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Morality, Obscenity and Censorship
by Madhavi Divan*
Cite as : (2003) 1 SCC (Jour) 1
Ek Chhotisi Love Story turned out to be a film quite untrue to its name. A long and rather loveless saga ensued involving its actress Manisha Koirala and producer Shashilal Nair, starting with a suit filed by the former against the latter in the Bombay High Court. The plaintiff alleged that the exhibition of certain scenes in the film, shot with the help of a body double, were vulgar, indecent, defamatory and amounted to an invasion of her privacy. The Single Judge dismissed the plaintiff's application for an interim injunction against the exhibition of the film on the ground that there was no defamation or invasion of privacy since the plaintiff had agreed to act in the film and the impugned scenes were integral to its story based on the obsession of an adolescent boy with an older woman. On the charges of vulgarity and indecent exposure, the Court held that it could not play moral guardian and that the Censor Board had already certified the film for exhibition. The plaintiff appealed not only to the Division Bench of the High Court but also to self appointed guardians of public morality to prevent the screening of the film. The latter responded promptly and predictably, by vandalising theatre houses and disrupting screening of the film. The High Court responded by issuing notice for contempt of court.
This essay analyses the law in relation to "morality" and "decency" which are exceptions to the freedom of speech and expression. It also sounds a note of caution against prescriptions of public morality which undermine democratic values and stifle the growth of a free society.
Decency and morality: exceptions to Article 19(1)(a)
One of the exceptions to the fundamental right to free speech and expression guaranteed under Article 19(1)(a) of the Constitution is in favour of laws which impose restrictions in the interest of "decency and morality"1
Some of the laws which embody restrictions on the right to free speech in the interest of decency and morality are set out below :
(i) Sections 292 and 293 of the Indian Penal Code make obscenity a punishable offence.
(ii) The Cinematograph Act, 1952 prohibits the certification of a film for public exhibition if the film or any part thereof is against the interests of, inter alia, morality and decency.2
(iii) The Dramatic Performances Act, 1876 empowers the Government to prohibit public dramatic performances on the grounds, inter alia, of obscenity.
(iv) Section 11 of the Customs Act, 1962 empowers the Government to prohibit or impose conditions on the import or export of goods in the interest, inter alia, of decency and morality.
(v) Section 20 of the Post Office Act, 1898 prohibits the transmission by post of any material on the ground, inter alia, of decency or obscenity.
(vi) The Indecent Representation of Women Act, 1986 prohibits the indecent representation of women through advertisements, or other publications, writings, painting, figures etc. Section 2(c) of the Act defines the indecent representation of women as
"the depiction in any manner of the figure of a woman, her form or body or any part thereof in such a way as to have the effect of being indecent, or derogatory to, or denigrating women, or is likely to deprave, corrupt or injure the public morality or morals."
(vii) The Young Persons (Harmful Publications) Act, 1956 seeks to control publications which could corrupt a child or young person and incite him to commit crimes of violence or cruelty etc.
(viii) Section 67 of the Information Technology Act, 2000 prescribes a penalty in respect of the publication, transmission in electronic form, material which is lascivious or appeals to prurient interest or has the effect of tending to deprave and corrupt its likely audience.
The meaning of "decency" and "morality"
"Decency" and "morality" are vague and rather elastic notions that evolve with time and social change and vary vastly among different cultures. What may be morally acceptable to one section of society may be outrageous to another. In Chandrakant Kalyandas Kakodkar v. State of Maharashtra3 the Supreme Court observed that such notions vary from country to country depending on the standards of morals of contemporary society.4 But even within the same country, particularly one as socially disparate and culturally diverse as India, there are widely varying standards of moral acceptability. This makes it extremely difficult to define these concepts.
Indecency and obscenity
Used often in the context of "decency" and "morality" is the term "obscenity" which is expressly prohibited by Section 292 of the Indian Penal Code.
Section 292(1) defines "obscenity" thus:
"292. (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 persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it."5
The definition is almost identical to that found in the English Obscene Publications Act, 1959.6
"Obscenity" has been defined by the Supreme Court as "the quality of being obscene which means offensive to modesty or decency; lewd, filthy and repulsive".7
It would appear that "indecency" is a concept wider than "obscenity". Although anything that is "obscene" must necessarily be "indecent",8 what is "indecent" need not always be "obscene".9 In other words, while "indecent" merely means non-conformance with accepted standards of morality, "obscenity" refers to that which has prurient or lascivious appeal.10
In USA, the term "obscene" refers to material which
"the average person applying contemporary standards would find that, taken as a whole, appeals to the prurient interest, contains patently offensive depictions or descriptions of specified sexual conduct, and has no serious literary, artistic, political or scientific value."11
The courts in India have had occasion to examine different concepts such as vulgarity, sex, nudity etc. in the context of obscenity.
Obscenity and vulgarity
In Samaresh Bose v. Amal Mitra12 the Supreme Court drew a distinction between obscenity and vulgarity thus:
"A vulgar writing is not necessarily obscene. Vulgarity arouses a feeling of disgust and revulsion and also boredom but does not have the effect of depraving, debasing and corrupting the morals of any reader of the novels, whereas obscenity has the tendency to deprave and corrupt those whose minds are open to such immoral influences."13
Obscenity, sex and nudity
The courts have also been careful to distinguish between mere references to sex or sexual explicitness from obscenity or indecency. In Ranjit Udeshi v. State of Maharashtra7 the Court remarked:
"[T]hat 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 bookshop would close and the other half would deal in nothing but moral and religious books...."14
Similarly, in K.A. Abbas v. Union of India15 the Supreme Court observed that sex and obscenity are not always synonymous and that it was wrong to classify sex as essentially obscene or even indecent or immoral.16
Bobby Art International v. Om Pal Singh Hoon17 was another case where the Supreme Court drew a distinction between nudity and obscenity. The petition was filed by a member of the Gujjar community seeking to restrain the exhibition of the film Bandit Queen on the ground that the depiction in the film was "abhorrent and unconscionable and a slur on the womanhood of India" and that the rape scene in the film was "suggestive of the moral depravity of the Gujjar community". The Court rejected the petitioner's contention that the scene of frontal nudity was indecent within Article 19(2) and Section 5-B of the Cinematograph Act and held that the object of showing the scene of frontal nudity of the humiliated rape victim was not to arouse prurient feelings but revulsion for the perpetrators.18
Obscenity and pornography
In Ranjit Udeshi v. State of Maharashtra7 the Court drew a difference between obscenity and pornography. It was held that while pornography denotes writings, pictures etc. intended to arouse sexual desire, obscenity may include publications not intended to do so but which have that tendency. While both offend against public decency and morals, pornography is obscenity in a more aggravated form.19
Strict liability
Proof of knowledge of obscenity is not necessary. This was made clear by the Supreme Court in Ranjit Udeshi v. State of Maharashtra7 thus:
"The first sub-section of Section 292 ... does not make knowledge of obscenity an ingredient of the offence. The prosecution need not prove something which the law does not burden it with. If knowledge were made a part of the guilty act (actus reus), and required the prosecution to prove it, it would place an almost impenetrable defence in the hands of offenders. Something much less than actual knowledge must therefore suffice. ... the difficulty of obtaining legal evidence of the offender's knowledge of the obscenity of the book etc. has made the liability strict. Under our law absence of such knowledge, may be taken in mitigation but it does not take the case out of the sub-section."20
The test of obscenity
The Supreme Court has recognized that there can be no uniform test of obscenity and that each case would have to be judged on its own facts.21 The Court has, however, through various judgments laid down the broad parameters to be followed in judging whether a particular publication amounts to obscenity22:
(1) Hicklin's test
The Indian courts have chosen to adopt the old and long outdated English test, known as Hicklin's test23 Cockburn, C.J. laid down the test thus:
"... 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."24
The Hicklin test was based upon the effect of a publication on the most vulnerable members of society, whether or not they were likely to read it. The defence of literary merit was not available and the test licensed the prosecution of several literary works early in the twentieth century. D.H. Lawrence's The Rainbow was destroyed in 1915. The Well of Loneliness also met the same fate in 1928 at the hands of a Magistrate who felt that a passage that implied that two women had slept together ("And that night they were not divided") would arouse "thought of a most impure character" and "glorify a horrible tendency".25
The Obscene Publications Act, 1959 of UK was the result of a campaign to afford protection to publications with literary merit. The preamble described the legislation as "an Act to amend the law relating to the publication of obscene matter; to provide for the protection of literature; and to strengthen the law concerning pornography". The definition of "obscenity" in the Act is, therefore, based on the tendency to deprave and corrupt the likely audience i.e. persons who are likely to read, see or hear the contents of the publication rather than those into whose hands the publication may accidentally fall.
Although Hicklin's test had been buried in England with the enactment of the Obscene Publications Act, 1959, six years later, the Supreme Court in India chose to adopt it in Ranjit Udeshi v. State of Maharashtra7 holding that the Hicklin test should not be discarded on the ground that "it makes the court the Judge of obscenity in relation to an impugned book etc. and lays emphasis on the potentiality of the impugned object to deprave and corrupt by immoral influences"26 This is contrary to the definition contained in Section 292(1) of the Indian Penal Code which stresses upon the effect the publication had on "persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it", and not just on any person into whose hands the publication may accidentally fall.
The Ranjit Udeshi case7 arose out of an appeal in the Supreme Court against the conviction of a bookseller and his partners by the Bombay High Court for being in possession of an "obscene" book, Lawrence's Lady Chatterley's Lover. The Supreme Court confirmed the conviction and rejected the challenge to the constitutionality of Section 292 IPC, holding that it constituted a reasonable restriction on the right to freedom of expression under Article 19(2) in the interest of decency and morality. The Supreme Court relied on the test in Hicklin's case and further interpreted the word "obscene" to mean that, which is "offensive to modesty or decency; lewd, filthy and repulsive".27 In determining what can be classified as "obscene", the Court held that regard should be had to "our community mores and standards" and whether the material "appeals to the carnal side of human nature or having that tendency".
"... 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".28
The Ranjit Udeshi7 judgment has been referred to in subsequent judgments.
In Samaresh Bose v. Amal Mitra12 while laying down the test for obscenity, the Court held that in judging the question of obscenity,
"the Judge should ... 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".29
The Court did not draw a distinction between the "likely audience" and persons into whose hands the book may accidentally fall into and therefore, the distinction between Section 292 and the Hicklin test was blurred.30
(2) The likely-audience test
The "most-vulnerable-person" standard laid down by Hicklin23 was thus replaced by the "likely-reader test" recognized under Section 292(1) of the Indian Penal Code. Therefore, what must be considered is the impact on those who could be reasonably be expected to gain access to the publication.31 In other words the test was based on the target audience, not the person whose hands the book might stray into. This was confirmed by the Supreme Court in Chandrakant v. State of Maharashtra3 thus:
"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."32
This was indeed a departure from the Hicklin test.
(3) Literary merit and "prepondering social purpose"
Where art and obscenity are mixed, what must be seen is whether the artistic, literary or social merit of the work in question outweighs its "obscene" content. This view was accepted by the Supreme Court in Ranjit Udeshi case7:
"When there is propagation of ideas, opinions and information of public interest or profit the approach to the problem 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.33
Where art and obscenity are mixed, the element of art must be so preponderating as to overshadow the obscenity or make it so trivial/inconsequential that it can be ignored; Obscenity without a preponderating social purpose or profit cannot have the constitutional protection of free speech...."34
Applying this test to Lady Chatterley's Lover, the Court held that the book held no social gain for the public which could overshadow the "obscene" element.35
There was, however, a change in the Court's outlook in K.A. Abbas v. Union of India15 where the Supreme Court held:
"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. ... 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 sees a woman's legs in everything, it cannot be helped. In our scheme of things ideas having redeeming social or artistic value must also have importance and protection for their growth. Sex and obscenity are not always synonymous and it is wrong to classify sex as essentially obscene or even indecent or immoral. It should be our concern, however, to prevent the use of sex designed to play a commercial role by making its own appeal. This draws in the censor's scissors. Thus audiences in India can be expected to view with equanimity the story of Oedipus son of Latius who committed patricide and incest with his mother. When the seer Tiresias exposed him, his sister Jocasta committed suicide by hanging herself and Oedipus put out his own eyes. No one after viewing these episodes would think that patricide or incest with one's own mother is permissible or suicide in such circumstances or tearing out one's own eyes is a natural consequence. And yet if one goes by the letter of the directions the film cannot be shown. Similarly, scenes depicting leprosy as a theme in a story or in a documentary are not necessarily outside the protection. If that were so Verrier Elwyn's Phulmat of the Hills or the same episode in Henryson's Testament of Cressaid (from where Verrier Elwyn borrowed the idea) would never see the light of the day. Again carnage and bloodshed may have historical value and the depiction of such scenes as the Sack of Delhi by Nadirshah may be permissible, if handled delicately and as part of an artistic portrayal of the confrontation with Mohammad Shah Rangila. If Nadir Shah made golgothas of skulls, must we leave them out of the story because people must be made to view a historical theme without true history? Rape in all its nakedness may be objectionable but Voltaire's Candide would be meaningless without Cunegonde's episode with the soldier and the story of Lucrece could never be depicted on the screen.
Therefore it is not the elements of rape, leprosy, sexual immorality which should attract the censor's scissors but how the theme is handled by the producer."36
Hidayatullah, C.J. criticized the failure of Parliament and the Central Government to separate the artistic and socially valuable from the obscene and indecent and to appreciate that the artistic presentation of an episode could negate or render inconsequential its potential to deprave. The Court expressed its dissatisfaction that the law showed more concern for the depraved rather than the ordinary moral man.37
(4) The aversion defence
As discussed earlier in the essay, nudity and sexual explicitness do not by themselves constitute obscenity. Authors and film-makers sometimes depict nudity not to arouse sexual desire but on the contrary to arouse horror and revulsion in the audience against the social evil being depicted. This is referred to in UK as the "aversion defence". Perhaps, the best example of the aversion test in India could be seen in Bandit Queen case17. The petitioner in that case had challenged a scene of frontal nudity where Phoolan Devi had been paraded naked before the village after days of being gang-raped by members of the Gujjar community. Rejecting the challenge under Section 5-B of the Cinematograph Act, the Court held:
"The object of the scene of frontal nudity was not intended 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. ... We do not censor to protect the pervert or to assuage the susceptibilities of the oversensitive. "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 rape scene also helps to explain why Phoolan Devi became what she did. Rape is crude and its crudity is what the rapist's bouncing bare posterior is meant to illustrate. Rape and sex are not being glorified in the film. Quite the contrary. It shows what a terrible, and terrifying, effect rape and lust can have upon the victim. It focuses on the trauma and emotional turmoil of the victim to evoke sympathy for her and disgust for the rapist."38
The Court quoted with approval, the comparison made by the Appellate Tribunal39 with the scene of naked men and women being led to their death in a Nazi concentration camp in the film Schindler's List. The nudity was meant to convey horror and shame at these men and women who were about to die but were stripped of even their last shred of dignity in their last moments. The Court took the view that a film that condemns social evil must necessarily show that evil and that the scenes of nudity and rape were intended not to arouse prurient or lascivious thought but revulsion against the perpetrators and pity for the victim. Such powerful portrayals are not to be censored in the name of perverts who would feel titillated rather than revulsed even at such scenes. As Hidayatullah, C.J. (as he then was) remarked in K.A. Abbas15:
"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 sees a woman's legs in everything, it cannot be helped."40
In an earlier case, Samaresh Bose v. Amal Mitra12, the Court found that although the reader may react with a sense of shock and disgust, the book would not have the effect of depraving or debasing their morals or encouraging lasciviousness, since the author's intention was to expose certain ills that irk society and he had used his own technique, skills and choice of words to that end. The Court found that the use of slang or unconventional words, the emphasis on sex and description of female bodies and narrations couched in vulgar language did not themselves make the novel obscene.41
The aversion defence had found favour in Last Exit to Brooklyn which presented horrific scenes of homosexuality and drug-taking in New York. Defence counsel contended that contrary to encouraging readers to homosexuality, drug-taking or violence, it had the reverse effect of making the readers share the horror and fill them with revulsion against what was depicted.
(5) Contemporary/National standards
In judging as to whether a particular work is obscene, regard must be had to contemporary mores and national standards.42 Clause 1(a) of the Guidelines issued and revised under Section 5-B of the Cinematograph Act, sets out the principles which guide the Censor Board in granting certificates to films for public exhibition. It lays down:
"1. The objectives of film certification will be to ensure that-
(a) the medium of film remains responsible and sensitive to the values and standards of society;
(c) certification is responsible to social change;"
Clause 3(ii) reads thus:
"The Board of Film Certification shall also ensure that the film—
(ii) is examined in the light of the period depicted in the film and the contemporary standards of the country and the people to which the film relates, provided that the film does not deprave the morality of the audience."
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.43 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.
(6) Judging the work as a whole
It is necessary that publication must be judged as a whole and the impugned passages should also separately be examined so as to judge whether the impugned passages are so grossly obscene and are likely to deprave and corrupt.44
Likewise, clause 3(i) of the Guidelines issued under Section 5-B of the Cinematograph Act provides that:
"The Board of Film Certification shall also ensure that the film-
(i) is judged in its entirety from the point of view of the overall impact;..."
(7) Opinion of literary/artistic experts
In Ranjit Udeshi7 the Supreme Court held that the delicate task of deciding what is artistic and what is obscene has to be performed by courts and as a last resort by the Supreme Court and therefore, the evidence of men of literature or others on the question of obscenity is not relevant.45 However, in Samaresh Bose12 the Court observed:
"In appropriate cases, the court, for eliminating any subjective element or personal preference which may remain hidden in the subconscious mind and may unconsciously affect a proper objective assessment, may draw upon the evidence on record and also consider the views expressed by reputed or recognised authors of literature on such questions if there by any for his own consideration and satisfaction to enable the court to discharge the duty of making a proper assessment."46
(8) Clear and Present Danger
In S. Ragarajan v. P. Jagivan Ram47, while interpreting Article 19(2), the Supreme Court borrowed from the American test of clear and present danger and observed :
"the commitment to freedom demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or far-fetched. It should have a proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interest. In other words, the expression should be inseparably like the equivalent of a 'spark in a power keg'."
(9) Test of Ordinary Man
The test for judging a work should be that of an ordinary man of common sense and prudence and not an "out of the ordinary or hypersensitive man".48 As Hidayatullah, C.J. (as he then was) remarked in K.A. Abbas15:
"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 sees a woman's legs in everything, it cannot be helped."49
Conclusion
Society must guard against State-prescribed morality, a remedy more dangerous than the malady. This is an issue which confronts us today most seriously with the emergence of a moral police and self-styled protectors of "Indian values" who cause the violent disruption of films such as Fire (portraying a lesbian relationship) and Ek Chhotisi Love Story even though they had been cleared by the Censor Board. This moral police has also been responsible for campaigns against "corrupting influences from the west" such as the holding of beauty pageants, Valentine's Day celebrations and the screening of Fashion TV. In a society as democratic and diverse as India's such intolerance is an unhappy trend. As Krishna Iyer, J. had said in Raj Kapoor v. State (Delhi Admn.):50
"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.
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".
History has shown that attempts to suppress publications on grounds such as indecency or immorality have often yielded a counterproductive effect. The gagging of films, books or other forms of publication in the interest of decency or morality have ended up generating more publicity and curiosity than they would have ordinarily.51
John Milton had said in Aeropagitica in an impassioned plea for freedom of speech:
"Promiscuous reading is necessary to the constituting of human nature. The attempt to keep out evil doctrine by licensing is like the exploit of that gallant man who thought to keep out the crows by shutting his park gate.... Lords and Commons of England, consider what nation it is whereof ye are: a nation not slow and dull, but of a quick, ingenious and piercing spirit. It must not be shackled or restricted. Give me the liberty to know, to utter and to argue freely according to conscience, above all liberties."
Society must lean in favour of free speech and expression and courts must be very cautious while upholding restrictions imposed on grounds of notions such as decency or morality. To imagine that one can foster better morals in society by keeping out depictions of the immoral or indecent is as na‹ve as thinking, in Milton's analogy, that one can keep out the crows by shutting the park gate.
- See Article 19(2).
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- See, in particular, Section 5-B of the Cinematograph Act, 1952.
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- (1969) 2 SCC 687
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- Supra, para 12, at p. 693.
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- The liability under Section 292(1) is strict.
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- Section 1(1) of this Act defines "obscenity" thus:
"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, in all the circumstances, to read, see or hear the matter contained or embodied in it."
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- Ranjit D. Udeshi v. State of Maharashtra, AIR 1965 SC 881, para 7, at p. 885.
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- R. v. Stanley, (1965)1 All ER 1035.
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- R. v. Greater London Council, (1976) 3 All ER 184 (CA) at 188-89.
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- FCC v. Pacifica Foundation, 438 US 726 (1978) at p. 740.
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- Miller v. California, 37 L Ed 2d 419 (1973) at p. 422.
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- (1985) 4 SCC 289.
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- Supra, para 35, at p. 318.
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- Supra, para 16, at pp. 887-88.
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- (1970) 2 SCC 780
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- Supra, para 49, at p. 802.
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- (1996) 4 SCC 1
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- This case has been discussed later in this essay in the context of the aversion defence.
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- Ranjit Udeshi, AIR 1965 SC 881, para 7, at p. 885.
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- Supra, para 10, at p. 886.
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- Supra, para 16, at p. 887.
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- As far as cinema is concerned, it is the Censor Board, a body appointed under Section 5-B of the Cinematograph Act which sanctions films for public exhibition that decides whether a film satisfies the test. The Censor Board takes its decision on the basis of Guidelines for the Board of Film Certification (1991) issued by the Central Government. Clause 1(d) of the Guidelines reads:
"1. The objectives of film certification will be to ensure that—
(d) the medium of film provides clean and healthy entertainment;"
Clause 2 states that the Board of Film Certification shall ensure that-
(vii) human sensibilities are not offended by vulgarity, obscenity or depravity;
(viii) such dual meaning words obviously catering to baser instincts are not allowed.
(ix) scenes degrading or denigrating women in any manner are not presented;
(x) scenes involving sexual violence against women like attempt to rape, rape or any form of molestation or scenes of a similar nature are avoided, and if any such incident is germane to the theme, they shall be reduced to the minimum and no details are shown;
(xi) scenes showing sexual perversions shall be avoided and if such matters are germane to the theme, they shall be reduced to the minimum and no details are shown;"
Clause 3 reads thus:
"3. The Board of Film Certification shall also ensure that the film—
(ii) is examined in the light of the period depicted in the film and the contemporary standards of the country and the people to which the film relates, provided that the film does not deprave the morality of the audience."
In Raj Kapoor v. Laxman, (1980) 2 SCC 175 it was held that a certificate issued under Section 5-A(1-A) of the Cinematograph Act amounts to a justification in law for public exhibition of a film.
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- R. v. Hicklin, (1868) 3 QB 360.
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- Supra, at p. 371.
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- Robertson and Nichol on Media Law, Sweet and Maxwell, 4th Edn., p. 156.
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- Ranjit Udeshi, AIR 1965 SC 881, para 19, at p. 888.
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- Supra, para 7, at p. 885.
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- Supra, para 21, at p. 889.
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- Samaresh, (1985) 4 SCC 289, para 29, at p. 314.
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- But in an earlier case, Chandrakant v. State of Maharashtra, (1969) 2 SCC 687 the Court appears to have appreciated the importance of this distinction. See under "the likely-audience test".
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- R. v. O'Sullivan, 1995 Cr App R 455.
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- Chandrakant, (1969) 2 SCC 687, para 12, at p. 694.
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- Ranjit Udeshi, AIR 1965 SC 881, para 9, at p. 886.
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- Supra, paras 21 and 22 at p. 889, approved in K.A. Abbas v. Union of India, (1970) 2 SCC 780.
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- Supra, para 29, at p. 891.
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- K.A. Abbas v. Union of India, (1970) 2 SCC 780, paras 49 and 50, at p. 802.
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- Supra, para 51, at p. 803.
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- Bobby Art, (1996) 4 SCC 1, paras 27 and 28, at pp. 15-16.
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- Constituted under the provisions of the Cinematograph Act, 1952.
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- K.A. Abbas, (1970) 2 SCC 780, para 49, at p. 802.
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- Samaresh Bose, (1985) 4 SCC 289, para 35, at pp. 317-18.
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- Ranjit Udeshi v. Union of India, AIR 1965 SC 881, paras 21 and 22, at pp. 888 and 889; K.A. Abbas v. Union of India, (1970) 2 SCC 780, para 48, at p. 801.
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- R. v. Penguin Books, 1961 Cri LR 176.
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- Ranjit Udeshi v. State of Maharashtra, AIR 1965 SC 881, para 21, at p. 888; also see Chandrakant v. State of Maharashtra, (1969) 2 SCC 687, para 5, at p. 690; K.A. Abbas v. Union of India, (1970) 2 SCC 780, para 48, at p. 801.
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- See Ranjit Udeshi, AIR 1965 SC 881, para 16, p. 887.
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- Samaresh, (1985) 4 SCC 289, para 29, p. 314.
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- (1989) 2 SCC 574.
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- S. Rangarajan v. P. Jagjivan Ram, (1989) 2 SCC 574, para 21, at p. 586. See also observations in the text accompanying supra fn 40.
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- Supra, para 49, at p. 802.
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- (1980) 1 SCC 43, paras 8-9, at p. 47.
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- For instance, Lady Chatterley's Lover is reported to have sold three million copies in UK in the three months following its prosecution in 1961. Similarly a book titled Inside Linda Lovelace which had failed to arouse much interest before its prosecution in 1976, sold 600,000 copies in UK within three weeks of its acquittal. Recently, the furore over Ek Chhotisi Love Story generated enormous publicity and curiosity, which a low-budget film of its kind would never have ordinarily got.
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