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Case No: 2074 0f 2002

Obscenity, in general, refers to the behaviour or language that violates or offends public ethics or morality perpetrated either by indecent behaviour or indecent publication. What constitutes obscene has been contested and debated for many years. The term obscenity differs from society to society as what is immoral for one may not be immoral for another. Although freedom of speech and expression is a human right yet there are some reasonable restrictions to safeguard public and foreign relations, decency and morality, etc. Obscenity is considered an offence in India under the Indian Penal Code (IPC) Section 292[1]. According to the Oxford dictionary, the term obscenity means “offensive or disgusting by accepted standards of morality and decency”.

Facts of the Case

The case’s facts are simple and straightforward. The dilemma occurs when Mr. Vasant Dattatreya Gujar’s Marathi poetry “Gandhi Mala Bhetala” was published by a distributor Devidas Ramachandra Tuljapurkar in a journal intended for private circulation among the members of the All-India Bank Association Union. A member of the Patit Pawan Sangathan i.e., Mr.V.V.Anaskar determined that certain words and phrases in the poem were inappropriate or offensive and that they deserved some harsh punishments. Some of these offending phrases are, “I saw Gandhi masturbating in the memory of Hema Malini on a public street; I saw Gandhi at Bhagwan Rajneesh’s meditation session saying satisfaction through sex”. Mr. V.V.Anaskar then filed a complaint under Sections 153-A and 153-B read with Section 34, and Section 292 of Indian Penal Code (IPC),1860 [2]. The Chief Magistrate in Latur rejected all charges except one under Section 292 [3] of the Indian Penal Code, 1860 after hearing the evidence. Then the matter was dismissed by the High Court of Bombay. Eventually, the matter was taken to the Supreme Court of India via a Special Leave Petition. The poet defended himself by claiming the right to freedom of speech and expression protected under Article 19 [4] of the Indian Constitution, and also by explaining the fact that his poem mourned the loss of Gandhian values and was not meant to mock or defame him. To reach the final decision, Justice Dipak Misra as well as Justice Prafulla C. Pant referred back to the case of Ranjit Udeshi v. The State of Maharashtra.

Contention of the Appellant

The appellant’s arguments focused on isolating the poem’s content from the obscenity offence. He attributed the word obscene to ‘lewd’, ‘repulsive’, and ‘loathsome’, citing various domestic predecessors. The appellant begged the Court to take notice of the contemporary community standard test, citing the United States’ Supreme Court’s decision in Roth v. The United States, 354 U.S. 476[5]. The amicus curiae in the case argued that artistic freedom cannot be invoked when the work in question degrades and debunks a specific individual’s public reputation. The appellant argued that the poetry does not contain obscene terms and hence does not fall under Section 292 of the Indian Penal Code’s range and scope.

Contention of the Respondent

On the other hand, the respondent argued that the poem’s purpose is to agitate people and the court should look after its message. He also argued that if the person has gone down to the mysteries or path of history then it should not be a reason to exclude him from becoming anybody’s ruse of imagination. He also mentioned all those phrases which are offensive in nature and defame the image of Mahatma Gandhi. Multiple references by the appellant to freedom of speech and expression under Article 19[6]of the Indian constitution and Article 10[7] of the European Convention on Human Rights were countered by the opposing counsel on this right as reasonable restrictions.

Judgement of the Court

The Supreme Court assessed the test on the threshold of right to articulation and debate in a clear verdict on Devidas Ramchandra Tuljapurkar’s dissemination of a poem on Mahatma Gandhi, convicted with an offence under section 292 of the Indian Penal Code (IPC). This decision provides a sensible message that under the guise of freedom of speech and expression, no one can take those liberties away from him and that obviously, it cannot give anyone the license to offend. The Supreme Court has refused to dismiss Tuljapurkar’s charges for allegedly posting a lewd and indecent poem about Mahatma Gandhi in 1994. The bank representative who had challenged the validity of the allegation against him for releasing the poetry in an in-house magazine of which he was an editorial manager was excused by the apex court. Judges Dipak Misra and Prafulla C Pant held that obscene language cannot be used for “verifiably esteemed figures” such as Mahatma Gandhi. The amicus curiae, on the other hand, even said the poem might not have been offensive if it had been about an ordinary individual, but the poem specifically mentions Mahatma Gandhi, which heightens the mental notion of obscenity. The court upheld the Bombay High Court’s decision to not to dismiss the charge of offering/distribution of vulgar books, brought against Devidas Ramchandra Tuljapurkar, stating that the right to free speech and expression did not allow an individual to cross actual historical network boundaries on the basis of fairness. The Supreme Court rulings reaffirm the widely held view that the right to free speech and articulation isn’t an “absolute freedom”, but rather is “consistently contingent on realistic restrictions” under Article 19(2)[8] of the Constitution.

Judgment Analysis

The Supreme Court has delivered a judgment that argues for the establishment of a separate category of “historically respectable persons,” which has effectively rendered Mahatma Gandhi and others by the general public. In essence, such historical figures cannot be exploited in any kind of art that lowers them, even if they symbolize something greater than themselves in a literary work. At the smallest intimation of mocking, religion and national leaders, the two invincible components of a society, swell with intolerance. The decision establishes a framework for regulating the content of articles, poetry, and other literary works. The Court’s higher threshold for applying the contemporary community test is likely to negatively impact creative satire and commentary.

Author(s) Name: Aastha Bhageria (Vivekananda Institute of Professional Studies, Delhi)


[1] The Indian Penal Code, 1860, Section 292

[2] The Indian Penal Code, 1860, Section 34, 292, 153A and 153B

[3] The Indian Penal Code, 1860, Section 292

[4] The Constitution Of India 1950, Article 19

[5] Roth v. United States [1957], 354 U.S. 476 [1957]

[6] The Constitution Of India 1950, Article 19

[7] The European Convention On Human Rights 1950, Article 10

[8]The Constitution Of India, Article 19 (2)

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