“Artistic freedom cannot be used to abuse historical figures like Gandhi” – SC reserves judgment

‘Gandhi Mala Bhetala Hota’ (Gandhi Met Me), a Marathi poem written by one Vasant Dattatraya Gujar, was published by Devidas Ramchandra Tuljapurkar in an in-house magazine of the Bank of Maharashtra Employees Union in 1994. Tuljapurkar then was the General Secretary of the Bank Union. The poem discussed a hypothetical incident where Mahatma Gandhi, after his demise, met the poet. Poem allegedly contained vulgar and obscene references to Mahatma Gandhi.

Patit Pawan Sanghatana, a local organisation, filed an application with the Commissioner of Police, Pune, making grievance that the said poem is obscene and the contents of the same would lower down the image of the father of the nation – Mahatma Gandhi. The Commissioner of Police, Pune, in turn, transmitted the said complaint to the Latur Police. On the basis of the said complaint an offence came to be registered for offences under:

• Section153A, IPC -Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc. and doing acts prejudicial to maintenance of harmony
• Section153B, IPC -Imputations, assertions prejudicial to national-integration
• Section292, IPC -Sale, etc., of obscene books, etc.

In 2001, the charges under sections 153-A, 153-B were dropped but charge under 292 (2) continued. If convicted under Section 292, a first-time offender can face punishment of a jail term up to two years and/or a fine of Rs 2,000. Tuljapurkar appealed to Sessions Judge but the same was dismissed in 2002.

Bombay High Court

Tuljapurkar then approached Bombay High Court (Aurangabad bench) in 2002 for quashing of charges, under Section 482 of CrPC.

Tuljapurkar contended that the contents of the poem may be vulgar but were not obscene; were a fair criticism and a piece of literature in the form of satire. It was further submitted that the readers were highly qualified and educated people who appreciate such things and hence it cannot be said that the contents of the said poem were obscene and may hurt the feelings of the readers.

Bombay High Court dismissed the Application observing:

The words used in stanzas No.4, 8, 9, 10, 12, 23, 25, 27, 28, 30, 34 and 36 of the said poem are not only vulgar but also obscene and indecent, which will definitely damage the image and reputation of the father of nation, which is nurtured by every citizen of this Country.

Read the Judgment of the Bombay High Court

Supreme Court of India

Tuljapurkar filed a Criminal Special Leave Petition to Appeal under Article 136 of the Constriction of India. SLP was heard on 6 July 2010 and leave was granted in the matter. SLP was converted into Criminal Appeal No. 1179 of 2010.

Final hearing began in the matter in February 2015. Tuljapurkar was represented by Sr. Advocate Gopal Subramaniam and Sr. Advocate Pravin H. Parekh, while Aniruddha P. Mayee appeared for the State. On 18 February 2015, when the matter came for hearing before the Bench of Justice Dipak Misra and Justice Adarsh Kumar Goel, the bench appointed Sr. Advocate Fali S Nariman as an amicus curiae in the matter. Inter alia, the bench ordered:

Regard being had to the importance of the matter, we had sought assistance of Mr. Fali S. Nariman, learned senior counsel, to assist the Court, and he has gladly rendered. At the   time   of   hearing,   we   have   asked   the   learned   senior counsel,   learned   Amicus   Curiae,   to   assist   the   Court   as regards the proposition 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.

Matter was heard for the last day on 16 April 2015 by the bench of Justice Misra and Justice PC Pant which reserved the judgment. It said that it would decide as to whether putting “indecent words” in the “mouth of Mahatma Gandhi” by the poet falls under the ambit of freedom of speech and expression or not.

Bench remarked:

“You cannot use abusive words for historical figures under the garb of artistic freedom. There is a complete freedom for ideas but the freedom of speech and expression is not absolute. The Constitution provides restrictions and it is a regulated freedom,” [Times of India]

Subramanian argued that the Constitution of India lays down impersonal proposition and the law could not be applied differently, depending on the persona of a historical or iconic figure and submitted:

Veneration is a personal matter. Constitution does not talk about veneration of historical figures. Time is changing and what was earlier considered abusive has become idiomatic in society. Society should be tolerant.

There is nothing called absolute freedom, but freedom of ideas can only be enjoyed through words

However Court observed:

If some were to put these words in the mouth of Queen Victoria how would the British have reacted? Linguistic freedom is not a problem but using the linguistic freedom to say something to Mahatma Gandhi is an issue… You can write satire on Gandhi, lampoon him or criticize him but if you put abusive words in his mouth, then it is not permissible.

There is a distinction between freedom of idea and freedom of words. You have an idea, express it, but the words you choose must be controlled and under the statute. [HT]

Court asked:

“Is it not a collective responsibility of society to protect the name of Gandhi and other figures like Sardar Patel, Subhash Chandra Bose, Vivekananda?”

Amicus Curiae Nariman pointed out to the Court that Emblem Act protects Mahatma Gandhi from contentious depiction.

After the arguments were concluded, Bench reserved the judgment.