Words are simple, they are like notes making up the music, it’s their arrangement that leads to a novel complexity, to a symphony, their arrangement that makes a piece of literature, their arrangement that composes a judgment.
There would be notions albeit a few which share a unique relationship. These notions being independent of each other, fill up a void in the other, complement the other or form such a part that they are interlinked deriving a rather distinctive value from the other, one such relationship is shared by law and literature. It is words and their interpretation that make up the real and as well as the fiction - with the Law on the one hand; defining our rights, punishing our misdeeds, rewarding us damages and literature on the other; creating characters, describing their lives and taking us on the journey with the protagonist all the while making us live vicariously.
Whether it’s our Constitution carefully inked by the constituent assembly, the multiple statutes drafted by our lawgivers, the articulate arguments of our lawyers creating a story in the minds of the listeners and the reasoned judgments or orders of the adjudicator, all embrace a substantial literary aspect that is hard to ignore. Similarly, literary works contain characteristics of law in some form or the other, even in Jane Austen’s Pride and Prejudice, primogeniture was the entire pivot on which the ideas of “love” revolved.
There is an overlay between these two genres that forms an incomparable correlation dovetailed by the significance of rhetoric. In this article I shall endeavour to explore the various facets of this relation, it’s significance in reaching the depths of law, appreciating the peculiar conditions that prevail in our society, how quixotically they may be dealt with in literature and realistically they are presently being confronted with in law and primarily I am going to highlight the well-structured judgments that seek the help of literature to support further rationalisation in addition to arousing empathy in the minds of the readers whether they are lawyers or laymen.
For the purpose of understanding this concept with all its intricacies, I intend to deal the connect between Law and Literature in three dimensions: (1) Law – AS – Literature; (2) Law – IN – Literature; and (3) Law – ON – Literature.
Law - ON - Literature – Indian legal shield & literary freedom
Law regulates almost all human activities and it includes literature as well. While there is a literature in law, there is law governing literature. We all know, whether it is a layman or an expert professional, freedom is essential. Whether it’s the freedom to do what one desires, freedom to travel where he wishes, freedom to live the way he wants, it is crucial that ever human being is granted this gift of freedom. It’s a gift given to us by our Constitution, presented to us as a bundle in a nicely wrapped paper put together with a bow of what we know as the Fundamental rights. The right to express or freedom of speech gives freedom to produce literary works [Article 19 (1)(a) of the Constitution]. It is beautifully put by Justice Dipak Misra (as he then was) in the following words in Devidas Ramachandra Tuljapurkar v. State of Maharashtra and Others:
“ “Poetic licence” can never remotely mean a “licence” or “permission” as used or understood in the language of law. There is no authority who gives a licence to a poet. These are words from the realm of literature. The poet assumes his own freedom which is allowed to him by the fundamental concept of poetry. No one can stop a dramatist or a poet or a writer to write freely expressing his thoughts and similarly none can stop the critics to give their comments whatever its worth. That is fundamentally what is meant by poetic licence.”
While this gift isn’t unconditional, it forms the essence of a civilized society with all its conditions and restrictions [Article 19 (2)]. These restrictions in a literary world take the shape of censorship which may be reasonable or cross into the sphere of unreasonableness. History is a witness and can account for the countless books that have been the subject of debate and have eventually seen their banishment. Whether it’s on profanity, obscenity, religious issues, portrayal of the government or umpteen other reasons, since the inception of publishing, books have been banned by the governments from time to time. Matters land up in the courts which decide on the validity of such ban orders.
While obscenity has been the common reason around the world for banning what are now regarded as classic novels; whether its D.H. Lawrence’s Lady Chatterley’s Lover or the French classic ‘Madame Bovary’ authored by Gustave Flaubert, the promiscuous nature of the women, adulterous scenes, the overt description of sexual encounters or in the case of the literary classic ‘Ulysses’; the metaphoric account of a sexual act, were often the premise of novels receiving backlash and being ultimately banned.
‘The Well of Loneliness’ by Radclyffe Hall was a book that revolved around a lesbian relationship during the First World War, and was castigated for “unnatural practices between women,” The Da Vinci Code was banned for being blasphemous and offensive to the Christian Community. The reasons for forbidding a literary piece to reach the hands of the public, have been many, and each nation, state and country is not unanimous in its definition of what may be considered to be offensive to its people, however what is undisputed is the Freedom that every individual has to express him or herself.
The landmark judgment in the United States; Memoirs v. Massachusetts saw the demise of proscribing books in the States on the grounds of obscenity. This judgment clarified the grounds of censorship on the basis of profanity, which were laid down a decade earlier in the judgment Roth v. United States. In that case the court had laid down three guidelines for determining whether a book is obscene; i) the book must appeal to prurient interest ii) the book shall be patently offensive iii) it shall have no redeeming value. However, in the Memoirs case finding in favour of the plaintiff, the court held that while the book in question (Fanny Hill) may fall in the first two categories, there was no proof to show that it had no redeeming value.
One interesting phenomena in some judgments of the courts is that while deciding the legality of the government’s action in banning such literary works, courts have made use of some other literary works thereby bringing literature in law while deciding the legal issues concerning a particular piece of literature. The Madras High Court in R. Rajagopal v. J. Jayalalithaa, (through Chief Justice A.P. Shah), while holding that people should be more open to criticism, went on to draw inspiration from Archibald Cox's article on the First Amendment to the U.S. Constitution wherein he stated: “some propositions seem true or false beyond rational debate, some false and harmful political and religious doctrines gain wide public acceptance. Adolf Hitler's brutal theory of `master race' is a sufficient example. We tolerate such foolish and sometimes dangerous appeals not because they may prove true but because freedom of speech is indivisible. That liberty cannot be denied to some ideas and saved for others.”
In the other judgment of Madras High Court (authored by Chief Justice Sanjay Kishan Kaul, as he then was) quashing the banning order of Perumal Murugan’s novel, “Madhorubagan”, which was translated into English as “One Part Woman”, the Court observed:
“The novel in question, “Madhorubagan” also attempts to depict the current mores and the stigmas attached to childlessness, with specific reference to the Indian context.” “The novel shakes you, but not in the manner its opponents seek to profess. It jolts you, because it succinctly sets forth the pain and sufferance depicted through the words of this childless couple. That is the take away from the novel.”
In the process, Justice Kaul cited Salman Rushdie “it is very easy not to be offended by a book, you simply have to close it” reminding us that banning a novel is not always the answer, to be offended by a piece of literature is in your hands, literally and figuratively.
A case came up before me in the Delhi High Court which was regarding the movie Mangal Pandey. The plaintiffs in that case claimed to be the descendants Mangal Pandey, the first martyr of our freedom struggle, and filed the suit on the grounds that the depiction of Mangal Pandey in the movie as being involved with a prostitute was defamatory, derogatory as well as objectionable. A novel or a movie, which takes inspiration from certain historical facts or characters, cannot be deemed to be true account of history. It isn’t a book of history, or a documentary, it is a literary work and authors enjoy a great degree of freedom to express, even on sexuality. To strengthen this view, aid of literature was taken in the following form:
“To quote from Sudhir Kakkar's Intimate Relations-Exploring Indian Sexuality I have always felt, at least for a society such as India where individualism even now stirs but faintly, that it is difficult to maintain a distinction between folktales and myths as products of collective fantasy on the one hand and movies and literature as individual creations on the other. The narration of a myth or a folktale almost invariably includes as individual variation, a personal twist by the narrator in the omission or addition of details and the placing of an accent, which makes his personal voice discernible within the collective chorus.
Most Indian novels, on the other hand, are closer in spirit to the literary tradition represented by such nineteenth-century writers as Dickens, Balzac, and Stendhal, whose preoccupation with the larger social and moral implications of their characters' experience is the salient feature of their literary creations. In other words, it is generally true of Indian literature, across the different regional languages, that the fictional characters, in their various struggles, fantasies, unusual fates, hopes, and fears, seek to represent their societies in miniature.”
“The hard reality is that even the recording of history is never based on facts alone. There is an element of fiction in the work of historians also. The physicist Leo Szirard once announced to his friend Hans Bethe that he was thinking of keeping a diary; I don't intend to publish. I am merely going to record the facts for the information of God . Don't you think God knows the fact? Bethe asked. Yes Said Szirard, He knows the facts but He does not know this version of the facts.”
Law in literature comes into play while deciding copyright issues as well. Freedom of expression has been put on a pedestal and rightfully so, for this right didn’t easily fall into our laps, hence must be cherished and upheld. It is this fundamental right that authors enjoy in our country and it’s their creativity that our law also safeguards. Creativity is the essence of a literary work, hence a number of literary works that transgress the boundaries of what makes them a novel form of art are met with repercussions by our Copyright Laws.
The Delhi High Court was confronted with a case where it had to determine whether movie titles would amount to literary works. An action for permanent injunction was brought by Kanuago Pvt. Ltd. regarding the title ‘Nisshabd’ which it had adopted for its Bengali film that was subsequently released at various film festivals as later RGV film factory had released a Hindi Commercial film called ‘Nishabd’ which starred Amitabh Bachchan in the lead. Kanuago Pvt. Ltd. claimed that that the two titles were deceptively similar. The High Court relied on the practice in the United States where Film titles are protected under the Trade Marks Act rather than the Copyright Act however the court did go on and state that in order to extend the protection to the title of a single copyrighted work, it must be proven by the plaintiff that the title has acquired such reputation that it has obtained a secondary meaning. Intellectual Property rights are sacred rights that are treasured by creative artists around the world as creativity is unique, each artist is blessed or acquires it, and this precious creativity draws inspiration and produces works that further inspires people, is appreciated/applauded by the public and respected by the law.
Intellectual Property litigation has been on the rise, our laws have seen amendments, and India has come a long way in this field for it’s the opinions of people that make up a society, it is their opinions that constitute the law, and its also their opinions that form literature, and it is this relationship between law and literature that forms the crux of a civilised nation.
Law, an armour worn when threat to creativity would ensue,
Inspiring literature with the loss of vice and the triumph of virtue,
For the two are bound in more ways than one, hard to amiss,
Their affinity such with the desire to achieve what many call ‘poetic justice’.
The author is an International Judge, Singapore International Commercial Court and a former judge of the Supreme Court of India.
 Richard Posner Law and Literature 3rd Edition
 Robert Weisberg, in his article “The Law-Literature Enterprise” divided the relationship as (1) law in literature and (2) law as literature.