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Appeal: CRIMINAL APPEAL NO.1179 OF 2010

Petitioner: Devidas Ramachandra Tuljapurkar

Respondent: State of Maharashtra and Ors. .

Judges: Dipak Misra , Prafulla C. Pant

Date of Judgment: May 14, 2015

JUDGEMENT:

CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1179 OF 2010
Devidas Ramachandra Tuljapurkar … Appellant
Versus
State of Maharashtra & Ors. …Respondents
J U D G M E N T
Dipak Misra, J.
The Controversy The seminal issue that spiralled in the course of hearing of this appeal centres around the question framed vide order dated 18.2.2015, for this Court thought it apposite to answer, whether the poem titled “Gandhi Mala Bhetala” (‘I met Gandhi’) in the magazine named the ‘Bulletin’ which was published, in July-August, 1994 issue, meant for private circulation amongst the members of All India Bank Association Union, could in the ultimate eventuate give rise to framing of charge under Section 292 IPC against the author, the publisher and the printer. The question framed reads thus:- “Regard being had to the importance of the matter, we had sought the assistance of Mr. Fali S. Nariman, learned senior counsel, to assist the Court, and he has gladly rendered. At the time of hearing, we have asked the learned senior counsel, learned Amicus Curiae, to assist the Court as regards the proposition whether in a write-up or a poem, keeping in view the concept and conception of poetic license and the liberty of perception and expression, use the name of a historically respected personality by way of allusion or symbol is permissible.”
Mr. Gopal Subramanium, learned senior counsel, appearing for the appellant, in his written note of submissions, has segregated the said question into five parts, namely, (a) whether there could be a reference to a historically respected personality; (b) could that reference be by way of allusion or symbol; (c) could that allusion be resorted to in a write-up or a poem; (d) whether the conception and concept of poetic license permits adopting an allusion; and (e) whether any of the above could involve ascribing words or acts to a historically reputed personality which could appear obscene to a reader. He has urged with solemn vehemence that when the author is not represented before the Court, adjudication on an important issue which fundamentally relates to freedom of thought and expression, would be inappropriate and a poem or a write-up is indeed a part of free speech and expression, as perceived under Article 19(1)(a) of the Constitution and that apart the expression “poetic licence” is neither a concept nor a conception because the idea of a poetic freedom is a guaranteed and an enforceable fundamental right and this Court should not detract and convert it into a permissive licence. Additionally, learned senior counsel has contended that quintessential liberty of perception and expression when placed in juxtaposition with “poetic licence”, is inapposite since the expression “permissible” sounds a discordant note with “liberty of perception and expression”, a sacrosanct fundamental right, integral to human dignity, thought, feeling, behaviour, expression and all jural concepts of human freedom guaranteed not only under the Constitution but even recognised under the International Covenants, for they can never be placed in the company or association of expressions such as “license” or “permissibility”. Emphasising on the said facet, submitted Mr. Subramanium that the Constitution has liberated the citizens from ‘license’ and ‘permissibility’, which are expressions of disempowerment and the entire freedom struggle was centered around the concept of empowerment. There is a suggestion in the written note of submissions to place the matter before a Bench of five Judges as enshrined under Article 145(3) of the Constitution. In spite of the said submission, learned senior counsel, we must appreciably state, has copiously dealt with the issues that have emerged from the question, in his written note of submissions. Mr. Fali S. Nariman, learned senior counsel and amicus curiae supported the phraseology in the question with immense intellectual vigour, patience, perseverance and endeavour and submitted that the issue that this Court has thought of addressing is absolutely invulnerable and unalterable as the Constitution of India does not recognise absolute freedom and Article 19(2) of the Constitution regulates the same and Section 292 IPC being a provision which is saved by Article 19(2), the presence or absence of the author is immaterial; what is to be seen is whether the poem prima facie exhibits obscenity, especially, in the context of Mahatma Gandhi, the “Father of the Nation”, as the identity of the historically respected personality is absolutely clear and there is no scintilla of doubt in the mind of any average reader. Learned amicus curiae would submit that the question deserves to be dealt with and answered in proper perspective.
Clarification of the question framed 2. We are obligated to clarify the position. It is apt to state here the question framed by us has to be contextually understood. The question was framed in the factual matrix of the case. The proposition presented is that despite all the poetic licence and liberty of perception and expression, whether ‘poem’ or ‘write-up’ can use the name of a historically respected personality by way of an allusion or symbol in an obscene manner. “Historically respected personality” was used in the backdrop of the use of the name of Mahatma Gandhi. When the name of such a respected personality is used as an allusion or symbol, and language is revoltingly suggestive whether that is likely to come within the perceived ambit and sweep of Section 292 IPC, whether it is permissible. We shall dwell upon this facet when we will discuss the poem in a prima facie manner, for the purpose of scrutinising the order framing charge; and we shall also deal with the submission of Mr. Subramanium, which has been assiduously put forth by him that the name of Gandhi has been used as a surrealistic voice and hence, the poet is entitled to use the language as a medium of expression in the poem. We do not intend to catalogue names of historically respected personalities as that is not an issue in this case. Here the case rests on the poem titled “I met Gandhi”. As far as the words “poetic license”, are concerned, it can never remotely mean a license as used or understood in the language of law. There is no authority who gives a license to a poet. These are words from the realm of literature. The poet assumes his own freedom which is allowed to him by the fundamental concept of poetry. He is free to depart from the reality; fly away from grammar; walk in glory by not following the systematic metres; coin words at his own will; use archaic words to convey thoughts or attribute meanings; hide ideas beyond myths which can be absolutely unrealistic; totally pave a path where neither rhyme nor rhythm prevail; can put serious ideas in satires, ifferisms, notorious repartees; take aid of analogies, metaphors, similes in his own style, compare like “life with sandwiches that is consumed everyday” or “life is like peeling of an onion”, or “society is like a stew”; define ideas that can balloon into the sky never to come down; cause violence to logic at his own fancy; escape to the sphere of figurative truism; get engrossed in “universal eye for resemblance”, and one can do nothing except writing a critical appreciation in his own manner and according to his understanding. When the poet says “I saw eternity yesterday night”, no reader would understand the term ‘eternity’ in its prosaic sense. The Hamletian question has many a layer; each is free to confer a meaning; be it traditional or modern or individualistic. No one can stop a dramatist or a poet or a writer to write freely expressing his thoughts and similarly none can stop the critics to give their comments whatever its worth. One may concentrate on classical facets and one may think at a metaphysical level or concentrate on romanticism as is understood in the poems of Keats, Byron or Shelley or one may dwell on the nature and write poems like William Wordsworth whose poems, say some, are as didactic. One may also venture to compose like Alexander Pope or Dryden or get into individual modernism like Ezra Pound, T.S. Eliot or Pablo Neruda. That is fundamentally what is meant by poetic license. 3. We may slightly delve into the area in Sanskrit literature that gave immense emphasis on aesthetics. The concept of rasa though mentioned in the Vedas and by Valmiki gets consummate expression in all its complexity with Bharata when he introduces it to explain aesthetic experience. “Vibhavanubhav vyabhichari sanyogadrasnishpati”. Bharata discusses in detail the contributing factors like vibhavas, anubhavas, vybhicharibhavas and sthayibhavas. Dandin emphasises on lucidity, sweetness, richness and grandeur to basically constitute poetry and that is why it is said “Dandinha Padlalityam”. Some critics like Vamana, stressing on soul of poetry perceive ‘riti’ as “Ritiraatma kavyasya”. Some also subscribe to the theory that ‘rasa’ gets expressed through dhvani. There are thinkers who compare writings of T.S. Eliot, when he states poetic delineation of sentiments and feelings, to have the potentiality of being associated with the ‘element of surprise’ which is essential to poetry, and there he is akin to Indian poeticians like Kuntaka who called poetry ‘vakrokti’ which he explains as “vaidagdhyabhangibhaniti” ““ a mode of expression depending on the peculiar turn given to it by the skill of the poet. Some emphasise on “best words used in best order” so that poem can attain style and elevation. To put it differently, the ‘poetic licence’ can have individual features, deviate from norm, may form collective characteristics or it may have a linguistic freedom wider than a syntax sentence compass. 4. We have emphasised on these facets as we are disposed to think that the manner in which the learned senior counsel has suggested the meaning of ‘poetic license’ is not apt. Freedom of writing is not in question. That cannot be. And we say so without any fear of contradiction. 5. In course of our judgment, we shall deal with the other facets that have been so assiduously put forth by Mr. Subramanium and so indefatigably controverted by Mr. Fali S. Nariman, learned amicus curiae. The factual score 6. As far as the suggestion given for placing the matter before a five- Judge Bench, we are of the considered view that there is no need for the same. 7. Presently, we shall state the exposition of facts. On the basis of a complaint lodged by one V.V. Anaskar, a resident of Pune, and a member of ‘Patit Pawan Sangthan’, with the Commissioner of Police, relating to the publication of the poem, which was published, in July-August, 1994, meant for private circulation amongst the members of All India Bank Association Union, a crime was registered as FIR No. 7/95 at P.S. Gandhi Chowk, Latur, on being transferred from Pune, for the offences punishable under Sections 153-A and 153-B read with Section 34, IPC and eventually after due investigation charge sheet was filed for the said offences along with 292, IPC against the present appellant, the publisher and the printer, respondent no.3, of the Bulletin and the author, one Vasant Dattatraya Gujar. When the matter was pending before the Chief Judicial Magistrate, Latur, all the accused persons filed an application for discharge and the learned Magistrate by order dated 4.5.2001 held that no case for the offences under Sections 153-A and 153-B was made out and accordingly discharged them of the said offences but declined to do so in respect of the offence under Section 292, IPC. On a revision being filed, the learned Additional Sessions Judge did not think it appropriate to interfere with the order passed by the trial Magistrate which constrained the accused persons to invoke jurisdiction under Section 482 of the CrPC and the High Court of Bombay, Aurangabad Bench dismissed the application. The said decision is the subject of matter of this appeal by special leave at the instance of the publisher. The author has chosen not to assail the order passed by the High Court.
Concept of obscenity 8. Apart from submitting that the orders passed by all the Courts are absolutely perverse and deserve to be lancinated, it is submitted by Mr. Subramanium, learned senior counsel that to appreciate the question framed by this Court, despite his reservation on the legal score as regards its phraseology, the meaning of the term “obscenity” has to be appositely understood. He has referred to the Black’s Law Dictionary that defines obscenity as follows:- “Obscene, adj. (16c) – Extremely offensive under contemporary community standards of morality and decency; grossly repugnant to the generally accepted notions of what is appropriate. Under the Supreme Court’s three- part test, material is legally obscene – and therefore not protected under the First Amendment – if, taken as a whole, the material (1) appeals to the prurient interest in sex, as determined by the average person applying contemporary community standards; (2) portrays sexual conduct, as specifically defined by the applicable state law, in a patently offensive way; and (3) lacks serious literary, artistic, political, or scientific value. Miller v. Callifornia, 413 U.S. 15, 93 S.Ct. 2607 (1973).
If there be no abstract definition, … should not the word ‘obscene’ be allowed to indicate the present critical point in the compromise between candor and shame at which the community may have arrived here and now?” United States V Kennerley, 209 F. 119, 121 (S.D.N.Y.1913) (per Hand.J.)”
9. The learned senior counsel has also referred to the decision of the Allahabad High Court in Kamla Kant Singh Vs. Chairman/ManagingDirector, Bennetta Colman and Company Ltd. and Ors.[1], wherein the High Court dealt with the meaning of the word ‘obscenity’. The delineation is as follows:-
“15. The word obscenity has been explained in ‘Jowitts’ Dictionary of English Law as follows:
“An article is deemed to be obscene, if its effect, or where the article comprises two or more distinct items, the effect of any one of its items if taken as a whole, is to tend to deprave and corrupt persons, who are likely having regard to all the relevant circumstances to read, to see or hear matters contained or embodied in it. (See R. v. Claytone and Hasley, (1963) 1 QB 163, R. v. Anderson, (1972) 1 QB 304)". Obscenity and depravity are not confined to sex. (See John Calder Publications v. Powell, (1965) 1 QB 509.)
16. According to Black’s Law Dictionary obscenity means character or quality of being obscene, conduct, tending to corrupt the public merely by its indecency or lewdness. According to Webster’s New International Dictionary, word ‘obscene’ means disgusting to the senses, usually because of some filthy grotesque or unnatural quality, grossly repugnant to the generally accepted notions of what is appropriate.”
10. The High Court of Madras in Public Prosecutor v. A.D. Sabapathy[2], has opined that the word “obscene” must be given its ordinary and literal meaning, that is, ‘repulsive’, ‘filthy’, ‘loathsome’, ‘indecent’ and ‘lewd’. The learned senior counsel has also referred to the judgment of Supreme Court of Canada in R. v. Beaver[3], wherein Maclaren, J.A., has defined ‘obscene’ as follows:- “The word ‘obscene’ was originally used to describe anything disgusting, repulsive, filthy or foul. The use of the word is now said to be somewhat archaic or poetic; and it is ordinarily restricted to something offensive to modesty or decency, or expressing or suggesting unchaste or lustful ideas, or being impure, indecent, or lewd."
11. After generally referring to the meaning of the term obscenity, learned senior counsel has emphasised on the tests adopted in various countries relating to obscenity. Mr. Subramanium has referred to various authorities of United Kingdom, United States of America, European Courts and this Court to pyramid the proposition that the tests laid down by legal system including the authorities of this Court do not suggest that that the instant poem can remotely be treated as obscene. First, we shall dwell upon the tests and standards laid by various Courts and then the binding authorities of this Court and thereafter to the concept of freedom of speech and expression on the constitutional parameters and finally delve to adjudge the facet of obscenity and address applicability of the determined test in the context of the question and ultimately the nature of the poem and the justifiability of the order impugned.
Test evolved in United Kingdom 12. As far as United Kingdom is concerned, Mr. Subramanium has referred to Regina v. Hicklin[4], the meaning given by Cockburn C.J. and drawn our attention to the Article by J.E. Hall Williams in Obscenity in Modern English Law[5] wherein the learned author observed that Hicklin (supra) gave a complete go by to the principle of “mens rea” which propounds a certain degree of protection to the accused. The learned author was critical on the concept of presumption as propounded in Hicklin (supra). In the said article, learned author referred to certain observations in R. v. Martin Secker & Warburg LD[6]. In the said case, Stable J. has stated “The test of obscenity to be applied today is extracted from a decision of 1868; it is this: “. Whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose mind are open to such immoral influences, and into whose hands a publication of this sort may fall.” Because this test was laid down in 1868, that does not mean that you have to consider whether this book is an obscene book by the standards of nearly a century ago. Your task is to decide whether you think that the tendency of the book is to deprave those whose minds today are open to such immoral influences and into whose hands the book may fall in this year, or last year when it was published in this country. Considering the curious change of approach from one age to another, it is not uninteresting to observe that in the course of the argument of the case in 1868 the rhetorical question was asked: “What can be more obscene than many pictures “publicly exhibited, as the Venus in the Dulwich Gallery?” There are some who think with reverence that man is fashioned in the image of God, and you know that babies are not born in this world, be they of either sex, dressed up in a frock-coat or an equivalent feminine garment.
We are not sitting here as judges of taste. We are not here to say whether we like a book of this kind. We are not here to say whether we think it would be a good thing if books like this were never written. You are here trying a criminal charge and in a criminal court you cannot find a verdict of “Guilty” against the accused unless, on the evidence that you have heard, you and each one of you are fully satisfied that the charge against the accused person has been proved.
Remember the charge is a charge that the tendency of the book is to corrupt and deprave. The charge is not that the tendency of the book is either to shock or to disgust. That is not a criminal offence. Then you say: “Well, corrupt or “deprave whom?” and again the test: those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall. What, exactly, does that mean? Are we to take our literary standards as being the level of something that is suitable for a fourteen- year-old school girl? Or do we go even further back than that, and are we to be reduced to the sort of books that one reads as a child in the nursery? The answer to that is: Of course not. A mass of literature, great literature, from many angles is wholly unsuitable for reading by the adolescent, but that does not mean that the publisher is guilty of a criminal offence for making those works available to the general public.”
In the ultimate eventuate, the learned Judge concluded, thus:- “I do not suppose there is a decent man or woman in this court who does not whole-heartedly believe that pornography, the filthy bawdy muck that is just filth for filth’s sake, ought to be stamped out and suppressed. Such books are not literature. They have got no message; they have got no inspiration; they have got no thought. They have got nothing. They are just filth and ought to be stamped out. But in our desire for a healthy society, if we drive the criminal law too far, further than it ought to go, is there not a risk that there will be a revolt, a demand for a change in the law, and that the pendulum may swing too far the other way and allow to creep in things that at the moment we can exclude and keep out?”
The aforesaid view of Stable, J. resulted in declaring the accused not guilty. 13. In England on July 29, 1959, the Obscene Publication Act, 1959 (for short, “the 1959 Act”) was enacted to amend the law relating to publication of obscene matters, provided for the protection of literature and to strengthen the law concerning pornography. Section 1(1) of the 1959 Act reads as follows:- “1. ““ (1) For the purposes of this Act an article shall be deemed to be obscene if its effect or (where the article comprises two or more distinct items) 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.”
14. Section 4 of the 1959 Act stipulates that a person accused of obscenity shall not be convicted if it is proved that the publication in question is justified for public good as it is in the interest of art, literature, science, etc. The said provision is as follows:- “4 (1) A person shall not be convicted of an offence against section two of this Act, and an order for forfeiture shall not be made under the foregoing section, if it is proved that publication of the article in question is justified as being for the public good on the ground that it is in the interests of science, literature, art or learning, or of other objects of general concern. (2) It is hereby declared that the opinion of experts as to the literary, artistic, scientific or other merits of an article may be admitted in any proceedings under this Act to establish or to negative the said ground.”
15. Mr. Subramanium, learned senior counsel has referred to R. v. Penguin Books Ltd.[7] where the Court was dealing with the publication of the book ‘Lady Chatterley’s Lover’ by the Penguin Books. The said case ended with “not guilty verdict” as a consequence of which the book was allowed to be openly published and was sold in England and Wales. 16. In R. v. Peacock[8], a verdict, an unreported one, rendered on January 6, 2011 by Southwark Crown Court, London, submitted Mr. Subramanium, has resulted in great upsurge in the demand for a review in the obscenity laws in England and Wales. In the said case, Michael Peacock, was charged on indictment with six counts under the 1959 Act for allegedly distributing the obscene DVDs that contained videos of homosexual sadomasochism and BDSM pornography. The accused in the said case successfully pleaded not guilty. The legal experts of England and Wales started opining that the 1959 Act had become redundant. 17. Relying on the aforesaid authorities, it is submitted by Mr. Subramanium, learned senior counsel appearing for the appellant that Hicklin test in its original has been abandoned in United Kingdom and the approach has been more liberal regard being had to the developments in the last and the present century. It is his submission that the perception of the Victorian era or for that matter, thereafter has gone through a sea- change in the last part of 20th century and in the first part of this century and the freedom of speech and expression has been put on a high pedestal in the modern democratic republic. It is urged by him that in the digital age, the writings and the visuals do no longer shock or deprave or corrupt any member of the society as the persons are capable enough to accept what is being stated and not to be depraved or corrupted.
Prevalent Tests in the United States of America 18. Presently, we shall proceed to deal with the prevalent test in the United States of America. Learned senior counsel for the appellant has taken us to various authorities of the U.S. Supreme Court and other Courts. In Chaplinsky v. New Hampshire[9], the appellant, a member of the sect known as Jehovah’s Witnesses, was convicted in the Municipal Court of Rochester, New Hampshire for violation of Chapter 378, Section 2 of the Public Laws of New Hampshire. In course of time, the appellant raised the questions that the statute was invalid under the Fourteenth Amendment of the Constitution of the United States as it placed an unreasonable restriction on freedom of speech, freedom of press and freedom of worship and further it was vague and indefinite. Be it noted, the challenge was made in the highest court of the United States that declared that the statutes purpose was to preserve the public peace and it did not violate the constitutional framework. The Court observed allowing the broadest scope to the language and purpose of the Fourteenth Amendment, it is well understood that the right to free speech is not absolute at all times and under all circumstances. 19. In Roth v. United States[10], the principal question was whether the Federal Obscenity Statute violated the First Amendment of the US Constitution which guaranteed freedom of speech. The Court held that free speech is provided under the First Amendment gave no absolute protection for every utterance. We may profitably reproduce the observations made therein:- “All ideas having even the slightest redeeming social importance ““ unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion-have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. This rejection for that reason is mirrored in the universal judgment that obscenity should be restrained, reflected in the international agreement of over 50 nations, in the obscenity laws of all of the 48 States.”
The Court further opined that: “We hold that obscenity is not within the area of constitutionally protected speech or press.”
20. In Memoirs v. Masachusetts[11], while explaining the term ‘obscenity’, the Court referred to the Roth (supra) and stated thus:-
“3. We defined obscenity in Roth in the following terms: “[W]hether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.” 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.”
After so stating, the U.S. Supreme Court proceeded to consider whether the book in question could be stated to be truly without social importance. Thus, there was no departure from the redeeming social importance test, but it also introduced “contemporary community standards” test. 21. In Marvin Miller vs. State of California[12], while rejecting the ‘redeeming social value’ test as laid down in Roth (supra) and followed in Memoirs (supra), the US Court established three pronged test which are as follows:- “15. The case we now review was tried on the theory that the California Penal Code § 311 approximately incorporates the three-stage Memoirs test, supra. But now the Memoirs test has been abandoned as unworkable by its author,[13] and no Member of the Court today supports the Memoirs formulation.
17. The basic guidelines for the trier of fact must be: (a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest, Kois v. Wisconsin, supra, 408 U.S., at 230, 92 S.Ct., at 2246, quoting Roth v. United States, supra, 354 U.S., at 489, 77 S.Ct., at 1311; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. We do not adopt as a constitutional standard the ‘utterly without redeeming social value’ test of Memoirs v. Massachusetts, 383 U.S., at 419, 86 S.Ct., at 977; that concept has never commanded the adherence of more than three Justices at one time[14]. See supra, at 21. If a state law that regulates obscene material is thus limited, as written or construed, the First Amendment values applicable to the States through the Fourteenth Amendment are adequately protected by the ultimate power of appellante courts to conduct an independent review of constitutional claims when necessary.”
22. The US Supreme Court in Miller (supra) stated that the application and ascertainment of ‘contemporary community standards’ would be the task of the Jury as they best represent the ‘contemporary community standards’. The Court observed:- “19. Sex and nudity may not be exploited without limit by films or pictures exhibited or sold in places of public accommodation any more than live sex and nudity can be exhibited or sold without limit in such public places.[15] At a minimum, prurient, patently offensive depiction or description of sexual conduct must have serious literary, artistic, political, or scientific value to merit First Amendment protection. For example, medical books for the education of physicians and related personnel necessarily use graphic illustrations and descriptions of human anatomy. In resolving the inevitably sensitive questions of fact and law, we must continue to rely on the jury system, accompanied by the safeguards that judges, rules of evidence, presumption of innocence, and other protective features provide, as we do with rape, murder, and a host of other offenses against society and its individual members.[16]
25. Under a National Constitution, fundamental First Amendment limitations on the powers of the States do not vary from community to community, but this does not mean that there are, or should or can be, fixed, uniform national standards of precisely what appeals to the ‘prurient interest’ or is ‘patently offensive.’ These are essentially questions of fact, and our Nation is simply too big and too diverse for this Court to reasonably expect that such standards could be articulated for all 50 States in a single formulation, even assuming the prerequisite consensus exists. When triers of fact are asked to decide whether ‘the average person, applying contemporary community standards’ would consider certain materials ‘prurient,’ it would be unrealistic to require that the answer be based on some abstract formulation. The adversary system, with lay jurors as the usual ultimate factfinders in criminal prosecutions, has historically permitted triers of fact to draw on the standards of their community, guided always by limiting instructions on the law. To require a State to structure obscenity proceedings around evidence of a national ‘community standard’ would be an exercise in futility.”
23. In Reno v. American Union of Civil Liberties[17], the plaintiffs filed a suit challenging the constitutionality of provisions of Communications Decency Act, 1996 (CDA). The central issue pertained to the two statutory provisions enacted to protect minors from ‘indecent’ and ‘patently offensive’ communication on the internet. The Court declared that Section 223(a)(1) of the CDA which prohibited knowing transmission of obscene or indecent messages to any recipient under 18 years of age and Section 223(d)(1) of the said Act which prohibited knowing, sending and displaying of obscene or indecent messages to any recipient under 18 years of age, to be abridging “the freedom of speech” protected by the First Amendment. 24. In State of Oregon v. Earl A. Henry[18], the Oregon Supreme Court declared the offence of obscenity to be unconstitutional as it was in violation of Article I, Section 8 of the Oregon Constitution that provides for freedom for speech and expression. Article I Section 8 reads thus:- “No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right.”
25. The State Statute of Oregan i.e. ORS 167.087 that criminalized selling, exhibiting, delivery and dissemination of obscene material was struck down as being violative of Article I Section 8. The Oregon SC held thus:-
“The indeterminacy of the crime created by ORS 167.087 does not lie in the phrase “sexual conduct” that is further defined in ORS 167.060 (10). It lies in tying the criminality of a publication to “contemporary state standards.” Even in ordinary criminal law, we doubt that the legislature can make it a crime to conduct oneself in a manner that falls short of “contemporary state standards.” In a law censoring speech, writing or publication, such an indeterminate test is intolerable. It means that anyone who publishers or distributes arguably “obscene” words or pictures does so at the peril of punishment for making a wrong guess about a future jury’s estimate of “contemporary state standards” of prurience.”
As we understand, with the passage of time tests have changed and there are different parameters to judge obscenity but the authorities clearly lay down that the freedom of speech is not absolute on all occasions or in every circumstance.
Comparables Test 26. Mr. Subramanium has pointed out that in American Jurisprudence the argument of “comparables” has gained considerable force in cases of obscenity and freedom of speech. He has referred to Joan Schleef’s note on United States v. Various Articles of Obscene Merch[19] wherein the learned author has shown comparables test. Explaining the said concept, the learned author projects that the gist of the comparables argument is that in determining whether materials are obscene, the trier of fact may rely on the widespread availability of comparable materials to indicate that the materials are accepted by the community and hence, not obscene under the Miller test. The learned senior counsel has also referred to an article, namely, Judicial Erosion of Protection for Defendants in Obscenity Prosecutions? When Courts Say, Literally, Enough is Enough and When Internet Availability Does Not Mean Acceptance by Clay Clavert[20] wherein the learned author has opined thus:- “Akin to the three-part test in Miller itself, a successful comparables argument requires three foundational elements be present with the proffered evidence: similarity or “reasonable resemblance”[21] of content; availability of content, and acceptance, to reasonable degree, of the similar, available content.”
The learned author in his conclusion has summed up:- “The Miller test is more than thirty-five years old[22], but developments and changes are now taking place in courtrooms that affect its continuing viability. In particular, this article has demonstrated that the taken-as-a-whole requirement may be in some jeopardy, as at least two courts-one in 2008 and one in 2009-have allowed the prosecution to get away with only showing jurors selected portions of the works in question. The other change addressed here is driven by technology, with the Internet forcing judges to consider a new twist on the traditional comparables argument that defense attorneys sometimes use to prove contemporary community standards. Pro-prosecution rulings in this area have been handed down in both Adams[23] and Burden[24]. And while Judge Bucklew in Little[25] allowed Internet-based search evidence to come into court, she refused to instruct the jury that it could-not even that it must-consider it as relevant of community standards”.
And again, “While the U.S. Supreme Court is no longer in the business of regularly hearing obscenity case as it once was, it may be time for the Court to revisit the Miller test and to reassess the work-as a whole requirement and to consider whether Internet based comparables arguments about contemporary community standards are viable in a digital online world the High Court never could have imagined when it adopted Miller back in 1973. Unit such time, lower courts will be left to wrestle with these issues, with some seeming to clearly sidestep Miller on the taken-as-a whole requirement in contravention of the high court’s admonishment in 2002 that this was as essential rule of First Amendment jurisprudence.”
Thus, the comparables test even if it is applied, the concept of contemporary comparative standards test along with other tests has not been abandoned. The learned author in his article has referred to the majority view in Ashcroft v. Free Speech Coalition[26] where Justice Anthony Kennedy added:- “Under Miller, the First Amendment requires that redeeming value be judged by considering the work as a whole. Where the scene is part of the narrative, the work itself does not for this reason become obscene, even though the scene in isolation might be offensive.”
Mr. Subramanium has urged that the comparables test has also been accepted in a different context by some High Courts in India. In this regard, he has been inspired by the ratiocination in Kavita Phumbhra v. Commissioner of Customs (Port), Calcutta[27] by the Calcutta High Court wherein certain publications were imported by the petitioner which were meant for sale only to adults. The High Court took note of the change in the society as well as similar articles and works readily being available in newspapers and magazines and stated thus:- “As mentioned earlier, moral standards vary from community and from person to person within one society itself. The morals of the present day in our society also do not represent a uniform pattern. The variations and the variables inside a certain society are also crucial considerations while judging whether an object comes within the mischief of obscenity. We cannot shut our eyes to the changes that are taking place in our society as we cannot be blind to the kind of advertisements, newspaper articles, pictures and photographs which are regularly being published and most certainly with a target viewers and readership in mind. Any closer observer will definitely reckon the vast changes that have taken place around us, particularly in the field of audio and visual representations which are dinned into our ears or which arrest our ocular tastes. A certain shift in the moral and sexual standard is very easily discernable over the years and we may take judicial note of it. The appellant has produced many articles of high circulating newspapers and reputed magazines which are freely available in the market. Judged by that, these items which were produced in courts, do not appear to be more sexually explicit than many of those which are permitted to be published in leading journals and magazines.”
Having dealt with the ‘comparables test’ as is understood from the aforesaid decisions, we are to repeat that the contemporary community standards test is still in vogue with certain addition.
Test laid down by the European Courts 27. Now we shall proceed to deal with the perception of obscenity by the European Courts. In Vereinigung Bildender Kinstler v. Austria[28], the European Court of Human Rights was concerned with the issue pertaining to withdrawal of a painting entitled “Apocalypse” which had been produced for the auction by the Austrian painter Otto Muhl. The painting, measuring 450 cm by 360 cm showed a collage of various public figures such as Mother Teresa, the former head of the Austrian Freedom Party (FPO) Mr. Jorg Haider, in sexual positions. While the naked bodies of these figures were painted, the heads and faces were depicted using blown-up photos taken from newspapers. The eyes of some of the persons portrayed were hidden under black bars. Among these persons was Mr. Meischberger, a former general secretary of the FPO until 1995, who at the time of the events was a member of the National Assembly. The Austrian Court permanently barred the display of painting on the ground that the painting debased the plaintiff and his political activities. The Association of Artists appealed to the European Court and the said Court thought it appropriate to come to the conclusion that the prohibition by the Austrian Court of the painting was not acceptable. It observed that though the painting in its original state was somewhat outrageous but it was clear that the photographs were caricature and the painting was satirical. We have been commended, in this regard, to certain passages by Mr. Subramanium. They read as follows:-
“33. However, it must be emphasised that the painting used only photos of the heads of the persons concerned, their eyes being hidden under black bars and their bodies being painted in an unrealistic and exaggerated manner. It was common ground in the understanding of the domestic courts at all levels that the painting obviously did not aim to reflect or even to suggest reality; the Government, in its submissions, has not alleged otherwise. The Court finds that such portrayal amounted to a caricature of the persons concerned using satirical elements. It notes that satire is a form of artistic expression and social commentary and, by its inherent features of exaggeration and distortion of reality, naturally aims to provoke and agitate. Accordingly, any interference with an artist’s right to such expression must be examined with particular care.
xxx xxx xxx
35. Furthermore, the Court would stress that besides Mr Meischberger, the painting showed a series of 33 persons, some of whom were very well known to the Austrian public, who were all presented in the way described above. Besides Jörg Haider and the painter himself, Mother Teresa and the Austrian cardinal Hermann Groer were pictured next to Mr Meischberger. The painting further showed the Austrian bishop Kurt Krenn, the Austrian author Peter Turrini and the director of the Vienna Burgtheater, Claus Peymann. Mr Meischberger, who at the time of the events was an ordinary Member of Parliament, was certainly one of the less well known amongst all the people appearing on the painting and nowadays, having retired from politics, is hardly remembered by the public at all.”
28. Mr. Nariman, learned amicus curiae in this regard has submitted that the European Court of Human Rights’ view is divided inasmuch as four of the Judges in a Court of seven have expressed the view, which is as follows:-
“26. The Court reiterates that freedom of expression, as secured in paragraph 1 of Article 10, constitutes one of the essential foundations of a democratic society, indeed one of the basic conditions for its progress and for the self-fulfilment of the individual. Subject to paragraph 2, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any section of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”. Those who create, perform, distribute or exhibit works of art contribute to the exchange of ideas and opinions which is essential for a democratic society. Hence the obligation on the State not to encroach unduly on their freedom of expression. Artists and those who promote their work are certainly not immune from the possibility of limitations as provided for in paragraph 2 of Article 10. Whoever exercises his freedom of expression undertakes, in accordance with the express terms of that paragraph, “duties and responsibilities”; their scope will depend on his situation and the means he uses (see Muller and Others v. Switzerland, judgment of 24 May 1988).”
29. Learned amicus curiae has also referred to one of the dissenting opinions of Judge Loucaides, which is to the following effect:- “The majority found that the images portrayed in the “painting” in question were “artistic and satirical in nature”. This assessment had a decisive effect on the judgment. The majority saw the “painting” as a form of criticism by the artist of Mr Meischberger, a politician and one of the persons depicted in it. It was he who brought the proceedings which led to the impugned measure.
The nature, meaning and effect of any image or images in a painting cannot be judged on the basis of what the painter purported to convey. What counts is the effect of the visible image on the observer. Furthermore, the fact that an image has been produced by an artist does not always make the end result “artistic”. Likewise, an image will not become “satirical” if the observer does not comprehend or detect any message in the form of a meaningful attack or criticism relating to a particular problem or a person’s conduct.
In my view, the picture in question cannot, by any stretch of the imagination, be called satirical or artistic. It showed a number of unrelated personalities (some political, some religious) in a vulgar and grotesque presentation and context of senseless, disgusting images of erect and ejaculating penises and of naked figures adopting repulsive sexual poses, some even involving violence, with coloured and disproportionately large genitals or breasts. The figures included religious personalities such as the Austrian Cardinal Hermann Groer and Mother Teresa, the latter portrayed with protruding bare breasts praying between two men””one of whom was the Cardinal””with erect penises ejaculating on her! Mr Meischberger was shown gripping the ejaculating penis of Mr Haider while at the same time being touched by two other FPÖ politicians and ejaculating on Mother Teresa!
The reader will of course need to look at the “painting” in question in order to be able to form a view of its nature and effect. It is my firm belief that the images depicted in this product of what is, to say the least, a strange imagination, convey no message; the “painting” is just a senseless, disgusting combination of lewd images whose only effect is to debase, insult and ridicule each and every person portrayed. Personally, I was unable to find any criticism or satire in this “painting”. Why were Mother Teresa and Cardinal Hermann Groer ridiculed? Why were the personalities depicted naked with erect and ejaculating penises? To find that situation comparable with satire or artistic expression is beyond my comprehension. And when we speak about art I do not think that we can include each and every act of artistic expression regardless of its nature and effect. In the same way that we exclude insults from freedom of speech, so we must exclude from the legitimate expression of artists insulting pictures that undermine the reputation or dignity of others, especially if they are devoid of any meaningful message and contain nothing more than senseless, repugnant and disgusting images, as in the present case.
As was rightly observed in the judgment (paragraph 26) ” Artists and those who promote their work are certainly not immune from the possibility of limitations as provided for in paragraph 2 of Article 10. Whoever exercises his freedom of expression undertakes, in accordance with the express terms of that paragraph, ‘duties and responsibilities'; their scope will depend on his situation and the means he uses “
Nobody can rely on the fact that he is an artist or that a work is a painting in order to escape liability for insulting others. Like the domestic courts, I find that the “painting” in question undermined the reputation and dignity of Mr Meischberger in a manner for which there can be no legitimate justification and therefore the national authorities were entitled to consider that the impugned measure was necessary in a democratic society for the protection of the reputation or rights of others. The learned amicus curiae has also commended us to the joint dissenting opinion of Judges Spielmann and Jebens. What is important to be noted is as follows:- “9. In our opinion, it was not the abstract or indeterminate concept of human dignity””a concept which can in itself be dangerous since it may be used as justification for hastily placing unacceptable limitations on fundamental rights[29] “” but the concrete concept of “fundamental personal dignity of others”[30] which was central to the debate in the present case, seeing that a photograph of Mr Meischberger was used in a pictorial montage which he felt to be profoundly humiliating and degrading.
10. It should be noted in this connection that in an order of June 3, 1987,[31] in a case about cartoons, the German Federal Constitutional Court relied on the concept of human dignity as expressly enshrined in the Basic Law (Article1(1)),[32] in dismissing a complaint by a publisher. The cartoon portrayed a well-known politician as a pig copulating with another pig dressed in judicial robes. The court did not accept the publisher’s argument relating to artistic freedom as protected by Article 5(3) of the Basic Law.[33] It is important to note that the court accepted that the cartoons could be described as a work of art; it was not appropriate to perform a quality control (Niveaukontrolle) and thus to differentiate between “superior” and “inferior” or “good” and “bad” art.[34]  However, it dismissed the complaint, finding that the cartoons were intended to deprive the politician concerned of his dignity by portraying him as engaging in bestial sexual conduct. Where there was a conflict with human dignity, artistic freedom (Kunstfreiheit) must always be subordinate to personality rights.[35]
11. One commentator, Eric Barendt, rightly approved this decision, stating:
“Political satire should not be protected when it amounts only to insulting speech directed against an individual. If, say, a magazine feature attributes words to a celebrity, or uses a computerized image to portray her naked, it should make no difference that the feature was intended as a parody of an interview she had given. It should be regarded as a verbal assault on the individual’s right to dignity, rather than a contribution to political or artistic debate protected under the free speech (or freedom of the arts) clauses of the Constitution.”[36]
12. In a word, a person’s human dignity must be respected, regardless of whether the person is a well-known figure or not.
13. Returning to the case before us, we therefore consider that the reasons that led the court to find a violation (see paragraph 4 above) are not relevant. Such considerations must be subordinate to respect for human dignity.”
30. Mr. Nariman, scanning the judgment has submitted that artistic freedom outweighs personal interest and cannot and does not trump nor outweigh observance of laws for the prevention of crime or laws for the protection of health or morals; that the limits of artistic freedom are exceeded when the image of a person (renowned or otherwise) is substantially deformed by wholly imaginary elements ““ without it being evident from the work (in the present case from the poem) that it was aimed at satire or some other form of exaggeration; that the freedom of artistic creation cannot be claimed where the work in question constitutes a debasement and debunking of a particular individual’s public standing; that the European law recognises that whosoever exercises freedom of expression undertakes in addition duties and responsibilities and their scope depends on the situation and the means used; that it is only where personal interests of an individual are said to be affected that the artistic and satirical nature of the portrayal of the person in the work would outweigh mere personal interest; that the nature, meaning and effect of any image (in say in a painting or a poem) cannot and must not be judged on the basis of what the artist (or author) purports to convey; what counts is the effect of the image on the observer; the fact that an image has been produced by an artist does not always make the end-result artistic; likewise an image does not become a satirical if the observer does not comprehend or detect any message in the work in question; that where the images depicted in the work product convey no message but “only a disgusting combination of lewd acts and words whose only effect is to debase, insult and ridicule the person portrayed” ““ this is neither criticism nor satire; and that the artistic freedom is not unlimited and where rights and reputation of others are involved; where there is conflict with human dignity artistic freedom must always be subordinated to personality rights. Thus, the submission of Mr. Nariman is that freedom of speech and expression is not absolute and any work of art cannot derail the prohibition in law. 31. Mr. Subramanium has referred to the judgment in Handyside v. United Kingdom[37], wherein it has been held thus:-
“The Court’s supervisory functions oblige it to pay the utmost attention to the principles characterising a “democratic society”. Freedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man. Subject to paragraph 2 of Article 10 (art. 10-2), it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”. This means, amongst other things, that every “formality”, “condition”, “restriction” or “penalty” imposed in this sphere must be proportionate to the legitimate aim pursued.
From another standpoint, whoever exercises his freedom of expression undertakes “duties and responsibilities” the scope of which depends on his situation and the technical means he uses. The Court cannot overlook such a person’s “duties” and “responsibilities” when it enquires, as in this case, whether “restrictions” or “penalties” were conducive to the “protection of morals” which made them “necessary” in a “democratic society”.”
Mr. Subramanium, learned senior counsel has emphasised that the freedom of expression as protected by Article 10 of ECHR constitutes an essential basis of a democratic society and any limitations on that freedom have to be interpreted strictly. Mr. Subramanium has also referred us to Editorial Board of Pravoye Delo and Shtekel v. Ukraine[38], wherein the European Court, for the first time, acknowledged that Article 10 of ECHR has to be interpreted as imposing on States a positive obligation to create an appropriate regulatory framework to ensure effective protection of journalists’ freedom of expression on the Internet. He has also drawn our attention to Akda v. Turkey[39], wherein the European Court has held that ban on translation of classic work of literature that contained graphic description of sex, violated the right to freedom of expression. 32. Mr. Nariman, learned senior counsel and amicus, has commended us to Wingrove v. United Kingdom[40] to show that the interpretation placed by the European Court of Human Rights on Article 10 that deals with freedom of expression. In the said case, a video movie characterising Saint Teresa of Avila in profane ways was held to be properly banned and not a violation of Article 10 of the European Convention on Human Rights. The said case originated from an application lodged with the European Commission under Article 25 by a British national Nigel Wingrove on 18th June, 1990. The object of the request and of the Application was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State (United Kingdom) of its obligation under Article 10 of the ECHR. Wingrove wrote the script for a video and directed making of a video work entitled ‘visions of ecstasy’ ““ the idea for the film was derived from the life and writings of St. Teresa of Avila, the sixteenth century Carmelite, nun and founder of many convents, who experienced powerful ecstatic visions of Jesus Christ. In paragraphs 9 and 10 of the report it is stated:- “The action of the film centres upon a youthful actress dressed as a nun and intended to represent St. Teresa. It begins with the nun, dressed loosely in a black habit, stabbing her own hand with a large nail and spreading her blood over her naked breasts and clothing. In her writhing, she spills a chalice of communion wine and proceeds to lick it up from the ground. She loses consciousness. This sequence takes up approximately half of the running time of the video. The second part shows St. Teresa dressed in a white habit standing with her arms held above her head by a white cord which is suspended from above and tied around her wrists. The near-naked form of a second female, said to represent St. Teresa’s psyche, slowly crawls her way along the ground towards her. Upon reaching St. Teresa’s feet, the psyche begins to caress her feet and legs, then her midriff, then her breasts, and finally exchanges passionate kisses with her. Throughout this sequence, St Teresa appears to be writhing in exquisite erotic sensation. This sequence is intercut at frequent intervals with a second sequence in which one sees the body of Christ, fastened to the cross which is lying upon the ground. St Teresa first kisses the stigmata of his feet before moving up his body and kissing or licking the gaping wound in his right side. Then she sits astride him, seemingly naked under her habit, all the while moving in a motion reflecting intense erotic arousal, and kisses his lips. For a few seconds, it appears that he responds to her kisses. This action is intercut with the passionate kisses of the psyche already described. Finally, St Teresa runs her hand down to the fixed hand of Christ and entwines his fingers in hers. As she does so, the fingers of Christ seem to curl upwards to hold with hers, whereupon the video ends.
Apart from the cast list which appears on the screen for a few seconds, the viewer has no means to knowing from the film itself that the person dressed as a nun in the video is intended to be St Teresa or that the other woman who appears is intended to be her psyche. No attempt is made in the video to explain its historical background.”
Thereafter dealing with the case, the European Court of Human Rights held:- “61. Visions of Ecstasy portrays, inter alia, a female character astride the recumbent body of the crucified Christ engaged in an act of an overtly sexual nature. The national authorities, using powers that are not themselves incompatible with the Convention, considered that the manner in which such imagery was treated placed the focus of the work “less on the erotic feelings of the character than on those of the audience, which is the primary function of pornography”. They further held that since no attempt was made in the film to explore the meaning of the imagery beyond engaging the viewer in a “voyeuristic erotic experience”, the public distribution of such a video could outrage and insult the feelings of believing Christians and constitute the criminal offence of blasphemy. This view was reached by both the Board of Film Classification and the Video Appeals Committee following a careful consideration of the arguments in defence of his work presented by the applicant in the course of two sets of proceedings. Moreover, it was open to the applicant to challenge the decision of the Appeals Committee in proceedings for judicial review. Bearing in mind the safeguard of the high threshold of profanation embodied in the definition of the offence of blasphemy under English law as well as the State’s margin of appreciation in this area, the reasons given to justify the measures taken can be considered as both relevant and sufficient for the purpose of Article 10 para 2 (art. 10-2). Furthermore, having viewed the film for itself, the Court is satisfied that the decisions by the national authorities cannot be said to be arbitrary or excessive.”
Mr. Nariman, the friend of the Court has also laid immense emphasis on the concurring opinion of Judge Pettit. The learned Judge though voted with the majority, observed:- “… I consider that the same decision could have been reached under paragraph 2 of Article 10 (art. 10-2) on grounds other than blasphemy, for example the profanation of symbols, including secular ones (the national flag) or jeopardising or prejudicing public order (but not for the benefit of a religious majority in the territory concerned). The reasoning should, in my opinion have been expressed in terms both of religious beliefs and of philosophical convictions. It is only in paragraph 53 of the judgment that the words “any other” are cited. Profanation and serious attacks on the deeply held feelings of others or on religious or secular ideals can be relied on under Article 10 para 2 (art. 102) in addition to blasphemy. What was particularly shocking in the Wingrove case was the combination of an ostensibly philosophical message and wholly irrelevant obscene or pornographic images. In this case, the use of obscenity for commercial ends may justify restrictions under Article 10 para 2 (art 10-2); but the use of a figure of symbolic value as a great thinker in the history of mankind (such as Moses, Dante or Tolstoy) in a portrayal which seriously offends the deeply held feelings of those who respect their works or thought may, in some cases, justify judicial supervision so that the public can be alerted through the reporting of court decisions.”
Judge Pettit further proceeded to state:- “The majority of the Video Appeals Committee took the view that the imagery led not to a religious perception, but to a perverse one, the ecstasy being furthermore of a perverse kind. That analysis was in conformity with the approach of the House of Lords, which moreover did not discuss the author’s intention with respect to the moral element of the offence. The Board’s Director said that it would have taken just the same stance in respect of a film that was contemptuous of Mohammed or Buddha. The decision not to grant a certificate might possibly have been justifiable and justified if, instead of St Teresa’s ecstasies, what had been in issue had been a video showing, for example, the anti-clerical Voltaire having sexual relations with some prince or king. In such a case, the decision of the European Court might