DEVI DAS RAMACHANDRA TULJAPURKAR versus STATE OF MAHARASHTRA& ORS.
[2015] 7 S.C.R. 853, Supreme Court of India, 2015
Outcome: Disposed off
Segment: Facts
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[2015] 7 S.C.R. 
According to Mill, therefore, each individual must in certain 
matters be left alone to frame the plan of his life to suit his 
own character and to do as he likes without any 
impediment and even if he decides to act foolishly in such 
matters, society or on its behalf the State should not 
interfere with the choice of the individual. Harold J. Laski, 
who was not prepared to accept Mill's attempts to define 
the limits of State interference, was also of the opinion 
that in some matters the individual must have the freedom 
of choice. To quote a passage from A Grammar of Politics 
by Harold J. Laski: 
" ... My freedoms are avenues of choice through which I 
may, as I deem fit, construct for myself my own course of 
conduct. And the freedoms I must possess to enjoy a 
general liberty are those which, in their sum, will constitute 
the path through which my best self is capable of 
attainment. That is not to say it will be attained. It is to say 
only that I alone can make that best self, and that without 
those freedoms I have not the means of manufacture at 
my disposal." 
37. Freedom or choice in the matter of speech and 
expression is absolutely necessary for an individual to 
develop his personality in his own way and this is one 
reason, if not the only reason, why under Article 19(1 )(a) 
of the Constitution every citizen has been guaranteed the 
right to freedom of speech and expression. 
38. This
Court has from time to time expanded the scope 
of the right to freedom of speech and expression 
guaranteed under Article 19( 1 )(a) of the Constitution by 
consistently adopting a very liberal interpretation. In 
Romesh Thappar v. State of Madras80, this Court held 
H 
80 AIR 1950 SC 124
DEVIDAS RAMACHANDRA TULJAPURKAR v. 
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STATE OF MAHARASHTRA [DIPAK MISRA, J.] 
that freedom of speech and expression includes freedom A 
of propagation of ideas which is ensured by freedom of 
circulation and in Saka/ Papers (P) Ltd. v. Union of Jndia81, 
this Court held that freedom of speech and expression 
carries with it the right to publish and circulate one's ideas, 
opinions and views. In Bennett Coleman & Co. v. Union B 
of lndia§l, this Court also held that the freedom of press 
means right of citizens to speak, publish and express their 
views as well as right of people to read and in Odyssey 
Communications (P) Ltd. v. Lokvidayan Sanghatana83, c 
this Court has further held that freedom of speech and 
expression includes the right of citizens to exhibit films on 
Doordarshan." 
72. Presently, we shall refer to the decision in Shreya 
\ 
Singha/ (supra). Mr. Gopal Subramanium, while giving D 
immense emphasis on the said authority, has submitted that 
while striking down Section 66A of the IT Act, 2000 as 
unconstitutional, the Court has really elevated the concept of 
freedom of speech and expression to a great height. We have E 
already referred to certain passages of the said decision in 
the context of test for obscenity. Mr. Nariman, learned senior 
counsel would submit that the said decision has to be read in 
its context and as it relates to the field of internet and in the 
present case, we are concerned with the obscenity test, as F 
understood by this
Court in the context of Section 292 IPC. In 
the said case, the two-Judge Bench, while dealing with the 
content of ~reed om of expression, opined that:-
"There are three concepts which are fundamental in G 
understanding the reach of this most basic of human rights. 
The first is discussion, the second is advocacy, and the 
81 AIR 1962 SC 305 
., (1972 2 sec 788 
83 (1988) 3 sec 410 
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third is incitement. Mere discussion or even advocacy of 
a particular cause howsoever unpopular is at the heart of 
Article 19(1 )(a). It is only when such discussion or 
advocacy reaches the level of incitement that Article 
B 
19(1)(a). It is only when such discussion or advocacy 
reaches the level of incitement that Article 19(2) kicks in. 
It is at this stage that a law may be made curtailing the 
speech or expression that leads inexorably to or tends to 
cause public disorder or tends to cause or tends to affect 
c 
the sovereignty & integrity or India, the security of the State, 
friendly relations with foreign States, etc. Why it is important 
to have these three concepts in mind is because most of 
the arguments of both petitioners and respondents tended 
to veer around the expression "public order." 
I 
D 
And again:-
"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 
E 
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." 
F 
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 
G 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. 
H Subramanium that the freedom has to be given absolute and
DEVI DAS RAMACHANDRA TULJAPURKAR v. 
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STATE OF MAHARASHTRA[DIPAK MISRA, J.] 
uncurtailed expanse without any boundaries of exceptions. We A 
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 B 
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 
c 
on the question that had been framed by this Court. We have 
used the expression 'historically respected personalities'. It is o 
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 subrriit 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 E 
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'. 
F 
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 G 
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. 
74. Keeping this in view, we shall now proceed to deal H
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A with the 'historically respected persons'. Though the question 
uses the words 'htstorically respected persons', contextually, 
in this case it would mean Mahatma Gandhi, the Father of the 
Nation. Though some may think it is patently manifest or known 
that Mahatma Gandhi is the Father of the Nation and the most 
B respected historical personality in this country, yet we are 
obliged to reflect on Mahatma Gandhi to know how this Court 
has spoken about Mahatma Gandhi and how others have 
perceived the life of 'Mahatma Gandhi' and 'Gandhian thought'. 
Mr. Subramanium, learned senior counsel, in the course of 
C hearing has referred to certain passages from the text books 
which are critical of Mahatma Gandhi, his life and his thoughts. 
We shall refer to the books at a subsequent stage. 
75. As mentioned earlier, we think at this stage we should 
D refer to certain decisions of this Court where Mahatma Gandhi 
or Gandhian thought have been reflected. 
76. In Kesavananda Bharati (supra), S.N. Dwivedi, J, 
has stated that the Constitution bears the imprint of the 
E philosophy of our National Movement for Swaraj. The Court 
also stated that Mahatma Gandhi gave to the Movement the 
philosophy of "Ahimsa". Two essential elements of his Ahimsa 
are: (1) equality; and (2) absence of the desire of self-
acquisition (Aparigrah) and he declared that "to live above the 
F means befitting a poor country is to live on stolen food." 
And he
further observed that:-
"The philosophy of Mahatma Gandhi was rooted in our 
G 
ancient tradition; the philosophy of Jawaharlal Nehru was 
influenced by modern progressive thinking. But the 
common denominator in their philosophies was 
humanism. The humanism of the Western Enlightenment 
comprehended mere political equality; the humanism of 
H 
Mahatma Gandhi and Jawaharlal Nehru was instinct with
DEVI DAS RAMACHANDRA TULJAPURKAR v. 
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STATE OF MAHARASHTRA[DIPAK MISRA, J.] 
social and economic equality. The former mc:de man a A 
political citizen; the latter aims to make him a 'perfect' 
citizen. This new humanist philosophy became the catalyst 
of the National Movement for Swaraj." 
77. In K. Karunakaran v. T. V. Eachara Warrier, 84 this 
B 
Court observed that lies are resorted to by the high and the 
low being faced with inconvenient situations which require a 
Mahatma Gandhi to own up Himalayan blunders and unfold 
unpleasant truths truthfully. 
78. In Maneka Gandhi (supra), this Court observed 
thus:-
c 
"22 .... These rights representthe basic values of a civilised 
society and the constitution-makers declared that they 0 
shall be given a place of pride in the Constitution and 
elevated to the status of fundamental rights. The long years 
of the freedom struggle inspired by the dynamic 
spiritualism of Mahatma Gandhi and in fact the entire 
cultural and spiritual history of India formed the background 
E 
against which these rights were enacted and consequently, 
these rights were conceived by the constitution-makers 
not in a narrow limited sense but in their widest sweep, 
for the aim and objective was to build a new social order 
where man will not be a mere plaything in the hands of the F 
State or a few privileged persons but there will be full scope 
and opportunity for him to achieve the maximum 
development of his personality and the dignity of the
individual will be fully assured." 
G 
79. In Bangalore Water Supply & Sewerage Board v. 
A. Rajappa85, this Court observed:-
.. (1978) 1 sec rn 
•• (1978) 2 sec 213 
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"There is no degrading touch about "industry", especially 
in the light of Mahatma Gandhi's dictum that 'Work is 
Worship". Indeed the colonial system of education, which 
divorced book learning from manual work and practical 
training, has been responsible for the calamities in that 
field. For that very reason, Gandhiji and Dr Zakir Hussain 
propagated basic education which used work as modus 
operand us for teaching. We have hardly any hesitation in 
regarding education as an industry." 
80. In Minerva Mills Ltd. v. Union of lndia86, the Court 
noted thus:-
"53 ..... The emergence of Mahatma Gandhi on the political 
scene gave to the freedom movement a new dimension: 
it ceased to be merely anti-British; it became a movement 
for the acquisition of rights of liberty for the Indian 
Community. 
103 ....... Mahatma Gandhi, the father of the nation, said 
in his inimitable style in words, full of poignancy: 
"Economic equality is the master key to non-violent 
independence. A non-violent system of government is an 
impossibility so long as the wide gulf between the rich 
and the hungry millions persists. The contrast between the 
palaces of New Delhi and the miserable hovels of the poor 
labouring class cannot last one day in a free India in which 
the poor will enjoy the same power as the rich in the land. 
A violent and bloody revolution is a certainty one day, 
unless there is voluntary abdication of riches
and the power 
that riches give and sharing them for common good." 
81. In Akhil Bharatiya Soshit Karamchari Sangh 
H .. (1980) 3 sec a2s
DEVIDAS RAMACHANDRA TULJAPURKAR v. 
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STATE OF MAHARASHTRA[DIPAK MISRA, J.] 
(Railway) v. Union of/ndia87, there is an observation which A 
reads thus:-
"13 .... There was the Everest presence of Mahatma 
Gandhi, the Father of the Nation, who staked his life for 
the harijan cause. There was Baba SahebAmbedkar-
B 
a mahar by birth and fighter to his last breath against the 
himalayan injustice to the harijan fellow millions 
stigmatised by their genetic handicap -
who was the 
Chairman of the drafting committee of the Constituent 
Assembly." 
C 
82. In People's Union for Democratic Rights v. Union 
oflndia88, it has been stated:-
"Mahatma Gandhi once said to Gurudev Tagore, "I have 0 
had the pain of watching birds, who for want of strength 
could not be coaxed even into a flutter of their wings. The 
human bird under the Indian sky gets up weaker than when 
he pretended to retire. For millions it is an eternal vigil or 
an eternal trance." 
83. In Bachan Singh v. State of Punjab89, the Court 
noted:-
"22 .... Mahatma Gandhi also wrote to the same effect in 
his simple but inimitable style: 
E 
F 
"Destruction. of individuals can never be a virtuous act. 
The evil-doers cannot be done to death. Today there is a 
movement afoot for the abolition of capital punishment and 
attempts are being made to convert prisons into hospitals G 
as if they are persons suffering from a disease."" 
•1 (1981) 1 sec 246 
.. (1982) 3 sec 235 
•• (1982) 3 sec 24 
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84. In Kai/ash Sankar v. Maya Dev1"9°, (1984) 2 SCC 
91, the observation is:-
"4.As Mahatma Gandhi, father of the nation, said "India 
lives in villages" and so do the backward classes, hence 
B 
the primary task was to take constructive steps in order to 
boost up these classes by giving them adequate 
concessions, opportunities, facilities and representation 
in the services and, last but not the least, in the electorate 
so that their voices and views, grievances and needs in 
C 
the Parliament and State legislatures in the country may 
be heard, felt and fulfilled." · 
D 
E 
85. In Pradeep Jain v. Union oflndia91 , emphasising on 
formation of one nation, the Court observed:-
"This concept of one nation took firm roots in the minds 
and hearts of the people during the struggle for 
independence under the leadership of Mahatma Gandhi. 
He has rightly been called the Father of the Nation 
because it was he who awakened in the people of this 
country a sense of national consciousness and instilled in 
them a high sense of patriotism without which it is not 
possible to build a country into nationhood." 
86. In Indra Sawhney v. Union of lndia92 and ors. the 
F Court observed that it is Mahatma Gandhi, who infused secular 
spirit amongst the people of India. 
87. In S.R. Bommai and others v. Union of India and 
others93 speaking on statesmanship, the larger Bench noted:-
G 
00 (1984) 2 sec 91 
., (1984) 3 sec 654 
• 2 (1992)
supp. 3 sec 211 
H "(1994) 3 sec 1
DEVIDAS RAMACHANDRA TULJAPURKAR v. 
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STATE OF MAHARASHTRA[DIPAK MISRA, J.] 
"24. Mahatma Gandhi and other leaders of modern times A 
advocated to maintain national unity and integrity. It was 
with the weapons of secularism and non-violence that 
Mahatma Gandhi fought the battle for independence 
against the mightly colonial rulers. As early as 1908, 
Gandhiji wrote in Hind Swaraj: 
B 
India cannot cease to be one nation, because people 
belonging.to different religions live in it. ... ln no part of the 
world are on nationality and on religion synonymous terms; 
nor has it ever been so in India." 
C 
88. In T.N. Godavarman Thirumulpad v. Union of 
lndia94, while making a reference to fundamental duties, the 
Court found that:-
"35. The Father of the Nation Mahatma Gandhi has also D 
taught us the same principle and all those concepts find 
their place in Article 51-A(g) as well." 
89. In Dalip Singh Vs. State of U.P. and Ors.95, while 
discussing on values of life, the Court opined that Mahavir, 
E 
Gautam Buddha and Mahatma Gandhi guided the people to 
ingrain these values in their daily life. Truth constituted· an 
integral Dart of justice delivery system which was in vogue in 
pre-independence era and the people used to feel proud to F 
tell truth in the courts irrespective of the consequences. 
90. Apart from these authorities, there are so many other 
decisions where the ·name of Mahatma Gandhi has been 
referred to with reverence and elaborating on various facets
of life of Gandhi and Gandhian thought. There are also certain G 
eminent persons who have referred to Mahatma Gandhi in their 
speech and articles. Justice H.R. Khanna, in one of his lectures 
.. c2012) 4 sec 362 
••c2010) 2 sec 114 
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A has spoken:-
"We, in India, were fortunate to have been led during the 
struggle for Independence by one, who, apart from being 
an astute political leader, was also a great moral crusader 
B 
who has his place in history along with the Buddha and 
Christ. Fro him, means were no less important than the 
ends. There was in the personality of the Mahatma a 
subtle, indescribable, magic touch, for all the different 
persons who came in close contact with him were turned 
C 
into men of gold, be it Nehru or Patel, Azad or Rajendra 
Prasad, Rajaji or J.P. Narayan. Since the death of 
Mahatma, except for observing his birthday as a national 
holiday, we have remembered him in no better way than 
by riding roughshod over the principles of truth and moral 
D 
values that he propagated all his life." 
91. Having referred to the decisions of this Court and also 
a part of lecture, we think it condign to refer to certain books 
on Mahatma Gandhi. Mr. Subramanium, learned senior counsel 
E also referred to certain books indicating that there are many 
critical passages about Mahatma Gandhi. The books referred 
to by him are "Great Soul: Mahatma Gandhi and his struggle 
lndia"96 and "Sex and Power''97. In this regard we may also refer 
to Mahatma Gandhi The Early Phase Vof. /98, Gandhian 
F Constitution for Free lndia99, Gandhi's Philosophy of Law100, 
Mahatma Gandhi1°1, The Myth of the Mahatma 102, Gandhi 
96 Lelyveld Joseph, Great Soul:
Mahatma Gandhi and his struggle with India, 
Harpr Collins, 2011: page 
97 Banerjee Rita, Sex and Power: Defining History, Shaping Societies, Penguin, 
G 2008; page 274 
96 Pyarelal, Navajivan Publishing House, 1965 
99 Shriman Narayan Agarwal, Kitabistan, 1946 
100 v.s. Hegde, Concept Publishing Company, 1983 
101 Sankar Ghose, Allied Publishers Limited, 1991 
H 
102 MMichael Edwardes, UBS Publishers' distributors Ltd., 1986
DEVIDAS RAMACHANDRA TULJAPURKAR v. 
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·sTATE OF MAHARASHTRA [DIPAK MISRA, J.] 
Before lndia103, In Search of Gandhi104, Gandhi's View of Legal A 
Justice 105, Gandhi, Soldier of Non-Violence: An 
lntroduction106, Trial of Mr. Gandhi107, Gandhi and Civil 
Disobedience Movement108, Ti/ak, Gandhi and Gita 109, 
Studies in Modern Indian Political thought: Gandhi an 
lnterpretation110, Gandhi and the Partition of lndia 111, Gandhi B 
in London112, Mahatma Gandhi Contribution to Hinduism 113, 
Life of Mahatma Gandhi114, Moral and Political Thought of 
Mahatma Gandhi115, Gandhi and Social Action Today116, 
Gandhi: The Man and the Mahatma117, Gandhi and Ideology 
of Swadeshi118, Gandhi's Khadi: History of Contention and C 
Conciliation 119, Mahatma Gandhi and Jawarhal Nehru: A 
Historic Partnership Vol.1 (1916-1931) 120, Gandhi: Prisoner 
of Hope121, Mahatma Gandhi and His Apostles122, Gandhi 
and Status of Women 123, Philosophy of Gandhi: A Study of 0 
103 Ramachandra Guha, Penguin Books, 2013 
10• Richard Attenborough, B.I. Publications, 1982 
10• AjitAtri, Deep & Deep Publications Pvt. Ltd., 2007 
106 Calvin Kytle, Seven Locks Press, 1983 
107 Francis Watson, Macmillan and Co., 1969 
108 S.R. Bakshi, Gitanjali Publishing House, 1985 
10• D .K. Gosa vi, Bharatiya Vidya Bhavan, 1983 
110 O.P. Goyal, Kitab Mahal Pvt. Ltd., 1964 
111 Sandhya Chaudhri, Sterling Publishers Pvt. Ltd., 1984 
112 James D Hunt, Promilla & Co., 1978 
113 K.K. Lal Karna, Classical PubUshing Co., 1981 
114
Louis Fisher, Granada, 1982 
115 Raghavan N. Iyer, Oxford University Press, 1973 
118 Mery Kappen (Ed.), Sterling Publishers Pvt. Ltd., 1990 
117 Rain Sharma, Rajan, 1985 
· 118 S.R. Bakshi, Reliance Publishing House, 1987 
119 Rahul Ramagundam, Orient Longman Pv1. Ltd., 2008 
120 Madhu Limaye, B.R. Publishing Corporation, 1989 
121 Judith M. Brown, Oxford University Press, 1990 
122 Ved Mehta, Indian Book Company, 1977 
123 S.R. Bakshi, Criterion Publications, 1987 
E 
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A His Basic ldeas124, Gandhi Naked Ambition125, Meera and 
the Mahatma 126, and The Men Who Killed Gandht1 27. 
92. Some of these books praise Gandhi, analyse 
Gandhian thoughts, criticise Gandhian philosophy, express 
B their dissent, disagree with his political quotient and also 
comment on his views on "Brahamcharya". On reading of the 
said books, one can safely say they are the views of the authors 
in their own way and there is no compulsion to agree with the 
personality or his thoughts or philosophy. We are reminded of 
C what Voltaire said, "I do not agree with what you have to say, 
but I'll defend to the death your right to say if' qr for that matter 
what George Orwell said, "If liberty means anything at all, it 
means the right to tell people what they do not want to heat''. 
D 
93. There can be no two opinions that one can express 
his views freely about a historically respected personality 
showing his disagreement, dissent, criticism, non-acceptance 
or critical evaluation. 
E 
94. If the image of Mahatma Gandhi or the voice of 
Mahatma Gandhi is used to communicate the feelings of 
Gandhiji or his anguish or his agony about any situation, there 
can be no difficulty. The issue in the instant case, whether in 
the name of artistic freedom or critical thinking or generating 
F the idea of creativity, a poet or a writer can put into the said 
voice or image such language, which may be obscene. We 
have already
discussed at length about the concept of 'poetic 
license' and 'artistic freedom'. There can be "art for art's sake" 
which would include a poem for the sake of thought or 
G expression or free speech and many a concept. 
12• Glyn Richards, Rupa & Co., 1991 
125 Jad Adams, Quercus, 2010 
12• Sudhir Kakar, Yiking - Penguin, 2004 
H 
127 Manohar Malgonkar, Roli Books, 2008
DEVI DAS RAMACHANDRA TULJAPURKAR v. 
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STATE OF MAHARASHTRA[DIPAK MISRA, J.] 
Concept of poetry 
A 
95. We do not intend to say that a poem should conform 
to the definition or description as many authors have thought 
of. According to Dr. Samuel Johnson, "Poetry i~, 'metrical 
composition'; it is 'the art of uniting pleasure with truth by calling B 
imagination to the help of reason'; and its 'essence' is 
'invention'." 
96. Mill's point of view "poetry is, but the thought and words 
in which emotion spontaneously embodies itself." Macaulay c 
understands poetry as "we mean the art of employing words 
in such a manner as to produce an illusion on the imagination, 
the art of doing by means of words what the painter does by 
means of colours" .128 
97. Carlyle assumed that poetry is "we will call Musical 
Thought". 129 Shelley states, "in a general sense may be defined 
as the expression of the imagination". 130 Hazlitt defines poetry 
as "it is the language of the imagination and the passions". 131 
D 
98. Leigh Hunt declares poetry as "the utterance of a E 
passion for truth, beauty, and power, embodying and illustrating 
its conceptions by imagination and fancy, and modulating its 
language on the principle of variety in unity". 132 
99. S.T. Coleridge's has expressed that poetry is the anti-
F 
thesis of science, having for its immediate object pleasure, 
not truth. 133 German philosopher Hegel has thought that the 
use of verse in a given piece of literature serves
in itself to lift 
12• Essay on Milton 
129 Heroes and Hero-Worship, Lecture iii 
130 Defence of Poetry 
131 Lectures on the English Poets, i 
132 Imagination and Fancy, i. 
133 Lectures and Notes on Shakespeare and other English Poets, and 
G 
Biographia Literaria, chapter xiv. 
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A the mankind into a world quite different from that of prose or 
everyday life. Emerson says that the great poets are judged 
by the frame of mind they induce.134 There is no difficulty in 
saying that the definition or understanding of concept of poetry 
of any high authority can be ignored. That is the freedom of the 
B poet. 
The poem in issue 
100. Presently, to the poem in question we are referring 
c 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 
o 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 
E 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. 
F 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 
G Mahatma Gandhi. 
101. Mr. Nariman, learned amicus curiae, per contra, 
would submit that the poem refers singularly and exclusively to 
Mahatma Gandhi in every stanza. The learned friend of the 
H Court has referred to certain stanzas of the poem. We do not

DEVI DAS RAMACHANDRA TULJAPURKAR v. 
973 
STATE OF MAHARASHTRA [DIPAK MISRA, J.] 
intend to reproduce them in their original form. But we shall A 
reproduce them with some self-caution. Some of them are:-
"(i) I met Gandhi on the road 
u: 
in the name of 
~-
~~-" 
B 
xxxx 
xxxx 
xxxx 
"(ii) I met Gandhi 
In Tagore's Geetanjali, 
c 
He was writing a poem 
On 
" 
---
)()()()( 
)()()()( 
)()()()( 
D 
"(iii) 
When I rr.3t Gandhi 
On earth which is the property of the common man 
Playing husband-and-wife games with orphan children, E 
He said== 
Nidharmi Bharat ka kya pahchan? 
" 
F 
We have left the spaces blank as we have not thought it 
appropriate to reproduce the words. There are other stanzas 
also which have their own reflection. Whether the poem has 
any other layer of meaning or not, cannot be gone into at the G 
time of framing of charge. The author in his own understanding 
and through the process of trial can put his stand and stance 
before the learned trial Judge. 
102. Submission of Mr. Nariman, learned amicus curiae H
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A is that the words that have been used in various stanzas of the 
poem, if they are spoken in the voice of an ordinary man or by 
any other person, it may not come under the ambit and sweep 
of Section 292 IPC, butthe momentthere is established identity 
pertainin~ to Mahatma Gandhi, the character of the words 
B change and they assume the position of obscenity. To put it 
differently, the poem might net have been obscene otherwise 
had the name of Mahatma Gandhi, a highly respected histC?rical 
personality of this country, would not have been used. Mr. 
C Nariman would emphatically submit that the poem distinctly 
refers to Mahatma Gandhi because the sketch of Gandhiji is 
there figuratively across the entire page in his customary garb, 
stature and gait. According to him, the poem does not subserve 
any artistic purpose and is loathsome and vulgar arid hence, it 
0 comes within the sweep of Section 292 IPC. The learned 
amicus curiae would submit that the use of the name of 
·Mahatma Gandhi enhances the conceptual perception of 
obscenity as is understood by this Court. 
103. Mr. Subramanium would submit that the free speech 
E is a guaranteed human right and it is in fact a transcendental 
right. The recognition of freedom of thought and expression 
cannot be pigeon-holed by a narrow tailored test. The principle 
pertaining to the freedom of speech has to be interpreted on 
F an extremely broad canvas and under no
circumstances, any 
historical personality can cause an impediment in the same. 
It is urged that the Constitution of India is an impersonalised 
documenrand poetry which encourages fearlessness of 
expression, cannot be restricted because of use of name of 
G a personality. Learned senior counsel has further submitted 
that freedom to offend is also a part of freedom of speech. 
Poetry, which is a great liberator, submits Mr. Subramanium, 
can be composed through a merely voice explaining plurality 
of thought. He would submit the instant poem is one where 
H there is "transference of consciousness" that exposes the 
I
DEVI DAS RAMACHANDRA TULJAPURKAR v. 
975 
STATE OF MAHARASHTRA[DIPAK MISRA, J.] 
social hypocrisy and it cannot be perceived with a conditioned 
A 
mind. 
104. The principle that has been put forth by Mr. 
Subramanium can be broadly accepted, but w~ ~o not intend 
to express any opinion that freedom of speech gives liberty to B 
offend. As far as the use of the name of historicaUy 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 C 
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 D 
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 li!llitation attached to it. In the context of 
obscenity, the provision enshrined under Section 292 IPC has E 
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 
incorporated. The judicially evolved
test, that is, "contemporary F 
community standards test" is a parameter for adjudging 
obscenity, and in that context, the words used or spoken by a 
historically respected personality as a medium of 
communication through a poem or write-up or other form of 
artistic work gets signification. That makes the test applicable G 
in a greater degree. To understand the same;ira 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 H
976 
SUPREME COURT REPORTS 
[2015] 7 S.C.R. 
A 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 
B 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 the medium to 
C 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 
0 the permissible "target domain", for in the context the historically 
respected personality matters. 
Conclusion 
105. When the name of Mahatma Gandhi is alluded or 
E used as a symbol, speaking or using obscene words, the. 
concept of "degree" comes in. To elaborate, the "contemporary 
community standards test" becomes applicable with more 
vigour, in a greater degree and in an accentuated manner. 
What can otherwise pass of the contemporary community 
F standards test for use of the same language, it would not be 
so, if the name of Mahatma Gandhi is used as a
symbol or 
allusion or surrealistic voice to put words or to show him doing 
such acts which are obscene. While so concluding, we leave 
it to the poet to put his defense at the trial explaining the manner 
G he has used the words and in what context. We only opine that 
view of the High Court pertaining to the framing of charge under 
Section 292 I PC cannot be flawed. 
106. Coming to the case put forth by the appellant-
H publisher, it is noticeable that he had published the poem in
DEVI DAS RAMACHANDRA TULJAPURKAR v. 
977 
STATE OF MAHARASHTRA [DIPAK MISRA, J.] 
question, which had already been recited during the Akhil A 
Bhartiya Sahithya Sammelan atAmba Jogai in 1980, and was 
earlier published on 2.10.1986 by others. The appellant has 
published the poem only in 1994. But immediately after coming 
to know about the reactions of certain employees, he tendered 
unconditional apology in the next issue of the 'Bulletin'. Once B 
he has tendered the unconditional apology even before the 
inception of the proceedings and almost more than two 
decades have passed, we are inclined to quash the charge 
framed against him as well as the printer. We are disposed to 
quash the charge against the printer, as it is submitted that he C 
had printed as desired by the publisher. Hence, they stand 
discharged. However, we repeat at the cost of repetition that 
we have not expressed any opinion as to the act on the part of 
the author of the poem, who is co-accused in the case, and 0 
facing trial before the Magistrate in respect of the offence 
punishable under Section 292 IPC. It shall be open for him to 
raise all the pleas in defence, as available to him under the 
law. At this juncture, we are obliged to mention that Mr. 
Nariman, learned friend of the Court also in course of hearing, E 
had submitted that the appellant having offered unconditional 
apology immediately and regard being had to the passage of 
time, he along with the printer should be discharged.
107. Before we part with the case, we must candidly 
express our unreserved and uninhibited appreciation for the 
distinguished assistance rendered by Mr. Fali S. Nariman, 
learned amicus curiae. We also record our appreciation for 
the sustained endeavour put forth by Mr. Subramanium, learned 
senior counsel for the appellant, for it has been of immense 
value in rendering the judgment. 
108. Cor.sequently, the appeal stands disposed of in 
r 
above terms. 
F 
G 
Kalpana K. Tripathy 
Appeal disposed of. 
H