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Constitutional Law I ( SOL/LL.B./C-01 )
Gulu University
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Compendium
Of the Cases Cited
On behalf of the Respondents in the matter of
Mr. Kishan Juneja & Ors................................................
v.
Central Baord of Film Certification & Ors.......................
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Ranjit D. Udeshi, 1965 AIR 881, 1965 SCR (1) 65.
(Before P Gajendragadkar, C, K Wanchoo, J Shah, Rajagopal Ayangar and m. Hidayatullah, JJ)
This extract is taken from Ranjit D. Udeshi v. State of Maharashtra , (1965) 1 SCR 65 : AIR 1965 SC 881 : (1965) 2 Cri LJ 8.
M. HIDAYATULLAH, J. — The appellant is one of four partners of a firm which owns a book- stall in Bombay. He was prosecuted along with the other partners under Section 292 of the Indian Penal Code. All the facts necessary for our purpose appear from the simple charge with two counts which was framed against them. It reads:
“That you Accused 1, 2, 3, 4 on or about the 12th day of December, 1959 at Bombay being the partners of a book-stall named Happy Book Stall were found in possession for the purpose of sale copies of an obscene book called Lady Chatterley's Lover (unexpurgated Edn.) which inter alia contained, obsence matter as detailed separately and attached herewith and thereby committed an offence punishable under Section 292 of the Indian Penal Code.
AND That you Gokuldas Shamji on or about the 12th day of December 1959 at Bombay did sell to Bogus Customer Ali Raza Sayeed Hasan a copy of an obscene book called Lady Chatterley's Lover (unexpurgated Edn.) which inter alia contained obscene matter as detailed separately and attached herewith and thereby committed an offence punishable under Section 292 of the Indian Penal Code.”
The first count applied to the appellant who was Accused 2 in the case. The Additional Chief Presidency Magistrate III Court, Esplanade, Bombay convicted all the partners on the first count and fined each of them Rs 20 with one week's simple imprisonment in default. Gokuldas Shamji was additionally convicted on the second count and was sentenced to a further fine of Rs 20 or like imprisonment in default. The Magistrate held that the offending book was obscene for purposes of the section. The present appellant filed a revision in the High Court of Bombay. The decision of the High Court was against him. He has now appealed to this Court by special leave and has raised the issue of freedom of speech and
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the problem may become different because then the interest of society may tilt the scales in favour of free speech and expression. It is thus that books on medical science with intimate illustrations and photographs, though in a sense immodest, are not considered to be obscene but the same illustrations and photographs collected in book form without the medical text would certainly be considered to be obscene. Section 292, Indian Penal Code deals with obscenity in this sense and cannot thus be said to be invalid in view of the second clause of Art.
22. We may now refer to Roth's case (1) to which a reference has been made. Mr. Justice Brennan, who delivered the majority opinion in that case observed that if obscenity is to be judged of by the effect of an isolated passage or two upon particularly susceptible persons, it might well encompass material legitimately treating with sex and might become unduly restrictive and so the offending book must be considered in its entirety. Chief Justice Warren on the other hand made "Substantial tendency to corrupt by arousing lustful desires as the test. Mr. Justice Harlan regarded as the test that must "tend to sexually impure thoughts". 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 extents of such appeal in a particular book etc. are matters for consideration in each individual case.
29. We have dealt with the question at some length because this is the first case before this Court invoking the constitutional guarantee against the operation of the law regarding obscenity and the book is one from an author of repute and the centre of many controversies. The book is probably an unfolding of his philosophy of life and of the urges of the unconcious but these are unfolded in his other books also and have been fully set out in his Psychoanalysis and the Unconscious and finally in the Fantasia of the Unconscious. There is no loss to society if there was a message in the book. The divagations with sex are not a legitimate embroidery but they are the only attractions to the common man. When everything said in its favour we find that in treating with sex the impugned portions viewed separately and also in the setting of the whole book pass the permissible limits judged of from our community standards and as there is no social gain to us which can be said to preponderate, we must hold the book to satisfy the test we have indicate above.
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30. In the conclusion we are of the opinion that the High Court was right in dismissing the revision petition. The appeal fails and is dismissed.
Samaresh Bose v. Amal Mitra, 1986 AIR 967, 1985 SCR Supl. (3) 17.
(Before R Pathak and A Sen, JJ)
A. Sen, J. 1. Samaresh Bose, the first appellant, is a well-known writer of Bengali Novels and stories. He is the author of a novel which under the caption 'Prajapati' came to be published in 'Sarodiya Desh' (the annual pooja number of the Bengali Journal 'Desh') for the Bengali year 1374 B. Desh is a journal of repute with wide circulation and the puja number is read by lovers of Bengali literature of all age groups all over India, Sitangshu Kumar Dasgupta, the second appellant was the publisher and the printer of the journal at the relevant time.
2. On the 2nd of February 1968, Amal Mitra, a young Advocate, made an application in the Court of the Chief Presidency Magistrate at Calcutta complaining that the said novel 'Prajapati' "contains matters which are obscene and both the accused persons have, sold, distributed printed and exhibited the same which has the tendency to corrupt the morals of those in whose hands the said 'Sarodiya Desh' may fall and the reading public as well" and "both the accused persons have committed an offence punishable under Section 292 Indian Penal Code (I. for short) and under Section 292 read with Section 109 I.
41. It appears that the vulgar and slang language used have greatly influenced the decision of the Chief Presidency Magistrate and also of the learned Judge of the High Court. The observations made by them and recorded earlier go to indicate that in their thinking there has been kind of confusion between vulgarity and obscenity. A vulgar writing is mot necessarily obscene. Vulgarity arouses a feeling of disgust and revulsion and also boredom but does mot have the effect of depraving, debasing and corrupting the morals of any reader of the novel, whereas obscenity has the tendency to deprave and corrupt those whose minds are open to such immoral influences.
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"But even if we believe that a novelist or a painter or a musician should be free to write, paint and compose music without the interference of the State machinery, I doubt if anyone will advocate the same freedom to be extended to the commercial exploitation of a powerful medium of expression and entertainment like the cinema. One can imagine the results if an unbridled commercial cinema is allowed to cater to the lowest common denominator of popular taste, especially in a country which, after two centuries of political and cultural domination, is still suffering from a confusion and debasement of cultural values.
Freedom of expression cannot, and should not, be interpreted as a license for the cinemagnates to make money by pandering to, and thereby propagating, shoddy and vulgar taste'.
This extract is taken from K. Abbas v. Union of India , (1970) 2 SCC 780 at page 799.
52. It was for this purpose that this Court was at pains to point out in Ranjit D. Udeshi case certain considerations for the guidance of censorship of books. We think that those guides work as well here. Although we are not inclined to hold that the directions are defective in so far as they go, we are of opinion that directions to emphasize the importance of art to a value judgment by the censors need to be included. Whether this is done by Parliament or by the Central Government it hardly matters. The whole of the law and the regulations under it will have always to be considered and if the further tests laid down here are followed, the system of censorship with the procedural safeguards accepted by the Solicitor-General will make censorship accord with our fundamental law. 53. We allow this petition as its purpose is more than served by the assurance of the Solicitor-General and what we have said, but in the circumstances we make no order about costs.
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Bobby Art International V. Mahendar Pal Singh Hoon, (1996) 4 SCC 1.
(Before A Ahmadi, C, S Bharucha and B Kirpal, JJ)
This extract is taken from Bobby Art International v. Om Pal Singh Hoon , (1996) 4 SCC 1 at page 4.
S. BHARUCHA, J. — Special leave granted. This extract is taken from Bobby Art International v. Om Pal Singh Hoon , (1996) 4 SCC 1 at page 4.
2. These appeals impugn the judgment and order of a Division Bench of the High Court of Delhi in letters patent appeals. The letters patent appeals challenged the judgment and order of a learned Single Judge allowing a writ petition. The letters patent appeals were dismissed, subject to a direction to the Union of India (the second respondent). The writ petition was filed by the first respondent to quash the certificate of exhibition awarded to the film “Bandit Queen” and to restrain its exhibition in India. This extract is taken from Bobby Art International v. Om Pal Singh Hoon , (1996) 4 SCC 1 at page 16.
31. A film that illustrates the consequences of a social evil necessarily must show that social evil. The guidelines must be interpreted in that light. No film that extols the social evil or encourages it is permissible, but a film that carries the message that the social evil is evil cannot be made impermissible on the ground that it depicts the social evil. At the same time, the depiction must be just sufficient for the purpose of the film. The drawing of the line is best left to the sensibilities of the expert Tribunal. The Tribunal is a multi-member body. It is comprised of persons who gauge public reactions to films and, except in cases of stark breach of guidelines, should be permitted to go about its task.
33. We are of the opinion that the Tribunal had viewed the film in its true perspective and had, in compliance with the requirements of the guidelines, granted to the film an ‘A’ certificate subject to the conditions it stated. We think that the High Court ought not to have 8
This extract is taken from B. Adarsh v. Union of India , 1989 SCC OnLine AP 154 : AIR 1990 AP 100 : (1989) 2 AP LJ (SN) 79 : (1990) 2 An WR 34 at page 102.
2. The film starts with a Conference of Medicos and other delegates on sex education headed by Dr. Ravi Varma who prefaced with the need to enlighten the public on sex education in the modern society and the evil effects due to its ignorance followed by a discussion on several topics starting with ‘Happy married life’, prostitution, venereal diseases, Aids, pregnancy, different methods of deliveries, family planning methods, test tube baby, sex transmission, cancer to sex organs, etc. Thereafter, there is the session viz. questions by the delegates and answers by a panel of Doctors and lastly with sex perversion and their evil effects.
This extract is taken from B. Adarsh v. Union of India , 1989 SCC OnLine AP 154 : AIR 1990 AP 100 : (1989) 2 AP LJ (SN) 79 : (1990) 2 An WR 34 at page 107.
18. On the anvil of Art. 14, an argument to accord immunity from punishment, penalty or liability for contravention of law on par with those escaped unscathed is often being breezed across the Bar and it received repeated echo from Sri Subhashan Reddy. He contends that similar films in regional languages like Malayalam, Tamil, Telugu, etc. with more obscenity and pornography have been certified by the Board for exhibition and the denial of certification to the petitioner offends Art. 14. I find no inkling of doubt to reject the contention outright. Undoubtedly the Constitution assures to every citizen right to avocation, profession, trade, business as well as equality before law. It is equally paramount that everyone has a fundamental duty to obey the law, in other words, not to contravene or violate the law or commit an offence. He who abides by law alone is entitled to equal protection and the converse leads to grotesque results. Law affords no immunity to any person to contravene law and claim that he would be equally permitted to be escaped from punishment, liability or penalty for violation thereof merely because others happened to go scot free. Merely because the other films with more or equal obscenity and pornography have been certified for exhibition, it does not automatically entitle the producer of a film for certification u/s. 5A for exhibition. In Reg. v. Reiter (1954) 2 QB 16 it was held that it is no good defence to say that there are other portions in other books or articles which contain obscene matters as serious as or more serious than the offending article. Equally in In re D. Pandurangam , 1953 Cri LJ 763 10
: (AIR 1953 Madras 418) it was also held that whether a particular book is obscene (or not) is a question of fact and mere fact that there is no prosecution of publishers of similar books cannot mean that the instant book does not fall within the scope of Sec. 292 IPC. Thus, I hold that the mere grant of certification to other films which have more or similar obscene or pornographic scenes or events or sequences does not automatically entitle a producer like petitioner of a motion picture to a certification u/s. 5A. It is the particular film that needs certification alone has to be viewed and if it is found to be in conformity with law then alone it is entitled to a certification u-/s. 5A. The petitioner is not entitled to avail the protection of Art. 14 on this ground if it is found to have violated the law.
This extract is taken from B. Adarsh v. Union of India , 1989 SCC OnLine AP 154 : AIR 1990 AP 100 : (1989) 2 AP LJ (SN) 79 : (1990) 2 An WR 34 at page 115.
34. Thus considered, I hold that the Examining Committee is well justified in recommending to grant ‘A’ Certificate to the film “Sex Vigyan” of the petitioner with cut portions already deleted and some of the portions to be cut which were suggested by the Examining Committee and upheld during the course of judgment. The petitioner shall accordingly make suitable alterations and submit the film afresh to the Examining Committee for certification in the light of the law laid down above and the Board shall accordingly grant the certificate. 35. Before parting with the case, I express my deep appreciation to Prof. Dr. Anjaneyulu for his valuable assistance rendered to this Court.
36. The writ petition is accordingly allowed, but in the circumstances without costs.
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Lankan Tamils and to eschew violence against them. An application was preferred before the CBFC on 06 for certification of the film under the provisions of the Cinematograph Act, 1952, (hereinafter referred to as the ‘Act’). The Examination Committee of the CBFC viewed the film on 11 and it appears that the Regional Officer had informed the petitioner that there are objectionable materials in the film and she will not permit the film to be certified. The matter was thereafter placed before the Revising Committee, which viewed the film on 22, after which the impugned order dated 25, was passed, refusing certification. The reasons for refusing certification as stated in the impugned order is that the film criticise the Indian country and Sri Lankan Army and justifies Tamil Eelam by LTTE, a banned outfit; the film shows brutal gang rape, killing of LTTE Journalist Ms. Isai Priya and it contains too much of violence; the film is based on incidents of a LTTE Journalist; the map shows a separated Tamil Eelam by LTTE and the last two reels deal with brutal inhuman killing and rape. Thus, the CBFC concluded that the film violates various clauses of the Guidelines for Certification of Films for Public Exhibition namely, clauses (2) (xvi)-friendly relationship with foreign states are not strained, 2(ix)-scenes degrading or denigrating women in any manner are not presented; 2(x)-scenes involving sexual violence against Women like attempt to rape, rape or any form of molestation of scenes of a similar nature and 2(xi) scenes showing sexual perversions. On appeal to the Tribunal (FCAT) under Section 5C of the Act, the film was viewed on 23 and the petitioner was given an opportunity to putforth his submissions and he is stated to have agreed to certain cuts and also to mute certain dialogues, after which, once again the film was viewed on 06 and the FCAT rejected the appeal by order dated 31, holding that the film which depicts the freedom struggle for an independent Tamil Eelam by LTTE, terrorist outfit banned by 30 countries in the world, is still replete with terrorism, violence, sexual perversions and degradation of women, which reflect adversely of the Sri Lankan Administration and Army and is therefore, likely to affect the friendly relations of India with Sri Lanka, apart from violating the guidelines mentioned in the order of the Revising Committee. The order passed by the CBFC as confirmed by the FCAT are impugned in this Writ Petition.
This extract is taken from K. Ganeshan v. Film Certification Appellate Tribunal , 2016 SCC OnLine Mad 9355 : (2016) 4 LW 961 : (2016) 6 CTC 1 at page 966.
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2. The respondents 3 and 4, sister and mother of Ms. Isai Priya, have filed C. No. 971 of 2015, in which the first plaintiff is the fourth respondent (mother), the second plaintiff is the third respondent (sister) and Writ Petitioner, the first defendant, the second defendant is the producer of the film and the third defendant is CBFC. The suit is for grant of a decree of permanent injunction restraining the defendants 1 and 2 (Writ Petitioner and Producer) from releasing, publishing, exhibiting, publically or privately, selling, promoting or advertising or entering into the film festivals or in any manner producing in any format film, drama, serial or any other literary or artistic expression in respect of the life of Sobha @ Isai Priya and/or her family members, their direct descendants without the consent of the plaintiffs. The plaintiffs have sought for an interlocutory relief in O. No. 1306 of 2015, for a grant of interim injunction to restrain the Writ Petitioner and the Producer from releasing, publishing, etc., the life of Sobha @ Isai Priya and/or her family members, their descendants without the consent of the plaintiffs. In this order, the respondents 3 and 4 in the Writ Petition shall be referred to as the plaintiffs.
This extract is taken from K. Ganeshan v. Film Certification Appellate Tribunal , 2016 SCC OnLine Mad 9355 : (2016) 4 LW 961 : (2016) 6 CTC 1 at page 975.
30. A note of caution was added by the Hon'ble Supreme Court stating that it has been almost universally recognised that treatment of motion pictures must be different from that of other forms of art and expression. For the reason that the art of the cameraman, with trick photography three dimensional representation has made the cinema picture more true to life than even the theatre or indeed any other form of representative art. The motion picture is able to stir up emotions more deeply than any other product of art. Its effect particularly on children and adolescents is very great, since their immaturity makes them more willingly suspend their disbelief than mature men and women. They also remember the action in the picture and try to emulate or/imitate what they have seen. Therefore, it was held that classification of films into two categories of ‘U’ films and ‘A’ films is a reasonable classification. Explaining as to why a motion picture must be regarded differently, the Hon'ble Supreme Court made a following observations:—
22.... It is also for this reason that motion pictures must be regarded differently from other forms of speech and expression. A person reading a book or other writing or hearing 14
(Before P. Jaganmohan Reddy, J)
This extract is taken from Chandra Kant Kalyandas Kakodkar v. State of Maharashtra and Ors, 1970 AIR 1390, 1970 SCR (2) 80. At page 281
1. The appellant is the author of a short story entitled Shama published in the 1962 Diwali Issue of Rambha, a monthly Marathi Magazine, which story is said to be obscene. Criminal proceedings were, therefore, initiated before the first class Magistrate, Poona by the complainant Bhide under s. 292 I. against the Printer and Publisher accused 1, the writer of the story accused 2 and the selling agent accused 3. The complainant stated that he had read the aforesaid Diwali issue of Rambha and found many articles and pictures in it to be obscene which are calculated to corrupt and deprave the minds of the readers in general and the young readers in particular. The Complainant further relented to several other articles in the same issue such as the story of Savitri and certain cartoons but we are not now concerned with these because both the Magistrate as well the High Court did not think that they offended the provisions of s. 292 I. the magistrate after an exhaustive consideration did not find the accused guilty of the offence with which they were charged and, therefore, acquitted them. The complainant and the State filed appeals against this judgment of acquittal. Before the High Court it was conceded that there was no evidence that accused No. 3 had sold any copies of the issues of Rambha and accordingly the order of acquittal in his favour was confirmed. In so far as the other two accused are concerned it reversed the order of acquittal and convicted the printer and publisher accused 1 and the writer accused 2 under s. 292 I. but taking into consideration the degree of obscenity in the passages complained of a fine Rs. 25/- only was imposed on each of the accused and in default they were directed to suffer simple imprisonment for a week. It was also directed that copies of the magazine Rambha in which the offending story was published and which may be in possession and power of the two accused be destroyed.
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2. The allegation, against the accused is that certain passages in the story of Shama at pp. 111-112, 114, 116, 118-121, 127, 128, 131, and 134 are said to be obscene. In support of this the complainant examined himself and led the evidence of Dr. P. Sahstrabudhe and Dr. G. Purohit in support of his allegation that the novel is obscene and that the writer and publisher contravened the provisions of s. 292 I. Accused No. 1 stated that the story of Shama was written by an ;able writer which depicted the frustration in the life of a poet and denied that it was obscene. The writer Kakodar, accused No. 2 claims to have written about 60 such stories. which are published in different periodicals by reputed publishers. He also denies that Shama is obscene and states that he has introduced certain characters in order to condemn the worst and glorify the best and it was never his intention to titillate the sex feelings of the readers, but on the other hand his attempt was to achieve the literary and artistic standard which was in keeping with the style of some of the able and successful writers of Marathi literature. In support of his defence, he examined Shri Keluskar and Prof. Madho Manohar D. 1 and 2 respectively. The Court on its own summoned and examined Prof. N. Phadke and Acharya P. Atre. Both the magistrate as well as the learned Judge of the High Court were conversant with Marathi and they seem to have read the story of Shama in the original, an advantage which we have not got. However, on a consideration of the offending passages in the story to which we shall refer presently, they came to different and opposite conclusions. It is apparent that the question whether a particular article or story or book is obscene or not does not altogether depend on oral evidence because it is the duty of the court to ascertain whether the book or story or any passage or passages therein offend the provisions of s. 292.
This extract is taken from Chandra Kant Kalyandas Kakodkar v. State of Maharashtra and Ors, 1970 AIR 1390, 1970 SCR (2) 80. At page 305
27. The concept of obscenity would differ from country to country depending on the standards of morals of contemporary society. What is considered as a piece of literature in France may be obscene in England and what is considered in both countries as not harmful to public order and morals may be obscene in our country. But to insist that the standard should always be/or the writer to see that the adolescent ought not to be brought into contact with
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This extract is taken from Aveek Sarkar v. State of W. , (2014) 4 SCC 257 : (2014) 2 SCC (Cri) 291 : 2014 SCC OnLine SC 98 at page 261.
Subrata Talukdar, J. — A German magazine by name Stern having worldwide circulation published an article with a picture of Boris Becker, a world renowned tennis player, posing nude with his dark-skinned fiancée by name Barbara Feltus, a film actress, which was photographed by none other than her father. The article states that, in an interview, both Boris Becker and Barbara Feltus spoke freely about their engagement, their lives and future plans and the message they wanted to convey to the people at large, for posing to such a photograph. The article picturises Boris Becker as a strident protester of the pernicious practice of “Apartheid”. Further, it was stated that the purpose of the photograph was also to signify that love champions over hatred.
2. Sports World , a widely circulated magazine published in India reproduced the article and the photograph as cover story in its Issue 15 dated 5-5-1993 with the caption:
“Posing nude, dropping out of tournaments, battling racism in Germany. Boris Becker explains his recent approach to life”— Boris Becker Unmasked. 3. Anandabazar Patrika , a newspaper having wide circulation in Kolkata, also published in the second page of the newspaper the abovementioned photograph as well as the article on 6-5-1993, as appeared in Sports World.
This extract is taken from Aveek Sarkar v. State of W. , (2014) 4 SCC 257 : (2014) 2 SCC (Cri) 291 : 2014 SCC OnLine SC 98 at page 267.
Community standard test
23. We are also of the view that Hicklin test [ R. v. Hicklin , (1868) LR 3 QB 360] is not the correct test to be applied to determine “what is obscenity”. Section 292 of the Penal Code, of course, uses the expression “lascivious and prurient interests” or its effect. Later, it has also been indicated in the said section of the applicability of the effect and the necessity of taking the items as a whole and on that foundation where such items would tend to deprave and corrupt persons who are likely, having regard to all the relevant circumstances, to read, see or hear the matter contained or embodied in it. We have, therefore, to apply the “community standard test” rather than the “ Hicklin test ” [ R. v. Hicklin , (1868) LR 3 QB 360] to determine what is “obscenity”. A bare reading of sub-section (1) of Section 292, makes clear that a picture or article shall be deemed to be obscene 19
( 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.
Once the matter is found to be obscene, the question may arise as to whether the impugned matter falls within any of the exceptions contained in the section. A picture of a nude/semi- nude woman, as such, cannot per se be called obscene unless it has the tendency to arouse the feeling of or revealing an overt sexual desire. The picture should be suggestive of deprave mind and designed to excite sexual passion in persons who are likely to see it, which will depend on the particular posture and the background in which the nude/semi-nude woman is depicted. Only those sex-related materials which have a tendency of “exciting lustful thoughts” can be held to be obscene, but the obscenity has to be judged from the point of view of an average person, by applying contemporary community standards.
This extract is taken from Aveek Sarkar v. State of W. , (2014) 4 SCC 257 : (2014) 2 SCC (Cri) 291 : 2014 SCC OnLine SC 98 at page 270. 29. We have found that no offence has been committed under Section 292 IPC and then the question whether it falls in the first part of Section 79 IPC has become academic. We are sorry to note that the learned Magistrate, without proper application of mind or appreciation of background in which the photograph has been shown, proposed to initiate prosecution proceedings against the appellants. The learned Magistrate should have exercised his wisdom on the basis of judicial precedents in the event of which he would not have ordered the appellants to face the trial. The High Court, in our view, should have exercised powers under Section 482 CrPC to secure the ends of justice.
30. We are, therefore, inclined to allow this appeal and set aside the criminal proceedings initiated against the appellants. The appeal is allowed as above.
Delhi Jal Board v. Raj Kumar and Ors, 2005 SCC OnLine Del 1140.
(Before Markandeya Katju, C and Madan B. Lokur, J)
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Compendium of moot competition
Course: Constitutional Law I ( SOL/LL.B./C-01 )
University: Gulu University
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