The Supreme Court on Wednesday dismissed a plea seeking to ban a book for allegedly depicting Hindu women visiting temples in a derogatory manner, saying "creative voices cannot be stifled or silenced" as democracy permits free exchange of ideas unlike a totalitarian regime.
A bench headed by Chief Justice Dipak Misra refused to ban any further publication and circulation of novel 'Meesha' and said it was "perilous" to obstruct free speech, expression, creativity and imagination as it led to intellectual repression of literary freedom.
The bench, also comprising Justices A M Khanwilkar and D Y Chandrachud, said, "A writer should have free play with words, like a painter has with colours. The passion of imagination cannot be directed. True it is, the final publication must not run counter to law, but the application of the rigours of law has to also remain alive to the various aspects that have been accepted by the authorities of the Court.
"The craftsmanship of a writer deserves respect by acceptation of the concept of objective perceptibility."
Justice Misra, who wrote the 30-page verdict, said "we are not living in a totalitarian regime but in a democratic nation which permits free exchange of ideas and liberty of thought and expression."
"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," the bench said.
The apex court's order came on a plea by Delhi resident N Radhakrishnan, who had sought omission of portions of a Malayalam novel 'Meesha' (moustache) written by S Hareesh and a complete ban on the book.
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Radhakrishnan had alleged that certain comments in the book about Brahmins, who perform 'puja' in the temples, amounted to "casteist slur". He had also alleged that the Kerala government had not taken steps to stop its publication, online sale and dissemination.
The novel was being published in a serialised form in a Malayalam periodical. The publication of the subsequent parts of the novel was discontinued after the controversy.
In its order, the apex court said that a ban "would usher in a perilous situation, if the 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," the bench said, adding that, "creative writing is contrary to intellectual cowardice and intellectual pusillanimity."
The top court said a creative work has to be read with a matured spirit, objective tolerance and a sense of acceptability. The reader should elevate himself as a "co-walker with the author" as if there is a social link and intellectual connect.
Dealing with the characters of the novel, it said they have been projected to show the "myriad experiences with different situations" which can be perceived as certain sub-plots evolving around the fundamental characteristics of the protagonist.
"The Court is not to be swayed by any kind of perception...The language used in the dialogue cannot remotely be thought of as obscene. The concept of defamation does not arise. Nurturing the idea that it is derogatory and hurtful to the temple going women would tantamount to pyramiding a superstructure without the infrastructure," it said.
The top court said if books were banned on such allegations, there can be no creativity and such interference by constitutional courts will cause "the death of art."
"It has to be kept uppermost in mind that the imagination of a writer has to enjoy freedom. It cannot be asked to succumb to specifics. That will tantamount to imposition. A writer should have free play with words, like a painter has it with colours," it said.
The bench ended the judgement quoting writer and thinker Voltaire, who had said: "I may disapprove of what you say, but I will defend to death your right to say it". This is the "laser beam" for guidance when one talks about freedom of expression, it added.
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