N. Radhakrishnan @ Radhakrishnan Varenickal vs Union of India and Others

1.2 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. People 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 “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 can be preserved as the basic tenets of our constitutional ideals and mature as a democratic society where the freedoms to read and write are valued and cherished. [Para 27][14-D-H; 15-A]

1.3 The aforesaid also calls from 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 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 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. [Para 28][15-B-C]

1.4 It would usher in a perilous situation, if the constitutional courts, for the asking or on the basis of some allegation pertaining to scandalous effect, obstruct free speech, expression, creativity and imagination. It would lead to a state of intellectual repression of literary freedom. When it is said so, this Court is absolutely alive to the fact that the said right is not absolute but any restriction imposed thereon has to be extremely narrow and within the reasonable parameters as delineated by Art. 19(2). It is free thinking and intellectual cowardice. Creative writing is contrary to intellectual cowardice and intellectual pusillanimity. [Para 33][19-G-H; 20-A]

1.5 It is the duty of the Court to see whether such a dialogue was contrived to give rise to any kind of sensuous situation or projection of a class to humiliate them. A creative work has to be read with a matured spirit, catholicity of approach, objective tolerance and a sense of acceptability founded on reality that is differently projected but not with the obsessed idea of perversity that immediately connects one with the passion of didacticism or, for that matter, perception of puritanical attitude. A reader should have the sensibility to understand the situation and appreciate the character and not draw the conclusion that everything that is written is in bad taste and deliberately so done to pollute the young minds. On the contrary, he/she should elevate himself/herself as a co-walker with the author as if there is social link and intellectual connect. The feeling of perverse judging should be abandoned. A creative writing is expectant of empathetic reading. It is not averse to criticism but certainly does not tolerate unwarranted protest. [Para 34][20-B-E]

1.6 One has to understand and appreciate the

characteristics of the character and the plots and sub-plots that are woven in the story. The character of Meesha as has been projected shows the myriad experiences with different situations. The situations can be perceived as certain sub-plots which evolved around the fundamental characteristics of the protagonist. The theory of consistency of character as adopted by certain writers seems to have been maintained in the narrative. The situations and the treatment of situations may be different but the basic response of the protagonist remains unchanged. All these, can be from one reader’s point of view. To another reader, it may seem that the sub-plots have been enthusiastically contrived to bring in tempting situations to draw the protagonist in and to exposit chain reactions. Appreciated from either point of view, it cannot be denied that it is a manifestation of creativity. The perception of a character which is in consonance with the story invites empathetic readers to view him/her from a different perspective. A reader with mature sensibility would connect with the plight of the protagonist or may distance himself/herself by expressing the view that the projection is derogatory and hurtful to a section of people. He/she treats the novel as scandalous and offensive. The Court is not to be swayed by any kind of perception. One may have a grave dislike towards a particular manner of expression but that would not warrant for issue of a mandamus from the Court to ban the book or the publication. The language used in the dialogue cannot remotely be thought of as obscene. The concept of defamation does not arise. Nurturing the idea that it is derogatory and hurtful to the temple going women would tantamount to pyramiding a superstructure without the infrastructure. [Para 35] [20-F-H; 21-A-C]

1.7 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. A pervert reader may visualise absence of decency or morality or the presence of obscenity but they are really invisible. [Para 36][21-D-E]

1.8 If books are banned on such allegations, there can be no creativity. Such interference by constitutional courts will cause the death of art. 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). [Para 37][21-F-G]

1.9 It is to be borne in mind that 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. [Para 38][22-C]

1.10 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. The craftsmanship of a writer deserves respect by acceptation of the concept of objective perceptibility. [Para 39][22-D-F]

Devidas Ramachandra Tuljapurkar v. State of

Maharashtra and others (2015) 6 SCC 1 : [2015] 7 SCR 853; Raj Kapoor and others v. State and others (1980) 1 SCC 43 : [1980] 1 SCR 1081; Samaresh Bose and another v. Amal Mitra and another (1985) 4 SCC

289 : [1985] 3 Suppl. SCR 17; Bobby Art International and others v. Om Pal Singh Hoon and others (1996) 4 SCC 1 : [1996] 2 Suppl. SCR 136; Viacom 18 Media Private Limited and others v. Union of India and others (2018) 1 SCC 761: Nachiketa Walhekar v. Central Board of Film Certification (2018) 1 SCC 778; Adarsh Cooperative Housing Society Ltd. v. Union of India and others 2018 (4) SCALE 390; S. Rangarajan v. P. Jagjivan Ram and Others (1989) 2 SCC 574 : [1989]

2 SCR 204 – referred to.