“Contemporary Community Standards Test” to determine obscenity in write-ups where a historically respected personality is used as an allusion

Supreme Court:- While deciding an appeal filed by the publisher of the poem ‘Gandhi Mala Bhetala’ (I met Gandhi) wherein the publisher ,the printer and the author  of the poem were charged  under Section 292 of IPC, the main question raised was whether a historical personality can be connected to obscene situations by way of allusion in poems and is such connection protected by poetic license, the Division Bench of Dipak Misra and P.C.Pant, JJ., observed that, according to the evolved test of  “contemporary community standards test” is the parameter of adjudging obscenity in write-ups where a historically respected personality is used as an allusion, therefore what can otherwise pass 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. The Court further observed that there is no necessity for the issue to be referred to a larger Bench.

Gopal Subrimanium, the counsel for the appellate contended that “Poetic License” is neither a concept nor a conception because the idea of poetic freedom is guaranteed and an enforceable fundamental right and the court should not detract and convert it into a permissive license. He further argued that freedom of speech and expression needs to interpreted on a broader canvas and poetry being one of the most fearless form of expression, cannot be restricted due to the use of the name of a personality. Fali S. Nariman, the Amicus Curiae, contended, that the the main question is whether the poem prima facie exhibits obscenity, especially in the context of Mahatma Gandhi. He further contended that the poem might have not been obscene otherwise, but once the name of a respected personality as Mahatma Gandhi is attached to it, then the character of the words change and assume the position of obscenity. The case pertains to the poem ‘I met Gandhi’. In the case the author has used Gandhi as an allusion or a symbol. He has shown Mahatma Gandhi in obscene situations in the poem and therefore, the publisher, the printer and the author of the poem were charged under Section 292 of IPC. In the Trial Court they were convicted under Section 292 but the charges under Sections 153-A and 153-B of the IPC, were dropped against them.           

The Court observed that, ‘poetic license’ does not mean license as it is understood in law, for there is no authority that grants the poet a license, rather it denotes the liberty of the poet to go into his realms of imagination to compose a creation. The Court further stated that freedom of speech and expression indeed needs a broader interpretation, but it has certain inherent limitations and cannot be put into the “compartment of absoluteness”. The Court held that the case of obscenity under section 292 of IPC against the publisher (appellant) and the printer of the poem in question should be quashed as they have tendered unconditional apology; however, the Court remained silent on the fate of the author of the poem but allowed him to present his defenses at the trial explaining the sense in which the words have used with Mahatma Gandhi as the allusion. Devidas Ramachandra Tuljapurkar v. State of Maharashtra, 2015 SCC OnLine SC 486, decided on 14.05.2015

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