Artistic Expression, Indecency / Obscenity
Barnes v. Glen Theatre, Inc.
Closed Expands Expression
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The Madras High Court held that the findings of a ‘Peace Committee’ of a local administration, which had ordered an author to issue an unreserved apology, were not binding, and that criminal charges should not proceed. The case had come about because members of a religious community were offended by passages in a book which depicted a festival as sexually promiscuous. The local administration’s Peace Committee had ordered the author to issue an unconditional apology and separately, petitions had been brought seeking criminal action against the author and against the publisher.
The case concerns the novel, Mathorubagan (One-Part Woman), written by Perumal Murugan, which describes the travails of a childless couple and the ensuing social stigma. Certain portions of the novel describe the historical temple chariot festival at Tiruchengode, an ancient Hindu temple, depicting it as one where the rules of sexual conduct are relaxed for one night and all consenting men and women may engage in sexual activity irrespective of their marital status. This is recommended to the husband in the novel, Kali, as a means of ensuring that his wife, Ponna, gets pregnant and disguising his impotence. Eventually, Ponna is taken to the festival without Kali’s consent and she consents to having sex with one young man.
This “sexual permissiveness” became the root of agitations against the novel, which was regarded as falsely representing the history of the practices of the community and generally, failing the test of obscenity. The local authorities started peace initiatives, summonsing the author to participate in them. The resulting Settlement order required Murugan to issue an unconditional apology. He agreed out of fear for his family’s well-being.
Murugan then instituted proceedings at the High Court. His counsel averred that the settlement had no binding effect and violated Murugan’s right to freedom of expression. He sought to distinguish between a historical work with detailed records and literature based on folklore, capturing human emotions. He averred that the novel belonged to the latter category and must not be held to the same standard of historical truth. In parallel with these proceedings, other petitioners demanded that legal action be taken against Murugan for obscenity and offending the sentiments of a community. They demanded that a police case to be registered against both Murugan and his publisher.
Chief Justice Kaul delivered the opinion of the Court, with which Justice Sathyanarayana concurred. The Court noted that the “community standards” test suggested that the novel was not obscene by contemporary standards. The novel did not appeal to the prurient interests of individuals but described the emotional travails of a childless couple, and should be viewed as such. The Court noted that those objecting may choose to not read the book; banning a book merely on the grounds that it offended the sensitivity of certain people was not a solution. The Court considered that the question of obscenity should be viewed on the basis of how it is perceived by society at large. The fact that the book had received numerous awards was indicative of its social perception.
The Court further accepted the petitioners’ contention that the novel did not seek to represent the practice as historical truth and clearly suggests that the practices described are based on folklore. Therefore, no legal action against the author and publisher was warranted.
The Court allowed the publisher and author’s writ petition which averred that the Peace Committee settlement was not binding. The Court noted that the State had a positive duty to protect controversial speech and that initiatives by a Peace Committee must not violate the right to freedom of expression. The Court recommended the constitution of a body of experts consisting of qualified persons with a background in arts and literature to assess the conflict of views on artistic expression. The Court held furthermore that the State was duty-bound to protect artistic expression from threats by non-State actors.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
By holding that there is a presumption in favour of freedom of expression unless a Court holds otherwise, and explaining that the views of a small community are not determinative in deciding obscenity, this case expands freedom of expression.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
The decision of a High Court is binding on all future decisions of the High Court, unless overruled by a bigger coram. The High Court is a constitutional court and its decision has persuasive value across other High Courts and the Supreme Court.
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