No absolute freedom: Critique shouldn’t cross limits, says Supreme Court

New Delhi: The Supreme Court on Thursday refused to reject criminal charges against an author for penning an alleged vulgar and obscene poem on Mahatma Gandhi in 1994.

The bench said: “There can be no two opinions that one can express his views freely about a historically respected personality showing his disagreement, dissent, criticism, non-acceptance or critical evaluation. If the image of Mahatma Gandhi or the voice of Mahatma Gandhi is used to communicate the feelings of Gandhiji or his anguish or his agony about any situation, there can be no difficulty. The issue in the present case is whether in the name of artistic freedom or critical thinking or generating the idea of creativity, a poet or a writer can put into the said voice or image such language, which may be obscene.”

Marathi poet Vasant Dattatrey Gujjar’s poem was published in 1994 in the bulletin published by the appellant, Mr Tuljapurkar. The Maharashtra government in 1995 slapped obscenity and other charges against the poet and the publisher for creating enmity between different sections. The trial court and the Bombay high court discharged them for other offences except obscenity. The present appeal by the publisher is against this judgment. While the author did not prefer an appeal, the publisher prayed for quashing the charges.

The bench said: “When the name of Mahatma Gandhi is alluded or used as a symbol, speaking or using obscene words, the concept of ‘degree’ comes in. The ‘contemporary community standards test’ (viz. what a common reader will understand) becomes applicable with more vigour, in a greater degree and in an accentuated manner.”

What can otherwise pass of the contemporary community standards test for use of the same language, it would not be so, if the name of Mahatma Gandhi is used as a symbol or allusion or surrealistic voice to put words or to show him doing such acts which are obscene."

Though the bench rendered a finding against the Publisher, however, quashed the charges and discharged him from the case taking into consideration the apology tendered by him. The bench said " we leave it to the poet to put his defense at the trial explaining the manner he has used the words and in what context."

=================================
Right to dissent not to defame
=================================

• SC said that freedom of speech and expression does not allow a person to cross “contemporaneous community parameters” on decency.
• The court, however, quashed the criminal proceedings against the printers and publishers of the magazine in which the poem penned by Marathi poet Vasant Dattatraya Gurjar was published, saying they have already tendered an unconditional apology.
• Referring to the poem Gandhi Mala Bhetala Hota, written by Gurjar in 1984, Tuljapurkar’s lawyer had submitted that people, who know Marathi, say that the poem is “satirical”.
• The accused had approached the apex court against the Bombay High Court order dismissing his plea seeking quashing of his prosecution.