By Aaron S John
In 1968 the famous author Samaresh Bose was accused of writing and promoting obscene text via novels that were published in the Sarodiya Desh (Bengali journal). His work was accused of being corrupting the minds of its readers, the plaintiff had approached the trial court with this issue. After the trial court gave its judgement, the appellant was not happy and took this matter to the High Court of Calcutta. The High Court also gave a similar judgement that had a minor change concerning the removal of page numbers from his novel.
Finally, the appellant approached the Hon’ble Supreme Court under Article 136 of the Indian Constitution which talks about the special leave petition. In India, the special leave petition is a type of a special form of a petition that the Hon’ble Supreme Court can exercise when any substantial question of law is involved and injustice has been done. This Article is also called the “residual power” of the Supreme Court.
Amal Mitra who was the complainant, during evidence and the trial in the Calcutta High Court stated that he was and a reader of Bengali literature and considered it his duty to uphold the purity and prestige of it. He further stated that no one should be allowed to earn more money by turning his novel into a piece of art that will attract more people solely because it contains sexual content.
The novel (Prajapati) which was written by Samaresh Bose was challenged based on being obscene. The complainant claimed that such obscene material had been sold, distributed and printed tends to corrupt the mind of the readers. He further claimed that the author has committed an offence that is punishable under section 292 and section 109 of the Indian Penal Code.
Section 109 of the Indian Penal Code mentions the punishment of abetment if the act abetted was committed in consequence and where no express provision is made for that particular punishment.
Section 292 of the Indian Penal Code mentions the sale of obscene books. It mentions the various types of artworks or representations that can be deemed obscene. Along with this the various types of ways through which these obscene materials are distributed. It also mentions the exceptions that are granted under this section.
- The issues about this case are inclined more towards the morals of the individuals and “What is considered to be obscene?” For instance, an individual may not find a particular publication obscene. But on the other hand, another individual may find that same publication obscene. Here, the individual’s upbringing as well as other factors play an important role in forming the opinion. Morals are also deeply rooted in traditions. These traditions have been practised for many many years. Unlike traditions, morals can change with time.
- Another issue here is with regards to the influence this type of novel had on readers. The plaintiff also stated that the Sarodiya Desh journal was read by everyone and did not have any particular age group. Hence, the adolescence who are still learning can get influenced very easily.
- The main issue under this case was concerning the references regarding kissing and description of a woman’s body and the suggestion of sexual acts. These types of text have the effect of depriving and debasing as well as encouraging lasciviousness among the mind of the readers irrespective of their age. Thereby should this be considered obscene?
- The complainant stated that the main character of the novel “Sukhen” through his action and speeches criticized the different existing aspects of society and life. Here the complainant also stated that the words that were used to describe the protagonist Sukhen were very sophisticated and culture portraying him as unreal and meaningless. He also claimed that his novel was written to attract people who are interested in literature that contains illicit material and this, in turn, destroys the social fabric of the society.
- Finally, the complainant stated that the work of Samaresh Bose in the novel “Prajapati” describes a woman and mentions and references sexual activities. He claimed that this type of novel increases lustful activities and incites society to have extramarital affairs.
This case was presented in front of the Trial Court of Calcutta. The Trial Judge did not rely on the testimony of the witnesses and had proceeded to read the book several times. After reading that, the Trial Judge held that the novel was indeed obscene under Section 292 and he convicted both the accused and sentenced both of them to simple imprisonment for two months. Along with this, a fine of 201 rupees was imposed. The Trial Court also ordered that pages 174 to 226 of the novel should be removed.
Both the accused were not happy with the judgement of the Trial Court and proceed further and appealed under the High Court of Calcutta. Their appeal was heard by a Single Judge of the High Court of Calcutta and it held the judgement of the Trial Court to be justified. It only altered the judgement with regards to the removal of pages 174-226 of the novel. It was observed that, since the novel had already been published as a separate book, it is now the responsibility of the Chief Presidency Magistrate to take appropriate steps under Section 521 of the Criminal Procedure Code to remove those pages from the published books.
The Trial Court and the High Court had similar judgements. After that, the appellant used the special leave petition under Article 136 of the Indian Constitution and transferred his case to the Hon’ble Supreme Court of India. The Supreme Court held that the novel was not obscene and it stated that the obscenity of an art piece or a novel does not solely depend on the oral evidence. The court must apply Section 292 of the Indian Penal Code to the test. It further added that the court should only rely on oral statements when the language is unknown to the judge.
The Judgment of the Hon’ble Supreme Court was delivered by Justice Amarendra Nath Sen. It further stated that the judge must read and understand the opinion of the writer. He should read the obscene content in itself and later read the whole novel with the obscene content to understand it in a much better way. This will help the judge to find out whether the published material is obscene or gross. The Supreme Court assessed the whole novel and stated that a novel cannot be classified obscene simply because it contains slang and unconventional words or if the novel mentions or discuss sexual intercourse or describes the female body as a feeling of narration or thought.
The learned Supreme Court Judge further stated that the judge should understand what the author was trying to convey with regards to the literature on the artistic value and has to put himself in the place of the author. The judge must also appreciate the influence that the artistic work might have on the masses. Therefore, the judge must apply in his judicial mind dispassionately and decide whether the particular artwork is obscene or not. Finally, it held that the novel Prajapati was not obscene as vulgar writing need not necessarily be obscene.
Therefore, the previous judgements of both the High Court and Trial Court were set aside and the sentences awarded to the appellants before the Supreme Court’s judgement was acquitted and ordered that both the appellants shall be refunded for the fine if any that they had paid.
The Supreme Court played a major role in this case, the judgement stood out and was very different from the Trial Court and the High Court. The discoveries done by the Supreme Court was with regards to the difference between obscenity and vulgarity. The court also made a distinction between obscenity and vulgarity stating that Section 292 only attracts penalties for obscenity.
It defined vulgarity and obscenity stating that “the feeling of vulgarity gives an individual the feeling of disgust and revulsion along with boredom. But this does not have the effect of depriving, debasing and corrupting the morals of any reader of the novel. Obscenity tends to corrupt minds and thinking with immoral influences.
The Hon’ble Supreme Court rightly differentiated between vulgarity and obscenity stating clearly that this novel dealt with vulgarity. Further adding that the cultured and refined readers may not like this style and this novel and feel shocked and disgusted, but the author has written the novel and published it in the Sarodiya Desh journal which is read by readers of all ages. It also added that the mere mentioning of sex in a novel does not lead to obscenity as in such cases adolescence will not have anything to read except religious books. Along with this, the court does acknowledge that in few areas the presence of the novel has been inappropriate but it does not amount to obscenity.
Overall this case was very important. In the history of Indian Law as this was the case that described the meaning of obscenity. This case law moulded the concept of obscenity. The concept of obscenity differs from country to country, like mentioned earlier, it depends heavily on the morality of the contemporary society of the respective country. The concept of obscenity was adopted from the British case laws and the Indian Supreme Court followed the same approach. The judgement of the Supreme Court is perfect in my opinion, as it maintains a reasonable balance between both the parties which are the adolescents and the older audience. What makes this judgement of the Supreme Court so phenomenal is the fact that for a judgement which is almost 4 decades old and with societal morals and norms this judgement stood out, as this was a very liberal judgement which favoured both the parties and also give rise to many other content creators and writers who wanted to express themselves.