Thought Papers for Monday Seminar (Obscenity and Pornography)
r.venk...@gmail.com
THOUGHT PAPER
Ranjit D. Udeshi v. State of Maharashtra
R. Venkatesh
In Ranjit Udeshi’s case, the appellant was prosecuted under § 292 of the Indian Penal Code for possessing copies of an allegedly obscene book “Lady Chatterley’s Lover” for sale. Though various issues were being raised by the counsel for the appellant including the constitutional validity of § 292 (the court held that the provision falls well within the restriction prescribed under Art. 19 (2) as it restricts freedom of speech and expression in the interests of “public decency or morality”) and the requirement of intention under the aforementioned provision, the judgment of the court ultimately boiled down to deciding the issue of whether the book in question is an obscene material or not? The term “obscene” or “obscenity” is neither defined under §292 of the IPC nor under the Constitution of India or for that matter, in the “International Convention for the Suppression of or Traffic in Obscene Publications”, referred to by the Court in this case. This raises the question of what test should be adopted by the Indian Courts while determining whether a material is obscene or not.
The Supreme Court considered the test laid down in the case of Queen v. Hicklin (“Hicklin’s test”). As per the Hicklin’s test, a material is obscene if it tends to “deprave and corrupt those whose minds are open to such immoral influences”. The counsel for appellant contended that the Hicklin’s test is outdated and that there is a need for the court to modify it, in light of recent views expressed by the courts in England and the United States. Nevertheless, the Supreme Court proceeded with the Hicklin’s test to interpret the impugned publication.
It is interesting how Justice Hidayatullah concludes that the book in question is obscene. He seems to be in a dilemma of choosing between his liberal mindset and norms of conservative society, which is evident from his choice of words in pronouncing the judgement. The court conceded that sex and nudity in art and literature cannot be regarded as an evidence of obscenity without something more and that the attitude of society is much more tolerant than the earlier days. But, it further stated that “regard being had to our community mores” and “judged of from our community standards”, the book satisfies the Hicklin’s test of obscenity and thus, §292 of the IPC applies in this case and since the book did not have a “preponderating social purpose or profit”, the protection of freedom of speech and expression is not available.
It is also fascinating to notice that J. Hidayatullah tries to justify the moral standing of D. H. Lawrence, the author of “Lady Chatterley’s Lover”. He opines that none can doubt the sincerity of Lawrence’s belief or his “missionary zeal”. J. Hidayatullah seems to endorse Lawrence’s views on issues of sexual relations and in this endeavor seems to have gone beyond what is needed to decide this case. J. Hidayatullah discusses the intention or rather motives that led Lawrence to write the impugned book. He expounds the dual purpose in writing the allegedly obscene book. It is crucial to note that in deciding the issue of whether intention is required to convict a person under §292 of IPC, the court held that intention is not required as strict liability has been imposed by the statute. If the intention of the seller, distributor or other stakeholders are irrelevant, the inherent conclusion is that the intention of the author in writing the book should also be irrelevant because the obscenity of the material is decided through the eyes of the reader/ viewer and not from the viewpoint of the creator. Furthermore, the court concluded that the depiction of sex in the book is a mere attraction to the common man and does not have any social gain i.e. they decided solely on the content and not the intent. Thus, the whole discussion of Lawrence’s philosophy of life and psychoanalysis, seems to me wholly irrelevant.
Yet another aspect of reasoning applied by the court which is questionable, but will not change the outcome of the case is the categorisation of the words “decency or morality” under Art. 19(2) as public decency or morality. J. Hidayatullah seems to have imported the term “public” from the “public order” part of Art. 19(2). However, since the object behind Art. 19(2) is to restrict freedom of speech and expression guaranteed under Art. 19(1) in the general interests of the public and state; the phrase “decency or morality” should be construed as public decency or morality and interpreting it as an individual’s decency or morality won’t make sense.
vasuj...@nujs.edu
On Sunday, June 21, 2015 at 10:38:16 PM UTC+5:30, r.venk...@gmail.com wrote:
Yogini Oke
A THOUGHT PAPER ON AVEEK SARKAR VS. STATE OF WEST BENGAL
The issue of obscenity and the standards of a work of art being acceptable in the society have been discussed in India in various socio-legal debates. The debate about obscenity is often surrounded by questions of morality, social repercussions and at times, religion as well. The Supreme Court decision on the case Aveek Sarkar vs State of West Bengal[1](hereinafter “Aveek Sarkar”) brought the issue of obscenity and it’s social repercussions in the forefront.. The case also came up with constructive arguments regarding the relation between obscenity and freedom of speech. This case comment will discuss how the issue of obscenity has been seen in post independent India. The author seeks to critically analyse the effects of the Hicklin test and the ‘Community standard’ test on the freedom of speech and expression with regards to ‘obscene publication’.
BACKGROUND
STERN, a German magazine had a semi-nude picture of the tennis player Boris Becker and his dark skinned girlfriend Barbara Feltus as its cover page. The cover story focussed on the inter-racial love affair and was a symbolic representation of Becker’s campaign against the practice of Apartheid. Subsequently, the same picture was published in ‘Sports Star’ on 5th May, 1993 and ‘Anand Bazaar Patrika’ (hereinafter ABP), a newspaper with wide circulation in Kolkata. A petition was filed against the publishers in the judicial magistrate’s court, Alipore under S. 292[2] of the Indian Penal Code contending that such pictures of a ‘lascivious’ nature will corrupt young minds and leave youngsters devoid of any cultural or moral ethos. The petitioner also urged that the accused be held guilty under the Section 4 of the Indecent Representation of Women’s Act (hereinafter IRW), as this picture provided sexual titillation to the viewers. The District court accepted the arguments of the petitioner and issued proceedings under S.292 of the Indian Penal Code and S.4 of the IRW act.
ABP and the Sports Star filed an application to quash the proceeding in the High Court of Calcutta. The major argument put forth by the counsel of publishers was that such publication was not illegal and the general exception[3] in Section 79 of the Indian Penal Code was applicable. However, neither the district magistrate nor the High Court accepted the arguments put forth. . Therefore, the publishers, appealed to the Supreme Court.
CASE ANALYSIS
This judgement is one of immense positive effect as it finally discarded the ‘Hicklin test’ which had prevailed in the obscenity-related judgements in India. The court has relied on cases from different jurisdictions while trying to understand the issue of obscene publications.
In the Aveek Sarkar case, the court discussed and appreciated the positivist stance of English and Canadian Courts which had allowed the circulation of the book under contention in the Udeshi case. Thus, by appreciating these decisions, the court implicitly discarded the Hicklin test as used in the Udeshi case. On the other hand, the ‘Community standard test’ which the court has adopted in this case, looks at any work as a whole and also the intention of the artist/ author. The Community Standard test has been lifted from theRoth v United States [4](hereinafter ‘Roth case’) judgement, where the Court gave its ruling on the premise that obscenity is acceptable and tolerable in the society. The way in which the court has focussed on the changing standards in the society is to be applauded. The court has briefly discussed how decisions like Samaresh Bose v Amalesh Mitra [5]have talked about contemporary community standards and has also realised that the time-gap between the filing of the case and the Supreme Court judgement would have seen a massive progressive change in the attitudes of any particular the community. While deciding on the issue of S 4 of the Indecent Representation of Women’s Act, the court has ruled that freedom of expression should be squared[6] with obscenity and mere nudity is per se not ‘obscene’.
THE ISSUE OF FREEDOM OF EXPRESSION
The Hicklin test, as employed in the Udeshi case considers obscenity as an exception to freedom of speech. The Aveek Sarkar case, however refers to the Chandrakant Kalyandas Kakodar v. State of Maharashtra [7] (hereinafter ‘Kakodkar case’) case which omitted the skin of the Hicklin test while retaining the skeleton. TheKakodar case redeemed the book ‘Lady Chatterley’s love’ as it considered that use of paragraphs with certain obscene content might be justified if such part is necessary to the work or the work as a whole is of a great literary value. Freedom of expression in the Kakodar case is thus restricted to materials which have a great literary value. Thus, the freedom of expression is not guaranteed otherwise, in case of ‘ordinary’ literary works with explicit content. The Aveek Sarkar case goes a step ahead and says that the standard of obscenity is to be adjudicated according to the contemporary standards of the society. An associated problem is that in a community as diverse and huge as India, it would be very difficult to find out a ‘single community standard’. A single community standard in a plural community like India will mean leaving the judgement to the moral majority as it happened recently in the Naz Foundation case. Thus, even a community standard test can be an impediment to the freedom of speech of marginalised and minority communities.
While the judgement needs to applauded as a whole, on progressive liberitarian grounds, quite a few loopholes surface on a closer analysis. The Supreme Court considers Roth v United States as a major precedent and takes up the phrase “contemporary community standards” from the case. Community standards comprised only the first prong of the Roth judgement, but under the second prong, the material had to be “patently offensive”, and under the third prong, “of no redeeming social value”. The ‘context-message’ test used by the court in Aveek Sarkar to read the message against apartheid as a justification for the show of nudity may be read into as the third prong from the Roth case. However, the Court ignores the possibility of the existence of some other work not intending to propagate some social message. The court could have avoided the limitations of the community standard test, had it also taken into account Miller v. California [8]which superseded the Roth case.[9] The third prong was liberalised into “lacking serious literary, artistic, political or scientific value” in Miller v. California. The liberalised version of the third prong is really necessary if we are gauging obscenity through the lens of community standards. The author is afraid that future D.H Lawrences might not be able to seek redressal in the context-message test used in Aveek Sarkar. Such works will require the liberalised test where the intent of the author will be examined within the norms of the art itself. Thus[10], the author believes that the judgement is slightly incomplete and might not be able to meet the ends of justice in the future.
The majoritarian morality in our nation constantly equates the ‘honour’ of a woman to the parts of her body which have been covered. The publishers have also been sued under the Indecent Representation of Women’s act under the reason that such pictures are detrimental to the morals of womanhood in the society. While the court has bravely adjudicated that the said picture is not to be penalised under the Act, it has done so, again under the context-message test. It has been left to the course of law and time whether pieces of art with no social message per se which are found to be sexually titillating will be penalised under the Indecent Representation of Women’s Act.
The positive impact that the Aveek Sarkar case has had on the morality discourse cannot completely be negated by these loopholes. This case has tried to debunk certain existing social norms by stating that nudity or sex, per se, are not necessarily obscene. A new cornerstone on the way to free speech has been achieved by the Aveek Sarkar case as it sees freedom of expression and obscenity as equal stakeholders in the moralistic framework. This case has also moved away from the patriarchal world-view that ‘Naked women can be nothing else but sexual agencies’. While Aveek Sarkar has its downfalls, it cannot be denied that Aveek Sarkar is a step towards a tolerant morality in an atmosphere full of intolerance and hatred.
[1]Aveek Sarkar vs Union of India, available at
[2] S 292 of the Indian Penal Code states “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 persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.]”
[3] S.79 of Indian Penal Code “Act done by a person justified, or by mistake of fact believing himself, justified, by law.-- Nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith, believes himself to be justified by law, in doing it. “
[4] Roth v.United States 354 U.S. 476 (1957).
[5] Samaresh Bose v. Amal Mitra (1985) 4 SCC 289
[6] The Judge, in the Aveek Sarkar case while dealing with the Section 4 of the Indecent Representation of Women act said “The test of obscenity must square with the freedom of speech and expression guaranteed under our Constitution.”
[7] Chandrakant Kalyandas Kakodar v. State of Maharashtra 1969 (2) SCC 687
[8] MILLER v. CALIFORNIA, 413 U.S. 15 (1973)
[9] Gautam Bhatia,‘Obscenity: The Supreme Court discards the Hicklin Test (February 7, 2014) Available at:http://indconlawphil.wordpress.com/2014/02/07/obscenity-the-supreme-court-discards-the-hicklin-test/
On Sunday, June 21, 2015 at 10:38:16 PM UTC+5:30, r.venk...@gmail.com wrote: