"Free speech, Obscenity and 'Respected Historical Personalities': A Troubling New Doctrine

When the Supreme Court struck down S. 66A of the IT Act in Shreya Singhal vs Union of India two months ago, the verdict was hailed as a landmark milestone in Indian free speech jurisprudence, for two reasons. First, for once, the Supreme Court followed up its platitudes about the value of free speech in a democracy not with a sentence beginning with “but...”, but rather with actual concrete action – striking down a speech-restricting provision. And secondly, it was a judgement in which the Supreme Court began with the text of Article 19(1)(a) and 19(2), proceeded to rigorously examine that text in light of constitutional history, purpose and precedent, and analysed the impugned law on the touchstone of the Constitution, as understood and interpreted over the years.

Today, in Devidas Ramachandra Tuljapurkar vs State of Maharashtra, the Supreme Court reversed the slight gains made by Shreya Singhal on both counts, creating a new exception to 19(1)(a) when it comes to putatively obscene speech about “historically respectable figures”. As I shall presently explain, today’s judgement is entirely misconceived, for the following reasons: first, it misstates and misconstrues fifty years of Indian obscenity law jurisprudence; secondly, it invents a “historically respectable figures” exception with no basis in constitutional text, history, precedent or reason; thirdly, in failing to define this new standard, it opens a Pandora’s Box of future claims brought on behalf of “historically respectable figures”, which will cast a deep and broad chilling effect upon core political speech; and fourthly, in creating an artificial hierarchy between “historically respectable figures” and the rest, with differential standards applying to both, it destroys the very basis of having a fundamental right to free speech in the first place – that is, to enable citizens to contest the most entrenched and basic norms that society subscribes to.

In Devidas Ramachandra Tuljapurkar, the question before the Court was asked to quash charges of obscenity leveled against a poet for writing a poem called “Gandhi Mala Bhetala” (‘I Met Gandhi’), published in 1994 and meant for private circulation among the employees of the All India Bank Association. A member of the “Patit Pawan Sangathan” lodged a complaint with the Police against the author and publisher, alleging offences under Sections 153A and 153B of the IPC (causing disharmony between classes) and 292 (obscenity). The Magistrate discharged the accused under 153A and 153B, but not under 292. After unsuccessfully moving the Additional Sessions Judge and the High Court to quash the charge, the accused finally reached the Supreme Court.

After setting out the factual matrix, the Court spent the next thirty-seven pages extracting excerpts from various judgements handed down by American, English and European Courts (paragraphs 12 to 33); thefifty-four pages extracting excerpts from various Indian judgements on obscenity (paragraphs 34 to 60); and then sixteen pages extracting excerpts from the Constituent Assembly Debates and various Indian judgements in praise of free speech (paragraphs 61 to 72). Since the Court made no attempt at a synthesis, however, it is essential to set out, in brief, the development of Indian obscenity law over the last fifty years.

In its 1965 judgement in Ranjit Udeshi vs State of Maharashtra, the Supreme Court had adopted the Victorian-era English test in R vs Hicklin: material was obscene if it tended to deprave or corrupt the people into whose hands it was likely to fall. There were three problems with the Hicklin test as it stood: the broadness of the terms “deprave or corrupt”; its acontextuality (prosecutions under the Hicklin test would focus on pointing out specific words or phrases that were supposedly obscene); and its focus on looking at the text from the point of view of the people who, in the opinion of the Court, were most likely to be corrupted or depraved – something that Madhavi Divan has called “the most vulnerable constituency test”. The second of these issues was resolved by the Court in Udeshi itself, when it clarified that obscenity must be tested by looking at the work of art as a whole, and in context. Subsequently, over the next fifty years, the other prongs of Hicklin were gradually liberalised. In cases over the 80s and 90s, and ending with D-G Doordarshan vs Anand Patwardhan, and Ajay Goswami, the Supreme Court shifted from the “most vulnerable constituency test” to that of the average, reasonable and strong-minded reader; and in Aveek Sarkar, decided last year, it finally expressly abandoned Hicklin after a half-century of chipping away, and replacing it with the 1957 American test in Roth vs US. The Roth test holds that:

“The standard for judging obscenity, adequate to withstand the charge of constitutional infirmity, is whether, to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest.”

The Roth test, therefore, is sharper and narrower than Hicklin. It does not cover all material that might corrupt or degrade, but limits itself to whether the dominant theme of the material, taken as a whole, appeals to the prurientinterest (and whether it is utterly without redeeming social value). Admittedly,Roth is a problematic test, and as I’ve pointed out before, Aveek Sarkar ought to have considered the developments within American obscenity jurisprudence as well, in future cases, before relying upon a test that has been significantly displaced in its own country of origin. Nonetheless, as a test for obscenity, it is at least more speech-protective than Hicklin – because, for instance, merely (allegedly) vulgar or distasteful work, that might also allegedly deprave or corrupt individuals, would not be caught by the obscenity net.

This survey is essential to understand why the Court proceeds to go entirely off the rails in Tuljapurkar. The test for obscenity, as developed in Roth and adopted in Aveek Sarkar, does not contemplate differential standards for different people. It proceeds on a simple basis: does the work, taken as a whole, to the average reader, appeal to the prurient interest? Presumably, under the oldHicklin test, it would be somewhat possible to make this distinction by (somehow) arguing that disrespecting historically respectable figures would corrupt all those people who follow them as models for the ideal life. I say presumably, because this argument is a stretch, but it is at least conceivable. Under Roth and Sarkar, however, it is the nature of the work that matters, not not who it is about.

The Court gets around this rather basic problem by engaging in what can only be called a sleight of hand. In paragraph 73, it holds that “the test evolved by this Court, which holds the field today is the ‘contemporary community standards test’.”

This, however, entirely misstates the Roth test by omitting what follows after community standards. A complete statement of the test is:

“…applying contemporary community standards, [whether] the dominant theme of the material, taken as a whole, appeals to prurient interest.”

It is not open to judges to pick one part of a judicially evolved test, established through years of gradual and incremental precedent, and omit another part that is inconvenient to the conclusion that they wish to reach. If a judge wishes to depart from a test, than it is incumbent upon him to state the old test, provide his new version, and give reasons for doing so. This is how the Court went about replacing Hicklin with Roth in Aveek Sarkar, and how a Court is normally supposed to act.

By simply ignoring the second part of the Roth test, the Court is able to invent a new exception to free speech: obscenity standards are different when it comes to “historically respectable figures”, because of community standards. To prove the established “community standards” in case of Gandhi, the judgement spends the next twelve pages extracting various Supreme Court judgements that had referred to Gandhian thought and principles, and cites the names of various books about Gandhi. What role these citations are meant to play in the explication of an obscenity test is unclear, but at the end of it, Justice Dipak Misra observes that:

“The issue in the instant case, 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.”

This, however, is deeply confusing, because the Court begs the question: first, it says that historically respectable figures command a different threshold of obscenity; then, without explaining what that threshold is, it says that the question is whether “in the name of artistic freedom… a poet… may be obscene.” But there is absolutely no quarrel with that proposition! Everyone accepts that obscenity is a constitutional restriction upon the freedom of speech in India. The question is what constitutes obscenity.

Confusion is worse confounded in its concluding paragraph, where the Court says:

“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.”

Quite apart from the fact that the last sentence is viciously circular again, the question remains: how do you apply the “community standards” test as a matter of degree? What does it mean to say that the test applies with “greater vigour“? Prima facie, juxtaposing “community standards” with questions of degree seems entirely incoherent. Does it mean that the burden of proof shifts? Does it mean that the evidentiary standards for establishing community standards are lower (not that the Court has bothered with evidence of community standards in its obscenity judgements before)? The Court does not provide any guidance upon these issues. And by refusing to do so, it opens the floodgates for a whole host of future 292 claims in which organisations, claiming to speak on “behalf” of historically respectable figures (another term that the Court refuses to define), will make of S. 292 what has already been made of S. 295A and 153A. The chilling effect of Ss. 295A and 153A will not be compounded because of a conceptually incoherent and incorrect judgement has made vague observations about strict “community standards” for “historically respectable personalities”, but has made no attempt to clarify the meanings of those vague and open-ended terms.

Lastly, the philosophical implications of this judgement are deeply troubling. In walling off a class of individuals – “historically respectable figures”, the Court does two things. First, it arrogates to itself the power to define “respectability”. On what basis must we all accept Gandhi’s “respectability”? By now, we have reams of literature that impugn Gandhi’s personal and political motivations, his actions and his character, and his impact upon the freedom movement. Through this judicial fiction of Gandhi’s “respectability”, the Court creates a judicial narrative which it then imposes upon the rest of the country. This is not the judiciary’s province. And secondly – and relatedly – by creating differential standards about what can and cannot be said based upon the respectability of historical personalities, the Court betrays the whole purpose of a free speech right: the freedom to question, criticise, and undermine the most deeply entrenched narratives that society holds dear, the freedom to use speech to attempt to uproot and transform the most fundamental social and moral norms of a community (as held in Khushboo vs Kanniamal), the freedom to offend, shock or disturb. A right to free speech is nothing without the right to attack and undermine one of the most deeply crystallised narratives of modern India – the narrative of the “father of the nation”.

The vagueness and conceptual slippages rife throughout this judgement leave it unclear how much of an impact it will have doctrinally. For the reasons adduced above, it is submitted that this judgement is incorrect, productive of great public mischief, and ought to be overruled the first chance the Supreme Court gets.

Image from here.

Gautam Bhatia is a Delhi-based advocate. He tweets at @gautambhatia88 and blogs about the Constitution at www.indconlawphil.wordpress.com. This Article is first appeared here.