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2015 (5) TMI 1137
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....red. 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 inappr....
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....there is no scintilla of doubt in the mind of any average reader. Learned amicus curiae would submit that the question deserves to be dealt with and answered in proper perspective. Clarification of the question framed 2. We are obligated to clarify the position. It is apt to state here the question framed by us has to be contextually understood. The question was framed in the factual matrix of the case. The proposition presented is that despite all the poetic licence and liberty of perception and expression, whether 'poem' or 'write-up' can use the name of a historically respected personality by way of an allusion or symbol in an obscene manner. "Historically respected personality" was used in the backdrop of the use of the name of Mahatma Gandhi. When the name of such a respected personality is used as an allusion or symbol, and language is revoltingly suggestive whether that is likely to come within the perceived ambit and sweep of Section 292 IPC, whether it is permissible. We shall dwell upon this facet when we will discuss the poem in a prima facie manner, for the purpose of scrutinising the order framing charge; and we shall also deal with the submission of Mr. Subraman....
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....ound, T.S. Eliot or Pablo Neruda. That is fundamentally what is meant by poetic license. 3. We may slightly delve into the area in Sanskrit literature that gave immense emphasis on aesthetics. The concept of rasa though mentioned in the Vedas and by Valmiki gets consummate expression in all its complexity with Bharata when he introduces it to explain aesthetic experience. "Vibhavanubhav vyabhichari sanyogadrasnishpati". Bharata discusses in detail the contributing factors like vibhavas, anubhavas, vybhicharibhavas and sthayibhavas. Dandin emphasises on lucidity, sweetness, richness and grandeur to basically constitute poetry and that is why it is said "Dandinha Padlalityam". Some critics like Vamana, stressing on soul of poetry perceive 'riti' as "Ritiraatma kavyasya". Some also subscribe to the theory that 'rasa' gets expressed through dhvani. There are thinkers who compare writings of T.S. Eliot, when he states poetic delineation of sentiments and feelings, to have the potentiality of being associated with the 'element of surprise' which is essential to poetry, and there he is akin to Indian poeticians like Kuntaka who called poetry 'vakrokti' which he explains as "vaidagdhyab....
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....trial Magistrate which constrained the accused persons to invoke jurisdiction under Section 482 of the CrPC and the High Court of Bombay, Aurangabad Bench dismissed the application. The said decision is the subject of matter of this appeal by special leave at the instance of the publisher. The author has chosen not to assail the order passed by the High Court. Concept of obscenity 8. Apart from submitting that the orders passed by all the Courts are absolutely perverse and deserve to be lancinated, it is submitted by Mr. Subramanium, learned senior counsel that to appreciate the question framed by this Court, despite his reservation on the legal score as regards its phraseology, the meaning of the term "obscenity" has to be appositely understood. He has referred to the Black's Law Dictionary that defines obscenity as follows:- "Obscene, adj. (16c) - Extremely offensive under contemporary community standards of morality and decency; grossly repugnant to the generally accepted notions of what is appropriate. Under the Supreme Court's three- part test, material is legally obscene - and therefore not protected under the First Amendment - if, taken as a whole, the mat....
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....in R. v. Beaver[(1905), 9 O.L.R. 418], wherein Maclaren, J.A., has defined 'obscene' as follows:- "The word 'obscene' ... was originally used to describe anything disgusting, repulsive, filthy or foul. The use of the word is now said to be somewhat archaic or poetic; and it is ordinarily restricted to something offensive to modesty or decency, or expressing or suggesting unchaste or lustful ideas, or being impure, indecent, or lewd." 11. After generally referring to the meaning of the term obscenity, learned senior counsel has emphasised on the tests adopted in various countries relating to obscenity. Mr. Subramanium has referred to various authorities of United Kingdom, United States of America, European Courts and this Court to pyramid the proposition that the tests laid down by legal system including the authorities of this Court do not suggest that that the instant poem can remotely be treated as obscene. First, we shall dwell upon the tests and standards laid by various Courts and then the binding authorities of this Court and thereafter to the concept of freedom of speech and expression on the constitutional parameters and finally delve to adjudge the face....
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....u are here trying a criminal charge and in a criminal court you cannot find a verdict of "Guilty" against the accused unless, on the evidence that you have heard, you and each one of you are fully satisfied that the charge against the accused person has been proved. Remember the charge is a charge that the tendency of the book is to corrupt and deprave. The charge is not that the tendency of the book is either to shock or to disgust. That is not a criminal offence. Then you say: "Well, corrupt or "deprave whom?" and again the test: those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall. What, exactly, does that mean? Are we to take our literary standards as being the level of something that is suitable for a fourteen- year-old school girl? Or do we go even further back than that, and are we to be reduced to the sort of books that one reads as a child in the nursery? The answer to that is: Of course not. A mass of literature, great literature, from many angles is wholly unsuitable for reading by the adolescent, but that does not mean that the publisher is guilty of a criminal offence for making those works available to....
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....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.[ [1961] Crim LR 176] where the Court was dealing with the publication of the book 'Lady Chatterley's Lover' by the Penguin Books. The said case ended with "not guilty verdict" as a consequence of which the book was allowed to be openly published and was sold in England and Wales. 16. In R. v. Peacock[Unreported case, See http://www.bbc.com/news/uk-16443697], a verdict, an unreported one, rendered on January 6, 2011 by Southwark Crown Court, London, submitted Mr. Subramanium, has resulted in great upsurge in the demand for a review in the obscenity laws in England and Wales. In the said case, Michael Peacock, was charged on indictment with six counts under the 1959 Act for allegedly distributing the obscene DVDs that contained videos of homosexual sadomasochism and BDSM pornography. The accused in the said case successfully pleaded not guilty. The legal experts of England and Wales started opining that the 1959 Act had become redundant. 17. Relying on the aforesaid authorities, it i....
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....bly reproduce the observations made therein:- "All ideas having even the slightest redeeming social importance - unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion-have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. This rejection for that reason is mirrored in the universal judgment that obscenity should be restrained, reflected in the international agreement of over 50 nations, in the obscenity laws of all of the 48 States." The Court further opined that: "We hold that obscenity is not within the area of constitutionally protected speech or press." 20. In Memoirs v. Masachusetts[383 U.S. 413 (1966)], 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 pr....
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....e ultimate power of appellante courts to conduct an independent review of constitutional claims when necessary." 22. The US Supreme Court in Miller (supra) stated that the application and ascertainment of 'contemporary community standards' would be the task of the Jury as they best represent the 'contemporary community standards'. The Court observed:- "19. Sex and nudity may not be exploited without limit by films or pictures exhibited or sold in places of public accommodation any more than live sex and nudity can be exhibited or sold without limit in such public places.[15] At a minimum, prurient, patently offensive depiction or description of sexual conduct must have serious literary, artistic, political, or scientific value to merit First Amendment protection. For example, medical books for the education of physicians and related personnel necessarily use graphic illustrations and descriptions of human anatomy. In resolving the inevitably sensitive questions of fact and law, we must continue to rely on the jury system, accompanied by the safeguards that judges, rules of evidence, presumption of innocence, and other protective features provide, as we do with rape, mur....
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....shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right." 25. The State Statute of Oregan i.e. ORS 167.087 that criminalized selling, exhibiting, delivery and dissemination of obscene material was struck down as being violative of Article I Section 8. The Oregon SC held thus:- "The indeterminacy of the crime created by ORS 167.087 does not lie in the phrase "sexual conduct" that is further defined in ORS 167.060 (10). It lies in tying the criminality of a publication to "contemporary state standards." Even in ordinary criminal law, we doubt that the legislature can make it a crime to conduct oneself in a manner that falls short of "contemporary state standards." In a law censoring speech, writing or publication, such an indeterminate test is intolerable. It means that anyone who publishers or distributes arguably "obscene" words or pictures does so at the peril of punishment for making a wrong guess about a future jury's estimate of "contemporary state standards" of prurience." As we understand, wit....
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....se to prove contemporary community standards. Pro-prosecution rulings in this area have been handed down in both Adams[No. 08-5261, 2009 U.S. App. Lexis 16363 (4th Cir. July 24, 2009)] and Burden[55 S.W. 3d 608 (Tex. Crim. App. 2001)]. And while Judge Bucklew in Little[No. 08-15964, 2010 U.S. App. Lexis 2320 (11th Cir. Feb. 2, 2010] 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 e....
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....ts, do not appear to be more sexually explicit than many of those which are permitted to be published in leading journals and magazines." Having dealt with the 'comparables test' as is understood from the aforesaid decisions, we are to repeat that the contemporary community standards test is still in vogue with certain addition. Test laid down by the European Courts 27. Now we shall proceed to deal with the perception of obscenity by the European Courts. In Vereinigung Bildender Kinstler v. Austria[Application No. 68354/2001, 25th January 2007], 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. Meischber....
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....ered by the public at all." 28. Mr. Nariman, learned amicus curiae in this regard has submitted that the European Court of Human Rights' view is divided inasmuch as four of the Judges in a Court of seven have expressed the view, which is as follows:- "26. The Court reiterates that freedom of expression, as secured in paragraph 1 of Article 10, constitutes one of the essential foundations of a democratic society, indeed one of the basic conditions for its progress and for the self-fulfilment of the individual. Subject to paragraph 2, it is applicable not only to "information" or "ideas" that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any section of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no "democratic society". Those who create, perform, distribute or exhibit works of art contribute to the exchange of ideas and opinions which is essential for a democratic society. Hence the obligation on the State not to encroach unduly on their freedom of expression. Artists and those who promote their work are certain....
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....stion 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....
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....d the complaint, finding that the cartoons were intended to deprive the politician concerned of his dignity by portraying him as engaging in bestial sexual conduct. Where there was a conflict with human dignity, artistic freedom (Kunstfreiheit) must always be subordinate to personality rights.[35] 11. One commentator, Eric Barendt, rightly approved this decision, stating: "Political satire should not be protected when it amounts only to insulting speech directed against an individual. If, say, a magazine feature attributes words to a celebrity, or uses a computerized image to portray her naked, it should make no difference that the feature was intended as a parody of an interview she had given. It should be regarded as a verbal assault on the individual's right to dignity, rather than a contribution to political or artistic debate protected under the free speech (or freedom of the arts) clauses of the Constitution."[36] 12. In a word, a person's human dignity must be respected, regardless of whether the person is a well-known figure or not. 13. Returning to the case before us, we therefore consider that the reasons that led th....
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....ation No. 5493/72, 7th December 1976, Series A No. 24], wherein it has been held thus:- "The Court's supervisory functions oblige it to pay the utmost attention to the principles characterising a "democratic society". Freedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man. Subject to paragraph 2 of Article 10 (art. 10-2), it is applicable not only to "information" or "ideas" that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no "democratic society". This means, amongst other things, that every "formality", "condition", "restriction" or "penalty" imposed in this sphere must be proportionate to the legitimate aim pursued. From another standpoint, whoever exercises his freedom of expression undertakes "duties and responsibilities" the scope of which depends on his situation and the technical means he uses. The Court cannot overlook such a ....
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....tress 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....
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.... measures taken can be considered as both relevant and sufficient for the purpose of Article 10 para 2 (art. 10-2). Furthermore, having viewed the film for itself, the Court is satisfied that the decisions by the national authorities cannot be said to be arbitrary or excessive." Mr. Nariman, the friend of the Court has also laid immense emphasis on the concurring opinion of Judge Pettit. The learned Judge though voted with the majority, observed:- "... I consider that the same decision could have been reached under paragraph 2 of Article 10 (art. 10-2) on grounds other than blasphemy, for example the profanation of symbols, including secular ones (the national flag) or jeopardising or prejudicing public order (but not for the benefit of a religious majority in the territory concerned). The reasoning should, in my opinion have been expressed in terms both of religious beliefs and of philosophical convictions. It is only in paragraph 53 of the judgment that the words "any other" are cited. Profanation and serious attacks on the deeply held feelings of others or on religious or secular ideals can be relied on under Article 10 para 2 (art. 102) in addition to blasphemy. Wha....
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.... based both on pluralism and a sense of values." 33. Learned Amicus, to cement the proponement of absence of total limitlessness of freedom of speech and expression and to refute the principle of absoluteness has also commended us to the authority in Muller and Others v. Switzerland[13 EHRR 212]. In the said case, the question was whether paintings at an exhibition depicting in a crude manner, sexual relations particularly between men and animals to which general public had free access as the organisers had not imposed any admission charge or any age limit; the paintings being displayed to the public at large. The European Court of Human Rights stated:- "The Court recognises, as did the Swiss courts, that conceptions of sexual morality have changed in recent years. Nevertheless, having inspected the original paintings, the Court does not find unreasonable the view taken by the Swiss courts that those paintings, with their emphasis on sexuality in some of its crudest forms, were "liable grossly to offend the sense of sexual propriety of persons of ordinary sensitivity". In the circumstances, having regard to the margin of appreciation left to them under Article 10 part 2....
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....ne object for any of the purposes aforesaid, or knowing or having reason to believe that such object will be sold, let to hire, distributed or publicly exhibited or in any manner put into circulation, or (c) takes part in or receives profits from any business in the course of which he knows or has reason to believe that any such obscene objects are for any of the purposes aforesaid, made, produced, purchased, kept, imported, exported, conveyed, publicly exhibited or in any manner put into circulation, or (d) advertises or makes known by any means whatsoever that any person is engaged or is ready to engage in any act which is an offence under this section, or that any such obscene object can be procured from or through any person, or (e) offers or attempts to do any act which is an offence under this section, shall be punished [on first conviction with imprisonment of either description for a term which may extend to two years, and with fine which may extend to two thousand rupees, and, in the event of a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and also with fine which may extend to....
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....per, writing, drawing or painting kept or used bona fide for religious purposes or any representation sculptured. Engraved, painted or otherwise represented on or in any temple, or on any car used for the conveyance or idols, or kept or used for any religious purpose.]" 36. For the first time this Court dealt with the effect and impact of the provision in the backdrop of the challenge to the constitutional validity of the same, in Ranjit D. Udeshi v. State of Maharashtra[(1965) 1 SCR 65]. 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 Publ....
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....is to be drawn. It is, however, clear that obscenity by itself has extremely poor value in the propagation of ideas, opinions and information of public interest or profit. When there is propagation of ideas, opinions and photographs collected in book form without the medical text would may become different because then the interest of society may tilt the scales in favour of free speech and expression. It is thus that books on medical science with intimate illustrations and photographs, though in a sense immodest, are not considered to be obscene but the same illustrations and photographs collected in book form without the medical text would certainly be considered to be obscene. Section 292 of the Indian Penal Code deals with obscenity in this sense and cannot thus be said to be invalid in view of the second clause of Article 19." 37. After dealing with the said facet, the Court referred to various decisions of the English Courts, especially to Hicklin (supra), wherein the Queen's Bench was called upon to consider a pamphlet, the nature of which can be gathered from the title and the colophon which read:- "The Confession Unmasked, showing the depravity of Romish priest....
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....a definition by describing what must be looked for. It may, however, be said at once that treating with sex and nudity in art and literature cannot be regarded as evidence of obscenity without something more. It is not necessary that the angels and saints of Michael Angelo should be made to wear breeches before they can be viewed. If the rigid test of treating with sex as the minimum ingredient were accepted hardly any writer of fiction today would escape the fate Lawrence had in his days. Half the book-shop would close and the other half would deal in nothing but moral and religious books which Lord Campbell boasted was the effect of his Act." 39. After so stating, the Court referred to certain authorities of the United States of America and proceeded to observe that the Court must, therefore, apply itself to consider each work at a time. An overall view of the obscene matter in the setting of the whole work would, of course, be necessary, but the obscene matter must be considered by itself and separately to find out whether it is so gross and its obscenity so decided that it is likely to deprave and corrupt those whose minds are open to influences of this sort and into whose h....
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....ting with sex the impugned portions viewed separately and also in the setting of the whole book pass the permissible limits judged of from our community standards and as there is no social gain to us which can be said to preponderate, we must hold the book to satisfy the test we have indicate above." 41. In Chandrakant Kalyandas Kakodkar v. State of Maharashtra[(1969) 2 SCC 687], 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 har....
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.... Act are unconstitutional and void and consequently sought a writ of Mandamus or any other appropriate writ, direction or order for quashing the direction contained in letter dated July 3, 1969, for deletion of certain shots from a documentary film titled 'A Tale of Four Cities' produced by him for unrestricted public exhibition. The said certificate was declined and the petitioner was issued a letter that the film was suited for exhibition restricted to adults. The petitioner was given a chance to give explanation, but he did not change his decision. On an appeal, the Central Government opined that it could be granted 'U' certificate subject to certain cuts being made in the film. At that juncture, the petitioner preferred a petition before this Court. The Court viewed the film and still the stand of the Central Government was same. The petitioner thereafter amended the petition to challenge the pre-censorship itself as offensive to freedom of speech and expression and alternatively the provisions of the Act and the Rules, orders and directions under the Act as vague, arbitrary and indefinite. The prayer for amendment was allowed. The two fundamental contentions that were raised b....
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....that the task of the censor is extremely delicate and its duties cannot be the subject of an exhaustive set of commands established by prior ratiocination. In that context, the Court ruled:- "The standards that we set for our censors must make a substantial allowance in favour of freedom thus leaving a vast area for creative art to interpret life and society with some of its foibles along with what is good. We must not look upon such human relationships as banned in to and for ever from human thought and must give scope for talent to put them before society. The requirements of art and literature include within themselves a comprehensive view of social life and not only in its ideal form and the line is to be drawn where the average moral man begins to feel embarrassed or disgusted at a naked portrayal of life without the redeeming touch of art or genius or social value. If the depraved begins to see in these things more than what an average person would, in much the same way, as it is wrongly said, a Frenchman seas a woman's legs in everything, it cannot be helped. In our scheme of things ideas having redeeming social or artistic value must also have importance and protec....
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....lex and 'Lalita' complex. As is manifest from the judgment, the Court has taken pains to refer to certain situations from certain novels and the ideas from the plays and also emphasised on delicate depiction of a situation in a theme-oriented story. The Court has made a distinction between a historical theme without true history and portrayal of an artistic scene. Be it noted, in the said case, the Court opined that the test in Ranjit D. Udeshi (supra) would apply even to film censorship. 45. In Raj Kapoor and Others v. State and Others[(1980) 1 SCC 43], the High Court had refused the exercise of inherent power under Section 482 of the Criminal Procedure Code because the High Court felt the subject fell under its revisional power under Section 397 of the CrPC. The prosecution was launched by the president of a youth organisation devoted to defending Indian cultural standards, inter alia, against the unceasing waves of celluloid anti-culture, arraigning, together with the theatre owner, the producer, actors and photographer of a sensationally captioned and loudly publicised film by name Satyam, Sivam, Sundaram, under Sections 292, 293 and 34 of the IPC for alleged punitive prurie....
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....ecency or morality". Here, social dynamics guides legal dynamics in the province of "policing" art forms." Krishna Iyer, J. while stating thus opined that once a certificate under the Cinematograph Act is issued the Penal Code, pro tanto, will not hang limp. The court examined the film and dealt with the issue whether its public display, in the given time and clime, would breach the public morals or deprave basic decency as to offend the penal provisions. In that context, the learned Judge observed thus:- "15. .....Statutory expressions are not petrified by time but must be updated by changing ethos even as popular ethics are not absolutes but abide and evolve as community consciousness enlivens and escalates. Surely, the satwa of society must rise progressively if mankind is to move towards its timeless destiny and this can be guaranteed only if the ultimate value- vision is rooted in the unchanging basics, Truth - Goodness - Beauty, Satyam, Sivam, Sundaram. The relation between Reality and Relativity must haunt the [pic]Court's evaluation of obscenity, expressed in society's pervasive humanity, not law's penal prescriptions. Social scientists and spiritual scientists ....
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....on seeking enhancement of sentence. The High Court by common judgment dismissed the appeal and affirmed the sentence. A question arose before this Court whether the accused persons had committed the offence under Section 292, IPC and the Court observed the said question would be depending on the finding, whether the novel is obscene or not. A two-Judge Bench scanned the evidence on record in great detail, for it was essential for the Court to evaluate the evidence on record inasmuch as some of the witnesses had compared the plot in the novel to that of the novel "Chokher Bali" one of the works of Ravindra Nath Tagore. Shri Budhadeo Bose, who was a whole time writer and Chairman of Comparative Literature of Jadavpur University for a number of years, was cited as a witness on behalf of the accused. While facing the cross- examination, when asked to cite example of a writing vividly describing a sexual act and sexual perversity, Shri Bose answered that anyone who knows the works of Ravindra Nath Tagore knows that for his whole life he was a great advocate of social and sexual freedom. He referred to novel "Chokher Bali" where Tagore described a love relationship between a young Hindu ....
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.... 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 apprec....
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....y society in different countries. 51. In Director General, Directorate General of Doordarshan and others v. Anand Patwardhan and another[(2006) 8 SCC 433], 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 pe....
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....uthorities pronounced by this court, referred to Section 13 (2) of the Press Council Act 1978, Section 292 of the IPC and Section 4 and 6 of the Indecent Representation of Women (Prohibition) Act, 1986 (for short 'the 1986 Act') and thereafter proceeded to deal with test of obscenity and in that context observed as follows:- "67. In judging as to whether a particular work is obscene, regard must be had to contemporary mores and national standards. While the Supreme Court in India held Lady Chatterley's Lover to be obscene, in England the jury acquitted the publishers finding that the publication did not fall foul of the obscenity test. This was heralded as a turning point in the fight for literary freedom in UK. Perhaps "community mores and standards" played a part in the Indian Supreme Court taking a different view from the English jury. The test has become somewhat outdated in the context of the internet age which has broken down traditional barriers and made publications from across the globe available with the click of a mouse." After so stating the court reproduced a passage from Samresh Bose (supra) and also a passage from K.A. Abbas (supra) and eventually held th....
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....ution on the one hand pertaining to right to freedom of speech and expression to every citizen and the right of an individual expressing his views on any issue and simultaneously the observance of the right is not absolute if such speech and expression is immensely gross and will badly violate standards of morality of a society and hence, any expression is subject to reasonable restriction. 53. At this juncture, we may refer to the pronouncement in Bobby Art International v. Om Pal Singh Hoon and Others[(1996) 4 SCC 1], popularly known as "Bandit Queen case", because the film dealt with the life of Phoolan Devi and it was based on a true story. The appellant had approached this Court assailing the order passed by the Division Bench of the High Court of Delhi in Letters Patent Appeal affirming the judgment of the learned Single Judge, who had quashed the certificate granted to the film and directed the Censor Board to consider the grant of 'A' Certificate after certain excisions and modifications in accordance with the order that has been passed by the Court. The Court referred in extenso to the authorities in K.A. Abbas (supra), Raj Kapoor (supra), Samresh Bose (supra), State of....
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.... depiction and the emotions that are likely to be invoked. Emphasis was on the central theme of suffering. It has also taken note of the fact that sex had not been glorified in the film. It has also been observed that a few swear words, the like of which can be heard everyday in every city, town and village street, would not tempt any adult to use them because they are used in this film. 54. In this context, the learned senior counsel has commended us to a two- Judge Bench decision in Ramesh s/o Chhote Lal Dalal v. Union of India and others[(1988) 1 SCC 668] wherein the Court declined to interfere to issue a writ in the nature of prohibition or any other order restraining Doordarshan and the producer Govind Nihlani from telecasting or screening the serial titled "Tamas". The Court referred to the view of Vivian Bose, J. as he then was in the Nagpur High Court in the case of Bhagwati Charan Shukla v. Provincial Government[AIR 1947 Nag 1] 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 cert....
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....ing 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 wil....
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....ating for the cultural evolution literary taste and pursuit of happiness in social relations, national integration and solidarity of the nation and the effect of the film thereon. In the said case, it was also observed that the sense of decency or indecency have to be kept in view in adjudging whether the motion picture would stand to the test of satisfying a reasonable man in the society that it would not deprave or debase or corrupt his moral standards or induce lewdness, lasciviousness or lustful thoughts. 57. In S. Khushboo v. Kanniammal and another[(2010) 5 SCC 600] 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 se....
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....nder this section." Thereafter, the court referred to the authorities in Ranjit D. Udeshi (supra) and Samresh Bose (surpa) and proceeded to observe:- "45. Even though the constitutional freedom of speech and expression is not absolute and can be subjected to reasonable restrictions on grounds such as "decency and morality" among others, we must lay stress on the need to tolerate unpopular views in the sociocultural space. The Framers of our Constitution recognised the importance of safeguarding this right since the free flow of opinions and ideas is essential to sustain the collective life of the citizenry. While an informed citizenry is a precondition for meaningful governance in the political sense, we must also promote a culture of open dialogue when it comes to societal attitudes. 46. Admittedly, the appellant's remarks did provoke a controversy since the acceptance of premarital sex and live-in relationships is viewed by some as an attack on the centrality of marriage. While there can be no doubt that in India, marriage is an important social institution, we must also keep our minds open to the fact that there are certain individuals or groups who do not h....
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....heir lives and future plans. The article projected Boris Becker as a strident protester of the pernicious practice of "Apartheid" and the purpose of the photograph was also to signify that love champions over hatred. The article was published in the German magazine by name "Stern". "Sports World", a widely circulated magazine had reproduced the photograph and the article as cover story. "Anandabazar Patrika", a newspaper having wide circulation in Kolkata, also published in the second page of the newspaper the photograph as it appeared in Sports World. A lawyer claiming to be a regular reader of Sports World as well as Anandabazar Patrika filed a complaint under Section 292 of IPC against the appellants therein, the Editor, the Publisher and Printer of the newspaper and also against the Editor of Sports World, former Captain of Indian Cricket Team, Late Mansoor Ali Khan Pataudi. The learned Magistrate took cognizance and issued summons under Section 292, IPC and also under Section 4 of the 1986 Act. The appellants approached the High Court for quashing the criminal proceeding but the High Court declined to exercise the jurisdiction under Section 482 CrPC. It was contended before th....
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....such, cannot per se be called obscene unless it has the tendency to arouse the feeling of or revealing an overt sexual desire. The picture should be suggestive of deprave mind and designed to excite sexual passion in persons who are likely to see it, which will depend on the particular posture and the background in which the nude/semi-nude woman is depicted. Only those sex- related materials which have a tendency of "exciting lustful thoughts" can be held to be obscene, but the obscenity has to be judged from the point of view of an average person, by applying contemporary community standards." The Court also referred to Bobby Art International (supra), Ajay Goswami (supra) and held that applying the community tolerance test, the photograph was not suggestive of deprave minds and designed to excite sexual passion in persons who are likely to look at them and see them. The Court further proceeded to state that the photograph has no tendency to deprave or corrupt the minds of the people because the said picture has to be viewed in the background in which it was shown and the message it has to convey to the public and the world at large. The Court observed that Boris Becker himself....
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....ecent 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, lear....
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....reedom of speech etc. - (1) All citizens shall have the right - (a) to freedom of speech and expression; ... (2) Nothing in sub clause (a) to clause (1) shall affect the operation of any existing law, or prevent the State from making any law, insofar as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence." 63. Learned senior counsel for the appellant has drawn inspiration from the Constituent Assembly Debates especially the amendment that was introduced by Prof. K.T. Shah. He has reproduced the following excerpts from the Constituent Assembly Debates:- "......my purpose in bringing forward this amendment is to point out that, if all the freedoms enumerated in this article are to be in accordance with only the provisions of this article, or are to be guaranteed subject to the provisions of this article only, then they would amount more to a negation of freedom t....
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....guaranteed hereby. (December 1, 1948)" 64. It is true that Article 19(1)(a) has to be interpreted in a manner by which the fundamental right to "freedom of speech and expression" is nourished. Elaborating the concept, it is urged by Mr. Subramanium that when two interpretations of Article 19(1)(a), one a traditional or restrictive approach and the other a modern/liberal approach are possible, the latter should be adopted, for by adopting the said approach, the fundamental right to freedom of speech and expression is guarded and any attempt to overreach the same is kept in check. 65. Now, we shall refer to the Preamble as it uses the words "liberty of thought and expression" In Kesavanada Bharti v. State of Kerala and Others[(1973) 4 SCC 225], 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 peopl....
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....le 19. We do not think that this would be a correct way of interpreting the provisions of the Constitution conferring fundamental rights. The attempt of the Court should be to expand the reach and ambit of the fundamental rights rather than attenuate their meaning and content by a process of judicial construction. The wavelength for comprehending the scope and ambit of the fundamental rights has been set by this Court in R.C. Cooper case[(1970) 2 SCC 298] 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 o....
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....t ad hoc tunes but essential notes, not temporary tumult but transcendental truth, must guide the judicial process in translating into authoritative notation and mood music of the Constitution." Beg, J. has stated that:- "202. Articles dealing with different fundamental rights contained in Part III of the Constitution do not represent entirely separate streams of rights which do not mingle at many points. They are all parts of an integrated scheme in the Constitution Their waters must mix to constitute that grand flow of unimpeded and impartial Justice (social, economic and political), Freedom (not Only of thought, expression, belief, faith and worship, but also of association, movement, vocation or occupation as well as of acquisition and possession of reasonable property), of Equality ( of status and of opportunity, which imply absence of unreasonable or unfair discrimination between individuals, groups, and classes) and of Fraternity (assuring dignity of the individual and the unity of the nation), which our Constitution visualizes. Isolation of various aspects of human freedom, for purposes of their protection, is neither realistic nor beneficial but would def....
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....ion of the population. It also includes the right to receive information and ideas of all kinds from different sources. In essence, the freedom of expression embodies the right to know. However, under our Constitution no right in Part III is absolute. Freedom of expression is not an absolute value under our Constitution. It must not be forgotten that no single value, no matter exalted, can bear the full burden of upholding a democratic system of government. Underlying our constitutional system are a number of important values, all of which help to guarantee our liberties, but in ways which sometimes conflict. Under our Constitution, probably, no values are absolute. All important values, therefore, must be qualified and balanced against other important, and often competing, values. This process of definition, qualification and balancing is as much required with respect to the value of freedom of expression as it is for other values." 71. In State of Karnataka v. Associated Management of English Medium Primary & Secondary Schools[(2014) 9 SCC 485], while dealing with the freedom under Article 19(1)(a), the Constitution Bench opined:- "36. The word "freedom" in Article 19....
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.... 38. This Court has from time to time expanded the scope of the right to freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution by consistently adopting a very liberal interpretation. In [pic]Romesh Thappar v. State of Madras[AIR 1950 SC 124], this Court held that freedom of speech and expression includes freedom of propagation of ideas which is ensured by freedom of circulation and in Sakal Papers (P) Ltd. v. Union of India[AIR 1962 SC 305], this Court held that freedom of speech and expression carries with it the right to publish and circulate one's ideas, opinions and views. In Bennett Coleman & Co. v. Union of India[(1972 2 SCC 788], this Court also held that the freedom of press means right of citizens to speak, publish and express their views as well as right of people to read and in Odyssey Communications (P) Ltd. v. Lokvidayan Sanghatana[(1988) 3 SCC 410], 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, ha....
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....n the ambit and sweep of Section 292 IPC. The Court has opined that Section 66A of the IT Act, 2000 violates Article 19(1)(a) of the Constitution. There can be no doubt that there has been elevation of the concept in a different way, but it cannot form the foundation or base to sustain the argument of Mr. Subramanium that the freedom has to be given absolute and uncurtailed expanse without any boundaries of exceptions. We accept the proposition that there should not be narrow or condensed interpretation of freedom of speech and expression, but that does not mean that there cannot be any limit. Constriction is permissible under Article 19(2) of the Constitution and in Ranjit D. Udeshi (supra), the Constitution Bench has upheld the constitutional validity of Section 292 IPC. Mahatma Gandhi as perceived by this Court and certain authors 73. To appreciate the prevalent test in this country as regards obscenity and the conceptual definition of poetry and what is really understood by poetic license, we have to reflect on the question that had been framed by this Court. We have used the expression 'historically respected personalities'. It is true that the Constitution does not reco....
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....e of the desire of self-acquisition (Aparigrah) and he declared that "to live above the means befitting a poor country is to live on stolen food." And he further observed that:- "The philosophy of Mahatma Gandhi was rooted in our ancient tradition; the philosophy of Jawaharlal Nehru was influenced by modern progressive thinking. But the common denominator in their philosophies was humanism. The humanism of the Western Enlightenment comprehended mere political equality; the humanism of Mahatma Gandhi and Jawaharlal Nehru was instinct with social and economic equality. The former made man a political citizen; the latter aims to make him a 'perfect' citizen. This new humanist philosophy became the catalyst of the National Movement for Swaraj." 77. In K. Karunakaran v. T.V. Eachara Warrier,[ (1978) 1 SCC 18] 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....
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....hat riches give and sharing them for common good." 81. In Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India[(1981) 1 SCC 246], there is an observation which reads thus:- "13. ...There was the Everest presence of Mahatma Gandhi, the Father of the Nation, who staked his life for the harijan cause. There was Baba Saheb Ambedkar - a mahar by birth and fighter to his last breath against the himalayan injustice to the harijan fellow millions stigmatised by their genetic handicap - who was the Chairman of the drafting committee of the Constituent Assembly." 82. In People's Union for Democratic Rights v. Union of India[(1982) 3 SCC 235], it has been stated:- "Mahatma Gandhi once said to Gurudev Tagore, "I have had the pain of watching birds, who for want of strength could not be coaxed even into a flutter of their wings. The human bird under the Indian sky gets up weaker than when he pretended to retire. For millions it is an eternal vigil or an eternal trance." 83. In Bachan Singh v. State of Punjab[(1982) 3 SCC 24], the Court noted:- "22. ...Mahatma Gandhi also wrote to the same effect in his simple but inimitable style: "Des....
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....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.[(2010) 2 SCC 114], 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 Chr....
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.... 1981], Life of Mahatma Gandhi[Louis Fisher, Granada, 1982], Moral and Political Thought of Mahatma Gandhi[Raghavan N. Iyer, Oxford University Press, 1973], Gandhi and Social Action Today[Mery Kappen (Ed.), Sterling Publishers Pvt. Ltd., 1990], Gandhi: The Man and the Mahatma[Ram Sharma, Rajan, 1985], Gandhi and Ideology of Swadeshi[S.R. Bakshi, Reliance Publishing House, 1987], Gandhi's Khadi: History of Contention and Conciliation[Rahul Ramagundam, Orient Longman Pvt. Ltd., 2008], Mahatma Gandhi and Jawarhal Nehru: A Historic Partnership Vol.1 (1916-1931)[ Madhu Limaye, B.R. Publishing Corporation, 1989], Gandhi: Prisoner of Hope[Judith M. Brown, Oxford University Press, 1990], Mahatma Gandhi and His Apostles[Ved Mehta, Indian Book Company, 1977], Gandhi and Status of Women[S.R. Bakshi, Criterion Publications, 1987], Philosophy of Gandhi: A Study of His Basic Ideas[Glyn Richards, Rupa & Co., 1991], Gandhi Naked Ambition[Jad Adams, Quercus, 2010], Meera and the Mahatma[Sudhir Kakar, Yiking - Penguin, 2004], and The Men Who Killed Gandhi[Manohar Malgonkar, Roli Books, 2008]. 92. Some of these books praise Gandhi, analyse Gandhian thoughts, criticise Gandhian philosophy, express ....
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....s".[ Lectures on the English Poets, i] 98. Leigh Hunt declares poetry as "the utterance of a passion for truth, beauty, and power, embodying and illustrating its conceptions by imagination and fancy, and modulating its language on the principle of variety in unity".[ Imagination and Fancy, i.] 99. S.T. Coleridge's has expressed that poetry is the anti-thesis of science, having for its immediate object pleasure, not truth [Lectures and Notes on Shakespeare and other English Poets, and Biographia Literaria, chapter xiv.] 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.[ Preface to Parnassus] There is no difficulty in saying that the definition or understanding of concept of poetry of any high authority can be ignored. That is the freedom of the poem. The poem in issue 100. Presently, to the poem in question we are referring to the same solely for the purpose of adjudging whether the order of framing of charge under Section 292 IPC is sustainable, regard....
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....n reflection. Whether the poem has any other layer of meaning or not, cannot be gone into at the time of framing of charge. The author in his own understanding and through the process of trial can put his stand and stance before the learned trial Judge. 102. Submission of Mr. Nariman, learned amicus curiae is that the words that have been used in various stanzas of the poem, if they are spoken in the voice of an ordinary man or by any other person, it may not come under the ambit and sweep of Section 292 IPC, but the moment there is established identity pertaining to Mahatma Gandhi, the character of the words change and they assume the position of obscenity. To put it differently, the poem might not have been obscene otherwise had the name of Mahatma Gandhi, a highly respected historical personality of this country, would not have been used. Mr. Nariman would emphatically submit that the poem distinctly refers to Mahatma Gandhi because the sketch of Gandhiji is there figuratively across the entire page in his customary garb, stature and gait. According to him, the poem does not subserve any artistic purpose and is loathsome and vulgar and hence, it comes within the sweep of Sect....
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....ena of Section 292 IPC, neither a new offence is created nor an ingredient is interpreted. The judicially evolved test, that is, "contemporary community standards test" is a parameter for adjudging obscenity, and in that context, the words used or spoken by a historically respected personality is a medium of communication through a poem or write-up or other form of artistic work gets signification. That makes the test applicable in a greater degree. To understand the same, a concrete example can be given. A playwright conceives a plot where Mahatma Gandhi, Vishwakavi Rabindra Nath Tagore, Sardar Vallabh Bhai Patel meet in heaven and they engage themselves in the discussion of their activities what they had undertaken when they lived in their human frame. In course of discussion, their conversation enters into the area of egoism, thereafter slowly graduates into the sphere of megalomania and eventually they start abusing each other and in the abuses they use obscene words. The question would be whether the dramatist can contend that he has used them as symbolic voices to echo the idea of human fallacy and it's a creation of his imagination; and creativity has no limitation and, ther....
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....92 IPC. It shall be open for him to raise all the pleas in defence, as available to him under the law. At this juncture, we are obliged to mention that Mr. Nariman, learned friend of the Court also in course of hearing, had submitted that the appellant having offered unconditional apology immediately and regard being had to the passage of time, he along with the printer should be discharged. 107. Before we part with the case, we must candidly express our unreserved and uninhibited appreciation for the distinguished assistance rendered by Mr. Fali S. Nariman, learned amicus curiae. We also record our appreciation for the sustained endeavour put forth by Mr. Subramanium, learned senior counsel for the appellant, for it has been of immense value in rendering the judgment. 108. Consequently, the appeal stands disposed of in above terms. 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 [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....
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....e;tablie 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....