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Thursday, May 14, 2015

whether the poem titled “Gandhi Mala Bhetala” (‘I met Gandhi’) in the magazine named the ‘Bulletin’ which was published, in July-August, 1994 issue, meant for private circulation amongst the members of All India Bank Association Union, could in the ultimate eventuate give rise to framing of charge under Section 292 IPC against the author, the publisher and the printer. The question framed reads thus:- “Regard being had to the importance of the matter, we had sought the assistance of Mr. Fali S. Nariman, learned senior counsel, to assist the Court, and he has gladly rendered. At the time of hearing, we have asked the learned senior counsel, learned Amicus Curiae, to assist the Court as regards the proposition whether in a write-up or a poem, keeping in view the concept and conception of poetic license and the liberty of perception and expression, use the name of a historically respected personality by way of allusion or symbol is permissible.” 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 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 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

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.1179 OF 2010


Devidas Ramachandra Tuljapurkar              ... Appellant

                                Versus

State of Maharashtra & Ors.                  ...Respondents



                               J U D G M E N T



Dipak Misra, J.

The Controversy
The seminal issue that spiralled in the course of  hearing  of  this  appeal
centres around the question framed vide  order  dated  18.2.2015,  for  this
Court thought it apposite to answer, whether the poem  titled  “Gandhi  Mala
Bhetala” (‘I met Gandhi’) in the magazine named  the  ‘Bulletin’  which  was
published,  in  July-August,  1994  issue,  meant  for  private  circulation
amongst the members of All  India  Bank  Association  Union,  could  in  the
ultimate eventuate give rise to framing of  charge  under  Section  292  IPC
against the author, the publisher and  the  printer.   The  question  framed
reads thus:-
“Regard being had to the  importance  of  the  matter,  we  had  sought  the
assistance of Mr. Fali S. Nariman, learned senior  counsel,  to  assist  the
Court, and he has gladly rendered.  At the time of hearing,  we  have  asked
the learned senior counsel, learned Amicus Curiae, to assist  the  Court  as
regards the proposition whether in a write-up or a  poem,  keeping  in  view
the concept and conception of poetic license and the liberty  of  perception
and expression, use the name of a historically respected personality by  way
of allusion or symbol is permissible.”

      Mr. Gopal Subramanium,  learned  senior  counsel,  appearing  for  the
appellant, in his written note  of  submissions,  has  segregated  the  said
question into five parts, namely, (a) whether there could be a reference  to
a historically respected personality; (b) could that reference be by way  of
allusion or symbol; (c) could that allusion be resorted to in a write-up  or
a poem; (d) whether the conception and concept  of  poetic  license  permits
adopting an allusion; and  (e)  whether  any  of  the  above  could  involve
ascribing words or acts to a historically reputed  personality  which  could
appear obscene to a reader.  He has urged with solemn  vehemence  that  when
the  author  is  not  represented  before  the  Court,  adjudication  on  an
important issue which  fundamentally  relates  to  freedom  of  thought  and
expression, would be inappropriate and a poem or  a  write-up  is  indeed  a
part of free speech and expression, as perceived under Article  19(1)(a)  of
the Constitution and that apart the expression “poetic licence”  is  neither
a concept nor a conception because  the  idea  of  a  poetic  freedom  is  a
guaranteed and an enforceable fundamental right and this  Court  should  not
detract and convert it into a  permissive  licence.   Additionally,  learned
senior counsel has contended that quintessential liberty of  perception  and
expression  when  placed  in  juxtaposition  with   “poetic   licence”,   is
inapposite since the expression “permissible” sounds a discordant note  with
“liberty of perception and  expression”,  a  sacrosanct  fundamental  right,
integral to human dignity, thought, feeling, behaviour, expression  and  all
jural concepts of human freedom guaranteed not only under  the  Constitution
but even recognised under the International Covenants, for  they  can  never
be placed in the company or association of expressions such as “license”  or
“permissibility”.    Emphasising  on   the   said   facet,   submitted   Mr.
Subramanium that the Constitution has liberated the citizens from  ‘license’
and ‘permissibility’,  which  are  expressions  of  disempowerment  and  the
entire freedom struggle was centered  around  the  concept  of  empowerment.
There is a suggestion in the  written  note  of  submissions  to  place  the
matter before a Bench of five Judges as enshrined under  Article  145(3)  of
the Constitution.  In spite of the said submission, learned senior  counsel,
we must appreciably state, has copiously dealt with  the  issues  that  have
emerged from the question, in his written note of submissions.
Mr. Fali S. Nariman, learned senior counsel and amicus curiae supported  the
phraseology in the question  with  immense  intellectual  vigour,  patience,
perseverance and endeavour and submitted that the issue that this Court  has
thought of addressing is absolutely  invulnerable  and  unalterable  as  the
Constitution of India does not recognise absolute freedom and Article  19(2)
of the  Constitution  regulates  the  same  and  Section  292  IPC  being  a
provision which is saved by Article 19(2), the presence or  absence  of  the
author is immaterial; what is to be seen is whether  the  poem  prima  facie
exhibits obscenity, especially,  in  the  context  of  Mahatma  Gandhi,  the
“Father of the Nation”,  as  the  identity  of  the  historically  respected
personality is absolutely clear and there is no scintilla of  doubt  in  the
mind of any average reader.  Learned amicus curiae  would  submit  that  the
question deserves to be dealt with and answered in proper perspective.

Clarification of the question framed
2.    We are obligated to clarify the position.  It is  apt  to  state  here
the question framed by us has to be contextually understood.   The  question
was framed in the factual matrix of the case.  The proposition presented  is
that  despite  all  the  poetic  licence  and  liberty  of  perception   and
expression, whether ‘poem’ or ‘write-up’ can use the name of a  historically
respected personality by way of an allusion or symbol in an obscene  manner.
 “Historically respected personality” was used in the backdrop  of  the  use
of  the  name  of  Mahatma  Gandhi.  When  the  name  of  such  a  respected
personality is used as an allusion or symbol, and  language  is  revoltingly
suggestive whether that is likely to come within  the  perceived  ambit  and
sweep of Section 292 IPC, whether it is permissible.  We  shall  dwell  upon
this facet when we will discuss the poem in a prima facie  manner,  for  the
purpose of scrutinising the order framing charge; and  we  shall  also  deal
with the submission of Mr.  Subramanium,  which  has  been  assiduously  put
forth by him that the name of Gandhi has been used as a  surrealistic  voice
and hence, the poet  is  entitled  to  use  the  language  as  a  medium  of
expression  in  the  poem.   We  do  not  intend  to  catalogue   names   of
historically respected personalities as that is not an issue in  this  case.
Here the case rests on the poem titled “I met Gandhi”.  As far as the  words
“poetic license”, are concerned, it can never remotely  mean  a  license  as
used or understood in the language of law.     There  is  no  authority  who
gives a license to a poet.  These are words from the  realm  of  literature.
The poet assumes his own freedom which is allowed to him by the  fundamental
concept of poetry.  He is free to depart from the  reality;  fly  away  from
grammar; walk in glory by not following the systematic  metres;  coin  words
at his  own  will;  use  archaic  words  to  convey  thoughts  or  attribute
meanings; hide ideas beyond  myths  which  can  be  absolutely  unrealistic;
totally pave a path where neither rhyme nor rhythm prevail; can put  serious
ideas in satires, ifferisms, notorious repartees;  take  aid  of  analogies,
metaphors, similes in his own style,  compare  like  “life  with  sandwiches
that is consumed everyday” or  “life  is  like  peeling  of  an  onion”,  or
“society is like a stew”; define ideas that can balloon into the  sky  never
to come down; cause violence to logic  at  his  own  fancy;  escape  to  the
sphere  of  figurative  truism;  get  engrossed  in   “universal   eye   for
resemblance”, and one can do nothing except writing a critical  appreciation
in his own manner and according to  his understanding.  When the  poet  says
“I saw eternity yesterday  night”,  no  reader  would  understand  the  term
‘eternity’ in its prosaic sense.  The Hamletian question has many  a  layer;
each  is  free  to  confer  a  meaning;  be  it  traditional  or  modern  or
individualistic.  No one can stop a dramatist or  a  poet  or  a  writer  to
write freely expressing  his  thoughts  and  similarly  none  can  stop  the
critics to give their comments whatever its worth.  One may  concentrate  on
classical facets and one may think at a metaphysical  level  or  concentrate
on romanticism as is understood in the poems of Keats, Byron or  Shelley  or
one may dwell on the nature and write poems like  William  Wordsworth  whose
poems, say some, are as didactic.  One may  also  venture  to  compose  like
Alexander Pope or Dryden or get into individual modernism like  Ezra  Pound,
T.S. Eliot or Pablo Neruda.   That is fundamentally what is meant by  poetic
license.
3.    We may slightly delve into the area in Sanskrit literature  that  gave
immense emphasis on aesthetics.  The concept of  rasa  though  mentioned  in
the Vedas and by Valmiki gets consummate expression in  all  its  complexity
with  Bharata  when  he  introduces  it  to  explain  aesthetic  experience.
“Vibhavanubhav  vyabhichari  sanyogadrasnishpati”.   Bharata  discusses   in
detail the contributing factors like vibhavas,  anubhavas,  vybhicharibhavas
and sthayibhavas.  Dandin emphasises on lucidity,  sweetness,  richness  and
grandeur to  basically  constitute  poetry  and  that  is  why  it  is  said
“Dandinha Padlalityam”.   Some critics like Vamana,  stressing  on  soul  of
poetry perceive ‘riti’ as “Ritiraatma kavyasya”.   Some  also  subscribe  to
the theory that ‘rasa’ gets expressed through dhvani.   There  are  thinkers
who compare writings of T.S. Eliot, when he  states  poetic  delineation  of
sentiments and feelings, to have the potentiality of being  associated  with
the ‘element of surprise’ which is essential to  poetry,  and  there  he  is
akin to Indian poeticians like Kuntaka who called  poetry  ‘vakrokti’  which
he explains as “vaidagdhyabhangibhaniti” – a mode  of  expression  depending
on the peculiar turn given to it by the skill of the poet.   Some  emphasise
on “best words used in best  order”  so  that  poem  can  attain  style  and
elevation.  To put it differently, the ‘poetic licence’ can have  individual
features, deviate from norm, may form collective characteristics or  it  may
have a linguistic freedom wider than a syntax sentence compass.
4.    We have emphasised on these facets as we are disposed  to  think  that
the manner in which the learned senior counsel has suggested the meaning  of
‘poetic license’ is not apt.  Freedom of writing is not in  question.   That
cannot be.  And we say so without any fear of contradiction.
5.    In course of our judgment, we shall deal with the  other  facets  that
have been so assiduously put forth by Mr. Subramanium and  so  indefatigably
controverted by Mr. Fali S. Nariman, learned amicus curiae.
The factual score
6.    As far as the suggestion given for placing the matter before  a  five-
Judge Bench, we are of the considered view that there is  no  need  for  the
same.
7.    Presently, we shall state the exposition of facts.  On the basis of  a
complaint lodged by one V.V. Anaskar, a resident of Pune, and  a  member  of
‘Patit Pawan Sangthan’, with the Commissioner of  Police,  relating  to  the
publication of the poem, which was published, in  July-August,  1994,  meant
for private circulation amongst the members of All  India  Bank  Association
Union, a crime was registered as FIR No. 7/95 at P.S. Gandhi  Chowk,  Latur,
on being transferred from Pune, for the offences punishable  under  Sections
153-A and  153-B  read  with  Section  34,  IPC  and  eventually  after  due
investigation charge sheet was filed for the said offences along  with  292,
IPC  against  the  present  appellant,  the  publisher  and   the   printer,
respondent no.3, of the Bulletin  and  the  author,  one  Vasant  Dattatraya
Gujar.  When the matter was pending before the  Chief  Judicial  Magistrate,
Latur, all the accused persons filed an application for  discharge  and  the
learned Magistrate by order  dated  4.5.2001  held  that  no  case  for  the
offences under Sections  153-A  and  153-B  was  made  out  and  accordingly
discharged them of the said offences but declined to do  so  in  respect  of
the offence under Section 292, IPC.  On a revision being filed, the  learned
Additional Sessions Judge did not think it  appropriate  to  interfere  with
the order passed by the  trial  Magistrate  which  constrained  the  accused
persons to invoke jurisdiction under Section 482 of the CrPC  and  the  High
Court of Bombay, Aurangabad  Bench  dismissed  the  application.   The  said
decision is the subject of matter of this appeal by  special  leave  at  the
instance of the publisher.  The author has chosen not to  assail  the  order
passed by the High Court.

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

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

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

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

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

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


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


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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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


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


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

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


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


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

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

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

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

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


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


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

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

      xxx              xxx             xxx


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

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

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


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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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


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

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

(2)   Whoever—

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

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

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

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

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

Exception  — This section does not extend to—

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(c) that it is patently offensive because  it  is  opposed  to  contemporary
standards.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

            xxx        xxx        xxx

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

      The aforesaid authority, thus, emphasises on the  need  for  tolerance
of unpopular views in the socio-cultural space.  It also takes note  of  the
fact  that  notions  of  social  morality  are  inherently  subjective;  and
morality and criminality are not co-extensive.  It is apt to note here  that
in the said case, the Court has also held  that  by  the  statement  of  the
appellant therein no offence was committed.  The Court recognised that  free
flow of notions and ideas is essential to sustain the  collective  lives  of
the citizenry.
58.   Recently in Aveek Sarkar and another  v.  State  of  West  Bengal  and
others[62], the Court was  dealing  with  the  fact  situation  where  Boris
Becker, a world renowned tennis  player,  had  posed  nude  with  his  dark-
skinned fiancée by name Barbara Feltus, a film actress.  Both of them  spoke
freely about their engagement, their lives and  future  plans.  The  article
projected Boris Becker as a strident protester of  the  pernicious  practice
of “Apartheid” and the purpose of the photograph was also  to  signify  that
love champions over  hatred.   The  article  was  published  in  the  German
magazine by name “Stern”. “Sports World”, a widely circulated  magazine  had
reproduced the photograph and the  article  as  cover  story.   “Anandabazar
Patrika”, a newspaper having wide circulation in Kolkata, also published  in
the second page of the newspaper the photograph as  it  appeared  in  Sports
World.  A lawyer claiming to be a regular reader of Sports World as well  as
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 attitude  of  the  community  and  the  prevalent
norms of acceptability/susceptibility  of  the  community,  in  relation  to
matters in issue.  Reliance was placed on the  Constitution  Bench  decision
in Ranjit D. Udeshi (supra)  and  Chandrakant  Kalyandas  Kakodkar  (supra).
The two-Judge Bench referred to the principles stated in the  aforesaid  two
decisions and the principles stated in Samresh Bose (supra).  While  quoting
a passage from Samresh Bose  (supra),  the  Court  observed  that  the  view
expressed therein was the contemporary social standards in  the  year  1985.
The Court further observed that while judging a particular  photograph,  and
the article of the newspaper as obscene in 2014, regard must be had  to  the
contemporary mores and the national standards and not  the  standards  of  a
group of susceptible or  sensitive  persons.   The  Court  referred  to  the
pronouncement in Hicklin (supra) the majority view in Brody  v.  R[63],  and
the pronouncement in R. v. Butler[64] and opined thus:-
“23. We are also of the view that Hicklin test[65] is not the  correct  test
to be applied to determine “what is obscenity”. Section  292  of  the  Penal
Code, 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,  [pic]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

if it is lascivious;

(ii)  it appeals to the prurient interest; and

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

      Thus, the  aforesaid  decision  applies  the  “contemporary  community
standards test” and rules that the factum of  obscenity  has  to  be  judged
from the point of view of an average person.
59.   Very recently, in Shreya Singhal v. Union of  India[66],  a  two-Judge
Bench of this Court, while dealing with the concept of obscenity,  has  held
that:-
“45.  This Court in Ranjit Udeshi (supra) took a rather restrictive view  of
what would pass muster as not being obscene.  The Court  followed  the  test
laid down in the old English judgment in Hicklin’s case  which  was  whether
the tendency of the matter charged as obscene  is  to  deprave  and  corrupt
those whose minds are open to such immoral influences and into who  hands  a
publication of this sort may fall.  Great strides have been made since  this
decision in UK, United  States,  as  well  as  in  our  country.   Thus,  in
Director General of Doordarshan v. Anand Patwardhan[67], this  Court  notice
the law in the United States and said that a material  may  be  regarded  as
obscene if the average  person  applying  contemporary  community  standards
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
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 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  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 amendment is to point  out  that,
if all the freedoms enumerated 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 article only, then they would amount more to  a  negation
of freedom than the promise or assurance of freedom, because in everyone  of
these clauses the exceptions are much  more  emphasised  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 Constitution. That is to say, in this  Constitution  this
article 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
itself, 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
separate 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 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, including 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 enumerate 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
Constitution, 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
fundamental right to freedom of speech and expression  is  guarded  and  any
attempt to overreach the same is kept in check.
65.   Now, we shall refer to the Preamble as it uses the words  “liberty  of
thought and  expression”  In  Kesavanada  Bharti  v.  State  of  Kerala  and
Others[68], emphasis has been laid on the preamble of the  Constitution  and
its objectives.  Sikri, C.J. in Kesavanada Bharti (supra) observed thus:-
“15. I need hardly observe that I am not interpreting an  ordinary  statute,
but a Constitution which apart from setting up a machinery  for  Government,
has a noble and grand vision. The vision was put in words  in  the  preamble
and carried out in part by conferring fundamental rights on the people.  The
vision was directed  to  be  further  carried  out  by  the  application  of
directive principles.”

66.   Shelat and Grover JJs in their judgment in the said case ruled:-
“506. The Constitution-makers gave to the Preamble 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  runs
throughout each and every article of the Constitution is  reflected  in  the
Preamble which  could  and  can  be  made  sacrosanct.  It  is  not  without
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 Preamble was, therefore, meant to embody in  a
very few and  well-defined  words  the  key  to  the  understanding  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;

[pic] (4)   the Drafting Committee felt, it should incorporate  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 Preambular objectives and it is  the  duty  of
the Court to progressively realise  the  values  of  the  Constitution.   In
Maneka Gandhi v. Union of India[69], it has been held:-
“5........It is indeed difficult to see on what principle we can  refuse  to
give its plain natural meaning to the expression “personal liberty” as  used
in Article 21 and read it in a narrow and restricted sense so as to  exclude
those attributes of personal liberty which are specifically  dealt  with  in
Article  19.  We  do  not  think  that  this  would  be  a  correct  way  of
interpreting the  provisions  of  the  Constitution  conferring  fundamental
rights. The attempt of the Court should be to expand the reach and ambit  of
the fundamental rights rather than attenuate their meaning and content by  a
process of judicial  construction.  The  wavelength  for  comprehending  the
scope and ambit of the fundamental rights has been  set  by  this  Court  in
R.C.  Cooper  case[70]  and  our  approach  in  the  interpretation  of  the
fundamental rights must now be in tune with this wavelength.  We  may  point
out even at the cost of repetition that this  Court  has  said  in  so  many
terms in R.C. Cooper case that each freedom  has  different  dimensions  and
there may be overlapping between different fundamental rights and  therefore
it is not a valid argument to say that the expression “personal liberty”  in
Article 21 must be so interpreted  as  to  avoid  overlapping  between  that
article and Article 19(1). The expression “personal liberty” in  Article  21
is of the widest amplitude and it covers a variety of  rights  which  go  to
constitute the personal liberty of man and some of them have....”

      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  persuades
me to drop all other questions canvassed before  us.  The  Gopalan  verdict,
with the cocooning 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 hesitantly project the Cardozo thesis of  sub-conscious  forces
in judicial noesis when the cycloramic review starts from Gopalan, moves  on
to In re Kerala Education Bill[71] and then on to All-India Bank  Employees’
Association[72], next to Sakal Papers[73], crowning in Cooper  and  followed
by Bennett Coleman[74] and Shambhu Nath Sarkar[75]. Be that as it  may,  the
law is now settled, as I apprehend 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
provisions. Man is  not  dissectible  into  separate  limbs  and,  likewise,
cardinal rights in an organic constitution, which  make  man  human  have  a
synthesis. 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 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 vital by  processes  of  legalism,  overruling  the
enduring 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 the unity of the nation), which  our
Constitution visualizes.  Isolation of various  aspects  of  human  freedom,
for purposes of their protection, is neither realistic  nor  beneficial  but
would defeat the very objects of such protection.”

68.   In Maneka Gandhi (supra), while interpreting Article 19(1)(a), it  has
been ruled that what the said Article does is to declare freedom  of  speech
and expression as a fundamental  right  and  to  protect  it  against  State
action.    The  State  cannot  bind  any  legislative  or  executive  action
interfere  with  the  exercise  of  the  said  right,  except   insofar   as
permissible under Article 19(2).
69.   In Gajanan Visheshwar Birjur v. Union of  India[76],  this  Court  was
dealing with the order of  confiscation  of  books  containing  the  Marxist
literature.  The Court referring to the supremacy of the  fundamental  right
to freedom of speech and  expression,  observed  that  the  Constitution  of
India permits a free trade in ideas and ideologies  and  guarantees  freedom
of thought and expression, the only limitation  being  a  law  in  terms  of
Clause (2) of Article 19 of the Constitution.  The  Court  further  observed
that thought control is alien to our constitutional scheme and  referred  to
the  observations  of  Robert  Jackson,  J.   in   American   Communications
Association v. Douds[77] with reference to the US  Constitution  wherein  it
was stated that thought control is a copyright of  totalitarianism,  and  it
was unacceptable.  The Court finally stated that it is not the  function  of
our Government to keep the citizen  from  falling  into  error;  it  is  the
function of the citizen to keep the Government from falling into error.
70.   More important and relevantly lucid are observations in  Sahara  India
Real Estate Corpn. Ltd. v. SEBI[78], where while dealing  with  the  freedom
of speech, the Constitution Bench held:-
“Freedom of expression is one  of  the  most  cherished  values  of  a  free
democratic society. It is indispensable to the  operation  of  a  democratic
society 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 antagonistic sources.  Freedom  of
expression which includes freedom of the press has a capacious  content  and
is not restricted to expression of thoughts and  ideas  which  are  accepted
and acceptable but also to those which offend [pic]or shock any  section  of
the population. It also includes the 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 absolute. Freedom of expression is not an absolute  value  under
our Constitution. It must not be forgotten that no single value,  no  matter
exalted, can bear the full  burden  of  upholding  a  democratic  system  of
government. Underlying our constitutional system are a number  of  important
values, all of which help to guarantee our  liberties,  but  in  ways  which
sometimes  conflict.  Under  our  Constitution,  probably,  no  values   are
absolute. All important values, therefore, must be  qualified  and  balanced
against other important,  and  often  competing,  values.  This  process  of
definition, qualification and balancing is as much required with respect  to
the value of freedom of expression as it is for other values.”

71.   In State of Karnataka  v.  Associated  Management  of  English  Medium
Primary & Secondary  Schools[79],  while  dealing  with  the  freedom  under
Article 19(1)(a), the Constitution Bench opined:-
“36. The word “freedom” in Article 19 of the Constitution 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
specified in clause (1)  of  Article  19,  the  citizen  has  therefore  the
liberty to choose, subject only to restrictions in clauses  (2)  to  (6)  of
Article 19. One of the reasons for giving this liberty to  the  citizens  is
contained 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
Politics 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  attainment.
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 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 expression.

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
[pic]Romesh Thappar v. State of Madras[80], this Court held that freedom  of
speech and expression includes freedom of  propagation  of  ideas  which  is
ensured by freedom of circulation and in Sakal Papers (P) Ltd. v.  Union  of
India[81], this Court held that freedom of  speech  and  expression  carries
with it the right to publish and circulate one’s ideas, opinions and  views.
In Bennett Coleman & Co. v. Union of India[82], this Court  also  held  that
the freedom of press means right of citizens to speak, publish  and  express
their  views  as  well  as  right  of  people  to  read   and   in   Odyssey
Communications  (P)  Ltd.  v.  Lokvidayan  Sanghatana[83],  this  Court  has
further held that freedom of speech and expression  includes  the  right  of
citizens to exhibit films on Doordarshan.”

72.   Presently, we shall refer to the decision in Shreya  Singhal  (supra).
Mr. Gopal Subramanium, while giving immense emphasis on the said  authority,
has submitted that while striking down Section 66A of the IT  Act,  2000  as
unconstitutional, the Court has really elevated the concept  of  freedom  of
speech and expression to a  great  height.   We  have  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. Section 66A cannot possibly be said to  create
an offence which falls within the  expression  'decency'  or  'morality'  in
that what may be grossly offensive or annoying under the  Section  need  not
be obscene at all - in  fact  the  word  'obscene'  is  conspicuous  by  its
absence in Section 66A.”

      We have referred to the said passages only to understand that the two-
Judge Bench has succinctly put what freedom of speech and  expression  mean.
The Court has referred to certain judgments which we have  already  referred
in that context.  The Court was really not dealing with the  obscenity  test
within the ambit and sweep of Section 292 IPC.  The Court  has  opined  that
Section  66A  of  the  IT  Act,  2000  violates  Article  19(1)(a)  of   the
Constitution.  There can be no doubt that there has been  elevation  of  the
concept in a different way, but it cannot form the  foundation  or  base  to
sustain the argument of Mr. Subramanium that the freedom  has  to  be  given
absolute and uncurtailed expanse without any boundaries of  exceptions.   We
accept the  proposition  that  there  should  not  be  narrow  or  condensed
interpretation of freedom of speech and expression, but that does  not  mean
that there cannot be any limit.  Constriction is permissible  under  Article
19(2) of the Constitution and in Ranjit D. Udeshi (supra), the  Constitution
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 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  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.”

77.   In K. Karunakaran v. T.V. Eachara  Warrier,[84]  this  Court  observed
that lies are resorted  to  by  the  high  and  the  low  being  faced  with
inconvenient situations which require a Mahatma Gandhi to own  up  Himalayan
blunders and unfold unpleasant truths truthfully.
78.   In Maneka Gandhi (supra), this Court observed thus:-
“22. …These rights represent the basic values of  a  civilised  society  and
the constitution-makers declared that they shall be given a place  of  pride
in the Constitution and elevated to the status of  fundamental  rights.  The
long years of the freedom struggle inspired by the dynamic  spiritualism  of
Mahatma Gandhi and in fact the entire  cultural  and  spiritual  history  of
India formed the background against which  these  rights  were  enacted  and
consequently, these rights were conceived by the constitution-makers not  in
a narrow limited sense but in their widest sweep, for the aim and  objective
was to build a new social order where man will not be a  mere  plaything  in
the hands of the State or a few privileged persons but there  will  be  full
scope and opportunity for him to achieve  the  maximum  development  of  his
personality and the dignity of the individual will be fully assured.”

79.   In Bangalore Water Supply & Sewerage Board  v.  A.  Rajappa[85],  this
Court observed:-
“There is no degrading touch about “industry”, especially in  the  light  of
Mahatma Gandhi’s dictum that ‘Work is  Worship”.  Indeed  [pic]the  colonial
system of education, which divorced  book  learning  from  manual  work  and
practical training, has been responsible for the calamities in  that  field.
For that very  reason,  Gandhiji  and  Dr  Zakir  Hussain  propagated  basic
education which used work as modus operandus for teaching.  We  have  hardly
any hesitation in regarding education as an industry.”

80.   In Minerva Mills Ltd. v. Union of India[86], the Court noted thus:-
“53.  .... The emergence of Mahatma Gandhi on the political  scene  gave  to
the freedom movement a new dimension: it ceased to be  merely  anti-British;
it became a movement for the  acquisition  of  rights  of  liberty  for  the
Indian Community.

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

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

81.   In Akhil Bharatiya Soshit  Karamchari  Sangh  (Railway)  v.  Union  of
India[87], there is an observation which reads thus:-
“13. …There was the Everest presence of Mahatma Gandhi, the  Father  of  the
Nation, who staked his life for the harijan  cause.  There  was  Baba  Saheb
Ambedkar — a mahar by birth and fighter  to  his  last  breath  against  the
himalayan injustice to the harijan  fellow  millions  stigmatised  by  their
genetic handicap — who was the Chairman of the  drafting  committee  of  the
Constituent Assembly.”

82.   In People’s Union for Democratic Rights v. Union of India[88], it  has
been stated:-

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

83.   In Bachan Singh v. State of Punjab[89], the Court noted:-

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

“Destruction of individuals can never be  a  virtuous  act.  The  evil-doers
cannot be done to death. Today there is a movement afoot for  the  abolition
of capital punishment and attempts are being made to  convert  prisons  into
hospitals as if they are persons suffering from a disease.””

84.   In Kailash Sonkar v. Maya Devi[90], (1984) 2 SCC 91,  the  observation
is:-
“4. As Mahatma Gandhi, father of the nation, said “India lives in  villages”
and so do  the  backward  classes,  hence  the  primary  task  was  to  take
constructive steps in order  to  boost  up  these  classes  by  giving  them
adequate concessions, opportunities, facilities and  representation  in  the
services and, last but not the  least,  in  the  electorate  so  that  their
voices  and  views,  grievances  and  needs  in  the  Parliament  and  State
legislatures in the country may be heard, felt and fulfilled.”

85.   In Pradeep Jain v. Union of India[91],  emphasising  on  formation  of
one nation, the Court observed:-
“This concept of one nation took firm roots in the minds and hearts  of  the
people during the struggle for independence under the leadership of  Mahatma
Gandhi. He has rightly been called the Father of the Nation because  it  was
he who  awakened  in  the  people  of  this  country  a  sense  of  national
consciousness and instilled in them  a  high  sense  of  patriotism  without
which it is not possible to build a country into nationhood.”

86.   In Indra Sawhney v. Union of India[92] and  ors.  the  Court  observed
that it is Mahatma Gandhi, who infused secular spirit amongst the people  of
India.
87.   In S.R. Bommai and others v. Union of India  and  others[93]  speaking
on statesmanship, the larger Bench noted:-
“24. Mahatma Gandhi and other leaders of modern times advocated to  maintain
national unity and integrity. It was with the weapons of secularism and non-
violence that Mahatma Gandhi fought the battle for independence against  the
mightly colonial rulers. As early as 1908, Gandhiji wrote in Hind Swaraj:

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

88.   In T.N. Godavarman Thirumulpad v. Union of India[94], while  making  a
reference to fundamental duties, the Court found that:-
“35. The Father of the Nation Mahatma Gandhi has also  taught  us  the  same
principle and all those concepts find their  place  in  Article  51-A(g)  as
well.”

89.   In Dalip Singh Vs. State of U.P. and  Ors.[95],  while  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  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  of  Mahatma  Gandhi.
Mr. Subramanium, learned senior  counsel  also  referred  to  certain  books
indicating that there are many critical passages about Mahatma Gandhi.   The
books referred to by him are “Great Soul: Mahatma Gandhi  and  his  struggle
India”[96] and “Sex and Power”[97].   In this regard we may  also  refer  to
Mahatma Gandhi The Early Phase Vol.I[98],  Gandhian  Constitution  for  Free
India[99], Gandhi’s Philosophy of Law[100], Mahatma  Gandhi[101],  The  Myth
of the Mahatma[102], Gandhi Before India[103],  In  Search  of  Gandhi[104],
Gandhi’s View of Legal Justice[105], Gandhi,  Soldier  of  Non-Violence:  An
Introduction[106], Trial of Mr. Gandhi[107], Gandhi and  Civil  Disobedience
Movement[108],  Tilak,  Gandhi  and  Gita[109],  Studies  in  Modern  Indian
Political thought: Gandhi an Interpretation[110], Gandhi and  the  Partition
of  India[111],  Gandhi  in  London[112],  Mahatma  Gandhi  Contribution  to
Hinduism[113], Life of Mahatma Gandhi[114], Moral and Political  Thought  of
Mahatma Gandhi[115], Gandhi and Social Action Today[116],  Gandhi:  The  Man
and the Mahatma[117], Gandhi and Ideology of Swadeshi[118], Gandhi’s  Khadi:
History of Contention and Conciliation[119],  Mahatma  Gandhi  and  Jawarhal
Nehru: A Historic Partnership Vol.1 (1916-1931)[120],  Gandhi:  Prisoner  of
Hope[121], Mahatma Gandhi  and  His  Apostles[122],  Gandhi  and  Status  of
Women[123], Philosophy of Gandhi: A Study of His  Basic  Ideas[124],  Gandhi
Naked Ambition[125], Meera and the Mahatma[126],  and  The  Men  Who  Killed
Gandhi[127].
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 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]
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
poem.

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 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  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  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  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 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  interpreted.   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 is 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  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 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  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 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.

108.  Consequently, the appeal stands disposed of in above terms.

                                             .............................J.
                                                               [Dipak Misra]


                                            ..............................J.
         [Prafulla C. Pant]
New Delhi
May 14, 2015
-----------------------
[1]    (1987) 2 AWC 1451
[2]     AIR 1958 Mad. 210
[3]     (1905), 9 O.L.R. 418
[4]     LR 1868 3 QB 360
[5]     20, Law and Contemporary Problems (1955): 630-647
[6]     (1954 1 WLR 11 1138
[7]     [1961] Crim LR 176
[8]    Unreported case, See http://www.bbc.com/news/uk-16443697
[9]     315 U.S. 568 (1942)
[10]    (1957) 354 US 476
[11]    383 U.S. 413 (1966)
[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)
[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
[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.'
[17]   521 U.S. 844 (1997)
[18]    732 P.2d 9 (1987)
[19]   Joan Schleef, Note, United States v. various Articles of Obscene
Merch, 52, U. Cin. L. Rev. 1131, 1132 (1983)
[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)
[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
[26]   535 U.S. 234, 248 (2002)
[27]   (2012) 1 Cal LJ 157
[28]   Application No. 68354/2001, 25th January 2007
[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,
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. Strauß: 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]). Daß  mit  ihnen
gleichzeitig eine bestimmte Meinung zum Ausdruck gebracht wird, nimmt  ihnen
nicht die Eigenschaft als Kunstwerk. Kunst  und  Meinungsäußerung  schließen
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).  Maßgebliches  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.  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.
[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.”
[37]    Application No. 5493/72, 7th December 1976, Series A No. 24
[38]    Application No. 33014/05, 5 May 2011
[39]    Application No. 41056/04, 16 February, 2010
[40]    1997 24 ECHRR (1)
[41]    13 EHRR 212
[42]    (1965) 1 SCR 65
[43]   (1969) 2 SCC 687
[44]    (1970) 2 SCC 780
[45]     (1965) 380 US 51
[46]    (1968) 390 US 149
[47]    (1961) 365 US 43
[48]    (1915) 236 US 230
[49]   (1980) 1 SCC 43
[50]   (1985) 4 SCC 289
[51]   (2006) 8 SCC 433
[52]   (2007) 1 SCC 143
[53]   529 US 803 : 120 SCt 1878 : 146 L Ed 2d 865 (2000)
[54]    (1996) 4 SCC 1
[55]   AIR 1952 SC 329
[56]   (1988) 1 SCC 668
[57]   AIR 1947 Nag 1
[58]   [(1993) 2 APLJ 91 (SN)]
[59]    1989 Cr.L.J. 1241
[60]     AIR 1990 AP 100
[61]   (2010) 5 SCC  600
[62]   (2014) 4 SCC 257
[63]   1962 SCR 681 (Can SC)
[64]   (1992) 1 SCR 452 (Can SC)
[65]   (1868) LR 3 QB 360
[66]    2015 (4) SCALE 1
[67]    (2006) 8 SCC 433
[68]    (1973) 4 SCC 225
[69]    (1978) 1 SCC 248
[70]   (1970) 2 SCC 298
[71]    1959 SCR 995
[72]    1962 3 SCR 269
[73]    (1962) 3 SCR 842
[74]    (1973) 2 SCR 757
[75]    (1973) 1 SCC 856
[76]    (1994) 5 SCC 550
[77]    339 US 382
[78]   (2012) 10 SCC 603
[79]   (2014) 9 SCC 485
[80]   AIR 1950 SC 124
[81]   AIR 1962 SC 305
[82]   (1972 2 SCC 788
[83]   (1988) 3 SCC 410
[84]    (1978) 1 SCC 18
[85]    (1978) 2 SCC 213
[86]    (1980) 3 SCC 625
[87]    (1981) 1 SCC 246
[88]    (1982) 3 SCC 235
[89]    (1982) 3 SCC 24
[90]    (1984) 2 SCC 91
[91]    (1984) 3 SCC 654
[92]    (1992) Supp. 3 SCC 217
[93]    (1994) 3 SCC 1
[94]    (2012) 4 SCC 362
[95]    (2010) 2 SCC 114
[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
[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
[128]  Essay on Milton
[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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