Hon’ble CJI Dipak Misra shall retire in less than 30 days. His words on word-craft shall be remembered too as his ‘last words’.
“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 right to exercise his liberty to the fullest unless it falls foul of any prescribed law that is constitutionally valid. We are in this Writ Petition, preferred under Article 32 of the Constitution, dealing with 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.
In Raj Kapoor, (1980) 1 SCC 43 Krishna Iyer, J., speaking for himself, while quashing the criminal proceedings initiated against the Petitioner therein for the production of the film, namely, ‘Satyam, Sivam, Sundaram’, observed: “finality and infallibility are beyond Courts which must interpret and administer the law with pragmatic realism, rather than romantic idealism or recluse extremism.”
When we say ‘pragmatic realism’, it has to be understood in the context 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.
Petitioner averred that if such a work of literature 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 co-existence of various communities and religions.
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.
In Viacom Media Private Limited, (2018) 1 SCC 761 the challenge was to the ban imposed by 4 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 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.
It would usher in a perilous situation, if 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 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.
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 a 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 the readers to appreciate the morbidity that surrounds the character of ‘Heathcliff’.
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 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 cannot be asked to succumb to specifics.“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.
In view of the aforesaid analysis, the Writ Petition, being devoid of merit, stands dismissed. However, there shall be no order as to costs.”
– Hon’ble Chief Justice of India Dipak Misra, N Radhakrishnan v. Union of India , [Writ Petition (Civil) No. 904 of 2018]