The Madras High Court’s Perumal Murugan judgment, which was delivered two days ago, has come in for some high praise from various quarters. Much of this praise is deserved. The High Court invalidated the clearly coercive “settlement” that the police had made Murugan sign in order to pacify the various groups that were agitating against him. It simultaneously dismissed a plea to ban his book, and also dismissed the criminal complaints against him. In short, it was a complete victory for the author.
One remarkable thing, of course, is that the judiciary’s past record on free speech makes such a straightforwardly sensible outcome a cause for celebration. This case might well have gone the way of Baragur Ramachandrappa, where the Supreme Court upheld a book ban on the basis that it hurt a local community’s sentiments. Like Murugan’s One Part Woman, the book in Baragur Ramachandrappa was a work of historical fiction, and the Supreme Court seized upon the fact that since many of its incidents could not be historically proven, there was evidence that the author had intentionally written it to hurt religious sentiments. The case might also have gone the way of Devidas Tuljapurkar, where a new obscenity standard was spun out of whole cloth. In fact, both these cases were cited before the Madras High Court, which wisely chose not to follow them. Its comprehensive vindication of the author’s right to speech must be acknowledged, and praised.
The Court’s issuance of guidelines requiring the police to protect threatened artists, on the basis that Article 21 requires positive protection of life and personal liberty by the State, is also an excellent step. The Court realises that ultimately, the gravest threats to speech occur not in the courtroom, but on the ground, and through police apathy. To what extent these guidelines will be implemented is, of course, another story, but that is out of the Court’s hands.
That said, certain parts of the judgment remain problematic. I have expressed some of my concerns in a piece for The Hindu. Regular readers of the blog will be aware of the recent trend of ‘judicial censorship’ (that is, people attempting to bypass established statutory procedures such as Ss. 95 and 96 CrPC, and directly approaching the Court to censor speech). To its credit, in its judgment, the Madras High Court on two occasions points out that the State had chosen not to ban the book under S. 95 CrPC. In my view, that should have been sufficient for the Court to dismiss the ‘banning’ plea outright as not maintainable, instead of treating it as simply another factor to consider in the overall judgment of whether or not the book had broken any laws. Unfortunately, the Court did not do so.
The extent of time that the Court spends on discussing the awards won by the book, and about how its basic theme was not about sex, but about social pressures on childless couples, is also worrisome. Let’s draw an important distinction, at this stage, between two kinds of judgments dealing with this issue. One line of judgments has the judge himself determining the literary and/or social worth of the book (or film) in question. The exemplar of this approach is Ranjit Udeshi vs State of Maharashtra, where Chief Justice Hidayatullah’s attempt at a literary critique of Lady Chatterley’s Lover will make most readers cringe in embarrassment. The other line of judgments sees the Court taking the opinion of experts in the field, and (at least to an extent) letting their views be formed or influenced by those opinions (Samaresh Bose is a good example of this line of cases, and is expressly cited by the Madras High Court).
Now, I imagine that all of us would feel far better if questions such as obscenity, and the literary and social worth of art, were determined by peers in the field, and not by judges. In that regard, the second line of cases is certainly more progressive than the first, and it’s important that the Madras High Court chose to go down that line. That doesn’t mean, however, that it is a satisfactory state of affairs. The history of art is a succession of revolts against not just the political establishment, but the artistic establishment as well. Consider, for instance, Edouard Manet’s Olympia or Luncheon on the Grass, which caused a huge scandal in the art world when they were first exhibited, but are now indispensable elements in the Canon. The impressionist painters were reviled by the art world, Joyce’s Ulysses was published to a virulent reaction… the list is endless. Radical art that recreates boundaries and destroys paradigms invariably faces an initial period of hostility from the critics. This is why, ultimately, the reliance upon blurb reviews and magazine critics, while certainly an improvement from Chief Justice Hidayatullah’s musings on Lawrence, sex, and the “machine age”, is no real shield for free speech at all.
Equally problematic is the assumption that the book must have a social purpose that goes beyond the depiction of sex. Admittedly, one can’t really criticise the High Court for this, since the Aveek Sarkar straitjacket requires a demonstration that the book was not primarily aimed at fulfilling a ‘prurient interest’. Once again, though, one looks in vain for reasoning about what, ultimately, is so wrong, illegal, or unconstitutional, about a book that celebrates and aestheticises sex, without claiming or attempting to serve a broader social purpose. Of a similar piece with this is the Court’s insistence that ancient Indian society was much more open about sex, before it was stifled by the colonial Victorians. This kind of argument – that frank conversation and depictions of sex are not at odds with Indian ‘traditions’ – is more suited to social reformers than to a Court, which necessarily ends up cherry-picking from history to suit its conclusions. Of course – and once again – the ‘contemporary community standards test’ in Aveek Sarkar perhaps binds the court to undertake this enquiry. However, the vagueness and internal contradictions of cases like Aveek Sarkar dilute its precedential force to a great extent (and Devidas Tuljapurkar is a great example of how the Court simply ignored Aveek Sarkar in fashioning a new obscenity test). For this reason, therefore, while I don’t think we can criticise the judgment for reproducing some of the deepest pathologies of our free speech jurisprudence, I think we must also withhold praise from at least those parts (and those parts do form a significant chunk of the reasoning).
One way of breaking out of those pathologies is to change the questions that a Court asks. Instead of asking what a book is (is it art? is it socially relevant? is it aimed at the prurient interest? does it hurt religious feelings? is it historically plausible), the questions should be reversed, asking only what a book isn’t. If it is shown that a book doesn’t contain hate speech (as understood in the context of Sections 295A and 153A of the IPC) and doesn’t incite to violence, then that should be the end of the inquiry; the judiciary should not proceed to any further examination of the book’s contents. For this, of course, we need to develop a rigorous and narrowly drawn jurisprudence of hate speech, which we haven’t yet. But what certainly needs to stop is the judiciary asking art to justify itself at the bar of aesthetics, social relevance, and politics.
Lastly, there is one aspect of the judgment that does call for criticism. In paragraphs 178 and 179, the Court observes:
“It would also do us well to refer to the recent judgment of the Supreme Court in Dr. Subramaniam Swamy vs. Union of India, (2016) 2 M.L.J. (Crl.) 542, which highlighted the sanctity and significance of freedom of speech and expression in a democracy. It was observed therein that free speech is the foundation of a democratic society, and the right to freedom of speech and expression includes the right to acquire information and to disseminate it, i.e., the right to publish and circulate one’s ideas… the Supreme Court expanded the jurisprudence on the concepts of constitutional fraternity vis-à-vis fundamental duties as constituting the core principles of our Constitution, whereby the sense of respect and dignity that is to be offered to another and his views, his beliefs and his practices are termed as a constitutional norm; fraternity thereby assuring the dignity of the individual and the collective unity of the nation… thus, whenever free speech and expression is sought to be given wings and let loose against the backdrop of one’s creativity, it must carry on its flight within the domain of constitutional morals, forever remembering that while individual opinions and forms of expression are critical to advancement and multifaceted national development, equally important is the safeguarding of the dignity and respectability of another and his cherished beliefs, for the latter must never be compromised on account of the freedom guaranteed under 19(1)(a), as the victim in such circumstances will be no less than the constitutional heartbeat of fraternity – The national brotherhood.”
To start with, it’s difficult to understand what relevance Subramaniam Swamy – a judgment about criminal defamation – has in this context. Secondly, Swamy might have done a lot of things, but it most certainly did not highlight “the sanctity and significance of freedom of speech… in a democracy” – quite the opposite. Most importantly, however, the Court’s endorsement of Swamy’s entirely invented doctrine of “constitutional fraternity” is extremely disturbing. As I’d argued previously, Swamy’s use of ‘fraternity’ to expand the scope of restrictions under Article 19(2) is not only constitutionally untethered, but a deep subversion of the constitutional structure. The constitutional framers introduced ‘fraternity’ into the Preamble because they understood a simple truth: in a society as stratified and unequal as ours, certain individuals and groups exercise such immense power over others, that they can, through their actions of ostracism and exclusion, render the guarantees of ‘liberty’ and ‘equality’ entirely illusory. Fraternity, then, was intended to complement liberty and equality, not to undermine either. For instance, towards the end of the framing, this how Ambedkar explained it:
“The third thing we must do is not to be content with mere political democracy. We must make our political democracy a social democracy as well. Political democracy cannot last unless there lies at the base of it social democracy. What does social democracy mean? It means a way of life which recognizes liberty, equality and fraternity as the principles of life. These principles of liberty, equality and fraternity are not to be treated as separate items in a trinity. They form a union of trinity in the sense that to divorce one from the other is to defeat the very purpose of democracy. Liberty cannot be divorced from equality, equality cannot be divorced from liberty. Nor can liberty and equality be divorced from fraternity. Without equality, liberty would produce the supremacy of the few over the many. Equality without liberty would kill individual initiative. Without fraternity, liberty would produce the supremacy of the few over the many. Equality without liberty would kill individual initiative. Without fraternity, liberty and equality could not become a natural course of things. It would require a constable to enforce them.”
In Subramaniam Swamy, the Supreme Court converted ‘fraternity’ from a shield that facilitated the enjoyment of liberty and equality, to a sword that cut down liberty. It framed fraternity in such vague terms, that if a judge is so minded, he can uphold restrictions on just about any kind of political or artistic speech on the ground that it impacts ‘national brotherhood’. This use of fraternity is not only contrary to the constitutional text and history, therefore, it is also extremely dangerous for the future of civil liberties.
The Madras High Court’s judgment is the first major free speech case decided after Subramaniam Swamy. It’s zeal in endorsing Swamy’s flawed understanding of ‘fraternity’ is both disappointing and saddening.