N Radhakrishnan @ Radhakrishnan Varenickal vs Union Of India, The State Of Kerala Thr. Chief Secretary, Government Of Nct Of Delhi Thr. Chief Secretary, The Chief Editor Mathurbumi Weely Mathurbhumi Printing And Publishing Co. Ltd

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

holds it close to its heart and would abhorrently look at any step 12:08:12 IST Reason:

taken to create even the slightest concavity in the said freedom. It 2

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

Maharashtra and others1, the Court, dealing with the meaning

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.”

3. In Raj Kapoor and others v. State and others2, Krishna

Iyer, J., speaking for himself, while quashing the criminal

proceedings initiated against the petitioner therein for the 2 (1980) 1 SCC 43 4

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’.

5

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 6

‘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 7

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. 8

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 9

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

book is a narration which revolves back to the 19 th 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 11

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 12

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.

13

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 14

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 15

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 16

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.

17

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

another3, 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 18

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. 19

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.” 20

30. In this regard, we may refer with profit to the

pronouncement in Bobby Art International and others v. Om

Pal Singh Hoon and others4, popularly known as “Bandit

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

others5 would be apposite. In the said case, the challenge was to

the ban imposed by four States for screening the movie

‘Padmaavat’. The Court quashed the notifications of banning on

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

Certification6 which reads as under:­

“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

India and others7, the issue before this Court was whether

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 lis on the basis

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

S. Rangarajan v. P. Jagjivan Ram and others 8 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)