By Sneha Baul, CLC, Faculty of Law, Delhi University.

The Part III of the Constitution of India enumerates the Fundamental Rights. Freedom of speech and expression comes under “Right to particular freedom”. The rationale of its validity is that the fundamental rights are basic structure of the Constitution. Any law that abrogates or abridges such rights would be violative of the doctrine of basic structure.[1] Article 19(1)(a) says that all the citizens shall have the right to freedom of speech and expression.

Theoretically, India is a liberal and democratic country which guarantees freedom of speech and expression, but practically it has become a breeding place of extremists who keep on invading this right’s realms. Therefore the issue raised is, should our artistic works and opinions be censored every time to pacify the blood thirsty religious fanatics and political extremists? Freedom of speech and expression is one thing, while freedom after speech/expression is another. It should be a continuous and dynamic phenomenon to be in line with the construction of Article 19(1)(a).

The sole limitation of freedom of speech is that it should not be against public decency and morality.[2]

  1. SCOPE OF FREEDOM OF EXPRESSION:

Freedom of Speech and Expression is the essence of liberty. Free speech is the ability to think, speak and express freely. Freedom of speech/expression is the right to express one’s notions and perceptions freely by writing, printing, pictures or any other mode. It is the sign of a free society.

The Indian Constitution provides for certain restrictions. Correspondingly, Article 19(2) of The Constitution of India says, “ Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, insofar as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interest of sovereignty and integrity of India, the security of the State, friendly relations with foreign states, public order, decency or morality, or in relation contempt of court, defamation or incitement to an offence.”  The Constitution neither defines the term reasonable restrictions nor is there any standard or measure to ascertain the reasonableness on the exercise of the right.[3] The duty of interpretation is casted on the judiciary to ensure that the State does not impose any unreasonable restriction.

The bare reading of clause 1 above shows that obscenity which is offensive to public decency and morality is outside the purview of the protection of free speech and expression. Thus any interpretation of obscenity in the context of criminal offences must be in consonance with the constitutional guarantee of freedom of expression of idea that is conventional or shared by the majority. But in practice, it is mostly the ideas which question or challenge prevailing standards observed by the majority that face the greatest threat and require the greatest protection. In the wake of it, freedom of expression suffers.

The test of obscenity was first ascertained in common law in the case Regina v. Hicklin[4], where it was held, “ The test of obscenity is whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall.”

The general law of obscenity in India is given under section 292 of Indian Penal Code, 1860 and section 67 of Information Technology Act, 2000. The Indian provisions for obscenity have evolved out of the common law. Hicklin’s test was considered by the apex court in the case Ranjit D. Udeshi v. State of Maharashtra[5]. It was the case of banning of the book- Lady Chatterley’s Lover. Nudity in art and literature is not evidence of obscenity. It was emphasized that the work as a whole must be considered by itself and separately to find out whether it is so gross to be obscene and is likely to deprave and corrupt those whose minds are open to influences of this sort.

Thus, the freedom of expression should not suffer merely on the arbitrary speculation of treating art into obscenity. Where art and obscenity are close to being synonymous, somehow art must supersede as to throw the obscenity aside or the obscenity so insignificant that it may be overlooked.

  1. FREEDOM OF EXPRESSION AND ITS ELEMENTS:

Freedom of Expression is the right of every citizen, this right shall include freedom to seek, receive and impart information and notions, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media.

3.1 Liberty of Press:

The constitution does not specifically mention liberty of press but it is implied from Article 19(1) (a). In Romesh Thapar v. State of Madras[6], Patanjali Shastri, CJ observed: “For without free political discussion no public education, so essential for the proper functioning of the process of popular government, is possible.”

Press will also include publication of books, journals, etc. Imposition of pre-censorship on publication is, unless justified under clause 2, violative of freedom of speech and expression. Freedom of speech and expression is inclusive of freedom of circulation and dissemination of information or ideas. Also maybe dubbed as Freedom after speech and expression.

There has been much controversy in India about Wendy Doniger’s book, The Hindus: An Alternative History. Scholars and intellectuals across the board are critical and worried about Penguin’s decision to withdraw the book and pulp the remaining copies. The book critically evaluates Hinduism. Her style is playful besides also being scholarly. When scripture like kamasutra has evolved from India, the Ajanta and Ellora caves are an live instance of the acceptance of such so called censored matter in our present society and pre historic society, then why is there any ban on a book dealing with such sensitive issues. It cannot be termed to be obscene and it simply highlights the parameters of Hinduism which are not better known. Its purpose is not to deprave the minds of the people who are likely having regard to all relevant circumstances to read, see or hear the matter contained or embodies in it.

In judging as to whether a particular work is obscene, regard must be had to contemporary standards and national standards.

3.2 Artistic/ Dramatic freedom:

Work of art also comes under the purview of Freedom of expression. The work of art must have aesthetic or artistic touch and should not seem to have been taken with the sole purpose of attracting viewers who have corrupt minds. In Ranjit Udeshi’s case(supra) the court held that there should be a purpose behind the illustration of intimate art or nude figure, without that purpose it will be considered as obscene.

In Maqbool Fida Hussain v. Raj Kumar Pandey[7], The painter M.F. Hussain’s painting of alleged depicting of ‘Bharat Mata’ in semi nude. The court held that the said painting do not fall under the purview of section 292 IPC. It was held that even though the depiction could be embarrassing for the naked portrayal of a concept but it is not obscene as it is not capable of depraving the mind of a perverted person and also the painting does not lose its artistic value.

There are certain other artworks which provide a glimpse of the ancient Indian art. The Paintings of Leonardo Da Vinci and the sculpture of Michealangelo has celebrated the nude form of man and woman which is natural and acceptable. Other than this the literature of India both religious and secular is full of sexual allusions and symbolisms.

3.3 Demonstrations:

Demonstrations being visible representations of ideas would be protected as a form of speech or expression provided they are not violent and disorderly. But a strike is not included within the ambit of freedom of speech and expression. Similarly, drawing of cartoons and caricatures must not be considered outside the purview of Article 19 (1) (a). One such instance was when recently, Jadavpur University (JU) professor  had to pay a heavy price for circulating anti-Mamata Banerjee content on the Internet but for that controversial act, his students are reaping a dividend. The professor was beaten up by a group of Trinamool Congress activists and later sent behind bars for being critical of some of Banerjee’s political decisions.

  1. CONCLUSION

Public Decency and morality is outside the purview of the protection of free speech and expression, and thus a balance should be made between freedom of speech and expression and public decency and morality. Neither the former must never come in the way of the latter and should not substantially transgress the latter. Nor the latter should invade the former due to political and religious dominance.

[1] State of W.B. V. Committee for Protection of Democratic Rights, (2010) 3 SCC 571.

[2] S. Khushboo v. Kanniammal, AIR 2010 SC 3196 (3208)

[3] State of Madras v. V.G. Row, AIR 1952 SC 196

[4] L.R. 2 Q.B. 360 1968

[5] AIR 1965 SC 881

[6] AIR 1950 SC 124

[7] 2008 CrLJ 4107