Topic: M.F. Hussain vs. Raj Kumar Pandey - Insult national Honour
M.F. Hussain vs. Raj Kumar Pandey
Delhi high Court - Bench: S K Kaul – Date of Judgment: 8 May, 2008
JUDGMENT Sanjay Kishan Kaul, J.
1. Pablo Picasso, a renowned artist said, "Art is never chaste. It ought to be forbidden to ignorant innocents, never allowed into contact with those not sufficiently prepared. Yes, art is dangerous. Where it is chaste, it is not art."
2. Art, to every artist, is a vehicle for personal expression. An aesthetic work of art has the vigour to connect to an individual sensory, emotionally, mentally and spiritually. With a 5000-year-old culture, Indian Art has been rich in its tapestry of ancient heritage right from the medieval times to the contemporary art adorned today with each painting having a story to narrate.
3. Ancient Indian art has been never devoid of eroticism where sex worship and graphical representation of the union between man and woman has been a recurring feature.1 The sculpture on the earliest temples of 'Mithuna' image or the erotic couple in Bhubeneshwar, Konarak and Puri in Orissa (150-1250 AD); Khajuraho in Madhya Pradesh (900-1050 AD); Limbojimata temple at Delmel, Mehsana (10th Century AD); Kupgallu Hill, Bellary, Madras; and Nilkantha temple at Sunak near Baroda to name a few. These and many other figures are taken as cult figures in which rituals related to Kanya and Kumari worship for progeny gained deep roots in early century A.D. Even the very concept of 'Lingam' of the God Shiva resting in the centre of the Yoni, is in a way representation of the act of creation, the union of Prakriti and Purusua.2 The ultimate essence of a work of ancient Indian erotic art has been religious in character and can be enunciated as a state of heightened delight or ananda, the kind of bliss that can be experienced only by the spirit.
4. Today Indian art is confidently coming of age. Every form of stylistic expression in the visual arts, from naturalism to abstract expressionism derives its power from the artist's emotional connection to his perceptual reality. The Nude in contemporary art, a perennial art subject, considered to be the greatest challenges in art has still not lost its charm and focuses on how the human form has been re-interpreted by the emerging and influential artists today. The paintbrush has become a powerful tool of expression as the pen is for some, and has thus occasionally come under the line of fire for having crossed the 'Lakshman Rekha' and for plunging into the forbidden, which is called 'obscene', 'vulgar', 'depraving', 'prurient' and 'immoral'.3 No doubt this form of art is a reflection of a very alluring concept of beauty and there is certainly something more to it than pearly 'flesh'4 but what needs to be determined is which art falls under the latter category.
5. The present petitions seeking to challenge the summoning orders against the petitioner arise from such a contemporary painting celebrating nudity made by an accomplished painter/petitioner. The said painting depicts India in an abstract and graphical representation of a woman in nude with her hair flowing in the form of Himalayas displaying her agony. It is stated that the said painting was sold to a private collector in the year 2004 and that the petitioner did not deal with the same in any manner whatsoever after sale. Subsequently in the year 2006, the said painting entitled "Bharat Mata" was advertised as part of an on-line auction for charity for Kashmir earthquake victims organized by a non-governmental organisation with which the petitioner claims to have no involvement. It is stated that the petitioner at no point in time had given a title to the said painting. The advertisement of the said painting led to large scale protests for which the petitioner also had to tender an apology.
6. It is in this background that there were private complaints filed at various parts of the country being Pandharpur, Maharashtra; Rajkot, Gujarat; Indore and Bhopal, Madhya Pradesh alleging various offences against the petitioner on account of the aforesaid painting consequent whereto summons and warrants of arrest were issued against the petitioner. The petitioner approached the Supreme Court seeking consolidation of the matter. The Supreme Court acceded to the request and in pursuance to the directions passed vide order dated 04-12-2006, the said complaint cases pending consideration were consolidated and transferred to the court of the Ld. ACMM, Delhi by way of transfer petitions filed by the petitioner being T.P. (Cri.) No. 129/2006, T.P. (Cri.) No. 182/2006 and T.P. (Cri.) No. 224/2006. The Ld. ACMM, Delhi issued summons to the petitioner for various offences Under Section 292/294/298 of the Indian Penal Code ('IPC' for short) against which the present revision petitions have been filed.
7. Notices were issued by this Court and exemption was granted to the petitioner from personal appearance. In view of certain propositions having arisen, this Court deemed it appropriate to issue court notice to the Ld. Attorney General in order to depute a law officer for assistance to this Court. A perusal of the order sheets shows that none had sought to appear and argue the matter for the respondents in Crl. Rev. P. 114/2007 and Crl. Rev. P. 280/2007, thus this Court vide order dated 20-03-2008 closed the right of the said respondents to advance any further submissions. However, the GPA holder of the respondent in Crl. Rev. P. 280/2007 entered appearance on 31-03-2008 and requested to make further submissions in that behalf which was permitted.
8. India has embraced different eras and civilizations which have given her a colour of mystery and transformed into her glorious past adapting various cultures and art forms. In the Mughal period too one may see murals and miniatures depicting mating couples. That has been the beauty of our land. Art and authority have never had a difficult relationship until recently. In fact, art and artists used to be patronized by various kings and the elite class. It is very unfortunate that the works of many artists today who have tried to play around with nudity have come under scrutiny and have had to face the music which has definitely made the artists to think twice before exhibiting their work of art. Therefore, looking at a piece of art from the painters' perspective becomes very important especially in the context of nudes. What needs to be seen is that the work is not sensational for the sake of being so and hence needs to be understood before any objections are raised. The courts have been grappling with the problem of balancing the individuals' right to speech and expression and the frontiers of exercising that right. The aim has been to arrive at a decision that would protect the "quality of life" without making "closed mind" a principal feature of an open society or an unwilling recipient of information the arbiter to veto or restrict freedom of speech and expression.
9. In order to examine the matter closely it would be pertinent to discuss the broad realms of the law relating to obscenity and the artistic freedom given within the parameters of Article 19 of the Constitution of India (hereinafter referred to as the Constitution). The learned Counsel for the petitioner and the Ld. ASG have assisted this Court to bring to light this aspect by way of a plethora of precedents (Indian as well as international) where the courts faced with similar situations have discussed and enunciated the law in relation to obscenity. The position in this respect is summarized below:
United States of America
10. The courts in United States of America have given primary importance to protect the freedom guaranteed by the First Amendment to the American Constitution wherein an absolute prohibition is imposed on the abridgment of freedom of speech thus casting a heavy burden on anyone transgressing the right to justify the transgression. Since the constitutional provision contained no exceptions, these had to be evolved by judicial decisions.
11. It was in the case of Chaplinsky v. New Hampshire 315 U.S. 568, wherein the Courts recognized "obscenity" as an exception to an absolute freedom guaranteed by the American Constitution. In Roth v. United States 354 U.S. 476 the Supreme Court directly dealt with the issue of "obscenity" as an exception to freedom of speech and expression. It delved into the constitutionality of 18 U.S.C 1461 that made punishable the mailing of any material which was "obscene, lascivious, lewd or filthy and other publication of an indecent character". While upholding the constitutional validity of the above Code the Court observed that "obscenity is not within the area of constitutionally protected freedom of speech or press - either (1) under the First Amendment, as to the Federal Government, or (2) under the Due Process Clause of the Fourteenth Amendment, as to the States". The Court further held that the rejection of "obscenity" was implicit in the First Amendment. Sex and Obscenity were held not to be synonymous with each other. Only those sex-related materials which had the tendency of "exciting lustful thoughts" were held to be obscene. The aspect of obscenity had to be judged from the point of view of an average person by applying contemporary community standards.
12. In this case the Supreme Court also rejected the common law test evolved in England in the case of Regina v. Hicklin 1868. L. R. 3 Q. B. 360 of the material having the tendency to deprave and corrupt the minds of only those persons who are open to such immoral influence, and into whose hands the publication of this sort may fall. The Supreme Court observed as follows:
The Hicklin test, judging obscenity by the effect of isolated passages upon the most susceptible persons, might well encompass material legitimately treating with sex, and so it must be rejected as unconstitutionally restrictive of the freedoms of speech and press. On the other hand, the substituted standard provides safeguards adequate to withstand the charge of constitutional infirmity.
13. The Supreme Court in the case of Memoirs v. Massasuchette 383 U.S. 413 further explained the meaning of the term "obscenity" in the following words:
Under this definition, as elaborated in subsequent cases, three elements must coalesce: it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.
14. The California Penal Code was approximately based on the above test, under the terms of which an intentional distribution of obscene matter was an offence. In Miller v. California 413 U.S. 15, the test of "utterly without redeeming social value" was rejected. This was a case involving an aggressive sales campaign relating to a book containing sexually explicit material which came to be thrusted upon people who had expressed no desire to receive them. It was observed that the court has recognized that the States have a legitimate interest in prohibiting dissemination or exhibition of obscene material when the mode of dissemination carries with it a significant danger of offending the sensibilities of unwilling recipients or of exposure to juveniles.
15. In Stanley v. Georgia 394 U.S 557, the Supreme Court of United States dealt with another issue related to "obscenity" which concerned private possession of obscene material by the Appellant which was an offense under the law of Georgia. The Court in this case held that mere possession of the obscene material was not a crime. In doing so, the Court did not hold that obscene material had become a "protected speech", rather, the Court recognized that the freedom of speech goes beyond self-expression and includes the fundamental right to "receive information and ideas regardless of their social worth."
16. In Mishkin v. New York 383 U.S 502 the Court removed the test of the average person by saying that if the material is designed for a deviant sexual group, the material can be censored only if it appeals to the prurient interest in sex of the members of that group when taken as a whole.
17. The United States of America has recently enacted a statute regulating obscenity on the internet i.e. Communication Decency Act, 1996 (CDA) which prohibits, knowingly sending or displaying of "patently offensive" material depicting or describing sexual or excretory activities or organs, in any manner that is available to a person under 18 years of age using an "interactive computer service". The constitutionality of this statute came to be challenged before the Supreme Court in the case of Reno v. ACLU 117 S. Ct. 2329 (1997) wherein it was argued that the aim of the Government while enacted the said statute was protecting the children from harmful material. The Supreme Court observed that the words of the statute were vague and uncertain. It further held that the provisions of CDA lacked the precision that the First Amendment requires when a statute regulates the content of speech. The governments' interest in protecting children from exposure to harmful material was held not to justify "an unnecessarily broad suppression of speech addressed to adults". The court observed that the undefined terms "patently offensive" and "indecent" were wide enough to cover large amounts of non-pornographic material with serious educational value. In relation to the internet the "community standards" criterion was held to mean that any communication available to a nation wide audience will be judged by the standards of the community most likely to be offended by the message, though in the case of New York v. Ferber 458 U.S 747 child pornography was recognized as an exception to freedom of speech guaranteed under the American Constitution.
18. For quite some time, the Canadian courts followed the Hicklin's Test but with the introduction of the statutory provision of Section 163(8) in the Criminal Code, the said test was replaced with a series of rules developed by the courts. The Canadian Criminal Code defines obscene material as any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, horror, cruelty and violence, shall be deemed to be obscene. The first case to consider the said provision was Brodie v. The Queen  S.C.R. 681. The majority found in that case that D.H.Lawrence's novel, Lady Chatterley's Lover, was not obscene within the meaning of the Code.
19. One of the most progressive and liberal judgments on obscenity was Regina v. Butler (1992) 1 SCR 452 by the Supreme Court of Canada. The Supreme Court of Canada extensively interpreted the meaning of "undue exploitation, holding that the dominant test is a community standard one. The portrayal of sex coupled with violence will almost always constitute the undue exploitation of sex. Explicit sex, which is degrading or dehumanizing may be undue if the risk of harm is substantial. Finally, explicit sex that is not violent and neither degrading nor dehumanizing is generally tolerated in our society and will not qualify as the undue exploitation of sex unless it employs children in its production. In order for the work or material to qualify as 'obscene' the exploitation of sex must only be its dominant characteristic, but such exploitation must be 'undue'. In determining when exploitation of sex will be 'undue', the courts formulated a workable test. The test being the 'community standard of tolerance' test. It was further observed that the State could not restrict expression simply because it was distasteful or did not accord with dominant conceptions of what was appropriate. In Towne Cinema Theatres Ltd. v. The Queen  1 S.C.R. 494 the court elaborated the the community standards test and held that it is the standard of tolerance, not taste that is relevant. What matters is not what Canadians think is right for themselves to see (but) what the community would (not) tolerate others being exposed to on the basis of the degree of harm that may flow from such exposure. In R v. Dominion News & Gifts 1963. 2 C.C.C. 103., the court stated that the community standard test must necessarily respond to changing mores.
20. There is no express right to free speech in Australia as in the USA. At most, Australia has a limited implied constitutional guarantee of political discussion. The right of free artistic expression in Australia is constrained by defamation law; trade practices laws; the provisions as per the Online Services Act and various State and Territory obscenity laws in particular the state Summary Offences Acts which create offences related to the display of indecent, obscene or offensive material. Definitions of 'obscene' or 'indecent' are often not contained in the legislation and courts rely on traditional legal tests such as the capacity of the material to 'deprave and corrupt' and/or community standards.
21. Justice Windeyer settled the test for obscenity in Australia in Crowe v. Graham (1968) 121 CLR 375.
Does the publication...transgress the generally accepted bounds of decency?
...where "[c]ontemporary standards are those currently accepted by the Australian community.... And community standards are those which ordinary decent-minded people accept.
22. It is well established that this community standards test will be applied to sexual, violent, criminal and certain religious matters. These are the very concepts often explored in art. The courts while answering the question in particular cases relating to visual art and obscenity as to whether the artwork offends contemporary community standards have taken in consideration the following factors into account: the circumstances of the artwork's publication (including any evidence of its limited circulation); the target group of the publication (including whether the target audience was narrowed physically or by appropriate warning signs about the content of the artwork); and whether or not the artwork has artistic merit (taking into account any expert evidence on this point). There is not, however, any absolute or partial defense of artistic merit.
23. Under the Common Law, obscenity being an indictable offense is punishable with fine and imprisonment at the discretion of the court. The offence of obscenity was established in England three hundred years ago, when Sir Charles Sedley exposed his person to the public gaze on the balcony of a tavern. Obscenity in books, however, was punishable only before the spiritual courts as was held in 1708 in which year Queen v. Read 11 Mod 205 Q.B. came to be decided. In 1857, Lord Campbell enacted the first legislative measure against obscene books etc. and his successor in the office of Chief Justice interpreted his statute in Regina v. Hicklin (Supra) where it was held as follows:
The test of obscenity is 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.
24. This came to be known as the Hicklins test. It set an early precedent for obscenity which was followed by the American courts until the decisions in Roth's Case (supra). The Hicklin's rule allowed a publication to be judged for obscenity based on isolated passages of a work considered out of context and judged by their apparent influence on most susceptible readers, such as children or weak-minded adults.
25. The general law of obscenity in England is contained in the Obscene Publications Act, 1959. In terms of the said Act publication of obscene article, whether for gain or not and its possession solely, either of the person himself or for gain of another person is an offence. Interestingly, the statute defines "obscenity" as follows:
an article shall be deemed to be obscene if its effect or 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.
26. A 1994 amendment also brought within the purview of this statute data stored or transmitted electronically.
27. In DPP v. Whyte  AC 849 the respondent booksellers were charged with "having" obscene articles, namely books and magazines for publication for gain. They were acquitted on the basis that their clientle was already depraved and corrupted, but the House of Lords held that even those already depraved and corrupted could be corrupted further. Lord Wilberforce observed as under:
The Act is not merely concerned with the once for all corruption for the wholly innocent; it equally protects the less innocent from further corruption, the addict from feeding or increasing his addiction. To say this is not to negate the principle of relative obscenity certainly the tendency to deprave and corrupt is not to be estimated in relation to some assumed standard of purity of some reasonable average man. It is the likely reader. And to apply different tests to teenagers, members of men's clubs or men in various occupations or localities would be a matter of common sense.
28. Thus, it is clear that the Hicklin's Test has been applied to determine obscenity in England since its evolution. The Courts in the United States of America have given up the Hicklins Test, but the Indian law on obscenity is more or less based on it. In addition to this, law on obscenity in India also panders to the test of 'lascivious and prurient interests' as taken from the American law.
29. The general law of obscenity in India can be found in Section 292 of the Indian Penal Code, 1860 which reads as under:
Section 292. Sale, etc., of obscene books, etc.-[(1)] For the purposes of Sub-section (2) 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 effects 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.] [(2) Whoever- sells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation or for purposes of sale, hire, distribution public exhibition of circulation, makes produces, or has in
(a) Possession any obscene book, pamphlet, paper, drawing painting, representation or figure or any other obscene objects whatsoever, or
(b) Imports, exports or conveys any obscene objects for any of the purposes, aforesaid, on knowing or having reason to believe that such objects will be sold let to hire, distributed or publicly exhibited or in any manner put into circulation or
(c) takes part in or receives profit from any business in the course of which he knows or has reasons to believe that such an object are for any of the purposes aforesaid, made produced, purchased , kept, imported, exported, convey, publicly excited, or in any manner put into circulation, or
(d) advertises or makes known by any means whatsoever that any person is engaged or is ready to engage in any act which is an offence under this section, or that any such obscene object can be procured from or through any person, or
(e) Offers or attempts to do any act which is an offence under this section, shall be punished [on first conviction with imprisonment of either description for a term which may extend to two years, and with fine which may extend to two thousand rupees, and, in the event of a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and also with fine which may extend to five thousand rupees.] [Exception.- this section does not extend to-
(a) any book, pamphlet, paper, writing, drawing, painting, representation of figure-
(i) The publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, writing, drawing, painting, representation or figure is in the interest of science, literature, art or learning or other objects of general concern, or
(ii) which is kept or used bona fide for religious purpose;
(b) any representation sculptured, engraved, painted or otherwise represented on or in-
(i) any ancient monument within the meaning of the Ancient Monuments and Archaeological Sites and Remains Act, 1958(24 of 58), or
(ii) any temple, or any car used for the conveyance of idols, or kept or used for any religious purpose.]]
30. Section 292 IPC was enacted by the Obscene Publications Act to give effect to Article I of the International Convention for suppression of or traffic in obscene publications to which India is a signatory. By Act 36 of 1969, Section 292 was amended to give more precise meaning to the word 'obscene' as used in the section in addition to creating an exception for publication of matter which is proved to be justified as being for the public good, being in the interest of science, literature, art or learning or other objects of general concern. Prior to its amendment, Section 292 contained no definition of obscenity. The amendment also literally does not provide for a definition of 'obscenity' inasmuch as it introduces a deeming provision.
31. On a bare reading of Sub-section (1) of Section 292 it is obvious that a book etc. shall be deemed to be obscene (i) if it is lascivious; (ii) it appeals to the prurient interest, and (iii) it tends to deprave and corrupt persons who are likely to read, see or hear the matter alleged to be obscene. It is only once the impugned matter is found to be obscene that the question of whether the impugned matter falls within any of the exceptions contained in the section would arise.
32. Section 67 of the Information Technology Act, 2000 relevant for the subject under discussion reads as follows:
67. Publishing of information which is obscene in electronic form.--Whoever publishes or transmits or causes to be published in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is 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, shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to one lakh rupees and in the event of a second or subsequent conviction with imprisonment of either description for a term which may extend to ten years and also with fine which may extend to two lakh rupees.
33. Thus Section 67 is the first statutory provisions dealing with obscenity on the Internet. It must be noted that the both under the Indian Penal Code, 1860 and the Information Technology Act, 2000 the test to determine obscenity is similar. Therefore, it is necessary to understand the broad parameters of the law laid down by the courts in India, in order to determine "obscenity".
34. The Indian Penal Code on obscenity has grown out of the English Law and while interpreting the meaning of "obscenity" the Supreme Court in Ranjit D. Udeshi v. State of Maharashtra uniformly adopted the test laid down by the English Court in Hicklins Case Supra wherein it was held that the word "obscene" in the section is not limited to writings, pictures etc. intended to arouse sexual desire. At the same time, the mere treating with sex and nudity in art and literature is not per se evidence of obscenity. It was emphasized that the work as a whole must be considered, 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. Where art and obscenity are mixed, art must so preponderate as to throw the obscenity out into the shadow or the obscenity so trivial and insignificant that it can have no effect and may be overlooked.
35. The Courts explained that the Hicklin's test does not emphasize merely on stray words, as the words are "matters charged" and to that extent it must be held to secundum subjectum materiam, that is to say, applicable to the matter there considered. Thus, the court must apply itself to consider each work at a time.
36. It was further observed that there exists a distinction between "obscenity" and "pornography", while later consists of pictures, writings etc. which are intended to arouse sexual feelings whereas the former consists of writings etc. which though are not intended to arouse sexual feelings but definitely has that tendency.
37. In Shri Chandrakant Kalyandas Kakodkar v. The State of Maharashtra , which case relates to articles and pictures in the magazine being alleged to be obscene and calculated to corrupt and deprave the minds of the reader, the courts reiterated the ratio as was laid down in Ranjit Udeshi's case (supra) and held that the concept of obscenity would differ from country to country depending on the contemporary standards of the society. But to insist that the standard should always be for the writer to see that the adolescent ought not to be brought into contact with sex or that if they read any references to sex in what is written whether that is the dominant theme or not, they would be affected, would be to require authors to write books only for the adolescent and not for the adults. It was held that with the standards of contemporary society in India fast changing, the adults and adolescents have available to them a large number of pieces of literature which have a content of sex, love and romance and if a reference to sex by itself is considered obscene, no books could be sold except those which are purely religious. Thus, what one has to see is 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 thought aroused in their minds.
38. The Supreme Court of India in the K.A. Abbas v. UOI has called the test laid down in Mishkin's case (supra) as "selective-audience obscenity test" and observed as follows:
49. Our standards 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.... 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.
39. In Samaresh Bose v. Amal Mitra the courts while distinguishing between vulgarity and obscenity held that "vulgarity" may arouse a feeling of revulsion, disgust and even boredom but unlike "pornography" or "obscenity" do not have the tendency to corrupt or deprave the minds of a person. In addition to the above, the court observed that for the purposes of judging obscenity, firstly the judge must place himself in the position of the author in order to appreciate what the author really wishes to convey, and thereafter he must place himself in the position of the reader of every age group in whose hands the book is likely to fall and then arrive at a dispassionate conclusion.
40. The court in Sada Nand and Ors. v. State (Delhi Administration) 2nd (1986) II Delhi 81 laid down the test to the affect that the pictures of a nude/semi-nude woman cannot per se be called obscene unless the same are suggestive of deprave mind and are designed to excite sexual passion in the persons who are likely to look at them or see them. This will depend on the particular posture and the background in which a nude semi-nude woman is shown. While applying this test in the instant case, the court held that the nude pictures cannot be termed as obscene i.e. which will have a tendency to deprave and corrupt the minds of people in whose hands the magazine in question is likely to fall. However, a look at the impugned pictures was held to show beyond a shadow of doubt that they can hardly be said to have any aesthetic or artistic touch, rather they seem to have been taken with the sole purpose of attracting readers who may have a prurient mind. The women in nude had been just made to lie on a grassy plot or sit on some stool etc. and pose for a photograph in the nude. So they may well be said to be vulgar and indecent but all the same it may be difficult to term them obscene within the meaning of Section 292 IPC.
41. The findings of the court in Bobby Art International and Ors. v. Om Pal Singh Hoon and Ors. , which may be relevant for the present matter, have been reproduced below:
First, the scene where she is humiliated, stripped naked, paraded, made to draw water from the well, within the circle of a hundred men. The exposure of her breasts and genitalia to those men is intended by those who strip her to demean her. The effect of so doing upon her could hardly been better conveyed than by explicitly showing the scene. The object of doing so was not to titillate the cinema-goer's lust but to arouse in him sympathy for the victim and disgust for the perpetrators. The revulsion that 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. The reference by the Tribunal to the film 'Schindler's List' was apt. There is a scene in it of rows of naked men and women, shown frontally, being led into the gas chambers of a Nazi concentration camp. Not only are they about to die but they have been stripped in their last moments of the basic dignity of human beings. Tears are a likely reaction; pity, horror and a fellow feeling of shame are certain, except in the pervert who might be aroused. We do not censor to protect the pervert or to assuage the susceptibilities of the over-sensitive. '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: rage and vendetta against the society that had heaped indignities upon her.
42. In the case of Ajay Goswami v. Union of India the Supreme Court, while recognizing the right of adult entertainment, reviewed the position of law on obscenity and summarized the various tests laid down of obscenity.
43. Recently, in Vinay Mohan v. Delhi Administration 2008 II AD (Delhi) 315, Pradeep Nandrajog J. while dismissing the petition against framing of charge held that it is a recognised principle of law that concept of obscenity is moulded to a great extent by the social outlook of people and hence in relation to nude/semi-nude pictures of a woman it would depend on a particular posture, pose, the surrounding circumstances and background in which woman is shown.
Artistic Freedom and Obscenity
44. There is a sharp distinction between Constitution of United States of America and India. In the former, freedom of speech guaranteed is absolute and in the later the Constitutional itself provides for certain exceptions. The duty cast upon the courts in India is to ensure that the State does not impose any unreasonable restriction.
45. The Constitution of India, by virtue of Article 19 (1) (a), guarantees to its citizen the freedom of speech and expression. India is also a party to the International Covenant on Civil and Political Rights and therefore bound to respect the right to freedom of expression guaranteed by Article 19 thereof, which states:
a. Everyone shall have the right to hold opinions without interference.
b. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds regardless of frontiers, either orally, in writing or in print, in form of art, or through any other media of his choice.
46. Nevertheless, there is an inseparable connection between freedom of speech and the stability of the society. This freedom is subject to Sub-clause (2) of Article 19, which allows the State to impose restriction on the exercise of this freedom in the interest of public decency and morality. The relevant portion of the same has been reproduced below:
Article 19(1) (a): All citizens shall have a right to freedom of speech and expression.
...(2) Nothing in Sub-clause (a) of Clause (1) shall affect the operation of any existing law, or prevent the State from making any law, insofar as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of 4[the sovereignty and integrity of India,] the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.]
47. A bare reading of the above shows that obscenity which is offensive to public decency and morality is outside the purview of the protection of free speech and expression, because the Article dealing with the right itself excludes it. Thus, any interpretation of 'obscenity' in the context of criminal offences must be in consonance with the constitutional guarantee of freedom of expression which freedom is not confined to the expression of ideas that are conventional or shared by the majority. Rather, it is most often ideas which question or challenge prevailing standards observed by the majority that face the greatest threat and require the greatest protection as was so observed in Ranjit Udeshi's case (supra).
48. The Supreme Court in Gajanan Visheshwar Birjur v. Union of India , while dealing with an order of confiscation of books containing Marxist literature, referred to the supremacy of the fundamental right of freedom of speech and expression, and observed as under:
Before parting with this case, we must express our unhappiness with attempts at thought control in a democratic society like ours. Human history is witness to the fact that all evolution and all progress is because of power of thought and that every attempt at thought control is doomed to failure. An idea can never be killed. Suppression can never be a successful permanent policy. Any surface serenity it creates is a false one. It will erupt one day. Our constitution permits a free trade, if we can use the expression, in ideas and ideologies. It guarantees freedom of thought and expression - the only limitation being a law in terms of Clause (2) of Article 19 of the Constitution. Thought control is alien to our constitutional scheme. To the same effect are the observations of Robert Jackson, J. in American Communications Association v. Douds 339 US 382, 442-43 (1950): 94 L Ed 925 with reference to the US Constitution: 'Thought control is a copyright of totalitarianism, and we have no claim to it. It is not the function of our Government to keep the citizen from falling into error; it is the function of the citizen to keep the Government from falling into error. We could justify any censorship only when the censors are better shielded against error than the censored'.
49. As was also pointed out by Mr. Justice Holmes in Abramson v. United States 250 U.S. 616:
The ultimate good desired is better reached by free trade in ideas-the best test of truth is the power of the thought to get itself accepted in the competition of the market.
50. Krishna Iyer, J., speaking for the Court in Raj Kapoor v. State , dealing with a pro bono publico prosecution against the producer, actors and others connected with a film called "Satyam, Shivam, Sundaram" on the ground of prurience, moral depravity and shocking erosion of public decency held that the censor certificate is a relevant material, important in its impact, though not infallible in its verdict and observed as under:
...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 Konarks and Khajurahos, lofty epics, luscious in patches, may be asphyxiated by law, if prudes and prigs and State moralists prescribe paradigms and prescribe heterodoxies.
51. In T. Kannan v. Liberty Creations Ltd. (2007) the Madras High Court has said that there should be a substantial allowance for freedom thus leaving a vast area for creative art to interpret life and society with some of its foibles along with what is good. Art and literature include within themselves, a comprehensive view of social life and not only in its ideal form.
52. In S. Rangarajan's case (supra), the Apex court dealt with the aspect of censorship and held that freedom of expression cannot be held to ransom, by an intolerant group of people. The fundamental freedom under Article 19(1) (a) can be reasonably restricted only for the purposes mentioned in Articles 19(2) and the restriction must be justified. It was observed as under:
The standard to be applied by the Board or courts for judging the film should be that of an ordinary man of common sense and prudence and not that of an out of the ordinary or hypersensitive man. We, however, wish to add a word more. The censors Board should exercise considerable circumspection on movies affecting the morality or decency of our people and cultural heritage of the country. The moral values in particular, should not be allowed to be sacrificed in the guise of social change or cultural assimilation. Our country has had the distinction of giving birth to a galaxy of great sages and thinkers. The great thinkers and sages through their life and conduct provided principles for people to follow the path of right conduct. There have been continuous efforts at rediscovery and reiteration of those principles.... Besides, we have the concept of "Dharam" (righteousness in every respect) a unique contribution of Indian civilization to humanity of the world. These are the bedrock of our civilization 3 and should not be allowed to be shaken by unethical standards. We do not, however, mean that the Censors should have an orthodox or conservative outlook. Far from it, they must be responsive to social change and they must go with the current climate.
53. In Sakkal Papers (P) Ltd. v. Union of India , Mudholkar, J. said:
This Court must be ever vigilent in guarding perhaps the most precious of all the freedoms guaranteed by our Constitution, The resson for this is obvious. The freedom of speech and expression of opinion is of paramount importance under a democratic Constitution which envisages changes in the composition of legislatures and governments and must be preserved.
54. The Apex court in Ranjit Udeshi's case (supra) while answering the question in affirmative as to whether the test as laid down of obscenity squares with the freedom of speech and expression guaranteed under our Constitution, or it needs to be modified and, if so, in what respects, pointed out as under:
...The laying down of the true test is not rendered any easier because art has such varied facets and such individualistic appeals that in the same object the insensitive sees only obscenity because his attention is arrested, not by the general or artistic appeal or message which he cannot comprehend, but by what he can see, and the intellectual sees beauty and art but nothing gross.
...The test which we evolve must obviously be of a general character but it must admit of a just application from case to case by indicating a line of demarcation not necessarily sharp but sufficiently distinct to distinguish between that which is obscene and that which is not.
...A balance should be maintained between freedom of speech and expression and public decency and morality but when the latter is substantially transgressed the former must give way.
55. In so far as the scope of Section 292 is concerned, from the above discussion, it is clear that that for an offence to be made out under the said section, its ingredients need to be met. In the context of the present painting to be deemed to be obscene, it has to satisfy at least one of the three conditions: (i) if it is lascivious; (ii) it appeals to the prurient interest, and (iii) it tends to deprave and corrupt persons who are likely to read, see or hear the matter alleged to be obscene. In addition to this, the relevance of exceptions arises in excluding otherwise obscene matter from the ambit of the criminal offence of obscenity and such exceptions has no role to play in determination of the obscenity of the impugned matter.
56. The evolution of law in relation to the delicate balance between artistic freedom viz-a-viz the right of speech and expression while dealing with the question of obscenity requires certain important norms to be kept in mind.
57. In judging as to whether a particular work is obscene, regard must be had to contemporary mores and national standards. While the Supreme Court in India held Lady Chatterley's Lover to be obscene, in England the jury in the case of R v. Penguin Books, Ltd. (1961) Crim. L.R. 176 acquitted the publishers finding that the publication did not fall foul of the obscenity test. This was heralded as a turning point in the fight for literary freedom in UK. "Community mores and standards" played a part in the Indian Supreme Court taking a different view from the English jury. Judging the work as a whole
58. A holistic view must thus be taken apart from a closer scrutiny of the impugned subject to come to a conclusion whether the same is grossly obscene and likely to deprave and corrupt.
Aesthetic or artistic touch
59. The work of art must have any aesthetic or artistic touch and should not seem to have been taken with the sole purpose of attracting viewers who may have a prurient mind. In other words, where obscenity and art are mixed, art must be so preponderating as to throw obscenity into shadow or render the obscenity so trivial and insignificant that it can have no effect and can be overlooked.
60. Sex and obscenity are not always synonymous and it would be wrong to classify sex as essentially obscene or even indecent or immoral. The basic concern should be to prevent the use of sex designed to play a commercial role by making its own appeal.
61. In relation to nude/semi-nude pictures of a woman it would depend on a particular posture, pose, the surrounding circumstances and background in which woman is shown.
Opinion of literary/artistic experts
62. In Ranjit Udeshi's case (supra) this 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. However, in Samaresh Bose's case (supra) this Court observed: