The Supreme Court recently opined that 75 years into the life of the republic, India cannot afford to treat poetry, satire, films or other forms of art as automatic triggers for communal discord [Atul Mishra v. Union of India].

Justice Ujjal Bhuyan stressed that a mature democracy must display confidence in its foundational values rather than react to creative expression with suspicion.

Pertinently, he also said that it will be violative of the Constitution to target any particular community on the basis of religion, language, caste or region.

This is particularly true for public figures occupying high constitutional office who have taken the solemn oath to uphold the Constitution, the judge underscored.

"It is therefore constitutionally impermissible for anybody, be it the State or non-state actors, through any medium, such as, speeches, memes, cartoons, visual arts etc, to vilify and denigrate any community," the judgment said.

He also highlighted the duty of courts to step in when police or executive fail to honour Constitution and fundamental rights of citizens.

In this regard, he highlighted what was held in Imran Pratapgarhi case:

“If the police or executive fail to honour and protect the fundamental rights guaranteed under Article 19(1)(a) of the Constitution, it is the duty of the Courts to step in and protect the fundamental rights. There is no other institution which can uphold the fundamental rights of the citizens.”

The observations from part of the judgment dated February 19 authored by Justice Bhuyan, sitting with Justice BV Nagarathna, in a petition challenging the title of the film Ghooskhor Pandat on the ground that it equated “Pandat” (a caste within the Hindu society) with “Ghooskhor” (bribe-taker).

The matter was disposed off by the Court after the director-producer filed an affidavit stating that the title has been withdrawn and would not be used.

Justice Bhuyan authored a separate opinion in which he made these observations.

"75 years into our republic, we cannot be seen to be so shaky on our fundamentals that mere recital of a poem or for that matter, any form of art or entertainment, such as, stand-up comedy, can be alleged to lead to animosity or hatred amongst different communities," Justice Bhuyan said in his judgment.

Justice Bhuyan explained that even though a separate opinion was not warranted in this case, he felt the need to muse on two issues arising from the case - fraternity and free speech.

Citing Dr BR Ambedkar's idea of fraternity, he said that the concept assumes a dynamic and inclusive role, aligning with the broader goals of social justice, equality and upliftment.

“It is therefore constitutionally impermissible for anybody, be it the State or non-state actors, through any medium, such as, speeches, memes, cartoons, visual arts etc. to vilify and denigrate any community.”

Turning to freedom of expression, he underscored the limits of State power under Article 19(2):

“The reasonable restriction provided for in Article 19(2) must remain reasonable and not fanciful and oppressive. Article 19(2) cannot be allowed to overshadow the substantive rights under Article 19(1) including the right to freedom of speech and expression.”

He went to chronicle how the Court has historically dealt with film censorship and held that once a film is granted a certificate by the Central Board of Film Certification (CBFC), courts should not generally interfere. Turning to his own judgment in Imran Pratapgarhi, he said,

"The Bench cautioned that courts must not be seen to regulate or stifle the freedom of speech and expression."

He reiterated that free speech cannot be curtailed merely because of threats of unrest.

“Freedom of expression cannot be suppressed on account of threats of demonstration and processions or violence. That would amount to negation of the rule of law and a surrender to blackmail and intimidation.”

On the standard to assess allegedly offensive content, he referred to the established test that the effect of words must be judged “from the standards of reasonable, strong-minded, firm and courageous men, and not those of weak and vacillating minds.”

The constitutional benchmark, he underscored, is not hypersensitivity.

Importantly, he said that the reasonable restrictions on free speech as provided for in Article 19(2) must remain reasonable and not fanciful and oppressive.

"Article 19(2) cannot be allowed to overshadow the substantive rights under Article 19(1) including the right to freedom of speech and expression,” the judgment said quoting the Imran Pratapgarhi verdict.

[Read Judgment]