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“47. What has been said with regard to public order and incitement to an offence equally applies here. Section 66A cannot possibly be said to create an offence which falls within the expression 'decency' or 'morality' in that what may be grossly offensive or annoying under the Section need not be obscene at all - in fact the word 'obscene' is conspicuous by its absence in Section 66A.” We have referred to the said passages only to understand that the two- Judge Bench has succinctly put what freedom of speech and expression mean. The Court has referred to certain judgments which we have already referred in that context. The Court was really not dealing with the obscenity test within the ambit and sweep of Section 292 IPC. The Court has opined that Section 66A of the IT Act, 2000 violates Article 19(1)(a) of the Constitution. There can be no doubt that there has been elevation of the concept in a different way, but it cannot form the foundation or base to sustain the argument of Mr. Subramanium that the freedom has to be given absolute and uncurtailed expanse without any boundaries of exceptions. We accept the proposition that there should not be narrow or condensed interpretation of freedom of speech and expression, but that does not mean that there cannot be any limit. Constriction is permissible under Article 19(2) of the Constitution and in Ranjit D. Udeshi (supra), the Constitution Bench has upheld the constitutional validity of Section 292 IPC.
Mahatma Gandhi as perceived by this Court and certain authors

73. To appreciate the prevalent test in this country as regards obscenity and the conceptual definition of poetry and what is really understood by poetic license, we have to reflect on the question that had been framed by this Court. We have used the expression ‘historically respected personalities’. It is true that the Constitution does not recognize any personality whether historically or otherwise as far as Article 19(1)(a) is concerned. But it would be incorrect to submit that if the concept of personality test is applied, a new ingredient to Section 292 IPC would be added which is in the realm of legislature and this Court should refrain from doing the same. At this juncture, it is seemly to state that Section 292 IPC uses the term ‘obscene’. While dealing with the facet of obscenity, this Court has evolved the test. The test evolved by this Court, which holds the field today is the ‘contemporary community standards test’. That does not really create an offence or add an ingredient to the offence as conceived by the legislature under Section 292 IPC. It is a test thought of by this Court to judge obscenity. The said test has been evolved by conceptual hermeneutics. We appreciate the anxiety of Mr. Subramanium, learned senior counsel appearing for the appellant, and we are also absolutely conscious that this Court cannot create an offence which is not there nor can it add an ingredient to it.

The poem in issue

100. Presently, to the poem in question we are referring to the same solely for the purpose of adjudging whether the order of framing of charge under Section 292 IPC is sustainable, regard being had to the law pertaining to charge, and whether the High Court has correctly applied the principle. The High Court has categorically opined that there is a prima facie case for proceeding against the accused under Section 292 IPC. It is submitted by Mr. Subramanium, learned senior counsel appearing for the appellant that the poem does not use obscene words and it does not come within the ambit and sweep of Section 292 IPC and the poet has expressed himself as he has a right to express his own thoughts in words. It is his further submission that the poem actually expresses the prevalent situation in certain arenas and the agony and anguish expressed by the poet through Gandhi and thus, the poem is surrealistic presentation. That apart, contends Mr. Subramanium, that the poem, as one reads as a whole, would show the image or the surrealistic voice of Mahatma Gandhi, is reflectible. Learned senior counsel would submit that apart from two to three stanzas, all other stanzas of the poem uses Gandhi, which may not have anything to do with the name of Mahatma Gandhi.

104. The principle that has been put forth by Mr. Subramanium can be broadly accepted, but we do not intend to express any opinion that freedom of speech gives liberty to offend. As far as the use of the name of historically respected personality is concerned, learned senior counsel, while submitting so, is making an endeavour to put the freedom of speech on the pedestal of an absolute concept. Freedom of speech and expression has to be given a broad canvas, but it has to have inherent limitations which are permissible within the constitutional parameters. We have already opined that freedom of speech and expression as enshrined under Article 19(1)(a) of the Constitution is not absolute in view of Article 19(2) of the Constitution. We reiterate the said right is a right of great value and transcends and with the passage of time and growth of culture, it has to pave the path of ascendancy, but it cannot be put in the compartment of absoluteness. There is constitutional limitation attached to it. In the context of obscenity, the provision enshrined under Section 292 IPC has its room to play. We have already opined that by bringing in a historically respected personality to the arena of Section 292 IPC, neither a new offence is created nor an ingredient is interpreted. The judicially evolved test, that is, “contemporary community standards test” is a parameter for adjudging obscenity, and in that context, the words used or spoken by a historically respected personality is a medium of communication through a poem or write-up or other form of artistic work gets signification. That makes the test applicable in a greater degree. To understand the same, a concrete example can be given. A playwright conceives a plot where Mahatma Gandhi, Vishwakavi Rabindra Nath Tagore, Sardar Vallabh Bhai Patel meet in heaven and they engage themselves in the discussion of their activities what they had undertaken when they lived in their human frame. In course of discussion, their conversation enters into the area of egoism, thereafter slowly graduates into the sphere of megalomania and eventually they start abusing each other and in the abuses they use obscene words. The question would be whether the dramatist can contend that he has used them as symbolic voices to echo the idea of human fallacy and it’s a creation of his imagination; and creativity has no limitation and, therefore, there is no obscenity. But, there is a pregnant one, the author has chosen historically respected persons as medium to put into their mouth obscene words and, ergo, the creativity melts into insignificance and obscenity merges into surface even if he had chosen a “target domain”. He in his approach has travelled into the field of perversity and moved away from the permissible “target domain”, for in the context the historically respected personality matters.