Page 1 Reportable

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

Page 2 2

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

Page 3 3

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

Page 4 4

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

Page 5 5

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

Page 6 6

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

Page 7 7

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

Page 8 8

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

Page 9 9

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.

Page 10 10

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

Page 11 11

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

Page 12 12

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:-

1

(1987) 2 AWC 1451

Page 13 13

“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

2

AIR 1958 Mad. 210

Page 14 14

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

3

(1905), 9 O.L.R. 418

Page 15 15

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

4

LR 1868 3 QB 360

5

20, Law and Contemporary Problems (1955): 630-647

6

(1954 1 WLR 11 1138

Page 16 16

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

Page 17 17

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

Page 18 18

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.”

Page 19 19

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

7

[1961] Crim LR 176

8

Unreported case, See http://www.bbc.com/news/uk-16443697

Page 20 20

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 20

th

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

Page 21 21

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

9

315 U.S. 568 (1942)

10

(1957) 354 US 476

Page 22 22

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

11

383 U.S. 413 (1966)

Page 23 23

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.

12

413 US 15 (1973): 93 S.Ct. 2607

13

See the dissenting opinion of Mr. Justice Brennan in Paris Adult Theatre I v. Slaton,

413 US 49, 73, 93 S. Ct. 2628, 2642, 37 L.Ed.2d 446 (1973)

Page 24 24

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:-

14

‘A quotation from Voltaire in the fly leaf of a book will not constitutionally redeem and

otherwise obscene publication .....’ Kois v. Wisconsin, 408 U.S., 229, 231, 92 S.Ct.,

2245, 2246, 33, L.Ed. 2d 312 (1972). See Memoirs v. Massachusetts, 383 U.S., 413,

461, 86 S.Ct., 975, 999, 16 L.Ed. 2d 1 (1966) (white, J., dissenting). We also reject, as a

constitutional standard, the ambiguous concept of ‘social importance’. See id., at 462,

86 S. Ct. at 999

Page 25 25

“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

15

Although we are not presented here with the problem of regulating lewd public conduct

itself, the States have greater power to regulate nonverbal, physical conduct than to

suppress depictions or descriptions of the same behavior. In United States v.

O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968), a case not

dealing with obscenity, the Court held a State regulation of conduct which itself

embodied both speech and nonspeech elements to be 'sufficiently justified if . . . it

furthers an important or substantial governmental interest; if the governmental interest

is unrelated to the suppression of free expression; and if the incidental restriction on

alleged First Amendment freedoms is no greater than is essential to the furtherance of

that interest.' See California v. LaRue, 409 U.S. 109, 117—118, 93 S.Ct. 390, 396—397,

34 L.Ed.2d 342 (1972).

16

The mere fact juries may reach different conclusions as to the same material does not

mean that constitutional rights are abridged. As this Court observed in Roth v. United

States, 354 U.S., at 492 n. 30, 77 S.Ct., at 1313 n. 30, 'it is common experience that

different juries may reach different results under any criminal statute. That is one of the

consequences we accept under our jury system. Cf. Dunlop v. United States 486,

499-500.'

Page 26 26

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

17

521 U.S. 844 (1997)

Page 27 27

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

18

732 P.2d 9 (1987)

Page 28 28

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

19

Joan Schleef, Note, United States v. various Articles of Obscene Merch, 52, U. Cin. L. Rev. 1131, 1132

(1983)

Page 29 29

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

20

Journal of Sports and Entertainment Law (Vol.1, Number 1), Harvard Law School, 2010

21

United States v. Pinkus, 579 F.2d 1174, 1175 9

th

Cir. 1978).

22

Miller v. California, 413 U.S. 15 (1973)

Page 30 30

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

23

No. 08-5261, 2009 U.S. App. Lexis 16363 (4

th

Cir. July 24, 2009)

24

55 S.W. 3d 608 (Tex. Crim. App. 2001)

25

No. 08-15964, 2010 U.S. App. Lexis 2320 (11

th

Cir. Feb. 2, 2010

Page 31 31

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

26

535 U.S. 234, 248 (2002)

27

(2012) 1 Cal LJ 157

Page 32 32

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

Page 33 33

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

28

Application No. 68354/2001, 25

th

January 2007

Page 34 34

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

Page 35 35

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

Page 36 36

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

Page 37 37

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.

Page 38 38

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

29

See D. Feldman, “Human Dignity as a legal value. Part I”, (1999) Public

Law pp.682–702 at p.697: “The notion of dignity can easily become a screen behind

which paternalism or moralism are elevated above freedom in legal decision-making.” As

another author has pointed out, “ [l]a notion de dignité, indéfinie, est à l'évidence

manipulable à l'extrême. Grande peut-être alors la tentation d'un ordre moral évoquée par

G. Lebreton (Chr. D. [1996, J., 177]). La confusion établie entre moralité publique et dignité

s'y prête particulièrement à l'heure où le politiquement correct traverse l'Atlantique ”, J.-P.

Théron, “Dignité et libertés. Propos sur une jurisprudence contestable”, in Pouvoir et

liberté. Etudes offertes à Jacques Mourgeon , (Brussels, Bruylant, 1998), p.305,

Page 39 39

— 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

concerning two decisions of October 27, 1995 by the French Conseil d'Etat, sitting as a

full court, Commune de Morsang-sur-Orge and Ville d'Aix-en-Provence, AJDA, 1995,

942, RFDA, 1995, 1204, submissions by Mr Frydman, and Rev. trim. dr. h., 1996, 657,

submissions by Mr Frydman, note by Nathalie Deffains. See also P. Martens, “Encore la

dignité humaine: Réflexions d'un juge sur la promotion par les juges d'une norme

suspecte”, in Les droits de l'homme au seuil du troisième millénaire. Mélanges en

hommage à Pierre Lambert , (Brussels, Bruylant, 2000), pp.561 et seq . On the role

played by morals in the debate on dignity, see J. Fierens, “La dignité humaine comme

concept juridique”, (2002) Journal des Tribunaux , pp.577 et seq ., in particular p.581.

See also, from the perspective of the “paradigm of humanity”, B. Edelman, “La dignité de

la personne humaine, un concept nouveau”, D., (1997), chron. p.185, and reprinted in

the book by the same author, La personne en danger , (Paris, PUF, 1999), pp.505 et seq.

30

On the distinction between protection of the dignity of others and protection of one's

own fundamental dignity, see B. Maurer, Le principe de respect de la dignité humaine et

la Convention européenne des droits de l'homme , (Paris, La documentation française,

1999), in particular pp.450 et seq . and pp.464 et seq .

31

BVerfGE 75, 369 ; EuGRZ, 1988, 270 . See also the article by G. Nolte, “Falwell vs.

Strauβ: Die rechtlichen Grenzen politischer Satire in den USA und der Bundesrepublik”,

EuGRZ, (1988), pp.253–59.

32

See the German Federal Constitutional Court's decision of June 3, 1987 (BVerfGE 75,

369 ; EuGRZ, 1988, 270 ), discussed below: “ Die umstrittenen Karikaturen sind das

geformte Ergebnis einer freien schöpferischen Gestaltung, in welcher der

Beschwerdeführer seine Eindrücke, Erfahrungen und Erlebnisse zu unmittelbarer

Anschauung bringt. Sie genügen damit den Anforderungen, die das

Bundesverfassungsgericht als wesentlich für eine künstlerische Betätigung

ansieht ( BVerfGE 67, 213 [226] = EuGRZ 1984, 474 [477] unter Berufung auf BVerfGE

30, 173 [189]). Daβ mit ihnen gleichzeitig eine bestimmte Meinung zum Ausdruck gebracht

wird, nimmt ihnen nicht die Eigenschaft als Kunstwerk. Kunst und Meinungsäuβerung

schlieβen sich nicht aus; eine Meinung kann — wie es bei der sogenannten engagierten

Kunst üblich ist — durchaus in der Form künstlerischer Betätigung kundgegeben werden

(Scholz, a.a.O., Rdnr. 13). Maβgebliches Grundrecht bleibt in diesem Fall Art. 5 Abs. 3 Satz

1 GG, weil es sich um die spezielle Norm handelt ( BVerfGE 30, 173 [200]).” It should be

noted that in German Constitutional Law, freedom of the arts (Kunstfreiheit) is

specifically protected by Art.5(3) of the Basic Law. “The exercise of this freedom is not

limited, as is freedom of expression, by the provisions of general laws or the right to

reputation, but it must be considered in conjunction with other constitutional rights,

notably the right to the free development of personality and human dignity”, E.

Page 40 40

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

Barendt, Freedom of Speech , (2nd edn, Oxford, Oxford University Press, 2005), p.229,

citing the order of the German Constitutional Court of July 17, 1984 in the

“street-theatre” case, [ BVerfGE 67, 213 ; EuGRZ, 1984, 474 ] in which the court held

that a moving street theatre, in which Franz-Josef Strauss, then a candidate for the

Chancellorship, was portrayed in the same float as prominent Nazis, should be protected

under freedom of the arts in the absence of evidence that there was a very serious injury

to personality rights.

33

Article 5(3) of the German Basic Law provides: “Art and science, research and teaching

are free. …” As already noted, freedom of the arts (Kunstfreiheit) is specifically protected

by Art.5(3) of the Basic Law and the exercise of this freedom is not limited as freedom of

expression is. It must be considered in conjunction with other constitutional rights, such

as the right to human dignity. See E. Barendt, Freedom of Speech , (2nd edn, Oxford,

Oxford University Press, 2005), p.229.

34

“ Die Grundanforderungen künstlicher Tä;tigkeit festzulegen, ist daher durch Art. 5 Abs.

3 Satz 1 GG nicht verboten sondern verfassungsrechtlich gefordert. Erlaubt und notwendig

ist allerdings nur die Unterscheidung zwischen Kunst und Nichtkunst; eine

Niveaukontrolle, also eine Differenzierung zwischen ‘höherer’ und ‘niederer’, ‘guter’ und

‘schlechter’ (und deshalb nicht oder weniger schutzwürdiger) Kunst, liefe demgegenüber

auf eine verfassungsrechtlich unstatthafte Inhaltskontrolle hinaus (Scholz in:

Maunz/Dürig, GG, Art. 5 Abs. 3 Rdnr. 39). ”

35

E. Barendt, Freedom of Speech, 2

nd

ed., Oxford, Oxford University Press, 2005, p.230.

Page 41 41

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

36

Op. cit., p.230. The author adds in a footnote the following: “For an Italian case on the

point, see the decision of the Corte di Cassazione, Penal Section, of 20 Oct. 1998,

reported in (1999) Il Diritto dell'Informazione e dell'Informatica 369, rejecting appeal of

author of a newspaper article which included a cartoon implying that a woman senator

fellated Berlusconi. Satire is not protected if does not respect personality rights.”

Page 42 42

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

Page 43 43

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

37

Application No. 5493/72, 7

th

December 1976, Series A No. 24

Page 44 44

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

Page 45 45

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

38

Application No. 33014/05, 5 May 2011

39

Application No. 41056/04, 16 February, 2010

40

1997 24 ECHRR (1)

Page 46 46

national Nigel Wingrove on 18

th

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

Page 47 47

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,

Page 48 48

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

Page 49 49

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

Page 50 50

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

41

13 EHRR 212

Page 51 51

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

Page 52 52

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, repre-

sentation, 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 em-

bodied in it.]

(2)Whoever—

Page 53 53

(a) sells, lets to hire, distributes, publicly exhibits

or in any manner puts into circulation, or for pur-

poses of sale, hire, distribution, public exhibition

or circulation, makes, produces or has in his pos-

session any obscene book, pamphlet, paper, draw-

ing, 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 busi-

ness in the course of which he knows or has rea-

son 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 circu-

lation, 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 of-

fence under this section, shall be punished [on

first conviction with imprisonment of either de-

scription 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 ei-

ther 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—

Page 54 54

(a) any book, pamphlet, paper, writing, drawing,

painting, representation or figure—

(i)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

(ii)which is kept or used bona fide for reli-

gious purposes;

(b) any representation sculptured, engraved,

painted or otherwise represented on or in—

(i)any ancient monument within the

meaning of the Ancient Monuments and Ar-

chaeological Sites and Remains Act, 1958 (24

of 1958), or

(ii)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 pur-

poses of sale, hire, distribution, public exhibition

or circulation, makes, produces or has in his pos-

session any obscene book, pamphlet, paper, draw-

ing, painting, representation or figure or any other

obscene object whatsoever, or

Page 55 55

(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 busi-

ness in the course of which he knows or has rea-

son 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 circu-

lation, 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 of-

fence 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 paint-

ing 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 im-

pact of the provision in the backdrop of the challenge to the

Page 56 56

constitutional validity of the same, in Ranjit D. Udeshi v.

State of Maharashtra

42

. Before the Constitution Bench a con-

tention was canvassed with regard to the constitutional validity

of Section 292 IPC on the ground it imposes impermissible re-

striction 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

42

(1965) 1 SCR 65

Page 57 57

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

Page 58 58

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

Page 59 59

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

Page 60 60

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

Page 61 61

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

Page 62 62

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

Page 63 63

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

43

(1969) 2 SCC 687

Page 64 64

adults. In early English writings authors wrote

only with unmarried girls in view but society has

changed since then to allow litterateurs and

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

44

(1970) 2 SCC 780

Page 65 65

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

Page 66 66

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 con-

temporary standards of the average man;

Page 67 67

(b) that the motion picture is not saved by any re-

deeming social value; and

(c) that it is patently offensive because it is op-

posed to contemporary standards.”

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

45

(1965) 380 US 51

46

(1968) 390 US 149

47

(1961) 365 US 43

48

(1915) 236 US 230

Page 68 68

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 com-

prehensive 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 inde-

cent or immoral. It should be our concern, how-

Page 69 69

ever, 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 pat-

ricide 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 circum-

stances 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 Tes-

tament of Cressaid (from where Verrier Elwyn bor-

rowed the idea) would never see the light of the

day. Again carnage and bloodshed may have his -

torical value and the depiction of such scenes as

the Sack of Delhi by Nadirshah may be permissi-

ble, 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 be-

cause people must be made to view a historical

theme without true history? Rape in all its naked-

ness 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

Page 70 70

context and the manner of delicate and subtle delineation in

contradistinction to gross, motivated and non-artistic han-

dling. 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 ‘Lolita’ 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

49

(1980) 1 SCC 43

Page 71 71

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

Page 72 72

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 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

Page 73 73

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 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.”

Page 74 74

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

Page 75 75

“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

50

(1985) 4 SCC 289

Page 76 76

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

Page 77 77

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

Page 78 78

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, 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

Page 79 79

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.”

Page 80 80

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 class 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

51

(2006) 8 SCC 433

Page 81 81

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

Page 82 82

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

52

(2007) 1 SCC 143

Page 83 83

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

Page 84 84

obscene, in England the jury acquitted the pub-

lishers finding that the publication did not fall foul

of the obscenity test. This was heralded as a turn-

ing point in the fight for literary freedom in UK.

Perhaps “community mores and standards” played

a part in the Indian Supreme Court taking a dif-

ferent view from the English jury. The test has be-

come somewhat outdated in the context of the in-

ternet age which has broken down traditional bar-

riers 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.”

Page 85 85

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

53

529 US 803 : 120 SCt 1878 : 146 L Ed 2d 865 (2000)

Page 86 86

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

,

54

(1996) 4 SCC 1

55

AIR 1952 SC 329

Page 87 87

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

Page 88 88

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

Page 89 89

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

56

(1988) 1 SCC 668

57

AIR 1947 Nag 1

Page 90 90

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

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

58

[(1993) 2 APLJ 91 (SN)]

Page 91 91

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.”

Page 92 92

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.”

59

1989 Cr.L.J. 1241

Page 93 93

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.

60

AIR 1990 AP 100

Page 94 94

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

61

(2010) 5 SCC 600

Page 95 95

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

Page 96 96

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

Page 97 97

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

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

Page 98 98

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

62

(2014) 4 SCC 257

Page 99 99

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 Anandabazar Patrika

filed a complaint under Section 292 of IPC against the

appellants therein, the Editor, the Publisher and Printer of the

newspaper and also against the Editor of Sports World, former

Captain of Indian Cricket Team, Late Mansoor Ali Khan

Pataudi. The learned Magistrate took cognizance and issued

summons under Section 292, IPC and also under Section 4 of

the 1986 Act. The appellants approached the High Court for

quashing the criminal proceeding but the High Court declined

to exercise the jurisdiction under Section 482 CrPC. It was

contended before this Court that obscenity has to be judged in

the context of contemporary social mores, current socio-moral

Page 100 100

attitude of the community and the prevalent norms of

acceptability/susceptibility of the community, in relation to

matters in issue. Reliance was placed on the Constitution

Bench decision in Ranjit D. Udeshi (supra) and Chandrakant

Kalyandas Kakodkar (supra). The two-Judge Bench referred

to the principles stated in the aforesaid two decisions and the

principles stated in Samresh Bose (supra). While quoting a

passage from Samresh Bose (supra), the Court observed that

the view expressed therein was the contemporary social

standards in the year 1985. The Court further observed that

while judging a particular photograph, and the article of the

newspaper as obscene in 2014, regard must be had to the

contemporary mores and the national standards and not the

standards of a group of susceptible or sensitive persons. The

Court referred to the pronouncement in Hicklin (supra) the

majority view in Brody v. R

63

, and the pronouncement in R. v.

Butler

64

and opined thus:-

“23. We are also of the view that Hicklin test

65

is

not the correct test to be applied to determine

“what is obscenity”. Section 292 of the Penal Code,

63

1962 SCR 681 (Can SC)

64

(1992) 1 SCR 452 (Can SC)

65

(1868) LR 3 QB 360

Page 101 101

of course, uses the expression “lascivious and

prurient interests” or its effect. Later, it has also

been indicated in the said section of the

applicability of the effect and the necessity of

taking the items as a whole and on that

foundation where such items would tend to

deprave and corrupt persons who are likely,

having regard to all the relevant circumstances, to

read, see or hear the matter contained or

embodied in it. We have, therefore, to apply the

“community standard test” rather than the

“Hicklin test” to determine what is “obscenity”. A

bare reading of sub-section (1) of Section 292,

makes clear that a picture or article shall be

deemed to be obscene

(i)if it is lascivious;

(ii) it appeals to the prurient interest; and

(iii)it tends to deprave and corrupt persons who are

likely to read, see or hear the matter, alleged

to be obscene.

Once the matter is found to be obscene, the

question may arise as to whether the impugned

matter falls within any of the exceptions contained

in the section. A picture of a nude/semi-nude

woman, as such, cannot per se be called obscene

unless it has the tendency to arouse the feeling of

or revealing an overt sexual desire. The picture

should be suggestive of deprave mind and

designed to excite sexual passion in persons who

are likely to see it, which will depend on the

particular posture and the background in which

the nude/semi-nude woman is depicted. Only

those sex-related materials which have a tendency

of “exciting lustful thoughts” can be held to be

obscene, but the obscenity has to be judged from

the point of view of an average person, by applying

Page 102 102

contemporary community standards.”

The Court also referred to Bobby Art International

(supra), Ajay Goswami (supra) and held that applying the

community tolerance test, the photograph was not suggestive

of deprave minds and designed to excite sexual passion in

persons who are likely to look at them and see them. The

Court further proceeded to state that the photograph has no

tendency to deprave or corrupt the minds of the people because

the said picture has to be viewed in the background in which it

was shown and the message it has to convey to the public and

the world at large. The Court observed that Boris Becker

himself in the article published in the German magazine, spoke

of the racial discrimination prevalent in Germany and the

article highlighted Boris Becker’s protest against racism in

Germany. Proceeding further, the Court ruled that:-

“The message, the photograph wants to convey is

that the colour of skin matters little and love

champions over colour. The picture promotes love

affair, leading to a marriage, between a

white-skinned man and a black-skinned woman.

We should, therefore, appreciate the photograph

and the article in the light of the message it wants

to convey, that is to eradicate the evil of racism

and apartheid in the society and to promote love

and marriage between white-skinned man and a

Page 103 103

black-skinned woman. When viewed in that angle,

we are not prepared to say that the picture or the

article which was reproduced by Sports World and

the Anandabazar Patrika be said to be

objectionable so as to initiate proceedings under

Section 292 IPC or under Section 4 of the Indecent

Representation of Women (Prohibition) Act, 1986.”

Thus, the aforesaid decision applies the “contemporary

community standards test” and rules that the factum of

obscenity has to be judged from the point of view of an average

person.

59.Very recently, in Shreya Singhal v. Union of India

66

, a

two-Judge Bench of this Court, while dealing with the concept

of obscenity, has held that:-

“45.This Court in Ranjit Udeshi (supra) took a

rather restrictive view of what would pass muster

as not being obscene. The Court followed the test

laid down in the old English judgment in

Hicklin’s case which was whether the tendency of

the matter charged as obscene is to deprave and

corrupt those whose minds are open to such

immoral influences and into who hands a

publication of this sort may fall. Great strides

have been made since this decision in UK, United

States, as well as in our country. Thus, in

Director General of Doordarshan v. Anand

Patwardhan

67

, this Court notice the law in the

United States and said that a material may be

regarded as obscene if the average person

applying contemporary community standards

66

2015 (4) SCALE 1

67

(2006) 8 SCC 433

Page 104 104

would find that the subject matter taken as a

whole appeals to the prurient interest and that

taken as a whole it otherwise lacks serious

literary artistic, political, educational or scientific

value (see para 31).

46.In a recent judgment of this Court, Aveek

Sarkar (supra), this Court referred to English,

U.S. and Candadian judgments and moved away

from the Hicklin test and applied the

contemporary community standard test.”

From the development of law in this country, it is clear as

day that the prevalent test in praesenti is the contemporary

community standards test.

60.We have referred to the concept of obscenity as has been

put forth by the learned senior counsel for the appellant, the

prevalent test in United Kingdom, United States of America and

the test formulated by the European Courts. We have

extensively dealt with the test adopted in this country. On the

studied scrutiny and analysis of the judgments, there can be

no shadow of doubt that this Court has laid down various

guidelines from time to time and accepted the contemporary

community standards test as the parameter and also observed

that the contemporary community standards test would vary

from time to time, for the perception, views, ideas and ideals

Page 105 105

can never remain static. They have to move with time and

development of culture. Be it noted, it has become more liberal

with the passage of time. Though Mr. Gopal Subramanium,

learned senior counsel has emphasised on the comparables

test and in that context, has referred to the judgment passed

by the Kolkata High Court in Kavita Phumbhra (supra), we

notice, as far as the authorities of this Court are concerned,

the Court has emphatically laid down that the test as

contemporary community standards test, and it would, of

course, depend upon the cultural, attitudinal and civilisational

change. There has also been stress on the modernity of

approach and, the artistic freedom, the progression of global

ideas and the synchronisation of the same into the thinking of

the writers of the age. In Samresh Bose (supra), in 1985, the

Court analysed the theme of the novel and dwelt upon the

description in the various parts of the book and found that

there was no obscenity. In 2014, in Aveek Sarkar (supra), the

Court has observed that was the contemporary community

standards test in 1985 and there has been a change with the

passage of time. We respectfully concur with the said view and

Page 106 106

hold that contemporary community standards test is the main

criterion and it has to be appreciated on the foundation of

modern perception, regard being had to the criterion that

develops the literature. There can neither be stagnation of

ideas nor there can be staticity of ideals. The innovative minds

can conceive of many a thing and project them in different

ways. As far as comparables test is concerned, the Court may

sometimes have referred to various books on literature of the

foreign authors and expressed the view that certain writings

are not obscene, but that is not the applicable test. It may at

best reflect what the community accepts.

Right to Freedom of Speech and Expression under the

Constitution

61.Having stated about the test that is applicable to

determine obscenity we are required to dwell upon the right to

freedom of speech and expression. The words, freedom of

speech and expression find place in the association words

“liberty of thought, expression, belief, faith and worship”, which

form a part of the Preamble of the Constitution. Preamble has

its own sanctity and the said concepts have been enshrined in

Page 107 107

the Preamble.

62.First, we shall deal with the approach of this Court

pertaining to freedom of speech and expression. Article 19(1) (a)

and 19(2) of the Constitution are reproduced below:

“19. Protection of certain rights regarding

freedom of speech etc. – (1) All citizens shall

have the right -

(a)to freedom of speech and expression;

...

(2)Nothing in sub clause (a) to clause (1) shall

affect the operation of any existing law, or prevent

the State from making any law, insofar as such

law imposes reasonable restrictions on the

exercise of the right conferred by the said sub

clause in the interests of the sovereignty and

integrity of India, the security of the State,

friendly relations with foreign States, public

order, decency or morality or in relation to

contempt of court, defamation or incitement to an

offence.”

63.Learned senior counsel for the appellant has drawn

inspiration from the Constituent Assembly Debates especially

the amendment that was introduced by Prof. K.T. Shah. He

has reproduced the following excerpts from the Constituent

Assembly Debates:-

“......my purpose in bringing forward this amend-

ment is to point out that, if all the freedoms enu-

Page 108 108

merated in this article are to be in accordance

with only the provisions of this article, or are to

be guaranteed subject to the provisions of this ar-

ticle only, then they would amount more to a

negation of freedom than the promise or assur-

ance of freedom, because in everyone of these

clauses the exceptions are much more empha -

sised than the positive provision. In fact, what is

given by one right hand seems to be taken away

by three or four or five left hands; and therefore

the article is rendered negatory in any opinion.

I am sure that was not the intention or meaning

of the draftsmen who put in the other articles

also. I suggest therefore that instead of making it

subject to the provisions of this article, we should

make it subject to the provisions of this Constitu-

tion. That is to say, in this Constitution this arti-

cle will remain. Therefore if you want to insist

upon these exceptions, the exceptions will also

remain. But the spirit of the Constitution, the

ideal under which this Constitution is based, will

also come in, which I humbly submit, would not

be the case, if you emphasise only this article. If

you say merely subject to the provisions of this

article, then you very clearly emphasise and

make it necessary to read only this article by it-

self, which is more restrictive than necessary.

.........The freedoms are curtly enumerated in 5, 6

or 7 items in one sub-clause of the article. The

exceptions are all separately mentioned in sepa-

rate sub-clauses. And their scope is so widened

that I do not know what cannot be included as

exception to these freedoms rather than the rule.

In fact, the freedoms guaranteed or assured by

Page 109 109

this article become so elusive that are would find

it necessary to have a microscope to discover

where these freedoms are, whenever it suits the

State or the authorities running it to deny them. I

would, therefore, repeat that you should bring in

the provisions of the whole Constitution, includ-

ing its preamble, and including all other articles

and chapters where the spirit of the Constitution

should be more easily and fully gathered than

merely in this article, which, in my judgment,

runs counter to the spirit of the Constitution....

I also suggest that it would not be enough to enu-

merate these freedoms, and say the citizen shall

have them. I would like to add the words also

that by this Constitution these freedoms are

guaranteed. That is to say, any exception which

is made, unless justified by the spirit of the Con-

stitution, the Constitution as a whole and every

part of it included, would be a violation of the

freedoms guaranteed hereby.

(December 1, 1948)”

64.It is true that Article 19(1)(a) has to be interpreted in a

manner by which the fundamental right to “freedom of speech

and expression” is nourished. Elaborating the concept, it is

urged by Mr. Subramanium that when two interpretations of

Article 19(1)(a), one a traditional or restrictive approach and

the other a modern/liberal approach are possible, the latter

should be adopted, for by adopting the said approach, the

Page 110 110

fundamental right to freedom of speech and expression is

guarded and any attempt to overreach the same is kept in

check.

65.Now, we shall refer to the Preamble as it uses the words

“liberty of thought and expression” In Kesavanada Bharti v.

State of Kerala and Others

68

, emphasis has been laid on the

preamble of the Constitution and its objectives. Sikri, C.J. in

Kesavanada Bharti (supra) observed thus:-

“15. I need hardly observe that I am not

interpreting an ordinary statute, but a

Constitution which apart from setting up a

machinery for Government, has a noble and

grand vision. The vision was put in words in the

preamble and carried out in part by conferring

fundamental rights on the people. The vision was

directed to be further carried out by the

application of directive principles.”

66.Shelat and Grover JJs in their judgment in the said case

ruled:-

“506. The Constitution-makers gave to the Pre-

amble the pride of place. It embodied in a solemn

form all the ideals and aspirations for which the

country had struggled during the British regime

and a Constitution was sought to be enacted in

accordance with the genius of the Indian people.

It certainly represented an amalgam of schemes

and ideas adopted from the Constitutions of

other countries. But the constant strain which

68

(1973) 4 SCC 225

Page 111 111

runs throughout each and every article of the

Constitution is reflected in the Preamble which

could and can be made sacrosanct. It is not with-

out significance that the Preamble was passed

only after draft articles of the Constitution had

been adopted with such modifications as were

approved by the Constituent Assembly. The Pre-

amble was, therefore, meant to embody in a very

few and well-defined words the key to the under-

standing of the Constitution.

513. The history of the drafting and the ultimate

adoption of the Preamble shows—

(1)that it did not “walk before the Constitution”

as is said about the Preamble to the United

States Constitution;

(2)that it was adopted last as a part of the

Constitution;

(3)that the principles embodied in it were

taken mainly from the Objectives Resolution;

(4)the Drafting Committee felt, it should incor-

porate in it “the essential features of the new

State”;

(5)that it embodied the fundamental concept of

sovereignty being in the people.”

67.Interpreting Article 19(1)(a) of the Constitution, the test is

always to see the said Article in aid of the Preambular

objectives which form a part of the basic structure of the

Constitution. Article 19(1)(a) is intrinsically linked with the

Page 112 112

Preambular objectives and it is the duty of the Court to

progressively realise the values of the Constitution. In

Maneka Gandhi v. Union of India

69

, it has been held:-

“5........It is indeed difficult to see on what

principle we can refuse to give its plain natural

meaning to the expression “personal liberty” as

used in Article 21 and read it in a narrow and

restricted sense so as to exclude those attributes

of personal liberty which are specifically dealt

with in Article 19. We do not think that this

would be a correct way of interpreting the

provisions of the Constitution conferring

fundamental rights. The attempt of the Court

should be to expand the reach and ambit of the

fundamental rights rather than attenuate their

meaning and content by a process of judicial

construction. The wavelength for comprehending

the scope and ambit of the fundamental rights

has been set by this Court in R.C. Cooper case

70

and our approach in the interpretation of the

fundamental rights must now be in tune with

this wavelength. We may point out even at the

cost of repetition that this Court has said in so

many terms in R.C. Cooper case that each

freedom has different dimensions and there may

be overlapping between different fundamental

rights and therefore it is not a valid argument to

say that the expression “personal liberty” in

Article 21 must be so interpreted as to avoid

overlapping between that article and Article 19(1).

The expression “personal liberty” in Article 21 is

of the widest amplitude and it covers a variety of

rights which go to constitute the personal liberty

of man and some of them have....”

69

(1978) 1 SCC 248

70

(1970) 2 SCC 298

Page 113 113

Krishna Iyer, J. in his concurring opinion has observed

thus:-

“96. A thorny problem debated recurrently at the

bar, turning on Article 19, demands some juristic

response although avoidance of overlap per -

suades me to drop all other questions canvassed

before us. The Gopalan verdict, with the cocoon-

ing of Article 22 into a self-contained code, has

suffered suppression at the hands of R.C. Cooper

(supra). By way of aside, the fluctuating fortunes

of fundamental rights, when the proletarist and

the proprietarist have asserted them in Court,

partially provoke sociological research and hesi-

tantly project the Cardozo thesis of sub-con -

scious forces in judicial noesis when the cyclo-

ramic review starts from Gopalan, moves on to In

re Kerala Education Bill

71

and then on to All-India

Bank Employees’ Association

72

, next to Sakal Pa-

pers

73

, crowning in Cooper and followed by Ben-

nett Coleman

74

and Shambhu Nath Sarkar

75

. Be

that as it may, the law is now settled, as I appre-

hend it, that no article in Part III is an island but

part of a continent, and the conspectus of the

whole part gives the direction and correction

needed for interpretation of these basic provi-

sions. Man is not dissectible into separate limbs

and, likewise, cardinal rights in an organic con-

stitution, which make man human have a syn -

thesis. The proposition is indubitable that Article

21 does not, in a given situation, exclude Article

19 if both rights are breached.

97. We may switch to Article 19 very briefly and

travel along another street for a while. Is freedom

71

1959 SCR 995

72

1962 3 SCR 269

73

(1962) 3 SCR 842

74

(1973) 2 SCR 757

75

(1973) 1 SCC 856

Page 114 114

of extra-territorial travel to assure which is the

primary office of an Indian passport, a facet of the

freedom of speech and expression, of profession

or vocation under Article 19? My total consensus

with Shri Justice Bhagwati jettisons from this

judgment the profusion of precedents and the

mosaic of many points and confines me to some

fundamentals confusion on which, with all the

clarity on details, may mar the conclusion. It is a

salutary thought that the summit Court should

not interpret constitutional rights enshrined in

Part III to choke its life-breath or chill its elan vi-

tal by processes of legalism, overruling the endur-

ing values burning in the bosoms of those who

won our independence and drew up our founding

document. We must also remember that when

this Court lays down the law, not ad hoc tunes

but essential notes, not temporary tumult but

transcendental truth, must guide the judicial

process in translating into authoritative notation

and mood music of the Constitution.”

Beg, J. has stated that:-

“202. Articles dealing with different fundamental

rights contained in Part III of the Constitution do

not represent entirely separate streams of rights

which do not mingle at many points. They are all

parts of an integrated scheme in the Constitution

Their waters must mix to constitute that grand

flow of unimpeded and impartial Justice (social,

economic and political), Freedom (not Only of

thought, expression, belief, faith and worship,

but also of association, movement, vocation or

occupation as well as of acquisition and

possession of reasonable property), of Equality (

of status and of opportunity, which imply

absence of unreasonable or unfair discrimination

between individuals, groups, and classes) and of

Fraternity (assuring dignity of the individual and

Page 115 115

the unity of the nation), which our Constitution

visualizes. Isolation of various aspects of human

freedom, for purposes of their protection, is

neither realistic nor beneficial but would defeat

the very objects of such protection.”

68.In Maneka Gandhi (supra), while interpreting Article

19(1)(a), it has been ruled that what the said Article does is to

declare freedom of speech and expression as a fundamental

right and to protect it against State action. The State cannot

bind any legislative or executive action interfere with the

exercise of the said right, except insofar as permissible under

Article 19(2).

69.In Gajanan Visheshwar Birjur v. Union of India

76

, this

Court was dealing with the order of confiscation of books

containing the Marxist literature. The Court referring to the

supremacy of the fundamental right to freedom of speech and

expression, observed that the Constitution of India permits a

free trade in ideas and ideologies and guarantees freedom of

thought and expression, the only limitation being a law in

terms of Clause (2) of Article 19 of the Constitution. The Court

further observed that thought control is alien to our

constitutional scheme and referred to the observations of

76

(1994) 5 SCC 550

Page 116 116

Robert Jackson, J. in American Communications

Association v. Douds

77

with reference to the US Constitution

wherein it was stated that thought control is a copyright of

totalitarianism, and it was unacceptable. The Court finally

stated that it is not the function of our Government to keep the

citizen from falling into error; it is the function of the citizen to

keep the Government from falling into error.

70.More important and relevantly lucid are observations in

Sahara India Real Estate Corpn. Ltd. v. SEBI

78

, where while

dealing with the freedom of speech, the Constitution Bench

held:-

“Freedom of expression is one of the most cher-

ished values of a free democratic society. It is in-

dispensable to the operation of a democratic soci-

ety whose basic postulate is that the Government

shall be based on the consent of the governed.

But, such a consent implies not only that the

consent shall be free but also that it shall be

grounded on adequate information, discussion

and aided by the widest possible dissemination of

information and opinions from diverse and antag-

onistic sources. Freedom of expression which in-

cludes freedom of the press has a capacious con-

tent and is not restricted to expression of

thoughts and ideas which are accepted and ac -

ceptable but also to those which offend or shock

any section of the population. It also includes the

77

339 US 382

78

(2012) 10 SCC 603

Page 117 117

right to receive information and ideas of all kinds

from different sources. In essence, the freedom of

expression embodies the right to know. However,

under our Constitution no right in Part III is ab-

solute. Freedom of expression is not an absolute

value under our Constitution. It must not be for-

gotten that no single value, no matter exalted,

can bear the full burden of upholding a demo -

cratic system of government. Underlying our con-

stitutional system are a number of important val-

ues, all of which help to guarantee our liberties,

but in ways which sometimes conflict. Under our

Constitution, probably, no values are absolute.

All important values, therefore, must be qualified

and balanced against other important, and often

competing, values. This process of definition,

qualification and balancing is as much required

with respect to the value of freedom of expression

as it is for other values.”

71.In State of Karnataka v. Associated Management of

English Medium Primary & Secondary Schools

79

, while

dealing with the freedom under Article 19(1)(a), the Constitu-

tion Bench opined:-

“36. The word “freedom” in Article 19 of the Consti-

tution means absence of control by the State and

Article 19(1) provides that the State will not impose

controls on the citizen in the matters mentioned in

sub-clauses (a), (b), (c), (d), (e) and (g) of Article

19(1) except those specified in clauses (2) to (6) of

Article 19 of the Constitution. In all matters speci-

fied in clause (1) of Article 19, the citizen has there-

fore the liberty to choose, subject only to restric-

tions in clauses (2) to (6) of Article 19. One of the

reasons for giving this liberty to the citizens is con-

79

(2014) 9 SCC 485

Page 118 118

tained in the famous essay “On Liberty” by John

Stuart Mill. He writes:

“… Secondly, the principle requires liberty of

tastes and pursuits; of framing the plan of our

life to suit our own character; of doing as we like,

subject to such consequences as may follow:

without impediment from our fellow creatures, so

long as what we do does not harm them, even

though they should think our conduct foolish,

perverse, or wrong.”

According to Mill, therefore, each individual must in

certain matters be left alone to frame the plan of his

life to suit his own character and to do as he likes

without any impediment and even if he decides to

act foolishly in such matters, society or on its behalf

the State should not interfere with the choice of the

individual. Harold J. Laski, who was not prepared to

accept Mill’s attempts to define the limits of State

interference, was also of the opinion that in some

matters the individual must have the freedom of

choice. To quote a passage from A Grammar of Poli-

tics by Harold J. Laski:

“… My freedoms are avenues of choice through

which I may, as I deem fit, construct for myself

my own course of conduct. And the freedoms I

must possess to enjoy a general liberty are those

which, in their sum, will constitute the path

through which my best self is capable of attain-

ment. That is not to say it will be attained. It is to

say only that I alone can make that best self, and

that without those freedoms I have not the means

of manufacture at my disposal.”

37. Freedom or choice in the matter of speech and

expression is absolutely necessary for an individual

to develop his personality in his own way and this is

Page 119 119

one reason, if not the only reason, why under Article

19(1)(a) of the Constitution every citizen has been

guaranteed the right to freedom of speech and ex-

pression.

38. This Court has from time to time expanded the

scope of the right to freedom of speech and

expression guaranteed under Article 19(1)(a) of the

Constitution by consistently adopting a very liberal

interpretation. In Romesh Thappar v. State of

Madras

80

, this Court held that freedom of speech

and expression includes freedom of propagation of

ideas which is ensured by freedom of circulation

and in Sakal Papers (P) Ltd. v. Union of India

81

, this

Court held that freedom of speech and expression

carries with it the right to publish and circulate

one’s ideas, opinions and views. In Bennett Coleman

& Co. v. Union of India

82

, this Court also held that

the freedom of press means right of citizens to

speak, publish and express their views as well as

right of people to read and in Odyssey

Communications (P) Ltd. v. Lokvidayan

Sanghatana

83

, this Court has further held that

freedom of speech and expression includes the right

of citizens to exhibit films on Doordarshan.”

72.Presently, we shall refer to the decision in Shreya

Singhal (supra). Mr. Gopal Subramanium, while giving

immense emphasis on the said authority, has submitted that

while striking down Section 66A of the IT Act, 2000 as

unconstitutional, the Court has really elevated the concept of

freedom of speech and expression to a great height. We have

80

AIR 1950 SC 124

81

AIR 1962 SC 305

82

(1972 2 SCC 788

83

(1988) 3 SCC 410

Page 120 120

already referred to certain passages of the said decision in the

context of test for obscenity. Mr. Nariman, learned senior

counsel would submit that the said decision has to be read in

its context and as it relates to the field of internet and in the

present case, we are concerned with the obscenity test, as

understood by this Court in the context of Section 292 IPC. In

the said case, the two-Judge Bench, while dealing with the

content of freedom of expression, opined that:-

“There are three concepts which are fundamental in

understanding the reach of this most basic of

human rights. The first is discussion, the second is

advocacy, and the third is incitement. Mere

discussion or even advocacy of a particular cause

howsoever unpopular is at the heart of Article 19(1)

(a). It is only when such discussion or advocacy

reaches the level of incitement that Article 19(1)(a).

It is only when such discussion or advocacy reaches

the level of incitement that Article 19(2) kicks in. It

is at this stage that a law may be made curtailing

the speech or expression that leads inexorably to or

tends to cause public disorder or tends to cause or

tends to affect the sovereignty & integrity or India,

the security of the State, friendly relations with

foreign States, etc. Why it is important to have

these three concepts in mind is because most of the

arguments of both petitioners and respondents

tended to veer around the expression “public order.”

And again:-

“47. What has been said with regard to public order

and incitement to an offence equally applies here.

Page 121 121

Section 66A cannot possibly be said to create an

offence which falls within the expression 'decency'

or 'morality' in that what may be grossly offensive or

annoying under the Section need not be obscene at

all - in fact the word 'obscene' is conspicuous by its

absence in Section 66A.”

We have referred to the said passages only to understand

that the two-Judge Bench has succinctly put what freedom of

speech and expression mean. The Court has referred to

certain judgments which we have already referred in that

context. The Court was really not dealing with the obscenity

test within the ambit and sweep of Section 292 IPC. The Court

has opined that Section 66A of the IT Act, 2000 violates Article

19(1)(a) of the Constitution. There can be no doubt that there

has been elevation of the concept in a different way, but it

cannot form the foundation or base to sustain the argument of

Mr. Subramanium that the freedom has to be given absolute

and uncurtailed expanse without any boundaries of exceptions.

We accept the proposition that there should not be narrow or

condensed interpretation of freedom of speech and expression,

but that does not mean that there cannot be any limit.

Constriction is permissible under Article 19(2) of the

Constitution and in Ranjit D. Udeshi (supra), the Constitution

Page 122 122

Bench has upheld the constitutional validity of Section 292

IPC.

Mahatma Gandhi as perceived by this Court and certain

authors

73.To appreciate the prevalent test in this country as regards

obscenity and the conceptual definition of poetry and what is

really understood by poetic license, we have to reflect on the

question that had been framed by this Court. We have used

the expression ‘historically respected personalities’. It is true

that the Constitution does not recognize any personality

whether historically or otherwise as far as Article 19(1)(a) is

concerned. But it would be incorrect to submit that if the

concept of personality test is applied, a new ingredient to

Section 292 IPC would be added which is in the realm of

legislature and this Court should refrain from doing the same.

At this juncture, it is seemly to state that Section 292 IPC uses

the term ‘obscene’. While dealing with the facet of obscenity,

this Court has evolved the test. The test evolved by this Court,

which holds the field today is the ‘contemporary community

standards test’. That does not really create an offence or add

Page 123 123

an ingredient to the offence as conceived by the legislature

under Section 292 IPC. It is a test thought of by this Court to

judge obscenity. The said test has been evolved by conceptual

hermeneutics. We appreciate the anxiety of Mr. Subramanium,

learned senior counsel appearing for the appellant, and we are

also absolutely conscious that this Court cannot create an

offence which is not there nor can it add an ingredient to it.

74.Keeping this in view, we shall now proceed to deal with

the ‘historically respected persons’. Though the question uses

the words ‘historically respected persons’, contextually, in this

case it would mean Mahatma Gandhi, the Father of the Nation.

Though some may think it is patently manifest or known that

Mahatma Gandhi is the Father of the Nation and the most

respected historical personality in this country, yet we are

obliged to reflect on Mahatma Gandhi to know how this Court

has spoken about Mahatma Gandhi and how others have

perceived the life of ‘Mahatma Gandhi’ and ‘Gandhian thought’.

Mr. Subramanium, learned senior counsel, in the course of

hearing has referred to certain passages from the text books

which are critical of Mahatma Gandhi, his life and his

Page 124 124

thoughts. We shall refer to the books at a subsequent stage.

75.As mentioned earlier, we think at this stage we should

refer to certain decisions of this Court where Mahatma Gandhi

or Gandhian thought have been reflected.

76. In Kesavananda Bharati (supra), S.N. Dwivedi, J, has

stated that the Constitution bears the imprint of the

philosophy of our National Movement for Swaraj. The Court

also stated that Mahatma Gandhi gave to the Movement the

philosophy of “Ahimsa”. Two essential elements of his Ahimsa

are: (1) equality; and (2) absence of the desire of

self-acquisition (Aparigrah) and he declared that "to live above

the means befitting a poor country is to live on stolen food."

And he further observed that:-

“The philosophy of Mahatma Gandhi was rooted

in our ancient tradition; the philosophy of

Jawaharlal Nehru was influenced by modern

progressive thinking. But the common

denominator in their philosophies was

humanism. The humanism of the Western

Enlightenment comprehended mere political

equality; the humanism of Mahatma Gandhi and

Jawaharlal Nehru was instinct with social and

economic equality. The former made man a

political citizen; the latter aims to make him a

'perfect' citizen. This new humanist philosophy

became the catalyst of the National Movement for

Swaraj.”

Page 125 125

77.In K. Karunakaran v. T.V. Eachara Warrier,

84

this

Court observed that lies are resorted to by the high and the low

being faced with inconvenient situations which require a

Mahatma Gandhi to own up Himalayan blunders and unfold

unpleasant truths truthfully.

78.In Maneka Gandhi (supra), this Court observed thus:-

“22. …These rights represent the basic values of

a civilised society and the constitution-makers

declared that they shall be given a place of pride

in the Constitution and elevated to the status of

fundamental rights. The long years of the freedom

struggle inspired by the dynamic spiritualism of

Mahatma Gandhi and in fact the entire cultural

and spiritual history of India formed the

background against which these rights were

enacted and consequently, these rights were

conceived by the constitution-makers not in a

narrow limited sense but in their widest sweep,

for the aim and objective was to build a new

social order where man will not be a mere

plaything in the hands of the State or a few

privileged persons but there will be full scope and

opportunity for him to achieve the maximum

development of his personality and the dignity of

the individual will be fully assured.”

79.In Bangalore Water Supply & Sewerage Board v. A.

Rajappa

85

, this Court observed:-

“There is no degrading touch about “industry”,

84

(1978) 1 SCC 18

85

(1978) 2 SCC 213

Page 126 126

especially in the light of Mahatma Gandhi’s

dictum that ‘Work is Worship”. Indeed the

colonial system of education, which divorced

book learning from manual work and practical

training, has been responsible for the calamities

in that field. For that very reason, Gandhiji and

Dr Zakir Hussain propagated basic education

which used work as modus operandus for

teaching. We have hardly any hesitation in

regarding education as an industry.”

80.In Minerva Mills Ltd. v. Union of India

86

, the Court

noted thus:-

“53..... The emergence of Mahatma Gandhi on

the political scene gave to the freedom movement

a new dimension: it ceased to be merely

anti-British; it became a movement for the

acquisition of rights of liberty for the Indian

Community.

103....... Mahatma Gandhi, the father of the

nation, said in his inimitable style in words, full

of poignancy:

“Economic equality is the master key to

non-violent independence. A non-violent

system of government is an impossibility so

long as the wide gulf between the rich and

the hungry millions persists. The contrast

between the palaces of New Delhi and the

miserable hovels of the poor labouring class

cannot last one day in a free India in which

the poor will enjoy the same power as the

rich in the land. A violent and bloody

revolution is a certainty one day, unless

there is voluntary abdication of riches and

the power that riches give and sharing them

86

(1980) 3 SCC 625

Page 127 127

for common good.”

81.In Akhil Bharatiya Soshit Karamchari Sangh

(Railway) v. Union of India

87

, there is an observation which

reads thus:-

“13. …There was the Everest presence of

Mahatma Gandhi, the Father of the Nation, who

staked his life for the harijan cause. There was

Baba Saheb Ambedkar — a mahar by birth and

fighter to his last breath against the himalayan

injustice to the harijan fellow millions stigmatised

by their genetic handicap — who was the

Chairman of the drafting committee of the

Constituent Assembly.”

82.In People’s Union for Democratic Rights v. Union of

India

88

, it has been stated:-

“Mahatma Gandhi once said to Gurudev Tagore,

“I have had the pain of watching birds, who for

want of strength could not be coaxed even into a

flutter of their wings. The human bird under the

Indian sky gets up weaker than when he

pretended to retire. For millions it is an eternal

vigil or an eternal trance.”

83.In Bachan Singh v. State of Punjab

89

, the Court noted:-

“22. …Mahatma Gandhi also wrote to the same

effect in his simple but inimitable style:

“Destruction of individuals can never be a

87

(1981) 1 SCC 246

88

(1982) 3 SCC 235

89

(1982) 3 SCC 24

Page 128 128

virtuous act. The evil-doers cannot be done

to death. Today there is a movement afoot

for the abolition of capital punishment and

attempts are being made to convert prisons

into hospitals as if they are persons

suffering from a disease.””

84.In Kailash Sonkar v. Maya Devi

90

, (1984) 2 SCC 91,

the observation is:-

“4. As Mahatma Gandhi, father of the nation,

said “India lives in villages” and so do the

backward classes, hence the primary task was to

take constructive steps in order to boost up these

classes by giving them adequate concessions,

opportunities, facilities and representation in the

services and, last but not the least, in the

electorate so that their voices and views,

grievances and needs in the Parliament and State

legislatures in the country may be heard, felt and

fulfilled.”

85.In Pradeep Jain v. Union of India

91

, emphasising on

formation of one nation, the Court observed:-

“This concept of one nation took firm roots in the

minds and hearts of the people during the

struggle for independence under the leadership of

Mahatma Gandhi. He has rightly been called the

Father of the Nation because it was he who

awakened in the people of this country a sense of

national consciousness and instilled in them a

high sense of patriotism without which it is not

possible to build a country into nationhood.”

90

(1984) 2 SCC 91

91

(1984) 3 SCC 654

Page 129 129

86.In Indra Sawhney v. Union of India

92

and ors. the Court

observed that it is Mahatma Gandhi, who infused secular spirit

amongst the people of India.

87.In S.R. Bommai and others v. Union of India and

others

93

speaking on statesmanship, the larger Bench noted:-

“24. Mahatma Gandhi and other leaders of

modern times advocated to maintain national

unity and integrity. It was with the weapons of

secularism and non-violence that Mahatma

Gandhi fought the battle for independence

against the mightly colonial rulers. As early as

1908, Gandhiji wrote in Hind Swaraj:

India cannot cease to be one nation,

because people belonging to different

religions live in it....In no part of the world

are on nationality and on religion

synonymous terms; nor has it ever been so

in India.”

88.In T.N. Godavarman Thirumulpad v. Union of India

94

,

while making a reference to fundamental duties, the Court

found that:-

“35. The Father of the Nation Mahatma Gandhi

has also taught us the same principle and all

those concepts find their place in Article 51-A(g)

as well.”

89.In Dalip Singh Vs. State of U.P. and Ors.

95

, while

92

(1992) Supp. 3 SCC 217

93

(1994) 3 SCC 1

94

(2012) 4 SCC 362

95

(2010) 2 SCC 114

Page 130 130

discussing on values of life, the Court opined that Mahavir,

Gautam Buddha and Mahatma Gandhi guided the people to

ingrain these values in their daily life. Truth constituted an

integral Dart of justice delivery system which was in vogue in

pre-independence era and the people used to feel proud to tell

truth in the courts irrespective of the consequences.

90.Apart from these authorities, there are so many other

decisions where the name of Mahatma Gandhi has been

referred to with reverence and elaborating on various facets of

life of Gandhi and Gandhian thought. There are also certain

eminent persons who have referred to Mahatma Gandhi in

their speech and articles. Justice H.R. Khanna, in one of his

lectures has spoken:-

“We, in India, were fortunate to have been led

during the struggle for Independence by one,

who, apart from being an astute political leader,

was also a great moral crusader who has his

place in history along with the Buddha and

Christ. Fro him, means were no less important

than the ends. There was in the personality of

the Mahatma a subtle, indescribable, magic

touch, for all the different persons who came in

close contact with him were turned into men of

gold, be it Nehru or Patel, Azad or Rajendra

Prasad, Rajaji or J.P. Narayan. Since the death

of Mahatma, except for observing his birthday as

a national holiday, we have remembered him in

Page 131 131

no better way than by riding roughshod over the

principles of truth and moral values that he

propagated all his life.”

91.Having referred to the decisions of this Court and also a

part of lecture, we think it condign to refer to certain books on

Mahatma Gandhi. Mr. Subramanium, learned senior counsel

also referred to certain books indicating that there are many

critical passages about Mahatma Gandhi. The books referred

to by him are “Great Soul: Mahatma Gandhi and his struggle

India”

96

and “Sex and Power”

97

. In this regard we may also

refer to Mahatma Gandhi The Early Phase Vol.I

98

, Gandhian

Constitution for Free India

99

, Gandhi’s Philosophy of Law

100

,

Mahatma Gandhi

101

, The Myth of the Mahatma

102

, Gandhi Before

India

103

, In Search of Gandhi

104

, Gandhi’s View of Legal

Justice

105

, Gandhi, Soldier of Non-Violence: An Introduction

106

,

Trial of Mr. Gandhi

107

, Gandhi and Civil Disobedience

96

Lelyveld Joseph, Great Soul: Mahatma Gandhi and his struggle with India, Harpr Collins, 2011; page

97

Banerjee Rita, Sex and Power: Defining History, Shaping Societies, Penguin, 2008; page 274

98

Pyarelal, Navajivan Publishing House, 1965

99

Shriman Narayan Agarwal, Kitabistan, 1946

100

V.S. Hegde, Concept Publishing Company, 1983

101

Sankar Ghose, Allied Publishers Limited, 1991

102

MMichael Edwardes, UBS Publishers’ distributors Ltd., 1986

103

Ramachandra Guha, Penguin Books, 2013

104

Richard Attenborough, B.I. Publications, 1982

105

Ajit Atri, Deep & Deep Publications Pvt. Ltd., 2007

106

Calvin Kytle, Seven Locks Press, 1983

107

Francis Watson, Macmillan and Co., 1969

Page 132 132

Movement

108

, Tilak, Gandhi and Gita

109

, Studies in Modern

Indian Political thought: Gandhi an Interpretation

110

, Gandhi and

the Partition of India

111

, Gandhi in London

112

, Mahatma Gandhi

Contribution to Hinduism

113

, Life of Mahatma Gandhi

114

, Moral

and Political Thought of Mahatma Gandhi

115

, Gandhi and Social

Action Today

116

, Gandhi: The Man and the Mahatma

117

, Gandhi

and Ideology of Swadeshi

118

, Gandhi’s Khadi: History of

Contention and Conciliation

119

, Mahatma Gandhi and Jawarhal

Nehru: A Historic Partnership Vol.1 (1916-1931)

120

, Gandhi:

Prisoner of Hope

121

, Mahatma Gandhi and His Apostles

122

,

Gandhi and Status of Women

123

, Philosophy of Gandhi: A Study

of His Basic Ideas

124

, Gandhi Naked Ambition

125

, Meera and the

Mahatma

126

, and The Men Who Killed Gandhi

127

.

108

S.R. Bakshi, Gitanjali Publishing House, 1985

109

D.K. Gosavi, Bharatiya Vidya Bhavan, 1983

110

O.P. Goyal, Kitab Mahal Pvt. Ltd., 1964

111

Sandhya Chaudhri, Sterling Publishers Pvt. Ltd., 1984

112

James D Hunt, Promilla & Co., 1978

113

K.K. Lal Karna, Classical Publishing Co., 1981

114

Louis Fisher, Granada, 1982

115

Raghavan N. Iyer, Oxford University Press, 1973

116

Mery Kappen (Ed.), Sterling Publishers Pvt. Ltd., 1990

117

Ram Sharma, Rajan, 1985

118

S.R. Bakshi, Reliance Publishing House, 1987

119

Rahul Ramagundam, Orient Longman Pvt. Ltd., 2008

120

Madhu Limaye, B.R. Publishing Corporation, 1989

121

Judith M. Brown, Oxford University Press, 1990

122

Ved Mehta, Indian Book Company, 1977

123

S.R. Bakshi, Criterion Publications, 1987

124

Glyn Richards, Rupa & Co., 1991

125

Jad Adams, Quercus, 2010

126

Sudhir Kakar, Yiking – Penguin, 2004

127

Manohar Malgonkar, Roli Books, 2008

Page 133 133

92.Some of these books praise Gandhi, analyse Gandhian

thoughts, criticise Gandhian philosophy, express their dissent,

disagree with his political quotient and also comment on his

views on “Brahamcharya”. On reading of the said books, one

can safely say they are the views of the authors in their own

way and there is no compulsion to agree with the personality or

his thoughts or philosophy. We are reminded of what Voltaire

said, “I do not agree with what you have to say, but I’ll defend

to the death your right to say it” or for that matter what George

Orwell said, “If liberty means anything at all, it means the right

to tell people what they do not want to hear”.

93.There can be no two opinions that one can express his

views freely about a historically respected personality showing

his disagreement, dissent, criticism, non-acceptance or critical

evaluation.

94.If the image of Mahatma Gandhi or the voice of Mahatma

Gandhi is used to communicate the feelings of Gandhiji or his

anguish or his agony about any situation, there can be no

difficulty. The issue in the instant case, whether in the name

of artistic freedom or critical thinking or generating the idea of

Page 134 134

creativity, a poet or a writer can put into the said voice or

image such language, which may be obscene. We have already

discussed at length about the concept of ‘poetic license’ and

‘artistic freedom’. There can be “art for art’s sake” which would

include a poem for the sake of thought or expression or free

speech and many a concept.

Concept of poetry

95.We do not intend to say that a poem should conform to

the definition or description as many authors have thought of.

According to Dr. Samuel Johnson, “Poetry is ‘metrical

composition’; it is ‘the art of uniting pleasure with truth by

calling imagination to the help of reason’; and its ‘essence’ is

‘invention’.”

96.Mill’s point of view “poetry is, but the thought and words

in which emotion spontaneously embodies itself.” Macaulay

understands poetry as “we mean the art of employing words in

such a manner as to produce an illusion on the imagination,

the art of doing by means of words what the painter does by

means of colours”.

128

128

Essay on Milton

Page 135 135

97.Carlyle assumed that poetry is “we will call Musical

Thought”.

129

Shelley states, “in a general sense may be defined

as the expression of the imagination”.

130

Hazlitt defines poetry

as “it is the language of the imagination and the passions”.

131

98.Leigh Hunt declares poetry as “the utterance of a passion

for truth, beauty, and power, embodying and illustrating its

conceptions by imagination and fancy, and modulating its

language on the principle of variety in unity”.

132

99.S.T. Coleridge’s has expressed that poetry is the

anti-thesis of science, having for its immediate object pleasure,

not truth.

133

German philosopher Hegel has thought that the

use of verse in a given piece of literature serves in itself to lift

the mankind into a world quite different from that of prose or

everyday life. Emerson says that the great poets are judged by

the frame of mind they induce.

134

There is no difficulty in

saying that the definition or understanding of concept of poetry

of any high authority can be ignored. That is the freedom of

the poet.

129

Heroes and Hero-Worship, Lecture iii

130

Defence of Poetry

131

Lectures on the English Poets, i

132

Imagination and Fancy, i.

133

Lectures and Notes on Shakespeare and other English Poets, and Biographia Literaria, chapter xiv.

134

Preface to Parnassus

Page 136 136

The poem in issue

100.Presently, to the poem in question we are referring to the

same solely for the purpose of adjudging whether the order of

framing of charge under Section 292 IPC is sustainable, regard

being had to the law pertaining to charge, and whether the

High Court has correctly applied the principle. The High Court

has categorically opined that there is a prima facie case for

proceeding against the accused under Section 292 IPC. It is

submitted by Mr. Subramanium, learned senior counsel

appearing for the appellant that the poem does not use obscene

words and it does not come within the ambit and sweep of

Section 292 IPC and the poet has expressed himself as he has

a right to express his own thoughts in words. It is his further

submission that the poem actually expresses the prevalent

situation in certain arenas and the agony and anguish

expressed by the poet through Gandhi and thus, the poem is

surrealistic presentation. That apart, contends Mr.

Subramanium, that the poem, as one reads as a whole, would

show the image or the surrealistic voice of Mahatma Gandhi, is

reflectible. Learned senior counsel would submit that apart

Page 137 137

from two to three stanzas, all other stanzas of the poem uses

Gandhi, which may not have anything to do with the name of

Mahatma Gandhi.

101.Mr. Nariman, learned amicus curiae, per contra, would

submit that the poem refers singularly and exclusively to

Mahatma Gandhi in every stanza. The learned friend of the

Court has referred to certain stanzas of the poem. We do not

intend to reproduce them in their original form. But we shall

reproduce them with some self-caution. Some of them are:-

“(i)I met Gandhi on the road

_____ in the name of ______”

xxxx xxxx xxxx

“(ii)I met Gandhi

In Tagore’s Geetanjali,

He was writing a poem

On ________”

xxxx xxxx xxxx

“(iii)When I met Gandhi

On earth which is the property of the

common man

Playing husband-and-wife games with

orphan children,

He said ==

Nidharmi Bharat ka kya pahchan?

_____________”

We have left the spaces blank as we have not thought it

Page 138 138

appropriate to reproduce the words. There are other stanzas

also which have their own reflection. Whether the poem has

any other layer of meaning or not, cannot be gone into at the

time of framing of charge. The author in his own

understanding and through the process of trial can put his

stand and stance before the learned trial Judge.

102.Submission of Mr. Nariman, learned amicus curiae is that

the words that have been used in various stanzas of the poem,

if they are spoken in the voice of an ordinary man or by any

other person, it may not come under the ambit and sweep of

Section 292 IPC, but the moment there is established identity

pertaining to Mahatma Gandhi, the character of the words

change and they assume the position of obscenity. To put it

differently, the poem might not have been obscene otherwise

had the name of Mahatma Gandhi, a highly respected historical

personality of this country, would not have been used. Mr.

Nariman would emphatically submit that the poem distinctly

refers to Mahatma Gandhi because the sketch of Gandhiji is

there figuratively across the entire page in his customary garb,

stature and gait. According to him, the poem does not subserve

Page 139 139

any artistic purpose and is loathsome and vulgar and hence, it

comes within the sweep of Section 292 IPC. The learned

amicus curiae would submit that the use of the name of

Mahatma Gandhi enhances the conceptual perception of

obscenity as is understood by this Court.

103.Mr. Subramanium would submit that the free speech is a

guaranteed human right and it is in fact a transcendental right.

The recognition of freedom of thought and expression cannot be

pigeon-holed by a narrow tailored test. The principle pertaining

to the freedom of speech has to be interpreted on an extremely

broad canvas and under no circumstances, any historical

personality can cause an impediment in the same. It is urged

that the Constitution of India is an impersonalised document

and poetry which encourages fearlessness of expression, cannot

be restricted because of use of name of a personality. Learned

senior counsel has further submitted that freedom to offend is

also a part of freedom of speech. Poetry, which is a great

liberator, submits Mr. Subramanium, can be composed through

a merely voice explaining plurality of thought. He would submit

Page 140 140

the instant poem is one where there is “transference of

consciousness” that exposes the social hypocrisy and it cannot

be perceived with a conditioned mind.

104.The principle that has been put forth by Mr.

Subramanium can be broadly accepted, but we do not intend

to express any opinion that freedom of speech gives liberty to

offend. As far as the use of the name of historically respected

personality is concerned, learned senior counsel, while

submitting so, is making an endeavour to put the freedom of

speech on the pedestal of an absolute concept. Freedom of

speech and expression has to be given a broad canvas, but it

has to have inherent limitations which are permissible within

the constitutional parameters. We have already opined that

freedom of speech and expression as enshrined under Article

19(1)(a) of the Constitution is not absolute in view of Article

19(2) of the Constitution. We reiterate the said right is a right

of great value and transcends and with the passage of time and

growth of culture, it has to pave the path of ascendancy, but it

cannot be put in the compartment of absoluteness. There is

constitutional limitation attached to it. In the context of

Page 141 141

obscenity, the provision enshrined under Section 292 IPC has

its room to play. We have already opined that by bringing in a

historically respected personality to the arena of Section 292

IPC, neither a new offence is created nor an ingredient is

incorporated. The judicially evolved test, that is,

“contemporary community standards test” is a parameter for

adjudging obscenity, and in that context, the words used or

spoken by a historically respected personality as a medium of

communication through a poem or write-up or other form of

artistic work gets signification. That makes the test applicable

in a greater degree. To understand the same, a concrete

example can be given. A playwright conceives a plot where

Mahatma Gandhi, Vishwakavi Rabindra Nath Tagore, Sardar

Vallabh Bhai Patel meet in heaven and they engage themselves

in the discussion of their activities what they had undertaken

when they lived in their human frame. In course of discussion,

their conversation enters into the area of egoism, thereafter

slowly graduates into the sphere of megalomania and

eventually they start abusing each other and in the abuses

they use obscene words. The question would be whether the

Page 142 142

dramatist can contend that he has used them as symbolic

voices to echo the idea of human fallacy and it’s a creation of

his imagination; and creativity has no limitation and, therefore,

there is no obscenity. But, there is a pregnant one, the author

has chosen historically respected persons as the medium to

put into their mouth obscene words and, ergo, the creativity

melts into insignificance and obscenity merges into surface

even if he had chosen a “target domain”. He in his approach

has travelled into the field of perversity and moved away from

the permissible “target domain”, for in the context the

historically respected personality matters.

Conclusion

105.When the name of Mahatma Gandhi is alluded or used as

a symbol, speaking or using obscene words, the concept of

“degree” comes in. To elaborate, the “contemporary community

standards test” becomes applicable with more vigour, in a

greater degree and in an accentuated manner. What can

otherwise pass of the contemporary community standards test

for use of the same language, it would not be so, if the name of

Page 143 143

Mahatma Gandhi is used as a symbol or allusion or

surrealistic voice to put words or to show him doing such acts

which are obscene. While so concluding, we leave it to the poet

to put his defense at the trial explaining the manner he has

used the words and in what context. We only opine that view

of the High Court pertaining to the framing of charge under

Section 292 IPC cannot be flawed.

106.Coming to the case put forth by the appellant-publisher, it

is noticeable that he had published the poem in question,

which had already been recited during the Akhil Bhartiya

Sahithya Sammelan at Amba Jogai in 1980, and was earlier

published on 2.10.1986 by others. The appellant has

published the poem only in 1994. But immediately after

coming to know about the reactions of certain employees, he

tendered unconditional apology in the next issue of the

‘Bulletin’. Once he has tendered the unconditional apology

even before the inception of the proceedings and almost more

than two decades have passed, we are inclined to quash the

charge framed against him as well as the printer. We are

disposed to quash the charge against the printer, as it is

Page 144 144

submitted that he had printed as desired by the publisher.

Hence, they stand discharged. However, we repeat at the cost

of repetition that we have not expressed any opinion as to the

act on the part of the author of the poem, who is co-accused in

the case, and facing trial before the Magistrate in respect of the

offence punishable under Section 292 IPC. It shall be open for

him to raise all the pleas in defence, as available to him under

the law. At this juncture, we are obliged to mention that Mr.

Nariman, learned friend of the Court also in course of hearing,

had submitted that the appellant having offered unconditional

apology immediately and regard being had to the passage of

time, he along with the printer should be discharged.

107.Before we part with the case, we must candidly express

our unreserved and uninhibited appreciation for the

distinguished assistance rendered by Mr. Fali S. Nariman,

learned amicus curiae. We also record our appreciation for the

sustained endeavour put forth by Mr. Subramanium, learned

senior counsel for the appellant, for it has been of immense

value in rendering the judgment.

Page 145 145

108.Consequently, the appeal stands disposed of in above

terms.

.............................J.

[Dipak Misra]

..............................J.

[Prafulla C. Pant]

New Delhi

May 14, 2015