THE NATIONAL LAW INSTITUTE UNIVERSITY , BHOPAL

PROJECT TOPIC: -

JUDICIAL CONTRIBUTION IN THE FIELD OF OBSCENITY

SUBMITTED BY- SUBMITTED TO-

ABHIJEET KASHYAP KULDEEP KAUR

2018BALLB. (HONORS)01 CONSTITUTION- II

CERTIFICATE

This is to certify that the research paper titled “Mass Media’ versus ‘Obscenity’: The Judicial
Contribution “ has been prepared and submitted by ABHIJEET KASHYAP ,who is currently
pursuing his BA LLB .(Hons.)at National Law Institute University ,Bhopal in fulfilment of
constitution II course .It is also certified this is original research report and this paper has not
been submitted to any other university ,nor published in any journal

Date

-
signature of the student ..................................

signature of the research supervisor ................................

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ACKNOWLEDGEMENT

This paper has been made possible by the unconditional support of many people . I would
like to acknowledge and extent my heartfelt gratitude to director (DR.) v. Vijaykumar and
Miss Kuldeep Kaur for guiding me throughout the development of this paper into a coherent
whole by providing helpful insight and sharing their brilliant expertise .I would also like to
thank the official of the Gyan mandir library ,NLIU for helping me to find the appropriate
research material for this study.

I am deep indebted to my parent ,senior and friend for all the moral support and
encouragement.

-Abhijeet Kashyap

2018B.A.LL.B.01

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Table of Contents

CERTIFICATE ......................................................................................................................... 2

ACKNOWLEDGEMENT ......................................................................................................... 3

SYNOPSIS................................................................................................................................. 5

INTRODUCTION:............................................................................................................... 5

STATEMENT OF PROBLEM:.......................................................................................... 5

OBJECTIVES OF STUDY: ................................................................................................ 5

METHOD OF STUDY: ....................................................................................................... 5

CHAPTERISATION: .......................................................................................................... 5

REVIEW OF LITERATURE ............................................................................................. 6

Introduction............................................................................................................................... 7

Concept of Obscenity ................................................................................................................ 7

The Test of „Obscenity‟ by Statute ........................................................................................ 10

The Judicial Approach............................................................................................................ 12

Judicial Approach in the United Kingdom: ..................................................................... 12

Judicial Approach in the United States of America: ...................................................... 14

Judicial Approach in India: .............................................................................................. 16

CONCLUSION........................................................................................................................ 23

BIBLIOGRAPHY.................................................................................................................... 25

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SYNOPSIS

INTRODUCTION:

The „basic law of the land‟ confers to its citizens the most basic inalienable right 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) 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.”

STATEMENT OF PROBLEM:

To study the effects of mass media on the obscenity laws in India and around the world.

OBJECTIVES OF STUDY:

1. To critically analyse the role of mass media in propagating obscenity.

2. To obtain a deep understanding of the judicial scrutiny of the laws dealings with
obscenity

METHOD OF STUDY:

This project is largely based on the doctrinal method of data collection.

CHAPTERISATION:

1. Introduction
2. Concept of Obscenity
3. The Test of Obscenity by Statute
4. The Judicial Approach
5. Judicial Approach in the United Kingdom

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 6. Judicial Approach in the United States of America
7. Judicial Approach in India
8. CONCLUSION

REVIEW OF LITERATURE

1. Subhradipta Sarkar, Right to Free Speech in a Censored Democracy, Heinonline, 7 U.

Denv. Sports & Ent. L.J. 62 (2009): Films in India have been censored on the
grounds of obscenity, sex and violence; but this paper does not intend to venture into
those areas, rather it explores elsewhere where films have been banned or targeted in the
name of maintaining public order; respecting beliefs, sentiments and traditions; or for
criticizing the State on certain issues.

2. Boyd, B. (1972). Film Censorship in India ,Journal of the Indian Law Institute: This work
deals specifically with whether the censorship imposed on films in India violate the
freedom of speech and expression. In this article, the author throws light on the extent to
which films may be approved as content that is caterable to the audience and may not be
considered against public order or morality, under which he speaks of a series of things
ranging from content promoting hatred against the government to obscenity, and finally,
in his opinion puts forward the need for a fixed threshold that can be amended from time
to time, to assess whether the content in a film violates public order or not.

3. Danald P. Kommers, John E. Finn, Gary J. Jacobson, American Constitutional Law,

Essays, Cases and Comparative Notes, Rowman & Littlefield Publishers, Inc., 3rd
Ed.: This book contains multiple essays which compare the constitutions of different
democratic countries, and bring out the lacunae in one by highlighting the manner in
which the constitution of the other country fills in that particular lacunae. One of the
article deals with the freedom of speech and expression and the extent to which it may be
granted for portrayal of facts and characters in films. By comparing the extent of
stringency of censorship in India, UK and USA, the authors put forward the need to
determine a fixed threshold, beyond which censorship can be imposed. This way, neither
the right shall be denied, nor shall there be an infringement of public order and morality.

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Introduction

The „basic law of the land‟ confers to its citizens the most basic inalienable right 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) 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.”

The right conferred by Article 19(1) (a) is not absolute. 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 „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.

Concept of Obscenity
The word „obscenity‟ is derived from the Latin word „obscaena‟ (offstage). 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

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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.1 “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 impure emotions and desires. 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. Hicklin2, 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 Maharashtra3 without any attempt for a
definition of obscenity.

In State of U. P. v. Thakur Prasad4 „obscenity‟ was defined as: “the word obscene though
not clearly defined in the Indian Penal Code, 18605 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,6 it was observed by the Supreme Court of India
that the “tendency of the matter is to deprave and corrupt those whose minds are

1
The Law Lexicon of British India (M.L.J.), pp. 895-895, 1940

2
R v. Hicklin, 3 QB 360, (1868)
3
Ranjit D. Udeshi v. State of Maharashtra, AIR SC 881, 1965

4
State of U. P. v. Thakur Prasad, AIR All 49, 1959

5
Act 45 of 1860.
6
Chandrakanth Kalyandas Kokodhar, AIR 1970 SC 1390.

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open to 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 Mitra7 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.”

In Aveek Sarkar v. State of West Bengal8 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

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

7
Samaresh Bose v. Amal Mitra, AIR 1986 SC 967.

8
Aveek Sarkar v. State of West Bengal, AIR 2014 SC 1495

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skinned man and a black skinned woman.

In Roth v. United States,9 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, The Young Persons
(Harmful Publication) Act, 1956, etc.

Harry M. Color10 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.

The Test of „Obscenity‟ by Statute

The term „obscene‟ is retained by of the Obscene Publication Act, 1959 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

9
Roth v. United States 354 U. S. 476 (1957);
10
Obscenity and Public Morality‟, p. 210.

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likely having regard to all relevant circumstances, to read, see or hear the matter contained
or embodied in

In Regina v. Hicklin11 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,12 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
(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. Anderson13 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.

11
Regina v. Hicklin, 1868) L.R. Q.B. 360.
12
354 U.S. 476 (1957).
13
R v. Anderson, (1972) 1 Q.B. 304, 311-312.

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The Supreme Court of India in Ranjit D. Udeshi v. State of Maharashtra14 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.

The Judicial Approach

The judiciary for a long time followed the British approach and now it clearly discarded it
and 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.,15 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‟

14
Ranjit D. Udeshi v. State of Maharashtra, AIR 1965 SC 881.
15
[1916] Crime L. R. 176.

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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. Whyte16 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 R. vs. Hist17 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.

In R. v. Peacock18 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

16
[1972 AC 849].
17
[2001] 1 Cr. App. R (S) 44.
18
[2012] EWCA Crim. 398.

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and stresses that 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
determine whether matter is obscene in the case of Roth v. United States, the court
determined that, as a matter of history and function, obscenity is “utterly without redeeming

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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,19
(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,20 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,21 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.

19
413 U.S. 15, 24-25 (1973).

20
165 U.S. 486 (1897).
21
394 U.S. 557 (1969).

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The film

“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.”

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”.

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

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

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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.,22 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.

The issues before the court were:

(i) Whether Section 5-B of the Cinematograph Act, 1952 which authorized the Central
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).
22
AIR 1971 SC 481

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The Court, relying on the Khosla Committee Report, 1968 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.”

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,23 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?

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
Vs. 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

23
AIR 1980 SC 258

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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 Bobby Art International & Others. v. Om Pal Singh Hoon & Other24 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 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,25where 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. 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.

24
AIR 1996 SC 1846
25
(1996) 8SCC 433

19 | P a g e
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
nd
of an offence. The Court 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 Ajay Goswami v. Union of India & Others26the 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
26
AIR 2007 SC 49

20 | P a g e
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 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.

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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 be prosecuted under Section 4 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 79 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.

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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.”

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.

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

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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

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 Case but in Aveek Sarkar v. State of West Bengal,
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‟ as laid down by the American Court in Roth v. United
States.27

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

27
354 U.S. 476 (1957).

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BIBLIOGRAPHY

Books

1. Hormasji Maneckji Seervai , Constitutional Law of India: A Critical Commentary, 1967

2. V.N. Shukla’s, Constitution of India, Mahendra Pal Singh, 1982

3. B.N. Rau, Ed. B. Shiva Rao, India’s Constitution in the Making, Calcutta, 1st Edition
(1960), Orient Longman

4. Chugdar, P.L., Indian Princes under British Protection

5. D.D. Basu, Introduction to the Constitution of India, New Delhi, 22nd Edition, Lexis
Nexis

6. Granville Austin, The Indian Constitution Cornerstone of a Nation, New Delhi, 32nd
Reprint, Oxford University Press

7. M. Laxmikanth, Indian Polity, Chennai, 5th Edition, Mc Graw Hill Education

8. M.P. Jain, Indian Constitutional Law, New Delhi, 8th Edition, Lexis Nexis

Reports

1. Administrative Reforms Commission Report Vol. 1, Sept. 1967, pp. 272-273

2. Press Release of Inter-State Council (ISC), Ministry of Home Affairs, 13, March, 2003.

3. National Commission to review the working of the constitution (NCRWC) - A

Consultation Paper on the Institution of Governor under the Constitution, Vigyan
Bhawan, Annexure, New Delhi, May 11,2001, pp. 13-16

4. Reports and Recommendations of Commission on Center-State Relations, (Sarkaria

Commission), 1988, Part-1, Chapter- V, pp. 135-137

5. Administrative Reforms Commission Report Vol. 1, Sept. 1967, pp. 272-273

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