Content Regulation / Censorship, Political Expression, Religious Freedom
The Case of Hamad Al-Naqi (Kuwait Twitter Blasphemy Case)
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The Supreme Court dismissed a petition to ban a book stating that the language used in the book could not remotely be said to be obscene, and while the language may be disliked by some people, it is not a ground for a Constitutional Court to ban a literary work. The Petitioner filed a Writ Petition in the Supreme Court of India seeking a ban on a book titled ‘Meesha’ on the ground that a part of the book was obscene and offended women belonging to a particular faith. The dialogue in the book that was primarily alleged to be obscene was a dialogue where the protagonist’s friend, in a conversation with the protagonist, says that women will wear their best clothes when going to the temple to proclaim that they are ready to enter into sex.
The Petitioner filed a Petition under Article 32 of the Constitution of India in the Supreme Court of India seeking a ban on a book titled ‘Meesha’ (meaning, Moustache) which “appeared in a popular Malayalam weekly ‘Mathrubhumi’, published from Kozikhode, Kerala and circulated throughout the country and abroad” [para. 5]. The book was the narration of the life-story of protagonist Vavachan who became famous for his mustache that was symbolic of defiance to the upper caste persons of his village. The dialogue in the book that was primarily alleged to be obscene was a dialogue where Vavachan’s friend, in a conversation with Vavachan, says that women by wearing their best clothes when going to the temple are “unconsciously proclaiming that they are ready to enter into sex” [para. 23].
The Petition was filed against the Chief Editor of the Magazine, the Union of India and the State of Kerala. The Petitioner sought the seizure all copies of the magazine from July 2018 that contained the allegedly obscene paragraphs; directions to prevent any further publication/circulation of the novel in the form of a book or on the internet and lastly, prayed to issue directions to the Ministry of Information and Broadcasting, to “frame such guidelines as to prevent the recurrence of such instances which have the tendency to cause threat to the integrity of the society and the safety of women” [para. 11].
The Petitioner averred that the book was “insulting and derogatory to temple going women and that it hurt the sentiments of a particular faith/community” [para. 6]. The Petitioner stated that he approached the Court “singularly for the protection of the legitimate interest of the women community” [para. 7] as the book had a “tendency to propel the general public to view the women community as mere sexual and material objects” [para. 7] thus denying women their fundamental rights and putting them at risk.
Chief Justice of India Dipak Misra authored the judgment on behalf of the bench of three judges. The central issue before the Court was whether the allegedly obscene and defamatory portion of the book was an aberration of such magnitude that it could “potentiality disturb the public order, decency or morality,” [para. 24] thus inviting imposition of reasonable restrictions under Article 19(2) of the Constitution.
It was contended by the Petitioner that the editor of Mathrubhumi failed in his duty by “not editing or scrutinizing the portion of the book” and that the impugned writings were “not a manifestation of the freedom of expression but were collusive efforts aimed at dividing the society” by targeting the “virtues of pluralistic community, religion and gender balance” [para. 7]. Further, the impugned writings “defiled the places of worship and caused the public to look down upon them with contempt and ridicule, whereas worshiping of deities by visiting the temples with purity of body and mind is an integral part of the Hindu religion” [para. 8]. The material had the “potentiality to disturb the public order, decency or morality” which were grounds for the State to impose reasonable restrictions under Article 19(2) on the fundamental right of freedom of speech and expression.
The Court dismissed the Petition on the “touchstone of pragmatic realism” [para. 5] and on the principle that “creative voices cannot be stifled” [para. 27]. The Court held that it couldn’t be denied that the plots and sub-plots of the narrative were a manifestation of creativity. The characteristics of the protagonist may either evoke feelings of empathy from the reader of feelings of contempt but the “Court was not to be swayed by any kind of perception” [para. 35]. No matter which of these feelings are evoked in the Court’s mind, it could not be denied that the “dialogue to which the objection is raised is not an intrusion to create sensation but a facet of projection of the characters” [para. 36]. The Court held that the “language used in the dialogue cannot remotely be thought of as obscene and the concept of defamation does not arise” [para. 35]. The Court stated that a reader’s dislike towards a particular manner of expression would not warrant the Court to ban the book.
To conclude, the Court held that “the culture of banning books directly impacts the free flow of ideas” and “any direct or veiled censorship or ban of a book, unless defamatory or derogatory to any community for abject obscenity, would create unrest and disquiet among the intelligentsia” [para. 27]. The Court affirmed that we do not live in a “totalitarian regime but in a democratic nation, which permits the free exchange of ideas and liberty of thought and expression” [para. 27].
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Court expanded expression by reaffirming the principle that a reader’s grave dislike of a manner of expression does not warrant the banning of a literary work by a Court. In a strong statement, the Court held that the culture of banning books directly or indirectly impacts the free flow of ideas and is affront to the freedom of speech, thought and expression in a democracy.
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.
Since the judgment was delivered by a three-judge bench of the Supreme Court of India, it establishes a binding precedent for all two-judge benches of the Supreme Court, High Courts in all States, and lower courts throughout the country.
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