Ranjit D. Udeshi Vs. State of
Maharashtra  INSC 177 (19 August 1964)
19/08/1964 HIDAYATULLAH, M.
GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N.
AYYANGAR, N. RAJAGOPALA
CITATION: 1965 AIR 881 1965 SCR (1) 65
R 1970 SC1390 (5) R 1971 SC 481 (40,50,54) R
1986 SC 967 (23,25,26)
Constitution of India, 1950, Arts. 19(1)(a)
and 19(2)-Indian Penal Code, 1860 (Act 45 of 1860), s. 292-If ultra vires-
"Obscene", meaning of-Accused-Knowledge of obscenity- Relevance.
The appellant, a bookseller, sold a copy of
the unexpurgated edition of "Lady Chatterley's Lover". He was
convicted under s. 292, Indian Penal Code. In his appeal to the Supreme Court
he contended that : (i) the section was void because it violated the freedom of
speech and expression guaranteed by Art. 19(1)(a) of the Constitution of
India., (ii) even if the section was valid, the book was not obscene and (iii)
it must be shown by the prosecution that he sold the book with the intention to
corrupt the purchaser, that is to say, that he knew that the book was obscene.
HELD : (i) the section embodies a reasonable
restriction upon the freedom of speech and expression guaranteed by Art.
19 and does not fall outside the limits of
restriction permitted by cl. (2) of the Article. The section seeks no more than
the promotion of public decency and morality which are the words of that
clause. [69G; 70E-F; 74B].
(ii) The book must be declared obscene within
the meaning of s. 292, Indian Penal Code. [81C].
The word "obscene" in the section
is not limited to writings, pictures etc. intended to arouse sexual desire.
At the same time the mere treating with sex
and nudity in art and literature is not per se evidence of obscenity. The test
given by Cockburn C.J., in Queen v. Hicklin, (1868) L.R. 3 Q.B. 360, to the
effect 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. The test does not offend Art. 19(1) (a) of the Constitution.
74B-C. F;] 75F].
In judging a work, stress should not be laid
upon a word here and a word there, or a passage here and a passage there.
Though the work as a whole must be considered, the obscene matter must be
considered by itself and separately to find out whether it is so gross and its
obscenity so decided that it is likely to deprave and corrupt those whose minds
are open to influences of this sort. In this connection the interests of
contemporary society and particularly the influence of the impugned book on it
must not be overlooked. Where, obscenity and art are mixed, art must so
preponderate as to throw the obscenity into a shadow or the obscenity so
trivial and insignificant that it can have no effect and may be overlooked. It
is necessary that a balance should be maintained between "freedom of
speech and expression" and "public decency or morality"; but
when the latter is substantially transgressed the former must give way. In
other cases obscenity may be overlooked if it has a preponderating social
purpose or profit. [75GH; 76A-B, E-G. 77A-C].
66 In judging the obscenity of one book the
character of other books is a collateral issue which need not be explored.
[76C-D] (iii) The section does not make the
book-seller's knowledge of obscenity an ingredient of the offence and the
prosecution need not establish it. Absence of knowledge may be taken in
mitigation but does not take the case out of the section. But the prosecution
must prove the ordinary mens rea in the second part of the guilty act and it
must be proved that he had actually sold or kept for sale the offending
article. Such mens rea may be established by circumstantial evidence. [71C-D,
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 178 of 1962.
Appeal by special leave from the judgment and
order dated February 6, 1962, of the Bombay High Court in Criminal Revision
Application No. 1149 of 1961.
R. K. Garg, S. C. Agarwal, D. P. Singh, M. K.
Ramamurthi and B. A. Desai, for the appellant.
C. K. Daphtary, Attorney-General, 0. P. Rana
and R. H. Dhebar, for the respondent.
The Judgment of the Court was delivered by
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 S.
292, 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 Nos. 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
edition) which inter alia contained, obscene matter as detailed separately and
attached herewith and thereby committed an offence punishable u/s 292 of the
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
edition) which inter alia contained obscene matter as detailed separately and
attached herewith and thereby committed an offence punishable u/s 292 of the
I.P. Code." 67 The first count applied to the appellant who was accused
No. 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 expression guaranteed by the nineteenth Article. Before
the High Court he had questioned the finding of the Magistrate regarding the
It is convenient to set out s. 292 of the
Indian Penal Code at this stage:
"292. Sale of obscene books etc. : Whoever-
(a) sells, lets to hire, distributes, publicly exhibits or in any manner puts
into circulation, or for purposes of sale, hire, distribution, public
exhibition or circula- tion, makes, produces or has in his possession any
obscene book, pamphlet, paper, drawing, painting, representation or figure or
any other obscene object whatsoever, or (b) imports, exports or conveys any
obscene object for any of the purposes aforesaid, or knowing or having reason
to believe that such object will be sold, let to hire, distributed or publicly
exhibited or in any manner put into circulation, or (c) takes part in or
receives profits from any business in the course of which he knows or has
reason to believe that any such obscene objects are, for any of the purposes
aforesaid, made, produced, purchased, kept, imported, exported, conveyed,
publicly exhibited or in any manner put into circulation, or (d) advertises or
makes known by any means whatsoever that any person is engaged or is ready to
engage in any act which is an offence under this section, or that any such
obscene object can be procured from or through any person, or (e) offers or
attempts to do any act which is an offence -under this section, 68 shall be
punished with imprisonment for either description for a term which may extend
to three months, or with fine, or with both.
Exception.-This section does not extend to
any book, pamphlet, writing, drawing or painting kept or used bona fide for
religious purposes or any representation sculptured, engraved, painted or
otherwise represented on or in any temple, or on any car used for the
conveyance of idols, or kept or used for any religious purpose." To prove
the requirements of the section the prosecution examined two witnesses. One was
the test purchaser named in the charge and the other an Inspector of the
Vigilance Department. These witnesses proved possession and sale of the book
which facts are not denied. The Inspector in his testimony also offered his
reasons for considering the book to be obscene. On behalf of the accused Mr.
Mulkraj Anand, a writer and art critic gave evidence and in a detailed analysis
of the novel, he sought to establish that in spite of its apparent indelicate
theme and the candidness of its delineation and diction, the novel was a work of
considerable literary merit and a classic and not obscene.
The question does not altogether depend on
oral evidence because the offending novel and the portions which are the
subject of the charge must be judged by the' court in the light of s. 292,
Indian- Penal Code, and the provisions of the Constitution. This raises two
broad and independent issues of law-the validity of s. 292, Indian Penal Code,
and the proper interpretation of the section and its application to the
Mr. Garg who argued the case with ability,
raised these two issues. He bases his argument on three legal grounds which
(i) that s. 292 of the Indian Penal Code is
void as being an impermissible and vague restriction on the freedom of speech
and expression guaranteed by Art. 19 (1) (a) and is not saved by cl. (2) of the
(ii) that even if s. 292, Indian Penal Code,
be valid, the book is not obscene if the section is properly construed and the
book as a whole is considered; and (iii) that the possession or sale to be
punishable under the section must be with the intention to corrupt the public
in general and the purchasers in particular.
69 On the subject of obscenity his general
submission is that a work of art is not necessarily obscene if it treats with
sex even with nudity and he submits that a work of art or a book of literary
merit should not be destroyed if the interest of society requires that it be
preserved. He submits that it should be viewed as a whole, and its artistic or
literary merits should be weighed against the so-called obscenity, the context
in which the obscenity occurs and the purpose it seeks to serve. If on a fair
consideration' of these opposite aspects, lie submits, the interest of society
prevails, then the work of art or the book must be preserved, for then the
obscenity is overborne. In no case, he submits, can stray passage or passages
serve to stamp an adverse verdict on the book. He submits that the standard
should not be that of an immature teenager or a person who is abnormal but of
one who is normal, that is to say. with a mens sana in corporis sana. He also
contends that the test adopted in the High Court and the Court below from Queen
Hicklin(1) is out of date and needs to be
modified and be commends for our acceptance the views expressed recently by the
courts in England and the United States.
Article 19 of the Constitution which is the
main plank to support these arguments reads "19(1) All citizens shall have
the right- (a) to freedom of speech and expression;
(2) Nothing -in sub-clause (a) of clause (1)
shall affect the operation of any existing law, or prevent the State from
making any law, in so far as such law imposes reasonable restrictions on the
exercise of the right conferred by the said sub-clause in the interests of
public order, decency or morality" No doubt this article guarantees
complete freedom of speech and expression but it also makes an exception in
favour of existing laws which impose restrictions on the exercise of the right
in the interests of public decency or morality.
The section of the Penal Code in dispute was
introduced by the Obscene Publications Act (7 of 1925) to give effect to
Article 1 of the International' Convention for the suppression of or traffic in
obscene publications signed by India in 1923 at Geneva. It does not go beyond
obscenity which falls directly within the words "public decency (1) (1868)
L.R. 3 Q.B. 360.
70 and morality" of the second clause of
the article. The word, as the dictionaries tell us, denotes the quality of
being obscene which means offensive to modesty or decency;
lewd, filthy and repulsive. It cannot be
denied that it is an important interest of society to suppress obscenity.
There is, of course, some difference between
obscenity and pornography in that the latter denotes writings, pictures etc.
intended to arouse sexual desire while the former may include writings etc. not
intended to do so but which have that tendency. Both, of course, offend against
public decency and morals but pornography is obscenity in a more aggravated
form. Mr. Garg seeks to limit action to cases of intentional lewdness which he
describes as "dirt for dirt's sake" and which has now received the
appellation of hard- core pornography by which term is meant libidinous
writings of high erotic effect unredeemed by anything literary or artistic and
intended to arouse ,sexual feelings.
Speaking in terms of the Constitution it can
hardly be claimed ,that obscenity which is offensive to modesty or decency is
within the constitutional protection given to free speech or expression,
,because the article dealing with the right itself excludes it. That cherished
right on which our democracy rests is meant for the expression of free opinions
to change political or social conditions or for the advancement of human
knowledge. This freedom is subject to reasonable restrictions which may be
thought necessary in the interest of the general public and one such is the in-
terest of public decency and morality. Section 292, Indian Penal ,,Code, manifestly
embodies such a restriction because the law against obscenity, of course,
correctly understood and applied, seeks no more than to promote public decency
and morality. The word obscenity is really not vague because it is a word which
is well-understood even if persons differ in,. their attitude to what is
obscene and what is not. Lawrence thought James Joyce's Ulysses to be an
obscene book deserving suppression but it was lgalised and he considered Jane
Eyre to be pornographic but very few people will agree with him. The former he
thought so because it dealt with excretory functions and the latter because it
dealt -with sex repression. (See Sex, Literature and Censorship pp. 26 201).
Condemnation of obscenity depends as much upon the mores of the people as upon
the individual. It is always a question of degree or as the lawyers are
accustomed to say, of where the line is to be drawn. It is, however, clear that
obscenity by itself has extremely "poor value in the-propagation of ideas,
opinions and informationís of public interest or profit." When there is
propagation of ideas, opinions and informationís of public interest 71 or
profit, the approach to the problem may become different because then the
interest of society may tilt the scales in favour of free speech and
expression. 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. 19. The next question
is when can an object be said to be obscene ? Before dealing with that problem
we wish to dispose of Mr. Garg's third argument that the prosecution must prove
that the person who sells or keeps for sale any obscene object knows that it is
obscene, before he can be adjudged guilty.
We do not accept this argument. The first
sub-section of s. 292 (unlike some others which open with the words
"whoever knowingly or negligently etc.") does not make knowledge of
obscenity an ingredient of the offence. The prosecution need not prove
something which the law does not burden it with. If knowledge were made a part
of the guilty act (actus reus), and the law required the prosecution to prove
it would place an almost impenetrable defence in the hands of offenders.
Something much less than actual knowledge must therefore suffice. It is argued
that the number of books these days is so large and their contents so varied
that the question whether there is mens era or not must be based on definite
knowledge of the existence of obscenity.
We can only interpret the law as we find it
and if any exception is to be made it is for Parliament to enact a law.
As we have pointed out, the difficulty of
obtaining legal evidence of the offender's knowledge of the obscenity of the
book etc., has made the liability strict. Under our law absence of such
knowledge, may be taken in mitigation but it does not take the case out of the
Next to consider is the second part of the
guilty act (actus reus), namely, the selling or keeping for sale of an object
which is found to be obscene. Here, of course, the ordinary guilty intention
(mens rea) will be required before the offence can be said to be complete. The
offender must have actually sold or kept for sale, the offending article. The
circumstances of the case will then determine the criminal intent and it will
be a matter of a proper inference from them. The argument that the prosecution
must give positive evidence to establish a guilty intention involves a supposi-
tion that mens rea must always be established by the prosecution 72 through
positive evidence. In criminal prosecution mens rea must necessarily be proved
by circumstantial evidence alone unless the accused confesses. The sub-section
makes sale and possession for sale one of the elements of the offence.
As sale has taken place and the appellant is
a book-seller the necessary inference is readily drawn at least in this case.
Difficulties may, however, arise in cases close to the border. To escape
liability the appellant can prove his lack of knowledge unless the circumstances
are such that he must be held guilty for the acts of another. The court will
presume that he is guilty if the book is sold on his behalf and is later found
to be obscene unless he can establish that the sale was without his knowledge
or consent. The law against obscenity has always imposed a strict
responsibility. When Wilkes printed a dozen copies of his Essay on Woman for
private circulation, the printer took an extra copy for himself. That copy was
purchased from the printer and it brought Wilkes to grief before Lord
Mansfield. The gist of the offence was taken to be publication-circulation and
Wilkes was presumed to have circulated it. Of course, Wilkes published numerous
other obscene and libellous writings in different ways and when Madame
Pampadour asked him : "How far does the liberty of the Press extend in
England ?" he gave the characteristic answer : "I do not know. I am
trying to find out" (See 52 Harv. L. Rev. 40).
The problem of scienter (knowingly doing an
act) has caused anxious thought in the United States under the Comstock law [19
U.S.C. 1461 (1958)] which deals with the non-mailability of obscene matter. We
were cited Manual Enterprises Inc. v. J. Edward Day(1) but there was so little
concurrence in the Court that it has often been said, and perhaps rightly, that
the case has little opinion value. The same is perhaps true of the latest case
Nico Jacobellis v. State of Ohio (decided on June 22, 1964) of which a copy of
the judgment was produced for our perusal.
It may, however, be pointed out that one may
have to consider a plea that the publication was for public good.
This bears on the question whether the book
etc. can in those circumstances be regarded as obscene. It is necessary to bear
in mind that this may raise nice points of the claims of society to suppress
obscenity and the claims of society to allow free speech. No such plea has been
raised in this case but we mention it to draw attention to the fact that this
may lead to different results in different cases.
When Savage published his Progress of a
Divine, and was prosecuted for it, his plea was that he bad "introduced
obscene ideas with a view to exposing them to detestation, and of amending the
age by showing (1) 370 U.S. 478: 8 L. ed. 2nd 639.
73 the depravity of wickedness" and the
plea was accepted (See Dr. Johnson's Life of Savage in his Lives of the Poets).
In Hicklin's case(1) Blackburn J. did not accept a similar plea in respect of
the pamphlet before him observing that it would "justify the publication
of anything however indecent, however obscene, and, however mischievous."
We are not called upon to decide this issue in this case but we have found it
necessary to mention it because ideas having social importance will prima facie
be protected unless obscenity is so gross and decided that the interest of the
public dictates the other way. We shall now consider what is meant by the word
"obscene" in s. 292, Indian Penal Code.
The Indian Penal Code borrowed the word from
the English Statute. As the word "obscene" has been interpreted by
English Courts something may be said of that interpretation first. The Common
law offence of obscenity was established in England three hundred years ago
when Sir Charles Sedley exposed his person to the public gaze on the balcony of
a tavern. Obscenity in books, however, was punishable only before the spiritual
courts because it was so held down to 1708 in which year Queen v. Read (II Mod
205 O.B.) was decided. In 1727 in the case against one Curl it was ruled for
the first time that it was a Common Law offence (2 Stra.
789 K.B.). In 1857 Lord Campbell enacted the
first legisla- tive measure against obscene books etc. and his successor in the
office of Chief Justice interpreted his statute (20 & 21 Viet. C. 83) in
Hicklin's case(2). The section of the English Act is long (they were so in
those days), but it used the word "obscene" and provided for search,
seizure and destruction of obscene books etc. and made their sale, possession
for sale, distribution etc. a misdemeanour. The section may thus be regarded as
substantially in pari materia with s. 292, Indian Penal Code, in spite of some
differences in language. In Hicklin's case(3) the Queen's Bench was called upon
to consider a pamphlet, the nature of which can be gathered from the title and
the colophon which read : "The Confession Unmasked, showing the depravity
of Romish priesthood, the iniquity of the confessional, and the questions put
to females in confession'." It was bilingual with Latin and English texts
on opposite pages and the latter half of the pamphlet according to the report
was "grossly obscene. as relating to impure and filthy acts, words or
ideas". Cockburn,. C.J. laid down the test of obscenity in these words
"I think the test of obscenity is this, whether the tendency of the matter
charged as obscenity is to deperave and corrupt those whose minds are open to
such immoral (1) (1868) L.R. 3 Q.B, 360 74 influences, and into whose hands a
publication of this sort may fall. . . . . it is quite certain that it would suggest
to the minds of the young of either sex, or even to persons of more advanced
years, thoughts of a most impure and libidinous character." This test has
been uniformly applied in India.
The important question is whether this test
of obscenity squares with the freedom of speech and expression guaranteed under
our Constitution, or it needs to be modified and, if so, in what respects. The
first of these questions invites the Court to reach a decision on a
constitutional issue of a most far-reaching character and we must beware that
we may not lean too far away from the guaranteed freedom. The laying down of
the true test is not rendered any easier because art has such varied facets and
such individualistic appeals that in the same object the insensitive sees only
obscenity because his attention is arrested, not by the general or artistic
appeal or message which he cannot comprehend, but by what he can see, and the
intellectual sees beauty and art but nothing gross. The Indian Penal Code does
not define the word "obscene" and this delicate task of how to
distinguish between that which is artistic and that which is obscene has to be
performed by courts, and in the last resort by us. The test which we evolve
must obviously be of a general character but it must admit of a just
application from case to case by indicating a line of demarcation not
necessarily sharp but sufficiently distinct to distinguish between that which
is obscene and that which is not. None has so far attempted a definition of
obscenity because the meaning can be laid bare without attempting a definition
by describing what must be looked for. It may, however, be said at once that
treating with sex and nudity in art and literature cannot be regarded as
evidence of obscenity without something more. It is not necessary that the
angels and saints of Michelangelo should be made to wear breeches before they
can be viewed. If the rigid test of treating with sex as the minimum ingredient
were accepted hardly any writer of fiction today would escape the fate Lawrence
had in his days. Half the book-shops would close and the other half would deal
in nothing but moral and religious books which Lord Campbell boasted was the
effect of his Act.
The question is now narrowed to what is
obscenity as distinguished from a permissible treating with sex ? Mr. Garg
relies on some passages from the opinions expressed in the Supreme Court of the
United States in Samuel Roth v. U.S.A.(') and from the (1) 354 U.S. 476; 1 L
ed. 2d. 1498 (1957).
75 charge to the jury by Stable J. in Regina
v. Martin Secker and Warburg Ltd.(1) and invites us to adopt the test of
"hard-core pornography" for the interpretation of the word
"obscene" in the Indian Penal Code. He points out that the latest
statute in England now makes exceptions leading to the same result. He has also
referred to some books and literary and artistic publications which have not
been considered objectionable.
It may be admitted that the world has
certainly moved far away from the times when Pamela, Mall Flanders, Mrs.
Warren's Profession, and even Mill on the
Floss were considered immodest. 'Today all these and authors from Aristophanes
to Zola are widely read and in most of, them one hardly notices obscenity. If
our attitude to art versus obscenity had not undergone a radical change, books
like Caldwell's God's Little Acre and Andre Gide's If It Die would not have
survived the strict test. The English Novel has come out of the drawing room
and it is a far cry from the days when Thomas Hardy described the seduction of
Tess by speaking of her guardian angels. Thomas Hardy himself put in his last
two novels situations which "were strongly disapproved of under the
conventions of the age", but they were extremely mild compared with books
today. The world is now able to tolerate much more than formerly, having become
indurated by literature of different sorts. The attitude is not yet settled.
Curiously, varying results are noticeable in respect of the same book and in
the United States the same book is held to be obscene in one State but not in
another [See A Suggested Solution to the Riddle of Obscenity (1964), 112 Penn.
L. Rev. 8341.
But even if we agree thus far, the question
remains still whether the Hicklin test is to be discarded ? We do not think
that it should be discarded. It makes the court the judge of obscenity in
relation to an impugned book etc. and lays emphasis on the potentiality of the
impugned object to deprave and corrupt by immoral influences. It 'Will always
remain a question to decide in each case and it does not compel an adverse
decision in all cases. Mr. Garg, however, urges that the test must be modified
in two respects. He wants us to say that a book is not necessarily obscene
because there is a word here or a word there, or a passage here and a passage
there which may be offensive to particularly sensitive persons. He says that
the overall effect of the book should be the test and secondly, that the book
should only be condemned if it has no redeeming merit at all, for then it is
"dirt for dirt's sake", or as Mr. Justice Frankfurter put it in his
inimitable way "dirt for money's sake." His contention is that judged
(1)  1 W.L.R. 738.
76 of in this light the impugned novel passes
the Hicklin test if it is reasonably modified.
Mr. Garg is not right in saying that the
Hicklin case(1) emphasised the importance of a few words or a stray passage.
The words of the Chief Justice were that
"the matter charged" must have "a tendency to deprave and
corrupt". The observation does not suggest that even a stray word or an
insignificant passage would suffice. Any observation to that effect in the
ruling must be read secundum subjectum material, that is to say, applicable to
the pamphlet there considered. Nor is it necessary to compare on-book with another
to find the extent of permissible action. It is useful to bear in mind the
words of Lord Goddard, Chief Justice in the Reiter case. (2) "The
character of other books is a collateral issue, the exploration of which would
be endless and futile. If the books produced by the prosecution are indecent or
obscene, their quality in that respect cannot be made any better by examining
other books . . ." The Court must, therefore, apply itself to consider
each work at a time. This should not, of course, be done in the spirit of the
lady who charged Dr. Johnson with putting improper words in his Dictionary and
was rebuked by him :
"Madam, you must have been looking- for
them." To adopt such an attitude towards art and literature would make the
courts a board of censors. An overall view of the obscene matter in the setting
of the whole work would, of course, be necessary, but the obscene matter must
be considered by itself and separately to find out whether it is so gross and
its obscenity so decided that it is likely to deprave and corrupt those whose
minds are open to influences of this sort and into whose hands the book :is
likely to fall. In this connection the interests of our contemporary society
and Particularly the influence of the book etc. on it must not be overlooked A
number of considerations may here enter which it is not necessary to enumerate,
'out we must draw attention to one fact. Today our national and regional
languages are strengthening themselves by new literary standards after a
deadening period under the impact of English. Emulation by our writers of an
obscene book under the aegis of this Court's determination is likely to
-pervert our entire literature because obscenity pays and true -art finds
little popular support. Only an obscurant will deny the need for such caution.
This consideration marches with all law and precedent on this subject and so
considered we can only say that where (1) (1868) L. R. 3 Q. B. 360 (2) (1954) 2
Q. B. 16 77 obscenity and art are mixed, art must so preponderate as to throw
the obscenity into a shadow or the obscenity so trivial and insignificant that
it can have no effect and may be overlooked. In other words, treating with sex
in a manner offensive to public decency and morality (and these are the words,
of our Fundamental Law), judged of by our national standards and considered
likely to pander to lascivious, prurient or sexually precocious minds, must
determine the result. We need not attempt to bowdlerize all literature and thus
rob speech and expression of freedom. A balance should be maintained between
freedom of speech and expression and public decency and morality but when the
latter is substantially transgressed the former must give way.
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 extent of such appeal in a particular book etc. are
matters for consideration in each individual case.
It now remains to consider the book Lady
The story is simple. A baronet, wounded in
the war is paralysed from the waist downwards. He married Constance (Lady
Chatterley) a little before he joined up and they had a very brief honeymoon.
Sensing the sexual frustration of his wife and their failure to have an heir he
leaves his wife free to associate with other men. She first experiences with
one Michaelis and later with a game-keeper Mellors in charge of the grounds.
The first over was selfish sexually, the other was something of an artist. He
explains to Constance the entire mystery of eroticism and they put it into
practice. There are over a dozen descriptions of their sexual intimacies. The
game-keeper's speech and vocabulary (1) 354 U.S. 476, 1 L. ed. 2d. 1498 (1957).
ISUP./64--6 78 were not genteel. He knew no
Latin which could be used to appease the censors and the human pudenda and
other eroge- nous parts are freely discussed by him and also named by the
author in the descriptions. The sexual congress each time is described with
great candidness and in prose as tense as it is intense and of which Lawrence
was always a consummate master. The rest of the story is a mundane one. There
is some criticism of the modern machine civilization and its enervating effects
and the production of sexually inefficient men and women and this, according to
Lawrence, is the cause of maladjustment of sexes and their unhappiness.
Lawrence had a dual purpose in writing the
book. The first was to shock the genteel society of the country of his birth
which had hounded him and the second was to portray his ideal of sexual
relations which was never absent from any of his books. His life was a long battle
with the censor- morons, as he called them. Even before he became an author he
was in clash with conventions. He had a very repressive mother who could not
reconcile herself to the thought that her son had written the White Peacock.
His sisters were extremely prim and correct. In Ms letters he said that he
would not like them to read Lady Chatterley's Lover. His school teacher would
not let him use the word 'stallion' in an essay and his first love Jessie could
not read aloud Ibsen as she considered him immodest. This was a bad beginning
for a hyper-sensitive man of "wild and untamed masculinity." Then
came the publishers and last of all the censors. From 1910 the publishers asked
him to prune and prune his writings and he wrote and rewrote his novels to
satisfy them. Aldous Huxley tells us that Lady Chatterley's Lover was written
three times [Essays (Dent)]. Aldington in his Portrait of a Genius has seen in
this a desire to avoid being pornographic but the fact is that Lawrence hated
to be bowdlerized. His first publisher Heinemann refused his Sons and Lovers
and he went over to Duckworths. They refused his Rainbow and he went to Secker.
They brought out his Lost Girl and it won a prize but after the Rainbow he was
a banned author whose name could not be mentioned in genteel society. He became
bitter and decided to produce a "taboo- shattering bomb". At the same
time he started writing in defence of his fight for sexual liberation in
English writing. This was Lawrence's first reason for writing the book under
Lawrence viewed sex with indifference and
also with passion.
He was indifferent to it because he saw in it
nothing to hide and he saw it with passion because to him it was the only
"motivating 79 power of life" and the culmination of all human
strength and happiness. His thesis in his own words was-"I want men and
women to be able to think of sex fully, completely, honestly and cleanly"
and not to make of it "a dirty little secret".
The taboo on sex in art and literature which
was more strict thirty-five years ago, seemed to him to corrode domestic and
social life and his definite view was that a candid discussion of sex through
art was the only catharsis for purifying and relieving the congested emotion
is. This is the view he expounded through his writings and sex is never absent
from his novels, his poems and his critical writings.
As he was inclined freely to use words which
Swift had used before him and many more, he never considered his writings
obscene. He used them in this book with profusion and they occur in
conversation between Mellors and Constance and in the descriptions of the
sexual congresses and the erotic love play. The realism is staggering and
outpaces the French Realists. But he says of himself :
"I am abused most of all for using the
so called 'obscene words'. Nobody quite knows what the word 'obscene' itself
means, or what it is intended to mean; but gradually all the old words that
belong to the body below the navel, have come to be judged obscene."
(Introduction to Pansies).
This was the second motivating factor in the
One cannot doubt the sincerity of Lawrence's
belief and his missionary zeal. Boccaccio seemed fresh and wholesome to him and
Dante was obscene. He prepared a theme which would lend itself to treating with
sex on the most erotic plane and one from which the genteel society would get
the greatest shock and introduced a game-keeper in whose mouth he could put all
the taboo words and then he wrote of sex, of the sex organs and sex actions
with brutal candidness.
With the magic of words he made the
characters live and what might even have passed for allegory and symbolism
became extreme realism. He went too far. While trying to edit the book so that
it could be published in England he could not excise the prurient parts. He
admitted defeat and wrote to Seekers that he "got colour-blind and did not
know any more what was supposed to be proper and what not." Perhaps he got
colour-blind when he wrote it. He wanted to shock genteel society, a society which
had cast him out and banned him.
He wrote a book which in his own words was
"a revolutions bit of a bomb". No doubt he wrote a flowering book
with pistil and stamens standing but it was to quote his own words again
"a phallic 80 novel, a shocking novel". He admitted it was too good
for the public. He was a courageous writer but his zeal was misplaced because
it was born of hate and his novel was "too phallic for the gross
public." This is where the law comes in. The law seeks to protect not
those who can protect themselves but those whose prurient minds take delight
and secret sexual pleasure from erotic writings. No doubt this is treating with
sex by an artist and hence there is some poetry even in the ugliness of sex.
But as Judge Hand said obscenity is a function of many variables. If by a
series of descriptions of sexual encounters described in language which cannot
be more candid, some social good might result to us there would be room for
considering the book. But there is no other attraction in the book. As J. B.
Priestley said, "Very foolishly he tried to philosophize upon instead of
merely describing these orgiastic impulses: he is the poet of a world in rut,
and lately he has become its prophet, with unfortunate results in his fiction."
[The English Novel. p.
142 (Nelson) ]. The expurgated copy is
available but the people who would buy the unexpurgated copy do not care for
it. Perhaps the reason is as was summed up by Middleton Murray:
"Regarded objectively, it is a wearisome
and oppressive book; the work of a weary and hopeless man. It is remarkable,
indeed notorious for its deliberate use or unprintable words." The whole
book really consists of detailed descriptions of their sexual fulfillment. They
are not offensive, sometimes very beautiful, but on the whole strangely
wearisome. The sexual atmosphere is suffocating. Beyond this sexual atmosphere
there is nothing." [Son of Woman (Jonathan Cape)].
No doubt Murray says that in a very little
while and on repeated readings the mind becomes accustomed to them but he says
that the value of the book then diminishes and it leaves no permanent
impression. The poetry and music which Lawrence attempted to put into sex
apparently cannot sustain it long and without them the book is nothing. The
promptings of the unconscious particularly in the region of sex is suggested as
the message in the book. But it is not easy for the ordinary reader to find it.
The Machine Age and its impact on social life which is its-secondary theme does
not interest the reader for whose protection, as we said, the law has been
81 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 Unconscious 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 indicated above.
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.