Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1179 OF 2010
Devidas Ramachandra Tuljapurkar ... Appellant
Versus
State of Maharashtra & Ors. ...Respondents
J U D G M E N T
Dipak Misra, J.
The Controversy
The seminal issue that spiralled in the course of hearing of this
appeal centres around the question framed vide order dated
18.2.2015, for this Court thought it apposite to answer, whether the
poem titled “Gandhi Mala Bhetala” (‘I met Gandhi’) in the magazine
named the ‘Bulletin’ which was published, in July-August, 1994
issue, meant for private circulation amongst the members of All India
Bank Association Union, could in the ultimate eventuate give rise to
framing of charge under Section 292 IPC against the author, the
publisher and the printer. The question framed reads thus:-
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“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
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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.
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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
5
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
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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
7
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
8
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.
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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
10
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
11
'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.”
1 (1987) 2 AWC 1451
12
10. The High Court of Madras in Public Prosecutor v. A.D.
Sabapathy2
, has opined that the word “obscene” must be given its
ordinary and literal meaning, that is, ‘repulsive’, ‘filthy’, ‘loathsome’,
‘indecent’ and ‘lewd’. The learned senior counsel has also referred to
the judgment of Supreme Court of Canada in R. v. Beaver3
, wherein
Maclaren, J.A., has defined ‘obscene’ as follows:-
“The word 'obscene' … was originally used to describe
anything disgusting, repulsive, filthy or foul. The use of the
word is now said to be somewhat archaic or poetic; and it
is ordinarily restricted to something offensive to modesty
or decency, or expressing or suggesting unchaste or lustful
ideas, or being impure, indecent, or lewd."
11. After generally referring to the meaning of the term obscenity,
learned senior counsel has emphasised on the tests adopted in
various countries relating to obscenity. Mr. Subramanium has
referred to various authorities of United Kingdom, United States of
America, European Courts and this Court to pyramid the proposition
that the tests laid down by legal system including the authorities of
this Court do not suggest that that the instant poem can remotely be
treated as obscene. First, we shall dwell upon the tests and
standards laid by various Courts and then the binding authorities of
this Court and thereafter to the concept of freedom of speech and
2 AIR 1958 Mad. 210
3 (1905), 9 O.L.R. 418
13
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. Hicklin4
, the meaning given by Cockburn C.J.
and drawn our attention to the Article by J.E. Hall Williams in
Obscenity in Modern English Law5
wherein the learned author
observed that Hicklin (supra) gave a complete go by to the principle
of “mens rea” which propounds a certain degree of protection to the
accused. The learned author was critical on the concept of
presumption as propounded in Hicklin (supra). In the said article,
learned author referred to certain observations in R. v. Martin
Secker & Warburg LD6
. In the said case, Stable J. has stated
“The test of obscenity to be applied today is extracted
from a decision of 1868; it is this: “…. Whether the
tendency of the matter charged as obscenity is to
deprave and corrupt those whose mind are open to such
immoral influences, and 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
4 LR 1868 3 QB 360
5 20, Law and Contemporary Problems (1955): 630-647
6 (1954 1 WLR 11 1138
14
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
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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.”
16
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. Peacock8
, a verdict, an unreported one, rendered on
January 6, 2011 by Southwark Crown Court, London, submitted Mr.
Subramanium, has resulted in great upsurge in the demand for a
review in the obscenity laws in England and Wales. In the said case,
7 [1961] Crim LR 176
8 Unreported case, See http://www.bbc.com/news/uk-16443697
17
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.
18
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 Hampshire9
, the appellant, a
member of the sect known as Jehovah’s Witnesses, was convicted in
the Municipal Court of Rochester, New Hampshire for violation of
Chapter 378, Section 2 of the Public Laws of New Hampshire. In
course of time, the appellant raised the questions that the statute was
invalid under the Fourteenth Amendment of the Constitution of the
United States as it placed an unreasonable restriction on freedom of
speech, freedom of press and freedom of worship and further it was
vague and indefinite. Be it noted, the challenge was made in the
highest court of the United States that declared that the statutes
purpose was to preserve the public peace and it did not violate the
constitutional framework. The Court observed allowing the broadest
scope to the language and purpose of the Fourteenth Amendment, it
is well understood that the right to free speech is not absolute at all
times and under all circumstances.
19. In Roth v. United States10, the principal question was whether
9 315 U.S. 568 (1942)
10 (1957) 354 US 476
19
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. Masachusetts11, while explaining the term
‘obscenity’, the Court referred to the Roth (supra) and stated thus:-
“3. We defined obscenity in Roth in the following terms:
“[W]hether to the average person, applying contemporary
community standards, the dominant theme of the
material taken as a whole 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
11 383 U.S. 413 (1966)
20
patently offensive because it affronts contemporary
community standards relating to the description or
representation of sexual matters; and (c) the material is
utterly without redeeming social value.”
After so stating, the U.S. Supreme Court proceeded to consider
whether the book in question could be stated to be truly without
social importance. Thus, there was no departure from the redeeming
social importance test, but it also introduced “contemporary
community standards” test.
21. In Marvin Miller vs. State of California12, while rejecting the
‘redeeming social value’ test as laid down in Roth (supra) and followed
in Memoirs (supra), the US Court established three pronged test
which are as follows:-
“15. The case we now review was tried on the theory that
the California Penal Code § 311 approximately
incorporates the three-stage Memoirs test, supra. But
now the Memoirs test has been abandoned as
unworkable by its author,13 and no Member of the Court
today supports the Memoirs formulation.
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)
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)
21
whether the work, taken as a whole, lacks serious
literary, artistic, political, or scientific value. We do not
adopt as a constitutional standard the 'utterly without
redeeming social value' test of Memoirs v.
Massachusetts, 383 U.S., at 419, 86 S.Ct., at 977; that
concept has never commanded the adherence of more
than three Justices at one time14
. See supra, at 21. If a
state law that regulates obscene material is thus limited,
as written or construed, the First Amendment values
applicable to the States through the Fourteenth
Amendment are adequately protected by the ultimate
power of appellante courts to conduct an independent
review of constitutional claims when necessary.”
22. The US Supreme Court in Miller (supra) stated that the
application and ascertainment of ‘contemporary community
standards’ would be the task of the Jury as they best represent the
‘contemporary community standards’. The Court observed:-
“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
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).
22
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 Liberties17, the plaintiffs
filed a suit challenging the constitutionality of provisions of
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)
23
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. Henry18, the Oregon Supreme
Court declared the offence of obscenity to be unconstitutional as it
was in violation of Article I, Section 8 of the Oregon Constitution that
provides for freedom for speech and expression. Article I Section 8
reads thus:-
“No law shall be passed restraining the free expression of
opinion, or restricting the right to speak, write, or print
freely on any subject whatever; but every person shall be
responsible for the abuse of this right.”
25. The State Statute of Oregan i.e. ORS 167.087 that criminalized
selling, exhibiting, delivery and dissemination of obscene material was
struck down as being violative of Article I Section 8. The Oregon SC
held thus:-
18 732 P.2d 9 (1987)
24
“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 Merch19 wherein the learned author has shown
comparables test. Explaining the said concept, the learned author
19 Joan Schleef, Note, United States v. various Articles of Obscene Merch, 52, U. Cin. L. Rev. 1131, 1132 (1983)
25
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 Clavert20 wherein the learned author has opined
thus:-
“Akin to the three-part test in Miller itself, a successful
comparables argument requires three foundational
elements be present with the proffered evidence: similarity
or “reasonable resemblance”21 of content; availability of
content, and acceptance, to reasonable degree, of the
similar, available content.”
The learned author in his conclusion has summed up:-
“The Miller test is more than thirty-five years old22, but
developments and changes are now taking place in
courtrooms that affect its continuing viability. In
particular, this article has demonstrated that the
taken-as-a-whole requirement may be in some jeopardy, as
at least two courts-one in 2008 and one in 2009-have
allowed the prosecution to get away with only showing
jurors selected portions of 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
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)
26
traditional comparables argument that defense attorneys
sometimes use to prove contemporary community
standards. Pro-prosecution rulings in this area have been
handed down in both Adams23 and Burden24. And while
Judge Bucklew in Little25 allowed Internet-based search
evidence to come into court, she refused to instruct the jury
that it could-not even that it must-consider it as relevant of
community standards”.
And again,
“While the U.S. Supreme Court is no longer in the
business of regularly hearing obscenity case as it once was,
it may be time for the Court to revisit the Miller test and to
reassess the work-as a whole requirement and to consider
whether Internet based comparables arguments about
contemporary community standards are viable in a digital
online world the High Court never could have imagined
when it adopted Miller back in 1973. Unit such time, lower
courts will be left to wrestle with these issues, with some
seeming to clearly sidestep Miller on the taken-as-a whole
requirement in contravention of the high court’s
admonishment in 2002 that this was as essential rule of
First Amendment jurisprudence.”
Thus, the comparables test even if it is applied, the concept of
contemporary comparative standards test along with other tests has
not been abandoned.
The learned author in his article has referred to the majority
view in Ashcroft v. Free Speech Coalition26 where Justice Anthony
Kennedy added:-
“Under Miller, the First Amendment requires that
redeeming value be judged by considering the work as a
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
whole. Where the scene is part of the narrative, the work
itself does not for this reason become obscene, even
though the scene in isolation might be offensive.”
Mr. Subramanium has urged that the comparables test has also
been accepted in a different context by some High Courts in India. In
this regard, he has been inspired by the ratiocination in Kavita
Phumbhra v. Commissioner of Customs (Port), Calcutta27 by the
Calcutta High Court wherein certain publications were imported by
the petitioner which were meant for sale only to adults. The High
Court took note of the change in the society as well as similar articles
and works readily being available in newspapers and magazines and
stated thus:-
“As mentioned earlier, moral standards vary from
community and from person to person within one society
itself. The morals of the present day in our society also
do not represent a uniform pattern. The variations and
the variables inside a certain society are also crucial
considerations while judging whether an object comes
within the 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
27 (2012) 1 Cal LJ 157
28
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.
Austria28, the European Court of Human Rights was concerned with
the issue pertaining to withdrawal of a painting entitled “Apocalypse”
which had been produced for the auction by the Austrian painter Otto
Muhl. The painting, measuring 450 cm by 360 cm showed a collage
of various public figures such as Mother Teresa, the former head of
the Austrian Freedom Party (FPO) Mr. Jorg Haider, in sexual
positions. While the naked bodies of these figures were painted, the
heads and faces were depicted using blown-up photos taken from
newspapers. The eyes of some of the persons portrayed were hidden
under black bars. Among these persons was Mr. Meischberger, a
28 Application No. 68354/2001, 25th January 2007
29
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.
30
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
31
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.
32
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 …”
33
Nobody can rely on the fact that he is an artist or that a
work is a painting in order to escape liability for insulting
others. Like the domestic courts, I find that the “painting”
in question undermined the reputation and dignity of Mr
Meischberger in a manner for which there can be no
legitimate justification and therefore the national
authorities were entitled to consider that the impugned
measure was necessary in a democratic society for the
protection of the reputation or rights of others.
The learned amicus curiae has also commended us to the joint
dissenting opinion of Judges Spielmann and Jebens. What is
important to be noted is as follows:-
“9. In our opinion, it was not the abstract or
indeterminate concept of human dignity—a concept
which can in itself be dangerous since it may be used as
justification for hastily placing unacceptable limitations
on fundamental rights29 — 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
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 .
34
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
31 BVerfGE 75, 369 ; EuGRZ, 1988, 270 . See also the article by G. Nolte, “Falwell vs. Strauβ:
Die rechtlichen Grenzen politischer Satire in den USA und der Bundesrepublik”, EuGRZ,
(1988), pp.253–59.
32 See the German Federal Constitutional Court's decision of June 3, 1987 (BVerfGE 75, 369 ;
EuGRZ, 1988, 270 ), discussed below: “ Die umstrittenen Karikaturen sind das geformte Ergebnis
einer freien schöpferischen Gestaltung, in welcher der Beschwerdeführer seine Eindrücke,
Erfahrungen und Erlebnisse zu unmittelbarer Anschauung bringt. Sie genügen damit den
Anforderungen, die das Bundesverfassungsgericht als wesentlich für eine künstlerische Betätigung
ansieht ( BVerfGE 67, 213 [226] = EuGRZ 1984, 474 [477] unter Berufung auf BVerfGE 30, 173
[189]). Daβ mit ihnen gleichzeitig eine bestimmte Meinung zum Ausdruck gebracht wird, nimmt ihnen
nicht die Eigenschaft als Kunstwerk. Kunst und Meinungsäuβerung schlieβen sich nicht aus; eine
Meinung kann — wie es bei der sogenannten engagierten Kunst üblich ist — durchaus in der Form
künstlerischer Betätigung kundgegeben werden (Scholz, a.a.O., Rdnr. 13). Maβgebliches Grundrecht
bleibt in diesem Fall Art. 5 Abs. 3 Satz 1 GG, weil es sich um die spezielle Norm handelt ( BVerfGE
30, 173 [200]).” It should be noted that in German Constitutional Law, freedom of the arts
(Kunstfreiheit) is specifically protected by Art.5(3) of the Basic Law. “The exercise of this freedom
is not limited, as is freedom of expression, by the provisions of general laws or the right to
reputation, but it must be considered in conjunction with other constitutional rights, notably the
right to the free development of personality and human dignity”, E. 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
35
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
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.”
36
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
37
make the end-result artistic; likewise an image does not
become a satirical if the observer does not comprehend or
detect any message in the work in question; that where the
images depicted in the work product convey no message but
“only a disgusting combination of lewd acts and words whose
only effect is to debase, insult and ridicule the person
portrayed” – this is neither criticism nor satire; and that the
artistic freedom is not unlimited and where rights and
reputation of others are involved; where there is conflict with
human dignity artistic freedom must always be subordinated
to personality rights. Thus, the submission of Mr. Nariman is
that freedom of speech and expression is not absolute and any
work of art cannot derail the prohibition in law.
31. Mr. Subramanium has referred to the judgment in Handyside
v. United Kingdom37, wherein it has been held thus:-
“The Court’s supervisory functions oblige it to pay the
utmost attention to the principles 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
37 Application No. 5493/72, 7th December 1976, Series A No. 24
38
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. Ukraine38, wherein the European Court, for the
first time, acknowledged that Article 10 of ECHR has to be interpreted
as imposing on States a positive obligation to create an appropriate
regulatory framework to ensure effective protection of journalists’
freedom of expression on the Internet. He has also drawn our
attention to Akda v. Turkey39, wherein the European Court has held
38 Application No. 33014/05, 5 May 2011
39 Application No. 41056/04, 16 February, 2010
39
that ban on translation of classic work of literature that contained
graphic description of sex, violated the right to freedom of expression.
32. Mr. Nariman, learned senior counsel and amicus, has
commended us to Wingrove v. United Kingdom40 to show that the
interpretation placed by the European Court of Human Rights on
Article 10 that deals with freedom of expression. In the said case, a
video movie characterising Saint Teresa of Avila in profane ways was
held to be properly banned and not a violation of Article 10 of the
European Convention on Human Rights. The said case originated
from an application lodged with the European Commission under
Article 25 by a British 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
40 1997 24 ECHRR (1)
40
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.”
41
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:-
42
“... 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
43
having sexual relations with some prince or king. In
such a case, the decision of the European Court might
well have been similar to that in the Wingrove case. The
rights of other under Article 10 para 2 (art. 10-2) cannot
be restricted solely to the protection of the rights of
others in a single category of religious believers or
philosophers, or a majority of them. The Court was
quite right to base its decision on the protection of the
rights of others pursuant to Article 10 (art. 10), but to
my mind it could have done so on broader grounds,
inspired to a greater extent by the concern to protect the
context of religious beliefs “or any other”, as is rightly
pointed out in paragraph 53 of the judgment. In the
difficult balancing exercise that has to be carried out in
these situations where religious and philosophical
sensibilities are confronted by freedom of expression, it
is important that the inspiration provided by the
European Convention and its interpretation should be
based both on pluralism and a sense of values.”
33. Learned Amicus, to cement the proponement of absence of total
limitlessness of freedom of speech and expression and to refute the
principle of absoluteness has also commended us to the authority in
Muller and Others v. Switzerland41. In the said case, the question
was whether paintings at an 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
41 13 EHRR 212
44
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
45
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
46
(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—
(i) the publication of which is proved to be justified
as being for the public good on the ground that
such book, pamphlet, paper, writing, drawing,
painting, representation or figure is in the interest
of science, literature, art or learning or other objects
of general concern, or
(ii) which is kept or used bona fide for religious
purposes;
(b) any representation sculptured, engraved, painted or
otherwise represented on or in—
(i) any ancient monument within the meaning of
the Ancient Monuments and Archaeological Sites
and Remains Act, 1958 (24 of 1958), or
(ii) any temple, or on any car used for the conveyance
of idols, or kept or used for any religious
purpose.”
35. The said Section, prior to the present incarnation, read as
follows:-
“292. Whoever—
(a) sells, lets to hire, distributes, publicly exhibits or in
any manner puts into circulation, or for purposes of sale,
47
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 va-
48
lidity of the same, in Ranjit D. Udeshi v. State of Maharashtra42
.
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
42 (1965) 1 SCR 65
49
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
50
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.
51
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
52
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
53
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.”
54
41. In Chandrakant Kalyandas Kakodkar v. State of
Maharashtra43
, the appellant was the author of a short story. He
faced a criminal charge under Section 292 IPC along with the printer,
publisher and the selling agent. The three-Judge Bench referred to
the Constitution Bench in Ranjit D. Udeshi (supra) and thereafter
the Court referred to the plots and sub-plots narrated in the story,
adverted to the emotional thread running in the story and eventually
came to hold that none of the passages was offending Section 292 IPC
and accordingly acquitted the accused persons. In that context the
Court observed:-
“12. The concept of obscenity would differ from country
to country depending on the standards of morals of
contemporary society. What is considered as a piece of
literature in France may be obscene in England and what
is considered in both countries as not harmful to public
order and morals may be obscene in our country. But to
insist that the standard should always be for the writer
to see that the adolescent ought not to be brought into
contact with sex or that if they read any references to sex
in what is written whether that is the dominant theme or
not they would be affected, would be to require authors
to write books only for the adolescent and not for the
adults. In early English writings authors wrote only with
unmarried girls in view but society has changed since
then to allow litterateurs and artists to give expression to
their ideas, and emotions and objective with full freedom
except that it should not fall within the definition of
“obscene” having regard to the standards of
contemporary society in which it is read. The standards
of contemporary society in India are also fast changing.
The adults and adolescents have available to them a
43 (1969) 2 SCC 687
55
large number of classics, novels, stories and pieces of
literature which have a content of sex, love and romance.
As observed in Udeshi (supra) if a reference to sex by
itself is considered obscene, no books can be sold except
those which are purely religious. In the field of art and
cinema also the adolescent is shown situations which
even a quarter of a century ago would be considered
derogatory to public morality, but having regard to
changed conditions are more taken for granted without
in anyway tending to debase or debauch the mind. What
we have to see is that whether a class, not an isolated
case, into whose hands the book, article or story falls
suffer in their moral outlook or become depraved by
reading it or might have impure and lecherous thoughts
aroused in their minds. The charge of obscenity must,
therefore, be judged from this aspect.”
From the aforesaid passage it is clear that the court considered
three facets, namely, “morals of contemporary society”, the fast
changing scenario in our country and the impact of the book on a
class of readers but not an individual.
42. In K.A. Abbas v. Union of India and another44, the 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
44 (1970) 2 SCC 780
56
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
57
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.
Maryland45, which considered procedural safeguards and thereafter
the judgment in Teital Film Corp. v. Cusak46 and observed that fight
against censorship was finally lost in Times Film Corporation v.
Chicago47, but only by the slender majority. Thereafter, the Court
referred to later decisions and observed:-
“33. To summarize. The attitude of the Supreme Court of
the United States is not as uniform as one could wish. It
may be taken as settled that motion picture is considered
45 (1965) 380 US 51
46 (1968) 390 US 149
47 (1961) 365 US 43
58
a form of expression and entitled to protection of First
Amendment. The view that it is only commercial and
business and, therefore, not entitled to the protection as
was said in Mutual Film Corpn48
. is not now accepted.”
43. The Court further referred to the majority judgments in many
cases and observed that judges in America have tried to read the
words ‘reasonable restrictions’ into the First 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
48 (1915) 236 US 230
59
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
60
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 ‘Lolita’ complex.
As is manifest from the judgment, the Court has taken pains to
refer to certain situations from certain novels and the ideas from the
plays and also emphasised on delicate depiction of a situation in a
theme-oriented story. The Court has made a distinction between a
historical theme without true history and portrayal of an artistic
scene. Be it noted, in the said case, the Court opined that the test in
Ranjit D. Udeshi (supra) would apply even to film censorship.
45. In Raj Kapoor and Others v. State and Others49, the High
Court had refused the exercise of inherent power under Section 482
of the Criminal Procedure Code because the High Court felt the
subject fell under its revisional power under 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
49 (1980) 1 SCC 43
61
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
62
law of morals is paid and the further challenge under the Penal Code
is barred. Dealing with the same, the Court opined that:-
“Jurisprudentially speaking, law, in the sense of
command to do or not to do, must be a reflection of the
community’s cultural norms, not the State’s
regimentation of aesthetic expression or artistic creation.
Here we will realise the superior jurisprudential value of
dharma. which is a beautiful blend of the sustaining
sense of morality, right conduct, society’s enlightened
consensus and the binding force of norms so woven as
against positive law in the Austinian sense, with an
awesome halo and barren autonomy around the
legislated text is fruitful area for creative exploration. But
morals made to measure by statute and court is risky
operation with portentous impact on fundamental
freedoms, and in our constitutional order the root
principle is liberty of expression and its reasonable
control with the limits of “public order, decency or
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
63
rooted in the unchanging basics, Truth — Goodness —
Beauty, Satyam, Sivam, Sundaram. The relation between
Reality and Relativity must haunt the Court’s evaluation
of obscenity, expressed in society’s pervasive humanity,
not law’s penal prescriptions. Social scientists and
spiritual scientists will broadly agree that man lives not
alone by mystic squints, ascetic chants and austere
abnegation but by luscious love of Beauty, sensuous joy
of companionship and moderate non-denial of normal
demands of the flesh. Extremes and excesses boomerang
although, some crazy artists and film directors do
practise Oscar Wilde’s observation: “Moderation is a fatal
thing. Nothing succeeds like excess.”
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
64
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
50 (1985) 4 SCC 289
65
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
66
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, 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
67
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
68
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 class and must eliminate the subjective element or personal
preference; a novel cannot be called obscene usually because of slang
and unconventional words in it; the court has to see that the writing
is of such that it cannot bring home to the adolescences any
suggestion which is depraving or lascivious and that the concept of
obscenity usually differs from country to country depending on the
standards of morality of contemporary society in different countries.
51. In Director General, Directorate General of Doordarshan
69
and others v. Anand Patwardhan and another51
, the respondent
had produced film titled Father, Son and Holy War and had submitted
the same to the Doordarshan for telecast, but the Doordarshan
refused to telecast the documentary film despite handing over a copy
of U-matic certificate. He preferred a writ petition before the Bombay
High 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
51 (2006) 8 SCC 433
70
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 others52 the petitioner
agitated that the grievance of freedom of speech and expression
enjoyed by the newspaper industry is not keeping balance with the
protection of children from harmful and disturbing material. The
further prayer made was to command the authorities to strike a
reasonable balance between the fundamental right of freedom of
speech and expression enjoyed by the press and the duties of the
Government, being signatory of the United Nations Convention on the
Rights of Child, 1989 and Universal Declaration of Human Rights, to
protect the vulnerable minor from abuse, exploitation and harmful
effects of such expression. The further prayer was the authorities
concerned should provide for classification or introduction of a
52 (2007) 1 SCC 143
71
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
72
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
73
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 Others54, popularly
53 529 US 803 : 120 SCt 1878 : 146 L Ed 2d 865 (2000)
54 (1996) 4 SCC 1
74
known as “Bandit Queen case”, because the film dealt with the life of
Phoolan Devi and it was based on a true story. The appellant had
approached this Court assailing the order passed by the Division
Bench of the High Court of Delhi in Letters Patent Appeal affirming
the judgment of the learned Single Judge, who had quashed the
certificate granted to the film and directed the Censor Board to
consider the grant of ‘A’ Certificate after certain excisions and
modifications in accordance with the order that has been passed by
the Court. The Court referred in extenso to the authorities in K.A.
Abbas (supra), Raj Kapoor (supra), Samresh Bose (supra), State of
Bihar v. Shailabala Devi55, 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
55 AIR 1952 SC 329
75
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,
76
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 others56 wherein the Court declined to interfere
to issue a writ in the nature of prohibition or any other order
restraining Doordarshan and the producer Govind Nihlani from
telecasting or screening the serial titled “Tamas”. The Court referred
to the view of Vivian Bose, J. as he then was in the Nagpur High
Court in the case of Bhagwati Charan Shukla v. Provincial
Government57 and K.A. Abbas (supra), Raj Kapoor (supra) and
observed thus:-
“........the potency of the motion picture is as much for
good as for evil. If some scenes of violence, some nuances
of expression or some events in the film can stir up
certain feelings in the spectator, an equally deep strong,
lasting and beneficial impression can be conveyed by
scenes revealing the machinations of selfish interests,
scenes depicting mutual respect and tolerance, scenes
showing comradeship, help and kindness which
transcend the barriers of religion. Unfortunately, modern
developments both in the field of cinema as well as in the
field of national and international politics have rendered
it inevitable for people to face the realities of internecine
conflicts, inter alia, in the name of religion. Even
contemporary news bulletins very often carry scenes of
pitched battle or violence. What is necessary sometimes
is to penetrate behind the scenes and analyse the causes
56 (1988) 1 SCC 668
57 AIR 1947 Nag 1
77
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 be an achievement of
great social value.”
(Emphasis supplied)
55. In Gandhi Smaraka Samithi, v. Kanuri Jagadish Prasad58
,
the appellant filed a complaint against the publication of a novel
titled “Kamotsav”, written by accused no.3 therein, published in a
weekly, namely, Andhra Jyothi. The novel showed two characters in
nude one over the other in a bathroom. The allegation was that the
characters of the novel would undermine the social values and the
cultural heritage of the society and the moral values of the
individuals. The accused faced trial under Section 292 and 293 IPC
as well as under Section 6 and 7 of the 1986 Act, but it ended in an
acquittal. In the appeal preferred by the complainant assailing the
judgment of acquittal, the learned Single Judge referred to the
meaning of “obscene”, dwelt upon the theme projected by the author
relating to the present day society and 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
58 [(1993) 2 APLJ 91 (SN)]
78
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 Bhasin59, wherein it has been observed thus:-
“It is true that prostitution has been always looked down
upon with hatred throughout the ages by the society and
particularly “sex” has been considered an ugly word and
any talk about sex in our conservative society was
considered a taboo not many years ago but with this
59 1989 Cr.L.J. 1241
79
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 India60, wherein it was observed
that decency or indecency of a particular picture, sequence or scene
cannot depend upon the nature of the subject matter, but the
question is one of the manner of handling of the subject-matter and
sociological or ethical interest or message which the film conveys to
the reasonable man, and that the approach of the Court would be
from the perspective of social pathological phenomenon with a critical
doctor keeping the balance between the felt necessities of the time
60 AIR 1990 AP 100
80
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 another61 the appellant,
a well known actress had approached this court seeking quashment
of the criminal proceeding registered against her for offences
punishable under Sections 499, 500, 509 IPC and Sections 4 and 6 of
the 1986 Act. The controversy arose as India Today, a fortnightly
magazine, had conducted a survey on the subject of sexual habits of
people residing in the bigger cities of India. One of the issues
discussed as part of the said survey was increasing incidence of
pre-marital sex. As a part of this exercise the magazine had gathered
and published the views expressed by several individuals from
different segments of society, including those of the appellant. In her
personal opinion, she had mentioned about live-in relationships and
61 (2010) 5 SCC 600
81
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
82
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.
83
46. Admittedly, the appellant’s remarks did provoke a
controversy since the acceptance of premarital sex and
live-in relationships is viewed by some as an attack on
the centrality of marriage. While there can be no doubt
that in India, marriage is an important social institution,
we must also keep our minds open to the fact that there
are certain individuals or groups who do not hold the
same view. To be sure, there are some indigenous groups
within our country wherein sexual relations outside the
marital setting are accepted as a normal occurrence.
Even in the societal mainstream, there are a significant
number of people who see nothing wrong in engaging in
premarital sex. Notions of social morality are inherently
subjective and the criminal law cannot be used as a
means to unduly interfere with the domain of personal
autonomy. Morality and criminality are not coextensive.
47. In the present case, the substance of the controversy
does not really touch on whether premarital sex is
socially acceptable. Instead, the real issue of concern is
the disproportionate response to the appellant’s remarks.
If the complainants vehemently disagreed with the
appellant’s views, then they should have contested her
views through the news media or any other public
platform. The law should not be used in a manner that
has chilling effects on the “freedom of speech and
expression”.
xxx xxx xxx
50. Thus, dissemination of news and views for popular
consumption is permissible under our constitutional
scheme. The different views are allowed to be expressed
by the proponents and 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
84
tolerance of unpopular views in the socio-cultural space. It also takes
note of the fact that notions of social morality are inherently
subjective; and morality and criminality are not co-extensive. It is apt
to note here that in the said case, the Court has also held that by the
statement of the appellant therein no offence was committed. The
Court recognised that free flow of notions and ideas is essential to
sustain the collective lives of the citizenry.
58. Recently in Aveek Sarkar and another v. State of West
Bengal and others62, the Court was dealing with the fact situation
where Boris Becker, a world renowned tennis player, had posed nude
with his dark-skinned fiancée by name Barbara Feltus, a film actress.
Both of them spoke freely about their engagement, their lives and
future plans. The article projected Boris Becker as a strident protester
of the pernicious 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
62 (2014) 4 SCC 257
85
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
86
had to the contemporary mores and the national standards and not
the standards of a group of susceptible or sensitive persons. The
Court referred to the pronouncement in Hicklin (supra) the majority
view in Brody v. R63
, and the pronouncement in R. v. Butler64 and
opined thus:-
“23. We are also of the view that Hicklin test65 is not the
correct test to be applied to determine “what is
obscenity”. Section 292 of the Penal Code, of course,
uses the expression “lascivious and prurient interests” or
its effect. Later, it has also been indicated in the said
section of the applicability of the effect and the necessity
of taking the items as a whole and on that foundation
where such items would tend to deprave and corrupt
persons who are likely, having regard to all the relevant
circumstances, to read, see or hear the matter contained
or embodied in it. We have, therefore, to apply the
“community standard test” rather than the “Hicklin test”
to determine what is “obscenity”. A bare reading of
sub-section (1) of Section 292, makes clear that a picture
or article shall be deemed to be obscene
(i) if it is lascivious;
(ii) it appeals to the prurient interest; and
(iii)it tends to deprave and corrupt persons who are likely
to read, see or hear the matter, alleged to be
obscene.
Once the matter is found to be obscene, the question
may arise as to whether the impugned matter falls within
any of the exceptions contained in the section. A picture
of a nude/semi-nude woman, as such, cannot per se be
called obscene unless it has the tendency to arouse the
63 1962 SCR 681 (Can SC)
64 (1992) 1 SCR 452 (Can SC)
65 (1868) LR 3 QB 360
87
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
black-skinned woman. We should, therefore, appreciate
88
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 India66, a
two-Judge Bench of this Court, while dealing with the concept of
obscenity, has held that:-
“45. This Court in Ranjit Udeshi (supra) took a rather
restrictive view of what would pass muster as not being
obscene. The Court followed the test laid down in the
old English judgment in Hicklin’s case which was
whether the tendency of the matter charged as obscene
is to deprave and corrupt those whose minds are open
to such immoral influences and into who hands a
publication of this sort may fall. Great strides have
been made since this decision in UK, United States, as
well as in our country. Thus, in Director General of
Doordarshan v. Anand Patwardhan67, this Court notice
the law in the United States and said that a material
may be regarded as obscene if the average person
applying contemporary community standards would
find that the subject matter taken as a whole appeals to
the prurient interest and that taken as a whole it
66 2015 (4) SCALE 1
67 (2006) 8 SCC 433
89
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
90
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
91
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
92
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 em-
93
phasise 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
94
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 Others68, emphasis has been laid on the preamble of the
Constitution and its objectives. Sikri, C.J. in Kesavanada Bharti
(supra) observed thus:-
“15. I need hardly observe that I am not interpreting an
ordinary statute, but a Constitution which apart from
setting up a machinery for Government, has a noble
and grand vision. The vision was put in words in the
preamble and carried out in part by conferring
fundamental rights on the people. The vision was
directed to be further carried out by the application of
directive principles.”
66. Shelat and Grover JJs in their judgment in the said case ruled:-
“506. The Constitution-makers gave to the 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
68 (1973) 4 SCC 225
95
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;
(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 India69, it has been held:-
69 (1978) 1 SCC 248
96
“5........It is indeed difficult to see on what principle we
can refuse to give its plain natural meaning to the
expression “personal liberty” as used in Article 21 and
read it in a narrow and restricted sense so as to exclude
those attributes of personal liberty which are specifically
dealt with in Article 19. We do not think that this would
be a correct way of interpreting the provisions of the
Constitution conferring fundamental rights. The attempt
of the Court should be to expand the reach and ambit of
the fundamental rights rather than attenuate their
meaning and content by a process of judicial
construction. The wavelength for comprehending the
scope and ambit of the fundamental rights has been set
by this Court in R.C. Cooper case70 and our approach in
the interpretation of the fundamental rights must now
be in tune with this wavelength. We may point out even
at the cost of repetition that this Court has said in so
many terms in R.C. Cooper case that each freedom has
different dimensions and there may be overlapping
between different fundamental rights and therefore it is
not a valid argument to say that the expression
“personal liberty” in Article 21 must be so interpreted as
to avoid overlapping between that article and Article
19(1). The expression “personal liberty” in Article 21 is
of the widest amplitude and it covers a variety of rights
which go to constitute the personal liberty of man and
some of them have....”
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
70 (1970) 2 SCC 298
97
when the cycloramic review starts from Gopalan, moves
on to In re Kerala Education Bill71 and then on to All-India
Bank Employees’ Association72, next to Sakal Papers73,
crowning in Cooper and followed by Bennett Coleman74
and Shambhu Nath Sarkar75. 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:-
71 1959 SCR 995
72 1962 3 SCR 269
73 (1962) 3 SCR 842
74 (1973) 2 SCR 757
75 (1973) 1 SCC 856
98
“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 India76, this Court
was dealing with the order of confiscation of books containing the
Marxist literature. The Court referring to the supremacy of the
fundamental right to freedom of speech and expression, observed that
the Constitution of India permits a free trade in ideas and ideologies
76 (1994) 5 SCC 550
99
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.
Douds77 with reference to the US Constitution wherein it was stated
that thought control is a copyright of totalitarianism, and it was
unacceptable. The Court finally stated that it is not the function of
our Government to keep the citizen from falling into error; it is the
function of the citizen to keep the Government from falling into error.
70. More important and relevantly lucid are observations in Sahara
India Real Estate Corpn. Ltd. v. SEBI78, where while dealing with
the freedom of speech, the Constitution Bench held:-
“Freedom of expression is one of the most 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
or shock any section of the population. It also includes
77 339 US 382
78 (2012) 10 SCC 603
100
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 Schools79
, 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
79 (2014) 9 SCC 485
101
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
Romesh Thappar v. State of Madras80, this Court held that
freedom of speech and expression includes freedom of
propagation of ideas which is ensured by freedom of
80 AIR 1950 SC 124
102
circulation and in Sakal Papers (P) Ltd. v. Union of India81
,
this Court held that freedom of speech and expression
carries with it the right to publish and circulate one’s
ideas, opinions and views. In Bennett Coleman & Co. v.
Union of India82, this Court also held that the freedom of
press means right of citizens to speak, publish and
express their views as well as right of people to read and in
Odyssey Communications (P) Ltd. v. Lokvidayan
Sanghatana83, this Court has further held that freedom of
speech and expression includes the right of citizens to
exhibit films on Doordarshan.”
72. Presently, we shall refer to the decision in Shreya Singhal
(supra). Mr. Gopal Subramanium, while giving immense emphasis on
the said authority, has submitted that while striking down Section
66A of the IT Act, 2000 as unconstitutional, the Court has really
elevated the concept of freedom of speech and expression to a great
height. We have 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
81 AIR 1962 SC 305
82 (1972 2 SCC 788
83 (1988) 3 SCC 410
103
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
104
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
105
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
106
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.”
107
77. In K. Karunakaran v. T.V. Eachara Warrier,84 this Court
observed that lies are resorted to by the high and the low being faced
with inconvenient situations which require a Mahatma Gandhi to own
up Himalayan blunders and unfold unpleasant truths truthfully.
78. In Maneka Gandhi (supra), this Court observed thus:-
“22. …These rights represent the basic values of a
civilised society and the constitution-makers declared
that they shall be given a place of pride in the
Constitution and elevated to the status of fundamental
rights. The long years of the freedom struggle inspired
by the dynamic spiritualism of Mahatma Gandhi and in
fact the entire cultural and spiritual history of India
formed the background against which these rights were
enacted and consequently, these rights were conceived
by the constitution-makers not in a narrow limited
sense but in their widest sweep, for the aim and
objective was to build a new social order where man will
not be a mere plaything in the hands of the State or a
few privileged persons but there will be full scope and
opportunity for him to achieve the maximum
development of his personality and the dignity of the
individual will be fully assured.”
79. In Bangalore Water Supply & Sewerage Board v. A.
Rajappa85, this Court observed:-
“There is no degrading touch about “industry”,
especially in the light of Mahatma Gandhi’s dictum that
‘Work is Worship”. Indeed the colonial system of
education, which divorced book learning from manual
work and practical training, has been responsible for
the calamities in that field. For that very reason,
Gandhiji and Dr Zakir Hussain propagated basic
84 (1978) 1 SCC 18
85 (1978) 2 SCC 213
108
education which used work as modus operandus for
teaching. We have hardly any hesitation in regarding
education as an industry.”
80. In Minerva Mills Ltd. v. Union of India86, the Court noted
thus:-
“53. .... The emergence of Mahatma Gandhi on the
political scene gave to the freedom movement a new
dimension: it ceased to be merely anti-British; it became
a movement for the acquisition of rights of liberty for the
Indian Community.
103. ...... Mahatma Gandhi, the father of the nation,
said in his inimitable style in words, full of poignancy:
“Economic equality is the master key to
non-violent independence. A non-violent system of
government is an impossibility so long as the wide
gulf between the rich and the hungry millions
persists. The contrast between the palaces of New
Delhi and the miserable hovels of the poor
labouring class cannot last one day in a free India
in which the poor will enjoy the same power as the
rich in the land. A violent and bloody revolution is
a certainty one day, unless there is voluntary
abdication of riches and the power that riches give
and sharing them for common good.”
81. In Akhil Bharatiya Soshit Karamchari Sangh (Railway) v.
Union of India87, there is an observation which reads thus:-
“13. …There was the Everest presence of Mahatma
Gandhi, the Father of the Nation, who staked his life for
the harijan cause. There was Baba Saheb Ambedkar —
a mahar by birth and fighter to his last breath against
the himalayan injustice to the harijan fellow millions
stigmatised by their genetic handicap — who was the
86 (1980) 3 SCC 625
87 (1981) 1 SCC 246
109
Chairman of the drafting committee of the Constituent
Assembly.”
82. In People’s Union for Democratic Rights v. Union of India88
,
it has been stated:-
“Mahatma Gandhi once said to Gurudev Tagore, “I have
had the pain of watching birds, who for want of strength
could not be coaxed even into a flutter of their wings.
The human bird under the Indian sky gets up weaker
than when he pretended to retire. For millions it is an
eternal vigil or an eternal trance.”
83. In Bachan Singh v. State of Punjab89, the Court noted:-
“22. …Mahatma Gandhi also wrote to the same effect in
his simple but inimitable style:
“Destruction of individuals can never be a virtuous
act. The evil-doers cannot be done to death. Today
there is a movement afoot for the abolition of
capital punishment and attempts are being made
to convert prisons into hospitals as if they are
persons suffering from a disease.””
84. In Kailash Sonkar v. Maya Devi90
, (1984) 2 SCC 91, the
observation is:-
“4. As Mahatma Gandhi, father of the nation, said
“India lives in villages” and so do the backward classes,
hence the primary task was to take constructive steps
in order to boost up these classes by giving them
adequate concessions, opportunities, facilities and
representation in the services and, last but not the
least, in the electorate so that their voices and views,
grievances and needs in the Parliament and State
88 (1982) 3 SCC 235
89 (1982) 3 SCC 24
90 (1984) 2 SCC 91
110
legislatures in the country may be heard, felt and
fulfilled.”
85. In Pradeep Jain v. Union of India91, emphasising on formation
of one nation, the Court observed:-
“This concept of one nation took firm roots in the minds
and hearts of the people during the struggle for
independence under the leadership of Mahatma Gandhi.
He has rightly been called the Father of the Nation
because it was he who awakened in the people of this
country a sense of national consciousness and instilled
in them a high sense of patriotism without which it is
not possible to build a country into nationhood.”
86. In Indra Sawhney v. Union of India92 and ors. the Court
observed that it is Mahatma Gandhi, who infused secular spirit
amongst the people of India.
87. In S.R. Bommai and others v. Union of India and others93
speaking on statesmanship, the larger Bench noted:-
“24. Mahatma Gandhi and other leaders of modern
times advocated to maintain national unity and
integrity. It was with the weapons of secularism and
non-violence that Mahatma Gandhi fought the battle for
independence against the mightly colonial rulers. As
early as 1908, Gandhiji wrote in Hind Swaraj:
India cannot cease to be one nation, because
people belonging to different religions live in it....In
no part of the world are on nationality and on
religion synonymous terms; nor has it ever been so
in India.”
91 (1984) 3 SCC 654
92 (1992) Supp. 3 SCC 217
93 (1994) 3 SCC 1
111
88. In T.N. Godavarman Thirumulpad v. Union of India94, while
making a reference to fundamental duties, the Court found that:-
“35. The Father of the Nation Mahatma Gandhi has also
taught us the same principle and all those concepts find
their place in Article 51-A(g) as well.”
89. In Dalip Singh Vs. State of U.P. and Ors.95, while 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
94 (2012) 4 SCC 362
95 (2010) 2 SCC 114
112
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 on Mahatma
Gandhi. Mr. Subramanium, learned senior counsel also referred to
certain books indicating that there are many critical passages about
Mahatma Gandhi. The books referred to by him are “Great Soul:
Mahatma Gandhi and his struggle India”96 and “Sex and Power”97. In
this regard we may also refer to Mahatma Gandhi The Early Phase
Vol.I98, Gandhian Constitution for Free India99, Gandhi’s Philosophy of
Law100, Mahatma Gandhi101, The Myth of the Mahatma102, Gandhi
Before India103, In Search of Gandhi104, Gandhi’s View of Legal
Justice105, Gandhi, Soldier of Non-Violence: An Introduction106, Trial of
Mr. Gandhi107, Gandhi and Civil Disobedience Movement108, Tilak,
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
113
Gandhi and Gita109, Studies in Modern Indian Political thought: Gandhi
an Interpretation110, Gandhi and the Partition of India111, Gandhi in
London112, Mahatma Gandhi Contribution to Hinduism113, Life of
Mahatma Gandhi114, Moral and Political Thought of Mahatma Gandhi115
,
Gandhi and Social Action Today116, Gandhi: The Man and the
Mahatma117, Gandhi and Ideology of Swadeshi118, Gandhi’s Khadi:
History of Contention and Conciliation119, Mahatma Gandhi and
Jawarhal Nehru: A Historic Partnership Vol.1 (1916-1931)120, Gandhi:
Prisoner of Hope121, Mahatma Gandhi and His Apostles122, Gandhi and
Status of Women123, Philosophy of Gandhi: A Study of His Basic
Ideas124, Gandhi Naked Ambition125
, Meera and the Mahatma126
, and
The Men Who Killed Gandhi127
.
92. Some of these books praise Gandhi, analyse Gandhian thoughts,
criticise Gandhian philosophy, express their dissent, disagree with his
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
114
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
115
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
128 Essay on Milton
129 Heroes and Hero-Worship, Lecture iii
130 Defence of Poetry
131 Lectures on the English Poets, i
116
principle of variety in unity”.132
99. S.T. Coleridge’s has expressed that poetry is the anti-thesis of
science, having for its immediate object pleasure, not truth.133
German philosopher Hegel has thought that the use of verse in a
given piece of literature serves in itself to lift the mankind into a world
quite different from that of prose or everyday life. Emerson says that
the great poets are judged by the frame of mind they induce.134 There
is no difficulty in saying that the definition or understanding of
concept of poetry of any high authority can be ignored. That is the
freedom of the poet.
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
132 Imagination and Fancy, i.
133 Lectures and Notes on Shakespeare and other English Poets, and Biographia Literaria, chapter xiv.
134 Preface to Parnassus
117
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
118
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
119
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
120
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
121
that by bringing in a historically respected personality to the arena of
Section 292 IPC, neither a new offence is created nor an ingredient is
incorporated. The judicially evolved test, that is, “contemporary
community standards test” is a parameter for adjudging obscenity,
and in that context, the words used or spoken by a historically
respected personality as a medium of communication through a poem
or write-up or other form of artistic work gets signification. That
makes the test applicable in a greater degree. To understand the
same, a concrete example can be given. A playwright conceives a plot
where Mahatma Gandhi, Vishwakavi Rabindra Nath Tagore, Sardar
Vallabh Bhai Patel meet in heaven and they engage themselves in the
discussion of their activities what they had undertaken when they
lived in their human frame. In course of discussion, their
conversation enters into the area of egoism, thereafter slowly
graduates into the sphere of megalomania and eventually they start
abusing each other and in the abuses they use obscene words. The
question would be whether the dramatist can contend that he has
used them as symbolic voices to echo the idea of human fallacy and
it’s a creation of his imagination; and creativity has no limitation and,
therefore, there is no obscenity. But, there is a pregnant one, the
author has chosen historically respected persons as the medium to
122
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.
123
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
124
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
125
ITEM NO.1A COURT NO.5 SECTION IIA
(For Judgment)
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal No.1179 of 2010
DEVIDAS RAMACHANDRA TULJAPURKAR Appellant(s)
VERSUS
STATE OF MAHARASHTRA & ORS. Respondent(s)
Date : 14/05/2015 This appeal was called on for pronouncement of
Judgment today.
For Appellant(s) Mr. Gopal Subramanium, Sr. Adv.
Mr. P.H. Parekh, Sr. Adv.
Mr. Sameer Parekh, Adv.
for M/s. Parekh & Co.
For Respondent(s) Mr. A.P. Mayee, Adv.
Mr. Charudatta Mahindrakar, Adv.
Mr. Kunal A. Cheema, Adv.
Mr. Nishant Katneshwarkar, Adv.
Mr. A. Selvin Raja, Adv.
Ms. Asha Gopalan Nair, AOR
Hon'ble Mr. Justice Dipak Misra, pronounced the
judgment of the Bench comprising His Lordship and Hon'ble
Mr. Justice Prafulla C. Pant.
The appeal is disposed of in terms of the signed
reportable judgment.
(Chetan Kumar)
Court Master
(H.S. Parasher)
Court Master
(Signed reportable judgment is placed on the file)
advocatemmmohan
- advocatemmmohan
- since 1985 practicing as advocate in both civil & criminal laws
Wednesday, June 24, 2015
“Gandhi Mala Bhetala”=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.
