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“We Live Not In A Totalitarian Regime But In A Democratic Nation”; SC Calls Upon Readers of Literature To Be More Mature, Humane And Tolerant [Read Judgment]

Ashok Kini
5 Sep 2018 9:21 AM GMT
“We Live Not In A Totalitarian Regime But In A Democratic Nation”; SC Calls Upon Readers of Literature To Be More Mature, Humane And Tolerant [Read Judgment]
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‘The culture of banning books directly impacts the free flow of ideas and is an affront to the freedom of speech, thought and expression.’

Chief Justice Of India Dipak Misra, in a judgment authored by him dismissing a plea against Malayalam novel Meesha, has made many important observations which may play a vital role in the free speech debate in the country.

CJI Misra, through his judgment, reminded that we live not in a totalitarian regime, but in a democratic nation which permits free exchange of ideas and liberty of thought and expression. He also called upon the readers and admirers of literature and art to exhibit a certain degree of adherence to the unwritten codes of maturity, humanity and tolerance so that the freedom of expression reigns supreme and is not inhibited in any manner.

The judgment, prefaced with the comments on controversy in hands, proceeds by quoting two earlier judgments of the Supreme Court on ‘pragmatic realism’. The entire judgment, according to CJI Misra, is adjudicated on the touchstone of “pragmatic realism”, in the context of creativity.

The judgment also reproduces the allegations and concerns raised in the writ petition and paragraphs 14 to 22 of the judgment summarize the story of ‘Meesha’. It also quotes the conversation which had triggered the controversy. The issue dealt is “whether the aforesaid portion of the book ‘Meesha’ which the petitioner asserts to be derogatory to the women community is an aberration of such magnitude which requires the intervention of this Court on the ground that it has the potentiality to disturb the public order, decency or morality and whether it defames the women community, and, therefore, invites imposition of reasonable restriction under Article 19(2) of the Constitution”.

Referring to the context and narrative, the bench observed that the language used in the dialogue cannot remotely be thought of as obscene and that the concept of defamation does not arise.

On this aspect, the bench said: “Nurturing the idea that it is derogatory and hurtful to the temple going women would tantamount to pyramiding a superstructure without the infrastructure. If one understands the progression of character through events and situations, a keen reader will find that beneath the complex scenario, the urge is to defeat and to conquer and not to accept a denial. Both the facets are in the realm of obsession and the author allows the protagonist to rule his planet. His imagination encircles his world. A reader has the liberty to admire him or to sympathise. Either way, the dialogue to which the objection is raised is not an intrusion to create sensation. It is a facet of projection of the characters. It is, in a way, imaginative reality or as Pablo Picasso would like to put it, “Everything you can imagine is real”. A pervert reader may visualise absence of decency or morality or the presence of obscenity but they are really invisible.”

The bench further observed: “If books are banned on such allegations, there can be no creativity. Such interference by constitutional courts will cause the death of art. True it is, the freedom enjoyed by an author is not absolute, but before imposition of any restriction, the duty of the Court is to see whether there is really something that comes within the ambit and sweep of Article 19(2) of the Constitution.”

Quotable Quotes By CJI

The CJI has referred to various quotes by famous persons and has also made certain observations himself. Some of them may be read below.

  • Literature symbolizes freedom to express oneself in multitudinous ways. One should never forget that only when creativity is not choked, it helps the society to be able to accept the thoughts and ideas of a free mind.

  • Literature can act as a medium to connect to the readers only when creativity is not choked or smothered. The free flow of the stream of creativity knows no bounds and imagination brooks no limits. A writer or an artist or any person in the creative sphere has to think in an unfettered way free from the shackles that may hinder his musings and ruminations. The writers possess the freedom to express their views and imagination and readers too enjoy the freedom to perceive and imagine from their own viewpoint. Sans imagination, the thinking process is conditioned.

  • Creative voices cannot be stifled or silenced and intellectual freedom cannot be annihilated. 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 the fertile faculties of the human mind and eventually paving the path of literary pusillanimity. Ideas have wings.

  • If the wings of free flow of ideas and imagination are clipped, no work of art can be created. The culture of banning books directly impacts the free flow of ideas and is an affront to the freedom of speech, thought and expression. Any direct or veiled censorship or ban of book, unless defamatory or derogatory to any community for abject obscenity, would create unrest and disquiet among the intelligentsia by going beyond the bounds of intellectual tolerance and further creating danger to intellectual freedom thereby gradually resulting in "intellectual cowardice" which is said to be the greatest enemy of a writer, for it destroys the free spirit of the writer. It shall invite a chilling winter of discontent.

  • We must remember that we live not in a totalitarian regime but in a democratic nation which permits free exchange of ideas and liberty of thought and expression. It is only by defending the sacrosanct principles of free speech and expression or, to borrow the words of Justice Louis Brandeis, "the freedom to think as you will and to speak as you think" and by safeguarding the unfettered creative spirit and imagination of authors, writers, artists and persons in the creative field that we can preserve the basic tenets of our constitutional ideals and mature as a democratic society where the freedoms to read and write are valued and cherished.

  • The flag of democratic values and ideals of freedom and liberty has to be kept flying high at all costs and the Judiciary must remain committed to this spirit at all times unless they really and, we mean, really in the real sense of the term, run counter to what is prohibited in law. And, needless to emphasise that prohibition should not be allowed entry at someone’s fancy or view or perception.

  • A book should not be read in a fragmented manner. It has to be read as a whole. The language used, the ideas developed, the style adopted, the manner in which the characters are portrayed, the type of imagery taken aid of for depiction, the thematic subsidiary concepts projected and the nature of delineation of situations have to be understood from an objective point of view. There may be subjective perception of a book as regards its worth and evaluation but the said subjectivity cannot be allowed to enter into the legal arena for censorship or ban of a book.

  • The creativity and the author’s perception of the universe are to be borne in mind. What is true to poetry is applicable to novels or any creative writing. It has to be kept uppermost in mind that the imagination of a writer has to enjoy freedom. It cannot be asked to succumb to specifics. That will tantamount to imposition.

  • A writer should have free play with words, like a painter has it with colours. The passion of imagination cannot be directed. True it is, the final publication must not run counter to law but the application of the rigours of law has to also remain alive to the various aspects that have been accepted by the authorities of the Court. The craftsmanship of a writer deserves respect by acceptation of the concept of objective perceptibility.

The judgment ended by quoting the words of great writer and thinker Voltaire. “’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,” the CJI said while dismissing the plea.

Read the Judgment Here


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