# DEVI DAS RAMACHANDRA TULJAPURKAR v. STATE OF MAHARASHTRA& ORS

- **Citation:** [2015] 7 S.C.R. 853
- **Court:** Supreme Court of India
- **Decided:** 2015
- **Case number:** Criminal Appeal No.1179 of2010
- **Bench:** Dipak Misra, Prafulla C. Pant
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/devi-das-ramachandra-tuljapurkar-v-state-of-maharashtra-ors-30946
- **Pages:** 125

## Headnote

PENAL CODE, 1860:
c
s. 292 - Framing of charges under-Against the author,
publisher and the printer of a poem 'Gandhi Mala Bhetala'('I
met GandhiJ - Charges framed-Application by the accused
.
for discharging them - Rejected by trial court - Order D
confirmed by the revisional court as well as the High CourtOn appeal, held: The view of High Court pertaining to framing
of charges as against the poet cannot be flawed- Whether
the poem has any other layer of meaning or not, cannot be
gone into, at the time of framing of charges- It shall be open E
for the poet to put his defense at the trial - However, the
publisher and the printer, in the facts of the case, am
discharged- Code of Criminal Procedure, 1973.
s.292 - Offence under - Constituents of - Held: By F
..
bringing in a historically respected personality to the arena
of s.292 IPC, neither a new offence is created nor an ingredient
is interpreted - The parameter for adjudging obscenity is
'contemporary community standards' test- However, the test
becomes applicable with more vigour, in a greater degree, if G
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.
853
H
854
SUPREME COURT REPORTS
[2015] 7 S.C.R.
A
CONSTITUTION OF IND/A, 1950
Art. 19(1)(a) and 19(2) - Freedom of speech and
expression and limitations thereon - Held: Freedom of
speech and expression though has to be given a broad
B canvas, but it has its inherent limitations, it is not absolute.
Art. 19(1)(a) - Interpretation of - Held: When two
interpretations (restrictive and liberal) of Art. 19(1)(a) are
possible, liberal interpretation shouid be adopted - Art.
c 19(1)(a) is intrinsically linked with preambular objectives
which form a part of basic structure- Hence the Article should
be interpreted in aid of the preambular objective.
WORDS AND PHRASES:
-
D
'Poetic license'- Meaning of- Discussed.
'Obscenity' and 'vulgarity' - Meaning of, in the context of
s.292 /PC- Discussed.
E
'Poetry' - Meaning of.
Disposing of the appeal, the Court
HELD: 1. The prevalent test of obscenity in praesenti
is the contemporary community standards test. The
F contemporary community standards test is the main
criterion and it has to be appreciated on the foundation
of modern perception, regard being had to the criterion
that develops the literature. There can neither be
G
stagnation of ideas nor there can be staticity of ideals.
The innovative minds can conceive of many a thing and
project them in different ways. As far as comparables
test is concerned, the Court may sometimes have
referred to various books on literature of the foreign
H authors and expressed the view that certain writings are
not obscene, but that is not the applicable test. It may at
DEVI DAS RAMACHANDRA TULJAPURKAR v.
855
STATE OF MAHARASHTRA
best reflect what the community accepts. [para 59, 60) A
[946-E;947-D-G]
Ranjit D. Udeshi v. State of Maharashtra (1965) 1 SCR
65; Chandrakant Ka/yandas Kakodkar v. State of
Maharashtra 1970 (2) SCR 80 :::1969 (2) SCC 687; KA. B
Abbas v. Union of lf'dia and another 1971 (2) SCR 446 =1970
(2) SCC 780; Raj Kapoor and Others v. State and Others
1980 (1) SCR 1081 = 1980 (1) SCC 43; Samresh Bose &
Anr. v. Amal Mitra &Anr. 1985 (3) Suppl. SCR 17=1985 (4)
SCC 289; Director General, Directorate General of C
Doordarshan and others v. Anand Patwardhan and another
2006 (5) Suppl. SCR 403 = 2006 (8) SCC 433; Ajay Goswami
v. Union of India and others 2006 (10) Suppl. SCR 770 =
2007 (1) SCC 143; Bobby Art International v. Om Pal Singh
Hoon and Others 1996 (2) Suppl. SCR 136 = 1996 (4) SCC D
1; State of Bihar v. Shailabala Devi 1952 AIR 329 = 1952
SCR 654, Ramesh slo Chhote Lal Dalal v. Union of India
andothers1988 (2) SCR 1011=1988(1) SCC 668; Bhagwati
Charan Shukla v. Provincial Government AIR 1947 Nag 1;
Gandhi Smaraka Samithi, v. Kanuri Jagadish Prasad (1993) E
2 APLJ 91 (SN); Promil/a kapur v. Yash Pal Bhasin 1989
Cr.L.J.1241 ;B.K. Adarsh v. Unio

## Text

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[2015] 7 S.C.R. 853
DEVI DAS RAMACHANDRA TULJAPURKAR
A
v.
STATE OF MAHARASHTRA& ORS.
(Criminal Appeal No.1179 of2010)
B
MAY14, 2015
[DIPAK MISRA AND PRAFULLA C. PANT, JJ.]
PENAL CODE, 1860:
c
s. 292 - Framing of charges under-Against the author,
publisher and the printer of a poem 'Gandhi Mala Bhetala'('I
met GandhiJ - Charges framed-Application by the accused
.
for discharging them - Rejected by trial court - Order D
confirmed by the revisional court as well as the High CourtOn appeal, held: The view of High Court pertaining to framing
of charges as against the poet cannot be flawed- Whether
the poem has any other layer of meaning or not, cannot be
gone into, at the time of framing of charges- It shall be open E
for the poet to put his defense at the trial - However, the
publisher and the printer, in the facts of the case, am
discharged- Code of Criminal Procedure, 1973.
s.292 - Offence under - Constituents of - Held: By F
..
bringing in a historically respected personality to the arena
of s.292 IPC, neither a new offence is created nor an ingredient
is interpreted - The parameter for adjudging obscenity is
'contemporary community standards' test- However, the test
becomes applicable with more vigour, in a greater degree, if G
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.
853
H
854
SUPREME COURT REPORTS
[2015] 7 S.C.R.
A
CONSTITUTION OF IND/A, 1950
Art. 19(1)(a) and 19(2) - Freedom of speech and
expression and limitations thereon - Held: Freedom of
speech and expression though has to be given a broad
B canvas, but it has its inherent limitations, it is not absolute.
Art. 19(1)(a) - Interpretation of - Held: When two
interpretations (restrictive and liberal) of Art. 19(1)(a) are
possible, liberal interpretation shouid be adopted - Art.
c 19(1)(a) is intrinsically linked with preambular objectives
which form a part of basic structure- Hence the Article should
be interpreted in aid of the preambular objective.
WORDS AND PHRASES:
-
D
'Poetic license'- Meaning of- Discussed.
'Obscenity' and 'vulgarity' - Meaning of, in the context of
s.292 /PC- Discussed.
E
'Poetry' - Meaning of.
Disposing of the appeal, the Court
HELD: 1. The prevalent test of obscenity in praesenti
is the contemporary community standards test. The
F contemporary community standards test is the main
criterion and it has to be appreciated on the foundation
of modern perception, regard being had to the criterion
that develops the literature. There can neither be
G
stagnation of ideas nor there can be staticity of ideals.
The innovative minds can conceive of many a thing and
project them in different ways. As far as comparables
test is concerned, the Court may sometimes have
referred to various books on literature of the foreign
H authors and expressed the view that certain writings are
not obscene, but that is not the applicable test. It may at
DEVI DAS RAMACHANDRA TULJAPURKAR v.
855
STATE OF MAHARASHTRA
best reflect what the community accepts. [para 59, 60) A
[946-E;947-D-G]
Ranjit D. Udeshi v. State of Maharashtra (1965) 1 SCR
65; Chandrakant Ka/yandas Kakodkar v. State of
Maharashtra 1970 (2) SCR 80 :::1969 (2) SCC 687; KA. B
Abbas v. Union of lf'dia and another 1971 (2) SCR 446 =1970
(2) SCC 780; Raj Kapoor and Others v. State and Others
1980 (1) SCR 1081 = 1980 (1) SCC 43; Samresh Bose &
Anr. v. Amal Mitra &Anr. 1985 (3) Suppl. SCR 17=1985 (4)
SCC 289; Director General, Directorate General of C
Doordarshan and others v. Anand Patwardhan and another
2006 (5) Suppl. SCR 403 = 2006 (8) SCC 433; Ajay Goswami
v. Union of India and others 2006 (10) Suppl. SCR 770 =
2007 (1) SCC 143; Bobby Art International v. Om Pal Singh
Hoon and Others 1996 (2) Suppl. SCR 136 = 1996 (4) SCC D
1; State of Bihar v. Shailabala Devi 1952 AIR 329 = 1952
SCR 654, Ramesh slo Chhote Lal Dalal v. Union of India
andothers1988 (2) SCR 1011=1988(1) SCC 668; Bhagwati
Charan Shukla v. Provincial Government AIR 1947 Nag 1;
Gandhi Smaraka Samithi, v. Kanuri Jagadish Prasad (1993) E
2 APLJ 91 (SN); Promil/a kapur v. Yash Pal Bhasin 1989
Cr.L.J.1241 ;B.K. Adarsh v. Union oflndiaAIR 1990AP100;
S. Khushboo v. Kanniamma/ and another2010 (5) seR 322
= 2010 (5) Sec 600; Aveek Sarkar and another v. State of F
West Bengal and others (2014) 4 sec 257; Shreya Singhal
· v. Union of India 2015 (4) SCALE 1 - referred to.
Kam/a Kant Singh v. Chairman/ManagingDirector,
Bennetta Colman and Company Ltd. and Ors. (1987) 2 AWC
1451; Public Prosecutor v. A.O. Sabapathy AIR 1958 Mad. G
210; R. v. Beaver(1905), 9 O.L.R. 418; Regina v. Hicklin LR
1868 3 QB 360; R. v. Martin Secker& Warburg LO (19541
WLR 11 1138; R. v. Penguin Books Ltd. [1961) Crim LR
176; Chaplinsky v. New Hampshire 315 U.S. 568 (1942);
H
Roth v. United States (1957) 354 US 476; Memoirs v.
e56
SUPREME COURT REPORTS
[2015) 7 S.C.R.
A Masachusetts 383 U.S. 413 (1966); Marvin Miller vs. State
of California 413 US 15 (1973): 93 S.Ct. 2607; Reno v.
American Union of Civil Liberties 521 U.S. 844 (1997); State
of Oregon v. Ear/A. Henry732 P.2d 9 (1987); United States
v. Various Articles of Obscene Merch 732 P.2d 9 (1987);
B Ashcroft v. Free Speech Coalition 535 U.S. 234, 248 (2002);
Kavita Phumbhra v. Commissioner of Customs (Port),
Calcutta (2012) 1 Cal LJ 157; Wingrove v. United Kingdom
1997 24 ECHRR (1); Muller and Others v. Switzerland 13
EHRR 212; Freadman v. Maryland (1965) 380 US 51; Teital
C Film Corp. v. Cusak (1968) 390 US 149; Times Film
Corporation v. Chicago (1961) 365 US 43; Brody v. R 1962
SCR 681 (Can SC); R. v. Butler (1992) 1 SCR 452 (Can
SC) - referred to.
D
R. v. Peacock Unreported case [http://www.bbc.com/
news/uk-16443697] - referred to.
Vereinigung Bi/dender Kinstler v. Austria Application No.
68354/2001, 251h January 2007; Handyside v. United
E Kingdom Application No. 5493/72, 71h December 1976,
Series A No. 24; Editorial Board of Pravoye Delo and Shtekel
v. Ukraine Application No. 33014/05, 5 May 2011; Akda v.
Turkey Application No. 41056/04, 16 February, 2010 -
referred to.
F
Judicial Erosion of Protection for Defendants in
Obscenity Prosecutions?When Courts Say; Literally; Enough
is Enough and When Internet Availability Does Not Mean
Acceptance by Clay Clavert; Journal of Sports and
G Entertainment Law (Vol.1, Number 1 ), Harvard Law School,
2010 - referred to.
2.1 The words, freedom of speech and expression
find place in the association words "liberty of thought,
H expression, belief, faith and worship'', which form a part
DEVI DAS RAMACHANDRA TULJAPURKAR v.
857
STATE OF MAHARASHTRA
of the Preamble of the Constitution. It is true that Article A
19(1)(a) has to be interpreted in a manner by which the
fundamental right to "freedom of speech and
expression" is nourished. When two interpretations of
Article 19(1)(a), one a traditional or restrictive approach
and the other a modern/liberal approach are possible, B
the latter should be adopted, for by adopting the said
approach, the fundamental right to freedom of speech
and expression is guarded and any attempt.to overreach
the same is kept in check. Interpreting Article 19(1)(a) of
the Constitution, the test is always to see the said Article C
in aid of the Preambular objectives which form a part of
the basic structure of the Constitution. Article 19(1 )(a) is
intrinsically linked with the Preambular objectives and it
is the duty of the Court to progressively realise the values 0
of the Constitution. [par:.s 61, 64 and 67] [948-A-B; 950D-F; 952-C-D]
2.2 It is correct that there should not be narrow or
condensed interpretation of freedom of speech and
expression, but that does not mean that there cannot be E
any limit. It has to have inherent limitations which are
permissible within the constitutional parameters.
Freedom of speech and expression as enshrined under
Article 19(1 )(a) of the Constitution is not absolute in view
of Article 19(2) of the Constitution. The said right is a right F
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. [Paras 72 and 104] [961-A-B; 975-C-E]
G
Kesavanada Bharti v. State of Kera/a and Others (1973)
4 SCC 225; Ranjit D. Udeshi v. State of Maharashtra (1965)
1 SCR 65 - followed.
Maneka Gandhi v. Union of India (1978) 1 SCC 248; H
858
SUPREME COURT REPORTS
[2015] 7 S.C.R.
A Gajanan Visheshwar(1994) 5 SCC 550; Sahara India Real
Estate Corpn. Ltd. v. SEBI (2012) 10 SCC 603, State of
Kamataka v. Associated Management of English Medium
Primary & Secondary Schools (2014) 9 SCC 485 - relied
on.
B
c
Shreya Singhal v. Union of India 2015 (4) SCALE 1 -
'
referred to.
American Communications Association v. Douds 339
US 382 - referred to.
3.1 The Constitution does not recognize any
personality whether historically or otherwise as far as
Article 19(1 )(a) is concerned. But it cannot be said that if
'
the concept of personality test is applied, a new
0 ingredient to Section 292 IPC would be added which is
in the realm of legislature and this Court should refrain
from doing the same. [para 73) [961-D-E]
·
3.2 Section 292 IPC uses the term 'obscene'. While
dealing with the facet of obscenity, this Court has
E evolved the test, which holds the field today is the
'contemporary community standards test'. That does not
really create an offence or add an ingredient to the
offence as conceived by the legislature under Section
292 IPC. It is a test, thought of by this Court to judge
F obscenity. The said test has been evolved by conceptual
hermeneutics. This Court cannot create an offence which
is not there nor can it add an ingredient to it. [para 73)
[961-E-G]
G
Kesavanada Bharti v. State of Kera/a and Others (1973)
4 SCC 225; K. Karunakaran v. T. II. Eachara Warrier 1978
(2) SCR 209 = 1978 (1) SCC 18; Maneka Gandhi v. Union
of India (1978) 1 SCC 248; Bangalore Water Supply &
Sewerage Board v. A. Rajappa1978 (3) SCR 207 = (1978) 2
H SCC 213; Minerva Mills Ltd. v. Union of India (1980) 3 SCC
DEVIDAS RAMACHANDRA TULJAPURKAR v.
859
STATE OF MAHARASHTRA
625; Akhil Bharatiya Soshit Karamchari Sangh (Railway) v.
A
Union of India 1981 (2) SCR 185 = 1981 (1) SCC 246;
People's Union for Democratic Rights v. Union of India 1983
(1) SCR 456 = 1982 (3) SCC 235; Bachan Singh v. State of
Punjab 1983 (1) SCR 145 = (1982) 3 SCC 24; Kai/ash
Sankar v. Maya Devi 1984 (2) SCR 176 = 1984 (2) SCC 91; B
Pradeep Jain v. Union of India 1984 (3) SCR 942 = 1984 (3)
SCC 654; Indra Sawhney v. Union of India 1992 (2) Suppl.
SCR 454 = 1992 (3) Suppl. SCC 217; S.R. Bommai and
others v. Union of India and others 1994 (2) SCR 644 = 1994
(3) SCC 1; T.N. Godavarman Thirumu/pad v. Union of C
/ndia2012 (1) SCR 923 = 2012 (4) SCC 362; Dalip Singh v.
State of U.P and Ors. 2009 (16) SCR 111 = 2010 (2) SCC
114 - referred to.
3.3 There are several decisions of this Court, where D
the name of Mahatma Gandhi has been referred to with
reverence and elaborating on various facets of life of
Gandhi and Gandhian thought. There are also certain
eminent persons who have referred to Mahatma Gandhi
in their speech and articles. There are books which E
praise Gandhi, analyse Gandhian thoughts, criticise
Gandhian philosophy, express their dissent, disagree
with his political quotient and also comment on his views
on "Brahamcharya". On reading of the said books, one
can safely say they are the views of the authors in their F
own way and there is no compulsion to agree with the
personality or his thoughts or philosophy. [paras 90 and
92] [967-G; 970-B-C]
"Great Soul: Mahatma Gandhi and his struggle India" G
Lelyveld Joseph, Great Soul: Mahatma Gandhi and his
'"
struggle with India, Harpr Collins, 2011; "Sex and Power"
Lelyveld Joseph, Great Soul: Mahatma Gandhi and his
struggle with India, Harpr Collins, 2011; Mahatma Gandhi The
Early Phase Vol. I Pyarelal, Navajivan Publishing House, 1965,
H
860
SUPREME COURT REPORTS
[2015] 7 S.C.R.
A
Gandhian Constitution for Free India Shriman Narayan
Agarwal, Kitabistan, 1946; Gandhi's Philosophy of Law VS.
Hegde, Concept Publishing Company, 1983; Mahatma
Gandhi Sankar Ghose, Allied Publishers Limited, 1991; The
Myth of the Mahatma MMichael Edwardes, UBS Publishers'
B distributors Ltd., 1986; Gandhi Before India Ramachandra
Guha, Penguin Books, 2013; In Search of Gandhi Richard
Attenborough, B.I. Publications, 1982; Gandhi's View of Legal
Justice Ajit Atri, Deep & Deep Publications Pvt. Ltd., 2007;
Gandhi, Soldier of Non-Violence: An Introduction Calvin Kytle,
C Seven Locks Press, 1983; Trial of Mr. Gandhi Francis Watson,
Macmillan and Co., 1969; Gandhi and Civil Disobedience
Movement S.R. Bakshi, Gitanjali Publishing House, 1985;
Ti/ak, Gandhi and Gita D.K. Gosavi, Bharatiya Vidya Bhavan,
0
1983; Studies in Modem Indian Political thought: Gandhi an
Interpretation O.P. Goyal, Kitab Mahal Pvt. Ltd., 1964; Gandhi
and the Partition of India Sandhya Chaudhri, Sterling
Publishers Pvt. Ltd., 1984; Gandhi in London James D Hunt,
Promilla & Co., 1978; Mahatma Gandhi Contribution to
E Hinduism James D Hunt, Promilla & Co., 1978; Life of
Mahatma Gandhi Louis Fisher, Granada, 1982; Moral and
Political Thought of Mahatma Gandhi Raghavan N. Iyer,
Oxford University Press, 1973; Gandhi and Social Action
Today Mery Kappen (Ed.), Sterling Publishers Pvt. Ltd., 1990;
F Gandhi: The Man and the Mahatma Ram Sharma, Rajan,
1985; Gandhi and Ideology of Swadeshi S.R. Bakshi,
Reliance Publishing House, 1987; Gandhi's Khadi: History of
Contention and Conciliation Rahul Ramagundam, Orient
Longman Pvt Ltd., 2008; Mahatma Gandhi and Jawarhal
G Nehru: A Historic Partnership Vo/.1 (1916-1931) Madhu
Limaye, B.R. Publishing Corporation, 1989; Gandhi: Prisoner
of Hope Judith M. Brown, Oxford University Press, 1990;
Mahatma Gandhi and His Apostles Ved Mehta, Indian Book
Company, 1977'; Gandhi and Status of Women S.R. Bakshi,
H Criterion Publications, 1987; Philosophy of Gandhi: A Study
DEVI DAS RAMACHANDRA TULJAPURKAR v.
861
STATE OF MAHARASHTRA
of His Basic Ideas Glyn Richards, Rupa & Co., 1991; Gandhi A
Naked Ambition Jad Adams, Quercus, 201 O; Meera anJ the
. Mahatma Sudhir Kakar, Yiking- Penguin, 2004; and The Men
Who Killed Gandhi Manohar Malgonkar, Roli Books, 2008 -
referred to.
B
3.4 There can be no two opinions that one can
express his views freely about a historically respected
personality showing his disagr~ement, dissent, criticism,
non-acceptance or critical evaluation. There can be "art
for art's sake" which would include a poem for the sake C
of thought or expression or free speech and many a
concept. [paras 93 and 94] [970-D, G]
3.5 In the context of obscenity, the provision
enshrined under Section 292 IPC has its room to play. D
By bringing in a historically respected personality to the
arena of Section 292 IPC, neither a new offence is created
nor an ingredient is interpreted. The judicially evolved
test, that is, "contemporary community standards test"
is a parameter for adjudging obscenity, and in that E
context, the words used or spoken by a historically
respected personality is a medium of communication
through a poem or write-up or other form of artistic work
gets signification. That makes the test applicable in a
greater degree. [para 104] [975-D-G]
F
4. 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" becomes applicable with G
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 H
862
SUPREME COURT REPORTS
[2015] 7 S.C.R.
A words or to show him doing such acts which are
obscene. Whether the poem has any other layer of
meaning or not, cannot be gone into at the time of
framing of charge. The author in his own understanding
and through the process of trial, can put his stand and
B stance before the trial Judge. It is left to the poet to put
his defense at the trial explaining the manner, he has
used the words and in what context. The view of the High
Court pertaining to the framing of charge under Section
292 IPC cannot be flawed. It shall be open for the poet to
C raise all the pleas in defence, as available to him under
the law before the Magistrate, during trial. [paras 101, 105
and 106] [973-G; 976-E-G; 977-D]
5. So far as the appellant-publisher is concerned, he
D had published the poem in question, which had already
been recited during the Akhil Bhartiya Sahithya
Sammelan in 1980, and was earlier published on
2.10.1986 by others. The appellant has published the
poem only in 1994. But immediately after coming to know
E about the reactions of certain employees, he tendered
unconditional apology in the next issue of the 'Bulletin'
and almost more than two decades have passed. The
printer had printed as desired by the publisher. The
F charge framed against the publisher as well as the printer,
is quashed. [para 106] [976-H; 977-A-C]
Case Law Reference
(1987) 2 AWC 1451
Referred to
Para 9
G
AIR 1958 Mad. 210
Referred to
Para 10
(1905), 9 O.L.R. 418
Referred to
Para 10
LR 1868 3 QB 360
Referred to
Para 12
H
DEVI DAS RAMACHANDRA TULJAPURKAR v.
863
STATE OF MAHARASHTRA
(1954) 1WLR111138
Referred to
Para 12
A
[1961] Crim LR 176
Referred to
Para 15
315 U.S. 568 (1942)
Referred to
Para 18
(1957) 354 us 476
Referred to
Para 19
B
383 U.S. 413 (1966)
Referred to
Para 20
413 us 15 (1973):
93 S.Ct. 2607
Referred to
Para 21
c
521 U.S. 844 (1997)
Referred to
Para 23
732 P.2d 9 (1987)
Referred to
Para 24
535 U.S. 234, 248 (2002)
Referred to
Para 26
D
(2012) 1 Cal LJ 157
Referred to
Para 26
1997 24 ECHRR (1)
Referred to
Para 32
E
13 EHRR 212
Referred to
Para 33
(1965) 1 SCR 65
Referred to
. Para 36
1970 (2) SCR 80
Referred to
Para 41
·'
F
1971 (2) SCR 446
Referred to
Para 42
(1965) 380 us 51
Referred to
Para 42
(1961) 365 us 4::.
Referred to
Para 42
G
1980 (1) SCR 1081
Referred to
Para 45
1985 (3) S'..: ... ~;. SCR 17
Referred to
Para 48
2006 (5) Suppl. SCR 403 Referred to
Para 51
H
864
SUPREME COURT REPORTS
[2015] 7 S.C.R.
A
2006 (10) Suppl. SCR 770 Referred to
Para 52
1996 (2) Suppl. SCR 136 Referred to
Para 53
1952 SCR 654
Referred to
Para 53
B
1988 (2) SCR 1011
Referred to
Para 54
AIR 1947 Nag 1
Referred to
Para 54
(1993) 2 APLJ 91 (SN)
Referred to
Para 55
c
1989 Cr.L.J. 1241
Referred to
Para 56
AIR 1990AP100
Referred to
Para 56
2010 (5) SCR 322
Referred to
Para 57
D
(2014) 4 sec 257
Referred to
Para 58
1962 SCR 681 (Can SC)
Referred to
Para 58
(1992) 1 SCR 452 (Can SC) Referred to
Para 58
E
2015 (4) SCALE 1
Referred to
Para 59
(1973) 4 sec 225
Followed
para 65
(1978) 1 sec 248
Relied on
para 67
F
(1994) 5 sec 550
Relied on
Para 69
339 us 382
Referred to
Para 69
G
(2012) 1 o sec 603
Relied on
Para 70
(2014) 9 sec 485
Relied on
Para 71
1978 (2) SCR 209
Referred to
Para 77
1978 (3) SCR 207
Referred to
Para 78
H
DEVIDAS RAMACHANDRA TULJAPURKAR v.
865
STATE OF MAHARASHTRA
(1980) 3 sec 625
Referred to
Para 80
A
1981 (2) SCR 185
Referred to
Para 81
1983 (1) SCR 456
Referred to
Para 82
1983 (1) SCR 145
Referred to
Para 83
B
1984 (2) SCR 176
Referred to
Para 84
1984 (3) SCR 942
Referred to
Para 85
1992 (2) Suppl. SCR 454 Referred to
Para 86
c
1994 (2) SCR 644
Referred to
Para 87
2012 (1) SCR 923
Referred to
Para 88
I
D
2009 (16) SCR 111
Referred to
Para 89
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
No. 1179 of2010.
From the Judgment and Order dated 20.01.2010 of the E
High Court of Judicature of Bombay Bench atAurangabad in
Criminal Application No. 2074 of2002.
F. S. Nariman (A.C.), Gopal Subramanian, Pravin H.
Parekh, S. C. Sharma, Sameer Parekh, Lalit Chauhan, Pallavi F
Sharma, Kushagna Pandey, Abhishek Vinod Deshmukh, S.
Lakshmi Iyer (For Parekh & Co.), Asha Gopalan Nair,
Aniruddha P. Mayee, Charudatta Mahindrakar, A. Selvin Raja,
for the appearing parties.
The Judgment of the Court was delivered by
G
DIPAK MISRA, J.
The Controversy
H
866
SUPREME COURT REPORTS
[2015] 7 S.C.R.
A
The seminal issue 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
B 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. The
question framed reads thus:-
C
D
E
"Regard being had to the importance of the matter, we
had sought the assistance of Mr. Fali S. Nariman, learned
senior counsel, to assist the Court, and he has gladly
rendered. At the ~me of hearing, we have asked the
learned senior counsel, learnedAmicus Curiae, to assist
the Court as regards the proposition whether in a writeup 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."
Mr. Gopal Subramanium, learned senior counsel,
appearing for the appellant, in his written note of submissions,
has segregated the said question into five parts, namely, (a)
F whether there could be a reference to a historically respected
personality; (b) could that reference be by way of allusion or
symbol; (c) could that allusion be resorted to in a write-up or a
poem; (d) whether the conception and concept of poetic
license permits adopting an allusion; and (e) whether any of
G the above could involve ascribing words or acts to a historically
reputed personality which could appear obscene to a reader.
He has urged with solemn vehemence that when the author is
not represented before the Court, adjudication on an important
H issue which fundamentally relates to freedom of thought and
DEVIDAS RAMACHANDRA TULJAPURKAR v.
867
STATE OF MAHARASHTRA[DIPAK MISRA, J.]
'
expression, would be inappropriate and a poem or a write-up A
is indeed a part of free speech and expression, as perceived
under Article 19(1 )(a) of the Constitution and that apart the
expression "poetic licence" is neither a concept nor a
conception because the idea of a poetic freedom is a
guaranteed and an enforceable fundamental right and this B
Court should not detract and convert it into a permissive
licence. Additionally, learned senior counsel has contended
that quintessential liberty of perception and expression when
placed in juxtaposition with "poetic licence", is inapposite since c
the expression "permissible" sounds a discordant note with
"liberty of perception and expression", a sacrosanct
fundamental right, integral to human dignity, thought, feeling,
behaviour, expression and all jural concepts of human freedom
guaranteed not only under the Constitution but even recognised D
under the International Covenants, for they can never be placed
in the company or association of expressions such as "license"
or "permissibility". Emphasising on the said facet, submitted
•
Mr. Subramanium that the Constitution has liberated the
citizens from 'license' and 'permissibility', whic~ are E
expressions of disempowerment and the entire freedom
struggle was centered around the concept of empowerment.
There is a suggestion in the written note of submissions to
place the matter before a Bench of five Judges as enshrined
under Article 145(3) of the Constitution. In spite of the said F
submission, learned senior counsel, we must appreciably state,
has copiously dealt with the issues that have emerged from
the question, in his written note of submissions.
Mr. Fali S. Nariman, learned senior counsel and amicus G
curiae supported the phraseology in the question with immense
intellectual vigour, patience, perseverance and endeavour and
submitted that the issue that this Court has thought of
addressing is absolutely invulnerable and unalterable as the
Constitution of India does not recognise absolute freedom and H
868
SUPREME COURT REPORTS
[2015] 7 S.C.R.
A Article 19(2) of the Constitution regulates the same and Section
292 IPC being a provision which is saved by Article 19(2), the
presence or absence of the author is immaterial; what is to be
seen is whether the poem prima facie exhibits obscenity,
especially, in the context of Mahatma Gandhi, the "Father of
B the Nation", as the identity of the historically respected
personality is absolutely clear and there is no scintilla of doubt
in the mind of any average reader. Learned amicus curiae
would submit that the question deserves to be dealt with and
answered in proper perspective.
c
Clarification of the question framed
2. We are obligated to clarify the position. It is apt to state
here the question framed by us has to be contextually
D understood. The question was framed in the factual matrix of
the case. The proposition presented is that despite all the poetic
licence and liberty of perception and expression, whether
'poem' or 'write-up' can use the name of a historically
respected personality by way of an allusion or symbol in an
E obscene manner. "Historically respected personality" was used
in the backdrop of the use of the name of Mahatma Gandhi.
When the name of such a respected personality is used as an
allusion or symbol, and language is revoltingly suggestive
whether that is likely to come within the perceived ambit and
F sweep of Section 292 IPC, whether it is permissible. We shall
dwell upon this facet when we will discuss the poem in a prima
facie manner, for the purpose of scrutinising the order framing
charge; and we shall also deal with the submission of Mr.
Subramanium, which has been assiduously put forth by him
G that the name of Gandhi has been used as a surrealistic voice
and hence, the poet is entitled to use the language as a medium
of expression in the poem. We do not intend to catalogue
names of historically respected personalities as that is not an
H issue in this case. Here the case rests on the poem titled "I
DEVIDAS RAMACHANDRA TULJAPURKAR v.
869
STATE OF MAHARASHTRA[DIPAK MISRA, J.]
met Gandhi". As far as the words "poetic license", are A
concerned, it can never remotely mean a license as used or
understood in the language of law. There is no authority who
gives a license to a poet. These are.words from the realm of
literature. The poet assumes his own freedom which is allowed
to him by the fundamental concept of poetry. He is free to depart B
from the reality; fly away from grammar; walk in glory by not
following the systematic metres; coin words at his own will;
use archaic words to convey thoughts or attribute meanings;
hide ideas beyond myths which can be absolutely unrealistic;
totally pave a path where neither rhyme nor rhythm prevail; can C
put serious ideas in satires, ifferisms, notorious repartees; take
aid of analogies, metaphors, similes in his own style, compare
like "life with sandwiches that is consumed everyday" or "life is
like peeling of an onion", or "socit:ty is like a stew"; define ideas 0
that can balloon into the sky never to come down; cause
violence to logic at his own fancy; escape to the sphere of
figurative truism; get engrossed in "universal eye for
resemblance", and one can do nothing except writing a critical
appreciation in his own manner and according to his E
understanding. When the poet says "I saw eternity yesterday
night", no reader would understand the term 'eternity' in its
prosaic sense. The Hamletian question has many a layer; each
is free to confer a meaning; be it traditional or modern or
individualistic. No one can stop a dramatist or a poet or a writer F
to write freely expressing his thoughts and similarly none can
stop the critics to give their comments whatever its worth. One
may concentrate on classical facets and one may think at a
metaphysical level or concentrate on romanticism as is
understood in the poems of Keats, Byron or Shelley or one G
may dwell on the nature and write poems like William
Wordsworth whose poems, say some, are as didactic. One
may also venture to compose like Alexander Pope or Dryden
or get into individual modernism like Ezra Pound, T.S. Eliot or
H
870
SUPREME COURT REPORTS
(2015] 7 S.C.R.
A Pablo Neruda. That is fundamentally what is meant by poetic
license.
3. We may slightly delve into the area in Sanskrit lijerature
that gave immense emphasis on aesthetics. The concept of
B rasa though mentioned in the Vedas and by Valmiki gets
consummate expression in all its complexity with Bharata when
he introduces it to explain aesthetic experience.
"Vibhavanubhav vyabhichari sanyogadrasnishpatl'. Bharata
discusses in detail the contributing factors like vibhavas,
C anubhavas, vybhicharibhavas and sthayibhavas. Dandin
emphasises on lucidity, sweetness, richness and grandeur to
basically constitute poetry and that is why it is said "Dandinha
Padlalityam". Some critics like Vamana, stressing on soul of
poetry perceive 'rill' as "Ritiraatma kavyasya". Some also ·
D subscribe to the theory that 'rasa' gets expressed through
dhvani. There are thinkers who compare writings of T.S. Eliot,
when he states poetic delineation of sentiments and feelings,
to have the potentiality of being associated with the 'element
of surprise' which is essential to poetry, and there he is akin to
E Indian poeticians like Kuntaka who called poetry 'vakroktl'
. which he explains as "vaidagdhyabhangibhanitl' - a mode of
expression depending on the peculiar turn given to it by the
skill of the poet. Some emphasise on "best words used in best
F order" so that poem can attain style and elevation. To put it
differently, the 'poetic licence' can have individual features,
deviate from norm, may form collective characteristics or it
may have a linguistic freedom wider than a syntax sentence
compass.
G
4. We have emphasised on these facets as we are
disposed to think that the manner in which the learned senior
counsel has suggested the meaning of 'poetic license' is not
apt. Freedom of writing is not in question. That cannot be. And
H we say so without any fear of contradiction.
DEVI DAS RAMACHANDRA TULJAPURKAR v.
871
STATE OF MAHARASHTRA [DIPAK MISRA, J.]
5. In course of our judgment, we shall deal with the other A
'.
facets that have been so assiduously put forth by Mr.
Subramanium and so indefatigably controverted by Mr. F ali
S. Nariman, learned amicus curiae.
The factual score
B
6. As far as the suggestion given for placing the matter
before a five-Judge Bench, we are of the considered view that
there is no need forthe same.
7. Presently, we shall state the exposition of facts. On the c
basis of a complaint lodged by one V. V. Anaskar, a resident
of Pune, and a member of 'Patit Pawan Sangthan', with the
Commissioner of Police, relating to the publication of the poem,
which was published, in July-August, 1994, meant for private D
circulation amongst the members of All India Bank Association
Union, a crime was registere~ as FIR No. 7/95 at P.S. Gandhi
Chowk, Latur, on being transferred from Pune, for the offences
punishable under Sections 153-A and 153-B read with Section
34, IPC and eventually after due investigation charge sheet E
was filed for the said offences along with 292, IPC against the
present appellant, the publisher and the printer, respondent
no.3, of the Bulletin and the author, one Vasant Dattatraya Gujar.
When the matter was pending before the Chief Judicial
Magistrate, Latur, all the accused persons filed an application
F
f~r discharge and the learned Magistrate by order dated
4.5.2001 held that no case for the offences under Sections
153-A and 153-B was made out and accordingly discharged
them of the said offences but declined to do so in respect of
the offence under Section 292, IPC. On a revision being filed, G
the learned Additional Sessions Judge did not think it
appropriate to interfere with the order passed by the trial
Magistrate which constrained the accused persons to invoke
jurisdiction under Section 482 of the CrPC and the High Court
of Bombay, Aurangabad Bench dismissed the application. The H
872
SUPREME COURT REPORTS
[2015] 7 S.C.R.
(1987) 2 AWC 1451
A said decision is the subject of matter of this appeal by special
leave at the instance of the publisher. The author has chosen
not to assail the order passed by the High Court.
B
Concept of obscenity
8. Apart from submitting that the orders passed by all the
Courts are absolutely perverse and deserve to be lancinated,
it is submitted by Mr. Subramanium, learned senior counsel
that to appreciate the question framed by this Court, despite
c his reservation on the legal score as regards its phraseology,
the meaning of the term "obscenity" has to be appositely
understood. He has referred to the Black's Law Dictionary that
defines obscenity as follows:-
D
E
F
G
H
"Obscene, adj. (16c) - Extremely offensive under
contemporary community standards of morality and
decency; grossly repugnant to the generally accepted
notions of what is appropriate. Under the Supreme
Court's three-part test, material is legally obscene - and
therefore not protected under the First Amendment - if,
taken as a whole, the material (1) appeals to the prurient
interest in sex, as determined by the average person
applying contemporary community standards; (2)
portrays sexual conduct, as specifically defined by the
applicable state law, in a patently offensive way; and (3)
lacks serious literary, artistic, political, or scientific value.
Millerv. Callifomia, 413 U.S. 15, 93 S.Ct. 2607 (1973).
If there be no abstract definition, ... should not the word
'obscene' be allowed to indicate the present critical point
in the compromise between candor and shame at which
the community may have arrived here and now?" United
States V Kennerley, 209 F. 119, 121(S.D.N.Y1913) (per
Hand.J.)"
DEVIDAS RAMACHANDRA TULJAPURKAR v.
873
STATE OF MAHARASHTRA [DIPAK MISRA, J.]
9. The learned senior counsel has also referred to the A
decision of the Allahabad High Court in Kam/a Kant Singh
Vs. Chairman/ManagingDirector, Bennetta Colman and
Company Ltd. and Ors. 1, wherein the High Court dealt with
the meaning of the word 'obscenity'. The delineation is as
follows:-
B
"15. The word obscenity has been explained in 'Jowitts'
Dictionary of English Law as follows:
"An article is deemed to be obscene, if its effect, or where c
the article comprises two or more distinct iteins, the effect
of any one of its items if taken as a whole, is to tend to
deprave and corrupt persons, who are likely having
regard to all the relevant circumstances to read, to see
or hear matters contained or embodied in it. (See R. v. D
Claytone and Hasley, (1963) 1 QB 163, R. v. Anderson,
(1972) 1 -QB 304)". Obscenity and depravity are not
confined to sex. (See John Calder Publications v.
Powell, (1965) 1QB509.)
E
16. . .. According to Black's Law Dictionary obscenity
means character or quality of being obscene, conduct,
tending to corrupt the public merely by its indecency or
lewdness. According to Webster's New International
Dictionary, word 'obscene' means disgusting to the F
senses, usually because of some filthy grotesque or
unnatural quality, grossly repugnant to the generally
accepted notions of what is appropriate."
10. The High Court of Madras in Public Prosecutorv. G
A.D. Sabapathy2, has opined that the word "obscene" must
be given its ordinary and literal meaning, that is, 'repulsive',
'filthy', 'loathsome', 'indecent' and 'lewd'. The learned senior
1 (1987) 2 AWC 1451
2AIR 1958 Mad. 210
H
874
SUPREME COURT REPORTS
[2015] 7 S.C.R.
A counsel has also referred to the judgment of Supreme Court
of Canada in R. v. Beaver, wherein Maclaren, J.A., has
defined 'obscene' as follows:-
"The word 'obscene' ... was originally used to describe
B
anything disgusting, repulsive, filthy or foul. The use of
the word is now said to be somewhat archaic or poetic;
and it is ordinarily restricted to something offensive to
modesty or decency, or expressing or suggesting
unchaste or lustful ideas, or being impure, indecent, or
C
lewd."
11. After generally referring to the meaning of the term
obscenity, learned senior counsel has emphasised on the tests
adopted in various countries relating to obscenity. Mr.
D Subramanium has referred to various authorities of United
Kingdom, United States of America, European Courts and this
Court to pyramid the proposition that the tests laid down by
legal system including the authorities of this Court do not
suggest that that the instant poem can remotely be treated as
E obscene. First, we shall dwell upon the tests and standards
laid by various Courts and then the binding authorities of this
Court and thereafter to the concept of freedom of speech and
expression on the constitutional parameters and finally delve
to adjudge the facet of obscenity and address applicability of
F the determined test in the context of the question and ultimately
the nature of the poem and the justifiability of the order
impugned.
Test evolved in United Kingdom
G
12. As far as United Kingdom is concerned, Mr.
Subramanium has referred to Regina v. Hicktin4, the meaning
3 (1905), 9 O.L.R. 418
H •LR 1868 3 QB 360
DEVI OAS RAMACHANDRA TULJAPURKAR v.
875
STATE OF MAHARASHTRA[DIPAK MISRA, J.]
given by Cockburn C.J. and drawn our attention to the Article A
by J.E. Hall Williams in Obscenity in Modem English Lai.N5
wherein the learned author observed that Hicklin (supra) gave
a complete go by to the principle of "mens rea" which propounds
a certain degree of protection to the accused. The learned
author was critical on the concept of presumption as B
propounded in Hicklin (supra). In the said article, learned
author referred to certain observations in R. v. Martin Secker
& Warburg LCY3. In the said case, Stable J. has stated
'The test of obscenity to be applied today is extracted C
from a decision of 1868; it is this: " .... Whether the
tendency of the matter charged as obscenity is to deprave
and corrupt those whose mind are open to such immoral
influences, and into whose hands a publication of this sort
may fall." Because this test was laid down in 1868, that D
does not mean that you have to consider whether this book
is an obscene book by the standards of nearly a century
ago. Your task is to decide whether you think that the
tendency of the book is to deprave those whose minds
today are open to such immoral influences and into whose E
hands the book may fall in this year, or last year when it
was published in this country. Considering the curious
change of approach from one age to another, it is not
uninteresting to observe that in the course of the argument F
of the case in 1868 the rhetorical question was asked:
"What can be more obscene than many pictures "publicly
exhibited, as the Venus in the Dulwich Gallery?" There are
some who think with reverence that man is fashioned in
the image of God, and you know that babies are not born G
in this world, be they of either sex, dressed up in a frockcoat or an equivalent feminine garment.
• 20, Law and Contemporary Problems (1955): 630-647
8 (19541WLR111138.
H
876
A
B
c
D
E
F
G
SUPREME COURT REPORTS
[2015] 7 S.C.R.
We are not sitting here as judges of taste. We are not
here to say whether we like a book of this kind. We are
not here to say whether we think it would be a good thing
if books like this were never written. You are here trying a
criminal charge and in a criminal court you cannot find a
verdict of "Guilty" against the accused unless, on the
evidence that you have heard, you and each one of you
are fully satisfied that the charge against the accused
person has been proved.
Remember the charge is a charge that the tendency of
the book is to corrupt and deprave.