Kahiu v. Mutua
Closed Contracts Expression
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The proposition presented before the Supreme Court was whether, bearing in mind the concept of poetic license and liberty of perception and expression, a ‘poem’ or a ‘write-up’ can use the name of a historically respected personality by way of an allusion or symbol in an obscene manner. The Court rejected the idea that poetic license exists as a legal norm. It interpreted Section 292 of the Indian Penal Code which criminalizes publication and circulation of obscene content applying the ‘Contemporary Community Standards Test’, and held that this test may apply with greater vigor when the names of historically respected persons like Mahatma Gandhi are used as a medium for obscene words or acts.
The poem Gandhi Mele Bhetala (‘I met Gandhi’) was privately circulated in 1994 among the members of All India Bank Association Union, in a magazine named the ‘Bulletin’. The magazine was charged under Section 292 of the Indian Penal Code which punishes the publication, distribution circulation, importation, or exportation of obscene material. The Court chose to not quote excerpts from the poem. The poem is said to be a satirical and bold critique on those who do not follow the Gandhian ways of life and appears to be worded offensively.
The matter made its way through the India judicial system. Although the author chose not to appeal the Bombay High Court’s order, the publisher of the poem filed an appeal before the Supreme Court of India.
Justice Dipak Misra of the Supreme Court of India wrote the Court’s judgment on this matter. The appellant’s arguments were based on separating the contents of the poem from the offence of obscenity. Referring to several domestic precedents, he said the word ‘obscene’ is attributable to ‘lewd’, ‘repulsive’, ‘loathsome’. Reproducing the ruling by the Supreme Court of the United States in Roth v. United States, 354 U.S. 476, the appellant pleaded the Court to take notice of contemporary community standard test. The amicus curiae in the matter asserted that the freedom of artistic creation cannot be claimed where the work in question constitutes a debasement and debunking of a particular individual’s public standing.
The appellant’s multiple references to freedom of speech and expression under Article 19 of the Indian constitution and Article 10 of the European Convention on Human Rights was correspondingly rebutted by the limitations imposed on the right, by the opposing counsel.
The appellant contended that the poem does not use obscene words and it does not come within the ambit and sweep of Section 292 Indian Penal Code. However, the amicus curiae submitted that the poem would not have been obscene if it was referring to an ordinary man but the poem distinctly refers to Mahatma Gandhi, which enhances the conceptual perception of obscenity.
The Supreme Court asserted that the contemporary community standards test becomes more dynamic in its applicability if it entails a historic exalted personality such as Mahatma Gandhi.
The Court applied the contemporary community standards test conditionally and concluded that the poem falls within the ambit of offence of obscenity. However, since two decades had passed since the offence and because the publisher had apologized unconditionally upon hearing of the reactions of some members of the audience, the appellant was discharged. Since the author was not a part of this case, the Supreme Court said that this ruling would not apply to him.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision carves out a provisional application of the test, simultaneously formulating a new standard of historically respected personalities in determining the obscenity in an impugned piece. This creates a new tenet under article 19(2) which could possibly find shelter under public order concerns if not only under decency/morality restrictions.
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 carves out a mechanism to regulate the content in write ups, poems, or in other literary writings. The higher threshold laid down by the Court while applying the contemporary community test is likely to threaten artistic parody and comment.
Let us know if you notice errors or if the case analysis needs revision.