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'Mass Media' versus 'Obscenity': The Judicial Contribution

Article  in  SSRN Electronic Journal · June 2015

DOI: 10.2139/ssrn.2661201

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 ‘Mass Media’ versus ‘Obscenity’: The Judicial Contribution
*Aqa Raza

I
Introduction
“The peculiar evil of silencing the expression of an opinion is that it is robbing the
human race; posterity as well as the existing generation; those who dissent from the
opinion, still more than those who hold it. If the opinion is right, they are deprived of
the opportunity of exchanging error for truth: if wrong, they lose, what is almost as
great a benefit, the clearer perception and livelier impression of truth, produced by
its collision with error.”
―John Stuart Mill, On Liberty, 1859

The „basic law of the land‟1 confers to its citizens the most basic inalienable right2 in the form of
“freedom of speech and expression”. The most inalienable right available ever in the hands of
the citizens in a State is the freedom of speech and expression by which a human being conveys
his feelings, thoughts, views, opinions and sentiments, etc. to others. In other words, it means,
the right to express one‟s own convictions, and opinions freely by words of mouth, writing,
painting pictures or any other mode. The conferring of this right under Article 19(1)(a)3 by the
basic law of the lands gives it a status of being a constitutional right. The Founding Fathers of
the Indian Constitution attached great importance to the freedom of speech and expression. They
also endorsed the thinking of Jawaharlal Nehru who said, “I would rather have a completely free
speech and expression with all dangers involved in the wrong use of that freedom than a
suppressed or regulated speech and expression.”4

The right conferred by Article 19(1) (a) is not absolute.5 Not only the human nature but it is the
demand of the society in order to be a civilized society that the State should impose certain
reasonable restrictions on this particular guaranteed Constitutional right and that restriction has
been provided under Article 19(2). One of the limitations imposed on this constitutional right of

*LL. M. in Commercial Laws, Faculty of Law, Aligarh Muslim University, Aligarh (Uttar Pradesh, Republic
of India); e-mail: aqaraza@outlook.com; Contact No. +91 7417037864.
1
The term „basic law of the land‟ hereinafter refers to the „Constitution of India‟.
2
Freedom of speech and expression is a basic right because a human being acquires it by birth so it‟s a natural right.
3
Article 19 deals with “Protection of certain rights regarding freedom of speech and expression”. Clause (1) of
Article 19 reads as: “All citizens shall have the right…and sub-clause (a) of Article 19 provides “to freedom of
speech and expression”.
4
See, Pandit Jawaharlal Nehru‟s speech on 20th June 1916 in protest against the Press Act, 1910.
5
This right is subject to the restrictions imposed under Article 19(2) which reads as: “Nothing in sub-clause (a) of
clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such
law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of
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.
Page 1 of 28
„freedom of speech and expression‟ is the “decency and morality”. The principle behind this
restriction is that public mind should not be corrupted. The problem arises when the right
conferred under Article 19(1)(a) is exercised on one hand and the same is challenged as being
obscene on the basis of the restrictions imposed under Article 19(2) in the Constitution. Then
only, comes the judiciary to decide the issue. The concept of „obscenity‟ is not same everywhere.
What is obscene at one place may not be obscene at the other. So the concept of obscenity varies
from place to place and from time to time.

This paper mainly seeks to analyze the concept of obscenity in the judicial perspective. Part I
covers the introductory theme of the paper. Part II deals with the concept of obscenity. Part III
deals with the test of obscenity by Statute. Part IV covers the Indian judicial approach towards
obscenity with an emphasis on the judicial approach in the United Kingdom and the United
States of America.

II
Concept of „Obscenity‟
The word „obscenity‟ is derived from the Latin word „obscaena‟ (offstage).6 The word can be
used to indicate a strong moral repugnance, in expression such as „obscene profits‟ or „the
obscenity of war‟. According to dictionary meaning, “it is offensive to chastity, delicacy or
decency, expressing or presenting to the mind of view something that decent, delicacy and purity
forbid to be exposed, offensive to morals, indecent, impure”.7 According to the Webster‟s New
International Dictionary, “It is offensive to chastity or modesty, expressing or preventing to the
mind or view something that delicacy, purity or decency forbid to be exposed, impure as obscene
language, obscene picture, impure, indecent, unchaste, lewd.”

The word „obscene‟ was originally used to describe anything disgusting, repulsive, filthy or foul.
This use of 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.8 “Obscenity” includes on the one hand what is merely
inauspicious, foul and indecent and on the other hand what is immodest and calculated to excite

6
A cognate of the Ancient Greek root „skene‟, because some potentially offensive content, such as murder or sex
was depicted offstage in classical drama.
7
New Standard Dictionary.
8
The Law Lexicon of British India (M.L.J.) 1940, pp. 895-895.
Page 2 of 28
impure emotions and desires.9 Craies says that “the precise meaning is decidedly ambiguous” It
is important to discuss here to discuss the judicial definition of „obscenity‟.

In R v. Hicklin10, Chief Justice Cockburn laid down that “the test of obscenity is this, 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 whose hands the a publication of this sort may fall. It is
quiet certain that it would suggest to minds, of the young either sex, or even to persons of more
advanced years, thoughts as a most impure and libidinous character."

The Supreme Court of India followed the same approach as laid down in Hicklin‟s case and
applied the same in the Ranjit D. Udeshi v. State of Maharashtra11 without any attempt for a
definition of obscenity.12

In State of U. P. v. Thakur Prasad,13 „obscenity‟ was defined as: “the word obscene though not
clearly defined in the Indian Penal Code, 186014 must be taken as meaning offensive to chastity
or modesty, expressing or personating to the mind or view something that delicacy, purity or
decency forbid to be expressed; anything expressing or suggesting unchaste and lustful ideas;
impure; indecent and lewd.”

In Chandrakanth Kalyandas Kokodhar case,15 it was observed by the Supreme Court of India
that the “tendency of the matter is to deprave and corrupt those whose minds are open to

9
Anderso‟s Law Dictionary.
10
(1868) 3 QB 360.
11
AIR 1965 SC 881.
12
Justice Hidayatullah in Ranjit D. Udeshi v. State of Maharashtra (AIR 1965 SC 881) observed that “no doubt
this Article 19 guarantees complete freedom of speech and expression but it makes an exception in favour of existing
laws which imposes restrictions on the exercise of the right in the interest of public decency and morality speaking
in terms of the Constitution it can hardly be claimed that the obscenity which is offensive to modesty or decency is
within the constitutional protection given to freedom of speech and expression, because the Article dealing with
right itself excludes it. That cherished right on which our democracy rests in meant for the expression for free
opinions to charge political or social conditions or for the advancement of human knowledge. This freedom is
subject to reasonable restrictions which may be thought necessary is the interest of the general public and one such
is the interest of public decency and morality.” He further observed that “when everything said in its favour we find
that in treating with sex the impugned portions viewed separately and also in the setting of the whole book pass the
permissible limits judged of from our community standards and as there is no social gain to us which can be said to
preponderate, we must hold the book to satisfy the test we have indicated above.”
See also, D. D. Basu, Constitutional Law of India, LexisNexis Butterworths Wadhwa, Haryana, 14th edition, 2009,
p. 283 where he is of the opinion that „decency or morality‟ is not confined to sexual morality alone. Decency
indicates that the action must be in conformity with the current standards of behavior. The question whether an
utterance is likely to undermine decency or morality is to be undermined with reference to the probable effects it
may have upon the audience to which it is addressed.
13
AIR 1959 All 49.
14
Act 45 of 1860.
15
AIR 1970 SC 1390.
Page 3 of 28
immoral influence and into whose hands the book may fall, but if the propagation of idea,
opinion or information be for public interest, it would not fall within the mischief of obscenity.”

In Samaresh Bose v. Amal Mitra16 the Supreme Court as to the „vulgarity‟ observed that “what
arouses a feeling of disgust and revulsion and also boredom but does not have the effect of
depraving, debasing and corrupting the morals of any reader of the novel is vulgarity.” The
Court also draw a line between obscenity and vulgarity and observed:

“a vulgar writing is not necessarily obscene. Vulgarity arouses a feeling of disgust and
revulsion and also boredom but does not have the effect of depraving, debasing and
corrupting the morals of any reader of the novel whereas, obscenity has the tendency to
deprave and corrupt those whose minds are open to such immoral influences.”

Further, the Supreme Court observed:

“The concept of obscenity is mouled 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 view point of the author the judge should thereafter
place himself in the position of a reader of every age group in whose hands the book is
likely to fall and should try to appreciate what kind of possible influence the book is likely
to have in the minds of the reader. The judge should thereafter apply his judicial mind
dispassionately to decide whether the book in question can be said to be obscene within
the meaning of section 292 of the Indian penal Code, 1860 by an objective assessment of
the book as a whole and also of the passage complained of as obscene separately.”

In Aveek Sarkar v. State of West Bengal17 the Supreme Court held that held that “the question of
obscenity must be seen in the context in which the photograph appears and the message it wants
to convey. The Court further said that the correct test to determine obscenity would be
„Community Standards Test‟ and not Hicklin Test.” Applying the „Community Tolerance Test‟
the Court held that the decisions in such cases must be taken keeping in mind the contemporary
national standards and not that of a group of sensitive persons. If the society accepts the portrayal

16
AIR 1986 SC 967.
17
AIR 2014 SC 1495.
Page 4 of 28
of sexual activities on the silver screen, the Court must not strike it down for the sake of a few
sensitive persons. If it is acceptable to the society in general, the court must accept it too.

Materials may have sometimes contents which are not acceptable to the society. In such
scenarios, one needs to look into the bigger picture, the message being conveyed through the
otherwise obscene material. The message should be helpful and beneficial to the society. It is
important to see the full picture instead of squinting eyes at certain explicit scenes. The Court
held that the photograph has no tendency to deprave and corrupt minds of people in whose hands
magazine would fall and the message which the article conveys is to eradicate the evil of racism
and apartheid in the society and to promote love and marriage between white skinned man and a
black skinned woman.

In Roth v. United States,18 the Court observed that sex and obscenity are not to be seen as
synonyms. It was held that only those sex-related materials which had the tendency of exciting
lustful thoughts were found to be obscene and the same has to be judged from the point of view
of an average person by applying contemporary community standards.

To define what is obscenity or what constitutes obscenity is not an easy task. Social changes in
the behavior and outlook and outlook of the people from age to age bring in a variation in the
idea of obscenity. The concept of obscenity developed in England and it was introduced in India
through legislation for the very reason that India had been colony of England for a long time and
most of the laws enforced in India in present time are the gift of English legal system. The Indian
culture and society is based on the religious sentiments. Our legal system is also impressed with
such feelings because law makers and the law interpreters all come out from the society. Thus,
the law prevailing in India directed towards the fact that obscenity would be punished. The
Parliament has enacted various statutes to deal with the issue of obscenity. The concept of
obscenity and in other words the offence of obscenity flow from the use of the word „obscene‟
under Sections 292, 292 and 293 of the Indian Penal Code, 1860. Various other statues have
been enacted by the legislature to deal with the same e.g., The Indecent Representation of
Women (Prohibition) Act, 1986,19 The Young Persons (Harmful Publication) Act, 1956,20 etc.

18
354 U. S. 476 (1957); See, infra n. 24.
19
The Statement of Objects and Reasons of the Act reads as: “The law relating to obscenity in this country is
codified in Sections 292, 293 and 294 of the Indian Penal Code, 1860. In spite of these provisions, there is growing
body of indecent representation of women or references to women in publications, particularly advertisements, etc.
which have the effect of denigrating women and are derogatory to women. Though there may be no specific
intention, these advertisements, publications, etc. have an effect of depraving or corrupting persons. It is, therefore,
Page 5 of 28
Harry M. Color21 says obscenity is not a legal term. It cannot be defined so that it will mean the
same to all people, all the time everywhere. Obscenity is very much a figment of the
imagination, an indefinable something in the minds of some and not in the minds of others, and it
is not the same in the minds of the people of every clime and country nor the same today that it
was yesterday and will be tomorrow.

III
The Test of „Obscenity‟ by Statute
The term „obscene‟ is retained by of the Obscene Publication Act, 1959 22 as the Common Law
test. It reads as: “For the purpose of this Act an article shall be deemed to be obscene if it effect
or (where the article comprises two or more distinct items) the effect of any one of this item 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.”

In Regina v. Hicklin23 the court held that “obscene material is marked by a tendency 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 was understood that this test could be applied to isolated
passages of work, and the ruling made it possible to label a work obscene not on the basis of the
intended readership but on how it might influence anyone in society (e.g. women and children).
This perspective later formed the basis of anti-obscenity laws in legal systems influenced by
British Law, particularly in countries that were at one time part of the British Empire.

In Roth v. United States,24 a test for obscenity was derived that included the following five-part
structure:

(i) The perspective of evaluation was that of an ordinary, reasonable person,

(ii) Community standards of acceptability were to be used to measure obscenity,
(iii)Works whose predominant theme was questionable were the only target of obscenity law,

felt necessary to have a separate legislation to effectively prohibit the indecent representation of women through
advertisements, books pamphlets, etc.”
Indecent representation of women means depiction in any manner of the figure of a woman, her form or body which
is indecent and offensive to women or may affect public morality. The law prohibits the publication or exhibition of
any advertisement containing indecent representation of women and also the production, sale, etc. of any material
containing indecent representation of women.
20
The Long Title of the Act reads as: “An Act to prevent the dissemination of certain publications harmful to young
persons.”
21
In his book „Obscenity and Public Morality‟, p. 210.
22
See, Section 1(i) of the Obscene Publication Act, 1959.
23
(1868) L.R. Q.B. 360.
24
354 U.S. 476 (1957).
Page 6 of 28
 (iv) A work, in order to be evaluated for obscenity, had to be taken in its entirety, and
(v) An obscene work was one that aimed to excited individuals‟ prurient interest.

In R v. Anderson,25 Lord Widgery stated that “so far as the Post Office count is concern, there is
no doubt in our judgement but that obscene in its context as an alternative to indecent has its
ordinary or as it is sometimes called dictionary meaning. It includes things which are shocking
and lewd and indecent and so on.

After the Anderson case, Miller Test26 propounded the three criteria to test „obscenity‟. Those
were- (i) Whether „the average person, applying contemporary community standards‟ would find
that work, „taken as a whole‟, appeals to „prurient interest‟, (ii) whether the work depicts or
describes, in a patently offensive way, sexual conduct specifically defined by the applicable State
law, and (iii) whether the work, „taken as a whole‟, lacks serious literary, artistic, political or
scientific value.

The Supreme Court of India in Ranjit D. Udeshi v. State of Maharashtra27 followed the Hicklin
test and held that the “the test of obscenity is that whether the matter charged as obscene has
capacity to deprave and corrupt those whose minds are open to such immoral influences and
into whose hands a publication of this sort may fall.”

Therefore, it can be said that the problem of defining what is obscene is not easy to solve. Social
changes in the behavior and outlook of the people from age to age bring in a variation in the idea
of obscenity. If, one compares the dress worn by a woman, from time to time in different parts of
the world and even at the same part at different periods of history, one will be astounded as to the
variable idea of obscenity prevalent in the world over. The changes in the ideas of obscenity may
be in terms of persons. It may even be that with the same person the same thing may not be
obscene at all stages of his life. The definition of what constitutes obscenity differs from culture
to culture, between communities within a single culture, and also between individuals within
those communities.

IV
The Judicial Approach

The judiciary for a long time followed the British approach and now it clearly discarded it and

25
(1972) 1 Q.B. 304, 311-312.
26
Miller v. California, 413 U.S. 15 (1973).
27
AIR 1965 SC 881.
Page 7 of 28
has shifted towards the Community Standard or Community Tolerance approach of the United
States. It is important here to deal first with the judicial approach of the Courts in the United
Kingdom and the United States of America for better understanding of concept of „obscenity‟ in
India. The judicial approach towards obscenity in the United Kingdom (hereinafter referred to as
„UK‟) and the United States of America (hereinafter referred to as „USA‟) is different. The
approach of the Indian judiciary towards obscenity in the Aveek Sarkar case is showing the
reflection of the American judicial approach.

Judicial Approach in the United Kingdom:

The first prosecution in the U.K. under the Obscene Publications Act, 1959 was of Penguin
Books in R. v. Penguin Books Ltd.,28 for publishing “Lady Chatterley‟s Lover”. The book,
which contained the use of words „fuck‟ and „cunt‟ multiple times, along with sexual scenes was
completely banned in England and Wales until the conclusion of the trial. By the mid-1980s it
was on the school syllabus. Penguin Books relied on Section 4‟s „public good‟ defence, with
academics and literary critics such as E. M. Forster and Helen Gardner (Sociologist and English
literature) testifying at the trial that the book was one of literary merit. The trial the Old Bailey
eventually ended with a not guilty verdict allowing the book to be openly published and sold in
England for the first time since it was published in 1928. This trial and its verdict is seen as “a
new wave of sexual „morality‟ for which the 1960s is now famous” whereas, in DPP v. Whyte,29
it was established that “it was not sufficient for an individual to be depraved or corrupted, it
must be that a significant number of people likely to read it would become corrupt.” In
Handyside v. United Kingdom,30 the court got an opportunity to scrutinize the impact of
obscenity laws on Article 10 of the Convention on Human Rights of European Union
Commission which provides, that the right of freedom of expression shall include: “freedom to
hold opinions and to receive and impart information and ideas without interference by public
authority and regardless of frontiers.” Article 10(2) goes on to say that “the exercise of these
freedoms, since it carries with it duties and responsibilities, may be subject to such formalities,
conditions, restrictions or penalties as are prescribed by the law and are necessary in a
democratic society in the interest of…public safety, for the prevention of disorder or crime, for
the protection of health or morals, protection of the reputation or rights of others.”The Court
observed that “sharing the view of the government and the unanimous opinion of the
28
[1916] Crime L. R. 176.
29
[1972 AC 849].
30
(1976) Ehrr. 737.
Page 8 of 28
Commission, the court finds that the Obscenity Act of 1959 and 1964 have an aim that is
legitimate under Article 10(2), namely, the protection of morals in a democratic society.” In R.
v. Hist,31 the Court of Appeal upheld a sentence of 12 months imprisonment on a plea of guilty
by a 51 years old with no convictions, to conspiracy to import obscene videos in a sophisticated
operation in which the offender had an important role. The court observed in R. v. Perrin,32
“where children are likely to access material of a degree of sexual explicitness equivalent to
what is available to those aged 18 and above in a licensed sex shop, that material may be
considered to be obscene and subject to prosecution. This applies to material which is not behind
a suitable payment barrier or other accepted means of age verification, for example, material on
the front page of pornography websites and non-commercial, user-generated material which is
likely to be accessed by children and meets the threshold.

In R. v. Peacock,33 the defendant was charged on indictment with sex counts under the Act of
1959 for distributing allegedly obscene DVDs. The recordings at issue had been advertised for
sale on the internet. Mr. Peacock had been selling them from his flat in Brixton. Officers from
SCD9, the Metropolitan Police unit investigating human exploitation and organized crime came
across Mr. Peacock‟s services and operated an undercover test purchase in January 2009. Six
DVDs were deemed obscene and Mr. Peacock was prosecuted. The recordings at the issue
featured hardcore gay sexual activities- fisting (the insertion of five fingers of the fist into the
rectum of another male); urolagnia (in Peacock, men urinating in their clothes, onto each other‟s
bodies and drinking urine aka golden shower), and BDSM (in this case hard whipping, the
insertion of needless and urethral sounds, electrical torture, staged kidnapping and rape,
whipping, as well as smacking of saline-injected scrotums).

After having watched large parts of the „hardcore‟ male-on-male DVDs over several hours
during the trial and after having been carefully warned against sentencing out of any impulse of
homophobic antipathy, the jury, who presumably had not been depraved and corrupted in the
process, decided in less than two hours that- “the material under consideration is unlikely to
„deprave and corrupt‟ the viewer”. They found peacock not guilty on all counts.

The not guilty also confirms that society has become more comfortable with the idea of consent
in sexual activities and less condemnatory as far as unusual sexual predilections are concerned.
The outcome in Peacock rearranged the boundaries of the British obscenity law and stresses that

31
[2001] 1 Cr. App. R (S) 44.
32
[2002] EWCA Crim. 747.
33
[2012] EWCA Crim. 398.
Page 9 of 28
the Act‟s history appears to be littered with cases like these, revolving around who can be
corrupted and who cannot.

Therefore, it can be said that in U.K. the laws on obscenity requires that in order to constitute an
obscene act, there has to be an intention to corrupt public morals which may however be
presumed from the nature of the matter and the circumstances of the publication. If the possible
effect of the publication is to prejudice public morality and decency, the defendant must be taken
to have intended the natural consequences of his acts.

Judicial Approach in the United States of America:

Whereas in the U.S.A. obscenity is defined to men as, any material or performance, if:

(i) The average person applying contemporary community standards would find that the
subject matter taken as a whole appeals to the prurient interest,
(ii) The subject matter depicts or describes in a patently offensive way, sexual conduct of a
type described in this solution, and
(iii)The subject matter, taken as a whole, lacks serious literary, artistic, political, educational
and scientific value.
The First Amendment to the U.S. Constitution prohibits the making of any law respecting an
establishment of religion, impeding the free exercise of religion, abridging the freedom of
speech, infringing on the freedom of press, interfering with the right to peaceably assemble or
prohibiting the petitioning for a governmental redress of grievances. It was adopted on December
15, 1791, as one of the ten Amendments that comprise the Bill of Rights. The First Amendment
to the United States of America‟s Constitution reads as:

“The Congress shall make no law respecting an establishment of religion, or prohibiting

the free exercise thereof; or abridging the freedom of speech, or of press; or of the right
of the people peaceably to assemble, and to petition the Government for a redress of
grievances.”

In the United States of America, the suppression or limitation of what is considered obscenity
raises issues of rights to freedom of speech and the press protected by the First Amendment to
the Constitution of the United States. The Supreme Court has ruled that obscenity is not
protected by the First Amendment, but the Courts still need to determine what material is
obscene in each case. The U.S.A. Supreme Court for the first time established the test to

Page 10 of 28
determine whether matter is obscene in the case of Roth v. United States,34 the court determined
that, as a matter of history and function, obscenity is “utterly without redeeming social
importance.” In this case, the court established a new judicial standard for defining obscenity
that invoked the average person‟s application of contemporary community standards to judge
whether or not the dominant theme of the material taken as a whole appeal to prurient interest. A
test for obscenity derived from the Roth‟s Case that included the following five part structure-
(i) the perspective of evaluation was that of ordinary, reasonable person, (ii) community
standards of acceptability were to be used to measure obscenity, (iii) works whose predominant
theme was questionable were the only target of obscenity law, (iv) a work, in order to be
evaluated for obscenity, had to be taken in its entirety, (v) an obscene work was one that aimed
to excited individual‟s prurient interest.

The U.S. Supreme Court in one of its landmark judgement articulated the doctrine of „Triple
Test‟ to find out whether a material is obscene or not in the case of Miller v. California,35 (a)
whether the average person applying contemporary adult community standards, finds that the
matter, taken as a whole, appeals to prurient interest (i.e., an erotic, lascivious, abnormal,
unhealthy, degrading, shameful, or morbid interest in nudity, sex or exertion); (b)whether the
average person applying contemporary adult community standards, finds that the matter depicts
or describes sexual conduct in a patently offensive way (i.e., ultimate sexual acts, normal or
perverted, actual or simulated, masturbation, excretory functions, lewd exhibition of genitals, or
sado-masochistic sexual abuse); and (c) whether a reasonable man finds that the matter, taken as
a whole, lacks serious literary, artistic, political or scientific value. In Dunlop v. United States,36
the Supreme Court upheld a conviction for mailing and delivery of a newspaper called the
„Chicago Dispatch‟, containing “obscene, lewd, lascivious and indecent materials” which was
later upheld in several cases.

In John Cleland‟s Memoirs of a Woman of Pleasure v. Attorney general of Com. of

Massachusetts,37 the book „Fanny Hill‟ written by John Cleland in 1760 was judged to be
obscene in a proceeding that put the book itself on trial rather than its publisher. In Sanley v.
Georgia,38 that the State laws, making mere private possession of obscene material a crime are
not valid, at least in the absence of an intention to sell, expose or circulate the material. The film
34
354 U.S. 476 (1957).
35
413 U.S. 15, 24-25 (1973).
36
165 U.S. 486 (1897).
37
383 U.S. 413 (1966).
38
394 U.S. 557 (1969).
Page 11 of 28
“Carnal Knowledge” was deemed not to be obscene under the constitutional standards
announced by the Miller Case. The Judge observed that “the film shows occasional nudity, but
nudity alone does not render material obscene under the Miller‟s standards.”

In Erznoznik v. City of Jacksonville,39 the city of Jacksonville passed a law whereby the
showing of films containing nudity when the screen is visible from a public street or place is a
punishable offence. “The law was determined by the court to be invalid as it was an infringement
of First Amendment rights of the movie producer and theatre owners. The Court further held,
that the single male to female vaginal penetration only that does not show the actual ejaculation
of semen, sometimes referred to as “soft-core” pornography wherein the sexual act and its
fulfillment (orgasm) are merely implied to happen rather than explicitly shown.”

Judicial Approach in India:

For the first time, the Supreme Court defined the offence of obscenity in Ranjit D. Udeshi v.
State of Maharashtra40 where the appellant was prosecuted under Section 292 of the Indian
Penal Code, 1860 (hereinafter referred to as „IPC‟) along with the other partners of a bookstall
which was found to be in possession (for the purposes of sale) of the unexpurgated edition of the
book, “Lady Chatterley‟s Lover”.41

The main issues before the Supreme Court were:

(i) Whether section 292 of the IPC was constitutionally valid? And
(ii) If so, whether or not it could be invoked in the present case?

The appeal was dismissed by the Court with the assertions that “Where obscenity and art are

39
F1, 422 U.S. 205 (1975).
40
AIR 1965 SC 881.; the Bench was consisted of M. Hidayatullah, P.B. Gajendragadkar, K.N. Wancho, J.C. Shah,
and N. RajagopalaAyyangar, JJ.
41
During the trial, the accused produced as witness Mr. Mulk Raj Anand, a writer and art critic, who presented a
detailed analysis of the novel and opined that the novel was a classic work of considerable literary merit and not
obscene. Nonetheless, the Trial Court found the appellant guilty and the Bombay High Court upheld the verdict.
The prosecution contended that the law regarding obscenity in India had its underpinnings in the Hicklin test (which
laid emphasis on the potential of the impugned object to deprave and corrupt by immoral influences) and that the
book failed the test. The appellant argued that Section 292 of the IPC was void as an impermissible and vague
restriction on the freedom of speech and expression; that even if the Section were valid, if it was properly construed
and the book was considered as a whole, the book would not be found obscene; and that for possession or sale to be
punishable under the Section it must be with the intention of corrupting the public in general and the purchasers in
particular. On the subject of obscenity, the appellant contended that the standard should not be that of an immature
teenager or a person who is abnormal but of one who is normal, that is to say, with a menssana in corporissana.
That, if valid, the section must apply only to cases of intentional lewdness/hardcore pornography, libidinous writings
of high erotic effect unredeemed by anything literary or artistic and intended to arouse sexual feelings.
Page 12 of 28
mixed, art must so preponderate as to throw the obscenity into a shadow or the obscenity must
be so trivial and insignificant that it can have no effect and may be overlooked. In other words,
treatment of sex in a manner offensive to public decency and, judged by our national standards,
considered likely to pander to lascivious, prurient or sexually precocious minds, must determine
the result.”

The Court on the issue of constitutionality observed: “The test to adopt in India is that obscenity
without a preponderating social purpose or profit cannot have the constitutional protection of
free speech and expression, and obscenity is treatment of sex in a manner appealing to the
carnal sides of human nature, or having that tendency.”

The Court went on to say: “The law seeks to protect not those who can protect themselves but
those whose prurient minds take delight and secret sexual pleasure from erotic writings. No
doubt this is treatment of sex by an artist and hence there is some poetry even in the ugliness of
sex. The book is probably an unfolding of the author‟s philosophy of life and of the urges of the
unconscious but these are unfolded in his other books. Therefore, there is no loss to society if
there was a message in the book. The divagations (sic) with sex are not legitimate embroidery
but they are the only attractions to the common man.”

In K. A. Abbas v. Union of India and Anr.,42 the petitioner produced in 1968 a documentary
film in 2 reels (with a running time of 16 minutes) called a “Tale of Four Cities” in which he
purported to contrast the luxurious life of the rich in the four cities of Calcutta, Bombay, Madras
and Delhi, with the squalor and poverty of the poor, particularly those whose hands and labour
help to build beautiful cities, factories and other industrial complexes.43

The issues before the court were:

(i) Whether Section 5-B of the Cinematograph Act, 1952 which authorized the Central
42
AIR 1971 SC 481.; The Bench was consisted of M. Hidyatullah, J. M. Shelat, G. K. Mitter, C. A. Vaidyalingam,
A.N. Ray, JJ.
43
The film, in motion sequences or still shots, showed contrasting scenes of palatial buildings, hotels and factories -
evidence of the prosperity of a few, and shanties, huts and slums - evidence of poverty of the masses. Also included
is a brief scanning shot, blurred by the movement of the camera, in which the red light district of Bombay is shown,
with the inmates of the brothels waiting at the doors or windows. The petitioner applied to the Central Board of Film
Certification for a 'U' certificate for unrestricted exhibition of the film but the Committee was willing to grant only
an „A‟ certificate. On the petitioner‟s representation that the movie portrayed no obscenity, he was informed that he
would get a „U‟ certificate provided he deleted certain portions from the red light scene. Hence the writ petition to
the Supreme Court. However, after a joint screening, the respondent acceded to the petitioner‟s demand and stated
that he would be given a „U‟ certificate. The petitioner then amended his submission so as to be able to challenge
pre-censorship itself as offensive to freedom of speech and expression and, alternatively, the provisions of the Act
and the rules, orders and directions under the Act, as vague, arbitrary and indefinite.
Page 13 of 28
 Government to issue directions to set out principles to guide the Censor Board in granting
certification is constitutionally valid?
(ii) Does pre-censorship of films violate the fundamental right to the freedom of speech and
expression?
(iii)Even if pre-censorship were a legitimate restraint on freedom, does it have to be
exercised on definitive principles leaving no room for arbitrary action?

The contention of the petitioner was that there are other forms of speech and expression besides
the films and none of them is subject to any prior restraint in the form of pre-censorship; that
there should equality of treatment with such other forms and that there was no justification for
differential treatment. Specifically, the petitioner argued:

(i) That pre-censorship itself cannot be tolerated under the freedom of speech and
expression,
(ii) That even if it were a legitimate restraint on such freedom, it must be exercised on very
definite principles that leave no room for arbitrary action,
(iii)That there must be a reasonable, fixed time-limit for the decision of the authorities
censoring the film, and
(iv) That the appeal should go to a court or to an independent tribunal and not the Central
Government.

The respondent conceded (iii) and (iv) points and stated that the Government would begin
working on legislation to address these concerns at the earliest possible opportunity. The case
then, boiled down to an academic debate of the validity of (a).

The Court, relying on the Khosla Committee Report, 196844 and precedents from the Indian,
American and British case laws, said that pre-censorship was valid (in the context) and an
exception to the right to freedom of speech and expression had been provided under Article
19(2). The Court said that pre-censorship was necessary as the medium of film had to be treated
differently from other forms of art and expression. “The art of the cameraman, with trick
photography, vista vision and three dimensional representation thrown in, has made the cinema
picture more true to life than even the theatre or, indeed, any other form of representative art.”

44
Report of the Enquiry Committee on Film Censorship 1968-1969 instituted by the Ministry of Information and
Broadcasting to enquire into the working of the existing procedures for certification of cinematograph films for
public exhibition in India.
Page 14 of 28
It said that the general principles that applied to exceptions to Article 19 (1) (a) applied to the
censorship of film, and that there was nothing vague about the wording of the Censorship Act.
“We are quite clear that expressions like „seduction‟, „immoral traffic in women‟, „soliciting,
prostitution or procuration (sic),‟ „indelicate sexual situation and scenes suggestive of
immorality,‟ „traffic and use of drugs,‟ „class hatred‟, „blackmail associated with immorality‟,
are within the understanding of the average man and more so of persons who are likely to be the
panel for purposes of censorship. Any more definiteness is not only expected but is not possible.”

However, the Court observed that “the censors need to take into account the value of art while
making their decision. The artistic appeal or presentation of an episode robs it of its vulgarity
and harm and also what may be socially good and useful and what may not.”

In Raj Kapoor and Others v. State and Others,45 where the issue was whether the issuance of a
censor certificate by the specialized Board of Film Censors bars the criminal court‟s jurisdiction
to try offences under Sections 292 and 293of the Indian Penal Code, 1860 relating to
obscenity?46

The Court held that while a certificate issued by the Censor Board is of relevance, it does not
preclude the court from deciding if a film is obscene or not. However the Court through Justice
V. R. Krishna Iyer observed that, “Art, morals and laws, aesthetics are sensitive subjects where
jurisprudence meets other social sciences and never goes alone to bark and bite because state-
made strait-jacket is inhibitive prescription for a free country unless enlightened society actively
participates in the administration of justice to aesthetics. The world‟s greatest paintings,
sculptures, songs, and dances, India‟s lustrous heritage, the Konarks and Khajurahos, lofty epics,
luscious in patches, may be asphyxiated by law, if prudes and prigs and state moralists prescribe
paradigms and prescribe heterodoxies.” The Court allowed the appeal and sent back the case to
the High Court for fresh disposal.

In Samaresh Bose and Anr., v. Amal Mitra and Anr.,47 the first appellant (Samresh Bose) was a
well-known writer of Bengali novels and stories, and the author of a novel called Prajapati,

45
AIR 1980 SC 258; The Bench was consisted of V. R. Krishna Iyer and R. S. Pathak, JJ.
46
The argument was when a notice was issued to the producer, he moved the High Court contending that this was an
abuse of the judicial process and engineered by ulterior considerations and that no prosecution could be legally
sustained in the circumstances of the case, the film having been duly certified for public show by the Censor Board
(the film had been given 'A' certificate by the Central Board of Film Certification). The High Court, however,
dismissed the petition. The producer then appealed to the Supreme Court contending that he was protected under
Section 79 of the Indian Penal Code, 1860.
47
AIR 1986 SC 967. The Bench was consisted of Amarendra Nath Sen and R. S. Pathak, JJ.
Page 15 of 28
which was published in Sarodiya Desh, a journal of Bengali literature with wide circulation.
Sitangshu Kumar Dasgupta, the second appellant, was the publisher and the printer of the journal
at the relevant time. Amal Mitra, a young advocate, made an application in the Court of the Chief
Presidency Magistrate at Calcutta complaining that the novel, Prajapati, contains matters which
are obscene and both the accused persons have sold, distributed, printed and exhibited the same
which has the tendency to corrupt the morals of those in whose hands the said Sarodiya Desh
may fall.”

The appellant was convicted by the Magistrate who ordered that the offending portions in the
journal be destroyed. The appellants then filed appeal in the Calcutta High Court, which was
dismissed with a direction that the Chief Presidency Magistrate should also take appropriate
steps to destroy the offending portions of the journal in respect of the novel if published in book
form. The author and publisher then filed an appeal in the Supreme Court. The question for
consideration in this appeal was whether the two appellants could be said to have committed an
offence under Section 292. In order to decide this, the court looked at whether or not the novel
Prajapati was obscene.

The issues involved in this case was whether references to kissing, descriptions of the body and
the figures of female characters in the book and suggestions of sex acts by themselves have the
effect of depraving and debasing, and encouraging lasciviousness among, readers of any age, and
must therefore be considered obscene?

Following submissions were made by the petitioner:

1. That the novel depicts the feelings, thoughts, actions and life of Sukhen, the hero of the
novel and its main character; and that through the speeches, thoughts and actions of
Sukhen the novel seeks to condemn and criticize various prevalent aspects of life in
various strata of society.
2. That if different kinds of words: cultured and sophisticated were to be used for the
thoughts, speeches and actions of Sukhen, the entire portrayal of Sukhen's character
would become unreal and meaningless.
3. That in literature there was a distinction between obscenity and vulgarity, and it was only
obscenity in literature that attracts the provisions of Section 292.
4. That the book had a social purpose to serve and had been written with the primary object
of focusing the attention of persons interested in literature to the various ills and maladies
Page 16 of 28
 ailing society and destroying the social fabric.

The state of West Bengal supported the judgment of the Chief Presidency Magistrate and the
High Court. The State submitted that the novel has to be judged in the background of the
conditions prevailing in society at the time when the novel was written.

The Supreme Court allowed the appeal and dismissed the charges of obscenity. It held that
vulgar writing is not necessarily obscene. “Vulgarity arouses a feeling of disgust and revulsion
and also boredom but does not have the effect of depraving, debasing and corrupting the morals
of any reader of the novel, whereas obscenity has the tendency to deprave and corrupt those
whose minds are open to such immoral influences.”

“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.”

The court said that although, in some places in the book there may have been an exhibition of
bad taste, it was up to readers of experience and maturity to draw the necessary inference. It was
not sufficient to bring home to adolescents any suggestion that was depraving or lascivious. “We
have to bear in mind that the author has written this novel which came to be published in the
Sarodiya Desh for all classes of readers and it cannot be right to insist that the standard should
always be for the writer to see that the adolescent may not be brought into contact with sex. If a
reference to sex by itself in any novel is considered to be obscene and not fit to be read by
adolescents, adolescents will not be in a position to read any novel and have to read books which
are purely religious".

In Bobby Art International & Others. v. Om Pal Singh Hoon & Others48 a writ petition was
filed by the first respondent to quash the certificate of exhibition awarded to the film, "Bandit
Queen." The film was based on a book which had been in the market since 1991 without
objection. The first respondent was the President of the Gujjar Gaurav Sansthan and was
involved in the welfare of the Gujjar community. The certificate was quashed by a Single Judge
in the Bombay High Court and on appeal to a Division Bench, the verdict was upheld.

The Supreme Court in appeal reversed the decision of the Delhi High Court. It held that since the

48
AIR 1996 SC 1846; also known as “Bandit Queen Case”. The Bench was consisted of S. P. Bharucha and B.N.
Kirpal, JJ.
Page 17 of 28
Tribunal (Censor Board) had viewed the film in „true perspective‟ and granted the film an „A‟
certificate, and since Tribunal was an expert body capable of judging public reactions to the film,
its decision should be followed. The Court dismissed the first respondent‟s writ petition. The
Court observed that a film that illustrates the consequences of a social evil necessarily must show
that social evil. “We find that the (High Court) judgment does not take due notice of the theme of
the film and the fact that it condemns rape and degradation of violence upon women by showing
their effect upon a village child, transforming her to a cruel dacoit obsessed with wreaking
vengeance upon a society that has caused her so much psychological and physical hurt, and that
the scenes of nudity and rape and use of expletives, so far as the Tribunal had permitted them,
were in aid of the theme and intended not to arouse prurient or lascivious thoughts but
revulsions against the perpetrators and pity for the victim.”

In Director General, Directorate General of Doordarshan & Others v. Anand Patwardhan and
Another,49 where an independent filmmaker challenged Doordarshan‟s refusal to telecast his
documentary titled “Father, Son and Holy War”. The documentary portrayed issues such as
patriarchy, violence, fundamentalism, suppression of women, etc.50 The Supreme Court ordered
there constitution of the Select Committee according to the appropriate rules. There constituted
committee held that the film was suitable for viewing. Doordarshan then constituted a larger
committee, which gave the same findings.

Following this, Prasar Bharati after previewing the film opined that it contained scenes that could
promote violence, and that its telecast would violate Doordarshan‟s policy of not screening „A‟
certified movies. Patwardhan then filed a contempt petition before the Bombay High Court. The
Court ordered Doordarshan to exhibit the film within twelve weeks. This decision was
challenged in the Supreme Court.

After hearing the arguments from both the sides, the Court held that there are scenes of violence
and social injustices but the film, by no stretch of the imagination, can be said to subscribe to any
of that. The depiction is meant to convey that such social evils are evil. There cannot be any
apprehension that it is likely to affect public order or incite commission of an offence. The Court

49
(1996) 8SCC 433.; The Bench was consisted of A. R. Lakshmanan and Lokeshwar Singh Panta, JJ.
50
Part I of the film was given a 'U' Certificate and Part II was given an 'A' Certificate by the Censor Board. In
response to a writ petition filed by Doordarshan, the Bombay High Court asked the television network to take a
decision within six months. Doordarshan then constituted a Select Committee, which said that the film should not be
screened since it would have an adverse impact on the minds of viewers. Patwardhan then approached a Division
Bench of the Bombay High Court, which ordered Doordarshan to telecast the film in an evening slot. This order was
challenged in the Supreme Court.
Page 18 of 28
 nd
observed that the documentary was given two awards at the 42 National Film Festival in 1995,

conducted by the Ministry of Information and Broadcasting, Government of India, after being
adjudged best investigative film and best film on social issues. It was, therefore, highly irrational
and incorrect to say that such a film promotes violence, that its production quality was
unsatisfactory and that it had no specific message to convey. The Court also held that a
documentary couldn‟t be denied exhibition on Doordarshan simply on account of its "A" or
"UA" certification.

Responding to Doordarshan‟s objection to a scene in the documentary where a person is seen

selling aphrodisiacs on the road and, while doing so, makes certain remarks about male
sexuality, the Court held that a film must be judged from an average, healthy and common sense
point of view. “If this said yardstick is applied and the film is judged in its entirety and keeping
in view the manner in which the filmmaker has handled the theme, it is impossible to agree that
those scenes are offended by vulgarity and obscenity (sic).”

In Pratibha Naitthani v. Union of India,51 Pratibha Naithani, a teacher in St. Xavier‟s College,
Mumbai, aggrieved by the telecast of “adult and obscene films shown by the electronic media”
and “obscene photographs” in the print media, filed a writ petition before the Bombay High
Court.

The main question before the Court was whether the cable operators/cable service providers are
free to telecast CBFC certified adult films despite the restriction in Clause (o) of Rule 6(1) of the
Cinematograph Act Rules that no programme shall be carried on the cable service which is
“unsuitable for unrestricted public exhibition.”

The respondents argued that every adult viewer has the fundamental right to view programmes
with adult content on TV through cable services and that people who do not like this cannot
impose policing through the State. They submitted that Sub-rule (5) of the Cinematograph Act
Rules provides that a programme unsuitable for children shall not be carried at times when large
number of children are viewing and that is how Clause (o) of Rule 6(1), which prohibits
programmes meant for unrestricted viewing, should be read.

The Court held that the adult viewer's right to view films with adult content is not taken away by
Clause (o) of Rule 6(1). “Such a viewer can always view Adult certified films in cinema halls. He

51
AIR 2006 (Bom.) 259.; The Bench was consisted of R. M. Lodha and D. G. Karnik, JJ.
Page 19 of 28
can also view such films on his private TV set by means of DVD, VCD or such other mode for
which no restriction exists in law.” The Court held that the restriction upon cable operators and
cable service providers that no programme should be transmitted that is not suitable for
unrestricted public exhibition did not violate their right to carry on trade and business. The Court
further held that only films sanctioned by the CBFC, under the Cinematograph Act and Rules, as
suitable for „unrestricted public exhibition‟ could be telecast or transmitted on Cable TV.

In Ajay Goswami v. Union of India & Others52 the petitioner's grievance was that the freedom
of speech and expression enjoyed by the newspaper industry is not balanced with the protection
of children from harmful and disturbing materials. The petitioner prayed the Court to direct the
authorities to strike a reasonable balance between the fundamental right of freedom of speech
and expression enjoyed by the press and the duty of the Government to protect vulnerable minors
from abuse, exploitation and the harmful effects of such expression. The petitioner requested the
Court to direct the concerned authorities to provide for classification or introduction of a
regulatory system for facilitating a climate of reciprocal tolerance, which could include: (i) an
acceptance of other people's rights to express and receive certain ideas and actions, and (ii)
accepting that people have the right not to be exposed against their will to another person's
expression of ideas and actions.

The issues before the Court were:

(i) Is the material in newspapers really harmful for minors?

(ii) Do minors have any independent right enforceable under Article 32 of the Constitution?
(iii)Maintainability of Petition in view of the above facts and circumstances and the legal
proposition.

The Court held that in view of the availability of sufficient safeguards in terms of various laws,
rules, regulations and norms to protect society in general and children in particular from obscene
and prurient contents, the petitioner‟s writ was not maintainable. It stated that any steps to ban
publication of certain news pieces or pictures would fetter the independence of the free press,
which is one of the hallmarks of our democratic setup.

The Court examined the test of obscenity very carefully through existing Indian case law and
case law from other jurisdictions. It held that an imposition of a blanket ban on the publication of

52
AIR 2007 SC 49; The Bench was consisted of A. R. Lakshmanan and Tarun Chatterjee, JJ.
Page 20 of 28
certain photographs and news items, etc., would lead to a situation where the newspaper will be
publishing material catering only to children and adolescents, thereby depriving adults of their
share of entertainment of a kind permissible under accepted norms of decency in any society.
The court also held 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
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,
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.”

The Court while dismissing the petition, nevertheless observed that the Central Government
should seriously look into, and make appropriate amendments to, the provisions of Section 14(1)
of the Press Council Act, 1978 in accordance with the request made by the Press Council of India
to arm it with the authority to recommend official de-recognition of newspapers for government
advertisements or for an appropriate period or withdrawal of the accreditation granted to a
journalist to facilitate functioning and also to claim concessions in railways, etc.

In Maqbool Fida Husain v. Raj Kumar Pandey,53 M. F. Husain painted an art work of a nude
lady in grief without giving it any title. The untitled painting was sold to a private collector in
2004. In 2006 it was included as part of an online charity auction for victims of the Kashmir
earthquake under the name „Bharat Mata‟. Husain had no role or involvement in this auction.54
The main issues before the court were:

(i) Whether Husain‟s portrayal of „Bharat Mata‟ should be considered obscene? and
(ii) Whether he should be held criminally liable under Section 292 of the Indian Penal Code,
1860?

The petitioner, M. F. Husain, argued that, on the face of it, the painting contained no material
that could be held to be obscene in terms of the legal definition of obscenity. He argued that

53
2008 Cr. L. J. 4107.
54
There were large-scale protests against the painting, which appeared in an advertisement for the auction. Husain
had to tender an apology to the public for the same. This was the context in which several complaints were filed in
different parts of the country alleging various offences against MF Husain on the account of the said painting. Arrest
warrants and summons to appear in court were issued against him in these places. Husain approached the Supreme
Court for the consolidation of all the complaints. The apex court consented and the matter was consolidated and
transferred to the court of Ld. ACMM, Delhi, by way of transfer petitions. This court issued summons against the
petitioner, MF Husain, for crimes under Sections 292, 294 and 298. A revision petition against this was filed in the
High Court of Delhi.
Page 21 of 28
there was nothing in the painting that could be interpreted to be lascivious, or appealing to the
prurient interest, or tending to deprave or corrupt persons likely to view the painting, and that its
identity was irrelevant to the alleged obscenity of the painting. He further submitted that despite
an unconditional apology there was an abuse of processes to harass him.

The counsel for the respondents contended:

1. That the petitioner‟s previous conduct had led to communal disharmony and the
tendering of an apology by him, but no further action had been taken.
2. That the depiction of Bharat Mata as a nude, with different parts of the body representing
different states, was obscene.
3. That the painting depicts the national emblem in an objectionable manner and that the
petitioner had the deliberate intention of wounding the religious feelings of the
complainant/respondent (Section 298 of the IPC).

The Court held that, “on the face of it, the painting was neither lascivious nor likely to appeal to
the prurient interest- i.e. the painting would not arouse sexual interest in a perverted person and
would not morally corrupt or debase a person viewing it.”

The Court ruled that nudity alone cannot said to be obscene. According to the judgment, “…the
aesthetic touch to the painting dwarfs the so-called obscenity in the form of nudity and renders it
so picayune and insignificant that the nudity in the painting can easily be overlooked.” The nude
woman was not shown in any peculiar kind of posture, nor were her surroundings painted so as
to arouse sexual feelings or lust. The placement of the Ashoka Chakra was also not on any
particular part of the body of the woman that could be deemed to show disrespect to the national
emblem.

The Court pointed out that: “...the literature of India, both religious and secular, is full of sexual
allusions, sexual symbolisms and passages of such frank eroticism the likes of which are not to
be found elsewhere in world literature.” It went on to state that “While an artist should have
creative freedom, he is not free to do anything he wants. The line which needs to be drawn is
between art as an expression of beauty and art as an expression of an ill mind intoxicated with a
vulgar manifestation of counter-culture where the latter needs to be kept away from a civilian
society.” The Court also said, “There should be freedom for the thought we hate. Freedom of
speech has no meaning if there is no freedom after speech. The reality of democracy is to be

Page 22 of 28
measured by the extent of freedom and accommodation it extends.”

The court observed that magistrates should scrutinize each case in order to prevent vexatious and
frivolous cases from being filed. Only in appropriate cases should a private complaint case
proceed further without a prior investigation by the police- a magistrate should postpone the
issue of process against the accused in cases where the accused resides at a place beyond the area
in which he exercises jurisdiction. He must examine the nature of the allegations made in the
complaint and the evidence- both oral and documentary- in support thereof and even question the
complainant and witnesses himself to find out whether or not there is a prima facie cases.55

In S. Khushboo v. Kanniammal & Anr.,56 India Today (a fortnightly news magazine) in

September 2005 conducted a survey on the issue of the sexual habits of people residing in the
bigger cities of India. As a part of exercise, the magazine published the views of the several
individuals including those of the appellant. The appellant (a well-known actress) expressed her
personal opinion wherein she noted the increasing incidence of pre-marital sex in the context of
live-in-relationships and called for its societal acceptance. She also in her expressed opinion
qualified her remarks by observing that girls should take adequate precautions to prevent
unwanted pregnancies and the transmission of venereal diseases.

The issues involved in the case before the Supreme Court was:

(i) Whether the statement of the appellant is protected under Article 19(1)(a) of the
Constitution or not?
(ii) Whether the criminal proceedings against the appellant be quashed or not?

The Supreme Court admitting the appeal ordered the quashing of proceedings against the
appellant and observed:

“even though the constitutional freedom of speech and expression is not absolute and can be
subject to reasonable restrictions on the grounds such as „decency and morality‟ among others,
we must stress on the need to tolerate unpopular views in the socio-cultural space. The framers

54
The Court also held that “There are very few people with a gift to think out of the box and seize opportunities, and
therefore such people‟s thoughts should not be curtailed by the age-old moral sanctions of a particular section of
society having oblique or collateral motives who express their dissent at every drop of a hat.” It further
recommended that the government think of appropriate legislation to make sure that artists and other creative
persons are not made to run from pillar to post to defend themselves against criminal proceedings initiated by
oversensitive or motivated persons for publicity.
56
AIR 2010 SC 3196.
Page 23 of 28
of our Constitution recognized 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 pre-condition for meaningful governance in the political sense, we must also
promote a culture of open dialogue when it comes to societal attitudes. Admittedly, the
appellant‟s remarks did provoke a controversy since the acceptance of pre-marital 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.”

The Court further observed: “Even in the societal mainstream, there are significant number of
people who see nothing wrong in engaging in pre-marital sex. Notions of social morality are
inherently subjective and the criminal law cannot be used as a means to unduly interference with
the domain of personal autonomy. Morality and criminality are not co-extensive.”

In Gita Ram v. State of Himachal Pradesh,57 the patrolling party acting on the secret
information raided the premises occupied by the appellant in Dhawan Video Hall, Sarai Road
and found that the appellant were showing the blue films to young men and there were several
other minors who were watching the porn movies in the premises of the appellant. The patrolling
team seized the CD Players of two movies „Jawani Ka Khel‟ and „Size Matters‟. Several nude
and vulgar posters were also found from the possession of appellant. At the trial, the Sub-
Divisional Magistrate found the appellant guilty of obscenity and sentenced him to six month
imprisonment and fine of 1000 rupees. Aggrieved by the order of Sub-Divisional Magistrate, the
appellant preferred an appeal before Additional District Judge. The Additional District Judge
reduced the punishment to one month from six months. Again the appellant preferred an appeal
before the High Court against the conviction order but the High Court rejected his appeal. Being
aggrieved, the appellant preferred an appeal by way of Special Leave Petition before the
Honourable Supreme Court.

The issue before the Court was whether the conviction of the appellant is liable to be set aside on
the ground of good conduct or not?

The Supreme Court rejected the appeal and observed: “the intention of the Legislature under

57
AIR 2013 SC 641.
Page 24 of 28
section 292 of the Indian Penal Code, 1860 is to deal with these types of offences which corrupt
the mind of the people to whom the objectionable things can easily reach and need not be
emphasized that corrupting influence is more likely to be upon young generations who has got to
be protected from being an easy prey.”58

The recent land mark judgment dealing with the issue of obscenity is Aveek Sarkar v. State of
West Bengal.59 In this case, a German magazine named “STERN” having worldwide circulation
published an article with a picture of Boris Becker,60 posing nude with his dark-skinned fiancée
by name Barbara Feltus, a German film actress (where he placed the hand upon the breast of
Miss Barbara), which was photographed by none other than her father. The article states that, in
an interview, both Boris Becker and Barbaba Feltus spoke freely about their engagement, their
lives and future plans and the message they wanted to convey to the people at large, for posing to
such a photograph. The article picturises Boris Becker as a strident protester of the pernicious
practice of “Apartheid”. Further, it was stated that the purpose of the photograph was also to
signify that “love champions over hatred”. The article along with the photograph was reproduced
in an Indian magazine “Sports World” as cover story in its issue 15 dated 5th May 1993 with the
caption “Posing nude dropping out of tournaments, battling Racism in Germany. Boris Becker
explains his recent approach to life” – Boris Becker Unmasked.”

“Anandabazar Patrika”, a newspaper having wide circulation in Kolkata, also published in the
second page of the newspaper the above-mentioned photograph as well as the article on
06.05.1993, as appeared in the Sports World magazine. A practicing lawyer filed a case under
Section 292 of the IPC, against the Appellants, the Editor and the Publisher and Printer of the
newspaper as well as against the Editor of the Sports World before the Sub-Divisional Magistrate
at Alipore alleging that the photograph will corrupt and deprave the minds of the young, both
children and youth of this country and were against the cultural and moral values of society. The
complainant also stated that unless such types of obscene photographs are censured and banned
and accused persons are punished, the dignity and honour of our womanhood would be in
jeopardy. He further alleged that both the publishing houses had published the photograph
particularly with the intent of increasing sale. He further contended that the accused should also

58
AIR 2013 SC 641.
59
Aveek Sarkar v. State of West Bengal, AIR 2014 SC 1495; The judgement was penned down by Justice K. S.
Radhakrishnan with Justice A. K. Sikri.
60
A world renowned Tennis player.
Page 25 of 28
be prosecuted under Section 461 of the Indecent Representation of Women (Prohibition) Act,
1986 since the photograph prima facie gives a sexual titillation and its impact is moral
degradation and would also encourage the people to commit sexual offences. The respondents
claimed that since the magazine was not banned in India and was never considered obscene and
taken the plea of Section 7962 of the IPC. Since there was no action taken against the sale of
“STERN” in India, the respondents reasonably assume that the reproduction of the photograph
was valid in the eyes of law.63

The Supreme Court found the appellants innocent of the charges levied against them under
Section 292 of IPC and Section 4 of the Indecent representation of Women (Prohibition) Act,
1986 and overturned the decision of the lower court. The appellant were also given the defence
of Section 79 of IPC. The Supreme Court held that “the question of obscenity must be seen in the
context in which the photograph appears and the message it wants to convey. The Court further
said that the correct test to determine obscenity would be „Community Standards Test‟ and not
Hicklin Test.”64

61
Section 4 of the Indecent Representation of Women (Prohibition) Act, 1986 reads as: Prohibition of publication
or sending by post of books, pamphlets, etc., containing indecent representation of women.- No person shall produce
or cause to be produced, sell, let to hire, distribute, circulate or send by post any book, pamphlet, paper, slide, film,
writing, drawing, painting, photograph, representation or figure which contains indecent representation of women in
any form:
Provided that nothing in this section shall apply to-
(a) any book, pamphlet, paper, slide, film, writing, drawing, painting, photograph, 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, slide, film writing, drawing, painting photograph, representation or
figure is i the interest of science, literature, art, or learning or other objects of general concern: or
(ii) which is kept or used bona fide for religious purposes;
(b) any representation sculptured, engraved, painted or otherwise represented on or in-
(i) any ancient monument within the meaning of the Ancient Monument and Archaeological Sites and
Remains Act 1958(24 of 1958); or
(ii) any temple, or on any car used for the conveyance or idols, or kept or used for any religious
purpose;
(c) any film in respect of which the provisions of Part II of the Cinematograph Act, 1952(37 of 1952)
will be applicable.
62
Section 79 of the Indian Penal Code, 1860 reads as: “Act done by a person justified, or by mistake of fact believing
himself justified by law.- Nothing is an offence which is done by any person who is justified by law, or who by
reason of a mistake of fact and not by reason of a mistake of law in good faith, believes himself to be justified by
law, in doing it.”
63
However, the Magistrate held that accused persons to be examined under Section 251 of Cr. P.C. and ordered that
they would be put to face the trial for the offence punishable under Section 292 of IPC alternatively under Section 4
of the Indecent Representation of Women (Prohibition) Act, 1986 adding that it would be too early to give them the
benefit of Section 79. The respondents then appealed before the High Court of Calcutta under Section 482 of the
Code of Criminal Procedure, 1973 for quashing the proceedings pending before the Alipore Magistrate Court. The
High Court refused to quash the proceedings against which an appeal was preferred before the Supreme Court.
64
On application of Hicklin Test, a publication can be judged for obscenity based on isolated passages of a work
considered out of context. Works can be judged by their apparent influence or not susceptible readers, such as
Page 26 of 28
The Court observed that Section 292 of the IPC requires any material which is in question to be
„taken as a whole‟. When the matter taken as a whole, if it is lascivious and tends to deprave and
corrupt person who read, see or hear the matter contained. The Hicklin test is in contravention of
IPC. Further it observed, the term „obscene‟ and „obscenity‟ have not been defined in the IPC
which makes the application of the community standards test more suitable to India. The
community standards test is more adaptive to any changing society.

The Court held that the photograph has no tendency to deprave and corrupt minds of people in
whose hands magazine would fall. Further it went on to say that the message which the article
conveys is to eradicate the evil of racism and apartheid in the society and to promote love and
marriage between white skinned man and a black skinned woman. The Supreme Court observed
that the decisions in such cases must be taken keeping in mind the contemporary national
standards and not that of a group of sensitive persons. If the society accepts the portrayal of
sexual activities on the silver screen, the Court must not strike it down for the sake of a few
sensitive persons. If it is acceptable to the society in general, the court must accept it too.
Materials may have sometimes contents which are not acceptable to the society. In such
scenarios, one needs to look into the bigger picture, the message being conveyed through the
otherwise obscene material. The message should be helpful and beneficial to the society. It is
important to see the full picture instead of squinting eyes at certain explicit scenes.

V
Conclusion

The right to “freedom of speech and expression” is one of the most basic inalienable rights
guaranteed by the Constitution of India. This right is considered as the basis of liberty. But this
right is not absolute as the Constitution imposes limitation on the same under Article 19(2).
Decency and Morality can be the basis of restriction when it comes to the obscenity issue. The
Obscenity is not a legal term. The concept of obscenity is not same everywhere, the concept of it
varies from place to place and time to time. It is the most difficult word to define astutely and has
been the biggest task before the judiciary to define the same. The Indian judiciary has neither
evolved nor developed any new approach of its own towards obscenity. The judicial approach to
define it on case to case basis has given an idea of this concept. The Hicklin test had been the

children or weak-minded adults. But in Roth v. United States, the Court observed that sex and obscenity are not to be
seen as synonyms. It was held that only those sex-related materials which had the tendency of exciting lustful
thoughts were found to be obscene and the same has to be judged from the point of view of an average person by
applying contemporary community standards.
Page 27 of 28
 only test in the hands of Indian judiciary for a long time to deal with the offence of obscenity
which was applied since Ranjit D. Udeshi Case65 but in Aveek Sarkar v. State of West Bengal,66
an approach shift has been witnessed in the Indian judiciary by rejecting British Test and
adopting an American Test. It discarded the Hicklin test as laid down in R. v. Hicklin and moved
to „Community Standard Test‟67 as laid down by the American Court in Roth v. United States.68

In Aveek Sarkar case, the Court used two terms; one is „community tolerance‟, and the second
one was „community standard‟. What it still appears that these two words are ambiguous in the
sense, the tolerance level of two individuals may not always be same and it is the individuals
who forms a unit called as „society‟. The same is in the case of the word „standard‟. These two
words need a judicial meaning as these two are no less than the word „obscenity‟ which has no
clear meaning. India is the best example of the notion „unity in diversity‟, where the language,
culture, and customs etc. changes at every three kilometers. So, it seems that it is quiet difficult
to give a specific or definite meaning to these two words. But in order to resolve the ambiguity,
the Court must explain and give a meaning of these words.

The society is fast changing. The decisions must be taken keeping in mind the contemporary
national standards and not that of a group of sensitive persons. If the society accepts the portrayal
of sexual activities on the silver screen, the Court must not strike it down for the sake of a few
sensitive persons. If it is acceptable to the society in general, the court must accept it too. It is
important to see the bigger picture and the „central theme of the work‟ instead of squinting eyes
at certain explicit scenes and contents only. The focus should be on the central theme of the
work; the whole work should be taken into consideration rather than the isolated passages, then
only one can reach to the idea embedded beneath those words, contents or pictures and the
message it tries to convey.

65
Ranjit D. Udeshi v. State of Maharashtra, AIR 1965 SC 881., the appellants were convicted for keeping copies of
“Lady Chatterley‟s Lover” in India but in England the jury acquitted the publishers as the publication did not fall
foul of obscenity test.
66
AIR 2014 SC 1495.
67
It also used the term „Community Tolerance Test‟ in the judgment.
68
354 U.S. 476 (1957).
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