Fundamentalists in Indian society have assumed total power to tell people what they can write, publish and appreciate. Their threat is anger, violence and law, if needs be.
The list is endless. MF Husain, Graham Staines, Wendy Doniger, Khushwant Singh, Udta Punjab, Muslim singers from Pakistan, MM Kalburgi, P Murugan, et al.
Chief justice Sanjay Kaul’s judgment on the Murugan case should not surprise.
In 2002, he revealed his constitutional preferences in favour of free speech in the Khushwant Singh Vs Maneka Gandhi case (2002) by allowing Singh’s auto-reflections to be published after they had suffered a not-to-be-published injunction by the single judge.
He also wrote a significant judgment in the Husain case (2008).
So, the Perumal Murugan case over the publication of the author's Madhorubagan, (One Part Woman) went to a judge sensitive to free speech issues.
Murugan was humiliated, his book burned, a bandh organised, his life put in danger.
His statement that this was a book of fiction was to no avail. He was summoned to the office of the District Revenue Officer (DRO) in the collectorate to conduct peace talks on January 12, 2015, relating to banning the book and public outrage at its publication.
This seems absurd.
Banning a book is no concern of the police.
It can only be done by the state subject to judicial review by a three-judge bench (Section 95 Criminal Procedure Code).
|Murugan was humiliated, his book burned, a bandh organised, his life put in danger.
The DRO’s peace plan was to insist on "unconditional apology" instead of "sincere regret".
The opposition crushed him.
He could not face his students, fans and friends.
He issued a press release: "Author Perumal Murugan has died", withdrawing his writing from all domains and giving up writing altogether.
What was Tamil Nadu CM J Jayalalithaa doing? Regretfully, nothing. Why rule when it is enough to reign.
There, this tragedy would have stood until the PUCL and others filed writ petitions in the Madras High Court to void the "agreement" of January 12, 2015.
Counterblast petitions were filed to say the book celebrated that during the 14th day of the car festival of the Arthanareeswarar temple (Tiruchengode), barren married woman could conceive sexually through other men.
Times and places being mentioned, the book was attacked as perverted, blasphemous outrageous, offensive and morally unacceptable.
So, according to chief justice Kaul, a ban was sought primarily on grounds of obscenity, defamation and hurting the sentiments of Hindus.
The single answer to these counterblast petitions was: if you want a book banned, go to the state which alone has the power to ban the book. If the state did not want to ban the book to avoid controversy, it made the task of the court simpler.
The court should have allowed the PUCL petitions and declared that the agreement of January 12, 2015, was plainly coercive and an abuse of power by the DRO, even after taking into account the DRO and deputy superintendent of police’s affidavits that the settlement was aimed at bringing peace.
The court should have blasted this kind of state intervention more strongly than it did.
That left the criminal petitions against the book to take actions on the FIRs filed against the book for disturbing religious harmony, obscenity, outraging religious feelings, provoking alarm to cause offence and indecent representation of women.
In some of these cases, no court could take cognisance of most of these complaints without state sanction. So these criminal complaints could also have been more simply decided by ordering FIRs to be registered but declaring the criminal cases could not proceed without state sanction.
These simple solutions seemed to elude the Madras High Court. Everyone loves drama.
The hearings of this court case became a fully charged drama. No one would have satisfied with a simple solution and be robbed of theatre which included outbursts of anger in the court.
Chief justice Kaul could not avoid taking a view on whether a criminal offence was made. He observed that "receiving awards was not definitive".
This was partly wrong.
After the 1969 amendment to the obscenity provisions, the critical opinion of experts is relevant.
Like justice Hidayatullah in the Lady Chatterley’s Case (1965), justice Kaul read the novel but unlike justice Hidayatullah, did not assume the role of a critic.
Both judges said: "The book shakes you, but not in the manner its opponents seem to profess. It jolts you (depicting)… the pain and sufferance of a childless couple."
What should have been brought forward were the 1969 exceptions which emulated the English Act of 1957, changing the common law (which Macaulay captured in our Penal Code).
These changes lay down that science, literature, art or learning or other objections of general concern "can be justified for the public good".
Jurists believe this amendment overruled the Supreme Court’s Lady Chatterley’s decision.
This is where the battle should have been made to rest without travelling to international jurisprudence ad infinitum. But since imitative cosmopolitanism is in our juristic blood, justice Kaul had to invoke it, which he did admirably.
While I agree with his observations that the state has a bounden duty to preserve law and order in such situations to protect free speech, I am wary of one judicial suggestion that the government should constitute an expert committee to form a definitive opinion on art, literature and the like.
Oh, no! Please, no!
(Courtesy of Mail Today.)