BY HEERA MURALEEDHARAN K
DEVIDAS VS. STATE OF MAHARASHTRA
COURT : HIGH COURT OF BOMBAY IN AURANGABAD
CASE NO. : 2074 OF 2002
BENCH : AURANGABAD
APPELLANT : DEVIDAS RAMACHANDRA TULJAPURKAR
RESPONDENT : STATE OF MAHARASHTRA & ORS
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. : 1179 OF 2010
DECIDED ON : 18.02.2015
Personal liberty is the most important of all fundamental rights under Article 19-22 to deal with different aspects of this basic right. Absolute individual rights cannot be guaranteed by any modern state. An organized society is the precondition of civil liberties. There cannot be any right which is injurious to the community as a whole. If people were given complete and absolute liberty without any social control the result would be ruined. Liberty has got to be limited in order to be effectively possessed. For liberty of one must not offend the liberty of others. In A. K . Gopalan’s case observed that “ man as a rational being desires to do many things ,but in a civil society his desires have to be controlled ,regulated, and reconciled with the exercise of similar desires by other individuals” . The guarantee of each rights is restricted by the constitution itself by conferring upon the state a power to impose by law reasonable restrictions as may be necessary in the larger interest of the community. The restrictions of these freedoms are provided in Clauses 2 to 6 Article 19 of the constitution.
On May 8,2008 Maqbool Fida Hussein was acquitted by the Delhi High Court in what was considered to be a landmark judgement on obscenity. The artist had painted “Bharatmata” in the nude and had at various instances in the past painted, Hindu Goddesses in obscene posture. The Delhi High Court held that the aesthetics of the painting and the social message it carried, far outweighed the obscenity in it. The Bench believed that the art ought not to be chained by anti-obscenity laws, if it is intended for the welfare of the society and aimed to coney a social message and not the sexual arousal of the audience.
The boundaries of obscenity have been limited considerably and that of speech and literary expression expanded. Yet, a stain in this tradition of tolerance is the case of DEVIDAS RAMACHANDRA TULJAPURKAR V. STATE OF MAHARASHTRA wherein the Apex Court retracted its progress and decided that the work in question would fall under the category of obscene material.
Obscenity is an offence under the Indian Penal Code against the public ethics., committed either by making indecent conduct or indecent publication. In India “obscenity” is an offence under Section 292 of the Indian Penal Code. But however, what is obscene has been argued and debated for many years ago. With the more extensive reach of print media and the approach of the web, the meaning of obscenity is changing in its measurements. The current case is about more than 30 years old poem sonnet which has been announced obscene, expressing that the freedom of speech and expression is not, absolute. While obviously, the right to speak freely has certain restrictions, the purpose of the dispute is whether it was justified for this situation.
In this case concerns the appeal by a distributor / publisher Devidas, editorial manager and publisher of an announcement magazine of the All-India Bank Association. He had challenged his prosecution for the publishing in 1994 by Marathi artist Vasant Dattatray Gujjar. The sonnet Gandhi mala Bhetla Hota ( I met Gandhi) had supposedly contained obscene and impolite expletives of Mahatma Gandhi and the creator had been held liable under the court.
FACTS AND ISSUES OF THE CASE
In this case a controversy dating back to 1994. A Marathi poem called “Gandhi Mala Bhetala”( I Met Gandhi) was published in a private magazine. On reading the poem, one V.V. Anaskar , a member of the ‘ Patit Pawan Sangathan’ ,took offence ,and filed a complaint with the local police station .After investigation , the author , printer and publisher of the magazine were charged under the SECTION 292 of the Indian Penal Code, which criminalizes obscene speech .In doing so, however the Supreme Court fundamentally reshaped the scope and contours of Indian obscenity law, and its relationship with the free speech.
Whether there could be a reference to historically respected character. Could that the reference by way of symbol. Whether any of the attributing words or acts to a historically reputed character which could appear obscene to a reader. The court should be focuses on its message. The poem must be appreciated in its entirely. The poem is meant to agitate.
THE QUESTION BEFORE THE COURT
What is the standard of the morality of India? Where the picture of the late Mahatma Gandhi , viewed as the father of the Nation is regarded in high esteem by the public at large. Whether the question of freedom and speech arises in front of the court .
The word obscenity is not defined in the IPC ,1860. The word obscene was originally used to describe anything disgusting ,repulsive, filthy or foul. The use of the word is now said to be somewhat archaic or poetic ; and its ordinarily restricted to something offensive to modesty or decency or expressing or suggesting unchaste or lustful ideas or being impure ,indecent etc. The obscene matter in a book must be considered by itself and separately to find out whether it is so gross and its obscenity, so decided that, it is likely to deprave and corrupt those whose minds are open to influences of this sort and into whose hands the book is likely to fall. In this connection, the interests of our contemporary society and particularly the influence of the book on it must not be overlooked. It was further observed in the case that merely treating with sex and nudity in art and literature cannot be regarded as evidence of obscenity without something more. It was held that where obscenity and art are mixed , art must be so preponderating as to throw the obscenity into the shadow or the obscenity so trivial and insignificant that it can have no effect and may be overlooked. When treatment of sex becomes offensive to publish only the work may be regarded as an obscene production. In considering the question of the case, into whose hands the book, article or story falls suffer in their moral outlook or become depraved by reading it or might have impure and lecherous thoughts aroused in their minds. It was also observed in the case that the question of obscenity may have to be judged in the light of the claim that the work has a predominant literary merit. Referring to the impact on the mind of the youth, the court said.
“ We do not think that it can be said with any assurance that merely because the adolescent youth read situations of the type presented in the book, they would become deprived ,debased and encouraged to lasciviousness. It is possible that they may come across such situations in life and may have to face them. But if a narration or description of a similar situation is given in a setting emphasizing a strong moral to be drawn from it and condemns the conduct of the erring party as wrong and loathsome, it cannot be said that they have a likelihood of corrupting the morals of those in whose hands it is likely to fall- particularly the adolescent”.
Section 292 of IPC defines; (1) For the purpose of a book, pamphlet ,paper, writing ,drawing, painting, representation, figure or any other object, shall be deemed to be obscene if it is lascivious or appeals to the prurient interest or if its effect ,or (where it comprises two or more distinct items) the effect of any one of its items, is if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it. (2) Whoever, (a) sells, lets to hire, distributes, publicly, exhibits or in any manner puts into circulation, or for purposes of sale, hire, distribution, public exhibition or circulation, makes, produces or has in his possession any obscene book, pamphlet, paper, drawing, painting, representation, or figure or any other obscene object whatsoever, or (b) imports, exports or coneys any obscene object for any of the purposes aforesaid, or knowing or having reason to believe that such object will be sold, let to hire, distributed or publicly exhibited or in any other manner put into circulation, or (c)Takes part in or receives profits from any business in the course of which he knows or has reason to believe that such obscene objects are, for any of the purposes aforesaid, made, produced, purchased, kept, imported, exported, conveyed, publicly exhibited or in any other manner put in to circulation, or ( d) advertises or makes known by any means whatso ever that any person in engaged or is ready to engage in any act which is an offence under this section, or that any such obscene object can be procured from or through any person, or (e)offers or attempts to do any act which is an offence under this section, shall be punished on first conviction with imprisonment of either description for a term which may extend to two years, and with fine which may extend to two thousand rupees, and, in the event of a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and also with fine which may extend to five thousand rupees.
Section 292 of IPC, was enacted by the Obscene Publications Act to give effect to Article I of the International Conventions for the Suppression of the Circulation of and Traffic in Obscene Publications to which India is a signatory . By Act 36 of 1969, Section 292 was amended to give more precise meaning to the word ‘obscene’ as used in the section in addition to creating an exception for publication of matter which is proved to be justified as being for the public good, being in the interest of science, literature ,art or learning or other subjects of general concern.Prior to its amendment ,section 292 contained no definition of obscenity. The amendment also literally does not provide for a definition od ‘obscenity’ in as much as it introduces a deeming provision. In order to make the law relating to the publication of obscene matters or objects deterrent, the section provides for enhanced punishment.
According to the Constitution of India under Article 19 defines; Protection of certain rights regarding freedom of speech etc., Article 19 (1) (a) says that all citizens shall have the right to freedom of speech and expression. But this right is subject to limitations imposed under Article 19(2) which empowers the state to put “REASONABLE RESTRICTIONS” on the following grounds example; security of the state, friendly relations with the foreign states, public order, decency, and morality, contempt of the court, defamation, incitement to offence and integrity and sovereignty of India.
In K.A. ABBAS V. UNION OF INDIAthe Supreme Court has called the test laid down in MISHKIN’S CASE as selective audience obscenity test and observed as;
Our standards must be so framed that we are not reduced to a level where the protection of the least capable and the most depraved amongst us determines what the morally healthy cannot view or read….
The requirements of art and literature include within themselves a comprehensive view of a social life and not only in the its ideal form and the lines is to be drawn where the average moral man begins to feel embarrassed or disgusted at a naked portrayal of life without the redeeming touch of art or genius or social value. If the depraved begins to see in these things more than that an average person would ,in much the same way ,as it is wrongly said, a Frenchman sees a women’s legs in everything ,it cannot be helped. In our scheme of things ideas having redeeming social or artistic value must also have importance and protection for their growth.
In the case of SAMARESH BOSE V. AMAL MITRA Wherein the Supreme Court provided the following guidelines;
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 view point of the author the judge should try to understand what is that the author seeks to coney and what the author conveys has any literary and artistic value. 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 judge should thereafter apply his judicial mind dispassionately to decide whether the book in question can be said to be obscene within the meaning of the section by an objective assessment of the book as a whole and also of the passages complained of as obscene separately.
In the case of AJAY GOSWAMI V. UNION OF INDIA, the Supreme Court, while recognizing the right of adult entertainment, reviewed the position of law on obscenity and summarized the various tests laid down regarding the obscenity.
HICKLIN TEST AND COMMUNITY STANDARD TEST
One of the tests to be applied to find whether an article possesses the standard of obscenity is the HICKLIN TEST. As per this, the test of obscenity is whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of his sort may fall. The other test is COMMUNITY STANDARD TEST, Whereby the obscenity has to be judged from the point of view of an average person, by applying contemporary community standards.
In AVEEK SARKAR V. STATE OF WEST BENGAL, the Supreme Court was of the view that Hicklin Test is not the correct test to be applied to determine “what is obscenity”.
When the name of Mahatma Gandhi is alluded or used as a symbol, speaking or using obscene words, the concept of the “degree” comes in. To elaborate, the contemporary community standard test becomes applicable with more vigor, in a greater degree and in an accentuated manner.
The Supreme Court of India wrote the Court’s judgement on this matter is the appellant arguments were based on separating the contents of the poem from the offence of obscenity. The Supreme Court asserted that the contemporary community standard test becomes more dynamic in its applicability if it entails a historic exalted personality such as Mahatma Gandhi. The Court applied the contemporary community standard test conditionally and concluded that the poem falls within the ambit of offence of obscenity. However, for two decades had passed since the offence and because the publisher had apologized unconditionally upon hearing of the reactions of some members of the audience, the appellant was discharged. Since the author was not a part of this case, the Supreme Court said that this ruling would not apply to him.
The Indian Penal Code – RATANLAL & DHIRAJLAL
The Indian Penal Code – Bare Act
Constitutional Law of India – DR. J. N. PANDEY
Constitutional Law of India – Bare Act
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