The controversy, as summarised by the Hon’ble judge, that spiralled in the course of hearing of this appeal centres around the question framed vide order dated 18.2.2015, for this Court thought it apposite to answer, whether the poem titled “Gandhi Mala Bhetala” (‘I met Gandhi’) in the magazine named the ‘Bulletin’ which was published, in July-August, 1994 issue, meant for private circulation amongst the members of All India Bank Association Union, could in the ultimate eventuate give rise to framing of charge under Section 292 IPC against the author, the publisher and the printer.
Whether in a write-up or a poem, keeping in view the concept and conception of poetic license and the liberty of perception and expression, use the name of a historically respected personality by way of allusion or symbol is permissible.
The main question which the learned counsel for appellants, Mr. Gopal Subramanium’s and the amicus curie Mr. Fali Nariman’s submissions boiled down to was whether the freedom of speech and expression as enshrined by Part 3 of the Indian Constitution include the freedom to offend.
The principle that was put forth by Mr. Subramanium was broadly accepted in the sense that a poet should have Freedom to Speech and expression too, but the Court refused to agree to the part that freedom of speech gives liberty to offend. They observed that as far as the use of the name of historically respected personality is concerned, learned senior counsel, while submitting so, is making an endeavour to put the freedom of speech on the pedestal of an absolute concept. Freedom of speech and expression has to be given a broad canvas, but it has to have inherent limitations which are permissible within the constitutional parameters. The Court reiterated the principle already opined by the Hon’ble Supreme Court in various cases which is that the freedom of speech is a right of great value and transcends and with the passage of time and growth of culture, it has to pave the path of ascendancy, but it cannot be put in the compartment of absoluteness. There is constitutional limitation attached to it.
After examining the tests and methods of American and European judiciary, the Hon’ble court came to the conclusion that when the name of Mahatma Gandhi is alluded or used as a symbol, speaking or using obscene words, the concept of “degree” comes in. To elaborate, the “contemporary community standards test” 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. Hence, the framing of charges under Section 292 of IPC is not a flawed decision of the High Court.
Author: Akshay Goel, Hidayatullah National Law University