In this case, the constitutionality of Section 292 of IPC (Indian Penal Code) was challenged and it was upheld by the honourable Court in its landmark decision.
Section 292 of Indian penal code was introduced by the Obscene Publications act (7 of 1925) to give effect to article 1 of the ‘International Convention for the Suppression of Traffic in obscene publications’, signed by India in 1923 at Geneva.
This case laid down ‘Hicklin’s test’ to determine the obscenity of any material. This decision appeared to be a highly reliable precedent in many of the landmark judgments until 2014 when the supreme court diverted its view from the hicklin’s test to the ‘community standard test’ in the case of Aveek Sarkar v/s State of West Bengal (3rd February 2014) Criminal Appeal No 902 of 2004).
In this article, we are going to throw a focus on Ranjit udeshi case which analysed the concept of obscenity for the very first time and paved a way for the other cases to determine obscenity in a particular material. This case is popularly known as ‘Lady Chatterley’s Lover case’ and this was the first major case dealing with Obscenity law in India.
Ranjit Udeshi was one of the four partners of a firm that owned a bookstore. All the partners were prosecuted under section 292 of IPC, for selling copies of an allegedly obscene book, ‘Lady Chatterley’s Lover’ by D.H. Lawrence. Already being convicted by the lower courts, this appeal was preferred to the Supreme court on various grounds.
Here the Supreme Court had to differentiate between what was obscene and what was artistic as the definition of obscenity is not defined under section 292 of IPC. Where art and obscenity coexist, art must be so preponderate as to throw the obscenity into a shadow or the obscenity so trivial and insignificant that it can have no effect and may be overlooked.
Section 292 of the India Penal Code (IPC) says: “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 (is) such as to tend to deprave and corrupt person”.
This section nowhere explains what is meant by Obscenity and that’s where the court is left open at its discretion to determine obscenity.
The accused contended that: 1. The section was void because it violated freedom of speech and expression guaranteed by Article 19 (1) (g) of the Constitution of India. 2. Even if the section was valid, the book was not obscene. 3. It must be shown by the prosecution that he sold the book with an intention to corrupt the purchaser, that is, he knew that the book was obscene.
Court held that even though it is a part of freedom of speech and expression, there are exceptions to that article and section 292 of IPC embodies those exceptions which are reasonable. Secondly, the word obscene in section 292, is not limited to any writings, pictures, etc. which are intended to arouse sexual desires. At the same time, mere treating with sex and nudity in art and literature is not per se an evidence of obscenity.
To resolve this, the Supreme Court referred to Hicklin’s test laid down by Cockburn Chief Justice in Queen vs Hicklin (1868) L.R. 3 Q.B. 360. In this case, it was laid down that the tendency of the matter charged as obscene, must be to deprive and corrupt those, whose minds are open to such immoral influences and into whose hands a publication of this sort may fall. This was the right test to decide the question pertaining to obscenity according to the supreme court.
The apex court observed that, in judging a work, stress should not be laid upon a word here and word there or a passage here and a passage there but the work as a whole must be considered. It is necessary that a balance shall be maintained between ‘freedom of speech and expression’ and ‘public decency or morality’ and it is praiseworthy that the court tried its best to find the balance in this case at that time. In a few cases, obscenity may be overlooked if it has a preponderance of social purpose or profit.
The court also ruled that the section does not make the book seller’s intention or knowledge of obscenity as an ingredient of the offence and the prosecution need not establish it other than establishing ordinary ‘mens rea’. It is important to prove that the book was kept for sale or had been actually sold. Such mens rea depend upon the circumstantial evidence. If mens rea was allowed in such type of situations, then even slight chances of not having a knowledge of a particular thing, will suffice in the defence of the accused. In this case, it was enough for the prosecution to prove that the book was sold on the behalf of the accused even without his knowledge or consent.
In the light of Hicklin’s test, the Supreme court dismissed the appeal and upheld the decision of the High Court.
Overruling of Udeshi’s judgment
Hicklin’s test is laid down in case of of Ranjit Udeshi in 1964, has been followed by the courts and has proved to be a great precedent for around three to four decades until recently in 2004, when the Supreme court rejected Hicklin’s test in favour of Community Standard Test as laid down in the case of Aveek Sarkar v/s State of West Bengal, where Supreme Court passed judgment on 3rd February 2014, adopting community standard test and stated that the question of obscenity must be seen in the context in which a photograph appears and the message it wants to convey, which should be beneficial to the larger group of the society.
In this case, a lawyer named Aveek Sharma filed a case under Section 292 of IPC against the Editor, Publisher and Printer of the Kolkata based newspaper, ‘Anandabazar Patrika’, which published a picture of ‘Boris Becker’, a world famous tennis player and his fiancee German actress, ‘Barbara Feltus’. In the said picture, Barbara was naked and Boris had put his arms around her in a manner to cover her breasts with his palms. The picture was followed up by the article which stated about their interview, where they both freely spoke about their engagement lives and their future plans and also the message they wanted to convey to the people posing for such a photograph.
When the case came to the supreme court as an appeal, the Court found that the appellants were innocent of the charges levied against them and overturned the decision of lower courts. Court further held that the correct test to determine the obscenity would be the Community standard test and not Hicklin’s test. The court held that the concept of obscenity would change in the passage of time and what was obscene at one point, might not be obscene at another point of time. According to the Court, the Community standard test is most suitable and is adaptive to changing society. The decision must be based on the national standards and not upon a group of sensitive persons.
The acceptable level of depicting obscenity in films, photographs, paintings, novels is not yet settled in India. Today’s situation is that the standards of the contemporary world are fast-changing. Today’s youths, adults and adolescents are shown in a situation which was considered as derogatory a few years ago. There are online streaming applications like hotstar, Netflix, Amazon prime video, etc. which contain web series or movies which have sexual content or vulgar language. The question here is whether it should be so easily accessible? Again here the answer will be that the content shown is to be seen as a whole. The present trend is that such things are no more unethical or socially unacceptable. The crucial aspect is that the content provider shall clearly say in its disclaimer about the contents of the film.
It is to be noted that when the propagation of ideas, thoughts or information is of public interest or public profit, that approach to the problem may become different because of the interest of the people in society. Therefore, books on medical science with intimate illustrations or images are not considered obscene.
The judgment passed in Ranjit Udeshi v. State of Maharashtra, was in the year 1964 but this case can be seen as the root of interpretation of obscenity and morality vis a vis freedom of speech and expression. Moreover, the taboo on sex, nudity in art and literature is seen to be corroded over the years. It is therefore pertinent to note that the Judiciary has to play a very significant role in these types of cases as the contemporary meaning of obscenity, decency or morality have been changing and evolving in various forms from time to time in different societies.