N. RADHAKRISHNAN @ RADHAKRISHNAN VARENICKAL versus UNION OF INDIA AND OTHERS

N. RADHAKRISHNAN @ RADHAKRISHNAN VARENICKAL

UNION OF INDIA AND OTHERS

(Writ Petition (Civil) No. 904 of 2018)

SEPTEMBER 05, 2018

[DIPAK MISRA, CJI, A. M. KHANWILKAR ANDDR. D. Y. CHANDRACHUD, JJ.]

Constitution of India – Art.19(2) – Freedom of speech andexpression – Imposition of reasonable restriction – Petitionerseeking issuance of writ to ban the novel named ‘Meesha’ –Allegation that the said literary work insulting and derogatory tothe temple going women and has the potentiality to disturb the publicorder, decency – Held: If books are banned on such allegations,there can be no creativity – Such interference by constitutional courtswould lead to end of art – Freedom enjoyed by an author is notabsolute, but before imposition of any restriction, the duty of theCourt is to see whether there is really something that comes withinthe ambit and sweep of Art.19(2) – Creativity and the author’sperception of the universe are to be borne in mind – It cannot beasked to succumb to specifics, else would tantamount to imposition

– Writer should have free play with words – Passion of imaginationcannot be directed – Final publication must not run counter to lawbut the application of the rigours of law has to also remain alive tothe various aspects – On facts, character of ‘Meesha’ as has beenprojected shows the myriad experiences with different situations –Appreciated from either point of view, it cannot be denied that it isa manifestation of creativity – In view thereof, Writ petition dismissed.

Dismissing the Writ Petition, the Court

HELD: 1.1 Literature symbolizes freedom to expressoneself in multitudinous ways. Literature can act as medium toconnect to the readers only when creativity is not choked orsmothered. The free flow of the stream of creativity knows nobounds and imagination brooks no limits. writer or an artist orany person in the creative sphere has to think in an unfetteredway free from the shackles that may hinder his musings andruminations. The writers possess the freedom to express their

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Aviews and imagination and readers too enjoy the freedom toperceive and imagine from their own viewpoint. Sans imagination,the thinking process is conditioned. [Paras 25, 26][14-A-C]1.2 Creative voices cannot be stifled or silenced andintellectual freedom cannot be annihilated. It is perilous toBobstruct free speech, expression, creativity and imagination, forit leads to state of intellectual repression of literary freedomthereby blocking free thought and the fertile faculties of the humanmind and eventually paving the path of literary pusillanimity. Ideashave wings. If the wings of free flow of ideas and imagination areclipped, no work of art can be created. The culture of banningCbooks directly impacts the free flow of ideas and is an affront tothe freedom of speech, thought and expression. Any direct orveiled censorship or ban of book, unless defamatory or derogatoryto any community for abject obscenity, would create unrest anddisquiet among the intelligentsia by going beyond the bounds ofDintellectual tolerance and further creating danger to intellectualfreedom thereby gradually resulting in “intellectual cowardice”which is said to be the greatest enemy of writer, for it destroysthe free spirit of the writer. People live not in totalitarian regimebut in democratic nation which permits free exchange of ideasand liberty of thought and expression. It is only by defending theEsacrosanct principles of free speech and expression or, to borrowthe words “the freedom to think as you will and to speak as youthink” and by safeguarding the unfettered creative spirit andimagination of authors, writers, artists and persons in the creativefield that can be preserved as the basic tenets of our constitutionalFideals and mature as democratic society where the freedoms toread and write are valued and cherished. [Para 27][14-D-H; 15-A]1.3 The aforesaid also calls from the readers and admirersof literature and art to exhibit certain degree of adherence tothe unwritten codes of maturity, humanity and tolerance so thatGthe freedom of expression reigns supreme and is not inhibited inany manner. The flag of democratic values and ideals of freedomand liberty has to be kept flying high at all costs and the Judiciarymust remain committed to this spirit at all times unless they reallyrun counter to what is prohibited in law. And, needless toemphasise that prohibition should not be allowed entry atH

someone’s fancy or view or perception. [Para 28][15-B-C]

1.4 It would usher in perilous situation, if the constitutionalcourts, for the asking or on the basis of some allegation pertainingto scandalous effect, obstruct free speech, expression, creativityand imagination. It would lead to state of intellectual repressionof literary freedom. When it is said so, this Court is absolutelyalive to the fact that the said right is not absolute but anyrestriction imposed thereon has to be extremely narrow andwithin the reasonable parameters as delineated by Art. 19(2). Itis free thinking and intellectual cowardice. Creative writing iscontrary to intellectual cowardice and intellectual pusillanimity.[Para 33][19-G-H; 20-A]

1.5 It is the duty of the Court to see whether such dialoguewas contrived to give rise to any kind of sensuous situation orprojection of class to humiliate them. creative work has to beread with matured spirit, catholicity of approach, objectivetolerance and sense of acceptability founded on reality that isdifferently projected but not with the obsessed idea of perversitythat immediately connects one with the passion of didacticism or,for that matter, perception of puritanical attitude. reader shouldhave the sensibility to understand the situation and appreciatethe character and not draw the conclusion that everything that iswritten is in bad taste and deliberately so done to pollute theyoung minds. On the contrary, he/she should elevate himself/herself as co-walker with the author as if there is social link andintellectual connect. The feeling of perverse judging should beabandoned. creative writing is expectant of empathetic reading.It is not averse to criticism but certainly does not tolerateunwarranted protest. [Para 34][20-B-E]

1.6 One has to understand and appreciate thecharacteristics of the character and the plots and sub-plots thatare woven in the story. The character of Meesha as has beenprojected shows the myriad experiences with different situations.The situations can be perceived as certain sub-plots whichevolved around the fundamental characteristics of the protagonist.The theory of consistency of character as adopted by certainwriters seems to have been maintained in the narrative. Thesituations and the treatment of situations may be different but

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Athe basic response of the protagonist remains unchanged. Allthese, can be from one reader’s point of view. To another reader,it may seem that the sub-plots have been enthusiasticallycontrived to bring in tempting situations to draw the protagonistin and to exposit chain reactions. Appreciated from either pointof view, it cannot be denied that it is manifestation of creativity.BThe perception of character which is in consonance with thestory invites empathetic readers to view him/her from differentperspective. reader with mature sensibility would connect withthe plight of the protagonist or may distance himself/herself byexpressing the view that the projection is derogatory and hurtfulCto section of people. He/she treats the novel as scandalous andoffensive. The Court is not to be swayed by any kind of perception.One may have grave dislike towards particular manner ofexpression but that would not warrant for issue of mandamusfrom the Court to ban the book or the publication. The languageused in the dialogue cannot remotely be thought of as obscene.DThe concept of defamation does not arise. Nurturing the ideathat it is derogatory and hurtful to the temple going women wouldtantamount to pyramiding superstructure without theinfrastructure. [Para 35] [20-F-H; 21-A-C]

1.7 If one understands the progression of character throughEevents and situations, keen reader will find that beneath thecomplex scenario, the urge is to defeat and to conquer and not toaccept denial. Both the facets are in the realm of obsession andthe author allows the protagonist to rule his planet. Hisimagination encircles his world. reader has the liberty to admireFhim or to sympathise. Either way, the dialogue to which theobjection is raised is not an intrusion to create sensation. It is afacet of projection of the characters. pervert reader may visualiseabsence of decency or morality or the presence of obscenity butthey are really invisible. [Para 36][21-D-E]

G1.8 If books are banned on such allegations, there can beno creativity. Such interference by constitutional courts will causethe death of art. The freedom enjoyed by an author is not absolute,but before imposition of any restriction, the duty of the Court isto see whether there is really something that comes within theambit and sweep of Article 19(2). [Para 37][21-F-G]H

1.9 It is to be borne in mind that book should not be readin fragmented manner. It has to be read as whole. The languageused, the ideas developed, the style adopted, the manner in whichthe characters are portrayed, the type of imagery taken aid of fordepiction, the thematic subsidiary concepts projected and thenature of delineation of situations have to be understood from anobjective point of view. There may be subjective perception of abook as regards its worth and evaluation but the said subjectivitycannot be allowed to enter into the legal arena for censorship orban of book. [Para 38][22-C]

1.10 The creativity and the author’s perception of theuniverse are to be borne in mind. What is true to poetry isapplicable to novels or any creative writing. It has to be keptuppermost in mind that the imagination of writer has to enjoyfreedom. It cannot be asked to succumb to specifics. That willtantamount to imposition. writer should have free play withwords, like painter has it with colours. The passion of imaginationcannot be directed. True it is, the final publication must not runcounter to law but the application of the rigours of law has to alsoremain alive to the various aspects. The craftsmanship of writerdeserves respect by acceptation of the concept of objectiveperceptibility. [Para 39][22-D-F]

Devidas Ramachandra Tuljapurkar v. State ofMaharashtra and others (2015) 6 SCC 1 : [2015] 7SCR 853; Raj Kapoor and others v. State and others(1980) 1 SCC 43 : [1980] 1 SCR 1081; Samaresh Boseand another v. Amal Mitra and another (1985) 4 SCC289 : [1985] 3 Suppl. SCR 17; Bobby Art Internationaland others v. Om Pal Singh Hoon and others (1996) 4SCC 1 : [1996] 2 Suppl. SCR 136; Viacom 18 MediaPrivate Limited and others v. Union of India and others(2018) 1 SCC 761: Nachiketa Walhekar v. CentralBoard of Film Certification (2018) 1 SCC 778; AdarshCooperative Housing Society Ltd. v. Union of India andothers 2018 (4) SCALE 390; S. Rangarajan v. P.Jagjivan Ram and Others (1989) 2 SCC 574 : [1989]2 SCR 204 – referred to.

Case Law Reference

CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.904 of 2018.

Under Article 32 of the Constitution of India.

Ms. Pinky Anand, ASG, Jaideep Gupta, Sr. Adv. GopalSankaranarayanan, Ms. Usha Nandini. V, Ms. Bina Madhavan, TomJoseph, Ms. Saudamini Sharma, Ms. Kirti Dua, G. Prakash, Jishnu M.L.,Mrs. Priyanka Prakash, Mrs. Beena Prakash, M. T. George, Anil Prathap,Advs. for the appearing parties.

EThe Judgment of the Court was delivered by

DIPAK MISRA, CJI 1. writer or an author, while choosing amode of expression, be it novel or novella, an epic or an anthology ofpoems, play or playlet, short story or long one, an essay or astatement of description or, for that matter, some other form, has theFright to exercise his liberty to the fullest unless it falls foul of any prescribedlaw that is constitutionally valid. It is because freedom of expression isextremely dear to civilized society. It holds it close to its heart andwould abhorrently look at any step taken to create even the slightestconcavity in the said freedom. It may be noted here that we are in thiswrit petition, preferred under Article 32 of the Constitution, dealing withGcreativity and its impact and further considering the prayer for banning abook on the foundation that part of it is indecent and offends thesentiments of women of particular faith. Having said this, we wouldlike to refer to two authorities highlighting the importance of creativityand necessity of freedom of expression and how the principle of pragmatic

N. RADHAKRISHNAN @ RADHAKRISHNAN VARENICKALv. UNION OF INDIA [DIPAK MISRA, CJI]

realism assures the said creative independence as civilization, indubitablya progressive one, perceives and eagerly desires for its accentuatedprotection, nourishment and constant fostering. It is so becausecurtailment of an author’s right to freedom of expression is matter ofserious concern.

2. In Devidas Ramachandra Tuljapurkar v. State ofMaharashtra and others[1], the Court, dealing with the meaning of thewords “poetic licence”, observed:-

“… it can never remotely mean licence as used or understoodin the language of law. There is no authority who gives licenceto poet. These are words from the realm of literature. The poetassumes his own freedom which is allowed to him by thefundamental concept of poetry. He is free to depart from reality;fly away from grammar; walk in glory by not following systematicmetres; coin words at his own will; use archaic words to conveythoughts or attribute meanings; hide ideas beyond myths whichcan be absolutely unrealistic; totally pave path where neitherrhyme nor rhythm prevail; can put serious ideas in satires, ifferisms,notorious repartees; take aid of analogies, metaphors, similes inhis own style, compare like “life with sandwiches that is consumedeveryday” or “life is like peeling of an onion”, or “society is like astew”; define ideas that can balloon into the sky never to comedown; cause violence to logic at his own fancy; escape to thesphere of figurative truism; get engrossed in the “universal eyefor resemblance”, and one can do nothing except writing criticalappreciation in his own manner and according to his understanding.When poet says “I saw eternity yesterday night”, no readerwould understand the term “eternity” in its prosaic sense. TheHamletian question has many layer; each is free to confer ameaning; be it traditional or modern or individualistic. No one canstop dramatist or poet or writer to write freely expressinghis thoughts, and similarly none can stop the critics to give theircomments whatever its worth. One may concentrate on Classicalfacets and one may think at metaphysical level or concentrateon Romanticism as is understood in the poems of Keats, Byron orShelley or one may dwell on Nature and write poems like WilliamWordsworth whose poems, say some, are didactic. One may also

1 (2015) 6 SCC 1

venture to compose like Alexander Pope or Dryden or get intoindividual 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 others[2], Krishna Iyer,J., speaking for himself, while quashing the criminal proceedings initiatedBagainst the petitioner therein for the production of the film, namely,‘Satyam, Sivam, Sundaram’, observed:-

“12. … Jurisprudentially speaking, law, in the sense of commandto do or not to do, must be reflection of the community’s culturalnorms, not the State’s regimentation of aesthetic expression orartistic creation. Here we will realise the superior jurisprudentialvalue of dharma, which is beautiful blend of the sustaining senseof morality, right conduct, society’s enlightened consensus andthe binding force of norms so woven as against positive law in theAustinian sense, with an awesome halo and barren autonomyaround the legislated text is fruitful area for creative exploration.But morals made to measure by statute and court is risky operationwith portentous impact on fundamental freedoms, and in ourconstitutional order the root principle is liberty of expression andits reasonable control with the limits of ‘public order, decency ormorality’. Here, social dynamics guides legal dynamics in theprovince of ‘policing’ art forms.”

[Emphasis added]

4. The learned Judge further went on to say:-

“15.… The relation between Reality and Relativity musthaunt the Court’s evaluation of obscenity, expressed in society’spervasive humanity, not law’s penal prescriptions. Social scientistsand spiritual scientists will broadly agree that man lives not aloneby mystic squints, ascetic chants and austere abnegation but byluscious love of Beauty, sensuous joy of companionship andmoderate non-denial of normal demands of the flesh. Extremesand excesses boomerang although some crazy artists and filmdirectors do practise Oscar Wilde’s observation: ‘Moderation is afatal thing. Nothing succeeds like excess’.

16. All these add up to one conclusion that finality and infallibilityare beyond courts which must interpret and administer the lawH 2 (1980) 1 SCC 43

N. RADHAKRISHNAN @ RADHAKRISHNAN VARENICKALv. UNION OF INDIA [DIPAK MISRA, CJI]

with pragmatic realism, rather than romantic idealism or recluseextremism.”

[Emphasis added]

5. We have referred to the aforesaid decisions in the beginning aswe intend to adjudicate the lis on the touchstone of “pragmatic realism”.When we say “pragmatic realism”, it has to be understood in the contextof creativity, for the present Writ Petition preferred under Article 32 ofthe Constitution seeks for issue of an appropriate writ to ban the novel,namely, “Meesha” meaning Moustache which appeared in popularMalayalam weekly, “Mathrubhumi”, published from Kozikhode, Keralaand circulated throughout the country and abroad.

6. It is averred by the petitioner that the said literary work isinsulting and derogatory to temple going women and it hurts the sentimentsof particular faith/community. It is further asserted that the portion ofthe book ‘Meesha’ which was published in ‘Mathrubhumi’ shows templegoing women in bad light and it has disturbing effect on the community.

7. It is contended that the editor of ‘Mathrubhumi’ has failed inhis duty by not editing or scrutinizing the portion of the book ‘Meesha’which was published in the weekly. It is put forth by the petitioner thathe has approached this Court singularly for the protection of the legitimateinterest of the women community. The petitioner submits that suchwritings which have appeared in ‘Mathrubhumi’ are not manifestationof the freedom of expression but are collusive efforts aimed at dividingthe society, for such imputations are discriminatory against women andthreaten the very fabric of the society which embodies within itself thevirtues of pluralistic community, religion and gender balance. Thepetitioner avers that defamatory and degrading publications which caterto perverted and communal minds need to be checked and nipped in thebud as they have tendency to propel the general public to view thewomen community as mere sexual and material objects which, in turn,denies the women community their fundamental rights and alsojeopardizes their safety and well-being.

8. It is also alleged by the petitioner that the impugned incriminatingmaterial appearing in ‘Mathrubhumi’ defiles the places of worship andcauses the public to look down upon them with contempt and ridicule,whereas worshipping of deities by visiting the temples with purity ofbody and mind is an integral part of the Hindu religion.

A9. It is urged that the said publication in ‘Mathrubhumi’ has theproclivity and potentiality to disturb the public order, decency or moralityand it defames the women community, all of which are grounds for theState to impose reasonable restrictions under Article 19(2) on thefundamental right of freedom of speech and expression. To buttress hisstand, the petitioner has submitted that after the publication of theBincriminating material, women visiting temples are subjected to ridiculeand embarrassment through various social media platforms and instancessuch as these are bound to have an adverse effect on the liberty, freedomand empowerment of women.

10. The petitioner has also averred that if such work of literatureCis not checked, it may trigger ‘Charlie Hebdo’ kind of backlash in ourcountry and, therefore, it is necessary for this Court to lay down guidelinesto regulate and prohibit, those who control/manage/publish both on printand electronic media platforms, from publishing such insensitive,incriminating and defamatory articles which could disrupt the peacefulDco-existence of various communities and religions in the country.

11. In view of the aforesaid, the petitioner has prayed to this Courtto issue writ of Mandamus or any other writ/directions to the RespondentNo. 1, the Union of India, the Respondent No. 2, the State of Kerala andthe Respondent No. 4, the Chief Editor of ‘Mathrubhumi’ weekly, toEsearch and seize all copies of ‘Mathrubhumi’ weekly volume-2 dated11.07.2018 from all the States and/or issue writ of prohibition or anyother directions to the Respondents to prevent any further publication/circulation of the novel titled ‘Meesha’ in the form of book or in anyother form including the internet. The petitioner has also prayed to issueappropriate directions in the nature of mandamus or otherwise to theFMinistry of Information and Broadcasting, New Delhi, to frame suchguidelines as to prevent the recurrence of such instances which havethe tendency to cause threat to the integrity of the society and the safetyof women.

12. It may be noted here that when the Writ Petition was listed onG02.08.2018, this Court, before issuing notice, deemed it appropriate topass an order on the same date which reads as follows:-

“Mr. M.T. George, learned counsel shall file within five days hencethe central theme of the book and the three chapters, which havebeen published in 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 translatedcopy of the central theme of the book ‘Meesha’ along with an Englishtranslation of the three chapters of the novel.

14. perusal of the central theme of ‘Meesha’ reveals that thebook is narration which revolves back to the 19[th] century and extendsto the present times with Vavachan alias Meesha (Moustache), Paviyam,Chella and Sita as its central characters. Vavachan is one of the sixchildren of Paviyam and Chella and their family is engaged in agriculturefor living. The novel begins with young Vavachan travelling in boatwith his father for gathering fodder grass. On the way, Paviyam tries tosteal bunch of raw bananas from Pulaya (farm) but his attempt wasfoiled by young woman of the household, named, Sita. Vavachan at hisyoung age is stunned and baffled when he sees the half-naked body ofSita. After this rendezvous, storm hits and Paviyam, the father, alongwith his son Vavachan lose their way. After the storm subsides and timepasses, Vavachan comes across two men who tell him that the worldwas about to witness big war and they were going to Malaya (town) toescape famine. Vavachan gets hooked with the idea of Malaya thoughhe had no idea as regards its location.

15. As the narration proceeds, Vavachan along with his familylived in constant hunger. One day, theatre group comes to their villagefrom Malabar. The proprietor of the theatre group needs an actor with abig and ferocious moustache to play the role of policeman. But therewas no one in the village who was sporting big moustache as it wasconsidered as act of defiance especially among the lower castes. Theproprietor of the theatre group comes across Vavachan who had nevershaven in his life and sported thick hair and beard. The proprietor gaveVavachan tonsure treatment, that is to say, he shaved his head butallowed 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 sceneand Vavachan’s moustache, which he refused to shave off even afterthe show, became notorious legend. The upper caste people whoresented Vavachan’s Moustache ascribed to him every kind of crime,even though he was innocent and just wanted to go to Malaya and marry

Athe girl, Sita, who had bedazzled him when he was young and whom hehad seen half-naked.

17. When the period of famine and hunger struck, Vavachan, witharmed men after him, fled from his village and hid in the fields ofKuttanadan where labyrinthine canals and marshes saw human presenceBonly during the farming season. Gradually, with the passage of time,Vavachan got immersed in the Kuttanadan environment where heencountered the myths, legends, folklore and superstitions ingrained amongthe people.

18. Paviyam and Chella, the parents of Vavachan, die withoutCseeing him. But after Chella’s death, he returns to his native village andruns away with book from Kalan and reads it fully. The stories of(Meesha) Vavachan alias Moustache get etched in the region’s sub-consciousness. The moustache becomes legend himself with supernatural powers. The landlords and the government become afraid thatMeesha’s activities would hurt the farming activities in Kuttanadan andDthey deploy legendary sub-inspector named Thanu Linga Nadar todeal with Meesha. However, at that time, Kuttanadan witnessed delugeand Nadar’s mysterious death increased Meesha’s terror. Subsequently,Meesha locks horns with local strongman named Karumathara Ittichanand rumors went around that Meesha was killed in fight with Ittichan.

19. But Meesha had reached Kumarakom, an important place innorthern Kuttanadan, where an Englishman called Brenen Sayip (Saheb)had installed machine to pump out water from the fields of Kuttanadan.Refusing to divulge the secret of the machine, Brenen Saheb chargeshefty amounts from the people. Avarachan, man interested in science,Fmanages to steal the secret with the help of Meesha. Meesha works asa help of Baker Sayip who has vast fields and also conducts missionarywork in the region. There Meesha befriends fisherman called Ouseph,who was born to Malayali woman from Baker Sayip’s father.

20. Baker Sayip is well-known crocodile hunter who was knownto have caused the extinction of crocodiles in the Vembanad Lake.GHowever, the last crocodile is after Baker for revenge. In the end, it isMeesha who conquers the crocodile and due to this feat of Meesha,Baker Sayip becomes his bête noire. When Meesha realizes that Bakerhas turned against him, he escapes from there along with Ouseph.

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21. Thereafter, Meesha comes across prostitute, Kuttathi, whohad heard about the adventures of Meesha. One Kunjachan, the son ofthe lake area’s owner troubles Kuttathi and is big nuisance for her.Meesha slams Kunjachan as well. In return, Kuttathi, with the assistanceof one Narayanan, who also sports moustache, helps Meesha to findhis childhood crush Sita. Meesha saves Sita from robber called KattaPulavan. Thereupon, Meesha asks Sita to accompany him, but Sita isunwilling and refuses to submit herself to Meesha.

22. Thus, Vavachan alias Meesha, who is able to defeat everyonein life, is defeated by woman in the end.

23. Presently, we may refer to and quote the dialogue from thebook “Meesha” that has impelled the petitioner to move this Court in theinstant writ petition. The English translation of the dialogue appears atpage twenty-six of the translated copy of the three chapters submittedby 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 goto the temple?” friend who used to join the morning walk untilsix months ago once asked.

“To Pray”, I said.

“No”, he said. “Look carefully, why do they need to put their bestclothes in the most beautiful way to pray? They are unconsciouslyproclaiming that they are ready to enter into sex”, he said. Ilaughed.

“Otherwise,” he continued, “why do they not come to the templefour or five days month? They are letting people know that theyare not ready for it. Especially, informing those Thirumenis(Brahmin priests) in the temple. Were they not the masters inthese matters in the past?”

24. The primary issue that emerges for consideration is whetherthe aforesaid portion of the book ‘Meesha’ which the petitioner assertsto be derogatory to the women community is an aberration of suchmagnitude which requires the intervention of this Court on the groundthat it has the potentiality to disturb the public order, decency or moralityand whether it defames the women community, and, therefore, invitesimposition of reasonable restriction under Article 19(2) of the Constitution.

A25. For deciding this question, we must advert to the fundamentalidea behind art and literature and the liberalism associated with artisticexpression. Literature symbolizes freedom to express oneself inmultitudinous ways. One should never forget that only when creativity isnot choked, it helps the society to be able to accept the thoughts andideas of free mind.B

26. Literature can act as medium to connect to the readers onlywhen creativity is not choked or smothered. The free flow of the streamof creativity knows no bounds and imagination brooks no limits. writeror an artist or any person in the creative sphere has to think in anunfettered way free from the shackles that may hinder his musings andCruminations. The writers possess the freedom to express their viewsand imagination and readers too enjoy the freedom to perceive andimagine from their own viewpoint. Sans imagination, the thinking processis conditioned.

27. Creative voices cannot be stifled or silenced and intellectualDfreedom cannot be annihilated. It is perilous to obstruct free speech,expression, creativity and imagination, for it leads to state of intellectualrepression of literary freedom thereby blocking free thought and thefertile faculties of the human mind and eventually paving the path ofliterary pusillanimity. Ideas have wings. If the wings of free flow ofEideas and imagination are clipped, no work of art can be created. Theculture of banning books directly impacts the free flow of ideas and is anaffront to the freedom of speech, thought and expression. Any direct orveiled censorship or ban of book, unless defamatory or derogatory toany community for abject obscenity, would create unrest and disquietamong the intelligentsia by going beyond the bounds of intellectualFtolerance and further creating danger to intellectual freedom therebygradually resulting in “intellectual cowardice” which is said to be thegreatest enemy of writer, for it destroys the free spirit of the writer. Itshall invite chilling winter of discontent. We must remember that welive not in totalitarian regime but in democratic nation which permitsGfree exchange of ideas and liberty of thought and expression. It is onlyby defending the sacrosanct principles of free speech and expression or,to borrow the words of Justice Louis Brandeis, “the freedom to think asyou will and to speak as you think” and by safeguarding the unfetteredcreative spirit and imagination of authors, writers, artists and persons inthe creative field that we can preserve the basic tenets of our constitutionalH

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ideals and mature as democratic society where the freedoms to readand write are valued and cherished.

28. The aforesaid also calls from the readers and admirers ofliterature and art to exhibit certain degree of adherence to the unwrittencodes of maturity, humanity and tolerance so that the freedom ofexpression reigns supreme and is not inhibited in any manner. The flagof democratic values and ideals of freedom and liberty has to be keptflying high at all costs and the Judiciary must remain committed to thisspirit at all times unless they really and, we mean, really in the real senseof the term, run counter to what is prohibited in law. And, needless toemphasise that prohibition should not be allowed entry at someone’sfancy or view or perception.

29. In Samaresh Bose and another v. Amal Mitra and another[3],the question that arose before this Court was whether the accused personshad committed an offence under Section 292 IPC. In the said case, anauthor had written novel under the caption ‘Prajapati’ which waspublished in ‘Sarodiya Desh’. The contention before the trial courtwas that the novel was obscene and both the accused persons, namely,the author and the publisher had sold, distributed, printed and exhibitedthe same. The accused persons who faced trial stood convicted. Theirconviction was affirmed by the High Court. This Court, while dealingwith the issue for the purpose of deciding the question of obscenity inany book, story or article, opined:-

“29. … The decision of the court must necessarily be on anobjective assessment of the book or story or article as wholeand with particular reference to the passages complained of inthe book, story or article. The court must take an overall view ofthe matter complained of as obscene in the setting of the wholework, but the matter charged as obscene must also be consideredby itself and separately to find out whether it is so gross and itsobscenity so pronounced that it is likely to deprave and corruptthose whose minds are open to influence of this sort and intowhose hands the book is likely to fall. Though the court mustconsider the question objectively with an open mind, yet in thematter of objective assessment the subjective attitude of the Judgehearing the matter is likely to influence, even though unconsciously,

ABC

DEFG

his mind and his decision on the question. Judge with puritanand prudish outlook may on the basis of an objective assessmentof any book or story or article, consider the same to be obscene.It is possible that another Judge with different kind of outlookmay not consider the same book to be obscene on his objectiveassessment of the very same book. The concept of obscenity ismoulded to very great extent by the social outlook of the peoplewho are generally expected to read the book. It is beyond disputethat the concept of obscenity usually differs from country to countrydepending on the standards of morality of contemporary societyin different countries. In our opinion, in judging the question ofobscenity, the Judge in the first place should try to place himself inthe position of the author and from the viewpoint of the author theJudge should try to understand what is it that the author seeks toconvey and whether what the author conveys has any literaryand artistic value. The Judge should thereafter place himself inthe position of reader of every age group in whose hands thebook is likely to fall and should try to appreciate what kind ofpossible influence the book is likely to have in the minds of thereaders. …”

The Court, further analyzing the story of the novel, expressedthus:-

“35. … If we place ourselves in the position of readers, who arelikely to read this book—and we must not forget that in this classof readers there will probably be readers of both sexes and of allages between teenagers and the aged—we feel that the readersas class will read the book with sense of shock and disgust,and we do not think that any reader on reading this book wouldbecome depraved, debased and encouraged to lasciviousness. Itis quite possible that they come across such characters and suchsituations in life and have faced them or may have to face them inlife. On very anxious consideration and after carefully applyingour judicial mind in making an objective assessment of the novelwe do not think that it can be said with any assurance that thenovel is obscene merely because slang and unconventional wordshave been used in the book in which there have been emphasis onsex and description of female bodies and there are the narrationsof feelings, thoughts and actions in vulgar language. Some portions

N. RADHAKRISHNAN @ RADHAKRISHNAN VARENICKALv. UNION OF INDIA [DIPAK MISRA, CJI]

of the book may appear to be vulgar and readers of cultured andrefined taste may feel shocked and disgusted. Equally in someportions, the words used and description given may not appear tobe in proper taste. In some places there may have been anexhibition of bad taste leaving it to the readers of experience andmaturity to draw the necessary inference but certainly not sufficientto bring home to the adolescents any suggestion which is depravingor lascivious.”

30. In this regard, we may refer with profit to the pronouncementin Bobby Art International and others v. Om Pal Singh Hoon andothers[4], popularly known as “Bandit Queen case”. The Court analysedthe storyline, the humiliation faced by the female child, the torment facedby her and, eventually, the innocent woman becoming dreaded dacoitand observed that to appreciate the story, the character of the personportrayed 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 ahundred men. The exposure of her breasts and genitalia to thosemen is intended by those who strip her to demean her. The effectof so doing upon her could hardly have been better conveyed thanby explicitly showing the scene. The object of doing so was not totitillate the cinemagoer’s lust but to arouse in him sympathy forthe victim and disgust for the perpetrators. The revulsion that theTribunal referred to was not at Phoolan Devi’s nudity but at thesadism and heartlessness of those who had stripped her naked torob her of every shred of dignity. Nakedness does not alwaysarouse the baser instinct. The reference by the Tribunal to thefilm ‘Schindler’s List’ was apt. There is scene in it of rows ofnaked men and women, shown frontally, being led into the gaschambers of Nazi concentration camp. Not only are they aboutto die but they have been stripped in their last moments of thebasic dignity of human beings. Tears are likely reaction; pity,horror and fellow-feeling of shame are certain, except in thepervert who might be aroused. We do not censor to protect thepervert or to assuage the susceptibilities of the over-sensitive.‘Bandit Queen’ tells powerful human story and to that story thescene of Phoolan Devi’s enforced naked parade is central. It helps

4 (1996) 4 SCC 1

Ato explain why Phoolan Devi became what she did: her rage andvendetta against the society that had heaped indignities upon her.”

The aforesaid, as is evident, appreciates the agonies and torturesuffered by the protagonist and the nature of depiction of the scenes oncelluloid and lays down the principle not to be guided by the sensitivity ofBa pervert viewer. The principle of assuagement is not to be taken recourseto so as to make the idea of freedom of expression susceptible to suit theviews and perceptions of pervert thinker or viewer. Similarly, whilereading book, the setting, the constituents that constitute the elementsof the character and the purpose are to be kept in view.

C31. In this context, reference to the view expressed in Viacom 18Media Private Limited and others v. Union of India and others[5]would be apposite. In the said case, the challenge was to the ban imposedby four States for screening the movie ‘Padmaavat’. The Court quashedthe notifications of banning on the bedrock that the expression of an ideathrough the medium of cinema which is popular medium has its ownDstatus and the artistic expression should not be tinkered with. The Courtwent on to observe that if intellectual prowess and natural or cultivatedpower of creation is inhibited without the permissible facet of law, theconcept of creativity would pave the path of extinction; and whencreativity dies, values of civilization corrode. The Court, in the said context,Ereproduced passage from an order in Nachiketa Walhekar v. CentralBoard of Film Certification[6]which reads as under:-

“Be it noted, film or drama or novel or book is creation ofart. An artist has his own freedom to express himself in mannerwhich is not prohibited in law and such prohibitions are not readFby implication to crucify the rights of expressive mind. The humanhistory records that there are many authors who express theirthoughts according to the choice of their words, phrases,expressions and also create characters who may look absolutelydifferent than an ordinary man would conceive of. thoughtprovoking film should never mean that it has to be didactic or inGany way puritanical. It can be expressive and provoking theconscious or the sub-conscious thoughts of the viewer. If therehas to be any limitation, that has to be as per the prescription inlaw.”

5 (2018) 1 SCC 761 6 (2018) 1 SCC 778H

N. RADHAKRISHNAN @ RADHAKRISHNAN VARENICKALv. UNION OF INDIA [DIPAK MISRA, CJI]

32. In Adarsh Cooperative Housing Society Ltd. v. Union ofIndia and others[7], the issue before this Court was whether screeningof feature film, which incorporated perception with regard to particularsituation, would affect the trial which involved the petitioner, the societyor the exercise of “error jurisdiction” of the appellate court. This Courtnegatived the said contention and ruled that courts of law decide the lison the basis of the materials brought on record and not on the basis ofimagination as projected in the language of the theatre or script oncelluloid. The Court opined thus:-

“…there can be multitudinous modes, manners and methods toexpress concept. One may choose the mode of silence to bevisually eloquent and another may use the method of semimelodramatic approach that will have impact. It is the individualthought and approach which cannot be curbed.”

And again:

“…the doctrine of sub-judice may not be elevated to such anextent that some kind of reference or allusion to member of asociety would warrant the negation of the right to freedom ofspeech and expression which is an extremely cherished rightenshrined under the Constitution. The moment the right to freedomof speech and expression is atrophied, not only the right but alsothe person having the right gets into semi coma. We may hastento add that the said right is not absolute but any restriction imposedthereon has to be extremely narrow and within reasonableparameters. In the case at hand, we are obligated to think that thegrant of certificate by the CBFC, after consulting with theauthorities of the Army, should dispel any apprehension of themembers or the society.”

33. It would usher in perilous situation, if the constitutional courts,for the asking or on the basis of some allegation pertaining to scandalouseffect, obstruct free speech, expression, creativity and imagination. Itwould lead to state of intellectual repression of literary freedom. Whenwe say so, we are absolutely alive to the fact that the said right is notabsolute but any restriction imposed thereon has to be extremely narrowand within the reasonable parameters as delineated by Article 19(2) ofthe Constitution. Here, we may remind ourselves of the expression used

7 2018 (4 ) SCALE 390

DEF

Aby George Orwell. It is free thinking and intellectual cowardice. Creativewriting is contrary to intellectual cowardice and intellectual pusillanimity.

34. Keeping in view the aforesaid principles, the objections raisedas regards the contents of the novel and the language used which isreflected in the dialogue as reproduced hereinbefore are to be decided.BThe grievance, as is reflectible, pertains to derogatory comments onwomen, especially when they go to temple. As stated earlier, it is theduty of the Court to see whether such dialogue was contrived to giverise to any kind of sensuous situation or projection of class to humiliatethem. creative work has to be read with matured spirit, catholicity ofapproach, objective tolerance and sense of acceptability founded onCreality that is differently projected but not with the obsessed idea ofperversity that immediately connects one with the passion of didacticismor, for that matter, perception of puritanical attitude. reader shouldhave the sensibility to understand the situation and appreciate the characterand not draw the conclusion that everything that is written is in bad tasteDand deliberately so done to pollute the young minds. On the contrary, he/she should elevate himself/herself as co-walker with the author as ifthere is social link and intellectual connect. The feeling of perversejudging should be abandoned. creative writing is expectant ofempathetic reading. It is not averse to criticism but certainly does nottolerate unwarranted protest. The author of “Wuthering Heights” expectsEthe readers to appreciate the morbidity that surrounds the character of“Heathcliff”. Similarly, the great poet of “Nala Damayanti” desired thereaders to enjoy the description of the beauty of the princess appreciatingthe narrative but not to engage in pervert thinking.35. One has to understand and appreciate the characteristics ofFthe character and the plots and sub-plots that are woven in the story.The character of Meesha as has been projected shows the myriadexperiences with different situations. The situations, as we find, can beperceived as certain sub-plots which evolved around the fundamentalcharacteristics of the protagonist. The theory of consistency of characterGas adopted by certain writers seems to have been maintained in thenarrative. The situations and the treatment of situations may be differentbut the basic response of the protagonist remains unchanged. All these,we say, can be from one reader’s point of view. To another reader, itmay seem that the sub-plots have been enthusiastically contrived to bringin tempting situations to draw the protagonist in and to exposit chainH

reactions. Appreciated from either point of view, it cannot be deniedthat it is manifestation of creativity. The perception of characterwhich is in consonance with the story invites empathetic readers to viewhim/her from different perspective. reader with mature sensibilitywould connect with the plight of the protagonist or may distance himself/herself by expressing the view that the projection is derogatory and hurtfulto section of people. He/she treats the novel as scandalous andoffensive. The Court is not to be swayed by any kind of perception.One may have grave dislike towards particular manner of expressionbut that would not warrant for issue of mandamus from the Court toban the book or the publication. The language used in the dialoguecannot remotely be thought of as obscene. The concept of defamationdoes not arise. Nurturing the idea that it is derogatory and hurtful to thetemple going women would tantamount to pyramiding superstructurewithout the infrastructure.

36. If one understands the progression of character through eventsand situations, keen reader will find that beneath the complex scenario,the urge is to defeat and to conquer and not to accept denial. Both thefacets are in the realm of obsession and the author allows the protagonistto rule his planet. His imagination encircles his world. reader has theliberty to admire him or to sympathise. Either way, the dialogue to whichthe objection is raised is not an intrusion to create sensation. It is facet

of projection of the characters. It is, in way, imaginative reality or asPablo Picasso would like to put it, “Everything you can imagine isreal”. pervert reader may visualise absence of decency or moralityor the presence of obscenity but they are really invisible.

37. If books are banned on such allegations, there can be nocreativity. Such interference by constitutional courts will cause the deathof art. True it is, the freedom enjoyed by an author is not absolute, butbefore imposition of any restriction, the duty of the Court is to see whetherthere is really something that comes within the ambit and sweep of Article19(2) of the Constitution. At that time, the Court should remember whathas been said in S. Rangarajan v. P. Jagjivan Ram and others[8]wherein,while interpreting Article 19(2), this Court borrowed from the Americantest of clear and present danger and observed:-

“45. … Our commitment of freedom of expression demands thatit cannot be suppressed unless the situations created by allowing 8 (1989) 2 SCC 574

Athe freedom are pressing and the community interest isendangered. The anticipated danger should not be remote,conjectural or far-fetched. It should have proximate and directnexus with the expression. The expression of thought should beintrinsically dangerous to the public interest. In other words, theexpression should be inseparably locked up with the actionBcontemplated like the equivalent of “spark in power keg”.”

38. To apply the said litmus test, it is to be borne in mind that abook should not be read in fragmented manner. It has to be read as awhole. The language used, the ideas developed, the style adopted, themanner in which the characters are portrayed, the type of imagery takenCaid of for depiction, the thematic subsidiary concepts projected and thenature of delineation of situations have to be understood from an objectivepoint of view. There may be subjective perception of book as regardsits worth and evaluation but the said subjectivity cannot be allowed toenter into the legal arena for censorship or ban of book.

39. Quite apart from the above, the creativity and the author’sperception of the universe are to be borne in mind. What is true topoetry is applicable to novels or any creative writing. It has to be keptuppermost in mind that the imagination of writer has to enjoy freedom.It cannot be asked to succumb to specifics. That will tantamount toEimposition. writer should have free play with words, like painter hasit with colours. The passion of imagination cannot be directed. True it is,the final publication must not run counter to law but the application ofthe rigours of law has to also remain alive to the various aspects thathave been accepted by the authorities of the Court. The craftsmanshipof writer deserves respect by acceptation of the concept of objectiveFperceptibility.

40. It ought to be remembered that eventually, what the greatwriter and thinker Voltaire had said ¯ “I may disapprove of what yousay, but I will defend to the death your right to say it” becomes thelaser beam for guidance when one talks about freedom of expression.

41. In view of the aforesaid analysis, the writ petition, being devoidof merit, stands dismissed. However, there shall be no order as to costs.

Nidhi Jain