However, the extent of reasoning is limited to the fact use of name of a public figure gives it signification. Thereafter, the Court automatically concludes the applicability of the concept of “degrees”. In the second part of the passage, the Court takes an arbitrary example and with the help of some rhetoric stated that in such a scenario, “the creativity melts into insignificance and obscenity merges into surface even if he had chosen a “target domain””. The Court not only fails to justify why such a scenario would have been obscene, but also fails to draw reasonable parallels between such a scenario and the facts of the case.

The court has disregarded the jurisprudence surrounding obscenity in India and without giving adequate reasons distorted the Roth test and included the “historically respected figure” category. The court has made itself the ultimate arbiter to define the “degree” and “vigor” to which a revered figure can be alluded to in texts. The court also fails to illumine the concept of community standards, therefore exacerbating the vagueness and nebulousness of this open-ended word. History can be computed from what happened yesterday to the happenings of a minute ago. The Court does not seem to spell out a crucible or parameter to put people in this category.

The Court’s use of “historically respected figures” raises the hackles of doubt, confusion and nebulousness. By giving a short-shrift to the accepted tests to determine obscenity, the court solely relies on its own understanding of respectability and hence, pandered to the patriotic fringe. It has imposed upon the country a judicial restriction to the freedom to express. Like Mr. Subramaniam said, “Fearlessness of thought and the right to offend and hurt sensibilities is a part of democracy.”

Tushar Gandhi, responding to this case said, “The poem must be appreciated in its entirety. The focus should be on its message. This poem is meant to agitate. That is its purpose and the direct, even rough language is the tool used to achieve it.” The Supreme Court of India missed the point in being able to interpret the long standing meaning of ‘rebel literature’ in Maharashtra to which an aggressive, even offensive style of writing is integral.

Just because a person has passed into the annals of history should not be reason to exclude him from becoming anybody’s ruse of imagination. Just because Late Dr. APJ Abdul Kalam has now become history should not disentitle anyone wanting to express his views about him, whether good or bad.  The bench in this case upheld the “community standards test” validated  by Aveek Sarkar’ and ‘Shreya Singhal’, but took a regressive step by inventing  a “historically respectable figures” exception with no basis in constitutional text, history, precedent or reason;  In failing to define this new standard, it opens a can of worms, opening floodgates for future claims brought on behalf of “historically respectable figures”, which portends a dark future for freedom of expression in India; and lastly, it creates a superficial distinction between “historically respectable figures” and the others, with differential standards applying to both, it destroys the very basis of having a fundamental right to free speech in the first place.

Free speech is a transcendent  human right. “The recognition of freedom of thought and expression cannot be pigeon-holed by a narrow tailored test”. The principle pertaining to the freedom of speech has to be interpreted on an extremely broad canvas. The variations and the variables inside a certain society are also crucial considerations while judging whether an object comes within the permissible limits of obscenity and morality.”

Interpreting obscenity in isolation, without factoring in dynamics of the changing times is dangerous. The relative subjectivity: decency and vulgarity for some is liberation and creativity for others begets the need for a holistic view with a preponderant tolerance towards the idea of obscenity. The commitment to 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 far- fetched. It should have proximate and direct nexus with the expression. The definition of obscenity is like shifting sands.

The need is for a concerted effort by the Law makers, the Indian populace and the Judiciary to respect the impersonalized nature of our Constitution. Poetry which encourages fearlessness of expression cannot be restricted because of a use of name of a personality. Freedom to offend can also be a part of freedom of speech. Pluralism is the soul of democracy. There should be freedom for the thought we hate. Freedom of speech has no meaning if there is no freedom after speech. The reality of democracy is to be measured by the extent of freedom and accommodation it extends.”These words bear great importance and prod us to delve into broader thinking and greater tolerance for the creative field.

This post has been authored by Pranvika Bedi and Ishani Moulik, members of the Constitutional Law Society and students at the West Bengal National University of Juridical Sciences.

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