Will Madras High Court redeem itself going forward from Perumal Murugan order?

The vilification of Perumal Murugan is not the first in recent memory. We have witnessed similar attacks on authors and celebrities- from Khushbu to MF Husain.
Will Madras High Court redeem itself going forward from Perumal Murugan order?
Will Madras High Court redeem itself going forward from Perumal Murugan order?
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At a time when advocates of Tamil Nadu are agitating against the draconian Rules made by the High Court under the aegis of the Chief Justice Mr. Kaul under the Advocates Act because the impugned Rules restrict the freedom of speech and expression of practicing advocates, the Court has redeemed itself as a champion protecting the very same freedom of speech, that of a writer – Perumal Murugan. In a classical judgment, the Division Bench of the Madras High Court presided by the Chief Justice and Justice Pushpa Sathyanarayana, upheld the constitutional rights of the author Perumal Murugan. It has already captured the attention of the media and is widely commented upon.

Readers may recollect the controversy surrounding the Tamil novel “Mathorubagan” authored by Perumal Murugan and published in 2011. It was translated by Aniruddhan Vasudevan into English and titled “One Part Woman”. The original work as well as the translation are critically acclaimed and have won several literary accolades. It narrates the story of an infertile couple who suffer social stigma given their childlessness and eventually how the wife finally succumbs to the age old custom of opting for a ‘Child of God’ by having sex with a stranger during the 14th day of the Arthanareeswarar Temple festival at Thiruchengode. This customary practice is said to be prevalent in the area among the devotees. Caste organisations conducted protest meetings and even a bandh in Tiruchengode town seeking ban of the book. During ‘peace talks’, Perumal Murugan was pressured by the District Revenue Officer to tender an ‘unconditional apology’ and sign an agreement wherein he agrees to withdraw all unsold copies of the book. Consequently, Perumal Murugan published a now famous post on Facebook saying that the ‘Author has died’ and withdrew all his books.

The author Perumal Murugan was thus coerced and browbeaten by private parties acting with vested interests. The State authorities, in the guise of preventing a ‘law and order situation’, forced him into silence rather than protecting him against unlawful threats. It is against this background that the Madras High Court heard writ petitions preferred by persons and organisations supporting Perumal Murugan seeking a declaration that the settlement that he was forced into signing was invalid, as well as those seeking ban the book claiming that it was obscene and defamatory to the people of Tiruchengode as it portrayed them as being promiscuous and prosecute the author for the same. The petitioners also sought guidelines that may be applied in case of “extra-judicial groups threatening authors and writers”.

The judgment in this case was much anticipated because Chief Justice Kaul authored the landmark M.F.Husain judgment (when he was a judge of the Bombay High Court). The 160-page judgment in this case starts with the oft-invoked quote from Voltaire: “I may not agree with what you say, but will defend to the death, your right to say it” and this sentiment is echoed throughout the judgment. It is a compulsive read that does a detailed literary analysis of “Madhorubagan” quoting extensively from the novel and its reviews.  The Court held that the novel was not obscene since the work needs to be read as a whole. Depiction of sex or usage of profanity alone does not make a work obscene. The Court also observed that the controversy around the book arose over 4 years after its original publication when the English translation was published. The attacks were not spontaneous, but organized by persons and organisations deliberately to drag the author into a controversy. The Court cautions us that a puritan morality cannot be allowed to subsume the pluralist society in which we live. Finally, the Court also has drafted some minimalist guidelines for the State reminding it that its primary duty lies in protecting the author/speaker and their freedom of speech and expression rather than silencing them ostensibly to prevent ‘law and order’ situations.  

The vilification of Perumal Murugan is not the first in recent memory. We have witnessed similar attacks on authors and celebrities– Khushboo for giving an interview in which she said women should not be expected to be virgins before marriage; M.F. Husain for his Bharat Mata painting, to name a few. Though in each of these cases, criminal charges against the authors were ultimately quashed and they were exonerated by Courts, they were subject to a long and grueling process. This process is the punishment, to use an oft-invoked phrase.

India has a checkered history with regard to free speech. Whilst our Constitution guarantees the right to freedom of speech and expression as a fundamental right under Article 19(1)(a), an enabling environment that fosters the right to express oneself freely does not exist. The popular culture is one of intolerance and bullying. As many commentators have observed, we are in the business of taking offence. Unpopular and unconventional expressions are met with abuse and violence. The law is invoked, most often against the constitutional spirit, to silence controversial or unpopular speech. The State is often complicit in such violence by either prosecuting the author, or indirectly by forcing a settlement as in this case.  The State has a positive duty to enable an environment in which authors and common persons alike can express themselves without fear. 

Courts have, for the most part, been valuable allies to authors in protecting their right to free speech. The new amended Rules under the Advocates Act made by the Madras High Court severely restricts the advocates’ right to protest and express themselves. Several Bar associations in Tamil Nadu and Pondicherry have reacted by boycotting the Courts indefinitely asking the High Court to withdraw the Rules. It could only be hoped that the High Court would show consistency in its zeal to protect free speech and extend it to advocates as well. Borrowing from Chief Justice Kaul’s parting observation in the judgment: “Let the author be resurrected to what he is best at. Write”, let the advocates be resurrected to what they do best. Argue in Courts.

Sudha Ramalingam is a senior lawyer and human rights activist.

(Note: The views expressed here are the personal opinion of the author)

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