SC is right. 'Obscene' Gandhi poem is not freedom of speech

In a lucid judgement on the publication of a poem on Mahatma Gandhi by Devidas Ramchandra Tuljapurkar, charged of offence under section 292 of the Indian Penal Code (IPC), the Supreme Court has extensively examined the challenge on the touchstone of right to expression and speech. This decision sends a clear message that under the garb of freedom of speech and expression, no one can take liberties and obviously, it cannot give a liberty to offend.

The Supreme Court on May 14 refused to quash the charge against Tuljapurkar for publishing an alleged vulgar and obscene poem on Mahatma Gandhi in 1994. The apex court dismissed the plea of the bank employee who had challenged the framing of charge against him for publishing the poem in an in-house magazine, of which, he was an editor.

A bench comprising justices Dipak Misra and Prafulla C Pant said one cannot be allowed to use indecent language for "historically respected personalities" like Mahatma Gandhi.

The bench upheld the Bombay High Court's decision of not quashing the charge of sale/publication of obscene books, framed against Devidas Ramchandra Tuljapurkar, saying that freedom of speech and expression did not allow a person to cross contemporaneous community parameters on decency.

The Supreme Court decision reaffirms the well-settled proposition that freedom of speech and expression is not an absolute right but it is always subject to reasonable parameters under 19(2) of the Constitution.

Tuljapurkar was accused in 1994, under section 292 (sale, publication of obscene books) of the IPC, for publishing the allegedly vulgar poem on Gandhi. The court had said it would decide as to whether putting indecent words in the mouth of Mahatma Gandhi by the poet fell under the ambit of freedom of speech and expression or not.

The poem was published in the in-house magazine of the Bank of Maharashtra Employees Union in 1994. Tuljapurkar, the general secretary of the bank union, has been facing the charge of publishing the "vulgar and obscene" poem since then.

Often some individuals confuse the concept of obscenity as a freedom of expression on the strength of what might be prevailing in England or elsewhere, but there is no uniformity about it. It differs from country to country depending on the moral standards of contemporary society. I think the observation "what is considered as a piece of literature in France may be obscene in England and what is considered in both countries as not harmful to public order and morals may be obscene in our country", must always be adhered to.

The Constitution bench had made an observation way back in 1965 and it is relevant even now. It had said, "This freedom is subject to reasonable restrictions which may be thought necessary in the interest of the general public and one such is the interest of public decency and morality. Section 292 (of) IPC embodies such a restriction... ”

Considering various foreign and Indian judgements, it has been held that freedom of speech and expression has to be given a broad canvas, but it has to be with inherent limitations that are permissible within constitutional parameters. No doubt, with the passage of time and growth of culture, the right to expression has to be considered.

The recent decision of the apex court striking down section 66A of the Information Technology (IT) Act has to be explained. Let me quote: "The court has really elevated the concept of freedom of speech and expression to a great height." The decision on the IT Act relates to the field of Internet, while the case relating to section 292 of the IPC has a different context, as the court in the IT case was not dealing with the obscenity issue within the ambit and sweep of section 292.

The court perceived Mahatma Gandhi as being one of the "historically respected personalities". The "Father of the Nation" is one of the most respected people and his sacrifices and contributions in India's freedom struggle, taking the masses along in a peaceful manner is unparalleled in world history. It was because of the respect for him that it culminated into a strong movement and people supported and followed him. A man respected by the people of India, therefore, cannot be disrespected by anyone, even if, one does not subscribe to his views and teachings.

Referring to the Kesavananda Bharati decision, the court quoted the philosophy of Gandhi and Jawaharlal Nehru. The court even mentioned as many as 13 judgements wherein Gandhi’s works and contributions have been referred to and appreciated. I am afraid, there isn't any other personality of that calibre and competence who has been ever born.

The moot question raised and answered by the court was whether in the name of artistic freedom or critical thinking or creativity, a poet or a writer can use obscene language. The obvious answer would be in the negative.

The concluding observations are remarkable: "The judicially evolved a test that 'contemporary community standards test' is a parameter for adjudging obscenity, and in that context, the words used or spoken by a historically respected personality is a medium of communication through a poem or write up or other form of artistic work (that) gets signification."

This has been demonstrated by an example of a playwright conceiving a plot in which Gandhi, Rabindranath Tagore and Sardar Vallabhbhai Patel meet in heaven and during a discussion eventually abuse and use obscene words. I think people must understand that a dramatist cannot indulge in obscenity in the name of even fiction.

This is a first judgement which explicitly deals with all aspects closely and in-depth which should guide the nation. It will also restrain fictitious and malicious publications.