2015 Supreme(SC) 429

SUPREME COURT OF INDIA
Dipak Misra, Prafulla C. Pant, JJ.
Devidas Ramachandra Tuljapurkar – Appellant
Versus
State of Maharashtra & Ors. – Respondents
CRIMINAL APPEAL NO.1179 OF 2010
Decided On : 14-05-2015

IMPORTANT POINTS
‘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.
Freedom of artistic creation cannot be claimed where the work in question constitutes a debasement and debunking of a particular individual’s public standing.
Liberty of expression must be moderated by the limits of ‘public order’, ‘decency’ and ‘morality’. It would be obscene if suggestive of depravation or lasciviousness – An artistic work would be obscene if it has the tendency to corrupt the morals of those in whose hands the article may fall.
Supreme Court consistently applying contemporary community standards test as the main criterion. The test would vary with time because perception, views, ideas and ideals can never remain static.
Preamble of the Constitution has its own sanctity. It encompasses the vision of the Constitution makers and ideals and aspirations of the country and embodies the key to the understanding of the Constitution.
Decency or indecency of a particular picture, sequence or scene cannot depend upon the nature of the subject matter. It depends upon the manner of handling of the subject-matter.
Factum of obscenity has to be judged from the point of view of an average person.
It is not the function of Government to keep the citizen from falling into error; but other way round.
Evolving the ‘contemporary community standards test’ for determining obscenity is neither creating an offence u/s 292 IPC or adding an ingredient to the offence already there.
There is nothing wrong in using image of Mahatma Gandhi or his voice to communicate his feelings or his anguish or his agony about any situation. However putting in the voice or image of Mahatma Gandhi such language which may be obscene will not be permissible in the name of artistic freedom or critical thinking or generating the idea of creativity.
The words by themselves if used in ordinary people’s conversation might have passed the contemporary community standards test and not considered obscene. By use of the name of Mahatma Gandhi the test becomes applicable with more vigour, in a greater degree and in an accentuated manner.
When the Publisher immediately after his publication tendered unconditional apology in the next issue of the ‘Bulletin’ and the episode being more than two decades old, deserves quashing of charges u/s 292 IPC against him and the printer.

Headnote:(a) Constitution of India – Article 19(1)(a) – Poetic licence – Is not a license as used or understood in the language of law – Means freedom of a poet to depart from the reality; fly away from grammar; walk in glory by not following the 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 lofty ideas; cause violence to logic at his own fancy; escape to the sphere of figurative truism; get engrossed in “universal eye for resemblance” – One can do nothing about it except writing a critical appreciation – No one can stop a dramatist or a poet or a writer to write freely expressing his thoughts – ‘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. (Para 2, 3)

       (b) Constitution of India – Article 145(3) – Referring a matter to five Judge Bench – Instant matter does not warrant reference to a larger Bench. (Para 6)

       (c) (a) Indian Penal Code, 1860 – Section 292 r/w Article 19(2), Constitution of India – Obscenity – Tests – Comparables test – Despite emergence of comparable test, contemporary community standards test is still in vogue – Artistic freedom does not allow an artist, a poet or writer to substantially deform the image of a person by wholly imaginary elements, without it being evident from the work that it was aimed at satire or some other form of exaggeration – Freedom of artistic creation cannot be claimed where the work in question constitutes a debasement and debunking of a particular individual’s public standing. (Para 26, 30, 32, 33)

       1997 24 ECHRR (1); 13 EHRR 212 – Relied upon

       (1987) 2 AWC 1451; AIR 1958 Mad. 210; (1905), 9 O.L.R. 418; 1868 3 QB 360; [1961] Crim LR 176; 315 U.S. 568 (1942); (1957) 354 US 476; 383 U.S. 413 (1966); 413 US 15 (1973): 93 S.Ct. 2607; 521 U.S. 844 (1997); 732 P.2d 9 (1987); (2012) 1 Cal LJ 157; Application No. 68354/2001; Application No. 5493/72 – Referred

       (d) Indian Penal Code, 1860 – Section 292 – Constitutional validity upheld in (1965) 1 SCR 65 – Held, not ultra vires Article 19 of the Constitution. (Para 36)

       (1965) 1 SCR 65 – Relied upon

       LR 1868 3 QB 360 – Referred

       (e) Indian Penal Code, 1860 – Section 292 – Obscene – Not defined in the Code – Sex and obscenity are not always synonymous – However, use of sex designed to play a commercial role by making its own appeal should be prevented – Distinction should be made between a historical theme without true history and portrayal of an artistic scene – Liberty of expression must be moderated by the limits of ‘public order’, ‘decency’ and ‘morality’ – Use of slangs and unconventional words does not make a writing obscene – It would be obscene if suggestive of depravation or lasciviousness – An artistic work would be obscene if it has the tendency to corrupt the morals of those in whose hands the article may fall – Decency or indecency of a particular picture, sequence or scene cannot depend upon the nature of the subject matter – It depends upon the manner of handling of the subject-matter. (Para 38, 44, 47, 50, 56)

       (1965) 1 SCR 65; (1969) 2 SCC 687; (1970) 2 SCC 780; (1980) 1 SCC 43; (1985) 4 SCC 289; (2006) 8 SCC 433; (2007) 1 SCC 143; (1996) 4 SCC 1; AIR 1952 SC 329; (1988) 1 SCC 668 – Relied upon

       AIR 1990 AP 100 – Cited with approval

       1868 3 QB 360; (1965) 380 US 51; (1968) 390 US 149; (1961) 365 US 43; AIR 1947 Nag 1; (1993) 2 APLJ 91 (SN); 1989 Cr.L.J. 1241 – Referred

       (f) Indian Penal Code, 1860 – Section 292 – Obscenity – Notions of social morality are inherently subjective – Morality and criminality are not co-extensive – Obscenity should be judged on the touch stone of “contemporary community standards test” – Factum of obscenity has to be judged from the point of view of an average person. (Para 57, 58)

       (2010) 5 SCC 600; (2014) 4 SCC 257; 2015 (4) SCALE 1 – Relied upon

       1962 SCR 681 (Can SC); (1992) 1 SCR 452 (Can SC) – Referred

       (g) Indian Penal Code, 1860 – Section 292 – Obscenity – Test – Supreme Court consistently applying contemporary community standards test as the main criterion – It would vary with time because perception, views, ideas and ideals can never remain static – Becoming more liberal with passage of time – Comparables test may help but is not the applicable test. (Para 60)

       (h) Constitution of India – Preamble – Freedom of speech and expression – ‘Freedom of speech and expression’ enshrined in the Preamble in association with “liberty of thought, expression, belief, faith and worship” – Preamble of the Constitution has its own sanctity – It encompasses the vision of the Constitution makers and ideals and aspirations of the country and embodies the key to the understanding of the Constitution. (Para 61, 65, 66)

       (1973) 4 SCC 225 – Relied upon

       (i) Constitution of India – Article 19(1) (a) and 19(2) – Freedom of speech and expression – A fundamental right – Protected against State action – State cannot bind any legislative or executive action interfere with the exercise of the said right, except to the extent permissible under Article 19(2) – Thought control is alien to our constitutional scheme – Not the function of Government to keep the citizen from falling into error; but other way round – Freedom of speech and expression should not be given narrow or condensed interpretation – But it does not mean that cannot be any limit. (Para 68, 69, 72)

       (1978) 1 SCC 248; (1994) 5 SCC 550; (2014) 9 SCC 485 – Relied upon

       339 US 382; (2012) 10 SCC 603 – Referred

       2015 (4) SCALE 1 – Distinguished

       (j) Administration of Justice – Judicial legislation – Court can neither create an offence in a penal provision nor add an ingredient to it – Evolving the ‘contemporary community standards test’ for determining obscenity is neither creating an offence u/s 292 IPC or adding an ingredient to the offence already there. (Para 73)

       (k) Indian Penal Code, 1860 – Section 292 – ‘Historically respected persons’ – Mahatma Gandhi – People speaking high of him, praising him, appreciating his thoughts – Others criticising him and his thoughts – Nothing wrong – One can express his views freely about a historically respected personality showing his disagreement, dissent, criticism, non-acceptance or critical evaluation – Nothing wrong in using image of Mahatma Gandhi or his voice to communicate his feelings or his anguish or his agony about any situation – However putting in the voice or image of Mahatma Gandhi such language which may be obscene will not be permissible in the name of artistic freedom or critical thinking or generating the idea of creativity. (Para 74, 93, 94)

       (1973) 4 SCC 225; (1978) 1 SCC 18; (1978) 1 SCC 248; (1978) 2 SCC 213; (1980) 3 SCC 625; (1981) 1 SCC 246; (1982) 3 SCC 235; (1982) 3 SCC 24; (1984) 2 SCC 91; (1984) 3 SCC 654; (1992) Supp. 3 SCC 217; (1994) 3 SCC 1; (2012) 4 SCC 362; (2010) 2 SCC 114 – Referred

       (l) Indian Penal Code, 1860 – Section 292 r/w Article 19(1)(a) – Right of speech and expression under Article 19(1)(a) – Not absolute – Obscenity – “Contemporary community standards test” – Poem in question – Imagining meeting of poet with Mahatma Gandhi on different occasions – Poet putting words in mouth of Mahatma Gandhi – The words by themselves if used in ordinary people’s conversation might have passed the contemporary community standards test and not considered obscene – By use of the name of Mahatma Gandhi the test becomes applicable with more vigour, in a greater degree and in an accentuated manner – View of the High Court pertaining to the framing of charge cannot be flawed. (Para 104, 105)

       (m) Indian Penal Code, 1860 – Section 292 – Publisher publishing the poem in 1994, recited during the Akhil Bhartiya Sahithya Sammelan at Amba Jogai in 1980 and published by others in 1986 – Publisher immediately after his publication tendering unconditional apology in the next issue of the ‘Bulletin’ – Episode more than two decades old – Charges against publisher and printer quashed – Author not before Court – facing trial – Open for him to raise all the pleas in defence, as available to him under the law. (Para 106)

       Facts of the case:

       On the basis of a complaint lodged by one V.V. Anaskar, a resident of Pune, and a member of ‘Patit Pawan Sangthan’, with the Commissioner of Police, relating to the publication of the poem, which was published, in July-August, 1994, meant for private circulation amongst the members of All India Bank Association Union, a crime was registered as FIR No. 7/95 at P.S. Gandhi Chowk, Latur, on being transferred from Pune, for the offences punishable under Sections 153-A and 153-B read with Section 34, IPC and eventually after due investigation charge sheet was filed for the said offences along with 292, IPC against the present appellant, the publisher and the printer, respondent no.3, of the Bulletin and the author, one Vasant Dattatraya Gujar. When the matter was pending before the Chief Judicial Magistrate, Latur, all the accused persons filed an application for discharge and the learned Magistrate by order dated 4.5.2001 held that no case for the offences under Sections 153-A and 153-B was made out and accordingly discharged them of the said offences but declined to do so in respect of the offence under Section 292, IPC. On a revision being filed, the learned Additional Sessions Judge did not think it appropriate to interfere with the order passed by the trial Magistrate which constrained the accused persons to invoke jurisdiction under Section 482 of the CrPC and the High Court of Bombay, Aurangabad Bench dismissed the application. The said decision is the subject of matter of this appeal by special leave at the instance of the publisher.

       The author has not assailed the order passed by the High Court.

       The question under consideration is whether in a write-up or a poem, keeping in view the concept and conception of poetic license and the liberty of perception and expression, use the name of a historically respected personality by way of allusion or symbol is permissible?

       Finding of the Court:

       View of the High Court pertaining to the framing of charge cannot be flawed.

       Result: Appeal disposed of.