- (1.) The Controversy The seminal issue that spiralled in the course of hearing of this appeal centres around the question framed vide order dated 18.2.2015, for this Court thought it apposite to answer, whether the poem titled "Gandhi Mala Bhetala" ('I met Gandhi') in the magazine named the 'Bulletin' which was published, in July-August, 1994 issue, meant for private circulation amongst the members of All India Bank Association Union, could in the ultimate eventuate give rise to framing of charge under Section 292 IPC against the author, the publisher and the printer. The question framed reads thus:- "Regard being had to the importance of the matter, we had sought the assistance of Mr. Fali S. Nariman, learned senior counsel, to assist the Court, and he has gladly rendered. At the time of hearing, we have asked the learned senior counsel, learned Amicus Curiae, to assist the Court as regards the proposition whether in a write-up or a poem, keeping in view the concept and conception of poetic license and the liberty of perception and expression, use the name of a historically respected personality by way of allusion or symbol is permissible." Mr. Gopal Subramanium, learned senior counsel, appearing for the appellant, in his written note of submissions, has segregated the said question into five parts, namely, (a) whether there could be a reference to a historically respected personality; (b) could that reference be by way of allusion or symbol; (c) could that allusion be resorted to in a write-up or a poem; (d) whether the conception and concept of poetic license permits adopting an allusion; and (e) whether any of the above could involve ascribing words or acts to a historically reputed personality which could appear obscene to a reader. He has urged with solemn vehemence that when the author is not represented before the Court, adjudication on an important issue which fundamentally relates to freedom of thought and expression, would be inappropriate and a poem or a write-up is indeed a part of free speech and expression, as perceived under Article 19(1)(a) of the Constitution and that apart the expression "poetic licence" is neither a concept nor a conception because the idea of a poetic freedom is a guaranteed and an enforceable fundamental right and this Court should not detract and convert it into a permissive licence. Additionally, learned senior counsel has contended that quintessential liberty of perception and expression when placed in juxtaposition with "poetic licence", is inapposite since the expression "permissible" sounds a discordant note with "liberty of perception and expression", a sacrosanct fundamental right, integral to human dignity, thought, feeling, behaviour, expression and all jural concepts of human freedom guaranteed not only under the Constitution but even recognised under the International Covenants, for they can never be placed in the company or association of expressions such as "license" or "permissibility". Emphasising on the said facet, submitted Mr. Subramanium that the Constitution has liberated the citizens from 'license' and 'permissibility', which are expressions of disempowerment and the entire freedom struggle was centered around the concept of empowerment. There is a suggestion in the written note of submissions to place the matter before a Bench of five Judges as enshrined under Article 145(3) of the Constitution. In spite of the said submission, learned senior counsel, we must appreciably state, has copiously dealt with the issues that have emerged from the question, in his written note of submissions. Mr. Fali S. Nariman, learned senior counsel and amicus curiae supported the phraseology in the question with immense intellectual vigour, patience, perseverance and endeavour and submitted that the issue that this Court has thought of addressing is absolutely invulnerable and unalterable as the Constitution of India does not recognise absolute freedom and Article 19(2) of the Constitution regulates the same and Section 292 IPC being a provision which is saved by Article 19(2), the presence or absence of the author is immaterial; what is to be seen is whether the poem prima facie exhibits obscenity, especially, in the context of Mahatma Gandhi, the "Father of the Nation", as the identity of the historically respected personality is absolutely clear and there is no scintilla of doubt in the mind of any average reader. Learned amicus curiae would submit that the question deserves to be dealt with and answered in proper perspective. Clarification of the question framed
(2.) We are obligated to clarify the position. It is apt to state here the question framed by us has to be contextually understood. The question was framed in the factual matrix of the case. The proposition presented is that despite all the poetic licence and liberty of perception and expression, whether 'poem' or 'write-up' can use the name of a historically respected personality by way of an allusion or symbol in an obscene manner. "Historically respected personality" was used in the backdrop of the use of the name of Mahatma Gandhi. When the name of such a respected personality is used as an allusion or symbol, and language is revoltingly suggestive whether that is likely to come within the perceived ambit and sweep of Section 292 IPC, whether it is permissible. We shall dwell upon this facet when we will discuss the poem in a prima facie manner, for the purpose of scrutinising the order framing charge; and we shall also deal with the submission of Mr. Subramanium, which has been assiduously put forth by him that the name of Gandhi has been used as a surrealistic voice and hence, the poet is entitled to use the language as a medium of expression in the poem. We do not intend to catalogue names of historically respected personalities as that is not an issue in this case. Here the case rests on the poem titled "I met Gandhi". As far as the words "poetic license", are concerned, it can never remotely mean a license as used or understood in the language of law. There is no authority who gives a license to a poet. These are words from the realm of literature. The poet assumes his own freedom which is allowed to him by the fundamental concept of poetry. He is free to depart from the reality; fly away from grammar; walk in glory by not following the 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 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 down; cause violence to logic at his own fancy; escape to the sphere of figurative truism; get engrossed in "universal eye for resemblance", and one can do nothing except writing a critical appreciation in his own manner and according to his understanding. When the poet says "I saw eternity yesterday night", no reader would understand the term 'eternity' in its prosaic sense. The 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 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 the nature and write poems like William Wordsworth whose poems, say some, are as didactic. One may also 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 license.
(3.) We may slightly delve into the area in Sanskrit literature that gave immense emphasis on aesthetics. The concept of rasa though mentioned in the Vedas and by Valmiki gets consummate expression in all its complexity with Bharata when he introduces it to explain aesthetic experience. "Vibhavanubhav vyabhichari sanyogadrasnishpati". Bharata discusses in detail the contributing factors like vibhavas, anubhavas, vybhicharibhavas and sthayibhavas. Dandin emphasises on lucidity, sweetness, richness and grandeur to basically constitute poetry and that is why it is said "Dandinha Padlalityam". Some critics like Vamana, stressing on soul of poetry perceive 'riti' as "Ritiraatma kavyasya". Some also subscribe to the theory that 'rasa' gets expressed through dhvani. There are thinkers who compare writings of T.S. Eliot, when he states poetic delineation of sentiments and feelings, to have the potentiality of being associated with the 'element of surprise' which is essential to poetry, and there he is akin to Indian poeticians like Kuntaka who called poetry 'vakrokti' which he explains as "vaidagdhyabhangibhaniti" a mode of expression depending on the peculiar turn given to it by the skill of the poet. Some emphasise on "best words used in best order" so that poem can attain style and elevation. To put it differently, the 'poetic licence' can have individual features, deviate from norm, may form collective characteristics or it may have a linguistic freedom wider than a syntax sentence compass.;