Citation: 1965 AIR 881, 1965 SCR (1) 65
Court: Supreme Court of India
Coram: Gajendragadkar, P.B. (Cj), Wanchoo, K.N., Hidayatullah, M., Shah, J.C., Ayyangar, N. Rajagopala
Theme- Obscenity Law Jurisprudence
Subject: Indian Penal Code
A bookstore owner, Ranjit D. Udeshi was charged with possession and selling of obscene material under section 292 of the IPC in the form of a book called Lady Chatterley’s Lover, by DH Lawrence. Already being convicted by lower courts the matter was appealed to the Supreme Court on a number of grounds including a fundamental rights issue. The book entailed text describing a number of accounts detailing sexual intimacies which became the impugned text to be decided for under obscenity.
Section 292 of the Indian Penal Code although clarifies the criminalising nature of obscenity, the section itself doesn’t shed light on the content of obscenity. In other words the clause or the code refrain from defining obscenity. The concept then depends on the community standards directly placing obscenity adjudication in the hands of judicial agents to interpret the same. Apart from the subjectivity of the concept disabling a precise definition, the section also remains silent on a critical element of criminality- mens rea again left to the interpretation of the court whether to include it or not.
The initial jurisprudence of obscenity adopted the ‘Hicklin Test of Obscenity’ imported from British case law. The leading authority being Regina v Hicklin (1868), where Chief Justice Cockburn laid down that the test of obscenity was whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influence, and into whose hands a publication of this sort might fall. Further commenting that the criminal character of the publication is not affected by an ulterior object which was benign. In 1933 Ratanlal and Dhirajlal commentary on Law of Crimes adopted this test stating “anything calculable to inflame the passion is obscene” and then the ‘tendency to deprave and corrupt minds susceptible to such influences’ became the guiding test.
1) Whether section 292 is constitutionally valid against article 19(1)(a)- right to freedom of speech and expression?
2) Whether the book when looked at in context can be considered obscene within the meaning of section 292(a)?
3) Whether section 292, that is silent on mens rea would be interpreted using strict liability?
APPELLANTS- The appellant raised two broad issues of law namely, the validity of section 292, IPC, and the proper interpretation and application of the aforementioned section.
His argument was based on three legal grounds primarily-
(i) that section 292 of the Indian Penal Code is void as being an impermissible and vague restriction on the freedom of speech and expression guaranteed by Art. 19 (1) (a) and is not saved by cl. (2) of the same article;
(ii) that even if section 292 of the Indian Penal Code, be valid, the book is not obscene if the section is properly construed and the book as a whole is considered. Thus, the appellant contended that the test adopted by the High Court and the courts in Queen v. Hicklin needs to be modified; and
(iii) that the possession or sale to be punishable under the section must be with the intention to corrupt the public in general and the purchasers in particular.
(i)The Supreme Court responded to the first contention by stating that section 292 embodies a reasonable restriction upon the freedom of speech and expression guaranteed by Art. 19(1)(a) and does not fall outside the limits of restriction permitted by article 19 clause (2). The section seeks no more than the promotion of public decency and morality which are the words of that clause.
The Supreme Court also opined that obscenity has “poor value in the-
propagation of ideas, opinions and informations of public interest or profit.” However, when there is propagation of ideas, opinions and informations 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. Thus, medical science books that contain intimate illustrations and photographs are not held to be obscene as they are protected under the right to free speech and expression.
(ii) With respect to the second argument, the Court held that the book must be declared obscene within the meaning of section 292, IPC. As the word ‘obscenity’ is not defined under section 292, IPC, the SC had to differentiate between what was obscene and what was artistic. In pursuance of the same, the court examined the test of obscenity that was to be employed to determine what falls within constitutional limits, as mere sex and nudity do not amount to obscenity. The Court applied the Hicklin test, which examines whether the impugned matter tends to “deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall.” This test was found not to violate article 19(1)(a) of the Constitution.
The accused argued for a Community Standard Test where the obscene matter is judged by an average person standard in light of its context, as a whole, not in isolation. However, the court stated that the Hicklin test cannot be discarded. According to the Hicklin test, a work should be viewed as a whole, but the obscene matter should also be considered separately to see if it violates the test. Where art and obscenity coexist, “art must 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.”
In order to maintain a balance, the rights to free speech and freedom of expression must give away where a work substantially transgresses public decency and morality. The Court vehemently stated that in India, “obscenity without a preponderating social purpose of profit” is not protected.
(iii) The Supreme Court observed that section 292 does not make the book-seller’s knowledge of obscenity an ingredient of the offence and the prosecution need not establish it. The court responded to the appellant’s arguments by stating that it was the Parliament’s duty to enact a law which made knowledge an integral part of section 292, IPC, not the courts. Hence, the court views obscenity as a strict liability offence.
Absence of knowledge may be considered for the purposes of mitigation however, it does not take the case out of the section. Albeit, the prosecution must prove the ordinary mens rea in the second part of the actus reus and it must be proved that he had actually sold or kept for sale the offending article. Such mens rea can be proved by circumstantial evidence.
The court held, “In our opinion, the test to adopt in our country (regard being had to our community mores) is that obscenity without a preponderating social purpose or profit cannot have the constitutional protection of free speech and expression, and obscenity is treating with sex in a manner appealing to the carnal side of human nature, or having that tendency. Such a treating with sex is offensive to modesty and decency but the extent of such appeal in a particular book etc. are matters for consideration in each individual case.”
In light of this test, the court declared Lady Chatterley’s Lover to be obscene and therefore, upheld the decision of the High Court. The appeal was dismissed.
PRESENT STATUS OF JUDGEMENT
The consequent jurisprudence evolved after the case at hand. In the 2014 Apex court judgement Aveek Sarkar v State of West Bengal the Hicklin Test was rejected thereby overruling the Ranjit Udeshi case. The Hicklin Test was replaced by the ‘Community standard test’. Under this test, the necessity of evaluating items as a whole, considering context and circumstance was established. The previous test was discarded on the grounds that contemporary times demanded a newer interpretation going beyond the 19th century test.
While there was a gradual movement towards acknowledging a change in social attitudes in judgements like Samaresh Bose v Amal Mitra (1985) and S Khushboo v Kanniammal (2010), the judgement of Aveek Sarkar clearly marked a departure. Therefore, in this respect the Hicklin Test and the Ranjit Udeshi case which can be synonymously understood from the point of view of Indian law were replaced and overruled respectively by the Community Standard Test and the Aveek Sarkar judgement, which are similarly synonymous. The paradigm shift allowed for a greater accountability of mens rea apart from leaning towards considering the impugned image in its totality and not just the questionable parts.
Prima Facie the Ranjit Udeshi case is important to understand the starting point of the evolution of interpreting obscenity in Indian criminal law but it can serve as an important example beyond section 292 involving the judicial interpretation of the entire code as well. The operative point being apart from the case’s most conspicuous critique of the intergenerational need to change the interpretation of obscenity mirroring the present demand of society, the case also shows how clauses which are silent on mens rea are interpreted.
This is to say that apart from clauses that explicitly include mens rea such as section 300 of the IPC (murder) and those that outrightly exclude mens rea such as section 23 of the Foreign Exchange Regulation Act, there are provisions in the IPC that are silent on the same like section 292 (obscenity). Employing a strict liability stance on obscenity going against the notion of well-established ingredients of criminal law such as mens rea therefore is notable. Which means that intention of the accused is not taken into account at all even if there was unawareness of the contents of the impugned object being obscene. Strict liability usually being an approach taken in offences of great moral, public or national injury doesn’t fit in while evaluating a crime such as obcsenity, unless it is made out to be so.
The judgement leaves traces of a hyperbolic morally inflamed issue in obscenity through its strict liability stance. This can be perceived to affect the evolved jurisprudence even creeping into the Aveek Sarkar judgement. It can be inferred in the way the context of the impugned image which entailed a semi-nude couple in Aveek Sarkar was decided as not being obscene because the couple were to marry, which could be seen as what made the impugned image as morally acceptable. The judgement shows a direct link to the ruling in the Aveek Sarkar judgement which was able to overrule an outdated test but could not get away from the grip of the Ranjit Udeshi judgement in the way it still affects the way the intention and context are judged.
In this way the Ranjit Udeshi judgement can still be seen as the root of obscenity adjudication in bringing a predetermined sense of morality as a constant to its jurisprudence fixing the framework under which only changing social norms can be acknowledged. The problem in this as discerned by Latika Vashisht in her paper ‘Law and the Obscene Image’, law obliterates the aesthetic dimension of the image which simultaneously results in the erasure of the feminine in law where the image, emotions and the feminine are seen as repressed entities. As she states law’s “unconscious spills over and legal reasoning seeks to sustain itself through the juridicisation of the acceptable emotion: here, love (hetrosexual, leading to marriage)”.
The judgement can be seen as establishing an exception in the form of section 292 to article 19 (1) (a)- freedom of expression. Other than that, the decision to stick with the Hicklin test disallowed seeing the book in its full context, severing the impugned text from locating itself within the meaning of the book. Incidentally, using the Hicklin test also meant employing strict liability. This as exposed in the critique to have a greater impact on contemporary obscenity jurisprudence in its own dormant way seeping into larger aesthetic and feminist issues. Therefore, to understand the present landscape of the law on obscenity it is not only essential to scrutinize contemporary case law, it is also constructive practice to view judgements such as Ranjit Udeshi v. State of Maharashtra. This is so because even though at first glance it may seem as simply being overruled, jurisprudential evolution in parts must be understood to meticulously further understand the present law.
Contributed by: Tahhira Somal and Jasleen Virk (Students, OP Jindal Global University)
The views of the author are personal only. (if any)