Human Rights Supreme Court of India

“I know it, when I see it” – The limits of the law in finding illegality in obscenity

AparGupta_freedomofspeechThe recent legal prosecution of AIB, a stand-up comics collective, has thrown open the debate on obscenity standards. In its show, AIB used cuss words and made express sexual innuendos. It was plainly visible that they were challenging, even if unwittingly, not only the conventional social mores but also the thresholds of obscenity law. Many see their prosecution as unfair and unequitable and evidence of greater intolerance in Indian society. Many have also questioned the law that formed the basis for the prosecution. It has been described as vague, indeterminate, and providing a ground for complaint to the least tolerant.

This is properly a debate on the legal standards used to determine obscenity. As opposed to a debate on the necessity of the offence of obscenity itself. This article focusses on examining arguments for greater certainty in the legal tests for determining obscenity and seeks to build towards a more ambitious proposal, that legal tests and criteria cannot define obscenity to any reasonable certainty. Its moral desirability, even in the face of such subjectivity, is of course a choice left for the legislature.

The Hicklin test

The legal standards governing obscenity arise from the case of Ranjit Udeshi v. State of Maharashtra where the Supreme Court of India interpreted Section 292 of the Indian Penal Code, 1860. Though Section 292 only criminalises printed materials, its definition of obscenity is utilised in other criminal provisions such as Section 294, which criminalises obscene speech and songs. In Ranjit Udeshi, a five-judge bench of the Supreme Court of India adopted the Hicklin Test laid down in the case of Regina v. Hicklin by Justice Cockburn.

D.H. Lawrence's classic novel, the subject of controversy in Ranjit Udeshi's case.

D.H. Lawrence’s classic novel, the subject of controversy in Ranjit Udeshi’s case.

The test relies on gauging the content with respect to its tendency to deprave or corrupt. This depravity is reasoned to result from the content evoking or opening a person’s mind to any eroticism or sexual arousal. Finally, the test is not gauged from the perspective of an adult, but those minds which are open to such “immoral” influences. In a sense, its objective remains the infantilising of an adult mind. Our Supreme Court, while adopting this test, made slight modifications indicating that, “community standards” have an important bearing in adjudicating the legality of content as well. The case acknowledged that such obscenity can be part of a longer movie or song, but it had to, “remain in the shadows”. It is not without reason that old Bollywood movies contain visual innuendos, of a shaking bush or a rocking bed to represent love making.

The test by itself, on its very face, seems vague and incomprehensible and this seemed to be within the contemplation of the judges as well. They wrote in the decision itself that the “court must, therefore, apply itself to consider each work at a time.” In a sense, this revolts against the necessity of giving adequate notice to authors and artists.

This subjectivity became visible when the Supreme Court, in the case of C.K. Kakodar v. State of Maharashtra, applied the Hicklin Test. To gauge the obscenity in a story, it examined the theme of the story, the main protagonists, and the “artistic merit” in it. Explaining its approach, the Court stated that its duty was to “ascertain whether the book or story or any passage or passages offend the provisions of S. 292”. This implicitly recognises that it requires highly trained judicial minds which seek to balance competing interests to gauge whether a work is not obscene, and has, “artistic merit”. Again disposing of the petition and holding in favour of the author, the Court made reference to the contemporary morals of Indian society, which it also noticed, were “fast changing”. A convenient result therefore, backed by unfortunate reasoning.

Limiting the Hicklin test

It is not as if the criticisms of such an ad-hoc and content-by-content approach were not felt by the Court. In the same year as the Kakodar case, the Supreme Court made express reference to Udeshi’s case, when called to adjudge the legality of the pre-censorship of movies. The petitioners in K.A. Abbas v. Union of India argued that the mandatory certification necessary to any prior exhibition by the Cinematograph Act was unconstitutional as a prior-restraint. The Court, while holding the Act constitutional, laid down some guidelines that in its view, afforded reasonable safeguards. In its penultimate paragraph however, it contained some criticism that indicated a small but significant realisation that the law by and large contained vague obscenity standards. Its prescription revolted against any liberal conception of censorship, stating that Parliament should legislate more, as if to clinically separate the obscene from the moral. As we go along, we will discover the limits of law and of judicial eloquence to regulate the arts.


After an interregnum of about five years, the Supreme Court, in Samaresh Bose v. Amal Mitra, again faced its precedent and marked a significant departure from it by seeking to limit the applicability of the Hicklin test. Rather, it sought to make community standards the overreaching or controlling criteria to gauge obscenity. The Court in its inquiry, first focussed on certain prongs devised under a community standards grouping and only after this, did it proceeded to a pure analysis of obscenity under Section 292 and the Hicklin test. This was achieved by the Court stating that in order to determine the offence of obscenity, the judge should first place themselves in the position of the author to gauge the literary and artistic merit and thereafter place themselves in the position of a reader of every age group, not only children and those open to influences. Only after this should the inquiry on the Hicklin test proceed. This test or the tiered approach to gauge illegality appears persuasive, however again, in practice, requires subjective, content-by-content determinations.

bandit-queen-movie-poster-1994Even though the test in Samaresh Bose has not been followed, courts have evenly sought to apply its variations to gauge the artistic merit in a work while determining obscenity. In Bobby Art International, Etc v. Om Pal Singh Hoon, the Supreme Court, while adjudicating the appropriateness of the movie Bandit Queen being given a Central Board of Film Certification (“Censor Board”) certificate with an “A” rating, exhaustively analysed the theme of the movie. The Court held that the objections of the Censor Board that the movie depicted social evils could not be sustained as it was unavoidable in a movie which showed the consequent harm caused by it. Further, in Director General, Directorate v. Anand Patwardhan, the Supreme Court directed Doordarshan to screen the respondent’s documentary Father, son and Holy War and in doing so, sought to expressly apply “community standards” while not expressly overruling the Hicklin test.

The resultant confusion in standards which may be applied to obscenity is evident from the Supreme Court’s reasoning in Ajay Goswami v. Union of India. These tests, which are chronologically listed, are prefaced in the judgement as “broad principles”. Not only are these principles broad, but their girth seems to have increased with time. Though the judgement in terms of legal articulation correctly notices past precedent, it also makes it evident that India, for a long period of time, had several legal standards to gauge obscenity, permitting subjectivity and preventing adequate notice of illegality to artists and authors.

Express adoption of community standards

This position in law seems to have undergone a dramatic change last year, with the Supreme Court ruling in Aveek Sarkar v. State of West Bengal. The ruling expressly discards the Hicklin test, stating that it is not good law. In its place, it adopts the more liberally oriented “community standards” test. However, the manner in which the Court applies the community standards test itself gives cause for concern. If one reads the judgement, the Court again examines the content in question and the social merit in the publication. Again, the result may be liberal, but the reasoning itself may only be a modest improvement on the Hicklin Test.

This is not to say that the express adoption of the community standards test in the Aveek Sarkar case is not cause for hope, however its promise is limited. While it does signify an express statement from the Supreme Court recognising the need for the greater liberty of artists and authors, it maintains the necessity for “artistic merit” or social need. The application of the community standards test can also be criticised on several other grounds but the major criticism is that it again permits subjectivity and a value-driven assessment by our higher judiciary.

Again, it needs to be emphasised that the High Court of Delhi has in two recent cases, by the application of Aveek Sarkar, refused to prohibit the exhibition of movies with Censor Board certificates. In both instances however, the Court gave substantial credence to the legality of the movies on the basis of the certificate for exhibition issued by the Censor Board. In the first case, Nandini Tewari and Another v. Union of India, the Court was asked to prohibit the exhibition of the movie Finding Fanny due to the name of the movie itself. The Court examined the term “fanny” as well as the term as it appeared in the dialogues of other movies in the past. It not only applied the Aveek Sarkar case but even earlier precedent to implicitly form a “community interest” and an “anticipated danger” test.

In the second case, Ajay Gautam v. Union of India, the High Court examined the contents of the movie PK, which the petitioner complained, mocked the Hindu religion and hence should be prohibited from exhibition. The Court again substantively appreciated the movie in question, heavily relying on the prior existence of a Censor Board certificate, and the nature of the movie, that is, a parody. Though the case is not per se concerned with obscenity, precedent on obscenity is bundled with larger free speech jurisprudence including the, “clear and present danger” test.

The limits of law

A review of legal precedent suggests that both the Hicklin test and the community standards test are not only fallible in some isolated instances but by their very nature permit subjectivity and value-based assessments. It has been my firm belief that any moral harm that is supposed to originate from movies, songs, paintings, or any other form of creative art is illusory. This moral harm is at the core of any justification for the offence of obscenity. Even if such an outlook is not shared by others, it is evident that obscenity to a large degree is a vague concept which will rely on a case-by-case determination, dependent on the facts of each case, in which a judicially trained mind (as opposed to an artistically inclined one) will examine the artistic merits and the potential illegality.

Though Indian case law to a large degree has drawn inspiration from the First Amendment precedent of the United States Supreme Court, it has failed to notice the dissent of Justice Brennan in Paris Adult Theatre I v. Slaton. Justice Brennan’s eloquence lays evident the limits of law, as it seeks to balance any purported moral harm with the liberty of artists. To end it is quoted below:

“Of course, the vagueness problem would be largely of our own creation if it stemmed primarily from our [p84] failure to reach a consensus on any one standard. But, after 16 years of experimentation and debate, I am reluctantly forced to the conclusion that none of the available formulas, including the one announced today, can reduce the vagueness to a tolerable level while at the same time striking an acceptable balance between the protections of the First and Fourteenth Amendments, on the one hand, and, on the other, the asserted state interest in regulating the dissemination of certain sexually oriented materials. Any effort to draw a constitutionally acceptable boundary on state power must resort to such indefinite concepts as “prurient interest,” “patent offensiveness,” “serious literary value,” and the like. The meaning of these concepts necessarily varies with the experience, outlook, and even idiosyncrasies of the person defining them. Although we have assumed that obscenity does exist and that we “know it when [we] see it,” Jacobellis v. Ohio, supra, at 197 (STEWART, J., concurring), we are manifestly unable to describe it in advance except by reference to concepts so elusive that they fail to distinguish clearly between protected and unprotected speech.”

(Apar Gupta is a partner at Advani & Co., and was recently named by Forbes India in its list of thirty Indians under thirty years of age for his work in media and technology law.)

Human Rights

Censors between the book-ends: A tragic age for book censorship

AparGupta_freedomofspeechThere was a sense of prophecy when D.H. Lawrence penned the first line to Lady Chatterley’s Lover, his novel about how, impervious to how it often ends in loss, we continue to seek romance. The words, “[o]urs is essentially a tragic age, so we refuse to take it tragically”, had a wider prescription. Little did Lawrence know that his book would inspire in India, the nebulous legal standards for obscenity that would become catastrophic for the liberty of authors, publishers, and readers.

In 1964, acting on the prosecution of a bookseller for obscenity under Section 292 of the Indian Penal Code, 1860 (“IPC”) for the sale of this book, a three-judge bench of the Supreme Court of India adopted the “Hicklin test”. The Court stated in Ranjit Udeshi v. State of Maharashtra that, “the tendency of the matter charged as obscene must be to deprave and corrupt those, whose minds are open to such immoral influences and into whose hands a publication of the sort may fall, so far followed in India, is the right test.” Even today, FIRs are filed against authors while courts continue to deliberate the fuzzy standards for obscenity. Moreover, for each word they write, authors have to negotiate several other content-based offences.

The process of banning a book

LadyChatterleysLoverEven though individual prosecutions for obscenity and other offences occur regularly, they do not, by themselves, result in the prohibition of the sale or distribution of a book. This power of forfeiture comes from Section 95 of the Code of Criminal Procedure, 1973 (“CrPC”), which allows a state government to prohibit a publication by a notification in the official gazette. In its the recent decision in State of Maharashtra v. S. Damodar, the Supreme Court, while overturning a ban on James Laine’s book on Shivaji, stated the ingredients of a valid notification prohibiting a publication.

The state government must first form an opinion that the matter constitutes an offence under one of Sections 124A (sedition), 153A (communalism), 153B (insults to religions), 292 (obscenity), or 295A (outraging religious feelings) of the IPC. Secondly, such an opinion should be published in the official gazette. Importantly, a police officer’s power under this process is not limited to the territorial limits of any state in which the ban has been issued. With the power to confiscate and prosecute publications made available throughout India therefore, even when a book banning notification is issued in Maharashtra, it is often pulled from sale from online bookstores and bookstores in other states.

A statutory opportunity to contest such a ban is provided in Section 96 of the CrPC itself. It allows appeals to the High Court of the state in which the notification for banning has been issued. Further, this right of appeal is not limited to the author or the publisher. Any other person may sue as well. Section 96 therefore, is one of the few provisions of law, which expressly recognises the right to read and the public injury from a ban. It is interesting to note that this provision in its original form can be traced to the Code of Criminal Procedure, 1889 and so ideologically, does not sprout from our constitutional jurisprudence.

TheSatanicVerses_SalmanRushdieSince such a power to ban a publication is available only to the state government, the Union Government has made inventive use of the Customs Act, 1952 (“Customs Act”), most glaringly to prohibit the import of Salman Rushdie’s The Satanic Verses through a notification dated October 5, 1988 under Section 11 of the Customs Act. Rushdie is not alone. Many books on Kashmir and critical accounts of the assassination of Mahatma Gandhi and the Sino-Indian War remain banned by customs authorities.

Private censorship

Though censorship of books by the state in the manner described above has decreased in frequency over the past few years, a worrying trend has emerged in which private persons have successfully caused the censorship of many books. Such censorship, either through a private compromise with the publisher or through a court injunction that is issued before the case is heard on evidence, is mostly a result of allegations of defamation. Defamation exists independently as a criminal offence and as a civil wrong.

Section 499 of the IPC defines the offence of defamation. People found guilty can be sentenced to imprisonment for up to two years. The civil wrong is based on common law and is derived from the judgments of courts and plaintiffs usually seek damages and a perpetual injunction against the defendant from publishing or distributing the work. In practice however, due to delays, criminal trials are itself a process in harassment for authors and publishers and civil suits are compromised after interim injunctions are liberally issued.

WendyDoninger_TheHindu_TheDescentofAirIndia_BhargavaThe most visible instance of a criminal trial resulting in a compromise for pulping a book is the case of Wendy Doniger’s The Hindus. The book was withdrawn pursuant to a compromise between its publisher Penguin and Dinanath Batra, a former general secretary of the education wing of the Rashtriya Swayamsevak Sangh, who had instituted a complaint case under various offences against them. The author’s public statement to quell the criticism faced by the publisher blamed substantive offences in Indian law, specifically Section 295A of the IPC. Another recent instance is that of Bloomsbury withdrawing Jitender Bhargava’s The Descent of Air India under the terms of the settlement of the criminal defamation case instituted in a Mumbai court by Praful Patel, the former Union Minister for Civil Aviation.

The position with respect to civil suits is not much better. It took five years for Kushwant Singh to have an interim inunction lifted from the Delhi High Court for a chapter he wrote about Maneka Gandhi which she alleged, was defamatory. Setting aside the interim injunction, the High Court rebuked the Single Judge’s order stating that its observations about the “high thinking, higher living and high learning of the author are TheBeautifulAndTheDamned_Deb_SaharaTheUntoldStory_Tamalsubjective moralistic observations.” Other recent court injunctions include ones issued by a district court in Silchar against a chapter in Siddharth Deb’s, The Beautiful and the Damned and against Tamal Bandyopadhyay’s Sahara: The Untold Story. One senses a pattern where it is easier to get an interim injunction and then coerce the author to drop a passage than for the author to appeal the injunction, persevere, and then publish the book in its entirety.

More often, one finds that even before a case is filed through the device of a legal notice to the publisher quoting exaggerated and anticipated damages, private parties successfully prevent publications. A recent attempt at this was made by Reliance Industries who sent a legal notice claiming a hundred crore rupees as damages from the author of Gas Wars, Paranjoy Thakurta. Distressingly, such bullying often finds success. Quite recently, Orient Blackswan withdrew Megha Kumar’s Communalism and Sexual Violence: CommunalismSexualViolence_GasWars_PrananjoyGuhaThakurtaAhmedabad Since 1969 following a legal notice sent by Dinanath Batra against another book in its catalogue! Following the receipt of the notice, the publisher commenced a review of its entire catalog, resulting in the withdrawal. Many blame the publishers, but most blame the laws which allow such offence. Though experienced litigators often term such actions as an abuse of law, many would ask, if the law permits such abuse, isn’t the law by itself abusive?

Liberalism through judgments?

In this raging debate, a popular opinion is that the higher judiciary has imparted a liberal reading of the law in favor of authors. This impression is only grounded in rhetoric for several reasons. Quite obviously, most authors and publishers have to wait for years and exhaust the process of appeals before they can approach the higher courts. Any such remedy therefore is an illusory one. Even when writ remedies or an accelerated appeals process is availed of, the approach of the High Courts and the Supreme Court has generally been conservative.

Most often, the higher judiciary examines irregularities either in the criminal procedure or in the banning notification alone. It helps that complainants do not reason the ingredients of the offence complained of and that banning notifications are passed without stating any grounds for the opinion. The examination does not go deeper and the higher courts generally prefer to remand the case for a trial by evidence or defer to the opinion of the state government. Even when such a process-based scrutiny is applied, courts do not hesitate to become censors by themselves.

Legal Research AdvertisementTwo of the latest book banning cases from the Supreme Court illustrates this point. In State of Maharashtra v. S. Damodar, the Court only looked at the ingredients of the banning notification issued by the state government, which made reference to a FIR registered under Section 153A. Since the Court had previously quashed the FIR, it set aside the banning notification. Prior to doing this, in an oral hearing, the Court made a suggestion to delete the alleged offensive passages to enable the state government to lift the ban on the book.

The second instance is where the Supreme Court, in Sri Baragur Ramachandrappa v. State of Karnataka, upheld the notification banning Dharmakaarana, a Kannada novel by P.V. Narayana. In reaching its decision to uphold the banning notification, the Supreme Court cited additional “offensive” passages that were not cited in the banning notification. In a sense, it seemed that the Supreme Court was substituting its own reasons for the ban, going beyond the ones given by the state government. As with Damodar’s Case, the Court again asked the author to delete the offending passages.

Even otherwise, it remains beyond dispute that the underlying substantive law, in spite of attempts to limit its application by precedent, remains subjective. During such a subjective assessment, the content by itself is often examined, and the subjectivity in the law allows for tremendous discretion and inconsistency. A good illustration of this is the recent Supreme Court decision in Aveek Sarkar v. State of West Bengal, where a two-judge bench of the Supreme Court expressly stated that the Hicklin test is outdated and moved towards the more liberal “community standards test” as laid down by the United States Supreme Court in Miller v. California.

Though many would celebrate this shift in precedent, it should be greeted with cautious optimism. Since, the judgment in the Ranjit Udeshi Case was pronounced by a three-judge bench, the observations in Aveek Sarkar by a two-judge bench appear to be per incuriam. Secondly, there exists a vast gap between doctrinal liberalism and its practical application. For years at end, district courts will continue to apply the time honed Hicklin test. Finally, even substantively, the application in Aveek Sarkar is by a panel of judges who sit in the place of the jury and apply “community standards”. While this may often lead to outcomes that favour expression over censorship, it again inheres subjectivity in application. The purported high thresholds set by Aveek Sarkar, remain only in theory.

These cases demonstrate that the Supreme Court is often clumsy and lacks ideological consistency its free speech jurisprudence. In his personal essays explaining the motivations for the themes and styles that would offend many, D.H. Lawrence stated that he had set out to conquer taboos. In this, he failed in India. Sections of our society remain conservative and puritanical to the extent of being exclusionary against views that do not conform to their beliefs. Worse, the law allows their annoyance as an offence and their morality as legality. Close to a century since Lady Chatterley’s Lover was first written, we still remained tethered to Victorian virtues trapped in legal codes. It comes as some comfort that authors rarely care about law when they write, for they have “got to live, no matter how many skies have fallen”.

Apar Gupta is a partner at Advani & Co., and was recently named by Forbes India in its list of thirty Indians under thirty years of age for his work in media and technology law.