DEVIDAS RAMACHANDRA TULJAPURKAR Vs. STATE OF MAHARASHTRA & ORS.

INDIAN PENAL CODE, 1860

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), 1179 of 2010, Judgment Date: May 14, 2015

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1179 OF 2010

Devidas Ramachandra Tuljapurkar ... Appellant

Versus

State of Maharashtra & Ors. ...Respondents

J U D G M E N T

Dipak Misra, J.

The Controversy
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 IPC
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’, which are expressions of disempowerment and the
entire freedom struggle was centered around the concept of empowerment.
There is a suggestion in the written note of submissions to place the
matter before a Bench of five Judges as enshrined under Article 145(3) of
the Constitution. In spite of the said submission, learned senior counsel,
we must appreciably state, has copiously dealt with the issues that have
emerged from the question, in his written note of submissions.
Mr. Fali S. Nariman, learned senior counsel and amicus curiae supported the
phraseology in the question with immense intellectual vigour, patience,
perseverance and endeavour and submitted that the issue that this Court has
thought of addressing is absolutely invulnerable and unalterable as the
Constitution of India does not recognise absolute freedom and Article 19(2)
of the Constitution regulates the same and Section 292 IPC being a
provision which is saved by Article 19(2), the presence or absence of the
author is immaterial; what is to be seen is whether the poem prima facie
exhibits obscenity, especially, in the context of Mahatma Gandhi, the
“Father of the Nation”, as the identity of the historically respected
personality is absolutely clear and there is no scintilla of doubt in the
mind of any average reader. Learned amicus curiae would submit that the
question deserves to be dealt with and answered in proper perspective.

Clarification of the question framed
2. We are obligated to clarify the position. It is apt to state here
the question framed by us has to be contextually understood. The question
was framed in the factual matrix of the case. The proposition presented is
that despite all the poetic licence and liberty of perception and
expression, whether ‘poem’ or ‘write-up’ can use the name of a historically
respected personality by way of an allusion or symbol in an obscene manner.
“Historically respected personality” was used in the backdrop of the use
of the name of Mahatma Gandhi. When the name of such a respected
personality is used as an allusion or symbol, and language is revoltingly
suggestive whether that is likely to come within the perceived ambit and
sweep of Section 292 IPC, whether it is permissible. We shall dwell upon
this facet when we will discuss the poem in a prima facie manner, for the
purpose of scrutinising the order framing charge; and we shall also deal
with the submission of Mr. Subramanium, which has been assiduously put
forth by him that the name of Gandhi has been used as a surrealistic voice
and hence, the poet is entitled to use the language as a medium of
expression in the poem. We do not intend to catalogue names of
historically respected personalities as that is not an issue in this case.
Here the case rests on the poem titled “I met Gandhi”. As far as the words
“poetic license”, are concerned, it can never remotely mean a license as
used or understood in the language of law. There is no authority who
gives a license 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. He is free to depart from the reality; fly away from
grammar; walk in glory by not following the systematic metres; coin words
at his own will; use archaic words to convey thoughts or attribute
meanings; hide ideas beyond myths which can be absolutely unrealistic;
totally pave a path where neither rhyme nor rhythm prevail; can put serious
ideas in satires, ifferisms, notorious repartees; take aid of analogies,
metaphors, similes in his own style, compare like “life with sandwiches
that is consumed everyday” or “life is like peeling of an onion”, or
“society is like a stew”; define ideas that can balloon into the sky never
to come down; cause violence to logic at his own fancy; escape to the
sphere of figurative truism; get engrossed in “universal eye for
resemblance”, and one can do nothing except writing a critical appreciation
in his own manner and according to his understanding. When the poet says
“I saw eternity yesterday night”, no reader would understand the term
‘eternity’ in its prosaic sense. The Hamletian question has many a layer;
each is free to confer a meaning; be it traditional or modern or
individualistic. 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. One may concentrate on
classical facets and one may think at a metaphysical level or concentrate
on romanticism as is understood in the poems of Keats, Byron or Shelley or
one may dwell on the nature and write poems like William Wordsworth whose
poems, say some, are as didactic. One may also venture to compose like
Alexander Pope or Dryden or get into individual modernism like Ezra Pound,
T.S. Eliot or Pablo Neruda. That is fundamentally what is meant by poetic
license.
3. We may slightly delve into the area in Sanskrit literature that gave
immense emphasis on aesthetics. The concept of rasa though mentioned in
the Vedas and by Valmiki gets consummate expression in all its complexity
with Bharata when he introduces it to explain aesthetic experience.
“Vibhavanubhav vyabhichari sanyogadrasnishpati”. Bharata discusses in
detail the contributing factors like vibhavas, anubhavas, vybhicharibhavas
and sthayibhavas. Dandin emphasises on lucidity, sweetness, richness and
grandeur to basically constitute poetry and that is why it is said
“Dandinha Padlalityam”. Some critics like Vamana, stressing on soul of
poetry perceive ‘riti’ as “Ritiraatma kavyasya”. Some also subscribe to
the theory that ‘rasa’ gets expressed through dhvani. There are thinkers
who compare writings of T.S. Eliot, when he states poetic delineation of
sentiments and feelings, to have the potentiality of being associated with
the ‘element of surprise’ which is essential to poetry, and there he is
akin to Indian poeticians like Kuntaka who called poetry ‘vakrokti’ which
he explains as “vaidagdhyabhangibhaniti” – a mode of expression depending
on the peculiar turn given to it by the skill of the poet. Some emphasise
on “best words used in best order” so that poem can attain style and
elevation. To put it differently, the ‘poetic licence’ can have individual
features, deviate from norm, may form collective characteristics or it may
have a linguistic freedom wider than a syntax sentence compass.
4. We have emphasised on these facets as we are disposed to think that
the manner in which the learned senior counsel has suggested the meaning of
‘poetic license’ is not apt. Freedom of writing is not in question. That
cannot be. And we say so without any fear of contradiction.
5. In course of our judgment, we shall deal with the other facets that
have been so assiduously put forth by Mr. Subramanium and so indefatigably
controverted by Mr. Fali S. Nariman, learned amicus curiae.
The factual score
6. As far as the suggestion given for placing the matter before a five-
Judge Bench, we are of the considered view that there is no need for the
same.
7. Presently, we shall state the exposition of facts. On the basis of a
complaint lodged by one V.V. Anaskar, a resident of Pune, and a member of
‘Patit Pawan Sangthan’, with the Commissioner of Police, relating to the
publication of the poem, which was published, in July-August, 1994, meant
for private circulation amongst the members of All India Bank Association
Union, a crime was registered as FIR No. 7/95 at P.S. Gandhi Chowk, Latur,
on being transferred from Pune, for the offences punishable under Sections
153-A and 153-B read with Section 34, IPC and eventually after due
investigation charge sheet was filed for the said offences along with 292,
IPC against the present appellant, the publisher and the printer,
respondent no.3, of the Bulletin and the author, one Vasant Dattatraya
Gujar. When the matter was pending before the Chief Judicial Magistrate,
Latur, all the accused persons filed an application for discharge and the
learned Magistrate by order dated 4.5.2001 held that no case for the
offences under Sections 153-A and 153-B was made out and accordingly
discharged them of the said offences but declined to do so in respect of
the offence under Section 292, IPC. On a revision being filed, the learned
Additional Sessions Judge did not think it appropriate to interfere with
the order passed by the trial Magistrate which constrained the accused
persons to invoke jurisdiction under Section 482 of the CrPC and the High
Court of Bombay, Aurangabad Bench dismissed the application. The said
decision is the subject of matter of this appeal by special leave at the
instance of the publisher. The author has chosen not to assail the order
passed by the High Court.

Concept of obscenity
8. Apart from submitting that the orders passed by all the Courts are
absolutely perverse and deserve to be lancinated, it is submitted by Mr.
Subramanium, learned senior counsel that to appreciate the question framed
by this Court, despite his reservation on the legal score as regards its
phraseology, the meaning of the term “obscenity” has to be appositely
understood. He has referred to the Black’s Law Dictionary that defines
obscenity as follows:-
“Obscene, adj. (16c) - Extremely offensive under contemporary community
standards of morality and decency; grossly repugnant to the generally
accepted notions of what is appropriate. Under the Supreme Court's three-
part test, material is legally obscene - and therefore not protected under
the First Amendment - if, taken as a whole, the material (1) appeals to the
prurient interest in sex, as determined by the average person applying
contemporary community standards; (2) portrays sexual conduct, as
specifically defined by the applicable state law, in a patently offensive
way; and (3) lacks serious literary, artistic, political, or scientific
value. Miller v. Callifornia, 413 U.S. 15, 93 S.Ct. 2607 (1973).

If there be no abstract definition, ... should not the word 'obscene' be
allowed to indicate the present critical point in the compromise between
candor and shame at which the community may have arrived here and now?”
United States V Kennerley, 209 F. 119, 121 (S.D.N.Y.1913) (per Hand.J.)”

9. The learned senior counsel has also referred to the decision of the
Allahabad High Court in Kamla Kant Singh
Vs. Chairman/ManagingDirector, Bennetta Colman and Company Ltd. and
Ors.[1], wherein the High Court dealt with the meaning of the word
‘obscenity’. The delineation is as follows:-

“15. The word obscenity has been explained in ‘Jowitts' Dictionary of
English Law as follows:

“An article is deemed to be obscene, if its effect, or where the article
comprises two or more distinct items, the effect of any one of its items if
taken as a whole, is to tend to deprave and corrupt persons, who are likely
having regard to all the relevant circumstances to read, to see or hear
matters contained or embodied in it. (See R. v. Claytone and Hasley, (1963)
1 QB 163, R. v. Anderson, (1972) 1 QB 304)". Obscenity and depravity are
not confined to sex. (See John Calder Publications v. Powell, (1965) 1 QB
509.)

16. …According to Black's Law Dictionary obscenity means character or
quality of being obscene, conduct, tending to corrupt the public merely by
its indecency or lewdness. According to Webster's New International
Dictionary, word 'obscene' means disgusting to the senses, usually because
of some filthy grotesque or unnatural quality, grossly repugnant to the
generally accepted notions of what is appropriate.”

10. The High Court of Madras in Public Prosecutor v. A.D. Sabapathy[2],
has opined that the word “obscene” must be given its ordinary and literal
meaning, that is, ‘repulsive’, ‘filthy’, ‘loathsome’, ‘indecent’ and
‘lewd’. The learned senior counsel has also referred to the judgment of
Supreme Court of Canada in R. v. Beaver[3], wherein Maclaren, J.A., has
defined ‘obscene’ as follows:-
“The word 'obscene' … was originally used to describe anything disgusting,
repulsive, filthy or foul. The use of the word is now said to be somewhat
archaic or poetic; and it is ordinarily restricted to something offensive
to modesty or decency, or expressing or suggesting unchaste or lustful
ideas, or being impure, indecent, or lewd."

11. After generally referring to the meaning of the term obscenity,
learned senior counsel has emphasised on the tests adopted in various
countries relating to obscenity. Mr. Subramanium has referred to various
authorities of United Kingdom, United States of America, European Courts
and this Court to pyramid the proposition that the tests laid down by legal
system including the authorities of this Court do not suggest that that the
instant poem can remotely be treated as obscene. First, we shall dwell
upon the tests and standards laid by various Courts and then the binding
authorities of this Court and thereafter to the concept of freedom of
speech and expression on the constitutional parameters and finally delve to
adjudge the facet of obscenity and address applicability of the determined
test in the context of the question and ultimately the nature of the poem
and the justifiability of the order impugned.

Test evolved in United Kingdom
12. As far as United Kingdom is concerned, Mr. Subramanium has referred
to Regina v. Hicklin[4], the meaning given by Cockburn C.J. and drawn our
attention to the Article by J.E. Hall Williams in Obscenity in Modern
English Law[5] wherein the learned author observed that Hicklin (supra)
gave a complete go by to the principle of “mens rea” which propounds a
certain degree of protection to the accused. The learned author was
critical on the concept of presumption as propounded in Hicklin (supra).
In the said article, learned author referred to certain observations in R.
v. Martin Secker & Warburg LD[6]. In the said case, Stable J. has stated
“The test of obscenity to be applied today is extracted from a decision of
1868; it is this: “…. Whether the tendency of the matter charged as
obscenity is to deprave and corrupt those whose mind are open to such
immoral influences, and into whose hands a publication of this sort may
fall.” Because this test was laid down in 1868, that does not mean that
you have to consider whether this book is an obscene book by the standards
of nearly a century ago. Your task is to decide whether you think that the
tendency of the book is to deprave those whose minds today are open to such
immoral influences and into whose hands the book may fall in this year, or
last year when it was published in this country. Considering the curious
change of approach from one age to another, it is not uninteresting to
observe that in the course of the argument of the case in 1868 the
rhetorical question was asked: “What can be more obscene than many pictures
“publicly exhibited, as the Venus in the Dulwich Gallery?” There are some
who think with reverence that man is fashioned in the image of God, and you
know that babies are not born in this world, be they of either sex, dressed
up in a frock-coat or an equivalent feminine garment.

We are not sitting here as judges of taste. We are not here to say whether
we like a book of this kind. We are not here to say whether we think it
would be a good thing if books like this were never written. You are here
trying a criminal charge and in a criminal court you cannot find a verdict
of “Guilty” against the accused unless, on the evidence that you have
heard, you and each one of you are fully satisfied that the charge against
the accused person has been proved.

Remember the charge is a charge that the tendency of the book is to corrupt
and deprave. The charge is not that the tendency of the book is either to
shock or to disgust. That is not a criminal offence. Then you say: “Well,
corrupt or “deprave whom?” and again the test: those whose minds are open
to such immoral influences and into whose hands a publication of this sort
may fall. What, exactly, does that mean? Are we to take our literary
standards as being the level of something that is suitable for a fourteen-
year-old school girl? Or do we go even further back than that, and are we
to be reduced to the sort of books that one reads as a child in the
nursery? The answer to that is: Of course not. A mass of literature,
great literature, from many angles is wholly unsuitable for reading by the
adolescent, but that does not mean that the publisher is guilty of a
criminal offence for making those works available to the general public.”

In the ultimate eventuate, the learned Judge concluded, thus:-
“I do not suppose there is a decent man or woman in this court who does not
whole-heartedly believe that pornography, the filthy bawdy muck that is
just filth for filth’s sake, ought to be stamped out and suppressed. Such
books are not literature. They have got no message; they have got no
inspiration; they have got no thought. They have got nothing. They are
just filth and ought to be stamped out. But in our desire for a healthy
society, if we drive the criminal law too far, further than it ought to go,
is there not a risk that there will be a revolt, a demand for a change in
the law, and that the pendulum may swing too far the other way and allow to
creep in things that at the moment we can exclude and keep out?”

The aforesaid view of Stable, J. resulted in declaring the accused
not guilty.
13. In England on July 29, 1959, the Obscene Publication Act, 1959 (for
short, “the 1959 Act”) was enacted to amend the law relating to publication
of obscene matters, provided for the protection of literature and to
strengthen the law concerning pornography. Section 1(1) of the 1959 Act
reads as follows:-
“1. – (1) For the purposes of this Act an article shall be deemed to be
obscene if its effect or (where the article comprises two or more distinct
items) the effect of any one of its items is, if taken as a whole, such as
to tend to deprave and corrupt persons who are likely, having regard to all
relevant circumstances, to read, see or hear the matter contained or
embodied in it.”

14. Section 4 of the 1959 Act stipulates that a person accused of
obscenity shall not be convicted if it is proved that the publication in
question is justified for public good as it is in the interest of art,
literature, science, etc. The said provision is as follows:-
“4 (1) A person shall not be convicted of an offence against section two of
this Act, and an order for forfeiture shall not be made under the foregoing
section, if it is proved that publication of the article in question is
justified as being for the public good on the ground that it is in the
interests of science, literature, art or learning, or of other objects of
general concern. (2) It is hereby declared that the opinion of experts as
to the literary, artistic, scientific or other merits of an article may be
admitted in any proceedings under this Act to establish or to negative the
said ground.”

15. Mr. Subramanium, learned senior counsel has referred to R. v. Penguin
Books Ltd.[7] where the Court was dealing with the publication of the book
‘Lady Chatterley’s Lover’ by the Penguin Books. The said case ended with
“not guilty verdict” as a consequence of which the book was allowed to be
openly published and was sold in England and Wales.
16. In R. v. Peacock[8], a verdict, an unreported one, rendered on
January 6, 2011 by Southwark Crown Court, London, submitted Mr.
Subramanium, has resulted in great upsurge in the demand for a review in
the obscenity laws in England and Wales. In the said case, Michael
Peacock, was charged on indictment with six counts under the 1959 Act for
allegedly distributing the obscene DVDs that contained videos of homosexual
sadomasochism and BDSM pornography. The accused in the said case
successfully pleaded not guilty. The legal experts of England and Wales
started opining that the 1959 Act had become redundant.
17. Relying on the aforesaid authorities, it is submitted by Mr.
Subramanium, learned senior counsel appearing for the appellant that
Hicklin test in its original has been abandoned in United Kingdom and the
approach has been more liberal regard being had to the developments in the
last and the present century. It is his submission that the perception of
the Victorian era or for that matter, thereafter has gone through a sea-
change in the last part of 20th century and in the first part of this
century and the freedom of speech and expression has been put on a high
pedestal in the modern democratic republic. It is urged by him that in the
digital age, the writings and the visuals do no longer shock or deprave or
corrupt any member of the society as the persons are capable enough to
accept what is being stated and not to be depraved or corrupted.

Prevalent Tests in the United States of America
18. Presently, we shall proceed to deal with the prevalent test in the
United States of America. Learned senior counsel for the appellant has
taken us to various authorities of the U.S. Supreme Court and other Courts.
In Chaplinsky v. New Hampshire[9], the appellant, a member of the sect
known as Jehovah’s Witnesses, was convicted in the Municipal Court of
Rochester, New Hampshire for violation of Chapter 378, Section 2 of the
Public Laws of New Hampshire. In course of time, the appellant raised the
questions that the statute was invalid under the Fourteenth Amendment of
the Constitution of the United States as it placed an unreasonable
restriction on freedom of speech, freedom of press and freedom of worship
and further it was vague and indefinite. Be it noted, the challenge was
made in the highest court of the United States that declared that the
statutes purpose was to preserve the public peace and it did not violate
the constitutional framework. The Court observed allowing the broadest
scope to the language and purpose of the Fourteenth Amendment, it is well
understood that the right to free speech is not absolute at all times and
under all circumstances.
19. In Roth v. United States[10], the principal question was whether the
Federal Obscenity Statute violated the First Amendment of the US
Constitution which guaranteed freedom of speech. The Court held that free
speech is provided under the First Amendment gave no absolute protection
for every utterance. We may profitably reproduce the observations made
therein:-
“All ideas having even the slightest redeeming social importance –
unorthodox ideas, controversial ideas, even ideas hateful to the prevailing
climate of opinion-have the full protection of the guaranties, unless
excludable because they encroach upon the limited area of more important
interests. But implicit in the history of the First Amendment is the
rejection of obscenity as utterly without redeeming social importance.
This rejection for that reason is mirrored in the universal judgment that
obscenity should be restrained, reflected in the international agreement of
over 50 nations, in the obscenity laws of all of the 48 States.”

The Court further opined that:
“We hold that obscenity is not within the area of constitutionally
protected speech or press.”

20. In Memoirs v. Masachusetts[11], while explaining the term
‘obscenity’, the Court referred to the Roth (supra) and stated thus:-

“3. We defined obscenity in Roth in the following terms: “[W]hether to
the average person, applying contemporary community standards, the dominant
theme of the material taken as a whole appeals to prurient interest.” Under
this definition, as elaborated in subsequent cases, three elements must
coalesce: it must be established that (a) the dominant theme of the
material taken as a whole appeals to a prurient interest in sex; (b) the
material is patently offensive because it affronts contemporary community
standards relating to the description or representation of sexual matters;
and (c) the material is utterly without redeeming social value.”

After so stating, the U.S. Supreme Court proceeded to consider
whether the book in question could be stated to be truly without social
importance. Thus, there was no departure from the redeeming social
importance test, but it also introduced “contemporary community standards”
test.
21. In Marvin Miller vs. State of California[12], while rejecting the
‘redeeming social value’ test as laid down in Roth (supra) and followed in
Memoirs (supra), the US Court established three pronged test which are as
follows:-
“15. The case we now review was tried on the theory that
the California Penal Code § 311 approximately incorporates the three-stage
Memoirs test, supra. But now the Memoirs test has been abandoned as
unworkable by its author,[13] and no Member of the Court today supports the
Memoirs formulation.

17. The basic guidelines for the trier of fact must be: (a) whether 'the
average person, applying contemporary community standards' would find that
the work, taken as a whole, appeals to the prurient interest, Kois v.
Wisconsin, supra, 408 U.S., at 230, 92 S.Ct., at 2246, quoting Roth v.
United States, supra, 354 U.S., at 489, 77 S.Ct., at 1311; (b) whether the
work depicts or describes, in a patently offensive way, sexual conduct
specifically defined by the applicable state law; and (c) whether the work,
taken as a whole, lacks serious literary, artistic, political, or
scientific value. We do not adopt as a constitutional standard the 'utterly
without redeeming social value' test of Memoirs v. Massachusetts, 383 U.S.,
at 419, 86 S.Ct., at 977; that concept has never commanded the adherence of
more than three Justices at one time[14]. See supra, at 21. If a state law
that regulates obscene material is thus limited, as written or construed,
the First Amendment values applicable to the States through the Fourteenth
Amendment are adequately protected by the ultimate power of appellante
courts to conduct an independent review of constitutional claims when
necessary.”

22. The US Supreme Court in Miller (supra) stated that the application
and ascertainment of ‘contemporary community standards’ would be the task
of the Jury as they best represent the ‘contemporary community standards’.
The Court observed:-
“19. Sex and nudity may not be exploited without limit by films or pictures
exhibited or sold in places of public accommodation any more than live sex
and nudity can be exhibited or sold without limit in such public
places.[15] At a minimum, prurient, patently offensive depiction or
description of sexual conduct must have serious literary, artistic,
political, or scientific value to merit First Amendment protection. For
example, medical books for the education of physicians and related
personnel necessarily use graphic illustrations and descriptions of human
anatomy. In resolving the inevitably sensitive questions of fact and law,
we must continue to rely on the jury system, accompanied by the safeguards
that judges, rules of evidence, presumption of innocence, and other
protective features provide, as we do with rape, murder, and a host of
other offenses against society and its individual members.[16]

25. Under a National Constitution, fundamental First Amendment limitations
on the powers of the States do not vary from community to community, but
this does not mean that there are, or should or can be, fixed, uniform
national standards of precisely what appeals to the 'prurient interest' or
is 'patently offensive.' These are essentially questions of fact, and our
Nation is simply too big and too diverse for this Court to reasonably
expect that such standards could be articulated for all 50 States in a
single formulation, even assuming the prerequisite consensus exists. When
triers of fact are asked to decide whether 'the average person, applying
contemporary community standards' would consider certain materials
'prurient,' it would be unrealistic to require that the answer be based on
some abstract formulation. The adversary system, with lay jurors as the
usual ultimate factfinders in criminal prosecutions, has historically
permitted triers of fact to draw on the standards of their community,
guided always by limiting instructions on the law. To require a State to
structure obscenity proceedings around evidence of a national 'community
standard' would be an exercise in futility.”

23. In Reno v. American Union of Civil Liberties[17], the plaintiffs
filed a suit challenging the constitutionality of provisions of
Communications Decency Act, 1996 (CDA). The central issue pertained to the
two statutory provisions enacted to protect minors from ‘indecent’ and
‘patently offensive’ communication on the internet. The Court declared
that Section 223(a)(1) of the CDA which prohibited knowing transmission of
obscene or indecent messages to any recipient under 18 years of age and
Section 223(d)(1) of the said Act which prohibited knowing, sending and
displaying of obscene or indecent messages to any recipient under 18 years
of age, to be abridging “the freedom of speech” protected by the First
Amendment.
24. In State of Oregon v. Earl A. Henry[18], the Oregon Supreme Court
declared the offence of obscenity to be unconstitutional as it was in
violation of Article I, Section 8 of the Oregon Constitution that provides
for freedom for speech and expression. Article I Section 8 reads thus:-
“No law shall be passed restraining the free expression of opinion, or
restricting the right to speak, write, or print freely on any subject
whatever; but every person shall be responsible for the abuse of this
right.”

25. The State Statute of Oregan i.e. ORS 167.087 that criminalized
selling, exhibiting, delivery and dissemination of obscene material was
struck down as being violative of Article I Section 8. The Oregon SC held
thus:-

“The indeterminacy of the crime created by ORS 167.087 does not lie in the
phrase “sexual conduct” that is further defined in ORS 167.060 (10). It
lies in tying the criminality of a publication to “contemporary state
standards.” Even in ordinary criminal law, we doubt that the legislature
can make it a crime to conduct oneself in a manner that falls short of
“contemporary state standards.” In a law censoring speech, writing or
publication, such an indeterminate test is intolerable. It means that
anyone who publishers or distributes arguably “obscene” words or pictures
does so at the peril of punishment for making a wrong guess about a future
jury’s estimate of “contemporary state standards” of prurience.”

As we understand, with the passage of time tests have changed and
there are different parameters to judge obscenity but the authorities
clearly lay down that the freedom of speech is not absolute on all
occasions or in every circumstance.

Comparables Test
26. Mr. Subramanium has pointed out that in American Jurisprudence the
argument of “comparables” has gained considerable force in cases of
obscenity and freedom of speech. He has referred to Joan Schleef’s note on
United States v. Various Articles of Obscene Merch[19] wherein the learned
author has shown comparables test. Explaining the said concept, the
learned author projects that the gist of the comparables argument is that
in determining whether materials are obscene, the trier of fact may rely on
the widespread availability of comparable materials to indicate that the
materials are accepted by the community and hence, not obscene under the
Miller test. The learned senior counsel has also referred to an article,
namely, Judicial Erosion of Protection for Defendants in Obscenity
Prosecutions? When Courts Say, Literally, Enough is Enough and When
Internet Availability Does Not Mean Acceptance by Clay Clavert[20] wherein
the learned author has opined thus:-
“Akin to the three-part test in Miller itself, a successful
comparables argument requires three foundational elements be present with
the proffered evidence: similarity or “reasonable resemblance”[21] of
content; availability of content, and acceptance, to reasonable degree, of
the similar, available content.”

The learned author in his conclusion has summed up:-
“The Miller test is more than thirty-five years old[22], but
developments and changes are now taking place in courtrooms that affect its
continuing viability. In particular, this article has demonstrated that
the taken-as-a-whole requirement may be in some jeopardy, as at least two
courts-one in 2008 and one in 2009-have allowed the prosecution to get away
with only showing jurors selected portions of the works in question. The
other change addressed here is driven by technology, with the Internet
forcing judges to consider a new twist on the traditional comparables
argument that defense attorneys sometimes use to prove contemporary
community standards. Pro-prosecution rulings in this area have been handed
down in both Adams[23] and Burden[24]. And while Judge Bucklew in
Little[25] allowed Internet-based search evidence to come into court, she
refused to instruct the jury that it could-not even that it must-consider
it as relevant of community standards”.

And again,
“While the U.S. Supreme Court is no longer in the business of
regularly hearing obscenity case as it once was, it may be time for the
Court to revisit the Miller test and to reassess the work-as a whole
requirement and to consider whether Internet based comparables arguments
about contemporary community standards are viable in a digital online world
the High Court never could have imagined when it adopted Miller back in
1973. Unit such time, lower courts will be left to wrestle with these
issues, with some seeming to clearly sidestep Miller on the taken-as-a
whole requirement in contravention of the high court’s admonishment in 2002
that this was as essential rule of First Amendment jurisprudence.”

Thus, the comparables test even if it is applied, the concept of
contemporary comparative standards test along with other tests has not been
abandoned.
The learned author in his article has referred to the majority view
in Ashcroft v. Free Speech Coalition[26] where Justice Anthony Kennedy
added:-
“Under Miller, the First Amendment requires that redeeming value be
judged by considering the work as a whole. Where the scene is part of the
narrative, the work itself does not for this reason become obscene, even
though the scene in isolation might be offensive.”

Mr. Subramanium has urged that the comparables test has also been accepted
in a different context by some High Courts in India. In this regard, he
has been inspired by the ratiocination in Kavita Phumbhra v. Commissioner
of Customs (Port), Calcutta[27] by the Calcutta High Court wherein certain
publications were imported by the petitioner which were meant for sale only
to adults. The High Court took note of the change in the society as well
as similar articles and works readily being available in newspapers and
magazines and stated thus:-
“As mentioned earlier, moral standards vary from community and from person
to person within one society itself. The morals of the present day in our
society also do not represent a uniform pattern. The variations and the
variables inside a certain society are also crucial considerations while
judging whether an object comes within the mischief of obscenity. We
cannot shut our eyes to the changes that are taking place in our society as
we cannot be blind to the kind of advertisements, newspaper articles,
pictures and photographs which are regularly being published and most
certainly with a target viewers and readership in mind. Any closer
observer will definitely reckon the vast changes that have taken place
around us, particularly in the field of audio and visual representations
which are dinned into our ears or which arrest our ocular tastes. A
certain shift in the moral and sexual standard is very easily discernable
over the years and we may take judicial note of it. The appellant has
produced many articles of high circulating newspapers and reputed magazines
which are freely available in the market. Judged by that, these items
which were produced in courts, do not appear to be more sexually explicit
than many of those which are permitted to be published in leading journals
and magazines.”

Having dealt with the ‘comparables test’ as is understood from the
aforesaid decisions, we are to repeat that the contemporary community
standards test is still in vogue with certain addition.

Test laid down by the European Courts
27. Now we shall proceed to deal with the perception of obscenity by the
European Courts. In Vereinigung Bildender Kinstler v. Austria[28],
the European Court of Human Rights was concerned with the issue pertaining
to withdrawal of a painting entitled “Apocalypse” which had been produced
for the auction by the Austrian painter Otto Muhl. The painting, measuring
450 cm by 360 cm showed a collage of various public figures such as Mother
Teresa, the former head of the Austrian Freedom Party (FPO) Mr. Jorg
Haider, in sexual positions. While the naked bodies of these figures were
painted, the heads and faces were depicted using blown-up photos taken from
newspapers. The eyes of some of the persons portrayed were hidden under
black bars. Among these persons was Mr. Meischberger, a former general
secretary of the FPO until 1995, who at the time of the events was a member
of the National Assembly. The Austrian Court permanently barred the
display of painting on the ground that the painting debased the plaintiff
and his political activities. The Association of Artists appealed to the
European Court and the said Court thought it appropriate to come to the
conclusion that the prohibition by the Austrian Court of the painting was
not acceptable. It observed that though the painting in its original state
was somewhat outrageous but it was clear that the photographs were
caricature and the painting was satirical. We have been commended, in this
regard, to certain passages by Mr. Subramanium. They read as follows:-

“33. However, it must be emphasised that the painting used only photos of
the heads of the persons concerned, their eyes being hidden under black
bars and their bodies being painted in an unrealistic and exaggerated
manner. It was common ground in the understanding of the domestic courts at
all levels that the painting obviously did not aim to reflect or even to
suggest reality; the Government, in its submissions, has not alleged
otherwise. The Court finds that such portrayal amounted to a caricature of
the persons concerned using satirical elements. It notes that satire is a
form of artistic expression and social commentary and, by its inherent
features of exaggeration and distortion of reality, naturally aims to
provoke and agitate. Accordingly, any interference with an artist's right
to such expression must be examined with particular care.

xxx xxx xxx

35. Furthermore, the Court would stress that besides Mr Meischberger, the
painting showed a series of 33 persons, some of whom were very well known
to the Austrian public, who were all presented in the way described above.
Besides Jörg Haider and the painter himself, Mother Teresa and the Austrian
cardinal Hermann Groer were pictured next to Mr Meischberger. The painting
further showed the Austrian bishop Kurt Krenn, the Austrian author Peter
Turrini and the director of the Vienna Burgtheater, Claus Peymann. Mr
Meischberger, who at the time of the events was an ordinary Member of
Parliament, was certainly one of the less well known amongst all the people
appearing on the painting and nowadays, having retired from politics, is
hardly remembered by the public at all.”

28. Mr. Nariman, learned amicus curiae in this regard has submitted that
the European Court of Human Rights’ view is divided inasmuch as four of the
Judges in a Court of seven have expressed the view, which is as follows:-

“26. The Court reiterates that freedom of expression, as secured in
paragraph 1 of Article 10, constitutes one of the essential foundations of
a democratic society, indeed one of the basic conditions for its progress
and for the self-fulfilment of the individual. Subject to paragraph 2, it
is applicable not only to “information” or “ideas” that are favourably
received or regarded as inoffensive or as a matter of indifference, but
also to those that offend, shock or disturb the State or any section of the
population. Such are the demands of that pluralism, tolerance and
broadmindedness without which there is no “democratic society”. Those who
create, perform, distribute or exhibit works of art contribute to the
exchange of ideas and opinions which is essential for a democratic society.
Hence the obligation on the State not to encroach unduly on their freedom
of expression. Artists and those who promote their work are certainly not
immune from the possibility of limitations as provided for in paragraph 2
of Article 10. Whoever exercises his freedom of expression undertakes, in
accordance with the express terms of that paragraph, “duties and
responsibilities”; their scope will depend on his situation and the means
he uses (see Muller and Others v. Switzerland, judgment of 24 May 1988).”

29. Learned amicus curiae has also referred to one of the dissenting
opinions of Judge Loucaides, which is to the following effect:-
“The majority found that the images portrayed in the “painting” in question
were “artistic and satirical in nature”. This assessment had a decisive
effect on the judgment. The majority saw the “painting” as a form of
criticism by the artist of Mr Meischberger, a politician and one of the
persons depicted in it. It was he who brought the proceedings which led to
the impugned measure.

The nature, meaning and effect of any image or images in a painting cannot
be judged on the basis of what the painter purported to convey. What counts
is the effect of the visible image on the observer. Furthermore, the fact
that an image has been produced by an artist does not always make the end
result “artistic”. Likewise, an image will not become “satirical” if the
observer does not comprehend or detect any message in the form of a
meaningful attack or criticism relating to a particular problem or a
person's conduct.

In my view, the picture in question cannot, by any stretch of the
imagination, be called satirical or artistic. It showed a number of
unrelated personalities (some political, some religious) in a vulgar and
grotesque presentation and context of senseless, disgusting images of erect
and ejaculating penises and of naked figures adopting repulsive sexual
poses, some even involving violence, with coloured and disproportionately
large genitals or breasts. The figures included religious personalities
such as the Austrian Cardinal Hermann Groer and Mother Teresa, the latter
portrayed with protruding bare breasts praying between two men—one of whom
was the Cardinal—with erect penises ejaculating on her! Mr Meischberger was
shown gripping the ejaculating penis of Mr Haider while at the same time
being touched by two other FPÖ politicians and ejaculating on Mother
Teresa!

The reader will of course need to look at the “painting” in question in
order to be able to form a view of its nature and effect. It is my firm
belief that the images depicted in this product of what is, to say the
least, a strange imagination, convey no message; the “painting” is just a
senseless, disgusting combination of lewd images whose only effect is to
debase, insult and ridicule each and every person portrayed. Personally, I
was unable to find any criticism or satire in this “painting”. Why were
Mother Teresa and Cardinal Hermann Groer ridiculed? Why were the
personalities depicted naked with erect and ejaculating penises? To find
that situation comparable with satire or artistic expression is beyond my
comprehension. And when we speak about art I do not think that we can
include each and every act of artistic expression regardless of its nature
and effect. In the same way that we exclude insults from freedom of speech,
so we must exclude from the legitimate expression of artists insulting
pictures that undermine the reputation or dignity of others, especially if
they are devoid of any meaningful message and contain nothing more than
senseless, repugnant and disgusting images, as in the present case.

As was rightly observed in the judgment (paragraph 26) “… Artists and those
who promote their work are certainly not immune from the possibility of
limitations as provided for in paragraph 2 of Article 10. Whoever exercises
his freedom of expression undertakes, in accordance with the express terms
of that paragraph, ‘duties and responsibilities’; their scope will depend
on his situation and the means he uses …”

Nobody can rely on the fact that he is an artist or that a work is a
painting in order to escape liability for insulting others. Like the
domestic courts, I find that the “painting” in question undermined the
reputation and dignity of Mr Meischberger in a manner for which there can
be no legitimate justification and therefore the national authorities were
entitled to consider that the impugned measure was necessary in a
democratic society for the protection of the reputation or rights of
others.
The learned amicus curiae has also commended us to the joint dissenting
opinion of Judges Spielmann and Jebens. What is important to be noted is
as follows:-
“9. In our opinion, it was not the abstract or indeterminate concept of
human dignity—a concept which can in itself be dangerous since it may be
used as justification for hastily placing unacceptable limitations on
fundamental rights[29] — but the concrete concept of “fundamental personal
dignity of others”[30] which was central to the debate in the present case,
seeing that a photograph of Mr Meischberger was used in a pictorial montage
which he felt to be profoundly humiliating and degrading.

10. It should be noted in this connection that in an order of June 3,
1987,[31] in a case about cartoons, the German Federal Constitutional Court
relied on the concept of human dignity as expressly enshrined in the Basic
Law (Article1(1)),[32] in dismissing a complaint by a publisher. The
cartoon portrayed a well-known politician as a pig copulating with another
pig dressed in judicial robes. The court did not accept the publisher's
argument relating to artistic freedom as protected by Article 5(3) of the
Basic Law.[33] It is important to note that the court accepted that the
cartoons could be described as a work of art; it was not appropriate to
perform a quality control (Niveaukontrolle) and thus to differentiate
between “superior” and “inferior” or “good” and “bad” art.[34] However, it
dismissed the complaint, finding that the cartoons were intended to deprive
the politician concerned of his dignity by portraying him as engaging in
bestial sexual conduct. Where there was a conflict with human dignity,
artistic freedom (Kunstfreiheit) must always be subordinate to personality
rights.[35]

11. One commentator, Eric Barendt, rightly approved this decision, stating:

“Political satire should not be protected when it amounts only to insulting
speech directed against an individual. If, say, a magazine feature
attributes words to a celebrity, or uses a computerized image to portray
her naked, it should make no difference that the feature was intended as a
parody of an interview she had given. It should be regarded as a verbal
assault on the individual's right to dignity, rather than a contribution to
political or artistic debate protected under the free speech (or freedom of
the arts) clauses of the Constitution.”[36]

12. In a word, a person's human dignity must be respected, regardless of
whether the person is a well-known figure or not.

13. Returning to the case before us, we therefore consider that the reasons
that led the court to find a violation (see paragraph 4 above) are not
relevant. Such considerations must be subordinate to respect for human
dignity.”

30. Mr. Nariman, scanning the judgment has submitted that artistic
freedom outweighs personal interest and cannot and does not trump nor
outweigh observance of laws for the prevention of crime or laws for the
protection of health or morals; that the limits of artistic freedom are
exceeded when the image of a person (renowned or otherwise) is
substantially deformed by wholly imaginary elements – without it being
evident from the work (in the present case from the poem) that it was aimed
at satire or some other form of exaggeration; that the freedom of artistic
creation cannot be claimed where the work in question constitutes a
debasement and debunking of a particular individual’s public standing; that
the European law recognises that whosoever exercises freedom of expression
undertakes in addition duties and responsibilities and their scope depends
on the situation and the means used; that it is only where personal
interests of an individual are said to be affected that the artistic and
satirical nature of the portrayal of the person in the work would outweigh
mere personal interest; that the nature, meaning and effect of any image
(in say in a painting or a poem) cannot and must not be judged on the basis
of what the artist (or author) purports to convey; what counts is the
effect of the image on the observer; the fact that an image has been
produced by an artist does not always make the end-result artistic;
likewise an image does not become a satirical if the observer does not
comprehend or detect any message in the work in question; that where the
images depicted in the work product convey no message but “only a
disgusting combination of lewd acts and words whose only effect is to
debase, insult and ridicule the person portrayed” – this is neither
criticism nor satire; and that the artistic freedom is not unlimited and
where rights and reputation of others are involved; where there is conflict
with human dignity artistic freedom must always be subordinated to
personality rights. Thus, the submission of Mr. Nariman is that freedom of
speech and expression is not absolute and any work of art cannot derail the
prohibition in law.
31. Mr. Subramanium has referred to the judgment in Handyside v. United
Kingdom[37], wherein it has been held thus:-

“The Court’s supervisory functions oblige it to pay the utmost attention to
the principles characterising a “democratic society”. Freedom of
expression constitutes one of the essential foundations of such a society,
one of the basic conditions for its progress and for the development of
every man. Subject to paragraph 2 of Article 10 (art. 10-2), it is
applicable not only to “information” or “ideas” that are favourably
received or regarded as inoffensive or as a matter of indifference, but
also to those that offend, shock or disturb the State or any sector of the
population. Such are the demands of that pluralism, tolerance and
broadmindedness without which there is no “democratic society”. This
means, amongst other things, that every “formality”, “condition”,
“restriction” or “penalty” imposed in this sphere must be proportionate to
the legitimate aim pursued.

From another standpoint, whoever exercises his freedom of expression
undertakes “duties and responsibilities” the scope of which depends on his
situation and the technical means he uses. The Court cannot overlook such
a person’s “duties” and “responsibilities” when it enquires, as in this
case, whether “restrictions” or “penalties” were conducive to the
“protection of morals” which made them “necessary” in a “democratic
society”.”

Mr. Subramanium, learned senior counsel has emphasised that the
freedom of expression as protected by Article 10 of ECHR constitutes an
essential basis of a democratic society and any limitations on that freedom
have to be interpreted strictly. Mr. Subramanium has also referred us to
Editorial Board of Pravoye Delo and Shtekel v. Ukraine[38], wherein the
European Court, for the first time, acknowledged that Article 10 of ECHR
has to be interpreted as imposing on States a positive obligation to create
an appropriate regulatory framework to ensure effective protection of
journalists’ freedom of expression on the Internet. He has also drawn our
attention to Akda v. Turkey[39], wherein the European Court has held that
ban on translation of classic work of literature that contained graphic
description of sex, violated the right to freedom of expression.
32. Mr. Nariman, learned senior counsel and amicus, has commended us to
Wingrove v. United Kingdom[40] to show that the interpretation placed by
the European Court of Human Rights on Article 10 that deals with freedom of
expression. In the said case, a video movie characterising Saint Teresa of
Avila in profane ways was held to be properly banned and not a violation of
Article 10 of the European Convention on Human Rights. The said case
originated from an application lodged with the European Commission under
Article 25 by a British national Nigel Wingrove on 18th June, 1990. The
object of the request and of the Application was to obtain a decision as to
whether the facts of the case disclosed a breach by the respondent State
(United Kingdom) of its obligation under Article 10 of the ECHR. Wingrove
wrote the script for a video and directed making of a video work entitled
‘visions of ecstasy’ – the idea for the film was derived from the life and
writings of St. Teresa of Avila, the sixteenth century Carmelite, nun and
founder of many convents, who experienced powerful ecstatic visions of
Jesus Christ. In paragraphs 9 and 10 of the report it is stated:-
“The action of the film centres upon a youthful actress dressed as a nun
and intended to represent St. Teresa. It begins with the nun, dressed
loosely in a black habit, stabbing her own hand with a large nail and
spreading her blood over her naked breasts and clothing. In her writhing,
she spills a chalice of communion wine and proceeds to lick it up from the
ground. She loses consciousness. This sequence takes up approximately
half of the running time of the video. The second part shows St. Teresa
dressed in a white habit standing with her arms held above her head by a
white cord which is suspended from above and tied around her wrists. The
near-naked form of a second female, said to represent St. Teresa’s psyche,
slowly crawls her way along the ground towards her. Upon reaching St.
Teresa’s feet, the psyche begins to caress her feet and legs, then her
midriff, then her breasts, and finally exchanges passionate kisses with
her. Throughout this sequence, St Teresa appears to be writhing in
exquisite erotic sensation. This sequence is intercut at frequent
intervals with a second sequence in which one sees the body of Christ,
fastened to the cross which is lying upon the ground. St Teresa first
kisses the stigmata of his feet before moving up his body and kissing or
licking the gaping wound in his right side. Then she sits astride him,
seemingly naked under her habit, all the while moving in a motion
reflecting intense erotic arousal, and kisses his lips. For a few seconds,
it appears that he responds to her kisses. This action is intercut with
the passionate kisses of the psyche already described. Finally, St Teresa
runs her hand down to the fixed hand of Christ and entwines his fingers in
hers. As she does so, the fingers of Christ seem to curl upwards to hold
with hers, whereupon the video ends.

Apart from the cast list which appears on the screen for a few seconds, the
viewer has no means to knowing from the film itself that the person dressed
as a nun in the video is intended to be St Teresa or that the other woman
who appears is intended to be her psyche. No attempt is made in the video
to explain its historical background.”

Thereafter dealing with the case, the European Court of Human Rights
held:-
“61. Visions of Ecstasy portrays, inter alia, a female character astride
the recumbent body of the crucified Christ engaged in an act of an overtly
sexual nature. The national authorities, using powers that are not
themselves incompatible with the Convention, considered that the manner in
which such imagery was treated placed the focus of the work “less on the
erotic feelings of the character than on those of the audience, which is
the primary function of pornography”. They further held that since no
attempt was made in the film to explore the meaning of the imagery beyond
engaging the viewer in a “voyeuristic erotic experience”, the public
distribution of such a video could outrage and insult the feelings of
believing Christians and constitute the criminal offence of blasphemy.
This view was reached by both the Board of Film Classification and the
Video Appeals Committee following a careful consideration of the arguments
in defence of his work presented by the applicant in the course of two sets
of proceedings. Moreover, it was open to the applicant to challenge the
decision of the Appeals Committee in proceedings for judicial review.
Bearing in mind the safeguard of the high threshold of profanation embodied
in the definition of the offence of blasphemy under English law as well as
the State’s margin of appreciation in this area, the reasons given to
justify the measures taken can be considered as both relevant and
sufficient for the purpose of Article 10 para 2 (art. 10-2). Furthermore,
having viewed the film for itself, the Court is satisfied that the
decisions by the national authorities cannot be said to be arbitrary or
excessive.”

Mr. Nariman, the friend of the Court has also laid immense emphasis
on the concurring opinion of Judge Pettit. The learned Judge though voted
with the majority, observed:-
“... I consider that the same decision could have been reached under
paragraph 2 of Article 10 (art. 10-2) on grounds other than blasphemy, for
example the profanation of symbols, including secular ones (the national
flag) or jeopardising or prejudicing public order (but not for the benefit
of a religious majority in the territory concerned). The reasoning should,
in my opinion have been expressed in terms both of religious beliefs and of
philosophical convictions. It is only in paragraph 53 of the judgment that
the words “any other” are cited. Profanation and serious attacks on the
deeply held feelings of others or on religious or secular ideals can be
relied on under Article 10 para 2 (art. 102) in addition to blasphemy.
What was particularly shocking in the Wingrove case was the combination of
an ostensibly philosophical message and wholly irrelevant obscene or
pornographic images. In this case, the use of obscenity for commercial
ends may justify restrictions under Article 10 para 2 (art 10-2); but the
use of a figure of symbolic value as a great thinker in the history of
mankind (such as Moses, Dante or Tolstoy) in a portrayal which seriously
offends the deeply held feelings of those who respect their works or
thought may, in some cases, justify judicial supervision so that the public
can be alerted through the reporting of court decisions.”

Judge Pettit further proceeded to state:-
“The majority of the Video Appeals Committee took the view that the imagery
led not to a religious perception, but to a perverse one, the ecstasy being
furthermore of a perverse kind. That analysis was in conformity with the
approach of the House of Lords, which moreover did not discuss the author’s
intention with respect to the moral element of the offence. The Board’s
Director said that it would have taken just the same stance in respect of a
film that was contemptuous of Mohammed or Buddha. The decision not to
grant a certificate might possibly have been justifiable and justified if,
instead of St Teresa’s ecstasies, what had been in issue had been a video
showing, for example, the anti-clerical Voltaire having sexual relations
with some prince or king. In such a case, the decision of the European
Court might well have been similar to that in the Wingrove case. The
rights of other under Article 10 para 2 (art. 10-2) cannot be restricted
solely to the protection of the rights of others in a single category of
religious believers or philosophers, or a majority of them. The Court was
quite right to base its decision on the protection of the rights of others
pursuant to Article 10 (art. 10), but to my mind it could have done so on
broader grounds, inspired to a greater extent by the concern to protect the
context of religious beliefs “or any other”, as is rightly pointed out in
paragraph 53 of the judgment. In the difficult balancing exercise that has
to be carried out in these situations where religious and philosophical
sensibilities are confronted by freedom of expression, it is important that
the inspiration provided by the European Convention and its interpretation
should be based both on pluralism and a sense of values.”

33. Learned Amicus, to cement the proponement of absence of total
limitlessness of freedom of speech and expression and to refute the
principle of absoluteness has also commended us to the authority in Muller
and Others v. Switzerland[41]. In the said case, the question was whether
paintings at an exhibition depicting in a crude manner, sexual relations
particularly between men and animals to which general public had free
access as the organisers had not imposed any admission charge or any age
limit; the paintings being displayed to the public at large. The European
Court of Human Rights stated:-
“The Court recognises, as did the Swiss courts, that conceptions of sexual
morality have changed in recent years. Nevertheless, having inspected the
original paintings, the Court does not find unreasonable the view taken by
the Swiss courts that those paintings, with their emphasis on sexuality in
some of its crudest forms, were “liable grossly to offend the sense of
sexual propriety of persons of ordinary sensitivity”. In the
circumstances, having regard to the margin of appreciation left to them
under Article 10 part 2 (art. 10-2), the Swiss courts were entitled to
consider it “necessary” for the protection of morals to impose a fine on
the applicants for publishing obscene material.

The applicants claimed that the exhibition of the pictures had not given
rise to any public outcry and indeed that the press on the whole was on
their side. It may also be true that Josef Felix Muller has been able to
exhibit works in a similar vein in other parts of Switzerland and abroad,
both before and after the “Fri-Art 81” exhibition. It does not, however,
follow that the applicants’ conviction in Fribourg did not, in all the
circumstances of the case, respond to a genuine social need, as was
affirmed in substance by all three of the Swiss courts which dealt with the
case.

In conclusion, the disputed measure did not infringe Article 10 (art. 10)
of the Convention.”
[emphasis supplied)

Perception and Perspective of this Court
34. Keeping in view the developments in other countries pertaining to the
perception as regards “obscenity”, “vulgarity” and other aspects, we are
obliged to see how this Court has understood the provision, that is,
Section 292 IPC, and laid down the law in the context of freedom of speech
and expression bearing in mind the freedom of a writer, poet, painter or
sculptor or broadly put, freedom of an artist. Section 292 of the IPC
presently reads thus:-
“292. Sale, etc., of obscene books, etc.—

(1) For the purposes of sub-section (2), a book, pamphlet, paper,
writing, drawing, painting, representation, figure or any other object,
shall be deemed to be obscene if it is lascivious or appeals to the
prurient interest or if its effect, or (where it comprises two or more
distinct items) the effect of any one of its items, is, if taken as a
whole, such as to tend to deprave and corrupt person, who are likely,
having regard to all relevant circumstances, to read, see or hear the
matter contained or embodied in it.]

(2) Whoever—

(a) sells, lets to hire, distributes, publicly exhibits or in any manner
puts into circulation, or for purposes of sale, hire, distribution, public
exhibition or circulation, makes, produces or has in his possession any
obscene book, pamphlet, paper, drawing, painting, representation or figure
or any other obscene object whatsoever, or

(b) imports, exports or conveys any obscene object for any of the purposes
aforesaid, or knowing or having reason to believe that such object will be
sold, let to hire, distributed or publicly exhibited or in any manner put
into circulation, or

(c) takes part in or receives profits from any business in the course of
which he knows or has reason to believe that any such obscene objects are
for any of the purposes aforesaid, made, produced, purchased, kept,
imported, exported, conveyed, publicly exhibited or in any manner put into
circulation, or

(d) advertises or makes known by any means whatsoever that any person is
engaged or is ready to engage in any act which is an offence under this
section, or that any such obscene object can be procured from or through
any person, or

(e) offers or attempts to do any act which is an offence under this
section, shall be punished [on first conviction with imprisonment of either
description for a term which may extend to two years, and with fine which
may extend to two thousand rupees, and, in the event of a second or
subsequent conviction, with imprisonment of either description for a term
which may extend to five years, and also with fine which may extend to five
thousand rupees].

Exception — This section does not extend to—

(a) any book, pamphlet, paper, writing, drawing, painting, representation
or figure—

the publication of which is proved to be justified as being for the public
good on the ground that such book, pamphlet, paper, writing, drawing,
painting, representation or figure is in the interest of science,
literature, art or learning or other objects of general concern, or
which is kept or used bona fide for religious purposes;

(b) any representation sculptured, engraved, painted or otherwise
represented on or in—

any ancient monument within the meaning of the Ancient Monuments and
Archaeological Sites and Remains Act, 1958 (24 of 1958), or
any temple, or on any car used for the conveyance of idols, or kept or used
for any religious purpose.”

35. The said Section, prior to the present incarnation, read as follows:-

“292. Whoever—
(a) sells, lets to hire, distributes, publicly exhibits or in any manner
puts into circulation, or for purposes of sale, hire, distribution, public
exhibition or circulation, makes, produces or has in his possession any
obscene book, pamphlet, paper, drawing, painting, representation or figure
or any other obscene object whatsoever, or

(e) offers or attempts to do any act which is an offence under this
section, shall be punished with imprisonment of either description for a
term which may extend to three months, or with fine, or with both.

Exception.- This section does not extend to any book, pamphlet, paper,
writing, drawing or painting kept or used bona fide for religious purposes
or any representation sculptured. Engraved, painted or otherwise
represented on or in any temple, or on any car used for the conveyance or
idols, or kept or used for any religious purpose.]”

36. For the first time this Court dealt with the effect and impact of the
provision in the backdrop of the challenge to the constitutional validity
of the same, in Ranjit D. Udeshi v. State of Maharashtra[42]. Before the
Constitution Bench a contention was canvassed with regard to the
constitutional validity of Section 292 IPC on the ground it imposes
impermissible restriction on the freedom of speech and expression
guaranteed by Article 19(1)(a) of the Constitution and being not saved by
clause 2 of the said Article. The Constitution Bench referred to Article
19(2) and held thus:-

“7. No doubt this article guarantees complete freedom of speech and
expression but it also makes an exception in favour of existing laws which
impose restrictions on the exercise of the right in the interests of public
decency or morality. The section of the Penal Code in dispute was
introduced by the Obscene Publications Act, 1925 (7 of 1925) to give effect
of the International Convention for the suppression of or traffic in
obscene publications signed by India in 1923 at Geneva. It does not go
beyond obscenity which falls directly within the words “public decency and
morality” of the second clause of the article. The word, as the
dictionaries tell us, denotes the quality of being obscene which means
offensive to modesty or decency; lewd, filthy and repulsive. It cannot be
denied that it is an important interest of society to suppress obscenity.
There is, of course, some difference between obscenity and pornography in
that the latter denotes writings, pictures etc. intended to arouse sexual
desire while the former may include writings etc. not intended to do so but
which have that tendency. Both, of course, offend against public decency
and morals but pornography is obscenity in a more aggravated form. Mr Garg
seeks to limit action to cases of intentional lewdness which he describes
as dirt for dirt's sake and which has now received the appellation of hard-
core pornography by which term is meant libidinous writings of high erotic
effect unredeemed by anything literary or artistic and intended to arouse
sexual feelings.

8. Speaking in terms of the Constitution it can hardly be claimed that
obscenity which is offensive to modesty or decency is within the
constitutional protection given to free speech or expression, because the
article dealing with the right itself excludes it. That cherished right on
which our democracy rests is meant for the expression of free opinions to
change political or social conditions or for the advancement of human
knowledge. This freedom is subject to reasonable restrictions which may be
thought necessary in the interest of the general public and one such is the
interest of public decency and morality. Section 292 of the Indian Penal
Code manifestly embodies such a restriction because the law against
obscenity, of course, correctly understood and applied, seeks no more than
to promote public decency and morality. The word obscenity is really not
vague because it is a word which is well understood even if persons differ
in their attitude to what is obscene and what is not.”
[Emphasis added]

And again,
“9…………It is always a question of degree or as the lawyers are accustomed to
say, of where the line is to be drawn. It is, however, clear that obscenity
by itself has extremely poor value in the propagation of ideas, opinions
and information of public interest or profit. When there is propagation of
ideas, opinions and photographs collected in book form without the medical
text would may become different because then the interest of society may
tilt the scales in favour of free speech and expression. It is thus that
books on medical science with intimate illustrations and photographs,
though in a sense immodest, are not considered to be obscene but the same
illustrations and photographs collected in book form without the medical
text would certainly be considered to be obscene. Section 292 of the Indian
Penal Code deals with obscenity in this sense and cannot thus be said to be
invalid in view of the second clause of Article 19.”

37. After dealing with the said facet, the Court referred to various
decisions of the English Courts, especially to Hicklin (supra), wherein the
Queen’s Bench was called upon to consider a pamphlet, the nature of which
can be gathered from the title and the colophon which read:-
“The Confession Unmasked, showing the depravity of Romish priesthood, the
enquity of the confessional, and the questions, put to females in
confession.”

It was bilingual with Latin and English texts on opposite pages and
the latter half of the pamphlet according to the report was grossly obscene
relating to impure and filthy acts, words or ideas. Cockburn, C.J. laid
down the test of obscenity in the following words:-
“ … I think the test of obscenity is this, whether the tendency of the
matter charged as obscenity is to deprave and corrupt those whose minds are
open to such immoral influences, and into whose hands a publication of this
sort may fall … it is quite certain that it would suggest to the minds of
the young of either sex, or even to persons of more advanced years,
thoughts of a most impure and libidinous character.”

38. After reproducing the said paragraph, the Court observed that the
said test has been uniformly applied in India. Thereafter, the Court posed
a question whether the said test of obscenity squares with the freedom of
speech and expression guaranteed under the Constitution or it needs to be
modified and if so, in what respects. The Court opined that the first of
the said questions invite the Court to reach a decision on a constitutional
issue of a most far-reaching character and it must be aware that it may not
lean too far away from the guaranteed freedom. In that context, the Court
observed that the laying down of the true test is not rendered any easier
because art has such varied facets and has such individualistic appeals
that in the same object the insensitive sees only obscenity because his
attention is arrested, not the general or artistic appeal or message, which
he cannot comprehend. But by what he can see, and the intellectual sees
beauty and art but nothing gross. The Indian Penal Code does not define the
word “obscene” and this delicate task of how to distinguish between that
which is artistic and that which is obscene has to be performed by courts.
The test to be evolved must obviously be of a general character but it must
admit of a just application from case to case by indicating a line of
demarcation not necessarily sharp but sufficiently distinct to distinguish
between that which is obscene and that which is not. Thereafter the court
observed:-
“None has so far attempted a definition of obscenity because the meaning
can be laid bare without attempting a definition by describing what must be
looked for. It may, however, be said at once that treating with sex and
nudity in art and literature cannot be regarded as evidence of obscenity
without something more. It is not necessary that the angels and saints of
Michael Angelo should be made to wear breeches before they can be viewed.
If the rigid test of treating with sex as the minimum ingredient were
accepted hardly any writer of fiction today would escape the fate Lawrence
had in his days. Half the book-shop would close and the other half would
deal in nothing but moral and religious books which Lord Campbell boasted
was the effect of his Act.”

39. After so stating, the Court referred to certain authorities of the
United States of America and proceeded to observe that the Court must,
therefore, apply itself to consider each work at a time. An overall view of
the obscene matter in the setting of the whole work would, of course, be
necessary, but the obscene matter must be considered by itself and
separately to find out whether it is so gross and its obscenity so decided
that it is likely to deprave and corrupt those whose minds are open to
influences of this sort and into whose hands the book is likely to fall.
The interests of the contemporary society and particularly the influence of
the book etc. on it must not be overlooked. Then the court stated:-
“A number of considerations may here enter which it is not necessary to
enumerate, but we must draw attention to one fact. Today our National and
Regional Languages are strengthening themselves by new literary standards
after a deadening period under the impact of English. Emulation by our
writers of an obscene book under the aegis of this Court's determination is
likely to pervert our entire literature because obscenity pays and true Art
finds little popular support. Only an obscurent will deny the need for such
caution. This consideration marches with all law and precedent and this
subject and so considered we can only say that where obscenity and art are
mixed, art must be so preponderating as to throw the obscenity into a
shadow or the obscenity so trivial and insignificant that it can have no
effect and may be overlooked. In other words, treating with sex in a manner
offensive to public decency and morality (and these are the words of our
Fundamental Law), judged of by our National standards and considered likely
to pander to lascivious. prurient or sexually precocious minds, must
determine the result. We need not attempt to bowdlerize all literature and
thus rob speech and expression of freedom. A balance should be maintained
between freedom of speech and expression and public decency and morality
but when the latter is substantially transgressed the former must give
way.” [Emphasis supplied]

Eventually, the Court opined:-
“22…….In our opinion, the test to adopt in our country regard being had to
our community mores) is that obscenity without a preponderating social
purpose or profit cannot have the constitutional protection of free speech
and expression and obscenity is treating with sex in a manner appealing to
the carnal side of human nature, or having that tendency. Such a treating
with sex is offensive to modesty and decency but the extent of such appeal
in a particular book etc. are matters for consideration in each individual
case.”

40. Thereafter, the court proceeded to scan the various passages of the
book, namely, Lady Chatterley’s Lover and ruled that:-
“29……..When everything said in its favour we find that in treating with sex
the impugned portions viewed separately and also in the setting of the
whole book pass the permissible limits judged of from our community
standards and as there is no social gain to us which can be said to
preponderate, we must hold the book to satisfy the test we have indicate
above.”

41. In Chandrakant Kalyandas Kakodkar v. State of Maharashtra[43], the
appellant was the author of a short story. He faced a criminal charge
under Section 292 IPC along with the printer, publisher and the selling
agent. The three-Judge Bench referred to the Constitution Bench in Ranjit
D. Udeshi (supra) and thereafter the Court referred to the plots and sub-
plots narrated in the story, adverted to the emotional thread running in
the story and eventually came to hold that none of the passages was
offending Section 292 IPC and accordingly acquitted the accused persons.
In that context the Court observed:-
“12. The concept of obscenity would differ from country to country
depending on the standards of morals of contemporary society. What is
considered as a piece of literature in France may be obscene in England and
what is considered in both countries as not harmful to public order and
morals may be obscene in our country. But to insist that the standard
should always be for the writer to see that the adolescent ought not to be
brought into contact with sex or that if they read any references to sex in
what is written whether that is the dominant theme or not they would be
affected, would be to require authors to write books only for the
adolescent and not for the adults. In early English writings authors wrote
only with unmarried girls in view but society has changed since then to
allow litterateurs and [pic]artists to give expression to their ideas, and
emotions and objective with full freedom except that it should not fall
within the definition of “obscene” having regard to the standards of
contemporary society in which it is read. The standards of contemporary
society in India are also fast changing. The adults and adolescents have
available to them a large number of classics, novels, stories and pieces of
literature which have a content of sex, love and romance. As observed in
Udeshi (supra) if a reference to sex by itself is considered obscene, no
books can be sold except those which are purely religious. In the field of
art and cinema also the adolescent is shown situations which even a quarter
of a century ago would be considered derogatory to public morality, but
having regard to changed conditions are more taken for granted without in
anyway tending to debase or debauch the mind. What we have to see is that
whether a class, not an isolated case, into whose hands the book, article
or story falls suffer in their moral outlook or become depraved by reading
it or might have impure and lecherous thoughts aroused in their minds. The
charge of obscenity must, therefore, be judged from this aspect.”

From the aforesaid passage it is clear that the court considered three
facets, namely, “morals of contemporary society”, the fast changing
scenario in our country and the impact of the book on a class of readers
but not an individual.
42. In K.A. Abbas v. Union of India and another[44], the petitioner
sought a declaration against the Union of India and the Chairman, Central
Board of Film Censors that the provisions of Part II of the Cinematograph
Act, 1952 together with the rules prescribed by the Central Government,
February 6, 1960, in the purported exercise of the powers under Section 5-B
of the Act are unconstitutional and void and consequently sought a writ of
Mandamus or any other appropriate writ, direction or order for quashing the
direction contained in letter dated July 3, 1969, for deletion of certain
shots from a documentary film titled ‘A Tale of Four Cities’ produced by
him for unrestricted public exhibition. The said certificate was declined
and the petitioner was issued a letter that the film was suited for
exhibition restricted to adults. The petitioner was given a chance to give
explanation, but he did not change his decision. On an appeal, the Central
Government opined that it could be granted ‘U’ certificate subject to
certain cuts being made in the film. At that juncture, the petitioner
preferred a petition before this Court. The Court viewed the film and
still the stand of the Central Government was same. The petitioner
thereafter amended the petition to challenge the pre-censorship itself as
offensive to freedom of speech and expression and alternatively the
provisions of the Act and the Rules, orders and directions under the Act as
vague, arbitrary and indefinite. The prayer for amendment was allowed.
The two fundamental contentions that were raised before this Court were
firstly, the pre-censorship itself cannot be tolerated under the freedom of
speech and expression and secondly, even if it were a legitimate restraint
on the freedom, it must be exercised on very definite principles which
leave no room for arbitrary action. The Court referred to the Khosla
Committee that had addressed and examined history of development of film
censorship in India. The Court adverted to various provisions of the Act
and in that context observed that it has been almost universally recognised
that treatment of motion pictures must be different from that of other
forms of art and expression. The Court referred to the decision in Roth
(supra), wherein three tests have been laid down as under:
“(a) that the dominant theme taken as a whole appeals to prurient
interests according to the contemporary standards of the average man;

(b) that the motion picture is not saved by any redeeming social value; and

The court observed that Hicklin test in Regina (supra) was not
accepted in the said case. The Court also referred to Freadman v.
Maryland[45], which considered procedural safeguards and thereafter the
judgment in Teital Film Corp. v. Cusak[46] and observed that fight against
censorship was finally lost in Times Film Corporation v. Chicago[47], but
only by the slender majority. Thereafter, the Court referred to later
decisions and observed:-
“33. To summarize. The attitude of the Supreme Court of the United States
is not as uniform as one could wish. It may be taken as settled that motion
picture is considered a form of expression and entitled to protection of
First Amendment. The view that it is only commercial and business and,
therefore, not entitled to the protection as was said in Mutual Film
Corpn[48]. is not now accepted.”

43. The Court further referred to the majority judgments in many cases
and observed that judges in America have tried to read the words
‘reasonable restrictions’ into the First Amendment and thus to make the
rights it grants subject to reasonable regulation. The Court further
observed that the American Courts in their majority opinions, therefore,
clearly support a case for censorship. Proceeding further, the Court
opined that the task of the censor is extremely delicate and its duties
cannot be the subject of an exhaustive set of commands established by prior
ratiocination. In that context, the Court ruled:-
“The standards that we set for our censors must make a substantial
allowance in favour of freedom thus leaving a vast area for creative art to
interpret life and society with some of its foibles along with what is
good. We must not look upon such human relationships as banned in to and
for ever from human thought and must give scope for talent to put them
before society. The requirements of art and literature include within
themselves a comprehensive view of social life and not only in its ideal
form and the line is to be drawn where the average moral man begins to feel
embarrassed or disgusted at a naked portrayal of life without the redeeming
touch of art or genius or social value. If the depraved begins to see in
these things more than what an average person would, in much the same way,
as it is wrongly said, a Frenchman seas a woman’s legs in everything, it
cannot be helped. In our scheme of things ideas having redeeming social or
artistic value must also have importance and protection for their growth.
Sex and obscenity are not always synonymous and it is wrong to classify sex
as essentially obscene or even indecent or immoral. It should be our
concern, however, to prevent the use of sex designed to play a commercial
role by making its own appeal. This draws in the censor’s scissors. Thus
audiences in India can be expected to view with equanimity the story of
Oedipus son of Latius who committed patricide and incest with his mother.
When the seer Tiresias exposed him, his sister Jocasta committed suicide by
hanging herself and Oedipus put out his own eyes. No one after viewing
these episodes would think that patricide or incest with one’s own mother
is permissible or suicide in such circumstances or tearing out one’s own
eyes is a natural consequence. And yet if one goes by the letter of the
directions the film cannot be shown. Similarly, scenes depicting leprosy as
a theme in a story or in a documentary are not necessarily outside the
protection. If that were so Verrier Elwyn’s Phulmat of the Hills or the
same episode in Henryson’s Testament of Cressaid (from where Verrier Elwyn
borrowed the idea) would never see the light of the day. Again carnage and
bloodshed may have historical value and the depiction of such scenes as the
Sack of Delhi by Nadirshah may be permissible, if handled delicately and as
part of an artistic portrayal of the confrontation with Mohammad Shah
Rangila. If Nadir Shah made golgothas of skulls, must we leave them out of
the story because people must be made to view a historical theme without
true history? Rape in all its nakedness may be objectionable but Voltaire’s
Candide would be meaningless without Cunegonde’s episode with the soldier
and the story of Lucrece could never be depicted on the screen.”
[Emphasis supplied]

44. The aforesaid passage, we must candidly state, is a lucid expression
of artistic freedom regard being had to thematic context and the manner of
delicate and subtle delineation in contradistinction to gross, motivated
and non-artistic handling. It is also graphically clear that the court has
opined that sex and obscenity are not always synonymous and that is why the
court has given example of Oedipus which is known in the field of
psychology as Oedipus complex. Be it noted, in the field of literature
there are writing which pertain, as psychology would christen them as
‘Electra’ complex and ‘Lalita’ complex. As is manifest from the judgment,
the Court has taken pains to refer to certain situations from certain
novels and the ideas from the plays and also emphasised on delicate
depiction of a situation in a theme-oriented story. The Court has made a
distinction between a historical theme without true history and portrayal
of an artistic scene. Be it noted, in the said case, the Court opined that
the test in Ranjit D. Udeshi (supra) would apply even to film censorship.
45. In Raj Kapoor and Others v. State and Others[49], the High Court had
refused the exercise of inherent power under Section 482 of the Criminal
Procedure Code because the High Court felt the subject fell under its
revisional power under Section 397 of the CrPC. The prosecution was
launched by the president of a youth organisation devoted to defending
Indian cultural standards, inter alia, against the unceasing waves of
celluloid anti-culture, arraigning, together with the theatre owner, the
producer, actors and photographer of a sensationally captioned and loudly
publicised film by name Satyam, Sivam, Sundaram, under Sections 292, 293
and 34 of the IPC for alleged punitive prurience, moral depravity and
shocking erosion of public decency. The trial court examined a few
witnesses and thereafter issued notices to the petitioners who rushed to
the High Court but faced refusal on a technical foundation. This Court
formulated two questions – one of jurisdiction and consequent procedural
compliance, the other of jurisprudence as to when, in the setting of the
Penal Code, a picture to be publicly exhibited can be castigated as
prurient and obscene and violative of norms against venereal depravity.
The Court in that context observed:-
“8. .....Art, morals and law’s manacles on aesthetics are a sensitive
subject where jurisprudence meets other social sciences and never goes
alone to bark and bite because State-made strait-jacket is an inhibitive
prescription for a free country unless enlightened society actively
participates in the administration of justice to aesthetics.

9. The world’s greatest paintings, sculptures, songs and dances, India’s
lustrous heritage, the Konaraks and Khajurahos, lofty epics, luscious in
patches, may be asphyxiated by law, if prudes and prigs and State moralists
prescribe paradigms and proscribe heterodoxies. It is plain that the
procedural issue is important and the substantive issue portentous.”

46. It is worthy to note that a contention was raised that once a
certificate under the Cinematograph Act is granted, the homage to the law
of [pic]morals is paid and the further challenge under the Penal Code is
barred. Dealing with the same, the Court opined that:-
“Jurisprudentially speaking, law, in the sense of command to do or not to
do, must be a reflection of the community’s cultural norms, not the State’s
regimentation of aesthetic expression or artistic creation. Here we will
realise the superior jurisprudential value of dharma. which is a beautiful
blend of the sustaining sense of morality, right conduct, society’s
enlightened consensus and the binding force of norms so woven as against
positive law in the Austinian sense, with an awesome halo and barren
autonomy around the legislated text is fruitful area for creative
exploration. But morals made to measure by statute and court is risky
operation with portentous impact on fundamental freedoms, and in our
constitutional order the root principle is liberty of expression and its
reasonable control with the limits of “public order, decency or morality”.
Here, social dynamics guides legal dynamics in the province of “policing”
art forms.”

Krishna Iyer, J. while stating thus opined that once a certificate
under the Cinematograph Act is issued the Penal Code, pro tanto, will not
hang limp. The court examined the film and dealt with the issue whether its
public display, in the given time and clime, would breach the public morals
or deprave basic decency as to offend the penal provisions. In that
context, the learned Judge observed thus:-
“15. .....Statutory expressions are not petrified by time but must be
updated by changing ethos even as popular ethics are not absolutes but
abide and evolve as community consciousness enlivens and escalates. Surely,
the satwa of society must rise progressively if mankind is to move towards
its timeless destiny and this can be guaranteed only if the ultimate value-
vision is rooted in the unchanging basics, Truth — Goodness — Beauty,
Satyam, Sivam, Sundaram. The relation between Reality and Relativity must
haunt the [pic]Court’s evaluation of obscenity, expressed in society’s
pervasive humanity, not law’s penal prescriptions. Social scientists and
spiritual scientists will broadly agree that man lives not alone by mystic
squints, ascetic chants and austere abnegation but by luscious love of
Beauty, sensuous joy of companionship and moderate non-denial of normal
demands of the flesh. Extremes and excesses boomerang although, some crazy
artists and film directors do practise Oscar Wilde’s observation:
“Moderation is a fatal thing. Nothing succeeds like excess.”

16. All these add up to one conclusion that finality and infallibility are
beyond courts which must interpret and administer the law with pragmatic
realism, rather than romantic idealism or recluse extremism.”

Pathak, J. (as His Lordship then was) in his concurring opinion,
opined that there is no difficulty in laying down that in a trial for the
offence under Sections 292 and 293 of the Indian Penal Code, a certificate
granted under Section 6 of the Cinematograph Act by the Board of Censors
does not provide an irrebuttable defence to accused who have been granted
such a certificate, but it is certainly a relevant fact of some weight to
be taken into consideration by the criminal court in deciding whether the
offence charged is established.
47. Thus, from the view expressed by Krishna Iyer, J., it is vivid that
the Court laid emphasis on social dynamics and the constitutional order
which postulates the principle of liberty of expression and the limits of
‘public order’, ‘decency’ and ‘morality’. The learned Judge has discarded
the extremes and excesses for they boomerang and did not appreciate the
observation of Oscar Wilde which pertains to the statement “moderation is a
fatal thing”.
48. In Samresh Bose & Anr. v. Amal Mitra & Anr.[50], the appellants were
the author and the publisher of a novel. The appellant No.1 was the author
of a novel which under the caption “Prajapati” that came to be published
“Sarodiya Desh”. The application was filed before the Chief Presidency
Magistrate, Calcutta complaining that the said novel “Prajapati” was
obscene and both the accused persons had sold, distributed, printed and
exhibited the same which has a tendency to corrupt the morals of those in
whose hands the said “Sarodiya Desh” may fall, and accordingly they faced
trial under Section 292, IPC and eventually stood convicted. The accused
persons assailed their conviction in an appeal before the High Court and
the complainant filed a criminal revision seeking enhancement of sentence.
The High Court by common judgment dismissed the appeal and affirmed the
sentence. A question arose before this Court whether the accused persons
had committed the offence under Section 292, IPC and the Court observed
the said question would be depending on the finding, whether the novel is
obscene or not. A two-Judge Bench scanned the evidence on record in great
detail, for it was essential for the Court to evaluate the evidence on
record inasmuch as some of the witnesses had compared the plot in the novel
to that of the novel “Chokher Bali” one of the works of Ravindra Nath
Tagore. Shri Budhadeo Bose, who was a whole time writer and Chairman of
Comparative Literature of Jadavpur University for a number of years, was
cited as a witness on behalf of the accused. While facing the cross-
examination, when asked to cite example of a writing vividly describing a
sexual act and sexual perversity, Shri Bose answered that anyone who knows
the works of Ravindra Nath Tagore knows that for his whole life he was a
great advocate of social and sexual freedom. He referred to novel “Chokher
Bali” where Tagore described a love relationship between a young Hindu
widow and a young man. He also referred to ‘Ghare Baire’ where a highly
respected married woman falls in love with her husband’s friend. The
witness also cited Tagore’s another novel “Chaturanga” where an actual
sexual act has been described in a very poetic and moving language. The
said witness deposed that the novel has great social and moral value.
49. The Court proceeded to deal with many other witnesses at length and
the view expressed by the Chief Presidency Magistrate and the learned
Single Judge. We notice that this Court copiously quoted from the order of
the learned Single Judge and thereafter proceeded to deal with the
contentions. The Court referred to Section 292 as it stood at the time of
initiation of the proceeding, referred to the decisions in Ranjit D. Udeshi
(supra), Chandrakant Kakodar (supra) and thereafter observed that the novel
“Lady Chatterley’s Lover” which came to be condemned as obscene in India by
this Court, was held to be not obscene in England by the Central Criminal
Court. The two-Judge Bench reproduced a passage from Penguin Books Ltd.
(supra). The Court referred to the obscenity test which rests with jury in
England but with judges in India. In that context, the Court proceeded to
state thus:-
“In deciding the question of obscenity of any book, story or article the
court whose responsibility it is to adjudge the question may, if the court
considers it necessary, rely to an extent on evidence and views of leading
literary personage, if available, for its own appreciation and assessment
and for satisfaction of its own conscience. The decision of the court must
necessarily be on an objective assessment of the book or story or article
as a whole and with particular reference to the passages complained of in
the book, story or article. The court must take an overall view of the
matter complained of as obscene in the setting of the whole work, [pic]but
the matter charged as obscene must also be considered by itself and
separately to find out whether it is so gross and its obscenity so
pronounced that it is likely to deprave and corrupt those whose minds are
open to influence of this sort and into whose hands the book is likely to
fall. Though the court must consider the question objectively with an open
mind, yet in the matter of objective assessment the subjective attitude of
the Judge hearing the matter is likely to influence, even though
unconsciously, his mind and his decision on the question. A Judge with a
puritan and prudish outlook may on the basis of an objective assessment of
any book or story or article, consider the same to be obscene. It is
possible that another Judge with a different kind of outlook may not
consider the same book to be obscene on his objective assessment of the
very same book. The concept of obscenity is moulded to a very great extent
by the social outlook of the people who are generally expected to read the
book. It is beyond dispute that the concept of obscenity usually differs
from country to country depending on the standards of morality of
contemporary society in different countries. In our opinion, in judging the
question of obscenity, the Judge in the first place should try to place
himself in the position of the author and from the viewpoint of the author
the Judge should try to understand what is it that the author seeks to
convey and whether what the author conveys has any literary and artistic
value. The Judge should thereafter place himself in the position of a
reader of every age group in whose hands the book is likely to fall and
should try to appreciate what kind of possible influence the book is likely
to have in the minds of the readers.”

Thereafter, the Court proceeded to analyse the story of the novel and
noted thus:-
“If we place ourselves in the position of readers, who are likely to read
this book, — and we must not forget that in this class of readers there
will probably be readers of both sexes and of all ages between teenagers
and the aged, — we feel that the readers as a class will read the book with
a sense of shock, and disgust and we do not think that any reader on
reading this book would become depraved, debased and encouraged to
lasciviousness. It is quite possible that they come across such characters
and such situations in life and have faced them or may have to face them in
life. On a very anxious consideration and after carefully applying our
judicial mind in making an objective assessment of the novel we do not
think that it can be said with any assurance that the novel is obscene
merely because slang and unconventional words have been used in the book in
which there have been emphasis on sex and description of female bodies and
there are the narrations of feelings, thoughts and actions in vulgar
language. Some portions of the book may appear to be vulgar and readers of
cultured and refined taste may feel shocked and disgusted. Equally in some
portions, the words used and description given may not appear to be in
proper taste. In some places there may have been an exhibition of bad taste
leaving it to the readers of experience and maturity to draw the necessary
inference but certainly not sufficient to bring home to the adolescents any
suggestion which is depraving or lascivious.”

50. The aforesaid analysis shows that the court has to take an overall
view of the matter; that there has to be an objective assessment and the
Judge must in the first place put himself in the position of the author
and, thereafter, in the position of reader of every case and must eliminate
the subjective element or personal preference; a novel cannot be called
obscene usually because of slang and unconventional words in it; the court
has to see that the writing is of such that it cannot bring home to the
adolescences any suggestion which is depraving or lascivious and that the
concept of obscenity usually differs from country to country depending on
the standards of morality of contemporary society in different countries.
51. In Director General, Directorate General of Doordarshan and others v.
Anand Patwardhan and another[51], the respondent had produced film titled
Father, Son and Holy War and had submitted the same to the Doordarshan for
telecast, but the Doordarshan refused to telecast the documentary film
despite handing over a copy of U-matic certificate. He preferred a writ
petition before the Bombay High Court against the refusal by Doordarshan to
telecast the documentary film which was disposed by the Division Bench by
directing Doordarshan to take a decision on the application within a period
of six weeks. A Selection Committee was constituted and it declined the
prayer of the applicant on the foundation that it depicted the rise of
Hindu fundamentalism and male chauvinism without giving any solution how it
could be checked and it portrayed violence and hatred. The decision of
Select Committee was communicated to the respondent who challenged the same
in the High Court of Bombay which directed the Doordarshan to telecast the
documentary film within the period of six weeks in the evening slot. The
same being challenged in a special leave petition, this court directed for
constitution of a new committee in accordance with the Guidelines of
Doordarshan to consider the proposal of the respondent. The committee
constituted in pursuance of order of this court observed that the film has
a secular message relevant to our times and our society, however the film
contains scenes and speeches which can influence negative passions and
therefore the committee would like a larger committee to see the film and
form an opinion before it is open to public viewing. Therefore, the Prasar
Bharti Board previewed the documentary film and formed opinion that its
production quality was unsatisfactory and its telecast would be violative
of the policy of Doordarshan. The Court placing reliance on K.A. Abbas
(supra) and other authorities did not accept the stand of the Doordarshan
and dismissed the appeal.
52. In Ajay Goswami v. Union of India and others[52] the petitioner
agitated that the grievance of freedom of speech and expression enjoyed by
the newspaper industry is not keeping balance with the protection of
children from harmful and disturbing material. The further prayer made was
to command the authorities to strike a reasonable balance between the
fundamental right of freedom of speech and expression enjoyed by the press
and the duties of the Government, being signatory of the United Nations
Convention on the Rights of Child, 1989 and Universal Declaration of Human
Rights, to protect the vulnerable minor from abuse, exploitation and
harmful effects of such expression. The further prayer was the authorities
concerned should provide for classification or introduction of a regulatory
system for facilitating climate of reciprocal tolerance which should
include an acceptance of other people’s rights to express and receive
certain ideas and actions; and accepting that other people have the right
not to be exposed against their will to one’s expression of ideas and
actions. The first question that the court posed “is the material in
newspaper really harmful for the minors”. In that context, the court
observed that the moral value should not be allowed to be sacrificed in the
guise of social change or cultural assimilation. The court then posed
whether the minors have got any independent right enforceable under Article
32 of the Constitution. In the course of discussion, the court referred to
earlier authorities pronounced by this court, referred to Section 13 (2) of
the Press Council Act 1978, Section 292 of the IPC and Section 4 and 6 of
the Indecent Representation of Women (Prohibition) Act, 1986 (for short
‘the 1986 Act’) and thereafter proceeded to deal with test of obscenity and
in that context observed as follows:-
“67. In judging as to whether a particular work is obscene, regard must be
had to contemporary mores and national standards. While the Supreme Court
in India held Lady Chatterley’s Lover to be obscene, in England the jury
acquitted the publishers finding that the publication did not fall foul of
the obscenity test. This was heralded as a turning point in the fight for
literary freedom in UK. Perhaps “community mores and standards” played a
part in the Indian Supreme Court taking a different view from the English
jury. The test has become somewhat outdated in the context of the internet
age which has broken down traditional barriers and made publications from
across the globe available with the click of a mouse.”

After so stating the court reproduced a passage from Samresh Bose (supra)
and also a passage from K.A. Abbas (supra) and eventually held that:-
“76. The term obscenity is most often used in a legal context to describe
expressions (words, images, actions) that offend the prevalent sexual
morality. On the other hand, the Constitution of India guarantees the right
to freedom of speech and expression to every citizen. This right will
encompass an individual’s take on any issue. However, this right is not
absolute, if such speech and expression is immensely gross and will badly
violate the standards of morality of a society. Therefore, any expression
is subject to reasonable restriction. Freedom of expression has contributed
much to the development and well-being of our free society.

77. This right conferred by the Constitution has triggered various issues.
One of the most controversial issues is balancing the need to protect
society against the potential harm that may flow from obscene material, and
the need to ensure respect for freedom of expression and to preserve a free
flow of information and ideas.”

And again:-
“79. We are also of the view that a culture of “responsible reading” should
be inculcated among the readers of any news article. No news item should be
viewed or read in isolation. It is necessary that a publication must be
judged as a whole and news items, advertisements or passages should not be
read without the accompanying message that is purported to be conveyed to
the public. Also the members of the public and readers should not look for
meanings in a picture or written article, which are not conceived to be
conveyed through the picture or the news item.

80. We observe that, as decided by the U.S. Supreme Court in United States
v. Playboy Entertainment Group, Inc.[53] that,

“in order for the State … to justify prohibition of a particular expression
of opinion, it must be able to show that its action was caused by something
more than a mere desire to avoid the discomfort and unpleasantness that
always accompany an unpopular viewpoint”.

Therefore, in our view, in the present matter, the petitioner has failed to
establish his case clearly. The petitioner only states that the pictures
and the news items that are published by Respondents 3 and 4 “leave much
for the thoughts of minors”.”

The aforesaid decision, as it appears to us, lays down the guarantee given
under the Constitution on the one hand pertaining to right to freedom of
speech and expression to every citizen and the right of an individual
expressing his views on any issue and simultaneously the observance of the
right is not absolute if such speech and expression is immensely gross and
will badly violate standards of morality of a society and hence, any
expression is subject to reasonable restriction.
53. At this juncture, we may refer to the pronouncement in Bobby Art
International v. Om Pal Singh Hoon and Others[54], popularly known as
“Bandit Queen case”, because the film dealt with the life of Phoolan Devi
and it was based on a true story. The appellant had approached this Court
assailing the order passed by the Division Bench of the High Court of Delhi
in Letters Patent Appeal affirming the judgment of the learned Single
Judge, who had quashed the certificate granted to the film and directed the
Censor Board to consider the grant of ‘A’ Certificate after certain
excisions and modifications in accordance with the order that has been
passed by the Court. The Court referred in extenso to the authorities in
K.A. Abbas (supra), Raj Kapoor (supra), Samresh Bose (supra), State of
Bihar v. Shailabala Devi[55], narrated the story of the film which is a
serious and sad story of a village born female child becoming a dreaded
dacoit. The Court observed that an innocent woman had turned into a
vicious criminal because lust and brutality had affected her psyche. The
Court referred to the various levels of the film accusing the members of
the society who had tormented her and driven her to become a dreaded dacoit
filled with the desire to avenge. The Court expressed that in the light of
the said story, the individual scenes are to be viewed. Thereafter, the
Court ruled that:-
“First, the scene where she is humiliated, stripped naked, paraded, made to
draw water from the well, within the circle of a hundred men. The exposure
of her breasts and genitalia to those men is intended by those who strip
her to demean her. The effect of so doing upon her could hardly have been
better conveyed than by explicitly showing the scene. The object of doing
so was not to titillate the cinemagoer’s lust but to arouse in him sympathy
for the victim and disgust for the perpetrators. The revulsion that the
Tribunal referred to was not at Phoolan Devi’s nudity but at the sadism and
heartlessness of those who had stripped her naked to rob her of every shred
of dignity. Nakedness does not always arouse the baser instinct. The
reference by the Tribunal to the film “Schindler’s List” was apt. There is
a scene in it of rows of naked men and women, shown frontally, being led
into the gas chambers of a Nazi concentration camp. Not only are they about
to die but they have been stripped in their last moments of the basic
dignity of human beings. Tears are a likely reaction; pity, horror and a
fellow-feeling of shame are certain, except in the pervert who might be
aroused. We do not censor to protect the pervert or to assuage the
susceptibilities of the over-sensitive. “Bandit Queen” tells a powerful
human story and to that story the scene of Phoolan Devi’s enforced naked
parade is central. It helps to explain why Phoolan Devi became what she
did: her rage and vendetta against the society that had heaped indignities
upon her.”

The decision rendered in the said case requires to be appropriately
appreciated. It is seemly to notice that the Court has gone by the true
live incidents, the sincerity in depiction by the film maker, the necessity
for such depiction and the emotions that are likely to be invoked.
Emphasis was on the central theme of suffering. It has also taken note of
the fact that sex had not been glorified in the film. It has also been
observed that a few swear words, the like of which can be heard everyday in
every city, town and village street, would not tempt any adult to use them
because they are used in this film.
54. In this context, the learned senior counsel has commended us to a two-
Judge Bench decision in Ramesh s/o Chhote Lal Dalal v. Union of India and
others[56] wherein the Court declined to interfere to issue a writ in the
nature of prohibition or any other order restraining Doordarshan and the
producer Govind Nihlani from telecasting or screening the serial titled
“Tamas”. The Court referred to the view of Vivian Bose, J. as he then was
in the Nagpur High Court in the case of Bhagwati Charan Shukla v.
Provincial Government[57] and K.A. Abbas (supra), Raj Kapoor (supra) and
observed thus:-
“........the potency of the motion picture is as much for good as for evil.
If some scenes of violence, some nuances of expression or some events in
the film can stir up certain feelings in the spectator, an equally deep
strong, lasting and beneficial impression can be conveyed by scenes
revealing the machinations of selfish interests, scenes depicting mutual
respect and tolerance, scenes showing comradeship, help and kindness which
transcend the barriers of religion. Unfortunately, modern developments both
in the field of cinema as well as in the field of national and
international politics have rendered it inevitable for people to face the
realities of internecine conflicts, inter alia, in the name of religion.
Even contemporary news bulletins very often carry scenes of pitched battle
or violence. What is necessary sometimes is to penetrate behind the scenes
and analyse the causes of such conflicts. The attempt of the author in this
film is to draw a lesson from our country’s past history, expose the
motives of persons who operate behind the scenes to generate and foment
conflicts and to emphasise the desire of persons to live in amity and the
need for them to rise above religious barriers and treat one another with
kindness, sympathy and affection. It is possible only for a motion picture
to convey such a message in depth and if it is able to do this, it will
[pic]be an achievement of great social value.”
(Emphasis supplied)
55. In Gandhi Smaraka Samithi, v. Kanuri Jagadish Prasad[58], the
appellant filed a complaint against the publication of a novel titled
“Kamotsav”, written by accused no.3 therein, published in a weekly, namely,
Andhra Jyothi. The novel showed two characters in nude one over the other
in a bathroom. The allegation was that the characters of the novel would
undermine the social values and the cultural heritage of the society and
the moral values of the individuals. The accused faced trial under Section
292 and 293 IPC as well as under Section 6 and 7 of the 1986 Act, but it
ended in an acquittal. In the appeal preferred by the complainant
assailing the judgment of acquittal, the learned Single Judge referred to
the meaning of “obscene”, dwelt upon the theme projected by the author
relating to the present day society and how members of the high class
society behave and how they indulge in free sex and how they are addicted
to drunkenness. The Court observed that the object of the writer is only
to create some fear in the minds of the readers. The Court opined that the
portions appearing on the pages, which was found objectionable by the
learned counsel for the appellants, if analysed in the context of the theme
of the novel, in the strict sense, may not answer the definition of
obscene. The Court in that context proceeded to observe:-
“5. ...... In order that an article should be obscene, it must have the
tendency to corrupt the morals of those in whose hands the article may
fall. The idea as to what is deemed as obscene of course varies from age
to age and from region to region depending upon particular social
conditions prevailing. Anything calculated to inflame the passions is
‘obscene’. Anything distinctly calculated to incite a reader to indulge in
acts of indecency or immorality is obscene. A book may be obscene although
it contains a single obscene passage. A picture of a woman in the nude is
not per se obscene. For the purpose of deciding whether a picture is
obscene or not, one has to consider to a great extent the surrounding
circumstances, the suggestive element in the picture and the person or
persons in whose hands it is likely to fall. It is the duty of the Court
to find out where there is any obscenity or anything in the novel which
will undermine or take away or influence the public in general and the
readers in particular.”

56. The High Court referred to its decision in Promilla kapur v. Yash Pal
Bhasin[59], wherein it has been observed thus:-
“It is true that prostitution has been always looked down upon with hatred
throughout the ages by the society and particularly “sex” has been
considered an ugly word and any talk about sex in our conservative society
was considered a taboo not many years ago but with this country progressing
materially and with the spread of education and coming of western culture,
the society has become more open. It is indeed obvious that the phenomenon
of call girls has peaked in our country amongst the affluent section of the
society. The society is changing vastly with spiritual thinking taking a
back seat and there is nothing wrong if a sociologist makes a research on
the subject of call girls in order to know the reasons as to why and how
the young girls fall in this profession of call girls and what society
could do in order to eradicate or at least minimize the possibility of
young budding girls joining this flesh trade. As a whole the book appears
to be a serious study done on the subject of call girls. Mere fact that
some sort of vulgar language has been used in some portions of the book in
describing the sexual intercourse would not, in the overall setting of the
book, be deemed to be obscene. If some portions of the book are taken in
isolation, those portions may have the effect of giving lustful thoughts to
some young adolescent minds but for that reason alone it would not be in
the interests of justice to declare this book as obscene.”

The High Court also referred to an earlier decision of the said Court
in B.K. Adarsh v. Union of India[60], wherein it was observed that decency
or indecency of a particular picture, sequence or scene cannot depend upon
the nature of the subject matter, but the question is one of the manner of
handling of the subject-matter and sociological or ethical interest or
message which the film conveys to the reasonable man, and that the approach
of the Court would be from the perspective of social pathological
phenomenon with a critical doctor keeping the balance between the felt
necessities of the time and social consciousness of a progressive society
eliminating the evils and propagating for the cultural evolution literary
taste and pursuit of happiness in social relations, national integration
and solidarity of the nation and the effect of the film thereon. In the
said case, it was also observed that the sense of decency or indecency have
to be kept in view in adjudging whether the motion picture would stand to
the test of satisfying a reasonable man in the society that it would not
deprave or debase or corrupt his moral standards or induce lewdness,
lasciviousness or lustful thoughts.
57. In S. Khushboo v. Kanniammal and another[61] the appellant, a well
known actress had approached this court seeking quashment of the criminal
proceeding registered against her for offences punishable under Sections
499, 500, 509 IPC and Sections 4 and 6 of the 1986 Act. The controversy
arose as India Today, a fortnightly magazine, had conducted a survey on the
subject of sexual habits of people residing in the bigger cities of India.
One of the issues discussed as part of the said survey was increasing
incidence of pre-marital sex. As a part of this exercise the magazine had
gathered and published the views expressed by several individuals from
different segments of society, including those of the appellant. In her
personal opinion, she had mentioned about live-in relationships and called
for the societal acceptance of the same. She had qualified her remarks by
observing that girls should take adequate precautions to prevent unwanted
pregnancies and transmission of venereal diseases. Subsequent to the
publication in India today Dhina Thanthi, a Tamil daily carried a news item
which first quoted the appellant’s statement published in India Today and
then opined that it had created a sensation all over the State of Tamil
Nadu. The news item also reported a conversation between the appellant and
a correspondent of Dhina Thanthi wherein the appellant had purportedly
defended her views. However, soon after publication in Dhina Thanthi the
appellant sent a legal notice categorically denying that she had made the
statement as had been reproduced in Dhina Thanthi and required to publish
her objection prominently within three days. The publication of the
statements in India Today and Dhina Thanthi drew criticism from some
quarters and several persons and organizations filed criminal complaints
against the appellant. The appellant approached the High Court for
quashment of the criminal proceeding but as the High Court declined to
interfere, this court was moved in a special leave petition. The court
perused the complaints which revealed that most of the allegations
pertained to offences such as defamation, obscenity, indecent
representation of women and incitement among others. While dealing with
the section 292 IPC, the court held thus:-
“24. Coming to the substance of the complaints, we fail to see how the
appellant’s remarks amount to “obscenity” in the context of Section 292
IPC. sub-section (1) of Section 292 states that the publication of a book,
pamphlet, paper, writing, drawing, painting, representation, figure, etc.
will be deemed obscene, if—

• It is lascivious (i.e. expressing or causing sexual desire); or

• Appeals to the prurient interest (i.e. excessive interest in sexual
matters); or

• If its effect, or the effect of any one of the items, tends to deprave
and corrupt persons, who are likely to read, see, or hear the matter
contained in such materials.

In the past, authors as well as publishers of artistic and literary works
have been put to trial and punished under this section.”

Thereafter, the court referred to the authorities in Ranjit D. Udeshi
(supra) and Samresh Bose (surpa) and proceeded to observe:-
“45. Even though the constitutional freedom of speech and expression is not
absolute and can be subjected to reasonable restrictions on grounds such as
“decency and morality” among others, we must lay stress on the need to
tolerate unpopular views in the sociocultural space. The Framers of our
Constitution recognised the importance of safeguarding this right since the
free flow of opinions and ideas is essential to sustain the collective life
of the citizenry. While an informed citizenry is a precondition for
meaningful governance in the political sense, we must also promote a
culture of open dialogue when it comes to societal attitudes.

46. Admittedly, the appellant’s remarks did provoke a controversy since the
acceptance of premarital sex and live-in relationships is viewed by some as
an attack on the centrality of marriage. While there can be no doubt that
in India, marriage is an important social institution, we must also keep
our minds open to the fact that there are certain individuals or groups who
do not hold the same view. To be sure, there are some indigenous groups
within our country wherein sexual relations outside the marital setting are
accepted as a normal occurrence. Even in the societal mainstream, there are
a significant [pic]number of people who see nothing wrong in engaging in
premarital sex. Notions of social morality are inherently subjective and
the criminal law cannot be used as a means to unduly interfere with the
domain of personal autonomy. Morality and criminality are not coextensive.

47. In the present case, the substance of the controversy does not really
touch on whether premarital sex is socially acceptable. Instead, the real
issue of concern is the disproportionate response to the appellant’s
remarks. If the complainants vehemently disagreed with the appellant’s
views, then they should have contested her views through the news media or
any other public platform. The law should not be used in a manner that has
chilling effects on the “freedom of speech and expression”.

xxx xxx xxx

50. Thus, dissemination of news and views for popular consumption is
permissible under our constitutional scheme. The different views are
allowed to be expressed by the proponents and opponents. A culture of
responsible reading is to be inculcated amongst the prudent readers.
Morality and criminality are far from being coextensive. An expression of
opinion in favour of non-dogmatic and non-conventional morality has to be
tolerated as the same cannot be a ground to penalise the author.”

The aforesaid authority, thus, emphasises on the need for tolerance
of unpopular views in the socio-cultural space. It also takes note of the
fact that notions of social morality are inherently subjective; and
morality and criminality are not co-extensive. It is apt to note here that
in the said case, the Court has also held that by the statement of the
appellant therein no offence was committed. The Court recognised that free
flow of notions and ideas is essential to sustain the collective lives of
the citizenry.
58. Recently in Aveek Sarkar and another v. State of West Bengal and
others[62], the Court was dealing with the fact situation where Boris
Becker, a world renowned tennis player, had posed nude with his dark-
skinned fiancée by name Barbara Feltus, a film actress. Both of them spoke
freely about their engagement, their lives and future plans. The article
projected Boris Becker as a strident protester of the pernicious practice
of “Apartheid” and the purpose of the photograph was also to signify that
love champions over hatred. The article was published in the German
magazine by name “Stern”. “Sports World”, a widely circulated magazine had
reproduced the photograph and the article as cover story. “Anandabazar
Patrika”, a newspaper having wide circulation in Kolkata, also published in
the second page of the newspaper the photograph as it appeared in Sports
World. A lawyer claiming to be a regular reader of Sports World as well as
Anandabaza

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