N. RADHAKRISHNAN @ RADHAKRISHNAN VARENICKALversusUNION OF INDIA AND OTHERS

                           [2018] 11 S.C.R. 1                               1


N. RADHAKRISHNAN @ RADHAKRISHNAN VARENICKAL                                 A
                                   v.
                 UNION OF INDIA AND OTHERS
                (Writ Petition (Civil) No. 904 of 2018)
                       SEPTEMBER 05, 2018                                   B
       [DIPAK MISRA, CJI, A. M. KHANWILKAR AND
                DR. D. Y. CHANDRACHUD, JJ.]
       Constitution of India – Art.19(2) – Freedom of speech and
expression – Imposition of reasonable restriction – Petitioner
seeking issuance of writ to ban the novel named ‘Meesha’ –                  C
Allegation that the said literary work insulting and derogatory to
the temple going women and has the potentiality to disturb the public
order, decency – Held: If books are banned on such allegations,
there can be no creativity – Such interference by constitutional courts
would lead to end of art – Freedom enjoyed by an author is not              D
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 Art.19(2) – Creativity and the author’s
perception of the universe are to be borne in mind – It cannot be
asked to succumb to specifics, else would tantamount to imposition
– Writer should have free play with words – Passion of imagination          E
cannot be directed – 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 – On facts, character of ‘Meesha’ as has been
projected shows the myriad experiences with different situations –
Appreciated from either point of view, it cannot be denied that it is       F
a manifestation of creativity – In view thereof, Writ petition dismissed.
      Dismissing the Writ Petition, the Court
      HELD: 1.1 Literature symbolizes freedom to express
oneself in multitudinous ways. Literature can act as a medium to
connect to the readers only when creativity is not choked or                G
smothered. The free flow of the stream of creativity knows no
bounds and imagination brooks no limits. A writer or an artist or
any person in the creative sphere has to think in an unfettered
way free from the shackles that may hinder his musings and
ruminations. The writers possess the freedom to express their
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                                   1
2            SUPREME COURT REPORTS                       [2018] 11 S.C.R.


A   views and imagination and readers too enjoy the freedom to
    perceive and imagine from their own viewpoint. Sans imagination,
    the thinking process is conditioned. [Paras 25, 26][14-A-C]
           1.2 Creative voices cannot be stifled or silenced and
    intellectual freedom cannot be annihilated. It is perilous to
B   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
C   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
D   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
E   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
F   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
G   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
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N. RADHAKRISHNAN @ RADHAKRISHNAN VARENICKAL                                3
               v. UNION OF INDIA

someone’s fancy or view or perception. [Para 28][15-B-C]                   A
       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          B
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]                                                    C

       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          D
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          E
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              F
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.          G
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            H
4            SUPREME COURT REPORTS                      [2018] 11 S.C.R.


A   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.
B
    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
C   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.
D
    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
E   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
F   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]
G         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]
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N. RADHAKRISHNAN @ RADHAKRISHNAN VARENICKAL                             5
               v. UNION OF INDIA

       1.9 It is to be borne in mind that a book should not be read     A
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
                                                                        B
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             C
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   D
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]
                                                                        E
      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             F
      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              G
      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.

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6              SUPREME COURT REPORTS                              [2018] 11 S.C.R.


A                               Case Law Reference
           [2015] 7 SCR 853                        referred to         Para 2
           [1980] 1 SCR 1081                       referred to         Para 3
           [1985] 3 Suppl. SCR 17                  referred to         Para 29
B          [1996] 2 Suppl. SCR 136                 referred to         Para 30
           (2018) 1 SCC 761                        referred to         Para 31
           (2018) 1 SCC 778                        referred to         Para 31
           2018 (4) SCALE 390                      referred to         Para 32
C
           [1989] 2 SCR 204                        referred to         Para 37
          CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.
    904 of 2018.
           Under Article 32 of the Constitution of India.
D         Ms. Pinky Anand, ASG, Jaideep Gupta, Sr. Adv. Gopal
    Sankaranarayanan, Ms. Usha Nandini. V, Ms. Bina Madhavan, Tom
    Joseph, Ms. Saudamini Sharma, Ms. Kirti Dua, G. Prakash, Jishnu M.L.,
    Mrs. Priyanka Prakash, Mrs. Beena Prakash, M. T. George, Anil Prathap,
    Advs. for the appearing parties.
E          The Judgment of the Court was delivered by
            DIPAK MISRA, CJI 1. A writer or an author, while choosing a
    mode of expression, be it a novel or a novella, an epic or an anthology of
    poems, a play or a playlet, a short story or a long one, an essay or a
    statement of description or, for that matter, some other form, has the
F   right to exercise his liberty to the fullest unless it falls foul of any prescribed
    law that is constitutionally valid. It is because freedom of expression is
    extremely dear to a civilized society. It holds it close to its heart and
    would abhorrently look at any step taken to create even the slightest
    concavity in the said freedom. It may be noted here that we are in this
    writ petition, preferred under Article 32 of the Constitution, dealing with
G
    creativity and its impact and further considering the prayer for banning a
    book on the foundation that a part of it is indecent and offends the
    sentiments of women of a particular faith. Having said this, we would
    like to refer to two authorities highlighting the importance of creativity
    and necessity of freedom of expression and how the principle of pragmatic
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N. RADHAKRISHNAN @ RADHAKRISHNAN VARENICKAL                                       7
       v. UNION OF INDIA [DIPAK MISRA, CJI]

realism assures the said creative independence as civilization, indubitably       A
a progressive one, perceives and eagerly desires for its accentuated
protection, nourishment and constant fostering. It is so because
curtailment of an author’s right to freedom of expression is a matter of
serious concern.
      2. In Devidas Ramachandra Tuljapurkar v. State of                           B
Maharashtra and others1, the Court, dealing with the meaning of the
words “poetic licence”, observed:-
         “… it can never remotely mean a licence as used or understood
         in the language of law. There is no authority who gives a licence
         to a poet. These are words from the realm of literature. The poet        C
         assumes his own freedom which is allowed to him by the
         fundamental concept of poetry. He is free to depart from reality;
         fly away from grammar; walk in glory by not following systematic
         metres; coin words at his own will; use archaic words to convey
         thoughts or attribute meanings; hide ideas beyond myths which
         can be absolutely unrealistic; totally pave a path where neither         D
         rhyme nor rhythm prevail; can put serious ideas in satires, ifferisms,
         notorious repartees; take aid of analogies, metaphors, similes in
         his own style, compare like “life with sandwiches that is consumed
         everyday” or “life is like peeling of an onion”, or “society is like a
         stew”; define ideas that can balloon into the sky never to come          E
         down; cause violence to logic at his own fancy; escape to the
         sphere of figurative truism; get engrossed in the “universal eye
         for resemblance”, and one can do nothing except writing a critical
         appreciation in his own manner and according to his understanding.
         When a poet says “I saw eternity yesterday night”, no reader
         would understand the term “eternity” in its prosaic sense. The           F
         Hamletian question has many a layer; each is free to confer a
         meaning; be it traditional or modern or individualistic. No one can
         stop a dramatist or a poet or a writer to write freely expressing
         his thoughts, and similarly none can stop the critics to give their
         comments whatever its worth. One may concentrate on Classical            G
         facets and one may think at a metaphysical level or concentrate
         on Romanticism as is understood in the poems of Keats, Byron or
         Shelley or one may dwell on Nature and write poems like William
         Wordsworth whose poems, say some, are didactic. One may also
1
    (2015) 6 SCC 1
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8               SUPREME COURT REPORTS                          [2018] 11 S.C.R.


A            venture to compose like Alexander Pope or Dryden or get into
             individual modernism like Ezra Pound, T.S. Eliot or Pablo Neruda.
             That is fundamentally what is meant by poetic licence.”
            3. In Raj Kapoor and others v. State and others2, Krishna Iyer,
    J., speaking for himself, while quashing the criminal proceedings initiated
B   against the petitioner therein for the production of the film, namely,
    ‘Satyam, Sivam, Sundaram’, observed:-
             “12. … Jurisprudentially speaking, law, in the sense of command
             to do or not to do, must be a reflection of the community’s cultural
             norms, not the State’s regimentation of aesthetic expression or
C            artistic creation. Here we will realise the superior jurisprudential
             value of dharma, which is a beautiful blend of the sustaining sense
             of morality, right conduct, society’s enlightened consensus and
             the binding force of norms so woven as against positive law in the
             Austinian sense, with an awesome halo and barren autonomy
             around the legislated text is fruitful area for creative exploration.
D            But morals made to measure by statute and court is risky operation
             with portentous impact on fundamental freedoms, and in our
             constitutional order the root principle is liberty of expression and
             its reasonable control with the limits of ‘public order, decency or
             morality’. Here, social dynamics guides legal dynamics in the
E            province of ‘policing’ art forms.”
                                                               [Emphasis added]
             4. The learned Judge further went on to say:-
             “15.       … The relation between Reality and Relativity must
F            haunt the Court’s evaluation of obscenity, expressed in society’s
             pervasive humanity, not law’s penal prescriptions. Social scientists
             and spiritual scientists will broadly agree that man lives not alone
             by mystic squints, ascetic chants and austere abnegation but by
             luscious love of Beauty, sensuous joy of companionship and
             moderate non-denial of normal demands of the flesh. Extremes
G            and excesses boomerang although some crazy artists and film
             directors do practise Oscar Wilde’s observation: ‘Moderation is a
             fatal thing. Nothing succeeds like excess’.
             16. All these add up to one conclusion that finality and infallibility
             are beyond courts which must interpret and administer the law
    2
H       (1980) 1 SCC 43
N. RADHAKRISHNAN @ RADHAKRISHNAN VARENICKAL                                     9
       v. UNION OF INDIA [DIPAK MISRA, CJI]

      with pragmatic realism, rather than romantic idealism or recluse          A
      extremism.”
                                                         [Emphasis added]
       5. We have referred to the aforesaid decisions in the beginning as
we intend to adjudicate the lis on the touchstone of “pragmatic realism”.
When we say “pragmatic realism”, it has to be understood in the context         B
of creativity, for the present Writ Petition preferred under Article 32 of
the Constitution seeks for issue of an appropriate writ to ban the novel,
namely, “Meesha” meaning Moustache which appeared in a popular
Malayalam weekly, “Mathrubhumi”, published from Kozikhode, Kerala
and circulated throughout the country and abroad.                               C
       6. It is averred by the petitioner that the said literary work is
insulting and derogatory to temple going women and it hurts the sentiments
of a particular faith/community. It is further asserted that the portion of
the book ‘Meesha’ which was published in ‘Mathrubhumi’ shows temple
going women in bad light and it has a disturbing effect on the community.       D
       7. It is contended that the editor of ‘Mathrubhumi’ has failed in
his duty by not editing or scrutinizing the portion of the book ‘Meesha’
which was published in the weekly. It is put forth by the petitioner that
he has approached this Court singularly for the protection of the legitimate
interest of the women community. The petitioner submits that such               E
writings which have appeared in ‘Mathrubhumi’ are not a manifestation
of the freedom of expression but are collusive efforts aimed at dividing
the society, for such imputations are discriminatory against women and
threaten the very fabric of the society which embodies within itself the
virtues of pluralistic community, religion and gender balance. The
petitioner avers that defamatory and degrading publications which cater         F
to perverted and communal minds need to be checked and nipped in the
bud as they have a tendency to propel the general public to view the
women community as mere sexual and material objects which, in turn,
denies the women community their fundamental rights and also
jeopardizes their safety and well-being.                                        G
      8. It is also alleged by the petitioner that the impugned incriminating
material appearing in ‘Mathrubhumi’ defiles the places of worship and
causes the public to look down upon them with contempt and ridicule,
whereas worshipping of deities by visiting the temples with purity of
body and mind is an integral part of the Hindu religion.
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10             SUPREME COURT REPORTS                          [2018] 11 S.C.R.


A           9. It is urged that the said publication in ‘Mathrubhumi’ has the
     proclivity and potentiality to disturb the public order, decency or morality
     and it defames the women community, all of which are grounds for the
     State to impose reasonable restrictions under Article 19(2) on the
     fundamental right of freedom of speech and expression. To buttress his
     stand, the petitioner has submitted that after the publication of the
B
     incriminating material, women visiting temples are subjected to ridicule
     and embarrassment through various social media platforms and instances
     such as these are bound to have an adverse effect on the liberty, freedom
     and empowerment of women.
             10. The petitioner has also averred that if such a work of literature
C    is not checked, it may trigger a ‘Charlie Hebdo’ kind of a backlash in our
     country and, therefore, it is necessary for this Court to lay down guidelines
     to regulate and prohibit, those who control/manage/publish both on print
     and electronic media platforms, from publishing such insensitive,
     incriminating and defamatory articles which could disrupt the peaceful
D    co-existence of various communities and religions in the country.
            11. In view of the aforesaid, the petitioner has prayed to this Court
     to issue a writ of Mandamus or any other writ/directions to the Respondent
     No. 1, the Union of India, the Respondent No. 2, the State of Kerala and
     the Respondent No. 4, the Chief Editor of ‘Mathrubhumi’ weekly, to
E    search and seize all copies of ‘Mathrubhumi’ weekly volume-2 dated
     11.07.2018 from all the States and/or issue a writ of prohibition or any
     other directions to the Respondents to prevent any further publication/
     circulation of the novel titled ‘Meesha’ in the form of a book or in any
     other form including the internet. The petitioner has also prayed to issue
     appropriate directions in the nature of mandamus or otherwise to the
F    Ministry of Information and Broadcasting, New Delhi, 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.
           12. It may be noted here that when the Writ Petition was listed on
G    02.08.2018, this Court, before issuing notice, deemed it appropriate to
     pass an order on the same date which reads as follows:-
           “Mr. M.T. George, learned counsel shall file within five days hence
           the central theme of the book and the three chapters, which have
           been published in a weekly newspaper, namely, Mathrubhumi.”
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N. RADHAKRISHNAN @ RADHAKRISHNAN VARENICKAL                                  11
       v. UNION OF INDIA [DIPAK MISRA, CJI]

       13. In pursuance of the aforesaid order of this Court, Mr. M.T.       A
George, learned counsel appearing on behalf of the Chief Editor of
‘Mathrubhumi’, the Respondent No. 4 herein, has filed the translated
copy of the central theme of the book ‘Meesha’ along with an English
translation of the three chapters of the novel.
        14. A perusal of the central theme of ‘Meesha’ reveals that the      B
book is a narration which revolves back to the 19th century and extends
to the present times with Vavachan alias Meesha (Moustache), Paviyam,
Chella and Sita as its central characters. Vavachan is one of the six
children of Paviyam and Chella and their family is engaged in agriculture
for a living. The novel begins with young Vavachan travelling in a boat
with his father for gathering fodder grass. On the way, Paviyam tries to     C
steal a bunch of raw bananas from a Pulaya (farm) but his attempt was
foiled by a young woman of the household, named, Sita. Vavachan at his
young age is stunned and baffled when he sees the half-naked body of
Sita. After this rendezvous, a storm hits and Paviyam, the father, along
with his son Vavachan lose their way. After the storm subsides and time      D
passes, Vavachan comes across two men who tell him that the world
was about to witness a big war and they were going to Malaya (town) to
escape a famine. Vavachan gets hooked with the idea of Malaya though
he had no idea as regards its location.
       15. As the narration proceeds, Vavachan along with his family         E
lived in constant hunger. One day, a theatre group comes to their village
from Malabar. The proprietor of the theatre group needs an actor with a
big and ferocious moustache to play the role of a policeman. But there
was no one in the village who was sporting a big moustache as it was
considered as act of defiance especially among the lower castes. The
proprietor of the theatre group comes across Vavachan who had never          F
shaven in his life and sported thick hair and a beard. The proprietor gave
Vavachan a tonsure treatment, that is to say, he shaved his head but
allowed a ferocious Moustache (Meesha) to remain. Thereafter,
Vavachan was put on stage where he only has to scream twice blood-
curdling ‘daa’ (you).                                                        G
      16. In response, people got scared and ran away from the scene
and Vavachan’s moustache, which he refused to shave off even after
the show, became a notorious legend. The upper caste people who
resented Vavachan’s Moustache ascribed to him every kind of crime,
even though he was innocent and just wanted to go to Malaya and marry        H
12            SUPREME COURT REPORTS                         [2018] 11 S.C.R.


A    the girl, Sita, who had bedazzled him when he was young and whom he
     had seen half-naked.
           17. When the period of famine and hunger struck, Vavachan, with
     armed men after him, fled from his village and hid in the fields of
     Kuttanadan where labyrinthine canals and marshes saw human presence
B    only during the farming season. Gradually, with the passage of time,
     Vavachan got immersed in the Kuttanadan environment where he
     encountered the myths, legends, folklore and superstitions ingrained among
     the people.
           18. Paviyam and Chella, the parents of Vavachan, die without
C    seeing him. But after Chella’s death, he returns to his native village and
     runs away with a book from Kalan and reads it fully. The stories of
     (Meesha) Vavachan alias Moustache get etched in the region’s sub-
     consciousness. The moustache becomes a legend himself with super
     natural powers. The landlords and the government become afraid that
     Meesha’s activities would hurt the farming activities in Kuttanadan and
D    they deploy a legendary sub-inspector named Thanu Linga Nadar to
     deal with Meesha. However, at that time, Kuttanadan witnessed a deluge
     and Nadar’s mysterious death increased Meesha’s terror. Subsequently,
     Meesha locks horns with a local strongman named Karumathara Ittichan
     and rumors went around that Meesha was killed in fight with Ittichan.
E           19. But Meesha had reached Kumarakom, an important place in
     northern Kuttanadan, where an Englishman called Brenen Sayip (Saheb)
     had installed a machine to pump out water from the fields of Kuttanadan.
     Refusing to divulge the secret of the machine, Brenen Saheb charges
     hefty amounts from the people. Avarachan, a man interested in science,
F    manages to steal the secret with the help of Meesha. Meesha works as
     a help of Baker Sayip who has vast fields and also conducts missionary
     work in the region. There Meesha befriends a fisherman called Ouseph,
     who was born to a Malayali woman from Baker Sayip’s father.
            20. Baker Sayip is a well-known crocodile hunter who was known
G    to have caused the extinction of crocodiles in the Vembanad Lake.
     However, the last crocodile is after Baker for revenge. In the end, it is
     Meesha who conquers the crocodile and due to this feat of Meesha,
     Baker Sayip becomes his bête noire. When Meesha realizes that Baker
     has turned against him, he escapes from there along with Ouseph.

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N. RADHAKRISHNAN @ RADHAKRISHNAN VARENICKAL                                     13
       v. UNION OF INDIA [DIPAK MISRA, CJI]

       21. Thereafter, Meesha comes across a prostitute, Kuttathi, who          A
had heard about the adventures of Meesha. One Kunjachan, the son of
the lake area’s owner troubles Kuttathi and is a big nuisance for her.
Meesha slams Kunjachan as well. In return, Kuttathi, with the assistance
of one Narayanan, who also sports a moustache, helps Meesha to find
his childhood crush Sita. Meesha saves Sita from a robber called Katta
                                                                                B
Pulavan. Thereupon, Meesha asks Sita to accompany him, but Sita is
unwilling and refuses to submit herself to Meesha.
        22. Thus, Vavachan alias Meesha, who is able to defeat everyone
in life, is defeated by a woman in the end.
       23. Presently, we may refer to and quote the dialogue from the           C
book “Meesha” that has impelled the petitioner to move this Court in the
instant writ petition. The English translation of the dialogue appears at
page twenty-six of the translated copy of the three chapters submitted
by Mr. M.T. George, learned counsel appearing for the Respondent No.
4, the Chief Editor of the weekly ‘Mathrubhumi’. It reads thus:-
                                                                                D
      “Why do these girls take bath and put on their best when they go
      to the temple?” a friend who used to join the morning walk until
      six months ago once asked.
      “To Pray”, I said.
      “No”, he said. “Look carefully, why do they need to put their best        E
      clothes in the most beautiful way to pray? They are unconsciously
      proclaiming that they are ready to enter into sex”, he said. I
      laughed.
      “Otherwise,” he continued, “why do they not come to the temple
      four or five days a month? They are letting people know that they         F
      are not ready for it. Especially, informing those Thirumenis
      (Brahmin priests) in the temple. Were they not the masters in
      these matters in the past?”
        24. The primary issue that emerges for consideration is whether
the aforesaid portion of the book ‘Meesha’ which the petitioner asserts         G
to be derogatory to the women community is an aberration of such
magnitude which requires the intervention of this Court on the ground
that it has the potentiality to disturb the public order, decency or morality
and whether it defames the women community, and, therefore, invites
imposition of reasonable restriction under Article 19(2) of the Constitution.
                                                                                H
14             SUPREME COURT REPORTS                            [2018] 11 S.C.R.


A          25. For deciding this question, we must advert to the fundamental
     idea behind art and literature and the liberalism associated with artistic
     expression. Literature symbolizes freedom to express oneself in
     multitudinous ways. One should never forget that only when creativity is
     not choked, it helps the society to be able to accept the thoughts and
     ideas of a free mind.
B
            26. Literature can act as a medium to connect to the readers only
     when creativity is not choked or smothered. The free flow of the stream
     of creativity knows no bounds and imagination brooks no limits. A writer
     or an artist or any person in the creative sphere has to think in an
     unfettered way free from the shackles that may hinder his musings and
C    ruminations. The writers possess the freedom to express their views
     and imagination and readers too enjoy the freedom to perceive and
     imagine from their own viewpoint. Sans imagination, the thinking process
     is conditioned.
            27. Creative voices cannot be stifled or silenced and intellectual
D    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
E    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
F    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. It
     shall invite a chilling winter of discontent. We must remember that we
     live not in a totalitarian regime but in a democratic nation which permits
G    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 of Justice Louis Brandeis, “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 we can preserve the basic tenets of our constitutional
H
N. RADHAKRISHNAN @ RADHAKRISHNAN VARENICKAL                                      15
       v. UNION OF INDIA [DIPAK MISRA, CJI]

ideals and mature as a democratic society where the freedoms to read             A
and write are valued and cherished.
        28. 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           B
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 and, we mean, really in the real sense
of the term, 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.                                                     C

       29. In Samaresh Bose and another v. Amal Mitra and another3,
the question that arose before this Court was whether the accused persons
had committed an offence under Section 292 IPC. In the said case, an
author had written a novel under the caption ‘Prajapati’ which was
published in ‘Sarodiya Desh’. The contention before the trial court              D
was that the novel was obscene and both the accused persons, namely,
the author and the publisher had sold, distributed, printed and exhibited
the same. The accused persons who faced trial stood convicted. Their
conviction was affirmed by the High Court. This Court, while dealing
with the issue for the purpose of deciding the question of obscenity in          E
any book, story or article, opined:-
         “29. … The decision of the court must necessarily be on an
         objective assessment of the book or story or article as a whole
         and with particular reference to the passages complained of in
         the book, story or article. The court must take an overall view of      F
         the matter complained of as obscene in the setting of the whole
         work, but the matter charged as obscene must also be considered
         by itself and separately to find out whether it is so gross and its
         obscenity so pronounced that it is likely to deprave and corrupt
         those whose minds are open to influence of this sort and into
         whose hands the book is likely to fall. Though the court must           G
         consider the question objectively with an open mind, yet in the
         matter of objective assessment the subjective attitude of the Judge
         hearing the matter is likely to influence, even though unconsciously,
3
    (1985) 4 SCC 289
                                                                                 H
16               SUPREME COURT REPORTS                          [2018] 11 S.C.R.


A             his mind and his decision on the question. A Judge with a puritan
              and prudish outlook may on the basis of an objective assessment
              of any book or story or article, consider the same to be obscene.
              It is possible that another Judge with a different kind of outlook
              may not consider the same book to be obscene on his objective
              assessment of the very same book. The concept of obscenity is
B
              moulded to a very great extent by the social outlook of the people
              who are generally expected to read the book. It is beyond dispute
              that the concept of obscenity usually differs from country to country
              depending on the standards of morality of contemporary society
              in different countries. In our opinion, in judging the question of
C             obscenity, the Judge in the first place should try to place himself in
              the position of the author and from the viewpoint of the author the
              Judge should try to understand what is it that the author seeks to
              convey and whether what the author conveys has any literary
              and artistic value. The Judge should thereafter place himself in
              the position of a reader of every age group in whose hands the
D
              book is likely to fall and should try to appreciate what kind of
              possible influence the book is likely to have in the minds of the
              readers. …”
              The Court, further analyzing the story of the novel, expressed
     thus:-
E
              “35. … If we place ourselves in the position of readers, who are
              likely to read this book—and we must not forget that in this class
              of readers there will probably be readers of both sexes and of all
              ages between teenagers and the aged—we feel that the readers
              as a class will read the book with a sense of shock and disgust,
F             and we do not think that any reader on reading this book would
              become depraved, debased and encouraged to lasciviousness. It
              is quite possible that they come across such characters and such
              situations in life and have faced them or may have to face them in
              life. On a very anxious consideration and after carefully applying
G             our judicial mind in making an objective assessment of the novel
              we do not think that it can be said with any assurance that the
              novel is obscene merely because slang and unconventional words
              have been used in the book in which there have been emphasis on
              sex and description of female bodies and there are the narrations
              of feelings, thoughts and actions in vulgar language. Some portions
H
N. RADHAKRISHNAN @ RADHAKRISHNAN VARENICKAL                                      17
       v. UNION OF INDIA [DIPAK MISRA, CJI]

         of the book may appear to be vulgar and readers of cultured and         A
         refined taste may feel shocked and disgusted. Equally in some
         portions, the words used and description given may not appear to
         be in proper taste. In some places there may have been an
         exhibition of bad taste leaving it to the readers of experience and
         maturity to draw the necessary inference but certainly not sufficient
                                                                                 B
         to bring home to the adolescents any suggestion which is depraving
         or lascivious.”
       30. In this regard, we may refer with profit to the pronouncement
in Bobby Art International and others v. Om Pal Singh Hoon and
others4, popularly known as “Bandit Queen case”. The Court analysed
the storyline, the humiliation faced by the female child, the torment faced      C
by her and, eventually, the innocent woman becoming a dreaded dacoit
and observed that to appreciate the story, the character of the person
portrayed had to be viewed. In that context, the Court held:-
         “27. First, the scene where she is humiliated, stripped naked,
         paraded, made to draw water from the well, within the circle of a       D
         hundred men. The exposure of her breasts and genitalia to those
         men is intended by those who strip her to demean her. The effect
         of so doing upon her could hardly have been better conveyed than
         by explicitly showing the scene. The object of doing so was not to
         titillate the cinemagoer’s lust but to arouse in him sympathy for       E
         the victim and disgust for the perpetrators. The revulsion that the
         Tribunal referred to was not at Phoolan Devi’s nudity but at the
         sadism and heartlessness of those who had stripped her naked to
         rob her of every shred of dignity. Nakedness does not always
         arouse the baser instinct. The reference by the Tribunal to the
         film ‘Schindler’s List’ was apt. There is a scene in it of rows of      F
         naked men and women, shown frontally, being led into the gas
         chambers of a Nazi concentration camp. Not only are they about
         to die but they have been stripped in their last moments of the
         basic dignity of human beings. Tears are a likely reaction; pity,
         horror and a fellow-feeling of shame are certain, except in the         G
         pervert who might be aroused. We do not censor to protect the
         pervert or to assuage the susceptibilities of the over-sensitive.
         ‘Bandit Queen’ tells a powerful human story and to that story the
         scene of Phoolan Devi’s enforced naked parade is central. It helps
4
    (1996) 4 SCC 1
                                                                                 H
18               SUPREME COURT REPORTS                           [2018] 11 S.C.R.


A             to explain why Phoolan Devi became what she did: her rage and
              vendetta against the society that had heaped indignities upon her.”
            The aforesaid, as is evident, appreciates the agonies and torture
     suffered by the protagonist and the nature of depiction of the scenes on
     celluloid and lays down the principle not to be guided by the sensitivity of
B    a pervert viewer. The principle of assuagement is not to be taken recourse
     to so as to make the idea of freedom of expression susceptible to suit the
     views and perceptions of a pervert thinker or viewer. Similarly, while
     reading a book, the setting, the constituents that constitute the elements
     of the character and the purpose are to be kept in view.
C           31. In this context, reference to the view expressed in Viacom 18
     Media Private Limited and others v. Union of India and others5
     would be apposite. In the said case, the challenge was to the ban imposed
     by four States for screening the movie ‘Padmaavat’. The Court quashed
     the notifications of banning on the bedrock that the expression of an idea
     through the medium of cinema which is a popular medium has its own
D    status and the artistic expression should not be tinkered with. The Court
     went on to observe that if intellectual prowess and natural or cultivated
     power of creation is inhibited without the permissible facet of law, the
     concept of creativity would pave the path of extinction; and when
     creativity dies, values of civilization corrode. The Court, in the said context,
E    reproduced a passage from an order in Nachiketa Walhekar v. Central
     Board of Film Certification6 which reads as under:-
              “Be it noted, a film or a drama or a novel or a book is a creation of
              art. An artist has his own freedom to express himself in a manner
              which is not prohibited in law and such prohibitions are not read
F             by implication to crucify the rights of expressive mind. The human
              history records that there are many authors who express their
              thoughts according to the choice of their words, phrases,
              expressions and also create characters who may look absolutely
              different than an ordinary man would conceive of. A thought
              provoking film should never mean that it has to be didactic or in
G             any way puritanical. It can be expressive and provoking the
              conscious or the sub-conscious thoughts of the viewer. If there
              has to be any limitation, that has to be as per the prescription in
              law.”
     5
         (2018) 1 SCC 761
     6
         (2018) 1 SCC 778
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N. RADHAKRISHNAN @ RADHAKRISHNAN VARENICKAL                                        19
       v. UNION OF INDIA [DIPAK MISRA, CJI]

       32. In Adarsh Cooperative Housing Society Ltd. v. Union of                  A
India and others7, the issue before this Court was whether screening
of feature film, which incorporated a perception with regard to a particular
situation, would affect the trial which involved the petitioner, the society
or the exercise of “error jurisdiction” of the appellate court. This Court
negatived the said contention and ruled that courts of law decide the lis
                                                                                   B
on the basis of the materials brought on record and not on the basis of
imagination as projected in the language of the theatre or a script on
celluloid. The Court opined thus:-
         “…there can be multitudinous modes, manners and methods to
         express a concept. One may choose the mode of silence to be
         visually eloquent and another may use the method of semi                  C
         melodramatic approach that will have impact. It is the individual
         thought and approach which cannot be curbed.”
And again:
         “…the doctrine of sub-judice may not be elevated to such an               D
         extent that some kind of reference or allusion to a member of a
         society would warrant the negation of the right to freedom of
         speech and expression which is an extremely cherished right
         enshrined under the Constitution. The moment the right to freedom
         of speech and expression is atrophied, not only the right but also
         the person having the right gets into a semi coma. We may hasten          E
         to add that the said right is not absolute but any restriction imposed
         thereon has to be extremely narrow and within reasonable
         parameters. In the case at hand, we are obligated to think that the
         grant of certificate by the CBFC, after consulting with the
         authorities of the Army, should dispel any apprehension of the            F
         members or the society.”
       33. 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         G
we say so, we are 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 Article 19(2) of
the Constitution. Here, we may remind ourselves of the expression used
7
    2018 (4 ) SCALE 390
                                                                                   H
20             SUPREME COURT REPORTS                          [2018] 11 S.C.R.


A    by George Orwell. It is free thinking and intellectual cowardice. Creative
     writing is contrary to intellectual cowardice and intellectual pusillanimity.
             34. Keeping in view the aforesaid principles, the objections raised
     as regards the contents of the novel and the language used which is
     reflected in the dialogue as reproduced hereinbefore are to be decided.
B    The grievance, as is reflectible, pertains to derogatory comments on
     women, especially when they go to temple. As stated earlier, 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
C    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
D    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. The author of “Wuthering Heights” expects
E    the readers to appreciate the morbidity that surrounds the character of
     “Heathcliff”. Similarly, the great poet of “Nala Damayanti” desired the
     readers to enjoy the description of the beauty of the princess appreciating
     the narrative but not to engage in pervert thinking.
            35. One has to understand and appreciate the characteristics of
F    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, as we find, can be
     perceived as certain sub-plots which evolved around the fundamental
     characteristics of the protagonist. The theory of consistency of character
G    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,
     we say, 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
H
N. RADHAKRISHNAN @ RADHAKRISHNAN VARENICKAL                                      21
       v. UNION OF INDIA [DIPAK MISRA, CJI]

reactions. Appreciated from either point of view, it cannot be denied            A
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
                                                                                 B
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              C
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.
       36. If one understands the progression of character through events
and situations, a keen reader will find that beneath the complex scenario,       D
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. It is, in a way, imaginative reality or as      E
Pablo Picasso would like to put it, “Everything you can imagine is
real”. A pervert reader may visualise absence of decency or morality
or the presence of obscenity but they are really invisible.
       37. If books are banned on such allegations, there can be no
creativity. Such interference by constitutional courts will cause the death      F
of art. True it is, 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) of the Constitution. At that time, the Court should remember what
has been said in S. Rangarajan v. P. Jagjivan Ram and others8 wherein,           G
while interpreting Article 19(2), this Court borrowed from the American
test of clear and present danger and observed:-
         “45. … Our commitment of freedom of expression demands that
         it cannot be suppressed unless the situations created by allowing
8
    (1989) 2 SCC 574
                                                                                 H
22                SUPREME COURT REPORTS                       [2018] 11 S.C.R.


A            the freedom are pressing and the community interest is
             endangered. The anticipated danger should not be remote,
             conjectural or far-fetched. It should have proximate and direct
             nexus with the expression. The expression of thought should be
             intrinsically dangerous to the public interest. In other words, the
             expression should be inseparably locked up with the action
B
             contemplated like the equivalent of a “spark in a power keg”.”
            38. To apply the said litmus test, 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
C    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.
D           39. Quite apart from the above, 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
E    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 that
     have been accepted by the authorities of the Court. The craftsmanship
     of a writer deserves respect by acceptation of the concept of objective
F    perceptibility.
            40. It ought to be remembered that eventually, what the great
     writer and thinker Voltaire had said ¯ “I may disapprove of what you
     say, but I will defend to the death your right to say it” becomes the
     laser beam for guidance when one talks about freedom of expression.
G
           41. In view of the aforesaid analysis, the writ petition, being devoid
     of merit, stands dismissed. However, there shall be no order as to costs.


     Nidhi Jain                                              Writ Petition dismissed.
H