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Panaji: BJP President Amit Shah address BJP supporters in Panaji, Goa on Saturday. PTI Photo(PTI8_20_2016_000228A)

Amit Shah calling Gandhi a ‘chatur bania’ is all over the papers. Do you think his speech is offensive, even provocative, nay seditious? Has he crossed a certain line that pushes one into the ‘reasonable restrictions’ on Freedom of Speech Article 19a? Should he be booked under IPC Section 292 for morally corrupting and obscene speech? To find some clues lets hark back to a recent past.

In 2015 the Supreme Court of India dealt out a verdict on a twenty year old case, Devidas Ramachandra Tuljapurkar vs State Of Maharashtra & Ors. The controversy was around a poem ‘Gandhi Mala Bhetala’ (I Met Gandhi) published in a magazine ‘Bulletin’ in the year 1994. The poem was written by poet Vasant Dattatreya Gurjar in 1984. The magazine was meant for private circulation among members of All India Bank Association Union. In it Mahatma Gandhi is alluded to and his silhouette is sketched across the page leaving no scope for doubt regarding his role in the poem. The satirical poem had some obscene words in it. Taken literally the poem loses its inner meaning and can get offensive, but what is art if one does not look for the hidden meaning?

The court noted that satire was a form “of artistic expression and social commentary and, by its inherent features of exaggeration and distortion of reality, naturally aims to provoke and agitate. Accordingly, any interference with an artist’s right to such expression must be examined with particular care”.[1] It was acknowledged that as far as freedom of writing went, poets had no authority over them telling them what to write or not. Comparing satire to a computer modified nude picture of a celebrity, the court said that human dignity must remain intact even in a satire. Political satires should not be protected when it amounts only to insulting speech directed against an individual. It should be regarded as a verbal assault on the individual’s right to dignity, rather than a contribution to political or artistic debate protected under the free speech (or freedom of the arts) clauses of the Constitution.[2] The court observed that a person’s human dignity must be respected, regardless of whether the person is a well-known figure or not. The counsel for the court applied that “the effect of the image on the observer; the fact that an image has been produced by an artist does not always make the end-result artistic; likewise an image does not become satirical if the observer does not comprehend or detect any message in the work in question; that where the images depicted in the work product convey no message but only a disgusting combination of lewd acts and words whose only effect is to debase, insult and ridicule the person portrayed this is neither criticism nor satire; and that the artistic freedom is not unlimited and where rights and reputation of others are involved; where there is conflict with human dignity artistic freedom must always be subordinated to personality rights.”[3]

Gandhi is the central character in the poem. He is caught in situations that involve people (real life figures who were born after he died or never met in person), saying things which are absurd. There is no scope for doubt that the poem is a stretch of imagination with a purpose. It harps on the failures of India as a society bred on Gandhian values. And who best to show case it other than the father of the nation? The satire comes through because of the use of Gandhi whose image is god-like in public imagination. If this was some random person, the poem would be devoid of meaning and be only obscene. But the Supreme Court thought otherwise.

“When the name of Mahatma Gandhi is alluded or 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 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.”[4] “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.” Thus the poem did not survive the freedom of speech test and was charged under offences under IPC section 292.[5]

Admittedly Amit Shah’s speech was a jab on the Grand Old Party, Congress. He contextualizes his statements by saying that even Gandhi knew better than to join that party in politics. The statement is made in a sarcastic manner, showcasing Gandhi as a ‘chatur bania’ in order to send home a message to the public. Have Shah’s comments on Gandhi kept his dignity intact as a philosopher and political stalwart of the nation. Sarcasm can hardly compete with satire when it comes to refinement or art as tact. But even if sarcasm or mockery falls within the protected forms of free speech then should this comment not face the trial of the legal court, in the very terms Vasant Gurjar’s poem did? Both cases of free speech are comparable in terms of was intent, humour, offensive language and point of reference. So let’s take a leaf out of ‘Gandhi Mala Bhetala’ judgment and strip Shah’s comments of context, message, humour and look at it at face value. I think we have a case for framing charges under IPC Section 292 against Amit Shah. Using Gandhi’s name in his speeches must greatly influence the minds of the public, Gandhi being such a man of significance for the country. To use his name in a derogatory fashion must definitely corrupt their thoughts.

Surely sauce for the goose is sauce for the gander. But I hear that the gander is already off to make more ‘corrupting’ speeches elsewhere.

[1] Devidas Ramachandra Tuljapurkar vs State Of Maharashtra & Ors on 14 May, 2015 pg 13

[2] Devidas Ramachandra Tuljapurkar vs State Of Maharashtra & Ors on 14 May, 2015  pg 15

[3] Devidas Ramachandra Tuljapurkar vs State Of Maharashtra & Ors on 14 May, 2015 pg 16

[4] Devidas Ramachandra Tuljapurkar vs State Of Maharashtra & Ors on 14 May, 2015 pg 53

[5] Devidas Ramachandra Tuljapurkar vs State Of Maharashtra & Ors on 14 May, 2015 pg 52

Debjanee Ganguly is a Research Scholar in JNU