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The Supreme Court, Mahatma Gandhi And The Silly New Standards For Obscenity

22/05/2015 8:13 AM IST | Updated 15/07/2016 8:25 AM IST
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Pigeons fly behind a silhouetted statue of Mahatma Gandhi adorned with garlands on Gandhi's birth anniversary in Amritsar, India Wednesday, Oct. 2, 2013. (AP Photo/Sanjeev Syal)

On 7 July, 2012, The Hindu published a sensational news story, authored by senior journalist P Sainath, about the embattled UB Group's shady dealings with the Bank of Maharashtra. The bank, the story went, was guilty of systematically weakening contractual conditions while sanctioning a loan of Rs 150 crore to a UB Group company, and there were real fears of the money being diverted to Kingfisher Airlines, which was quickly imploding. Sainath's source seems to have been an anonymous whistleblower, who the article quoted extensively.

While Sainath's Deep Throat was never publicly unmasked, it was soon to become clear who the powers that be in the bank thought it was-- Devidas Tuljapurkar, the general secretary of the employees' federation. Within months, an "internal chargesheet" was issued against him for not disclosing a criminal charge made against him in 1994, when as editor of the employees' union's private magazine, he allowed the publication of an "obscene" and "vulgar" poem called Gandhi Mala Bhetla (I Met Gandhi). Nineteen years later, the management saw the charge as an opportunity for settling scores. It's not clear what Tuljapurkar's fate finally was. However, an appeal from the 1994 case was decided this month, and highlighted once more just how oppressive our obscenity law is.

"[T]here is no such thing as a historically respected person. No one is entitled to our uncritical respect. Views differ on the legacy of every individual."

The Supreme Court had to decide whether Tuljapurkar and the poet, Vasant Gurjar, should stand trial in a criminal court for the "obscene publication", or whether the charge should be dropped. Incidentally, the poem in question was a satirical piece. Gandhi was shown visiting the poet and making caustic comments about his modern-day followers, who the poet felt were serving their own interests.

Rather than deciding whether the poem fell within the definition of obscenity under the Indian Penal Code, the court broadened its scope of enquiry to decide whether the name of a "historically respected personality" (in this case, Gandhi) could be used in an "obscene" manner. The judgment has over a 100 pages worth of quotes from other cases on obscenity. It even has a section titled "Mahatma Gandhi as perceived by this Court and certain others", in which the court reproduces passages from other judgments quoting Gandhi, presumably to demonstrate how "respected" he is.

At the end of this mind-numbing, insomnia-curing tour of quotations, the court's own analysis of the case is thin. In effect, it says that different, more stringent standards apply to speech related to personalities of the "historically respected" kind. They are entitled to more deference than the common man. It ends with the shocking line, "we do not intend to express any opinion that freedom of speech gives liberty to offend."

Firstly, there is no such thing as a historically respected person. No one is entitled to our uncritical respect. Views differ on the legacy of every individual. Mahatma Gandhi is a good example. Moreover, out of all the various forms of literature, poetry makes the least claims to literal interpretation. No one could believe that Gandhi actually visited the poet in 1983.

"One of the Supreme Court's constitutional functions is to declare the law. We should at the very least be trusted enough to be told what words the poet used."

The judgment also demonstrates what happens when judges attempt to delve into literary criticism. The recent controversies surrounding the French weekly Charlie Hebdo could be reasonably attributed to an inability to grasp the French satirical tradition. Similarly, the court hasn't made any attempt to decipher if the poem was obscene in the context of Marathi literature. Marathi writers have for centuries used earthy, vulgar language for social criticism. The 16th-century poet Eknath's lines on untouchability are peppered with vulgar allusions. More recently, Maharashtrian Dalit authors (most memorably Namdeo Dhasal) have employed the "language of the street" in biting, unrestrained critiques of the social order.

Also on full display is the sheer futility of our obscenity laws. The court goes out of its way to not itself sink into obscenity by quoting directly from the poem. But if obscenity is a crime, don't we deserve to know what the obscene words were, to avoid them in the future? Americans use a handy list of "seven dirty words" that cannot be spoken on television. This is how the Court quotes from the poem: "I met Gandhi on the road/ ______ in the name of _______/xxxx xxxx xxxx." One of the Supreme Court's constitutional functions is to declare the law. We should at the very least be trusted enough to be told what words the poet used.

A poet will soon be tried in a criminal court for nothing more than writing a poem more than 30 years ago. This is, to use a Gandhian phrase, a Himalayan blunder.

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