Author- Shrestha Chaurasia, IMS Unison University, Dehradun

KEYWORDS

Obscenity, Mahatma Gandhi, Section 292 IPC, Poetic License, Freedom of Speech, Article 19(1)(a), Article 19(2), Constitutional Law, Artistic Expression, Historically Revered Figure.

CASE DETAILS

i)            Judgement Cause Title / Case Name	Devidas Ramachandra Tuljapurkar v State of Maharashtra & Ors.
ii)            Case Number	Criminal Appeal No. 1179 of 2010
iii)            Judgement Date	14th May 2015
iv)            Court	Hon’ble Supreme Court of India
v)            Quorum / Constitution of Bench	Justice Prafulla C. Pant, Justice Dipak Misra
vi)            Author / Name of Judges	Justice Dipak Misra
vii)            Citation	AIR 2015 SC 2612, 2015 AIR SCW 3822, 2015 AIR CRI. L. J. 3492
viii)            Legal Provisions Involved	Constitution of India- Articles 19(1)(a), 19(2) and 136. Indian Penal Code, 1860- Sections 153A, 153B, and 292. Code of Criminal Procedure, 1973- Section 482

INTRODUCTION AND BACKGROUND OF JUDGEMENT

“The relation between reality and relativity must haunt the court’s evaluation of obscenity, expressed in society’s pervasive humanity, not the law’s penal prescriptions.”[1] This observation by Justice Krishna Iyer highlights the challenges inherent in addressing obscenity- a concept deeply tied to society’s ever-changing standards of morality and cultural values. Obscenity is derived from the Latin term ‘obscene’ which means ‘offstage’, thereby referring to content considered morally offensive or frowned upon by society. It involves a broad spectrum of acts, expressions, and visuals that are considered corrupt, degrading, or offensive, voicing concerns about the limitations of free speech and expression.

In India, various laws address distinct aspects of obscenity. Primarily, Sections 292-294 of the Indian Penal Code, 1860 penalize obscenity. Section 292 penalizes the publication and selling of obscene material. Section 293 imposes stricter penalties for selling and distributing such material to any person under the age of 20 while Section 294 deals with obscene acts or songs performed in public. The Information Technology Act, 2 of 000 regulates obscenity in digital/electronic media, the Indecent Representation of Women (Prohibition) Act, of 1986 prohibits degrading or demeaning depictions of women in any media, and the Cinematograph Act, of 1952 regulates obscene content in films.

Previously, the Hicklen Test was upheld by the Hon’ble Supreme Court in Ranjit D. Udeshi v State of Maharashtra,[2] wherein obscenity was judged by its potential to corrupt susceptible minds. With the evolving perspectives of society, the Contemporary Community Standards as applied to the dominant theme of the artistic work were considered more feasible as emphasized by the Court in Aveek Sarkar v State of West Bengal.[3] This progression underscored the judiciary’s attempt to reconcile evolving cultural values with constitutional guarantees of free expression.

FACTS OF THE CASE

Procedural Background of the Case

1. The case originated when a complaint was lodged by V. V. Anaskar, a Pune resident with the Commission of Police against a poem titled ‘Gandhi Mala Bhetala.’ The poem was published in the July-August 1994 edition of the magazine ‘Bulletin,’ distributed among bank union members. Based on the complaint, an FIR (No. 7/95) was registered at Gandhi Chowk Police Station, Latur, alleging violations of Sections 153A, 153B, and 292 of the Indian Penal Code. Post-investigation, a charge sheet was filed against the author, publisher, and printer of the magazine.
2. The accused filed a discharge application before the Chief Judicial Magistrate seeking relief. The CJM discharged them under Sections 153A and 153B due to the absence of a prima facie case but rejected the application in respect of Section 292 reasoning that the court found sufficient grounds to proceed. Aggrieved by this, the accused filed a revision petition, which was dismissed by the Additional Sessions Judge.
3. The accused then approached the Hon’ble High Court of Bombay, Aurangabad Bench invoking its inherent powers under Section 482 of the Criminal Procedure Code to quash the proceedings. The High Court, having found no merit in the petition, confirmed the lower court’s orders. Finally, the publisher of the magazine, though not the author, sought relief by approaching the Hon’ble Supreme Court through a Special Leave to Appeal under Article 136 of the Constitution of India.

Factual Background of the Case

1. The controversy revolved around the poem ‘Gandhi Mala Bhetala’ (‘I met Gandhi’), written by Vasant Dattatraya Gujar. Published in ‘Bulletin’, the poem was circulated among bank union members. The complainant, representing a socio-cultural organization ‘Patit Pawan Sangathan,’ objected to the poem, alleging it was obscene and unacceptable. He argued that the poem depicted Mahatma Gandhi, a historically revered figure, offensively and thereby, hurt public sentiments.
2. It was asserted that the poem had the potential to deprave and corrupt readers’ minds, thereby, constituting an offence under Section 292 of the Indian Penal Code. The case involved a conflict between permissible limits of creative expression and artistic freedom under Article 19(1)(a) of the Constitution and reasonable restrictions in the context of public decency and morality.

LEGAL ISSUES RAISED 

1. Whether the poem ‘Gandhi Mala Bhetala’ constitutes obscenity under Section 292 of the Indian Penal Code.
2. Whether the right to freedom of speech and expression under Article 19(1)(a) of the Constitution of India protects the publication of such material.
3. Whether the use of Mahatma Gandhi’s name in the poem, as a symbol of allusion, surpasses the permissible limits of artistic freedom and poetic license under Section 292 of the IPC and Article 19(2) of the Constitution.

PETITIONER / APPELLANT’S ARGUMENTS

1. The learned senior counsel for the appellant, Mr. Gopal Subramanium, contended that the poem “Gandhi Mala Bhetala” is a legitimate exercise of creative and poetic expression which is safeguarded under Article 19(1)(a) of the Indian Constitution. He emphasized that the work did not attack Gandhi’s legacy but used his persona metaphorically to analyze the prevailing socio-political realities. Invoking this Hon’ble Court’s judgment in Ranjit D. Udeshi v State of Maharashtra,[4] the counsel underscored that the application of Section 292 of the Indian Penal Code requires an in-depth analysis of the material’s prominent theme, purpose, and ability to deprave and corrupt the audience. It was argued that the magazine’s limited circulation among union members negated any substantial risk of public moral degradation.
2. The counsel pointed to landmark U.S. judgments, including Miller v California,[5] and Roth v United States,[6] to highlight that for a material to be deemed obscene, it must when taken as a whole, “…(1) appeal 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.”[7] The counsel contended that the poem did not satisfy these criteria and therefore could not be considered obscene. The appellant’s counsel relied on Aveek Sarkar v State of West Bengal[8] to assert that the work’s decency should be evaluated based on its dominant theme and its audience, pointing out that union members are professional beings capable of appreciating symbolic and reflective depictions.
3. The concept of ‘poetic license’ was employed by the learned senior counsel to highlight that creative works often used symbolism which included reference to historical figures to address prevalent societal challenges. The counsel contended that the assessment of these works required a more flexible and liberal approach rather than judging them by rigid standards. The counsel referred to Samresh Bose v Amal Mitra,[9] where this Hon’ble Court recognized the need to interpret artistic expressions in their entirety in the context of their intended audience. It was submitted that the poet’s intent was creative and reflective, focusing on societal critique, and lacked any prurient or offensive undertones.
4. The counsel for the appellant emphasized that the poem’s content and symbolic use of Gandhi fall within the permissible degree of artistic expression without demanding a need to impose reasonable restrictions outlined by Article 19(2) of the Indian Constitution. The counsel substantiated this argument by referring to Handyside v. United Kingdom,[10] wherein the European Courts of Human Rights, affirmed that “…Freedom of expression constitutes one of the essential foundations of a [democratic] society… [freedom of expression] applies not only to “information” or “ideas” that are favorably received or regarded as inoffensive or as a matter of indifference but also to those that offend, shock, or disturb the State or any sector of the population.”[11]

RESPONDENT’S ARGUMENTS

1. The learned senior counsel for the Respondent, Mr Fali S. Nariman, submitted that the poem’s content violated Section 292 of the Indian Penal Code which provides the offence of obscenity. It was contended that the poem depicted Mahatma Gandhi, a figure deeply admired by Indian society, in a manner offensive to public decency and morality. It was emphasized that Gandhi’s legacy holds unparalleled significance in the hearts of Indians and any depiction associating his name with indecent, morally objectionable, or suggestive content amounts to a blatant insult to public sentiment and ethical standards.
2. The counsel asserted that the constitutional guarantee of Freedom of Speech and Expression under Article 19(1)(a) does not extend to material that undermines society’s ethics and morals. It was argued that the poem failed the obscenity test laid down in Miller v California[12] and Roth v United States[13] by offending contemporary community standards and lacking any serious literary, artistic, or scientific value. Invoking Aveek Sarkar v State of West Bengal,[14] the counsel advocated that the dominant theme of the poem when viewed iaboutGandhi’s iconic status posed a risk to national values and the profound respect given to the ‘Father of the Nation.’
3. The concept of ‘poetic license’ asserted by the appellant’s counsel was challenged asserting that artistic freedom is neither an absolute right nor a shield to protect works that violate statutory provisions designed to uphold moral integrity and cultural values. Referring to Ranjit D. Udeshi v State of Maharashtra,[15] it was emphasized that literary merit cannot shield material deemed legally objectionable.
4. The learned senior counsel asserted that the private circulation of the magazine in no way mitigated the harm caused by the poem to society’s morals. Furthermore, drawing on K.A. Abbas v Union of India,[16] it was argued that “ …[right to freedom of speech and expression] is not absolute if such speech and expression is immensely gross and will badly violate the standards of morality of a society.”[17] Thus, it was contended that artistic expression that has the potential to cause societal disruption warrants strict application of Section 290 of the Indian Penal Code.
5. Lastly, the respondent’s counsel underscored the broader social implications of tolerating such portrayals of historical figures. It was contended that works involving honoured personalities require a higher standard of scrutiny than other obscene content to guard collective cultural and national values. Thus, the poem’s content justified the initiation of criminal proceedings under the Indian Penal Code to preserve decorum in society and respect accorded to iconic historical figures.
6.  

RELATED LEGAL PROVISIONS

Constitution of India

• Article 19- “Protection of certain rights regarding freedom of speech, etc.”[18]
• Article 136- “Special leave to appeal by the Supreme Court.”[19]
  1. Indian Penal Code, 1860
• Section 153A– “Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony.”[20]
• Section 153B- “Imputations, assertions prejudicial to national integration.”[21]
• Section 292- ”Sale, etc., of obscene books, etc.”[22]
  • Criminal Procedure Code, 1973
• Section 482- ”Saving of inherent powers of High Court.”[23]

JUDGEMENT

RATIO DECIDENDI

1. The Hon’ble Court deliberated on the interplay between the constitutional right to freedom of speech and expression under Article 19(1)(a) and the restrictions imposed by Section 292 of the Indian Penal Code which criminalizes obscenity. The Court acknowledged that poetic license and artistic expression are essential to free speech. However, it clarified that such freedoms are not absolute. It emphasized that reasonable restrictions can be imposed under Article 19(2) to safeguard decency and morality. Justice Dipak Mishra emphasized that obscenity should be evaluated by applying contemporary community standards, taking into account its potential impact on the audience likely to encounter it.
2. The court highlighted that a heightened degree of scrutiny is required when artistic works contain a reference to historically revered figures like Mahatma Gandhi to avoid diminishing the respect that the nation holds for them. The court explained that ”When the name of Mahatma Gandhi is alluded to or used as a symbol, speaking or using obscene words, the concept of “degree” comes in. To elaborate, the “contemporary community standards test” becomes applicable with morvigouror, in a greater degree in an accentuated manner.”[24] The court dismissed the Special Leave Petition, affirming the Hon’ble High Court’s order that the case warranted a full trial.

CONCLUSION & COMMENTS

Freedom of speech and expression is the cornerstone of democracy, but like all freedoms, it comes with responsibilities. The Hon’ble Supreme Court’s judgment navigates this delicate balance wherein artistic freedom is recognized as a vital aspect of Article 19(1)(a), but it is required to co-exist with societal values and morals. Artistic works employing historically honoured figures like Mahatma Gandhi need to adhere to a higher standard of scrutiny as compared to ordinary works. This approach is necessary to preserve the dignity of national icons and ensure that society lives in harmony. However, in my opinion, this judgment risks have a chilling effect on artists and creators. The reason behind this opinion is that it may instill fear of legal consequences forcing the artist to self-censor their work instead of pushing their creative boundaries. This judgment also poses a challenge to democracy by curbing legitimate forms of dissent in the shape of satirical work.

Furthermore, the Court’s reliance on ‘contemporary community standards’ for determining obscenity is quite subjective. The adjudicating authorities may give varied interpretations based on their perceptions which undermines uniformity and fairness in decisions. There is a need to frame clear guidelines on obscenity, especially for works involving national figures. This will not only remove ambiguity in the law but also reduce judicial discretion and ensure a more consistent approach.

ENDNOTES:

[1] Raj Kapoor v State, (1980) 1 SCC 43.

[2] Ranjit D. Udeshi v State of Maharashtra, (1965) 1 SCR 65.

[3] Aveek Sarkar v State of West Bengal, (2014) 4 SCC 257.

[4] Ranjit D. Udeshi v State of Maharashtra, (1965) 1 SCR 65.

[5] Miller v California, 413 U.S. 15, 93 S. Ct. 2607 (1973).

[6] Roth v United States, 354 U.S. 476 (1957).

[7] Miller v California, 413 U.S. 15, 93 S. Ct. 2607 (1973).

[8] Aveek Sarkar v State of West Bengal, (2014) 4 SCC 257.

[9] Samresh Bose v Amal Mitra, (1985) 4 SCC 289.

[10] Handyside v United Kingdom, App. No. 5493/72, 7^th Dec. 1976, Series A No. 24.

[11] Ibid

[12] Miller v California, 413 U.S. 15, 93 S. Ct. 2607 (1973).

[13] Roth v United States, 354 U.S. 476 (1957).

[14] Aveek Sarkar v State of West Bengal, (2014) 4 SCC 257.

[15] Ranjit D. Udeshi v State of Maharashtra, (1965) 1 SCR 65.

[16] K.A. Abbas v Union of India, (1970) 2 SCC 780.

[17] Ibid.

[18] INDIA CONSTI. art. 19.

[19] INDIA CONSTI.Artt. 136.

[20] Indian Penal Code, 1860, § 153A, No. 45, Acts of Parliament, 1860 (India).

[21] Indian Penal Code, 1860, § 153B, No. 45, Acts of Parliament, 1860 (India).

[22] Indian Penal Code, 1860, § 292, No. 45, Acts of Parliament, 1860 (India).

[23] Criminal Procedure Code, 1973, § 482, No. 2, Acts of Parliament, 1973 (India).

[24] Devidas Ramachandra Tuljapurkar v State of Maharashtra, AIR 2015 SC 2612.