A case involving a minor publication, a union bulletin, has found its way to the Supreme Court because an important question of law has been raised — is freedom of expression an absolute right, or must it be tempered by real-world concerns? The court has ruled in favour of the latter, invoking the “contemporary community standards test” to find that the publication of a poem containing bad language addressed to Mahatma Gandhi constitutes an act of obscenity. It is well considered but problematic, too.
The test in question was developed as the US legal system’s attempt to diagnose obscenity, which happened in the course of two landmark cases, Roth vs United States and Miller vs California. Disappointingly, these cases did not involve Philip Roth or Arthur Miller, but they did establish two important standards: obscenity must be found with respect to a whole document, not its parts, and must be found relative to prevailing community standards. Logically, the first standard is widely applicable, but the relativism involved in the second could prevent it from travelling well. India contains a myriad communities whose borders are demarcated by language, ethnicity, faith, caste, class, location and other factors which define a constantly shifting social matrix. Any mix of factors used to define a community fit to evaluate the quality of creative work may be found to be subjective. Besides, in the case in question, the offending text was written in the Eighties and published in the Nineties. One doubts if the courts can find a reliable witness who can exactly recall the commonly agreed norms of cultural acceptability which prevailed at the time, and by which alone the status of the work in question may be judged.
