From Udeshi to Abbas : Supreme Court on Obscenity and Pre-censorship
by Narasimhaswamy G. Mysore*
Cite as : (1971) 1 SCC (Jour) 46
"Laughing lions must come," wrote Nietsche, "and annihilate with laughter". With their fierce intellect, the "laughing lions" turn indignation to fun and fire to light. They come to strip society of her moral garments when old morality begins to stink. Morality for them is neither the Platonic concept of "the effective harmony of the whole" nor the "value-conquering ideal" that religions teach. It is instead the bravery of the concerned; it is the decency to laugh at hypocrisy. This morality arises not from their conscience but from their sense of honour which demands explosion of expression when confronted by any kind of injustice.
The degree of civilization and culture in a society may best be judged by its treatment of these "laughing lions". If it hunts and cages them, the society condemns itself. If it welcomes them without critical judgment, it will dig its own grave. On the other hand, if it tolerates them and brings their expression within the limits of societal permissiveness subject only to the requirements of minimum order and the test of proved public harm society will prove its justness and its progressive spirit. It will well remember Macaulay's words: "We know no spectacle so ridiculous as (our society) in one of its periodical fits of morality".
This spirit of tolerance was absent when our Supreme Court decided Ranjit Udeshi v. State of Maharashtra1, where the unexpurgated version of Lady Chatterley's Lover (by D. H. Lawrence) was held 'obscene' as it had, according to the Court, a tendency to "deprave and corrupt by immoral influences" certain persons into whose hands the book was "likely to fall". When the "laughing lions" try to strip the society of its stinking moral garments, there is pain of exposure and fear of betrayal by the hands that tear at familiar fabrics. This fear and pain was clearly present in the decision of the Supreme Court in the Udeshi case.
That there is a duty on the State to protect the young against exploitation and moral and material abandonment is clear from Article 39 of our Constitution. Also, Article 19(2) of the Constitution makes it clear that the State may impose reasonable restrictions on the freedom of speech and expression of citizens in the interests of "public... decency and morality". The cumulative effect of these provisions seems to sustain the legality of any act of the State which lawfully and reasonably restrains the publication or possession of "obscene" material in India. The crucial question, however, is what is obscenity?
The purposeful omission of the definition of obscenity has led many to attack Section 292 of the Indian Penal Code as being too vague to qualify as a penal provision. In dealing with this argument, in the Udeshi case, the Supreme Court said, "The word obscenity is really not vague because it is a word which is well understood even if persons differ in their attitudes to what is obscenity and what is not". However, the Court went on to admit that obscenity has been understood in the following terms: (1) That which depraves and corrupts those whose minds are open to such immoral influences. (2) That which suggests thoughts of a most impure and libidinous character. (3) That which is hard-core pornography. (4) That which has a substantial tendency to corrupt by arousing lustful desires. (5) That which tends to arouse sexually impure thoughts. (6) That which passes the permissive limits judged of from our community standards. How can a word, which the learned Court finds "really not vague", suggest a plethora of meanings ranging from any deviation from accepted sex-standards to violent advocacy of unhealthy practices?
What is involved in the definition of obscenity is a question of translating morality into law. Of course, morality is law when we think of law as the Morality of Duty. Hence, the question would really be this : How do we go about carving out portions of the Morality of Aspiration and state them in terms of the Morality of Duty ? In other words, by what rules do we determine what moral behaviour has attained inviolability by means of sanctions imposed by the collective will of the community?
Before proceeding, it might be better to understand what we mean by the moralities of duty and aspiration. According to Professor Lon. L. Fuller, a morality of duty is one which when obeyed calls for no praise from the community but when disobeyed calls for community sanction ; a morality of aspiration is one which when obeyed calls for praise from the community but when disobeyed calls for no community sanction. The former is termed law and the latter conventional morality.2
One way of determining which morality has solidified into a morality of duty is to treat the basis of all morality as utility or religion. In such a case, all the judge has to do is to examine the role of this particular morality in one's religion and/or its contribution to public and individual character development. If the activity under question qualifies as being essential to religion or necessary for public morality in terms of its utility to the public, it can be classified under the morality of duty and its violation may be punished. However, this cure is certainly not less vague than the one suggested by the Supreme Court itself.
Yet there is another way the problem can be answered. The acceptance of this way would, of course, call for a rejection of the test and the method suggested by the Court in the Udeshi case. The Court's guideline to judges is this : Obscenity should be "so decided that it is likely to deprave and corrupt those whose minds are open to influences of this sort and into whose hands the book is likely to fall". The Court also lays down that the judge should not "altogether" rely on expert evidence, nor compare the book with contemporary literature, nor forget the social interests etc. Who are the experts? How far should they be relied on? How to decide what impact the book will have on the interests of the society? How are the feelings of judges and their personal moral judgments to be treated? All these questions decide the freedom of a creative writer to challenge or mock the accepted moulds of linguistic usage in our society. Yet the Court is silent on these questions. The decision betrays the intellectual bankruptcy of our society which seeks to punish criminally those persons whose very daring is the quintessence of our progressive spirit.
In Kakodar v. State of Maharashtra3 the Supreme Court had occasion to deal with the concept of obscenity. While the Court seemed to follow Udeshi case , in effect the Court in Kakodar expanded the freedom of writers by going beyond the Udeshi doctrine. Udeshi had said that:
An overall view of the obscene matter in the setting of the whole book would, of course, be necessary, but the obscene matter must be considered by itself and separately to find out whether it is so gross and its obscenity so decided that it is likely to deprave and corrupt those whose minds are open to influences of this sort and into whose hands the book is likely to fall.4
But Kakodar, which retaining the Hicklin test, makes it a duty of the Court to consider the allegedly obscene matter by taking an overall view :
It is, therefore, the duty of the Court to consider the obscene matter by taking an overall view of the entire work. . . . and in doing so one must not overlook the influence of the book on the social morality of our contemporary society.5
It is, therefore, clear that however obscene the matter may appear to be when considered by itself, according to Kakodar, the overall literary merit of the book might still make those very passages fall beyond the concept of obscenity as understood under Section 292 of the Indian Penal Code. An interesting question arose after Kakodar : Would the unexpurgated version of Lady Chatterley's Lover (by D. H. Lawrence) be considered by the Supreme Court as not being obscene after it took a liberal view in Kakodar ? For the passages which were found obscene in Lady Chatterley's Lover, deal with the sexual act between Mellers and Connie, but it cannot be denied that the climax of the book is obscene where the sexual awakening of Connie (and Mellers) makes them fully aware of themselves and of each other and they felt reciprocal tenderness and respect. That is why with childlike wonder and mystery, they decorate with wild flowers their newly discovered regions of communication. Now the Supreme Court finds these passages to be obscene and according to Udeshi the book stands condemned. However, according to Kakodar, the book is redeemed because these very passages form the climax of the theme : Lawrence was dealing with the coldness of the flesh and an overall view of the book would convince us that these objected passages are an indistinguishable and vitally necessary part of the book which is of some, if not great, literary merit.
From Udeshi to Kakodar, the Court had moved forward to a new kind of moralitya morality of form but the ghost of Hicklin still continued to hurt the interpreters of Section 292 of the Indian Penal Code.
On September 24, 1970, the Supreme Court had occasion to consider pre-censorship and obscenity in relation to a documentary film which had been granted "A" certificate after being subjected to many "cuts" by the Central Censor Board.6 The petitioner, aggrieved by these "cuts" and by the issue of "A" certificate, had challenged the constitutional validity of rules made under Section 5-B of the Cinematograph Act, 1952 and that of Part II of the Act itself. He contended that (a) pre-censorship is violative of the freedom of expression, (b) even if pre-censorship is to be tolerated, it must be exercised on very definite principles which leave no room for arbitrary action etc.
The Supreme Court agreed with the Government of India that pre-censorship by itself was not violative of the fundamental right to freedom of expression, as such a right was not absolute and was always subject to reasonable restriction.7 However, the Court agreed with the petitioner and allowed his petition on the ground that the Act and the rules under it left discretion to the Board, without proper guidelines, left room for arbitrary action.8
The Court, however, seemed to rely on Udeshi for support. It said, "The Court was at pains to point out in Ranjit Udeshi case certain considerations for the guidance of censorship of books. We think that those guides work as well here". It is humbly suggested that Abbas case, while following some aspects of Udeshi, has fundamentally altered the law on obscenity as stated in Udeshi.
In Udeshi, as pointed earlier, the Hicklin test was accepted.9 But in Abbas, the Supreme Court states:
Our standard must be so framed that we are not reduced to a level where the protection of the least capable and the most depraved amongst us determines what the morally healthy cannot view or read. 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.10
In Udeshi, the Court had not tried to analyse the concept of obscenity in the light of a new morality. The morality which the Court relies on in the Udeshi is one of content; in Abbas, as in Kakodar, the Court speaks of a new morality, a morality of form. According to Udeshi, the crucial question is "what is said?". In Kakodar and Abbas, the questions of importance would be: "Where it is said?" and "how it is said". The morality in Udeshi requires logic and critical observation. The new morality in Abbas requires more: It demands expertisea great deal of exposure to and experience of the new artform.
In Udeshi, the question of the Constitutional validity of Section 292 of the Indian Penal Code was involved: The petitioner had claimed that Section 292 was unconstitutional as it employed the word "obscene" without defining it and hence was too vague to qualify as a penal provision. The Court had stated that the concept of obscenity was a "well-understood" concept and was not vague at all. Even when no guidelines for exercising censorship was prescribed, such exercise of power had been held by the Court to be "reasonable" in the Udeshi case.
But in Abbas, the Court states:
Parliament has left this task to the Central Government and, in our opinion, this could be done. But Parliament has not legislated enough, nor has the Central Government filled in the gap. Neither has separated the artistic and the socially valuable from that which is deliberately indecent, obscene, horrifying or corrupting. They have not indicated the need of society and the freedom of the individual. They have thought more of the depraved and less of the ordinary moral man. In their desire to keep films from the abnormal, they have excluded the moral. They have attempted to bring down the public motion picture to the level of home movies.11
The decision of the Court in Abbas is welcome. It has clarified the law on pre-censorship and obscenity. It has firmly established the right of creative writers and producers to be free from arbitrary exercise of censor's scissors. Thanks to Abbas, those who advocate censorship must now remember that, while safe-guarding of the community as a continuing entity by protecting the young is important, censorship should not reduce literary standards to a level appropriate for adolescents only. It is hoped that in Abbas the Supreme Court has driven the last nail into Hicklin's coffin.
- (1969) 1 SCR 63 hereinafter this case will be referred to as Udeshi case.
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- Lon Fuller, Morality of Law (1962).
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- (1969) 2 SCC 687, herinafter referred to as Kakodar.
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- (1965) 1 SCR 65 at 76.
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- (1969) 2 SCC 687 at 690.
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- K. A. Abbas v. The Union of India, (1970) 2 SCC 781. Herinajteo referred to as Abbas case.
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- Abbas at 796-797, reaffirming Udeshi (1965) 1 SCR 63 at 70.
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- Ibid., at 803.
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- "I think the test of obscenity is this whether the tendency of the matter charged as obscene is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands the publication of this sort is likely to fall" Hicklin case (1868) LR 360 at 373.
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- Abbas at 802, see also page 803.
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- Footnote is not available.
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