“Everything you can imagine is real”
“A writer or an author, while choosing a mode of expression, be it a novel or a novella, an epic or an anthology of poems, a play or a playlet, a short story or a long one, an essay or a statement of description or, for that matter, some other form, has the right to exercise his liberty to the fullest unless it falls foul to any prescribed law that is constitutionally valid.”
-Dipak Misra, C.J
Supreme Court: The Bench comprising of CJ Dipak Misra and A.M. Khanwilkar and Dr D.Y. Chandrachud, JJ. dealt with the issue of creativity and its impact while considering a writ petition filed under Article 32 of the Constitution of India seeking to ban a novel on the foundation that a part of it is indecent and offends the sentiments of temple going women. The petition was dismissed by the Court observing that nurturing the contention behind it would be to pyramiding a superstructure without the infrastructure.
The petition sought to ban the novel Meesha, parts of which were published in the popular Malayalam weekly Mathrubhumi. It was averred that the said literary work was insulting and derogatory to temple going women and it hurts the sentiments of a particular community. It was submitted that the writings published in Mathrubhumi had a tendency to propel the general public to view women community as mere sexual objects, which in turn denies the women their fundamental rights and also jeopardize their safety and well-being. Further, the publication had proclivity to disturb public order, decency and morality and it defames the women community, all of which entitles the State to put reasonable restrictions under Article 19(2).
Here it is pertinent to refer and quote the relevant dialogue from the novel that impelled the petitioner to move the Court:
“Why do these girls take bath and put on their best when they go to the temple?” ,
a friend…once asked.
“To pray”, I said
“No”, he said.”…why do they need to put their best clothes in the most beautiful way to pray? They are unconsciously proclaiming that they are ready to enter into sex. …Otherwise… why do they not come to the temple four or five days a month? They are letting people know that they are not ready for it. …”
The Supreme Court, for deciding the present petition, perused the entire central theme of Meesha. The primary issue for consideration was whether the novel was an aberration of such magnitude which invited imposition of reasonable restrictions under Article 19(2)? In view of the Court, the answer to the consideration was categorically in negative. The Court, speaking through CJ Dipak Misra, made various observations, few of which are delineated hereinafter:
- Literature symbolizes freedom to express oneself in multitudinous ways.
- The free flow of stream creativity knows no bounds and imagination brooks no limits.
- It is perilous to obstruct free speech, expression, creativity and imagination, for it leads to a state of intellectual repression of literary freedom thereby blocking free thought and fertile faculties of human mind.
- Ideas have wings. If the wings are clipped, no work of art can be created.
- Constitutional ideals can be preserved by defending the freedom of think as you will and speak as you think-Justice Louis Brandeis.
- A reader should have the sensibility to understand the situation and appreciate the character. The feeling of perverse judging should be abandoned.
- A creative writing is expectant of empathetic reading. It is not averse to criticism but certainly does not tolerate unwarranted protest.
In the course of adjudication, the Court referred to various earlier decisions including, inter alia, Bobby Art International v. Om Pal Singh Hoon, (1996) 4 SCC 1, Raj Kapoor v. State, (1980) 1 SCC 43 and Samaresh Bose v. Amal Mitra, (1985) 4 SCC 289. The Court reminded itself of the expression used by George Orwell, creative writing is contrary to intellectual cowardice and intellectual pusillanimity. The Court was of the view that the character Meesha as is projected in the novel, shows myriad experiences with different situations. Viewed from, either way, it could not be denied that the character is the manifestation of creativity. Language used in the dialogue cannot remotely be thought of as obscene. The dialogue to which objection was raised is not an intrusion to create a sensation. If the books are banned on such allegations, there will be no creativity. Such interference by the Constitutional Courts will cause the death of art. In light of all that is mentioned above, the Court dismissed the petition holding it to be sans merit.
It becomes essential to refer to the closing remarks of the Bench in its judgment:
…what the great writer and thinker Voltaire had said- I may disapprove of what you say, but I will defend to the death your right to say it; becomes the laser beam for guidance when one talks about freedom of expression. [N. Radhakrishnan v. Union of India, (2018) 9 SCC 725, decided on 05-09-2018]