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On July 5, 2016, the Madras High Court saved Perumal Murugan’s novel, Mathorubhagan from oblivion when it dismissed the claims against Murugan on the grounds of obscenity, spreading disharmony between communities, blasphemy, and defamation and upheld his freedom of expression in S. Tamilselvan & Perumal Murugan versus Government of Tamil Nadu. This judgment has received wide appreciation for its support for freedom of expression. What made it applause-worthy? Do we have reservations with the view of the High Court?

Murugan’s book is about a married couple, Kali and Ponna, who fail to have a child despite decades of their marriage. They succumb to social and familial pressures to allow Ponna (the wife) to participate in a sexual orgy (unrestrained sexual encounter involving many people) at a religious festival (the Vaikasi Car Festival) that takes place in Arthanareeswarar Temple, for begetting a child. The local community claimed that in the book, Murugan denigrated the Arthanareeswarar Temple, the deity, Lord Arthanareeswarar, festivities relating to Vaikasi Car Festival and the women of the Kongu Vellala Gounder community. Some sections of the community believed that the facts in the story were not true and found that the sexual mores associated with the community in the book were offensive.

The Court was required to evaluate, whether the novel was obscene (Section 292 of Indian Penal Code, 1860 (IPC)), offensive to the community (Section 153A of IPC) and the religion (Section 295 of IPC); and whether the State had the responsibility to protect the writer from mob violence on account of his controversial book. The Court held that the book was neither offensive nor did it hurt community or religious sentiments. The Court also held that the State had a positive obligation to protect Murugan against the mob. It would be useful to look at the analysis of the Court in drawing these conclusions and see if we completely agree with it.

1. The Court relied on the standard for determining obscenity in Aveek Sarkar v. State of West Bengal wherein, it was held that what is lascivious/appealing to the prurient interest/depraved or corrupt has to be tested using the contemporary ‘community standards. The Court was of the view that the novel was not offensive by the current mores (para 150 and 151). The Court further relied on MF Hussain v. Rajkumar Pandey, (also decided by Justice Sanjay Kishan Kaul) wherein it was held, that while evaluating obscenity in a work, “the judge has to place himself in the position of the author in order to appreciate what the author really wishes to convey and thereafter, placing himself in the position of the reader in every age group in whose hand the book is likely to fall, arrive at a dispassionate conclusion.”It is necessary to mention here that the community standards test has been criticised by scholars, worldwide, as it is difficult to divorce subjective morality of an individual and ascertain what those standards are. This indeterminacy interferes with the ability of judges to apply these standards. There is established scholarship that says that judges cannot divorce themselves from their subjectivities while evaluating obscenity in work of art or literature and may often reinforce the moral norms of the majority in the society thus crushing the moral standards of the minority. In India, we have a mixed bag of judgments that address the issue of obscenity. Seeing the difficulty in application of the community standards test, it is noteworthy that the ultimate fate of a book, painting or a film is dependent on the morality of an individual judge. In fact, the Court had asked a pertinent question in the judgment, “Would it be desirable for the Courts to intervene or should it be left to the readers to learn for themselves what they think and feel of the issue in question?” (para 136) However, it eventually reinforced these standards by applying the existing precedents on obscenity. The Court added thatunder Section 292, it was required to first prove whether the novel was obscene at all and only if it was found to be obscene it should be tested within the parameters of exceptionsit would fall under. The Court found that the novel was not obscene. There was no need to evaluate its social character to save it from a ban. While drawing this conclusion, the Court stated that, “sex, per se, was not treated as undesirable, but was an integral part right from the existence of civilization” (para 149) and that “in our society, we seem to be more bogged down by conservative Victorian philosophy rather than draw inspiration from our own literature and scriptures.”The Court also said, “there are different kinds of books available on the shelves of book stores to be read by different age groups from different strata. If you do not like a book, simply close it.”(para 148) While this reflects a progressive view of the judges on sexual morality, we have reservations on court’s reliance on ancient literature to justify why sex and its depiction in art or literature is not obscene.
2. We appreciate the observations that the Court has made while determining whether the novel hurt community or religious sentiments. The Court has acknowledged the declining tolerance level of the society (para 154) and stated that “any contra view or social thinking is met at times with threats or violent behaviour” (para 142).
3. The Court addressed the issue of harassment of writers and artists at the hands of a mob and held that there should “be a presumption in favour of free speech and expression as envisaged under Article 19(1)(a) of the Constitution of India” and emphasized the need for the State to protect those who suffer from hostility of several sections of a society as a consequence of holding a different view (para 175).Citing MF Hussain v. Rajkumar Pandey, the Court said “freedom of speech has no meaning if there is no freedom after speech.”The Court has identified the problematic sphere of mob violence and how it affects freedom of expression. However, we do not agree with what the Court held subsequently.

Reproducing an extract of the judgment here, “There is bound to be a presumption in favour of free speech and expression as envisaged under Article 19(1)(a) of the Constitution of India unless a court of law finds it otherwise as falling within the domain of a reasonable restriction under Article 19(2) of the Constitution of India.” (para 184) The words, “unless a court of law finds it otherwise as falling within the domain of a reasonable restriction under Article 19(2) of the Constitution of India.” indicate that the judiciary has the power to determine whether a certain type of speech could be restricted under Article 19 (2) of the Constitution of India. This understanding is incorrect. The language of Article 19 (2) makes it clear that speech could only be restricted by ‘law’ and judiciary cannot assume the authority to restrict speech. It has the authority to decide the applicability and the constitutionality of the law that restricts speech. The relevant part of Article 19 (2) is reproduced below for reference. “(2) Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right….” The Court further acknowledged that “the State and the police authorities would not be the best ones to judge such literary and cultural issues, which are best left to the wisdom of the specialists in the field and thereafter, if need be, the Courts” (para 181). The Court thus issued directions to the Government to constitute an expert body to deal with situations arising from such conflicts of views so that an independent opinion is forthcoming, keeping in mind the law evolved by the judiciary(para 181). There are concerns with this mandate of the Court; firstly, constituting an expert body to resolve conflict of views will not serve any purpose unless there are guidelines to evaluate work. It is difficult to dissociate subjectivity and ascertain objective standards for evaluating offensiveness of literary or artistic work. Secondly, reliance on expert opinion and then courts completely disregards existing law. Under Section 95 of the Code of Criminal Procedure,1973, the Government has the power to declare forfeiture of works which, it considers in violation of section 153A or section 153B or section 292 or section 293 or section 295A of the Indian Penal Code, 1860. The power to evaluate a piece of writing or other work has already been given to the government. The Court has created a parallel mechanism for evaluation by giving directions to constitute an expert panel. In the event this mechanism fails to resolve the conflict, it is suggested that courts would then be approached to address the matter. This is in complete disregard of the powers of the Government under Section 95.

In the Murugan judgment, the Court has attempted to provide a narrow interpretation of what is considered obscene, emphasized the need for the society to be more tolerant and for State to protect those members of the society who, on account of their views, suffer at the hands of an intolerant society. It is for these reasons, the judgment is, undoubtedly a sound precedent for protection of speech in India. However, it is concerning to see that in drawing these conclusions, the Court has reinforced vague legal standards of obscenity and in that regard, it remains yet another addition to the mixed bag of judgments.