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Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1179 OF 2010

Devidas Ramachandra Tuljapurkar ... Appellant

                               Versus

State of Maharashtra & Ors. ...Respondents

J U D G M E N T

Dipak Misra, J.

The Controversy

The seminal issue that spiralled in the course of hearing

of this appeal centres around the question framed vide order

dated 18.2.2015, for this Court thought it apposite to answer,

whether the poem titled “Gandhi Mala Bhetala” (‘I met Gandhi’)

in the magazine named the ‘Bulletin’ which was published, in

July-August, 1994 issue, meant for private circulation amongst

the members of All India Bank Association Union, could in the

ultimate eventuate give rise to framing of charge under Section

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292 IPC against the author, the publisher and the printer.  The

question framed reads thus:-

“Regard  being  had  to  the  importance  of  the matter, we had sought the assistance of Mr. Fali S. Nariman, learned senior counsel, to assist the Court, and he has gladly rendered.  At the time of hearing,  we  have  asked  the  learned  senior counsel,  learned  Amicus  Curiae,  to  assist  the Court  as  regards  the  proposition  whether  in  a write-up or a poem, keeping in view the concept and conception of poetic license and the liberty of perception  and  expression,  use  the  name  of  a historically  respected  personality  by  way  of allusion or symbol is permissible.”

Mr.  Gopal  Subramanium,  learned  senior  counsel,

appearing for the appellant, in his written note of submissions,

has segregated the said question into five parts,  namely,  (a)

whether there could be a reference to a historically respected

personality; (b) could that reference be by way of allusion or

symbol; (c) could that allusion be resorted to in a write-up or a

poem; (d) whether the conception and concept of poetic license

permits adopting an allusion; and (e) whether any of the above

could involve ascribing words or acts to a historically reputed

personality which could appear obscene to a reader.  He has

urged  with  solemn vehemence  that  when the  author  is  not

represented  before  the  Court,  adjudication  on  an  important

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issue which fundamentally relates to freedom of thought and

expression, would be inappropriate and a poem or a write-up is

indeed a part of free speech and expression, as perceived under

Article  19(1)(a)  of  the  Constitution  and  that  apart  the

expression  “poetic  licence”  is  neither  a  concept  nor  a

conception  because  the  idea  of  a  poetic  freedom  is  a

guaranteed  and  an  enforceable  fundamental  right  and  this

Court  should  not  detract  and  convert  it  into  a  permissive

licence.   Additionally,  learned senior  counsel  has  contended

that quintessential liberty of perception and expression when

placed in juxtaposition with “poetic licence”, is inapposite since

the  expression  “permissible”  sounds  a  discordant  note  with

“liberty  of  perception  and  expression”,  a  sacrosanct

fundamental right, integral to human dignity, thought, feeling,

behaviour, expression and all jural concepts of human freedom

guaranteed  not  only  under  the  Constitution  but  even

recognised  under  the  International  Covenants,  for  they  can

never be placed in the company or association of expressions

such as “license” or “permissibility”.   Emphasising on the said

facet, submitted Mr. Subramanium that the Constitution has

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liberated the citizens from ‘license’ and ‘permissibility’, which

are  expressions  of  disempowerment  and  the  entire  freedom

struggle  was  centered  around  the  concept  of  empowerment.

There is  a  suggestion in the written note  of  submissions to

place the matter before a Bench of five Judges as enshrined

under Article 145(3) of the Constitution.  In spite of the said

submission, learned senior counsel, we must appreciably state,

has copiously dealt with the issues that have emerged from the

question, in his written note of submissions.   

Mr. Fali S. Nariman, learned senior counsel and amicus

curiae  supported  the  phraseology  in  the  question  with

immense  intellectual  vigour,  patience,  perseverance  and

endeavour and submitted that the issue that this Court has

thought  of  addressing  is  absolutely  invulnerable  and

unalterable  as  the  Constitution  of  India  does  not  recognise

absolute freedom and Article 19(2) of the Constitution regulates

the same and Section 292 IPC being a provision which is saved

by  Article  19(2),  the  presence  or  absence  of  the  author  is

immaterial; what is to be seen is whether the poem prima facie

exhibits  obscenity,  especially,  in  the  context  of  Mahatma

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Gandhi,  the  “Father  of  the  Nation”,  as  the  identity  of  the

historically respected personality is absolutely clear and there

is  no  scintilla  of  doubt  in  the  mind  of  any  average  reader.

Learned  amicus  curiae  would  submit  that  the  question

deserves to be dealt with and answered in proper perspective.    

Clarification of the question framed

2. We are obligated to clarify the position.  It is apt to state

here  the  question  framed  by  us  has  to  be  contextually

understood.  The question was framed in the factual matrix of

the  case.   The  proposition  presented  is  that  despite  all  the

poetic licence and liberty of perception and expression, whether

‘poem’ or ‘write-up’ can use the name of a historically respected

personality  by  way  of  an  allusion  or  symbol  in  an  obscene

manner.  “Historically respected personality” was used in the

backdrop of the use of the name of Mahatma Gandhi. When

the name of such a respected personality is used as an allusion

or symbol, and language is revoltingly suggestive whether that

is  likely  to  come  within  the  perceived  ambit  and  sweep  of

Section 292 IPC,  whether  it  is  permissible.   We  shall  dwell

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upon this facet when we will discuss the poem in a prima facie

manner,  for  the  purpose  of  scrutinising  the  order  framing

charge;  and  we  shall  also  deal  with  the  submission  of  Mr.

Subramanium, which has been assiduously put forth by him

that the name of Gandhi has been used as a surrealistic voice

and  hence,  the  poet  is  entitled  to  use  the  language  as  a

medium  of  expression  in  the  poem.   We  do  not  intend  to

catalogue names of historically respected personalities as that

is not an issue in this case.  Here the case rests on the poem

titled “I met Gandhi”.  As far as the words “poetic license”, are

concerned,  it  can never remotely mean a license as used or

understood in the language of law.    There is no authority who

gives a license to a poet.  These are words from the realm of

literature.  The poet assumes his own freedom which is allowed

to him by the fundamental concept of  poetry.   He is free to

depart from the reality; fly away from grammar; walk in glory

by not following the systematic metres; coin words at his own

will;  use  archaic  words  to  convey  thoughts  or  attribute

meanings; hide ideas beyond myths which can be absolutely

unrealistic;  totally  pave  a  path  where  neither  rhyme  nor

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rhythm  prevail;  can  put  serious  ideas  in  satires,  ifferisms,

notorious repartees; take aid of analogies, metaphors, similes

in  his  own style,  compare  like  “life  with  sandwiches  that  is

consumed everyday”  or  “life  is  like  peeling  of  an  onion”,  or

“society is like a stew”; define ideas that can balloon into the

sky never to come down; cause violence to logic at  his  own

fancy; escape to the sphere of figurative truism; get engrossed

in  “universal  eye  for  resemblance”,  and one can do nothing

except writing a critical appreciation in his own manner and

according to  his understanding.  When the poet says “I saw

eternity yesterday night”, no reader would understand the term

‘eternity’  in  its  prosaic  sense.   The  Hamletian  question  has

many a layer; each is free to confer a meaning; be it traditional

or modern or individualistic.  No one can stop a dramatist or a

poet  or  a  writer  to  write  freely  expressing his  thoughts and

similarly  none  can  stop  the  critics  to  give  their  comments

whatever its worth.  One may concentrate on classical facets

and one may think at a metaphysical level or concentrate on

romanticism as is understood in the poems of Keats, Byron or

Shelley or one may dwell on the nature and write poems like

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William Wordsworth whose poems, say some, are as didactic.

One  may  also  venture  to  compose  like  Alexander  Pope  or

Dryden or get into individual modernism like Ezra Pound, T.S.

Eliot or Pablo Neruda.   That is fundamentally what is meant

by poetic license.  

3. We may slightly delve into the area in Sanskrit literature

that  gave immense emphasis  on aesthetics.   The concept  of

rasa  though  mentioned  in  the  Vedas  and  by  Valmiki  gets

consummate  expression  in  all  its  complexity  with  Bharata

when  he  introduces  it  to  explain  aesthetic  experience.

“Vibhavanubhav  vyabhichari  sanyogadrasnishpati”.   Bharata

discusses  in  detail  the  contributing  factors  like  vibhavas,

anubhavas,  vybhicharibhavas  and  sthayibhavas.   Dandin

emphasises on lucidity, sweetness, richness and grandeur to

basically constitute poetry and that is why it is said “Dandinha

Padlalityam”.   Some critics like Vamana, stressing on soul of

poetry  perceive  ‘riti’  as  “Ritiraatma  kavyasya”.   Some  also

subscribe  to  the  theory  that  ‘rasa’  gets  expressed  through

dhvani.  There are thinkers who compare writings of T.S. Eliot,

when he states poetic delineation of sentiments and feelings, to

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have the potentiality of being associated with the ‘element of

surprise’ which is essential to poetry, and there he is akin to

Indian  poeticians  like  Kuntaka  who  called  poetry  ‘vakrokti’

which he explains as “vaidagdhyabhangibhaniti” – a mode of

expression depending on the peculiar turn given to it by the

skill of the poet.  Some emphasise on “best words used in best

order” so that poem can attain style and elevation.  To put it

differently,  the  ‘poetic  licence’  can  have  individual  features,

deviate  from norm,  may  form collective  characteristics  or  it

may have a linguistic freedom wider than a syntax sentence

compass.  

4. We have emphasised on these facets as we are disposed to

think that the manner in which the learned senior counsel has

suggested the meaning of ‘poetic license’ is not apt.  Freedom of

writing is not in question.  That cannot be.  And we say so

without any fear of contradiction.  

5. In course of our judgment, we shall deal with the other

facets  that  have  been  so  assiduously  put  forth  by  Mr.

Subramanium and so indefatigably controverted by Mr. Fali S.

Nariman, learned amicus curiae.  

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The factual score

6. As  far  as  the  suggestion  given  for  placing  the  matter

before a five-Judge Bench, we are of the considered view that

there is no need for the same.  

7. Presently, we shall state the exposition of facts.  On the

basis of a complaint lodged by one V.V. Anaskar, a resident of

Pune,  and  a  member  of  ‘Patit  Pawan  Sangthan’,  with  the

Commissioner of Police, relating to the publication of the poem,

which was published, in July-August, 1994, meant for private

circulation amongst the members of All India Bank Association

Union, a crime was registered as FIR No. 7/95 at P.S. Gandhi

Chowk, Latur, on being transferred from Pune, for the offences

punishable under Sections 153-A and 153-B read with Section

34, IPC and eventually after due investigation charge sheet was

filed  for  the  said  offences  along  with  292,  IPC  against  the

present appellant,  the publisher and the printer,  respondent

no.3,  of  the Bulletin and the author,  one Vasant Dattatraya

Gujar.  When the matter was pending before the Chief Judicial

Magistrate, Latur, all the accused persons filed an application

for  discharge  and  the  learned  Magistrate  by  order  dated

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4.5.2001  held  that  no  case  for  the  offences  under  Sections

153-A and 153-B was made out and accordingly  discharged

them of the said offences but declined to do so in respect of the

offence under Section 292, IPC.  On a revision being filed, the

learned Additional Sessions Judge did not think it appropriate

to interfere with the order passed by the trial Magistrate which

constrained the accused persons to invoke jurisdiction under

Section  482  of  the  CrPC  and  the  High  Court  of  Bombay,

Aurangabad  Bench  dismissed  the  application.   The  said

decision is the subject of matter of this appeal by special leave

at the instance of the publisher.  The author has chosen not to

assail the order passed by the High Court.

Concept of obscenity  

8. Apart from submitting that the orders passed by all the

Courts are absolutely perverse and deserve to be lancinated, it

is submitted by Mr. Subramanium, learned senior counsel that

to appreciate the question framed by this Court,  despite his

reservation on the legal score as regards its phraseology, the

meaning  of  the  term  “obscenity”  has  to  be  appositely

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understood.  He has referred to the Black’s Law Dictionary that

defines obscenity as follows:-

“Obscene, adj.  (16c)  -  Extremely  offensive  under contemporary  community  standards  of  morality  and decency;  grossly  repugnant  to  the  generally  accepted notions  of  what  is  appropriate.  Under  the  Supreme Court's three-part test, material is legally obscene - and therefore not protected under the First Amendment - if, taken as a whole, the material (1) appeals to the prurient interest  in  sex,  as  determined  by  the  average  person applying  contemporary  community  standards;  (2) portrays sexual conduct, as specifically defined by the applicable state law, in a patently offensive way; and (3) lacks  serious  literary,  artistic,  political,  or  scientific value. Miller v. Callifornia, 413 U.S. 15, 93 S.Ct. 2607 (1973).  

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

9. The  learned  senior  counsel  has  also  referred  to  the

decision of  the Allahabad High Court in  Kamla Kant Singh

Vs. Chairman/ManagingDirector, Bennetta Colman and

Company Ltd. and Ors.1,  wherein the High Court dealt with

the  meaning  of  the  word  ‘obscenity’.   The  delineation  is  as

follows:-

1 (1987) 2 AWC 1451

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

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

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

10. The High Court of Madras in  Public Prosecutor v. A.D.

Sabapathy2,  has  opined  that  the  word  “obscene”  must  be

given  its  ordinary  and  literal  meaning,  that  is,  ‘repulsive’,

‘filthy’,  ‘loathsome’, ‘indecent’  and ‘lewd’.  The learned senior

counsel has also referred to the judgment of Supreme Court of

2  AIR 1958 Mad. 210

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Canada in R. v. Beaver3, wherein Maclaren, J.A., has defined

‘obscene’ as follows:-

“The  word  'obscene'  …  was  originally  used  to describe  anything  disgusting,  repulsive,  filthy  or foul.  The  use  of  the  word  is  now  said  to  be somewhat  archaic  or  poetic;  and  it  is  ordinarily restricted  to  something  offensive  to  modesty  or decency, or expressing or suggesting unchaste or lustful ideas, or being impure, indecent, or lewd."

11. After  generally  referring  to  the  meaning  of  the  term

obscenity, learned senior counsel has emphasised on the tests

adopted  in  various  countries  relating  to  obscenity.   Mr.

Subramanium  has  referred  to  various  authorities  of  United

Kingdom, United States of America, European Courts and this

Court to pyramid the proposition that the tests laid down by

legal  system  including  the  authorities  of  this  Court  do  not

suggest that that the instant poem can remotely be treated as

obscene.  First, we shall dwell upon the tests and standards

laid by various Courts and then the binding authorities of this

Court and thereafter to the concept of freedom of speech and

expression on the constitutional parameters and finally delve to

adjudge the facet of obscenity and address applicability of the

3  (1905), 9 O.L.R. 418

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determined test in the context of the question and ultimately

the  nature  of  the  poem  and  the  justifiability  of  the  order

impugned.   

Test evolved in United Kingdom

12. As  far  as  United  Kingdom  is  concerned,  Mr.

Subramanium has referred to Regina v. Hicklin4, the meaning

given by Cockburn C.J. and drawn our attention to the Article

by  J.E.  Hall  Williams  in  Obscenity  in  Modern  English  Law5

wherein the learned author observed that Hicklin (supra) gave

a  complete  go  by  to  the  principle  of  “mens  rea”  which

propounds a certain degree of protection to the accused.  The

learned author was critical on the concept of presumption as

propounded in  Hicklin (supra).   In the said article,  learned

author referred to certain observations in R. v. Martin Secker

& Warburg LD6.  In the said case, Stable J. has stated

“The  test  of  obscenity  to  be  applied  today  is extracted from a decision of 1868; it is this: “…. Whether  the  tendency of  the  matter  charged  as obscenity is to deprave and corrupt those whose mind are open to such immoral  influences,  and

4  LR 1868 3 QB 360 5  20, Law and Contemporary Problems (1955): 630-647 6  (1954 1 WLR 11 1138

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into whose hands a publication of this sort may fall.”   Because this test was laid down in 1868, that  does  not  mean  that  you  have  to  consider whether  this  book  is  an  obscene  book  by  the standards of nearly a century ago.  Your task is to decide whether you think that the tendency of the book is to deprave those whose minds today are open to such immoral influences and into whose hands the book may fall in this year, or last year when  it  was  published  in  this  country. Considering the curious change of approach from one  age  to  another,  it  is  not  uninteresting  to observe that in the course of the argument of the case in 1868 the rhetorical  question was asked: “What can be more obscene than many pictures “publicly exhibited, as the Venus in the Dulwich Gallery?”   There  are  some  who  think  with reverence that man is fashioned in the image of God, and you know that babies are not born in this world, be they of either sex, dressed up in a frock-coat or an equivalent feminine garment.

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

Remember  the  charge  is  a  charge  that  the tendency of the book is to corrupt and deprave. The charge is not that the tendency of the book is either  to  shock  or  to  disgust.   That  is  not  a criminal offence.  Then you say: “Well, corrupt or “deprave whom?” and again the test: those whose minds are open to such immoral influences and

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into whose hands a publication of this sort may fall.   What, exactly, does that mean?  Are we to take our literary standards as being the level  of something that is suitable for a fourteen-year-old school girl?  Or do we go even further back than that, and are we to be reduced to the sort of books that  one reads as  a  child  in  the  nursery?   The answer  to  that  is:  Of  course  not.   A  mass  of literature,  great  literature,  from  many  angles  is wholly unsuitable  for  reading by the adolescent, but that does not mean that the publisher is guilty of  a  criminal  offence  for  making  those  works available to the general public.”

In the ultimate eventuate, the learned Judge concluded,

thus:-

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

The aforesaid view of Stable, J. resulted in declaring the

accused not guilty.  

13. In England on July  29,  1959,  the  Obscene  Publication

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Act, 1959 (for short, “the 1959 Act”) was enacted to amend the

law relating to publication of obscene matters, provided for the

protection of literature and to strengthen the law concerning

pornography.  Section 1(1) of the 1959 Act reads as follows:-

“1.  –  (1)  For the purposes of  this Act  an article shall  be  deemed  to  be  obscene  if  its  effect  or (where the article comprises two or more distinct items) the effect of any one of its items is, if taken as a whole, such as to tend to deprave and corrupt persons  who  are  likely,  having  regard  to  all relevant circumstances,  to read,  see or hear the matter contained or embodied in it.”  

14. Section 4 of the 1959 Act stipulates that a person accused

of  obscenity  shall  not  be  convicted  if  it  is  proved  that  the

publication in question is justified for public good as it is in the

interest of art, literature, science, etc.  The said provision is as

follows:-

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

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15. Mr. Subramanium, learned senior counsel has referred to

R. v. Penguin Books Ltd.7 where the Court was dealing with

the  publication  of  the  book  ‘Lady  Chatterley’s  Lover’  by  the

Penguin Books.  The said case ended with “not guilty verdict”

as a consequence of which the book was allowed to be openly

published and was sold in England and Wales.   

16. In R. v. Peacock8, a verdict, an unreported one, rendered

on  January  6,  2011  by  Southwark  Crown  Court,  London,

submitted Mr. Subramanium, has resulted in great upsurge in

the demand for a review in the obscenity laws in England and

Wales.   In  the  said  case,  Michael  Peacock,  was  charged on

indictment with six counts under  the 1959 Act  for  allegedly

distributing  the  obscene  DVDs  that  contained  videos  of

homosexual  sadomasochism  and  BDSM  pornography.   The

accused in the said case successfully pleaded not guilty.  The

legal  experts of  England and Wales started opining that  the

1959 Act had become redundant.   

17. Relying on the aforesaid authorities, it is submitted by Mr.

Subramanium,  learned  senior  counsel  appearing  for  the 7  [1961] Crim LR 176 8 Unreported case, See http://www.bbc.com/news/uk-16443697

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appellant that Hicklin test in its original has been abandoned

in United Kingdom and the approach has been more liberal

regard  being  had  to  the  developments  in  the  last  and  the

present century.  It is his submission that the perception of the

Victorian era or for that matter, thereafter has gone through a

sea-change in the last part of 20th century and in the first part

of this century and the freedom of speech and expression has

been  put  on  a  high  pedestal  in  the  modern  democratic

republic.  It is urged by him that in the digital age, the writings

and the visuals do no longer shock or deprave or corrupt any

member of the society as the persons are capable enough to

accept  what  is  being  stated  and  not  to  be  depraved  or

corrupted.   

Prevalent Tests in the United States of America

18. Presently, we shall proceed to deal with the prevalent test

in the United States of America.  Learned senior counsel for the

appellant  has  taken  us  to  various  authorities  of  the  U.S.

Supreme Court  and other  Courts.    In  Chaplinsky v.  New

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Hampshire9,  the appellant,  a member of  the sect known as

Jehovah’s Witnesses, was convicted in the Municipal Court of

Rochester,  New  Hampshire  for  violation  of  Chapter  378,

Section 2 of the Public Laws of New Hampshire.  In course of

time, the appellant raised the questions that the statute was

invalid under the Fourteenth Amendment of the Constitution of

the United States as it placed an unreasonable restriction on

freedom of speech, freedom of press and freedom of worship

and  further  it  was  vague  and  indefinite.   Be  it  noted,  the

challenge was made in the highest court of the United States

that  declared that  the statutes purpose was to preserve the

public  peace  and  it  did  not  violate  the  constitutional

framework.  The Court observed allowing the broadest scope to

the language and purpose of the Fourteenth Amendment, it is

well understood that the right to free speech is not absolute at

all times and under all circumstances.   

19. In  Roth v. United States10,  the principal  question was

whether  the  Federal  Obscenity  Statute  violated  the  First

Amendment of the US Constitution which guaranteed freedom

9  315 U.S. 568 (1942) 10  (1957) 354 US 476

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of speech.  The Court held that free speech is provided under

the  First  Amendment  gave  no  absolute  protection  for  every

utterance.  We may profitably reproduce the observations made

therein:-

“All  ideas  having  even  the  slightest  redeeming social  importance  –  unorthodox  ideas, controversial  ideas,  even  ideas  hateful  to  the prevailing  climate  of  opinion-have  the  full protection  of  the  guaranties,  unless  excludable because they  encroach upon the  limited area of more  important  interests.   But  implicit  in  the history of the First Amendment is the rejection of obscenity  as  utterly  without  redeeming  social importance.   This  rejection  for  that  reason  is mirrored in the universal judgment that obscenity should be restrained, reflected in the international agreement  of  over  50  nations,  in  the  obscenity laws of all of the 48 States.”

The Court further opined that:

“We hold that obscenity is not within the area of constitutionally protected speech or press.”

20. In Memoirs v. Masachusetts11, while explaining the term

‘obscenity’, the Court referred to the  Roth (supra) and stated

thus:-

“3. We defined obscenity in Roth in the following terms: “[W]hether to the average person, applying contemporary  community  standards,  the dominant theme of the material taken as a whole

11  383 U.S. 413 (1966)

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appeals to prurient interest.” Under this definition, as elaborated in subsequent cases, three elements must coalesce: it must be established that (a) the dominant theme of the material taken as a whole appeals  to  a  prurient  interest  in  sex;  (b)  the material  is  patently  offensive  because it  affronts contemporary  community  standards  relating  to the  description  or  representation  of  sexual matters;  and  (c)  the  material  is  utterly  without redeeming social value.”  

After  so  stating,  the  U.S.  Supreme  Court  proceeded  to

consider whether the book in question could be stated to be

truly without social importance.  Thus, there was no departure

from  the  redeeming  social  importance  test,  but  it  also

introduced “contemporary community standards” test.  

21. In  Marvin  Miller  vs.  State  of  California12,  while

rejecting the ‘redeeming social value’ test as laid down in Roth

(supra)  and  followed  in  Memoirs (supra),  the  US  Court

established three pronged test which are as follows:-  

“15.  The  case  we  now  review  was  tried  on  the theory  that  the California Penal  Code  §  311 approximately  incorporates  the  three-stage Memoirs  test,  supra.  But  now the  Memoirs  test has  been  abandoned  as  unworkable  by  its author,13 and  no  Member  of  the  Court  today supports the Memoirs formulation.

12 413 US 15 (1973): 93 S.Ct. 2607 13 See the dissenting opinion of Mr. Justice Brennan in Paris Adult Theatre I v. Slaton, 413 US 49, 73, 93 S. Ct. 2628, 2642, 37 L.Ed.2d 446 (1973)

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17. The basic guidelines for the trier of fact must be:  (a)  whether  'the  average  person,  applying contemporary  community  standards'  would  find that the work, taken as a whole,  appeals to the prurient  interest,     Kois  v.  Wisconsin,  supra,  408 U.S.,  at  230,  92 S.Ct.,  at  2246, quoting     Roth v. United States, supra, 354 U.S., at 489, 77 S.Ct., at 1311; (b) whether the work depicts or describes, in  a  patently  offensive  way,  sexual  conduct specifically  defined  by  the  applicable  state  law; and (c) whether the work, taken as a whole, lacks serious  literary,  artistic,  political,  or  scientific value.  We  do  not  adopt  as  a  constitutional standard  the  'utterly  without  redeeming  social value' test of     Memoirs v. Massachusetts, 383 U.S., at 419, 86 S.Ct., at 977; that concept has never commanded  the  adherence  of  more  than  three Justices at one time14. See supra, at 21. If a state law  that  regulates  obscene  material  is  thus limited,  as  written  or  construed,  the  First Amendment  values  applicable  to  the  States through  the  Fourteenth  Amendment  are adequately  protected  by  the  ultimate  power  of appellante  courts  to  conduct  an  independent review of constitutional claims when necessary.”

22. The US Supreme Court in  Miller (supra) stated that the

application  and  ascertainment  of  ‘contemporary  community

standards’ would be the task of the Jury as they best represent

the  ‘contemporary  community  standards’.  The  Court

observed:-

14 ‘A quotation from Voltaire in the fly leaf of a book will not constitutionally redeem and otherwise  obscene publication .....’  Kois  v.  Wisconsin,  408 U.S.,  229,  231,  92 S.Ct., 2245, 2246, 33, L.Ed. 2d 312 (1972).  See Memoirs v. Massachusetts, 383 U.S., 413, 461, 86 S.Ct., 975, 999, 16 L.Ed. 2d 1 (1966) (white, J., dissenting).  We also reject, as a constitutional standard, the ambiguous concept of ‘social importance’. See id., at 462, 86 S. Ct. at  999

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“19. Sex and nudity may not be exploited without limit  by  films  or  pictures  exhibited  or  sold  in places  of  public  accommodation  any  more  than live  sex  and  nudity  can  be  exhibited  or  sold without  limit  in  such  public  places.15 At  a minimum, prurient, patently offensive depiction or description of sexual conduct must have serious literary,  artistic,  political,  or  scientific  value  to merit  First  Amendment  protection.  For  example, medical books for the education of physicians and related  personnel  necessarily  use  graphic illustrations and descriptions of human anatomy. In resolving  the  inevitably  sensitive  questions of fact and law, we must continue to rely on the jury system,  accompanied  by  the  safeguards  that judges,  rules  of  evidence,  presumption  of innocence, and other protective features provide, as we do with rape, murder, and a host of other offenses  against  society  and  its  individual members.16  

25.  Under  a  National  Constitution,  fundamental First Amendment limitations on the powers of the States do not vary from community to community, but this does not mean that there are, or should or  can  be,  fixed,  uniform national  standards  of precisely what appeals to the 'prurient interest' or

15 Although we are not presented here with the problem of regulating lewd public conduct itself,  the States have greater power to regulate nonverbal,  physical  conduct than to suppress  depictions  or  descriptions  of  the  same  behavior.  In United  States  v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968), a case not dealing  with  obscenity,  the  Court  held  a  State  regulation  of  conduct  which  itself embodied both speech and nonspeech elements to  be 'sufficiently  justified if  .  .  .  it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.' See California v. LaRue, 409 U.S. 109, 117—118, 93 S.Ct. 390, 396—397, 34 L.Ed.2d 342 (1972). 16 The mere fact juries may reach different conclusions as to the same material does not mean that constitutional rights are abridged. As this Court observed in Roth v. United States, 354 U.S., at 492 n. 30, 77 S.Ct., at 1313 n. 30, 'it is common experience that different juries may reach different results under any criminal statute. That is one of the consequences  we  accept  under  our  jury  system.  Cf. Dunlop  v.  United  States 486, 499-500.'

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is  'patently  offensive.'  These  are  essentially questions of fact, and our Nation is simply too big and too diverse for this Court to reasonably expect that such standards could be articulated for all 50 States in a single formulation, even assuming the prerequisite consensus exists. When triers of fact are asked to decide whether 'the average person, applying  contemporary  community  standards' would  consider  certain  materials  'prurient,'  it would be unrealistic to require that the answer be based  on  some  abstract  formulation.  The adversary  system,  with  lay  jurors  as  the  usual ultimate factfinders in criminal prosecutions, has historically permitted triers of fact to draw on the standards of  their community,  guided always by limiting instructions on the law. To require a State to  structure  obscenity  proceedings  around evidence of a national 'community standard' would be an exercise in futility.”

23. In  Reno  v.  American  Union  of  Civil  Liberties17,  the

plaintiffs  filed  a  suit  challenging  the  constitutionality  of

provisions of Communications Decency Act, 1996 (CDA).  The

central issue pertained to the two statutory provisions enacted

to  protect  minors  from  ‘indecent’  and  ‘patently  offensive’

communication  on  the  internet.   The  Court  declared  that

Section  223(a)(1)  of  the  CDA  which  prohibited  knowing

transmission of obscene or indecent messages to any recipient

under 18 years of  age and Section 223(d)(1)  of  the said Act

17 521 U.S. 844 (1997)

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which prohibited knowing, sending and displaying of obscene

or indecent messages to any recipient under 18 years of age, to

be  abridging  “the  freedom of  speech”  protected by  the  First

Amendment.    

24. In  State  of  Oregon  v.  Earl  A.  Henry18,  the  Oregon

Supreme  Court  declared  the  offence  of  obscenity  to  be

unconstitutional as it was in violation of Article I, Section 8 of

the Oregon Constitution that provides for freedom for speech

and expression. Article I Section 8 reads thus:-

“No  law  shall  be  passed  restraining  the  free expression of  opinion,  or  restricting the  right  to speak,  write,  or  print  freely  on  any  subject whatever; but every person shall be responsible for the abuse of this right.”

25. The  State  Statute  of  Oregan  i.e.  ORS  167.087  that

criminalized selling, exhibiting, delivery and dissemination of

obscene material was struck down as being violative of Article I

Section 8. The Oregon SC held thus:-  

“The indeterminacy of the crime created by ORS 167.087  does  not  lie  in  the  phrase  “sexual conduct” that is further defined in ORS 167.060 (10).  It lies in tying the criminality of a publication to  “contemporary  state  standards.”   Even  in

18  732 P.2d 9 (1987)

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ordinary  criminal  law,  we  doubt  that  the legislature can make it a crime to conduct oneself in a manner that falls short of “contemporary state standards.”  In a law censoring speech, writing or publication,  such  an  indeterminate  test  is intolerable.  It means that anyone who publishers or  distributes  arguably  “obscene”   words  or pictures  does  so  at  the  peril  of  punishment  for making  a  wrong  guess  about  a  future  jury’s estimate  of  “contemporary  state  standards”  of prurience.”

As we understand,  with the passage of  time tests have

changed and there are different parameters to judge obscenity

but the authorities clearly lay down that the freedom of speech

is not absolute on all occasions or in every circumstance.  

Comparables Test

26. Mr.  Subramanium  has  pointed  out  that  in  American

Jurisprudence  the  argument  of  “comparables”  has  gained

considerable force in cases of obscenity and freedom of speech.

He has referred to Joan Schleef’s  note on  United States v.

Various Articles  of  Obscene Merch19  wherein  the  learned

author  has  shown  comparables  test.   Explaining  the  said

concept,  the  learned  author  projects  that  the  gist  of  the 19 Joan Schleef, Note, United States v. various Articles of Obscene Merch, 52, U. Cin. L. Rev. 1131, 1132  (1983)

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comparables  argument  is  that  in  determining  whether

materials  are  obscene,  the  trier  of  fact  may  rely  on  the

widespread availability of comparable materials to indicate that

the materials are accepted by the community and hence, not

obscene under the Miller test.  The learned senior counsel has

also referred to an article, namely, Judicial Erosion of Protection

for Defendants in Obscenity Prosecutions?  When Courts Say,

Literally, Enough is Enough and When Internet Availability Does

Not  Mean  Acceptance  by  Clay  Clavert20 wherein  the  learned

author has opined thus:-       

“Akin  to  the  three-part  test  in  Miller  itself,  a successful  comparables  argument  requires  three foundational elements be present with the proffered evidence: similarity or “reasonable resemblance”21 of content;  availability  of  content,  and  acceptance,  to reasonable degree, of the similar, available content.”

The learned author in his conclusion has summed up:-

 “The  Miller  test  is  more  than thirty-five  years old22, but developments and changes are now taking place  in  courtrooms  that  affect  its  continuing viability.  In particular, this article has demonstrated that  the  taken-as-a-whole  requirement  may  be  in some jeopardy,  as at  least  two courts-one in 2008 and one in 2009-have allowed the prosecution to get away with only showing jurors selected portions of

20 Journal of Sports and Entertainment Law (Vol.1, Number 1), Harvard Law School, 2010  21 United States v. Pinkus, 579 F.2d 1174, 1175 9th Cir. 1978). 22 Miller v. California, 413 U.S. 15 (1973)

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the works in question.  The other change addressed here  is  driven  by  technology,  with  the  Internet forcing  judges  to  consider  a  new  twist  on  the traditional  comparables  argument  that  defense attorneys  sometimes  use  to  prove  contemporary community  standards.   Pro-prosecution  rulings  in this area have been handed down in both  Adams23 and  Burden24.  And while Judge Bucklew in  Little25 allowed Internet-based search evidence to come into court,  she  refused  to  instruct  the  jury  that  it could-not even that it must-consider it as relevant of community standards”.     

And again,

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

Thus,  the  comparables  test  even  if  it  is  applied,  the

concept of contemporary comparative standards test along with

other tests has not been abandoned.

The  learned  author  in  his  article  has  referred  to  the

23  No. 08-5261, 2009 U.S. App. Lexis 16363 (4th Cir. July 24, 2009) 24  55 S.W. 3d 608 (Tex. Crim. App. 2001) 25  No. 08-15964, 2010 U.S. App. Lexis 2320 (11th Cir. Feb. 2, 2010

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majority view in  Ashcroft v. Free Speech Coalition26 where

Justice Anthony Kennedy added:-

“Under Miller, the First Amendment requires that redeeming value be judged by considering the work as a whole.  Where the scene is  part of the narrative,  the work itself does not for this reason become  obscene,  even  though  the  scene  in isolation might be offensive.”   Mr. Subramanium has urged that the comparables test

has also been accepted in a different  context  by some High

Courts in India.  In this regard, he has been inspired by the

ratiocination  in  Kavita Phumbhra  v.  Commissioner  of

Customs  (Port),  Calcutta27 by  the  Calcutta  High  Court

wherein certain publications were imported by the petitioner

which were meant for sale only to adults.  The High Court took

note of the change in the society as well as similar articles and

works  readily  being  available  in  newspapers  and  magazines

and stated thus:-

“As mentioned earlier, moral standards vary from community and from person to person within one society itself.  The morals of the present day in our society also do not represent a uniform pattern. The variations and the variables inside a certain society  are  also  crucial  considerations  while judging  whether  an  object  comes  within  the

26 535 U.S. 234, 248 (2002) 27 (2012) 1 Cal LJ 157

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mischief of obscenity.  We cannot shut our eyes to the changes that are taking place in our society as we cannot be blind to the kind of advertisements, newspaper  articles,  pictures  and  photographs which  are  regularly  being  published  and  most certainly with a target viewers and readership in mind.  Any closer observer will  definitely reckon the vast changes that have taken place around us, particularly  in  the  field  of  audio  and  visual representations which are dinned into our ears or which arrest our ocular tastes.  A certain shift in the  moral  and  sexual  standard  is  very  easily discernable  over  the  years  and  we  may  take judicial  note  of  it.   The appellant  has  produced many articles of high circulating newspapers and reputed  magazines  which  are  freely  available  in the market.   Judged by that,  these items which were produced in courts, do not appear to be more sexually  explicit  than  many  of  those  which  are permitted to be published in leading journals and magazines.”

Having dealt with the ‘comparables test’ as is understood

from  the  aforesaid  decisions,  we  are  to  repeat  that  the

contemporary community standards test is still in vogue with

certain addition.   

Test laid down by the European Courts

27. Now  we  shall  proceed  to  deal  with  the  perception  of

obscenity by the European Courts.  In Vereinigung Bildender

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Kinstler v. Austria28,  the European Court of Human Rights

was  concerned with  the  issue pertaining  to  withdrawal  of  a

painting entitled “Apocalypse” which had been produced for the

auction  by  the  Austrian  painter  Otto  Muhl.   The  painting,

measuring  450  cm by  360  cm showed  a  collage  of  various

public figures such as Mother Teresa, the former head of the

Austrian  Freedom  Party  (FPO)  Mr.  Jorg  Haider,  in  sexual

positions.   While  the  naked  bodies  of  these  figures  were

painted,  the  heads  and faces  were  depicted  using  blown-up

photos  taken  from  newspapers.   The  eyes  of  some  of  the

persons portrayed were hidden under black bars.  Among these

persons was Mr. Meischberger,  a former general secretary of

the  FPO  until  1995,  who  at  the  time  of  the  events  was  a

member  of  the  National  Assembly.   The  Austrian  Court

permanently barred the display of painting on the ground that

the painting debased the plaintiff  and his political  activities.

The Association of Artists appealed to the European Court and

the said Court thought it appropriate to come to the conclusion

that the prohibition by the Austrian Court of the painting was

not  acceptable.   It  observed that  though the  painting  in  its 28 Application No. 68354/2001, 25th January 2007

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original state was somewhat outrageous but it was clear that

the photographs were caricature and the painting was satirical.

We have been commended, in this regard, to certain passages

by Mr. Subramanium.  They read as follows:-

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

xxx xxx xxx

35.  Furthermore,  the  Court  would  stress  that besides Mr Meischberger,  the painting showed a series of 33 persons, some of whom were very well known  to  the  Austrian  public,  who  were  all presented  in  the  way  described  above.  Besides Jörg  Haider  and  the  painter  himself,  Mother Teresa and the Austrian cardinal Hermann Groer were  pictured  next  to  Mr  Meischberger.  The painting further showed the Austrian bishop Kurt

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Krenn, the Austrian author Peter Turrini and the director  of  the  Vienna  Burgtheater,  Claus Peymann. Mr Meischberger, who at the time of the events  was  an  ordinary  Member  of  Parliament, was certainly one of the less well known amongst all  the  people  appearing  on  the  painting  and nowadays, having retired from politics,  is hardly remembered by the public at all.”       

28. Mr.  Nariman,  learned amicus curiae in this regard has

submitted that the European Court of Human Rights’ view is

divided inasmuch as four of  the Judges in a Court of  seven

have expressed the view, which is as follows:-

“26.  The  Court  reiterates  that  freedom  of expression,  as secured in paragraph 1 of  Article 10, constitutes one of the essential foundations of a  democratic  society,  indeed  one  of  the  basic conditions  for  its  progress  and  for  the self-fulfilment  of  the  individual.   Subject  to paragraph  2,  it  is  applicable  not  only  to “information”  or  “ideas”  that  are  favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or  disturb  the  State  or  any  section  of  the population.   Such  are  the  demands  of  that pluralism,  tolerance  and  broadmindedness without  which  there  is  no  “democratic  society”. Those  who create,  perform,  distribute  or  exhibit works of art contribute to the exchange of ideas and opinions which is essential for a democratic society.  Hence the obligation on the State not to encroach unduly on their freedom of expression. Artists  and  those  who  promote  their  work  are certainly  not  immune  from  the  possibility  of limitations  as  provided  for  in  paragraph  2  of

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Article  10.   Whoever  exercises  his  freedom  of expression  undertakes,  in  accordance  with  the express  terms  of  that  paragraph,  “duties  and responsibilities”;  their  scope  will  depend  on  his situation and the means he uses (see Muller and Others v. Switzerland, judgment of 24 May 1988).”

29. Learned  amicus  curiae  has  also  referred  to  one  of  the

dissenting  opinions  of  Judge  Loucaides,  which  is  to  the

following effect:-

“The majority found that the images portrayed in the  “painting”  in  question  were  “artistic  and satirical in nature”. This assessment had a decisive effect  on  the  judgment.  The  majority  saw  the “painting” as a form of criticism by the artist of Mr Meischberger, a politician and one of the persons depicted  in  it.  It  was  he  who  brought  the proceedings which led to the impugned measure.

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

In my view, the picture in question cannot, by any stretch  of  the  imagination,  be  called  satirical  or artistic.  It  showed  a  number  of  unrelated personalities  (some political,  some religious)  in  a vulgar and grotesque presentation and context of senseless,  disgusting  images  of  erect  and

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ejaculating penises and of naked figures adopting repulsive  sexual  poses,  some  even  involving violence,  with  coloured  and  disproportionately large  genitals  or  breasts.  The  figures  included religious  personalities  such  as  the  Austrian Cardinal Hermann Groer and Mother Teresa, the latter  portrayed  with  protruding  bare  breasts praying between two men—one of whom was the Cardinal—with erect penises ejaculating on her! Mr Meischberger was shown gripping the ejaculating penis of Mr Haider while at the same time being touched  by  two  other  FPÖ  politicians  and ejaculating on Mother Teresa!

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

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

Nobody can rely on the fact that he is an artist or that a work is a painting in order to escape liability for  insulting  others.  Like  the  domestic  courts,  I find that the “painting” in question undermined the reputation  and  dignity  of  Mr  Meischberger  in  a manner  for  which  there  can  be  no  legitimate justification and therefore the national authorities were  entitled  to  consider  that  the  impugned measure was necessary in a democratic society for the protection of the reputation or rights of others.

The learned amicus curiae has also commended us to the

joint  dissenting  opinion  of  Judges  Spielmann  and  Jebens.

What is important to be noted is as follows:-

“9.  In  our  opinion,  it  was  not  the  abstract  or indeterminate  concept  of  human  dignity—a concept which can in itself be dangerous since it may  be  used  as  justification  for  hastily  placing unacceptable limitations on fundamental  rights29

29 See  D.  Feldman,  “Human  Dignity  as  a  legal  value.  Part  I”,  (1999) Public Law pp.682–702 at p.697: “The notion of  dignity can easily become a screen behind which paternalism or moralism are elevated above freedom in legal decision-making.” As another  author  has  pointed  out,  “ [l]a  notion  de  dignité,  indéfinie,  est  à  l'évidence manipulable à l'extrême. Grande peut-être alors la tentation d'un ordre moral évoquée par G. Lebreton (Chr. D. [1996, J., 177]). La confusion établie entre moralité publique et dignité s'y prête particulièrement à l'heure où le politiquement correct traverse l'Atlantique ”, J.-P. Théron, “Dignité et libertés.  Propos sur une jurisprudence contestable”,  in Pouvoir  et liberté.  Etudes  offertes  à  Jacques  Mourgeon ,  (Brussels,  Bruylant,  1998),  p.305,

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—  but  the  concrete  concept  of  “fundamental personal dignity of others”30 which was central to the  debate  in  the  present  case,  seeing  that  a photograph  of  Mr  Meischberger  was  used  in  a pictorial  montage which he felt  to be profoundly humiliating and degrading.

10.  It should be noted in this connection that in an  order  of  June  3,  1987,31 in  a  case  about cartoons,  the  German  Federal  Constitutional Court relied on the concept of human dignity as expressly  enshrined  in  the  Basic  Law (Article1(1)),32 in  dismissing  a  complaint  by  a

concerning two decisions of October 27, 1995 by the French Conseil d'Etat, sitting as a full  court,  Commune de Morsang-sur-Orge and Ville  d'Aix-en-Provence,  AJDA, 1995, 942, RFDA, 1995, 1204, submissions by Mr Frydman, and Rev. trim. dr. h., 1996, 657, submissions by Mr Frydman, note by Nathalie Deffains. See also P. Martens, “Encore la dignité  humaine:  Réflexions  d'un  juge  sur  la  promotion  par  les  juges  d'une  norme suspecte”,  in Les  droits  de  l'homme  au  seuil  du  troisième  millénaire.  Mélanges  en hommage  à  Pierre  Lambert ,  (Brussels,  Bruylant,  2000),  pp.561 et  seq .  On the  role played by morals in the debate on dignity, see J. Fierens, “La dignité humaine comme concept juridique”, (2002) Journal des Tribunaux , pp.577 et seq ., in particular p.581. See also, from the perspective of the “paradigm of humanity”, B. Edelman, “La dignité de la personne humaine, un concept nouveau”, D., (1997), chron. p.185, and reprinted in the book by the same author, La personne en danger , (Paris, PUF, 1999), pp.505 et seq. 30 On the distinction between protection of the dignity of others and protection of one's own fundamental dignity, see B. Maurer, Le principe de respect de la dignité humaine et la Convention européenne des droits de l'homme ,  (Paris, La documentation française, 1999), in particular pp.450 et seq . and pp.464 et seq . 31 BVerfGE 75, 369 ; EuGRZ, 1988, 270 . See also the article by G. Nolte, “Falwell vs. Strauβ: Die rechtlichen Grenzen politischer Satire in den USA und der Bundesrepublik”, EuGRZ, (1988), pp.253–59. 32 See the German Federal Constitutional Court's decision of June 3, 1987 (BVerfGE 75, 369 ;  EuGRZ, 1988, 270 ),  discussed below: “ Die umstrittenen Karikaturen sind das geformte  Ergebnis  einer  freien  schöpferischen  Gestaltung,  in  welcher  der Beschwerdeführer  seine  Eindrücke,  Erfahrungen  und  Erlebnisse  zu  unmittelbarer Anschauung  bringt.  Sie  genügen  damit  den  Anforderungen,  die  das Bundesverfassungsgericht  als  wesentlich  für  eine  künstlerische  Betätigung ansieht ( BVerfGE 67, 213 [226] = EuGRZ 1984, 474 [477] unter Berufung auf BVerfGE 30, 173 [189]). Daβ mit ihnen gleichzeitig eine bestimmte Meinung zum Ausdruck gebracht wird, nimmt ihnen nicht die Eigenschaft als Kunstwerk. Kunst und Meinungsäuβerung schlieβen sich nicht aus; eine Meinung kann — wie es bei der sogenannten engagierten Kunst üblich ist — durchaus in der Form künstlerischer Betätigung kundgegeben werden (Scholz, a.a.O., Rdnr. 13). Maβgebliches Grundrecht bleibt in diesem Fall Art. 5 Abs. 3 Satz 1 GG, weil es sich um die spezielle Norm handelt ( BVerfGE 30, 173 [200]).” It should be noted  that  in  German  Constitutional  Law,  freedom  of  the  arts  (Kunstfreiheit)  is specifically protected by Art.5(3) of the Basic Law. “The exercise of this freedom is not limited, as is freedom of expression, by the provisions of general laws or the right to reputation, but it must be considered in conjunction with other constitutional rights, notably  the  right  to  the  free  development  of  personality  and  human  dignity”,  E.

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publisher.  The  cartoon  portrayed  a  well-known politician  as  a  pig  copulating  with  another  pig dressed in judicial robes. The court did not accept the  publisher's  argument  relating  to  artistic freedom as protected by Article 5(3) of the Basic Law.33 It  is  important  to  note  that  the  court accepted that the cartoons could be described as a work of art; it was not appropriate to perform a quality  control  (Niveaukontrolle)  and  thus  to differentiate  between “superior”  and “inferior”  or “good” and “bad” art.34  However, it dismissed the complaint, finding that the cartoons were intended to deprive the politician concerned of his dignity by portraying  him as engaging in  bestial  sexual conduct. Where there was a conflict with human dignity,  artistic  freedom  (Kunstfreiheit)  must always be subordinate to personality rights.35  

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

“Political  satire  should  not  be protected when it amounts only to insulting speech directed against an  individual.  If,  say,  a  magazine  feature

Barendt, Freedom of Speech , (2nd edn, Oxford, Oxford University Press, 2005), p.229, citing  the  order  of  the  German  Constitutional  Court  of  July  17,  1984  in  the “street-theatre” case, [ BVerfGE 67, 213 ; EuGRZ, 1984, 474 ] in which the court held that a moving street theatre, in which Franz-Josef Strauss, then a candidate for the Chancellorship, was portrayed in the same float as prominent Nazis, should be protected under freedom of the arts in the absence of evidence that there was a very serious injury to personality rights. 33 Article 5(3) of the German Basic Law provides: “Art and science, research and teaching are free. …” As already noted, freedom of the arts (Kunstfreiheit) is specifically protected by Art.5(3) of the Basic Law and the exercise of this freedom is not limited as freedom of expression is. It must be considered in conjunction with other constitutional rights, such as the right to human dignity. See E. Barendt, Freedom of Speech , (2nd edn, Oxford, Oxford University Press, 2005), p.229. 34 “ Die Grundanforderungen künstlicher Tä;tigkeit festzulegen, ist daher durch Art. 5 Abs. 3 Satz 1 GG nicht verboten sondern verfassungsrechtlich gefordert. Erlaubt und notwendig ist  allerdings  nur  die  Unterscheidung  zwischen  Kunst  und  Nichtkunst;  eine Niveaukontrolle, also eine Differenzierung zwischen ‘höherer’ und ‘niederer’, ‘guter’ und ‘schlechter’ (und deshalb nicht oder weniger schutzwürdiger) Kunst, liefe demgegenüber auf  eine  verfassungsrechtlich  unstatthafte  Inhaltskontrolle  hinaus  (Scholz  in: Maunz/Dürig, GG, Art. 5 Abs. 3 Rdnr. 39). ” 35 E. Barendt, Freedom of Speech, 2nd ed., Oxford, Oxford University Press, 2005, p.230.

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attributes  words  to  a  celebrity,  or  uses  a computerized  image  to  portray  her  naked,  it should  make no  difference  that  the  feature  was intended  as  a  parody  of  an  interview  she  had given. It should be regarded as a verbal assault on the  individual's  right  to  dignity,  rather  than  a contribution  to  political  or  artistic  debate protected under the free speech (or freedom of the arts) clauses of the Constitution.”36   

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

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

30. Mr.  Nariman,  scanning  the  judgment  has

submitted  that  artistic  freedom  outweighs  personal

interest and cannot and does not trump nor outweigh

observance of laws for the prevention of crime or laws

for the protection of health or morals; that the limits of

artistic  freedom  are  exceeded  when  the  image  of  a

person  (renowned  or  otherwise)  is  substantially

36 Op. cit., p.230. The author adds in a footnote the following: “For an Italian case on the point,  see  the  decision of  the  Corte  di  Cassazione,  Penal  Section,  of  20  Oct.  1998, reported in (1999) Il Diritto dell'Informazione e dell'Informatica 369, rejecting appeal of author of a newspaper article which included a cartoon implying that a woman senator fellated Berlusconi. Satire is not protected if does not respect personality rights.”

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deformed  by  wholly  imaginary  elements  –  without  it

being evident from the work (in the present case from

the poem) that  it  was aimed at  satire  or  some other

form  of  exaggeration;  that  the  freedom  of  artistic

creation cannot be claimed where the work in question

constitutes  a  debasement  and  debunking  of  a

particular  individual’s  public  standing;  that  the

European  law  recognises  that  whosoever  exercises

freedom  of  expression  undertakes  in  addition  duties

and  responsibilities  and  their  scope  depends  on  the

situation  and the  means  used;  that  it  is  only  where

personal  interests  of  an  individual  are  said  to  be

affected  that  the  artistic  and  satirical  nature  of  the

portrayal  of  the  person  in  the  work  would  outweigh

mere personal interest; that the nature, meaning and

effect  of  any image (in  say  in  a  painting  or  a  poem)

cannot and must not be judged on the basis of what the

artist (or author) purports to convey; what counts is the

effect  of  the  image on the  observer;  the  fact  that  an

image has been produced by an artist does not always

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make the end-result artistic; likewise an image does not

become a satirical if the observer does not comprehend

or  detect  any message  in  the  work in question;  that

where the images depicted in the work product convey

no message but “only a disgusting combination of lewd

acts and words whose only effect is to debase, insult

and  ridicule  the  person  portrayed”  –  this  is  neither

criticism nor satire; and that the artistic freedom is not

unlimited and where rights and reputation of others are

involved;  where  there  is  conflict  with  human dignity

artistic  freedom  must  always  be  subordinated  to

personality  rights.   Thus,  the  submission  of  Mr.

Nariman is that freedom of speech and expression is

not  absolute  and  any  work  of  art  cannot  derail  the

prohibition in law.

31. Mr.  Subramanium  has  referred  to  the  judgment  in

Handyside v.  United Kingdom37,  wherein  it  has  been held

thus:-

“The  Court’s  supervisory  functions  oblige  it  to pay  the  utmost  attention  to  the  principles

37  Application No. 5493/72, 7th December 1976, Series A No. 24

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

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

emphasised  that  the  freedom of  expression  as  protected  by

Article  10  of  ECHR  constitutes  an  essential  basis  of  a

democratic society and any limitations on that freedom have to

be interpreted strictly.   Mr. Subramanium has also referred us

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to  Editorial  Board  of  Pravoye  Delo  and  Shtekel  v.

Ukraine38,  wherein  the  European  Court,  for  the  first  time,

acknowledged that Article 10 of ECHR has to be interpreted as

imposing  on  States  a  positive  obligation  to  create  an

appropriate regulatory framework to ensure effective protection

of journalists’ freedom of expression on the Internet.  He has

also drawn our attention to  Akda v.  Turkey39,  wherein the

European Court  has  held  that  ban on translation of  classic

work of  literature  that  contained graphic  description of  sex,

violated the right to freedom of expression.  

32. Mr.  Nariman,  learned  senior  counsel  and  amicus,  has

commended us to Wingrove v. United Kingdom40 to show that

the  interpretation  placed  by  the  European Court  of  Human

Rights on Article 10 that deals with freedom of expression.  In

the  said  case,  a  video  movie  characterising  Saint  Teresa  of

Avila in profane ways was held to be properly banned and not a

violation of Article 10 of the European Convention on Human

Rights.  The said case originated from an application lodged

with the European Commission under Article 25 by a British

38  Application No. 33014/05, 5 May 2011 39  Application No. 41056/04, 16 February, 2010 40  1997 24 ECHRR (1)

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national Nigel Wingrove on 18th June, 1990.  The object of the

request and of the Application was to obtain a decision as to

whether  the  facts  of  the  case  disclosed  a  breach  by  the

respondent  State  (United  Kingdom)  of  its  obligation  under

Article 10 of the ECHR.  Wingrove wrote the script  for a video

and directed making of a video work entitled ‘visions of ecstasy’

– the idea for the film was derived from the life and writings of

St. Teresa of Avila, the sixteenth century Carmelite, nun and

founder of many convents, who experienced powerful ecstatic

visions of Jesus Christ.  In paragraphs 9 and 10 of the report

it is stated:-

“The action of the film centres upon a youthful actress  dressed  as  a  nun  and  intended  to represent  St.  Teresa.   It  begins  with  the  nun, dressed  loosely  in  a  black  habit,  stabbing  her own hand with  a  large  nail  and  spreading  her blood over her  naked breasts  and clothing.   In her writhing, she spills a chalice of communion wine and proceeds to lick it up from the ground. She loses consciousness.  This sequence takes up approximately  half  of  the  running  time  of  the video.  The second part shows St. Teresa dressed in  a  white  habit  standing  with  her  arms  held above  her  head  by  a  white  cord  which  is suspended  from  above  and  tied  around  her wrists.  The near-naked form of a second female, said  to  represent  St.  Teresa’s  psyche,  slowly crawls  her  way  along  the  ground  towards  her. Upon  reaching  St.  Teresa’s  feet,  the  psyche

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begins  to  caress  her  feet  and  legs,  then  her midriff,  then her breasts,  and finally  exchanges passionate  kisses  with  her.   Throughout  this sequence,  St  Teresa  appears  to  be  writhing  in exquisite  erotic  sensation.   This  sequence  is intercut  at  frequent  intervals  with  a  second sequence in which one sees the body of Christ, fastened  to  the  cross  which  is  lying  upon  the ground.  St Teresa first kisses the stigmata of his feet  before  moving  up his  body  and  kissing  or licking the gaping wound in his right side.  Then she sits astride him, seemingly naked under her habit, all the while moving in a motion reflecting intense erotic arousal, and kisses his lips.  For a few seconds, it appears that he responds to her kisses.   This  action  is  intercut  with  the passionate  kisses  of  the  psyche  already described.   Finally,  St  Teresa  runs  her  hand down to the fixed hand of Christ and entwines his fingers in hers.   As she does so,  the fingers of Christ seem to curl upwards to hold with hers, whereupon the video ends.  

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

Thereafter dealing with the case, the European Court of

Human Rights held:-

“61. Visions  of  Ecstasy  portrays,  inter  alia,  a female character astride the recumbent body of the  crucified  Christ  engaged  in  an  act  of  an overtly sexual nature.  The national authorities,

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

Mr.  Nariman,  the  friend  of  the  Court  has  also  laid

immense emphasis on the concurring opinion of Judge Pettit.

The learned Judge though voted with the majority, observed:-

“... I consider that the same decision could have

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

Judge Pettit further proceeded to state:-

“The  majority  of  the  Video  Appeals  Committee took  the  view  that  the  imagery  led  not  to  a religious perception,  but to a perverse one,  the ecstasy  being  furthermore  of  a  perverse  kind. That  analysis  was  in  conformity  with  the approach of the House of Lords, which moreover did  not  discuss  the  author’s  intention  with respect to the moral element of the offence.  The Board’s  Director  said  that  it  would  have  taken

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just the same stance in respect of a film that was contemptuous  of  Mohammed  or  Buddha.   The decision not to grant a certificate  might possibly have been justifiable and justified if, instead of St Teresa’s ecstasies,  what had been in issue had been  a  video  showing,  for  example,  the anti-clerical Voltaire having sexual relations with some prince or king.  In such a case, the decision of  the  European  Court  might  well  have  been similar to that in the Wingrove case.  The rights of other under Article 10 para 2 (art. 10-2) cannot be restricted solely to the protection of the rights of others in a single category of religious believers or philosophers, or a majority of them.  The Court was  quite  right  to  base  its  decision  on  the protection  of  the  rights  of  others  pursuant  to Article 10 (art. 10), but to my mind it could have done so on broader grounds, inspired to a greater extent  by the concern to protect the context  of religious  beliefs  “or  any  other”,  as  is  rightly pointed out in paragraph 53 of the judgment.  In the  difficult  balancing  exercise  that  has  to  be carried  out  in  these  situations  where  religious and philosophical sensibilities are confronted by freedom of  expression,  it  is  important  that  the inspiration provided by the European Convention and its  interpretation should be based both on pluralism and a sense of values.”

33. Learned Amicus, to cement the proponement of absence

of total limitlessness of freedom of speech and expression and

to refute the principle of absoluteness has also commended us

to the authority in  Muller and Others v. Switzerland41.  In

the  said  case,  the  question  was  whether  paintings  at  an

41  13 EHRR 212

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exhibition  depicting  in  a  crude  manner,  sexual  relations

particularly between men and animals to which general public

had  free  access  as  the  organisers  had  not  imposed  any

admission  charge  or  any  age  limit;  the  paintings  being

displayed  to  the  public  at  large.   The  European  Court  of

Human Rights stated:-

“The Court recognises, as did the Swiss courts, that conceptions of sexual morality have changed in recent years.  Nevertheless, having inspected the  original  paintings,  the  Court  does  not  find unreasonable the view taken by the Swiss courts that  those  paintings,  with  their  emphasis  on sexuality  in  some  of  its  crudest  forms,  were “liable  grossly  to  offend  the  sense  of  sexual propriety of  persons of ordinary sensitivity”.  In the circumstances, having regard to the margin of appreciation left to them under Article 10 part 2 (art.  10-2),  the  Swiss  courts  were  entitled  to consider  it  “necessary”  for  the  protection  of morals  to  impose  a  fine  on  the  applicants  for publishing obscene material.   

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

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case.   

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

[emphasis supplied]

Perception and Perspective of this Court

34. Keeping  in  view  the  developments  in  other  countries

pertaining to the perception as regards “obscenity”, “vulgarity”

and other aspects, we are obliged to see how this Court has

understood the provision,  that is,  Section 292 IPC, and laid

down  the  law  in  the  context  of  freedom  of  speech  and

expression  bearing  in  mind  the  freedom  of  a  writer,  poet,

painter  or  sculptor  or  broadly  put,  freedom  of  an  artist.

Section 292 of the IPC presently reads thus:-

“292. Sale, etc., of obscene books, etc.—  

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

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

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

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

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

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

36. For the first time this Court dealt with the effect and im-

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

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

State of Maharashtra42. Before the Constitution Bench a con-

tention was canvassed with regard to the constitutional validity

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

striction on the freedom of speech and expression guaranteed

by Article 19(1)(a) of the Constitution and being not saved by

clause 2 of the said Article.   The Constitution Bench referred to

Article 19(2) and held thus:-

“7. No  doubt  this  article  guarantees  complete freedom  of  speech  and  expression  but  it  also makes  an  exception  in  favour  of  existing  laws which impose restrictions on the exercise  of  the right in the interests of public decency or morality. The  section  of  the  Penal  Code  in  dispute  was introduced by the Obscene Publications Act, 1925 (7  of  1925)  to  give  effect  of  the  International Convention  for  the  suppression  of  or  traffic  in obscene publications signed by India in 1923 at Geneva.  It  does  not  go  beyond  obscenity  which falls directly within the words “public decency and morality” of the second clause of the article. The word,  as  the  dictionaries  tell  us,  denotes  the quality of being obscene which means offensive to modesty or decency; lewd, filthy and repulsive. It cannot be denied that it is an important interest of society to suppress obscenity. There is, of course, some  difference  between  obscenity  and pornography  in  that  the  latter  denotes  writings, pictures  etc.  intended to  arouse  sexual  desire while  the  former  may  include  writings  etc.  not

42  (1965) 1 SCR 65

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intended to do so but which have that  tendency. Both, of course, offend against public decency and morals  but  pornography  is  obscenity  in  a  more aggravated form. Mr Garg seeks to limit action to cases of intentional lewdness which he describes as dirt for dirt's sake and which has now received the appellation of hard-core pornography by which term is  meant  libidinous  writings  of  high  erotic effect unredeemed by anything literary or artistic and intended to arouse sexual feelings.

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

[Emphasis added]

And again,

“9…………It is always a question of degree or as the lawyers are accustomed to say, of where the line  is  to  be  drawn.  It  is,  however,  clear  that obscenity by itself has extremely poor value in the

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propagation of ideas, opinions and information of public interest or profit. When there is propagation of  ideas,  opinions  and  photographs  collected  in book  form  without  the  medical  text  would  may become  different  because  then  the  interest  of society may tilt the scales in favour of free speech and expression. It is thus that books on medical science  with  intimate  illustrations  and photographs, though in a sense immodest, are not considered  to  be  obscene  but  the  same illustrations  and  photographs  collected  in  book form without the medical text would certainly be considered  to  be  obscene.  Section  292  of  the Indian  Penal  Code  deals  with  obscenity  in  this sense  and cannot  thus  be  said  to  be  invalid  in view of the second clause of Article 19.”

37. After  dealing  with  the  said  facet,  the  Court  referred  to

various decisions of the English Courts, especially to  Hicklin

(supra),  wherein  the  Queen’s  Bench  was  called  upon  to

consider a pamphlet, the nature of which can be gathered from

the title and the colophon which read:-

“The Confession Unmasked, showing the depravity of  Romish  priesthood,  the  enquity  of  the confessional, and the questions, put to females in confession.”

It was bilingual with Latin and English texts on opposite

pages  and  the  latter  half  of  the  pamphlet  according  to  the

report was grossly obscene relating to impure and filthy acts,

words or ideas.  Cockburn, C.J. laid down the test of obscenity

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in the following words:-

“ …  I think the test of obscenity is this, whether the tendency of the matter charged as obscenity is to  deprave  and  corrupt  those  whose  minds  are open to such immoral influences, and into whose hands a publication of this sort may fall … it is quite certain that it would suggest to the minds of the young of either sex, or even to persons of more advanced years, thoughts of  a most impure and libidinous character.”

38. After reproducing the said paragraph, the Court observed

that  the  said  test  has  been  uniformly  applied  in  India.

Thereafter, the Court posed a question whether the said test of

obscenity squares with the freedom of speech and expression

guaranteed under the Constitution or it needs to be modified

and if so, in what respects.  The Court opined that the first of

the said questions invite the Court to reach a decision on a

constitutional  issue  of  a  most  far-reaching  character  and  it

must  be  aware  that  it  may not  lean too  far  away  from the

guaranteed freedom.  In that context, the Court observed that

the  laying  down of  the  true  test  is  not  rendered any easier

because art has such varied facets and has such individualistic

appeals  that  in  the  same  object  the  insensitive  sees  only

obscenity because his attention is arrested, not the general or

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artistic appeal or message, which he cannot comprehend.  But

by what he can see, and the intellectual sees beauty and art

but nothing gross. The Indian Penal Code does not define the

word “obscene”  and this  delicate  task of  how to  distinguish

between that which is artistic and that which is obscene has to

be performed by courts.  The test to be evolved must obviously

be of a general character but it must admit of a just application

from  case  to  case  by  indicating  a  line  of  demarcation  not

necessarily  sharp  but  sufficiently  distinct  to  distinguish

between  that  which  is  obscene  and  that  which  is  not.

Thereafter the court observed:-

“None  has  so  far  attempted  a  definition  of obscenity because the meaning can be laid bare without attempting a definition by describing what must be looked for.  It  may,  however,  be said at once that treating with sex and nudity in art and literature  cannot  be  regarded  as  evidence  of obscenity  without  something  more.  It  is  not necessary that  the angels  and saints of  Michael Angelo  should be made to wear  breeches before they can be viewed. If the rigid test of treating with sex  as  the  minimum  ingredient  were  accepted hardly any writer of fiction today would escape the fate Lawrence had in his days. Half the book-shop would  close  and  the  other  half  would  deal  in nothing but moral and religious books which Lord Campbell boasted was the effect of his Act.”

39. After so stating, the Court referred to certain authorities

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of the United States of America and proceeded to observe that

the Court must, therefore, apply itself to consider each work at

a time. An overall view of the obscene matter in the setting of

the whole work would, of course, be necessary, but the obscene

matter must be considered by itself and separately to find out

whether it is so gross and its obscenity so decided that it is

likely to deprave and corrupt those whose minds are open to

influences of this sort and into whose hands the book is likely

to  fall.  The  interests  of  the  contemporary  society  and

particularly the influence of the book etc. on it must not be

overlooked. Then the court stated:-  

“A number of considerations may here enter which it  is  not  necessary  to  enumerate,  but  we  must draw attention to one fact. Today our National and Regional Languages are strengthening themselves by new literary standards after a deadening period under  the  impact  of  English.  Emulation  by  our writers of an obscene book under the aegis of this Court's  determination  is  likely  to  pervert  our entire literature because obscenity pays and true Art finds little popular support. Only an obscurent will  deny  the  need  for  such  caution.  This consideration marches with all law and precedent and this subject and so considered we can only say that where obscenity and art are mixed, art must  be  so  preponderating  as  to  throw  the obscenity into a shadow or the obscenity so trivial and insignificant  that  it  can have  no  effect  and may be overlooked. In other words, treating with

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sex in a manner offensive to public decency and morality  (and  these  are  the  words  of  our Fundamental  Law),  judged  of  by  our  National standards  and  considered  likely  to  pander  to lascivious. prurient or sexually precocious minds, must determine the result. We need not attempt to bowdlerize all literature and thus rob speech and expression  of  freedom.  A  balance  should  be maintained  between  freedom  of  speech  and expression and public decency and morality but when the latter is substantially transgressed the former must give way.”           [Emphasis supplied]

Eventually, the Court opined:-

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

40. Thereafter,  the  court  proceeded  to  scan  the  various

passages  of  the  book,  namely,  Lady  Chatterley’s  Lover  and

ruled that:-

“29……..When everything said in its favour we find that  in treating with sex the  impugned portions viewed separately  and also  in  the  setting  of  the whole book pass the permissible limits judged of from our community standards and as there is no social  gain  to  us  which  can  be  said  to

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preponderate, we must hold the book to satisfy the test we have indicate above.”

41. In  Chandrakant  Kalyandas  Kakodkar  v.  State  of

Maharashtra43, the appellant was the author of a short story.

He faced a criminal charge under Section 292 IPC along with

the printer, publisher and the selling agent.  The three-Judge

Bench referred to the Constitution Bench in Ranjit D. Udeshi

(supra)  and  thereafter  the  Court  referred  to  the  plots  and

sub-plots  narrated  in  the  story,  adverted  to  the  emotional

thread running in the story and eventually came to hold that

none  of  the  passages  was  offending  Section  292  IPC  and

accordingly acquitted the accused persons.  In that context the

Court observed:-

“12. The  concept  of  obscenity  would  differ  from country to country depending on the standards of morals  of  contemporary  society.  What  is considered as a piece of literature in France may be obscene in England and what is considered in both countries as not harmful to public order and morals  may  be  obscene  in  our  country.  But  to insist that the standard should always be for the writer to see that the adolescent ought not to be brought into contact with sex or that if they read any references to sex in what is written whether that is the dominant theme or not they would be affected,  would  be  to  require  authors  to  write books  only  for  the  adolescent  and  not  for  the

43 (1969) 2 SCC 687

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adults.  In  early  English  writings  authors  wrote only with unmarried girls in view but society has changed  since  then  to  allow  litterateurs  and   artists  to  give  expression  to  their  ideas,  and emotions  and  objective  with  full  freedom except that  it  should  not  fall  within  the  definition  of “obscene”  having  regard  to  the  standards  of contemporary  society  in  which  it  is  read.  The standards  of  contemporary  society  in  India  are also  fast  changing.  The  adults  and  adolescents have available to them a large number of classics, novels, stories and pieces of literature which have a content of sex, love and romance. As observed in Udeshi  (supra) if  a  reference  to  sex  by  itself  is considered obscene, no books can be sold except those which are purely religious. In the field of art and  cinema  also  the  adolescent  is  shown situations which even a quarter of a century ago would be considered derogatory to public morality, but having regard to changed conditions are more taken for  granted  without  in  anyway  tending  to debase or debauch the mind. What we have to see is that whether a class, not an isolated case, into whose hands the book, article or story falls suffer in  their  moral  outlook  or  become  depraved  by reading  it  or  might  have  impure  and  lecherous thoughts  aroused in their  minds.  The charge  of obscenity  must,  therefore,  be  judged  from  this aspect.”

From  the  aforesaid  passage  it  is  clear  that  the  court

considered  three  facets,  namely,  “morals  of  contemporary

society”,  the  fast  changing  scenario  in  our  country  and the

impact of the book on a class of readers but not an individual.  

42. In  K.A.  Abbas  v.  Union  of  India  and another44,  the 44  (1970) 2 SCC 780

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petitioner sought a declaration against the Union of India and

the  Chairman,  Central  Board  of  Film  Censors  that  the

provisions of Part II of the Cinematograph Act, 1952 together

with the rules prescribed by the Central Government, February

6, 1960, in the purported exercise of the powers under Section

5-B of the Act are unconstitutional and void and consequently

sought  a  writ  of  Mandamus  or  any  other  appropriate  writ,

direction or order for quashing the direction contained in letter

dated  July  3,  1969,  for  deletion  of  certain  shots  from  a

documentary film titled ‘A Tale of  Four Cities’ produced by him

for  unrestricted public  exhibition.    The said  certificate  was

declined and the petitioner was issued a letter that the film was

suited for exhibition restricted to adults.  The petitioner was

given a chance to give explanation, but he did not change his

decision.  On an appeal, the Central Government opined that it

could be granted ‘U’  certificate  subject  to certain cuts being

made in the film.  At that juncture, the petitioner preferred a

petition before this Court.  The Court viewed the film and still

the stand of the Central Government was same.  The petitioner

thereafter amended the petition to challenge the pre-censorship

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itself  as  offensive  to  freedom of  speech  and  expression  and

alternatively  the provisions of  the Act  and the Rules,  orders

and directions under the Act as vague, arbitrary and indefinite.

The prayer for amendment was allowed.  The two fundamental

contentions that were raised before this Court were firstly, the

pre-censorship itself cannot be tolerated under the freedom of

speech  and  expression  and  secondly,  even  if  it  were  a

legitimate  restraint  on the  freedom, it  must be exercised on

very  definite  principles  which  leave  no  room  for  arbitrary

action.  The Court referred to the Khosla Committee that had

addressed  and  examined  history  of  development  of  film

censorship in India.  The Court adverted to various provisions

of the Act and in that context observed that it has been almost

universally recognised that treatment of motion pictures must

be different from that of other forms of art and expression.  The

Court referred to the decision in  Roth  (supra), wherein three

tests have been laid down as under:

“(a)  that the dominant theme taken as a whole appeals to prurient interests according to the con- temporary standards of the average man;

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

(c)  that  it  is  patently  offensive  because it  is  op- posed to contemporary standards.”

The court  observed that  Hicklin  test  in  Regina  (supra)

was not accepted in the said case.  The Court also referred to

Freadman  v.  Maryland45,  which  considered  procedural

safeguards and thereafter the judgment in  Teital Film Corp.

v.  Cusak46 and  observed  that  fight  against  censorship  was

finally lost in Times Film Corporation v. Chicago47, but only

by the slender majority.  Thereafter, the Court referred to later

decisions and observed:-

“33. To summarize. The attitude of the Supreme Court of  the United States is  not as uniform as one could wish.  It  may be taken as settled that motion picture is considered a form of expression and entitled to protection of First Amendment. The view that it is only commercial and business and, therefore,  not  entitled  to  the  protection  as  was said in Mutual Film Corpn48. is not now accepted.”

43. The Court further referred to the majority judgments in

many cases and observed that judges in America have tried to

read  the  words  ‘reasonable  restrictions’  into  the  First

45   (1965) 380 US 51 46  (1968) 390 US 149 47  (1961) 365 US 43 48  (1915) 236 US 230

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Amendment and thus to make the rights it grants subject to

reasonable  regulation.   The  Court  further  observed that  the

American Courts in their majority opinions, therefore, clearly

support a case for censorship.  Proceeding  further,  the  Court

opined that the task of the censor is extremely delicate and its

duties cannot be the subject of an exhaustive set of commands

established by prior ratiocination.   In that context, the Court

ruled:-

“The standards that we set for our censors must make a substantial allowance in favour of freedom thus leaving a vast area for creative art to interpret life and society with some of its foibles along with what is good. We must not look upon such human relationships as banned in to and for  ever  from human thought and must give scope for talent to put them before society. The requirements of art and literature  include  within  themselves  a  com- prehensive view of social life and not only in its ideal form and the line is to be drawn where the average moral man begins to feel embarrassed or disgusted at a naked portrayal of life without the redeeming touch of art or genius or social value. If the depraved begins to see in these things more than what an average person would, in much the same way, as it is wrongly said, a Frenchman seas a woman’s legs in everything, it cannot be helped. In our scheme of things ideas having redeeming social or artistic value must also have importance and protection for their growth. Sex and obscenity are  not  always  synonymous  and  it  is  wrong  to classify  sex as essentially  obscene or even inde- cent or immoral. It should be our concern, how-

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ever, to prevent the use of sex designed to play a commercial  role by making its  own appeal. This draws in the censor’s scissors. Thus audiences in India can be expected to view with equanimity the story of Oedipus son of Latius who committed pat- ricide and incest with his mother. When the seer Tiresias exposed him, his sister Jocasta committed suicide by hanging herself  and Oedipus put out his own eyes. No one after viewing these episodes would think that patricide or incest with one’s own mother is permissible or suicide in such circum- stances or tearing out one’s own eyes is a natural consequence. And yet if one goes by the letter of the directions the film cannot be shown. Similarly, scenes depicting leprosy as a theme in a story or in a documentary are not necessarily outside the protection. If that were so Verrier Elwyn’s Phulmat of the Hills or the same episode in Henryson’s Tes- tament of Cressaid (from where Verrier Elwyn bor- rowed the idea) would never see the light of  the day. Again carnage and bloodshed may have his- torical value and the depiction of such scenes as the Sack of Delhi by Nadirshah may be permissi- ble, if handled delicately and as part of an artistic portrayal  of  the  confrontation  with  Mohammad Shah  Rangila.  If  Nadir  Shah  made  golgothas  of skulls,  must we leave them out of  the story be- cause people must be made to view a historical theme without true history? Rape in all its naked- ness may be objectionable but Voltaire’s Candide would  be  meaningless  without  Cunegonde’s episode with the soldier and the story of Lucrece could never be depicted on the screen.”

  [Emphasis supplied]

44. The aforesaid passage, we must candidly state, is a lucid

expression of  artistic  freedom regard being  had to  thematic

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context and the manner of delicate and subtle delineation in

contradistinction  to  gross,  motivated  and  non-artistic  han-

dling.  It is also graphically clear that the court has opined that

sex and obscenity are not always synonymous and that is why

the court has given example of Oedipus which is known in the

field of psychology as Oedipus complex.  Be it noted, in the

field of literature there are writing which pertain, as psychology

would christen them as ‘Electra’ complex and ‘Lolita’ complex.

As is manifest from the judgment, the Court has taken pains

to refer to certain situations from certain novels and the ideas

from the plays and also emphasised on delicate depiction of a

situation in a theme-oriented story.  The Court has made a

distinction between a historical theme without true history and

portrayal of an artistic scene.  Be it noted, in the said case, the

Court opined that the test in Ranjit D. Udeshi (supra) would

apply even to film censorship.  

45. In  Raj Kapoor and Others v. State and Others49, the

High Court had refused the exercise of inherent power under

Section 482 of the Criminal Procedure Code because the High

Court  felt  the  subject  fell  under  its  revisional  power  under 49 (1980) 1 SCC 43

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Section 397 of the CrPC. The prosecution was launched by the

president of a youth organisation devoted to defending Indian

cultural standards, inter alia, against the unceasing waves of

celluloid  anti-culture,  arraigning,  together  with  the  theatre

owner,  the  producer,  actors  and  photographer  of  a

sensationally  captioned  and  loudly  publicised  film  by  name

Satyam, Sivam, Sundaram, under Sections 292, 293 and 34 of

the  IPC  for  alleged  punitive  prurience,  moral  depravity  and

shocking erosion of public decency. The trial court examined a

few witnesses and thereafter issued notices to the petitioners

who rushed to the High Court but faced refusal on a technical

foundation.   This  Court  formulated  two  questions  –  one  of

jurisdiction and consequent procedural compliance, the other

of jurisprudence as to when, in the setting of the Penal Code, a

picture to be publicly exhibited can be castigated as prurient

and obscene and violative of norms against venereal depravity.

The Court in that context observed:-

“8. .....Art,  morals  and  law’s  manacles  on aesthetics  are  a  sensitive  subject  where jurisprudence  meets  other  social  sciences  and never  goes  alone  to  bark  and  bite  because State-made  strait-jacket  is  an  inhibitive prescription for a free country unless enlightened

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society actively participates in the administration of justice to aesthetics.

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

46. It is worthy to note that a contention was raised that once

a  certificate  under  the  Cinematograph  Act  is  granted,  the

homage to the law of morals is paid and the further challenge

under the Penal Code is barred.  Dealing with the same, the

Court opined that:-

“Jurisprudentially speaking, law, in the sense of command to do or not to do, must be a reflection of the community’s cultural norms, not the State’s regimentation  of  aesthetic  expression  or  artistic creation.  Here  we  will  realise  the  superior jurisprudential  value  of  dharma.  which  is  a beautiful blend of the sustaining sense of morality, right  conduct,  society’s  enlightened  consensus and  the  binding  force  of  norms  so  woven  as against positive law in the Austinian sense, with an awesome halo  and  barren autonomy around the  legislated  text  is  fruitful  area  for  creative exploration.  But  morals  made  to  measure  by statute  and  court  is  risky  operation  with portentous impact on fundamental freedoms, and in  our  constitutional  order  the  root  principle  is liberty  of  expression  and  its  reasonable  control with  the  limits  of  “public  order,  decency  or

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morality”.  Here,  social  dynamics  guides  legal dynamics in the province of “policing” art forms.”

Krishna  Iyer,  J.  while  stating  thus  opined  that  once  a

certificate  under  the  Cinematograph Act  is  issued the  Penal

Code, pro tanto, will not hang limp. The court examined the

film and dealt with the issue whether its public display, in the

given  time  and  clime,  would  breach  the  public  morals  or

deprave basic decency as to offend the penal provisions.  In

that context, the learned Judge observed thus:-

“15. .....Statutory expressions are not petrified by time but must be updated by changing ethos even as popular ethics are not absolutes but abide and evolve as community consciousness enlivens and escalates. Surely, the  satwa of society must rise progressively  if  mankind  is  to  move  towards  its timeless destiny and this can be guaranteed only if  the  ultimate  value-vision  is  rooted  in  the unchanging basics, Truth — Goodness — Beauty, Satyam, Sivam,  Sundaram.  The relation between Reality  and  Relativity  must  haunt  the  Court’s evaluation  of  obscenity,  expressed  in  society’s pervasive humanity, not law’s penal prescriptions. Social  scientists  and  spiritual  scientists  will broadly agree that man lives not alone by mystic squints,  ascetic  chants  and  austere  abnegation but  by luscious love of  Beauty,  sensuous joy of companionship  and  moderate  non-denial  of normal  demands  of  the  flesh.  Extremes  and excesses boomerang although, some crazy artists and  film  directors  do  practise  Oscar  Wilde’s observation: “Moderation is a fatal thing. Nothing succeeds like excess.”

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

Pathak, J. (as His Lordship then was) in his concurring

opinion, opined that there is no difficulty in laying down that in

a trial for the offence under Sections 292 and 293 of the Indian

Penal  Code,  a  certificate  granted  under  Section  6  of  the

Cinematograph Act by the Board of Censors does not provide

an  irrebuttable  defence  to  accused  who  have  been  granted

such a certificate,  but it  is certainly a relevant fact of  some

weight to be taken into consideration by the criminal court in

deciding whether the offence charged is established.

47. Thus, from the view expressed by Krishna Iyer, J., it is

vivid that the Court laid emphasis on social dynamics and the

constitutional order which postulates the principle of liberty of

expression  and  the  limits  of  ‘public  order’,  ‘decency’  and

‘morality’.  The learned Judge has discarded the extremes and

excesses  for  they  boomerang  and  did  not  appreciate  the

observation  of  Oscar  Wilde  which pertains  to  the  statement

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“moderation is a fatal thing”.

48. In  Samresh Bose & Anr. v. Amal Mitra & Anr.50, the

appellants were the author and the publisher of a novel.  The

appellant  No.1  was  the  author  of  a  novel  which  under  the

caption “Prajapati” that came to be published “Sarodiya Desh”.

The  application  was  filed  before  the  Chief  Presidency

Magistrate,  Calcutta  complaining  that  the  said  novel

“Prajapati”  was  obscene  and  both  the  accused  persons  had

sold, distributed, printed and exhibited the same which has a

tendency to corrupt the morals of those in whose hands the

said “Sarodiya Desh” may fall, and accordingly they faced trial

under Section 292, IPC and eventually stood convicted.  The

accused persons assailed their conviction in an appeal before

the High Court and the complainant filed a criminal revision

seeking enhancement of sentence.  The High Court by common

judgment dismissed the appeal and affirmed the sentence.  A

question arose before this Court whether the accused persons

had  committed  the  offence  under  Section  292,  IPC and the

Court observed  the said question would be depending on the

finding,  whether  the  novel  is  obscene  or  not.   A  two-Judge 50 (1985) 4 SCC 289

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Bench scanned the evidence on record in great detail, for it was

essential  for  the  Court  to  evaluate  the  evidence  on  record

inasmuch as some of the witnesses had compared the plot in

the novel to that of the novel “Chokher Bali” one of the works of

Ravindra Nath Tagore.  Shri Budhadeo Bose, who was a whole

time  writer  and  Chairman  of  Comparative  Literature  of

Jadavpur  University  for  a  number  of  years,  was  cited  as  a

witness  on  behalf  of  the  accused.   While  facing  the

cross-examination,  when asked  to  cite  example  of  a  writing

vividly describing a sexual act and sexual perversity, Shri Bose

answered that anyone who knows the works of Ravindra Nath

Tagore knows that for his whole life he was a great advocate of

social and sexual freedom.  He referred to novel “Chokher Bali”

where Tagore described a love relationship between a young

Hindu widow and a young man.  He also referred to ‘Ghare

Baire’  where a highly respected married woman falls  in love

with  her  husband’s  friend.   The  witness  also  cited  Tagore’s

another  novel  “Chaturanga”  where an actual  sexual  act  has

been described in a very poetic and moving language.  The said

witness  deposed  that  the  novel  has  great  social  and  moral

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value.   

49. The Court proceeded to deal with many other witnesses at

length  and  the  view  expressed  by  the  Chief  Presidency

Magistrate and the learned Single Judge. We notice that this

Court copiously quoted from the order of  the learned Single

Judge and thereafter proceeded to deal with the contentions.

The Court referred to Section 292 as it  stood at the time of

initiation of the proceeding, referred to the decisions in Ranjit

D.  Udeshi (supra),  Chandrakant  Kakodar  (supra)  and

thereafter  observed  that  the  novel  “Lady  Chatterley’s  Lover”

which  came  to  be  condemned  as  obscene  in  India  by  this

Court, was held to be not obscene in England by the Central

Criminal Court.  The two-Judge Bench reproduced a passage

from  Penguin Books Ltd. (supra).  The Court referred to the

obscenity test which rests with jury in England but with judges

in India.  In that context, the Court proceeded to state thus:-

“In deciding the question of obscenity of any book, story or article the court whose responsibility it is to  adjudge  the  question  may,  if  the  court considers  it  necessary,  rely  to  an  extent  on evidence and views of leading literary personage, if available, for its own appreciation and assessment and  for  satisfaction  of  its  own  conscience.  The decision of  the court must necessarily be on an

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objective assessment of the book or story or article as  a  whole  and with  particular  reference  to  the passages  complained  of  in  the  book,  story  or article. The court must take an overall view of the matter complained of as obscene in the setting of the  whole  work,  but  the  matter  charged  as obscene  must  also  be  considered  by  itself  and separately to find out whether it is so gross and its obscenity  so  pronounced  that  it  is  likely  to deprave and corrupt those whose minds are open to influence of this sort and into whose hands the book  is  likely  to  fall.  Though  the  court  must consider  the  question  objectively  with  an  open mind,  yet  in  the  matter  of  objective  assessment the  subjective  attitude of  the Judge hearing the matter  is  likely  to  influence,  even  though unconsciously, his mind and his decision on the question.  A  Judge  with  a  puritan  and  prudish outlook  may  on  the  basis  of  an  objective assessment  of  any  book  or  story  or  article, consider  the  same  to  be  obscene.  It  is  possible that another Judge with a different kind of outlook may not consider the same book to be obscene on his objective assessment of  the very same book. The  concept  of  obscenity  is  moulded  to  a  very great  extent  by  the  social  outlook of  the  people who are generally expected to read the book. It is beyond  dispute  that  the  concept  of  obscenity usually differs from country to country depending on  the  standards  of  morality  of  contemporary society  in  different  countries.  In our  opinion,  in judging the question of obscenity, the Judge in the first  place  should  try  to  place  himself  in  the position of the author and from the viewpoint of the  author  the  Judge  should  try  to  understand what  is  it  that  the  author  seeks  to  convey  and whether what the author conveys has any literary and  artistic  value.  The  Judge  should  thereafter place himself in the position of a reader of every age group in whose hands the book is likely to fall

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and should try to appreciate what kind of possible influence the book is likely to have in the minds of the readers.”     

Thereafter, the Court proceeded to analyse the story of the

novel and noted thus:-

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

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50. The aforesaid analysis shows that the court has to take

an overall view of the matter; that there has to be an objective

assessment and the Judge must in the first place put himself

in the position of the author and, thereafter, in the position of

reader of every class and must eliminate the subjective element

or  personal  preference;  a  novel  cannot  be  called  obscene

usually because of slang and unconventional words in it; the

court has to see that the writing is of such that it cannot bring

home to the adolescences any suggestion which is depraving or

lascivious  and  that  the  concept  of  obscenity  usually  differs

from  country  to  country  depending  on  the  standards  of

morality of contemporary society in different countries.   

51. In  Director  General,  Directorate  General  of

Doordarshan  and  others  v.  Anand  Patwardhan  and

another51, the respondent had produced film titled Father, Son

and Holy War and had submitted the same to the Doordarshan

for  telecast,  but  the  Doordarshan  refused  to  telecast  the

documentary  film  despite  handing  over  a  copy  of  U-matic

certificate.  He preferred a writ petition before the Bombay High

51 (2006) 8 SCC 433

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Court  against  the  refusal  by  Doordarshan  to  telecast  the

documentary film which was disposed by the Division Bench

by directing Doordarshan to take a decision on the application

within  a  period  of  six  weeks.   A  Selection  Committee  was

constituted and it declined the prayer of the applicant on the

foundation that it depicted the rise of Hindu fundamentalism

and male chauvinism without giving any solution how it could

be checked and it portrayed violence and hatred.  The decision

of Select Committee was communicated to the respondent who

challenged  the  same  in  the  High  Court  of  Bombay  which

directed  the  Doordarshan  to  telecast  the  documentary  film

within the period of six weeks in the evening slot.    The same

being challenged in a special leave petition, this court directed

for  constitution  of  a  new committee  in  accordance  with  the

Guidelines  of  Doordarshan  to  consider  the  proposal  of  the

respondent.  The committee constituted in pursuance of order

of  this  court  observed  that  the  film  has  a  secular  message

relevant  to  our  times  and  our  society,  however  the  film

contains  scenes  and  speeches  which  can  influence  negative

passions  and  therefore  the  committee  would  like  a  larger

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committee to see the film and form an opinion before it is open

to  public  viewing.   Therefore,  the  Prasar  Bharti  Board

previewed the documentary film and formed opinion that its

production quality was unsatisfactory and its telecast would be

violative  of  the  policy  of  Doordarshan.   The  Court  placing

reliance on  K.A. Abbas (supra) and other authorities did not

accept the stand of the Doordarshan and dismissed the appeal.

52. In  Ajay Goswami v.  Union of India and others52 the

petitioner agitated that the grievance of freedom of speech and

expression enjoyed by the newspaper industry is not keeping

balance  with  the  protection  of  children  from  harmful  and

disturbing material.  The further prayer made was to command

the  authorities  to  strike  a  reasonable  balance  between  the

fundamental right of freedom of speech and expression enjoyed

by the press and the duties of the Government, being signatory

of the United Nations Convention on the Rights of Child, 1989

and  Universal  Declaration  of  Human  Rights,  to  protect  the

vulnerable minor from abuse, exploitation and harmful effects

of  such expression.   The further  prayer  was the  authorities

concerned should provide for classification or introduction of a 52 (2007) 1 SCC 143

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regulatory system for facilitating climate of reciprocal tolerance

which should include an acceptance of other people’s rights to

express and receive certain ideas and actions; and accepting

that other people have the right not to be exposed against their

will  to  one’s  expression  of  ideas  and  actions.    The  first

question that the court posed “is  the material  in newspaper

really  harmful  for  the  minors”.   In  that  context,  the  court

observed  that  the  moral  value  should  not  be  allowed  to  be

sacrificed in the guise of social change or cultural assimilation.

The  court  then  posed  whether  the  minors  have  got  any

independent  right  enforceable  under  Article  32  of  the

Constitution.  In the course of discussion, the court referred to

earlier authorities pronounced by this court, referred to Section

13 (2) of the Press Council Act 1978, Section 292 of the IPC

and Section 4 and 6 of the Indecent Representation of Women

(Prohibition) Act, 1986 (for short ‘the 1986 Act’) and thereafter

proceeded to deal  with test of  obscenity and in that context

observed as follows:-

“67. In judging as to whether a particular work is obscene,  regard  must  be  had  to  contemporary mores and national standards. While the Supreme Court in India held  Lady Chatterley’s Lover to be

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obscene, in England the jury acquitted the pub- lishers finding that the publication did not fall foul of the obscenity test. This was heralded as a turn- ing point in the fight for literary freedom in UK. Perhaps “community mores and standards” played a part in the Indian Supreme Court taking a dif- ferent view from the English jury. The test has be- come somewhat outdated in the context of the in- ternet age which has broken down traditional bar- riers and made publications from across the globe available with the click of a mouse.”

After  so  stating  the  court  reproduced  a  passage  from

Samresh Bose  (supra) and also a passage from  K.A. Abbas

(supra) and eventually held that:-  

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

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

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And again:-

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

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

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

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

The aforesaid decision, as it appears to us, lays down the

guarantee  given  under  the  Constitution  on  the  one  hand

pertaining to right to freedom of speech and expression to every

53 529 US 803 : 120 SCt 1878 : 146 L Ed 2d 865 (2000)

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citizen and the right of an individual expressing his views on

any issue and simultaneously the observance of the right is not

absolute if such speech and expression is immensely gross and

will badly violate standards of morality of a society and hence,

any expression is subject to reasonable restriction.  

53. At this juncture, we may refer to the pronouncement in

Bobby  Art  International v.  Om  Pal  Singh  Hoon  and

Others54,   popularly known as “Bandit Queen case”, because

the film dealt with the life of Phoolan Devi and it was based on

a  true  story.   The  appellant  had  approached  this  Court

assailing the order passed by the Division Bench of the High

Court of Delhi in Letters Patent Appeal affirming the judgment

of the learned Single Judge, who had quashed the certificate

granted to the film and directed the Censor Board to consider

the  grant  of  ‘A’  Certificate  after  certain  excisions  and

modifications  in  accordance  with  the  order  that  has  been

passed by the Court.   The Court  referred in extenso to the

authorities  in  K.A.  Abbas (supra),  Raj  Kapoor (supra),

Samresh Bose (supra), State of Bihar v. Shailabala Devi55,

54  (1996) 4 SCC 1 55 AIR 1952 SC 329

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narrated the story of the film which is a serious and sad story

of a village born female child becoming a dreaded dacoit.  The

Court  observed that  an innocent  woman had turned into  a

vicious criminal  because lust and brutality  had affected her

psyche.   The Court referred to the various levels of the film

accusing the members of the society who had tormented her

and  driven  her  to  become  a  dreaded  dacoit  filled  with  the

desire to avenge.  The Court expressed that in the light of the

said story, the individual scenes are to be viewed.  Thereafter,

the Court ruled that:-

“First, the scene where she is humiliated, stripped naked,  paraded,  made  to  draw  water  from  the well,  within  the  circle  of  a  hundred  men.  The exposure of her breasts and genitalia to those men is intended by those who strip her to demean her. The effect of so doing upon her could hardly have been better  conveyed than by  explicitly  showing the  scene.  The  object  of  doing  so  was  not  to titillate the cinemagoer’s lust but to arouse in him sympathy  for  the  victim  and  disgust  for  the perpetrators.  The  revulsion  that  the  Tribunal referred to was not at Phoolan Devi’s nudity but at the  sadism and heartlessness of  those who had stripped her  naked to rob her of  every shred of dignity.  Nakedness  does  not  always  arouse  the baser  instinct.  The reference  by  the  Tribunal  to the  film  “Schindler’s  List”  was  apt.  There  is  a scene  in  it  of  rows  of  naked  men  and  women, shown frontally, being led into the gas chambers of a Nazi concentration camp. Not only are they

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about to die but they have been stripped in their last  moments  of  the  basic  dignity  of  human beings. Tears are a likely reaction; pity, horror and a fellow-feeling of shame are certain, except in the pervert who might be aroused. We do not censor to  protect  the  pervert  or  to  assuage  the susceptibilities  of  the  over-sensitive.  “Bandit Queen” tells a powerful human story and to that story the scene of Phoolan Devi’s enforced naked parade is central. It helps to explain why Phoolan Devi became what she did: her rage and vendetta against  the  society  that  had  heaped  indignities upon her.”

The  decision  rendered  in  the  said  case  requires  to  be

appropriately appreciated.  It is seemly to notice that the Court

has gone by the true live incidents, the sincerity in depiction

by the film maker, the necessity for such depiction and the

emotions that are likely to be invoked.  Emphasis was on the

central theme of suffering. It has also taken note of the fact

that sex had not been glorified in the film.  It has also been

observed that  a  few swear  words,  the  like  of  which can be

heard everyday in every city, town and village street, would not

tempt any adult to use them because they are used in this

film.

54. In  this  context,  the  learned  senior  counsel  has

commended us to a two-Judge Bench decision in Ramesh s/o

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Chhote Lal Dalal v. Union of India and others56 wherein

the Court declined to interfere to issue a writ in the nature of

prohibition or  any other  order  restraining  Doordarshan and

the producer Govind Nihlani from telecasting or screening the

serial titled “Tamas”.  The Court referred to the view of Vivian

Bose, J. as he then was in the Nagpur High Court in the case

of  Bhagwati  Charan  Shukla  v.  Provincial  Government57

and  K.A.  Abbas (supra),  Raj  Kapoor (supra)  and  observed

thus:-

“........the potency of the motion picture is as much for  good  as  for  evil.  If  some scenes  of  violence, some nuances of expression or some events in the film can stir up certain feelings in the spectator, an  equally  deep  strong,  lasting  and  beneficial impression can be conveyed by scenes revealing the  machinations  of  selfish  interests,  scenes depicting  mutual  respect  and  tolerance,  scenes showing  comradeship,  help  and  kindness  which transcend the barriers of  religion.  Unfortunately, modern developments both in the field of cinema as well as in the field of national and international politics  have rendered it  inevitable  for  people  to face the realities of internecine conflicts, inter alia, in the name of religion. Even contemporary news bulletins very often carry scenes of pitched battle or  violence.  What  is  necessary  sometimes  is  to penetrate  behind  the  scenes  and  analyse  the causes of such conflicts. The attempt of the author in this film is to draw a lesson from our country’s

56 (1988) 1 SCC 668 57 AIR 1947 Nag 1

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past history, expose the motives of  persons who operate behind the scenes to generate and foment conflicts and to emphasise the desire of persons to live in amity and the need for them to rise above religious  barriers  and  treat  one  another  with kindness,  sympathy  and affection.  It  is  possible only  for  a  motion  picture  to  convey  such  a message in depth and if it is able to do this, it will  be an achievement of great social value.”

(Emphasis supplied)

55. In  Gandhi  Smaraka  Samithi,  v.  Kanuri  Jagadish

Prasad58,   the  appellant  filed  a  complaint  against  the

publication of  a  novel  titled “Kamotsav”,  written by accused

no.3 therein, published in a weekly, namely, Andhra Jyothi.

The novel showed two characters in nude one over the other in

a  bathroom.   The allegation was that  the  characters  of  the

novel  would  undermine  the  social  values  and  the  cultural

heritage of the society and the moral values of the individuals.

The accused faced trial under Section 292 and 293 IPC as well

as under Section 6 and 7 of the 1986 Act, but it ended in an

acquittal.   In  the  appeal   preferred  by  the  complainant

assailing the judgment of acquittal, the learned Single Judge

referred to the meaning of  “obscene”,  dwelt  upon the theme

projected by the author relating to the present day society and

58 [(1993) 2 APLJ 91 (SN)]

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how members of the high class society behave and how they

indulge in free sex and how they are addicted to drunkenness.

The  Court  observed  that  the  object  of  the  writer  is  only  to

create  some  fear  in  the  minds  of  the  readers.   The  Court

opined that the portions appearing on the pages, which was

found objectionable by the learned counsel for the appellants,

if  analysed in the context  of  the theme of  the novel,  in the

strict sense, may not answer the definition of obscene.  The

Court in that context proceeded to observe:-

“5.   ......  In  order  that  an  article  should  be obscene, it must have the tendency to corrupt the morals of those in whose hands the article may fall.  The idea as to what is deemed as obscene of course varies from age to age and from region to region  depending  upon  particular  social conditions  prevailing.   Anything  calculated  to inflame  the  passions  is  ‘obscene’.   Anything distinctly calculated to incite a reader to indulge in acts of indecency or immorality is obscene.  A book  may  be  obscene  although  it  contains  a single obscene passage.  A picture of a woman in the nude is not per se obscene.  For the purpose of deciding whether a picture is obscene or not, one  has  to  consider  to  a  great  extent  the surrounding  circumstances,  the  suggestive element in the picture and the person or persons in whose hands it is likely to fall.  It is the duty of the Court to find out where there is any obscenity or anything in the novel which will undermine or take away or influence the public in general and the readers in particular.”    

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56. The  High  Court  referred  to  its  decision  in  Promilla

kapur v. Yash Pal Bhasin59,  wherein it  has been observed

thus:-

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

59  1989 Cr.L.J. 1241

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The High Court also referred to an earlier decision of the

said Court in B.K. Adarsh v. Union of India60, wherein it was

observed  that  decency  or  indecency  of  a  particular  picture,

sequence  or  scene  cannot  depend  upon  the  nature  of  the

subject  matter,  but  the  question  is  one  of  the  manner  of

handling  of  the  subject-matter  and  sociological  or  ethical

interest or message which the film conveys to the reasonable

man, and that the approach of the Court would be from the

perspective of  social  pathological  phenomenon with a critical

doctor keeping the balance between the felt necessities of the

time  and  social  consciousness  of  a  progressive  society

eliminating the evils and propagating for the cultural evolution

literary  taste  and  pursuit  of  happiness  in  social  relations,

national integration and solidarity of the nation and the effect

of the film thereon.  In the said case, it was also observed that

the sense of decency or indecency have to be kept in view in

adjudging whether the motion picture would stand to the test

of satisfying a reasonable man in the society that it would not

deprave or debase or corrupt his moral standards or induce

lewdness, lasciviousness or lustful thoughts.   60   AIR 1990 AP 100

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57. In  S.  Khushboo  v.  Kanniammal  and  another61 the

appellant,  a  well  known  actress  had  approached  this  court

seeking  quashment  of  the  criminal  proceeding  registered

against her for offences punishable under Sections 499, 500,

509 IPC and Sections 4 and 6 of the 1986 Act.  The controversy

arose as India Today, a fortnightly magazine, had conducted a

survey on the subject of sexual habits of people residing in the

bigger cities of India.  One of the issues discussed as part of

the said survey was increasing incidence of pre-marital sex.  As

a  part  of  this  exercise  the  magazine  had  gathered  and

published  the  views  expressed  by  several  individuals  from

different segments of society, including those of the appellant.

In  her  personal  opinion,  she  had  mentioned  about  live-in

relationships  and  called  for  the  societal  acceptance  of  the

same.  She had qualified her remarks by observing that girls

should  take  adequate  precautions  to  prevent  unwanted

pregnancies  and  transmission  of  venereal  diseases.

Subsequent to the publication in India today Dhina Thanthi, a

Tamil  daily  carried  a  news  item  which  first  quoted  the

appellant’s  statement  published  in  India  Today  and  then 61 (2010) 5 SCC  600

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opined that  it  had created a  sensation all  over  the  State  of

Tamil  Nadu.   The  news  item  also  reported  a  conversation

between the appellant and a correspondent of  Dhina Thanthi

wherein  the  appellant  had  purportedly  defended  her  views.

However, soon after publication in Dhina Thanthi the appellant

sent a legal notice categorically denying that she had made the

statement  as  had  been  reproduced  in  Dhina  Thanthi  and

required  to  publish  her  objection  prominently  within  three

days.  The publication of the statements in  India Today  and

Dhina Thanthi  drew criticism from some quarters and several

persons and organizations filed criminal complaints against the

appellant.   The  appellant  approached  the  High  Court  for

quashment of the criminal proceeding but as the High Court

declined to interfere, this court was moved in a special leave

petition.  The court perused the complaints which revealed that

most  of  the  allegations  pertained  to  offences  such  as

defamation, obscenity, indecent representation of women and

incitement among others.   While dealing with the section 292

IPC, the court held thus:-  

“24. Coming to the substance of the complaints, we fail to see how the appellant’s remarks amount

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to “obscenity” in the context of Section 292 IPC. sub-section  (1)  of  Section  292  states  that  the publication of  a  book,  pamphlet,  paper,  writing, drawing, painting, representation, figure, etc. will be deemed obscene, if—

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

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

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

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

Thereafter, the court referred to the authorities in Ranjit

D. Udeshi  (supra) and  Samresh Bose  (surpa) and proceeded

to observe:-  

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

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to societal attitudes.

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

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

xxx xxx xxx

50.  Thus,  dissemination  of  news  and  views  for popular  consumption  is  permissible  under  our constitutional  scheme.  The  different  views  are allowed to  be  expressed  by  the  proponents  and

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opponents. A culture of responsible reading is to be  inculcated  amongst  the  prudent  readers. Morality  and  criminality  are  far  from  being coextensive. An expression of opinion in favour of non-dogmatic and non-conventional morality has to be tolerated as the same cannot be a ground to penalise the author.”

The aforesaid authority, thus, emphasises on the need for

tolerance of  unpopular views in the socio-cultural  space.   It

also takes note of the fact that notions of social morality are

inherently  subjective;  and  morality  and  criminality  are  not

co-extensive.  It is apt to note here that in the said case, the

Court  has  also  held  that  by  the  statement  of  the  appellant

therein no offence was committed.  The Court recognised that

free  flow  of  notions  and  ideas  is  essential  to  sustain  the

collective lives of the citizenry.

58. Recently in Aveek Sarkar and another v. State of West

Bengal  and  others62,  the  Court  was  dealing  with  the  fact

situation where Boris Becker, a world renowned tennis player,

had  posed nude  with  his  dark-skinned  fiancée  by  name

Barbara Feltus, a film actress.  Both of them spoke freely about

their  engagement,  their  lives  and  future  plans.  The  article

projected Boris Becker as a strident protester of the pernicious 62 (2014) 4 SCC 257

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practice of “Apartheid” and the purpose of the photograph was

also to signify that love champions over hatred.  The article was

published in the German magazine by name  “Stern”. “Sports

World”,  a  widely  circulated  magazine  had  reproduced  the

photograph  and  the  article  as  cover  story.   “Anandabazar

Patrika”, a newspaper having wide circulation in Kolkata, also

published in the second page of the newspaper the photograph

as  it  appeared  in  Sports  World.   A  lawyer  claiming  to  be  a

regular reader of Sports World as well as Anandabazar Patrika

filed  a  complaint  under  Section  292  of  IPC  against  the

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

newspaper and also against the Editor of Sports World, former

Captain  of  Indian  Cricket  Team,  Late  Mansoor  Ali  Khan

Pataudi.  The learned Magistrate  took cognizance and issued

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

the 1986 Act.  The appellants approached the High Court for

quashing the criminal proceeding but the High Court declined

to exercise the jurisdiction under Section 482 CrPC.  It  was

contended before this Court that obscenity has to be judged in

the context of contemporary social mores, current socio-moral

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attitude  of  the  community  and  the  prevalent  norms  of

acceptability/susceptibility  of  the  community,  in  relation  to

matters  in  issue.   Reliance  was  placed  on  the  Constitution

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

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

to the principles stated in the aforesaid two decisions and the

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

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

the  view  expressed  therein  was  the  contemporary  social

standards in the year 1985.  The Court further observed that

while judging a particular photograph, and the article of the

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

contemporary mores and the national standards and not the

standards of a group of susceptible or sensitive persons.  The

Court  referred to the pronouncement in  Hicklin  (supra)  the

majority view in Brody v. R63, and the pronouncement in R. v.

Butler64 and opined thus:-

“23. We are also of the view that  Hicklin test65 is not  the  correct  test  to  be  applied  to  determine “what is obscenity”. Section 292 of the Penal Code,

63 1962 SCR 681 (Can SC) 64 (1992) 1 SCR 452 (Can SC) 65 (1868) LR 3 QB 360

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of  course,  uses  the  expression  “lascivious  and prurient interests” or its effect. Later, it has also been  indicated  in  the  said  section  of  the applicability  of  the  effect  and  the  necessity  of taking  the  items  as  a  whole  and  on  that foundation  where  such  items  would  tend  to deprave  and  corrupt  persons  who  are  likely,   having regard to all the relevant circumstances, to read,  see  or  hear  the  matter  contained  or embodied in it.  We have,  therefore,  to apply the “community  standard  test”  rather  than  the “Hicklin test” to determine what is “obscenity”. A bare  reading  of  sub-section  (1)  of  Section  292, makes  clear  that  a  picture  or  article  shall  be deemed to be obscene

(i) if it is lascivious;

(ii) it appeals to the prurient interest; and

(iii) it tends to deprave and corrupt persons who are likely to read, see or hear the matter, alleged to be obscene.

Once  the  matter  is  found  to  be  obscene,  the question may arise as to whether the impugned matter falls within any of the exceptions contained in  the  section.  A  picture  of  a  nude/semi-nude woman, as such, cannot per se be called obscene unless it has the tendency to arouse the feeling of or  revealing  an  overt  sexual  desire.  The  picture should  be  suggestive  of  deprave  mind  and designed to excite sexual passion in persons who are  likely  to  see  it,  which  will  depend  on  the particular posture and the background in which the  nude/semi-nude  woman  is  depicted.  Only those sex-related materials which have a tendency of  “exciting  lustful  thoughts”  can  be  held  to  be obscene, but the obscenity has to be judged from the point of view of an average person, by applying

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contemporary community standards.”

The  Court  also  referred  to  Bobby  Art  International

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

community tolerance test, the photograph was not suggestive

of  deprave  minds  and  designed  to  excite  sexual  passion  in

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

Court further proceeded to state that the photograph has no

tendency to deprave or corrupt the minds of the people because

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

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

the  world  at  large.   The  Court  observed  that  Boris  Becker

himself in the article published in the German magazine, spoke

of  the  racial  discrimination  prevalent  in  Germany  and  the

article  highlighted  Boris  Becker’s  protest  against  racism  in

Germany.  Proceeding further, the Court ruled that:-

“The message, the photograph wants to convey is that  the  colour  of  skin  matters  little  and  love champions over colour. The picture promotes love affair,  leading  to  a  marriage,  between  a white-skinned man and a  black-skinned woman. We should,  therefore,  appreciate  the photograph and the article in the light of the message it wants to convey, that is to eradicate the evil of racism and apartheid in the society and to promote love and marriage between white-skinned man and a

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black-skinned woman. When viewed in that angle, we are not prepared to say that the picture or the article which was reproduced by Sports World and the  Anandabazar  Patrika be  said  to  be objectionable so as to initiate proceedings under Section 292 IPC or under Section 4 of the Indecent Representation of Women (Prohibition) Act, 1986.”

Thus,  the  aforesaid  decision applies  the  “contemporary

community  standards  test”  and  rules  that  the  factum  of

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

person.

59. Very recently, in Shreya Singhal v. Union of India66, a

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

of obscenity, has held that:-

“45. This Court in  Ranjit  Udeshi (supra) took a rather restrictive view of what would pass muster as not being obscene.  The Court followed the test laid  down  in  the  old  English  judgment  in Hicklin’s case which was whether the tendency of the matter charged as obscene is to deprave and corrupt  those  whose  minds  are  open  to  such immoral  influences  and  into  who  hands  a publication of  this sort  may fall.   Great strides have been made since this decision in UK, United States,  as  well  as  in  our  country.   Thus,  in Director  General  of  Doordarshan  v.  Anand Patwardhan67,  this  Court  notice  the  law in  the United States and said that  a material  may be regarded  as  obscene  if  the  average  person applying  contemporary  community  standards

66  2015 (4) SCALE 1 67  (2006) 8 SCC 433

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would  find  that  the  subject  matter  taken  as  a whole appeals to the prurient interest and that taken  as  a  whole  it  otherwise  lacks  serious literary artistic, political, educational or scientific value (see para 31).

46. In a recent judgment of  this Court,  Aveek Sarkar (supra),  this  Court  referred  to  English, U.S. and Candadian judgments and moved away from  the  Hicklin  test  and  applied  the contemporary community standard test.”

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

day that the prevalent test  in praesenti  is  the contemporary

community standards test.

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

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

prevalent test in United Kingdom, United States of America and

the  test  formulated  by  the  European  Courts.   We  have

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

studied scrutiny and analysis of the judgments, there can be

no  shadow of  doubt  that  this  Court  has  laid  down various

guidelines from time to time and accepted the contemporary

community standards test as the parameter and also observed

that the contemporary community standards test would vary

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

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

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

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

learned  senior  counsel  has  emphasised  on  the  comparables

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

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

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

the  Court  has  emphatically  laid  down  that  the  test  as

contemporary  community  standards  test,  and  it  would,  of

course, depend upon the cultural, attitudinal and civilisational

change.   There  has  also  been  stress  on  the  modernity  of

approach and, the artistic freedom, the progression of global

ideas and the synchronisation of the same into the thinking of

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

Court  analysed  the  theme of  the  novel  and dwelt  upon the

description in the various parts of  the book and found that

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

Court  has  observed  that  was  the  contemporary  community

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

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

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hold that contemporary community standards test is the main

criterion  and  it  has  to  be  appreciated  on  the  foundation  of

modern  perception,  regard  being  had  to  the  criterion  that

develops  the  literature.   There  can  neither  be  stagnation  of

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

can conceive  of  many  a  thing  and project  them in different

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

sometimes have referred to various books on literature of the

foreign authors and expressed the view that certain writings

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

best reflect what the community accepts.    

Right  to  Freedom  of  Speech  and  Expression  under  the Constitution

61. Having  stated  about  the  test  that  is  applicable  to

determine obscenity we are required to dwell upon the right to

freedom  of  speech  and  expression.   The  words,  freedom  of

speech  and  expression  find  place  in  the  association  words

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

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

its own sanctity and the said concepts have been enshrined in

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the Preamble.   

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

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

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

“19.  Protection  of  certain  rights  regarding freedom of speech etc. –  (1)  All  citizens  shall have the right -  

(a) to freedom of speech and expression;

...

(2) Nothing in sub clause (a) to clause (1) shall affect the operation of any existing law, or prevent the State from making any law, insofar as such law  imposes  reasonable  restrictions  on  the exercise  of  the  right  conferred by  the  said  sub clause  in  the  interests  of  the  sovereignty  and integrity  of  India,  the  security  of  the  State, friendly  relations  with  foreign  States,  public order,  decency  or  morality  or  in  relation  to contempt of court, defamation or incitement to an offence.”

63. Learned  senior  counsel  for  the  appellant  has  drawn

inspiration from the Constituent Assembly Debates especially

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

has  reproduced  the  following  excerpts  from the  Constituent

Assembly Debates:-

“......my purpose in bringing forward this amend- ment is to point out that, if all the freedoms enu-

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merated in this  article  are  to be in accordance with only the provisions of this article, or are to be guaranteed subject to the provisions of this ar- ticle  only,  then  they  would  amount  more  to  a negation of freedom than the promise or assur- ance  of  freedom,  because  in  everyone  of  these clauses  the  exceptions  are  much more  empha- sised than the positive provision. In fact, what is given by one right hand seems to be taken away by three or four or five left hands; and therefore the article is rendered negatory in any opinion.    I am sure that was not the intention or meaning of  the  draftsmen who  put  in  the  other  articles also. I suggest therefore that instead of making it subject to the provisions of this article, we should make it subject to the provisions of this Constitu- tion. That is to say, in this Constitution this arti- cle  will  remain.  Therefore  if  you want  to  insist upon these  exceptions,  the  exceptions  will  also remain.  But  the  spirit  of  the  Constitution,  the ideal under which this Constitution is based, will also come in, which I humbly submit, would not be the case, if you emphasise only this article. If you say merely subject to the provisions of this article,  then  you  very  clearly  emphasise  and make it necessary to read only this article by it- self, which is more restrictive than necessary.

.........The freedoms are curtly enumerated in 5, 6 or 7 items in one sub-clause of the article. The exceptions are all separately mentioned in sepa- rate sub-clauses. And their scope is so widened that I do not know what cannot be included as exception to these freedoms rather than the rule. In fact,  the freedoms guaranteed or assured by

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this article become so elusive that are would find it  necessary  to  have  a  microscope  to  discover where these freedoms are, whenever it suits the State or the authorities running it to deny them. I would, therefore, repeat that you should bring in the provisions of the whole Constitution, includ- ing its preamble, and including all other articles and chapters where the spirit of the Constitution should  be  more  easily  and  fully  gathered  than merely  in  this  article,  which,  in  my  judgment, runs counter to the spirit of the Constitution....

I also suggest that it would not be enough to enu- merate these freedoms, and say the citizen shall have  them. I  would  like to  add the words also that  by  this  Constitution  these  freedoms  are guaranteed. That is to say, any exception which is made, unless justified by the spirit of the Con- stitution, the Constitution as a whole and every part  of  it  included,  would be a violation of  the freedoms guaranteed hereby.  

(December 1, 1948)”

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

manner by which the fundamental right to “freedom of speech

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

urged by Mr. Subramanium that when two interpretations of

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

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

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

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fundamental  right  to  freedom  of  speech  and  expression  is

guarded  and  any  attempt  to  overreach  the  same is  kept  in

check.   

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

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

State of Kerala and Others68, emphasis has been laid on the

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

Kesavanada Bharti (supra) observed thus:-

“15.  I  need  hardly  observe  that  I  am  not interpreting  an  ordinary  statute,  but  a Constitution  which  apart  from  setting  up  a machinery  for  Government,  has  a  noble  and grand vision. The vision was put in words in the preamble and carried out in part  by conferring fundamental rights on the people. The vision was directed  to  be  further  carried  out  by  the application of directive principles.”

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

ruled:-

“506. The Constitution-makers gave to the Pre- amble the pride of place. It embodied in a solemn form all the ideals and aspirations for which the country had struggled during the British regime and a Constitution was sought to be enacted in accordance with the genius of the Indian people. It certainly represented an amalgam of schemes and  ideas  adopted  from  the  Constitutions  of other  countries.  But  the  constant  strain  which

68  (1973) 4 SCC 225

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runs  throughout  each  and  every  article  of  the Constitution is  reflected in the Preamble which could and can be made sacrosanct. It is not with- out  significance  that  the  Preamble  was  passed only after  draft  articles of  the Constitution had been  adopted  with  such  modifications  as  were approved by the Constituent Assembly. The Pre- amble was, therefore, meant to embody in a very few and well-defined words the key to the under- standing of the Constitution.

513. The history of the drafting and the ultimate adoption of the Preamble shows—

(1) that it did not “walk before the Constitution” as  is  said  about  the  Preamble  to  the  United States Constitution;

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

(3) that  the  principles  embodied  in  it  were taken mainly from the Objectives Resolution;

(4) the Drafting Committee felt, it should incor- porate  in  it  “the  essential  features  of  the  new State”;

(5) that it embodied the fundamental concept of sovereignty being in the people.”

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

always  to  see  the  said  Article  in  aid  of  the  Preambular

objectives  which  form  a  part  of  the  basic  structure  of  the

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

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Preambular  objectives  and  it  is  the  duty  of  the  Court  to

progressively  realise  the  values  of  the  Constitution.   In

Maneka Gandhi v. Union of India69, it has been held:-

“5........It  is  indeed  difficult  to  see  on  what principle we can refuse to give its plain natural meaning to the expression “personal  liberty”  as used in Article 21 and read it in a narrow and restricted sense so as to exclude those attributes of  personal  liberty  which  are  specifically  dealt with  in  Article  19.  We  do  not  think  that  this would  be  a  correct  way  of  interpreting  the provisions  of  the  Constitution  conferring fundamental  rights.  The  attempt  of  the  Court should be to expand the reach and ambit of the fundamental  rights  rather  than  attenuate  their meaning  and  content  by  a  process  of  judicial construction. The wavelength for comprehending the scope and ambit  of  the fundamental  rights has been set by this Court in  R.C. Cooper case70 and  our  approach  in  the  interpretation  of  the fundamental  rights  must  now  be  in  tune  with this wavelength.  We may point  out  even at the cost of repetition that this Court has said in so many  terms  in  R.C.  Cooper  case that  each freedom has different dimensions and there may be  overlapping  between  different  fundamental rights and therefore it is not a valid argument to say  that  the  expression  “personal  liberty”  in Article  21  must  be  so  interpreted  as  to  avoid overlapping between that article and Article 19(1). The expression “personal liberty” in Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have....”

69  (1978) 1 SCC 248 70 (1970) 2 SCC 298

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Krishna Iyer, J. in his concurring opinion has observed

thus:-

“96. A thorny problem debated recurrently at the bar, turning on Article 19, demands some juristic response  although  avoidance  of  overlap  per- suades me to drop all other questions canvassed before us. The Gopalan verdict, with the cocoon- ing of Article 22 into a self-contained code, has suffered suppression at the hands of R.C. Cooper (supra). By way of aside, the fluctuating fortunes of fundamental rights, when the proletarist and the  proprietarist  have  asserted  them  in  Court, partially provoke sociological research and hesi- tantly  project  the  Cardozo  thesis  of  sub-con- scious forces in judicial  noesis when the cyclo- ramic review starts from Gopalan, moves on to In re Kerala Education Bill71 and then on to All-India Bank Employees’ Association72, next to Sakal Pa- pers73, crowning in Cooper and followed by  Ben- nett  Coleman74 and  Shambhu Nath  Sarkar75.  Be that as it may, the law is now settled, as I appre- hend it, that no article in Part III is an island but part  of  a  continent,  and the  conspectus of  the whole  part  gives  the  direction  and  correction needed  for  interpretation  of  these  basic  provi- sions. Man is not dissectible into separate limbs and, likewise, cardinal rights in an organic con- stitution, which make man human have a syn- thesis. The proposition is indubitable that Article 21 does not, in a given situation, exclude Article 19 if both rights are breached.

97. We may switch to Article 19 very briefly and travel along another street for a while. Is freedom

71  1959 SCR 995 72  1962 3 SCR 269 73  (1962) 3 SCR 842 74  (1973) 2 SCR 757 75  (1973) 1 SCC 856

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of extra-territorial  travel to assure which is the primary office of an Indian passport, a facet of the freedom of speech and expression, of profession or vocation under Article 19? My total consensus with  Shri  Justice  Bhagwati  jettisons  from  this judgment  the  profusion  of  precedents  and  the mosaic of many points and confines me to some fundamentals  confusion  on  which,  with  all  the clarity on details, may mar the conclusion. It is a salutary thought that the summit Court should not  interpret  constitutional  rights  enshrined  in Part III to choke its life-breath or chill its elan vi- tal by processes of legalism, overruling the endur- ing values burning in the bosoms of those who won our independence and drew up our founding document.  We  must  also  remember  that  when this Court lays down the law, not  ad hoc tunes but  essential  notes,  not  temporary  tumult  but transcendental  truth,  must  guide  the  judicial process in translating into authoritative notation and mood music of the Constitution.”

Beg, J. has stated that:-

“202. Articles dealing with different fundamental rights contained in Part III of the Constitution do not represent entirely separate streams of rights which do not mingle at many points.  They are all parts of an integrated scheme in the Constitution Their waters must mix to constitute that grand flow of unimpeded and impartial Justice (social, economic  and  political),  Freedom  (not  Only  of thought,  expression,  belief,  faith  and  worship, but  also  of  association,  movement,  vocation  or occupation  as  well  as  of  acquisition  and possession of reasonable property), of Equality (

of  status  and of  opportunity,  which imply absence of unreasonable or unfair discrimination between individuals, groups, and classes) and of Fraternity (assuring dignity of the individual and

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the unity of the nation), which our Constitution visualizes.  Isolation of various aspects of human freedom,  for  purposes  of  their  protection,  is neither realistic nor beneficial  but would defeat the very objects of such protection.”

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

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

declare  freedom of  speech and expression as a fundamental

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

bind  any  legislative  or  executive  action  interfere  with  the

exercise of the said right, except insofar as permissible under

Article 19(2).     

69. In Gajanan Visheshwar Birjur v. Union of India76, this

Court  was  dealing  with  the  order  of  confiscation  of  books

containing the Marxist literature.  The Court referring to the

supremacy of the fundamental right to freedom of speech and

expression, observed that the Constitution of India permits a

free trade in ideas and ideologies and guarantees freedom of

thought  and  expression,  the  only  limitation  being  a  law  in

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

further  observed  that  thought  control  is  alien  to  our

constitutional  scheme  and  referred  to  the  observations  of 76  (1994) 5 SCC 550

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Robert  Jackson,  J.  in  American  Communications

Association v. Douds77 with reference to the US Constitution

wherein it  was stated that  thought control  is  a copyright  of

totalitarianism,  and it  was  unacceptable.   The  Court  finally

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

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

keep the Government from falling into error.  

70. More important and relevantly lucid are observations in

Sahara India Real Estate Corpn. Ltd. v. SEBI78, where while

dealing  with  the  freedom of  speech,  the  Constitution Bench

held:-

“Freedom of expression is one of the most cher- ished values of a free democratic society. It is in- dispensable to the operation of a democratic soci- ety whose basic postulate is that the Government shall  be based on the consent of  the governed. But,  such  a  consent  implies  not  only  that  the consent  shall  be  free  but  also  that  it  shall  be grounded  on  adequate  information,  discussion and aided by the widest possible dissemination of information and opinions from diverse and antag- onistic sources. Freedom of expression which in- cludes freedom of the press has a capacious con- tent  and  is  not  restricted  to  expression  of thoughts and ideas which are accepted and ac- ceptable but also to those which offend or shock any section of the population. It also includes the

77  339 US 382 78 (2012) 10 SCC 603

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right to receive information and ideas of all kinds from different sources. In essence, the freedom of expression embodies the right to know. However, under our Constitution no right in Part III is ab- solute. Freedom of expression is not an absolute value under our Constitution. It must not be for- gotten  that  no  single  value,  no  matter  exalted, can bear the full  burden of  upholding a demo- cratic system of government. Underlying our con- stitutional system are a number of important val- ues, all of which help to guarantee our liberties, but in ways which sometimes conflict. Under our Constitution,  probably,  no  values  are  absolute. All important values, therefore, must be qualified and balanced against other important, and often competing,  values.  This  process  of  definition, qualification and balancing is as much required with respect to the value of freedom of expression as it is for other values.”  

71. In  State of Karnataka v. Associated Management of

English  Medium  Primary  &  Secondary  Schools79, while

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

tion Bench opined:-

“36. The word “freedom” in Article 19 of the Consti- tution means absence of control by the State and Article 19(1) provides that the State will not impose controls on the citizen in the matters mentioned in sub-clauses  (a),  (b),  (c),  (d),  (e)  and  (g)  of  Article 19(1) except those specified in clauses (2) to (6) of Article 19 of the Constitution. In all matters speci- fied in clause (1) of Article 19, the citizen has there- fore  the  liberty  to  choose,  subject  only  to  restric- tions in clauses (2) to (6) of Article 19. One of the reasons for giving this liberty to the citizens is con-

79 (2014) 9 SCC 485

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tained in  the  famous essay  “On Liberty”  by  John Stuart Mill. He writes:

“…  Secondly, the principle requires liberty of tastes and pursuits; of  framing the plan of our life to suit our own character; of doing as we like, subject  to  such  consequences  as  may  follow: without impediment from our fellow creatures, so long as what we do does not harm them, even though  they  should  think  our  conduct  foolish, perverse, or wrong.”

According to Mill, therefore, each individual must in certain matters be left alone to frame the plan of his life to suit his own character and to do as he likes without any impediment and even if he decides to act foolishly in such matters, society or on its behalf the State should not interfere with the choice of the individual. Harold J. Laski, who was not prepared to accept Mill’s attempts to define the limits of State interference, was also of the opinion that in some matters  the  individual  must  have  the  freedom of choice. To quote a passage from A Grammar of Poli- tics by Harold J. Laski:

“… My freedoms are avenues of choice through which I may, as I deem fit, construct for myself my own course of  conduct. And the freedoms I must possess to enjoy a general liberty are those which,  in  their  sum,  will  constitute  the  path through which my best self is capable of attain- ment. That is not to say it will be attained. It is to say only that I alone can make that best self, and that without those freedoms I have not the means of manufacture at my disposal.”

37. Freedom or choice in the matter of speech and expression is absolutely necessary for an individual to develop his personality in his own way and this is

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one reason, if not the only reason, why under Article 19(1)(a)  of the Constitution every citizen has been guaranteed the right to freedom of speech and ex- pression.

38. This Court has from time to time expanded the scope  of  the  right  to  freedom  of  speech  and expression guaranteed under Article 19(1)(a) of the Constitution by consistently adopting a very liberal interpretation.  In  Romesh  Thappar v.  State  of Madras80,  this  Court  held  that  freedom of  speech and expression includes freedom of propagation of ideas  which  is  ensured  by  freedom of  circulation and in Sakal Papers (P) Ltd. v. Union of India81, this Court held that freedom of speech and expression carries  with  it  the  right  to  publish  and  circulate one’s ideas, opinions and views. In Bennett Coleman & Co. v.  Union of India82, this Court also held that the  freedom  of  press  means  right  of  citizens  to speak, publish and express their views as well  as right  of  people  to  read  and  in  Odyssey Communications  (P)  Ltd. v.  Lokvidayan Sanghatana83,  this  Court  has  further  held  that freedom of speech and expression includes the right of citizens to exhibit films on Doordarshan.”

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

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

immense emphasis on the said authority, has submitted that

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

unconstitutional, the Court has really elevated the concept of

freedom of speech and expression to a great height.  We have 80 AIR 1950 SC 124 81 AIR 1962 SC 305 82 (1972 2 SCC 788 83 (1988) 3 SCC 410

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already referred to certain passages of the said decision in the

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

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

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

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

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

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

content of freedom of expression, opined that:-  

“There are three concepts which are fundamental in understanding  the  reach  of  this  most  basic  of human rights.  The first is discussion, the second is advocacy,  and  the  third  is  incitement.   Mere discussion or even advocacy of  a particular cause howsoever unpopular is at the heart of Article 19(1) (a).   It  is  only when such discussion or advocacy reaches the level of incitement that Article 19(1)(a). It is only when such discussion or advocacy reaches the level of incitement that Article 19(2) kicks in.  It is at this stage that a law may be made curtailing the speech or expression that leads inexorably to or tends to cause public disorder or tends to cause or tends to affect the sovereignty & integrity or India, the  security  of  the  State,  friendly  relations  with foreign  States,  etc.   Why  it  is  important  to  have these three concepts in mind is because most of the arguments  of  both  petitioners  and  respondents tended to veer around the expression “public order.”

And again:-

“47. What has been said with regard to public order and incitement to an offence equally applies here.

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Bench has  upheld  the  constitutional  validity  of  Section 292

IPC.

Mahatma Gandhi as  perceived by this Court and certain authors

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

obscenity and the conceptual definition of poetry and what is

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

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

the expression ‘historically respected personalities’.  It is true

that  the  Constitution  does  not  recognize  any  personality

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

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

concept  of  personality  test  is  applied,  a  new  ingredient  to

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

legislature and this Court should refrain from doing the same.

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

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

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

which holds the field today is  the ‘contemporary community

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

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an ingredient  to  the  offence  as  conceived  by  the  legislature

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

judge obscenity.  The said test has been evolved by conceptual

hermeneutics.  We appreciate the anxiety of Mr. Subramanium,

learned senior counsel appearing for the appellant, and we are

also  absolutely  conscious  that  this  Court  cannot  create  an

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

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

the ‘historically respected persons’.  Though the question uses

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

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

Though some may think it is patently manifest or known that

Mahatma Gandhi  is  the  Father  of  the  Nation and the  most

respected  historical  personality  in  this  country,  yet  we  are

obliged to reflect on Mahatma Gandhi to know how this Court

has  spoken  about  Mahatma  Gandhi  and  how  others  have

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

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

hearing has referred to certain passages from the text books

which  are  critical  of  Mahatma  Gandhi,  his  life  and  his

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

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

refer to certain decisions of this Court where Mahatma Gandhi

or Gandhian thought have been reflected.  

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

stated  that  the  Constitution  bears  the  imprint  of  the

philosophy of our National Movement for Swaraj.  The Court

also stated that  Mahatma Gandhi gave to the Movement the

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

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

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

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

And he further observed that:-

“The philosophy of Mahatma Gandhi was rooted in  our  ancient  tradition;  the  philosophy  of Jawaharlal  Nehru  was  influenced  by  modern progressive  thinking.  But  the  common denominator  in  their  philosophies  was humanism.  The  humanism  of  the  Western Enlightenment  comprehended  mere  political equality; the humanism of Mahatma Gandhi and Jawaharlal  Nehru  was  instinct  with  social  and economic  equality.  The  former  made  man  a political  citizen;  the latter  aims to make him a 'perfect'  citizen.  This  new  humanist  philosophy became the catalyst of the National Movement for Swaraj.”

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77. In  K.  Karunakaran  v.  T.V.  Eachara  Warrier,84 this

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

being  faced  with  inconvenient  situations  which  require  a

Mahatma Gandhi to own up Himalayan blunders and unfold

unpleasant truths truthfully.

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

“22. …These rights represent the basic values of a  civilised  society  and  the  constitution-makers declared that they shall be given a place of pride in the Constitution and elevated to the status of fundamental rights. The long years of the freedom struggle inspired by the dynamic spiritualism of Mahatma Gandhi and in fact the entire cultural and  spiritual  history  of  India  formed  the background  against  which  these  rights  were enacted  and  consequently,  these  rights  were conceived  by  the  constitution-makers  not  in  a narrow limited sense but in their widest sweep, for  the  aim  and  objective  was  to  build  a  new social  order  where  man  will  not  be  a  mere plaything  in  the  hands  of  the  State  or  a  few privileged persons but there will be full scope and opportunity  for  him  to  achieve  the  maximum development of his personality and the dignity of the individual will be fully assured.”

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

Rajappa85, this Court observed:-  

“There  is  no  degrading  touch  about  “industry”, 84  (1978) 1 SCC 18 85  (1978) 2 SCC 213

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especially  in  the  light  of  Mahatma  Gandhi’s dictum  that  ‘Work  is  Worship”.  Indeed  the colonial  system  of  education,  which  divorced book  learning  from manual  work  and  practical training, has been responsible for the calamities in that field. For that very reason, Gandhiji and Dr  Zakir  Hussain  propagated  basic  education which  used  work  as  modus  operandus  for teaching.  We  have  hardly  any  hesitation  in regarding education as an industry.”

80. In  Minerva Mills  Ltd.  v.  Union of  India86,  the  Court

noted thus:-  

“53. ....  The emergence of  Mahatma Gandhi  on the political scene gave to the freedom movement a  new  dimension:  it  ceased  to  be  merely anti-British;  it  became  a  movement  for  the acquisition  of  rights  of  liberty  for  the  Indian Community.  

103. ......  Mahatma  Gandhi,  the  father  of  the nation, said in his inimitable style in words, full of poignancy:

“Economic  equality  is  the  master  key  to non-violent  independence.  A  non-violent system of government is an impossibility so long as the wide gulf between the rich and the  hungry  millions  persists.  The  contrast between the palaces of  New Delhi and the miserable hovels of the poor labouring class cannot last one day in a free India in which the poor will  enjoy the same power as the rich  in  the  land.  A  violent  and  bloody revolution  is  a  certainty  one  day,  unless there is voluntary abdication of riches and the power that riches give and sharing them

86  (1980) 3 SCC 625

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for common good.”

81. In  Akhil  Bharatiya  Soshit  Karamchari  Sangh

(Railway) v. Union of India87, there is an observation which

reads thus:-  

“13.  …There  was  the  Everest  presence  of Mahatma Gandhi, the Father of the Nation, who staked his life for the  harijan cause. There was Baba Saheb Ambedkar — a  mahar by birth and fighter to his last breath against the  himalayan injustice to the harijan fellow millions stigmatised by  their  genetic  handicap  —  who  was  the Chairman  of  the  drafting  committee  of  the Constituent Assembly.”

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

India88, it has been stated:-  

“Mahatma Gandhi once said to Gurudev Tagore, “I have had the pain of watching birds, who for want of strength could not be coaxed even into a flutter of their wings. The human bird under the Indian  sky  gets  up  weaker  than  when  he pretended to retire. For millions it is an eternal vigil or an eternal trance.”

83. In Bachan Singh v. State of Punjab89, the Court noted:-

“22. …Mahatma Gandhi also wrote to the same effect in his simple but inimitable style:

“Destruction of  individuals can never be a

87  (1981) 1 SCC 246 88  (1982) 3 SCC 235 89  (1982) 3 SCC 24

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virtuous act. The evil-doers cannot be done to death. Today there is a movement afoot for the abolition of capital punishment and attempts are being made to convert prisons into  hospitals  as  if  they  are  persons suffering from a disease.””

84. In  Kailash Sonkar v. Maya Devi90, (1984) 2 SCC 91,

the observation is:-  

“4. As  Mahatma  Gandhi,  father  of  the  nation, said  “India  lives  in  villages”  and  so  do  the backward classes, hence the primary task was to take constructive steps in order to boost up these classes  by  giving  them  adequate  concessions, opportunities, facilities and representation in the services  and,  last  but  not  the  least,  in  the electorate  so  that  their  voices  and  views, grievances and needs in the Parliament and State legislatures in the country may be heard, felt and fulfilled.”

85. In  Pradeep Jain v.  Union of  India91,  emphasising  on

formation of one nation, the Court observed:-  

“This concept of one nation took firm roots in the minds  and  hearts  of  the  people  during  the struggle for independence under the leadership of Mahatma Gandhi. He has rightly been called the Father  of  the  Nation  because  it  was  he  who awakened in the people of this country a sense of national  consciousness  and instilled  in  them a high sense of patriotism without which it is not possible to build a country into nationhood.”

90  (1984) 2 SCC 91 91  (1984) 3 SCC 654

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86. In Indra Sawhney v. Union of India92 and ors. the Court

observed that it is Mahatma Gandhi, who infused secular spirit

amongst the people of India.  

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

others93 speaking on statesmanship, the larger Bench noted:-

“24.  Mahatma  Gandhi  and  other  leaders  of modern  times  advocated  to  maintain  national unity and integrity.  It  was with the weapons of secularism  and  non-violence  that  Mahatma Gandhi  fought  the  battle  for  independence against  the  mightly  colonial  rulers.  As  early  as 1908, Gandhiji wrote in Hind Swaraj:

India  cannot  cease  to  be  one  nation, because  people  belonging  to  different religions live in it....In no part of the world are  on  nationality  and  on  religion synonymous terms; nor has it ever been so in India.”

88. In T.N. Godavarman Thirumulpad v. Union of India94,

while  making  a  reference  to  fundamental  duties,  the  Court

found that:-

“35. The Father of the Nation Mahatma Gandhi has  also  taught  us  the  same  principle  and  all those concepts find their place in Article 51-A(g) as well.”

89. In  Dalip  Singh  Vs. State  of  U.P.  and  Ors.95,  while 92  (1992) Supp. 3 SCC 217 93  (1994) 3 SCC 1 94  (2012) 4 SCC 362 95  (2010) 2 SCC 114

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

Gautam Buddha and Mahatma Gandhi guided the people to

ingrain these values in their  daily  life.  Truth constituted an

integral Dart of justice delivery system which was in vogue in

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

truth in the courts irrespective of the consequences.

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

decisions  where  the  name  of  Mahatma  Gandhi  has  been

referred to with reverence and elaborating on various facets of

life of Gandhi and Gandhian thought.   There are also certain

eminent  persons  who  have  referred  to  Mahatma  Gandhi  in

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

lectures has spoken:-  

“We,  in  India,  were  fortunate  to  have  been led during  the  struggle  for  Independence  by  one, who, apart from being an astute political leader, was  also  a  great  moral  crusader  who  has  his place  in  history  along  with  the  Buddha  and Christ.  Fro him, means were no less important than the ends.  There was in the personality of the  Mahatma  a  subtle,  indescribable,  magic touch, for all the different persons who came in close contact with him were turned into men of gold,  be  it  Nehru  or  Patel,  Azad  or  Rajendra Prasad, Rajaji or J.P. Narayan.  Since the death of Mahatma, except for observing his birthday as a national holiday, we have remembered him in

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no better way than by riding roughshod over the principles  of  truth  and  moral  values  that  he propagated all his life.”

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

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

Mahatma Gandhi.  Mr. Subramanium, learned senior counsel

also referred to certain books indicating that there are many

critical passages about Mahatma Gandhi.  The books referred

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

India”96 and “Sex and Power”97.   In this regard we may also

refer  to  Mahatma Gandhi  The  Early  Phase  Vol.I98,  Gandhian

Constitution  for  Free  India99,  Gandhi’s  Philosophy  of  Law100,

Mahatma Gandhi101, The Myth of the Mahatma102, Gandhi Before

India103,  In  Search  of  Gandhi104,  Gandhi’s  View  of  Legal

Justice105,  Gandhi,  Soldier  of  Non-Violence:  An Introduction106,

Trial  of  Mr.  Gandhi107,  Gandhi  and  Civil  Disobedience

96  Lelyveld Joseph, Great Soul: Mahatma Gandhi and his struggle with India, Harpr Collins, 2011; page 97  Banerjee Rita, Sex and Power: Defining History, Shaping Societies, Penguin, 2008; page 274 98  Pyarelal, Navajivan Publishing House, 1965 99  Shriman Narayan Agarwal, Kitabistan, 1946 100 V.S. Hegde, Concept Publishing Company, 1983 101  Sankar Ghose, Allied Publishers Limited, 1991 102  MMichael Edwardes, UBS Publishers’ distributors Ltd., 1986 103  Ramachandra Guha, Penguin Books, 2013 104  Richard Attenborough, B.I. Publications, 1982 105  Ajit Atri, Deep & Deep Publications Pvt. Ltd., 2007 106 Calvin Kytle, Seven Locks Press, 1983 107  Francis Watson, Macmillan and Co., 1969

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Movement108,  Tilak,  Gandhi  and  Gita109,  Studies  in  Modern

Indian Political thought: Gandhi an Interpretation110, Gandhi and

the Partition of India111, Gandhi in London112, Mahatma Gandhi

Contribution to Hinduism113,  Life of Mahatma Gandhi114,  Moral

and Political Thought of Mahatma Gandhi115, Gandhi and Social

Action Today116, Gandhi: The Man and the Mahatma117, Gandhi

and  Ideology  of  Swadeshi118,  Gandhi’s  Khadi:  History  of

Contention and Conciliation119, Mahatma Gandhi and Jawarhal

Nehru:  A  Historic  Partnership  Vol.1  (1916-1931)120,  Gandhi:

Prisoner  of  Hope121,  Mahatma  Gandhi  and  His  Apostles122,

Gandhi and Status of Women123, Philosophy of Gandhi: A Study

of His Basic Ideas124, Gandhi Naked Ambition125, Meera and the

Mahatma126, and The Men Who Killed Gandhi127.

108  S.R. Bakshi, Gitanjali Publishing House, 1985 109  D.K. Gosavi, Bharatiya Vidya Bhavan, 1983 110  O.P. Goyal, Kitab Mahal Pvt. Ltd., 1964 111  Sandhya Chaudhri, Sterling Publishers Pvt. Ltd., 1984 112 James D Hunt, Promilla & Co., 1978 113  K.K. Lal Karna, Classical Publishing Co., 1981 114  Louis Fisher, Granada, 1982 115  Raghavan N. Iyer, Oxford University Press, 1973 116  Mery Kappen (Ed.), Sterling Publishers Pvt. Ltd., 1990 117  Ram Sharma, Rajan, 1985 118 S.R. Bakshi, Reliance Publishing House, 1987 119  Rahul Ramagundam, Orient Longman Pvt. Ltd., 2008 120  Madhu Limaye, B.R. Publishing Corporation, 1989 121  Judith M. Brown, Oxford University Press, 1990 122  Ved Mehta, Indian Book Company, 1977 123  S.R. Bakshi, Criterion Publications, 1987 124  Glyn Richards, Rupa & Co., 1991 125  Jad Adams,  Quercus, 2010 126  Sudhir Kakar, Yiking – Penguin, 2004 127  Manohar Malgonkar, Roli Books, 2008

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92. Some of  these  books  praise  Gandhi,  analyse  Gandhian

thoughts, criticise Gandhian philosophy, express their dissent,

disagree with his political quotient and also comment on his

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

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

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

his thoughts or philosophy.  We are reminded of what Voltaire

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

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

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

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

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

views freely about a historically respected personality showing

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

evaluation.

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

Gandhi is used to communicate the feelings of Gandhiji or his

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

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

of artistic freedom or critical thinking or generating the idea of

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

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

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

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

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

speech and many a concept.   

Concept of poetry

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

the definition or description as many authors have thought of.

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

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

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

‘invention’.”   

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

in which emotion spontaneously  embodies itself.”   Macaulay

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

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

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

means of colours”.128     

128 Essay on Milton

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

Thought”.129  Shelley states, “in a general sense may be defined

as the expression of the imagination”.130  Hazlitt defines poetry

as “it is the language of the imagination and the passions”.131  

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

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

conceptions  by  imagination  and  fancy,  and  modulating  its

language on the principle of variety in unity”.132

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

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

not truth.133  German philosopher Hegel has thought that the

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

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

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

the  frame  of  mind they  induce.134  There  is  no  difficulty  in

saying that the definition or understanding of concept of poetry

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

the poet.   

129 Heroes and Hero-Worship, Lecture iii 130 Defence of Poetry 131 Lectures on the English Poets, i 132 Imagination and Fancy, i. 133 Lectures and Notes on Shakespeare and other English Poets, and Biographia Literaria, chapter xiv. 134 Preface to Parnassus

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The poem in issue

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

same solely for the purpose of adjudging whether the order of

framing of charge under Section 292 IPC is sustainable, regard

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

High Court has correctly applied the principle.  The High Court

has categorically  opined that  there is  a prima facie  case for

proceeding against the accused under Section 292 IPC.  It is

submitted  by  Mr.  Subramanium,  learned  senior  counsel

appearing for the appellant that the poem does not use obscene

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

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

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

submission  that  the  poem  actually  expresses  the  prevalent

situation  in  certain  arenas  and  the  agony  and  anguish

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

surrealistic  presentation.   That  apart,  contends  Mr.

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

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

reflectible.   Learned senior counsel  would submit that apart

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

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

Mahatma Gandhi.   

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

submit  that  the  poem  refers  singularly  and  exclusively  to

Mahatma Gandhi in every stanza.  The learned friend of the

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

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

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

“(i) I met Gandhi on the road _____ in the name of ______”

xxxx xxxx xxxx

“(ii) I met Gandhi In Tagore’s Geetanjali, He was writing a poem On ________”

xxxx xxxx xxxx

“(iii) When I met Gandhi On  earth  which  is  the  property  of  the common man Playing  husband-and-wife  games  with orphan children, He said == Nidharmi Bharat ka kya pahchan? _____________”

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

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appropriate to reproduce the words.  There are other stanzas

also which have their own reflection.  Whether the poem has

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

time  of  framing  of  charge.   The  author  in  his  own

understanding and through the  process of  trial  can put  his

stand and stance before the learned trial Judge.  

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

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

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

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

Section 292 IPC, but the moment there is established identity

pertaining  to  Mahatma  Gandhi,  the  character  of  the  words

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

differently,  the poem might not  have been obscene otherwise

had the name of Mahatma Gandhi, a highly respected historical

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

Nariman would emphatically  submit that  the poem distinctly

refers to Mahatma Gandhi because the sketch of  Gandhiji  is

there figuratively across the entire page in his customary garb,

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

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

comes  within  the  sweep  of  Section  292  IPC.   The  learned

amicus  curiae  would  submit  that  the  use  of  the  name  of

Mahatma  Gandhi  enhances  the  conceptual  perception  of

obscenity as is understood by this Court.

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

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

The recognition of freedom of thought and expression cannot be

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

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

broad  canvas  and  under  no  circumstances,  any  historical

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

that the Constitution of India is an impersonalised document

and poetry which encourages fearlessness of expression, cannot

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

senior counsel has further submitted that freedom to offend is

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

liberator, submits Mr. Subramanium, can be composed through

a merely voice explaining plurality of thought.  He would submit

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the  instant  poem  is  one  where  there  is  “transference  of

consciousness” that exposes the social hypocrisy and it cannot

be perceived with a conditioned mind.  

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

Subramanium can be broadly accepted, but we do not intend

to express any opinion that freedom of speech gives liberty to

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

personality  is  concerned,  learned  senior  counsel,  while

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

speech on the pedestal  of  an absolute concept.   Freedom of

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

has to have inherent limitations which are permissible within

the constitutional parameters.   We have already opined that

freedom of speech and expression as enshrined under Article

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

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

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

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

cannot be put in the compartment of absoluteness.  There is

constitutional  limitation  attached  to  it.   In  the  context  of

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obscenity, the provision enshrined under Section 292 IPC has

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

historically respected personality to the arena of Section 292

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

incorporated.   The  judicially  evolved  test,  that  is,

“contemporary community standards test” is a parameter for

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

spoken by a historically respected personality as a medium of

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

artistic work gets signification.  That makes the test applicable

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

example can be given.   A playwright  conceives a plot  where

Mahatma Gandhi,  Vishwakavi  Rabindra Nath Tagore, Sardar

Vallabh Bhai Patel meet in heaven and they engage themselves

in the discussion of their activities what they had undertaken

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

their  conversation enters  into  the  area  of  egoism,  thereafter

slowly  graduates  into  the  sphere  of  megalomania  and

eventually  they  start  abusing  each other  and in  the  abuses

they use obscene words.  The question would be whether the

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dramatist  can  contend  that  he  has  used  them as  symbolic

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

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

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

has chosen historically  respected persons as the medium to

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

melts  into  insignificance  and  obscenity  merges  into  surface

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

has travelled into the field of perversity and moved away from

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

historically respected personality matters.  

Conclusion

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

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

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

standards  test”  becomes  applicable  with  more  vigour,  in  a

greater  degree  and  in  an  accentuated  manner.   What  can

otherwise pass of the contemporary community standards test

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

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Mahatma  Gandhi  is  used  as  a  symbol  or  allusion  or

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

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

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

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

of the High Court pertaining to the framing of charge under

Section 292 IPC cannot be flawed.  

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

is  noticeable  that  he  had  published  the  poem  in  question,

which  had  already  been  recited  during  the  Akhil  Bhartiya

Sahithya Sammelan at Amba Jogai in 1980, and was earlier

published  on  2.10.1986  by  others.   The  appellant  has

published  the  poem  only  in  1994.   But  immediately  after

coming to know about the reactions of certain employees, he

tendered  unconditional  apology  in  the  next  issue  of  the

‘Bulletin’.   Once  he  has  tendered  the  unconditional  apology

even before the inception of the proceedings and almost more

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

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

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

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submitted that  he  had printed  as  desired by  the  publisher.

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

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

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

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

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

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

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

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

had submitted that the appellant having offered unconditional

apology immediately and regard being had to the passage of

time, he along with the printer should be discharged.  

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

our  unreserved  and  uninhibited  appreciation  for  the

distinguished  assistance  rendered  by  Mr.  Fali  S.  Nariman,

learned amicus curiae.  We also record our appreciation for the

sustained endeavour put forth by Mr. Subramanium, learned

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

value in rendering the judgment.

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108. Consequently,  the  appeal  stands  disposed  of  in  above

terms.  

.............................J. [Dipak Misra]

..............................J.          [Prafulla C. Pant]

New Delhi May 14, 2015