Hon'ble Judges/Coram:
Dipak Misra and Prafulla C. Pant

JUDGMENT

Dipak Misra, J.

The Controversy

1. The seminal issue that spiralled in the course of hearing of this appeal centres around the question framed vide order dated 18.2.2015, for this Court thought it apposite to answer, whether the poem titled "Gandhi Mala Bhetala" ('I met Gandhi') in the magazine named the 'Bulletin' which was published, in July-August, 1994 issue, meant for private circulation amongst the members of All India Bank Association Union, could in the ultimate eventuate give rise to framing of charge Under Section 292 Indian Penal Code against the author, the publisher and the printer. The question framed reads thus:

Regard being had to the importance of the matter, we had sought the assistance of Mr. Fali S. Nariman, learned senior Counsel, to assist the Court, and he has gladly rendered. At the time of hearing, we have asked the learned senior Counsel, learned Amicus Curiae, to assist the Court as regards the proposition whether in a write-up or a poem, keeping in view the concept and conception of poetic license and the liberty of perception and expression, use the name of a historically respected personality by way of allusion or symbol is permissible.

Mr. Gopal Subramanium, learned senior Counsel, appearing for the Appellant, in his written note of submissions, has segregated the said question into five parts, namely, (a) whether there could be a reference to a historically respected personality; (b) could that reference be by way of allusion or symbol; (c) could that allusion be resorted to in a write-up or a poem; (d) whether the conception and concept of poetic license permits adopting an allusion; and (e) whether any of the above could involve ascribing words or acts to a historically reputed personality which could appear obscene to a reader. He has urged with solemn vehemence that when the author is not represented before the Court, adjudication on an important issue which fundamentally relates to freedom of thought and expression, would be inappropriate and a poem or a write-up is indeed a part of free speech and expression, as perceived Under Article 19(1)(a) of the Constitution and that apart the expression "poetic licence" is neither a concept nor a conception because the idea of a poetic freedom is a guaranteed and an enforceable fundamental right and this Court should not detract and convert it into a permissive licence. Additionally, learned senior Counsel has contended that quintessential liberty of perception and expression when placed in juxtaposition with "poetic licence", is inapposite since the expression "permissible" sounds a discordant note with "liberty of perception and expression", a sacrosanct fundamental right, integral to human dignity, thought, feeling, behaviour, expression and all jural concepts of human freedom guaranteed not only under the Constitution but even recognised under the International Covenants, for they can never be placed in the company or association of expressions such as "license" or "permissibility". Emphasising on the said facet, submitted Mr. Subramanium that the Constitution has liberated the citizens from 'license' and 'permissibility'........