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CASE NO.: Writ Petition (civil)  384 of 2005

PETITIONER: Ajay Goswami

RESPONDENT: Union of India & Ors

DATE OF JUDGMENT: 12/12/2006

BENCH: Dr. AR. Lakshmanan & Tarun Chatterjee

JUDGMENT: J U D G M E N T

Dr. AR. Lakshmanan, J.

The Petitioner is a lawyer by profession.  Respondent  No.1    is Union of India, respondent No.2 is a statutory body,  respondent Nos. 3 & 4 are the leading national daily  newspapers and respondent No.5 & 6 are news agencies. The present petition involves a substantial question of  law and public importance on the fundamental right of the  citizens, regarding the freedom of speech and expression as  enshrined under Article 19(1)(a) of the Constitution of India.   The petitioner’s grievance is that the freedom of speech and  expression enjoyed by the newspaper industry is not keeping  balance with the protection of children from harmful and  disturbing materials.  Article 19(1)(a) guarantees freedom of  speech and expression of individual as well as press.  It  acknowledges that the press is free to express its ideas but on  the same hand, individual also has right to their own space  and right not to be exposed against their will to other’s  expressions of ideas and actions. By way of this petition, the petitioner requested the Court  to direct the authorities to strike a reasonable balance  between the fundamental right of freedom of speech and  expression enjoyed by the press and the duty of the  Government, being signatory of United Nations Convention on  the Rights of the Child, 1989 and Universal Declaration of  Human Rights, to protect the vulnerable minors from abuse,  exploitation and harmful effects of such expression.  The  petitioner requested the Court to direct the concerned  authorities to provide for classification or introduction of a  regulatory system for facilitating climate of reciprocal tolerance  which may include:-  (a)     an acceptance of other people’s rights to express  and receive certain ideas and actions; and (b)     accepting that other people have the right not to  be exposed against their will to one’s expression  of ideas and actions.   The reciprocal tolerance is further necessary considering  the growing tendency among youngsters and minors in  indulging in X-rated jokes, SMS and MMS.     We heard Mr. Ajay Goswami, petitioner-in-person and  Mr. Harish Chandra, learned senior counsel, Mr. P.H. Parekh,  Mr. Sanjay Kumar, Mr. A.K. Seth, Mr. Gopal Jain, Mr. Vimal  Chandra, Mr. S. Dave, learned counsel appearing for the  respondents and the entire documents placed before us. The Lawyer Petitioner who appeared in person submitted  that he filed this petition to seek protection from this Court to  ensure that minors are not exposed to sexually exploitative

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materials, whether or not the same is obscene or is within the  law.  The real objective is that the nature and extent of the  material having sexual contents should not be exposed to the  minors indiscriminately and without regard to the age of  minor.  The discretion in this regard should vest with parents,  guardians, teachers or experts on sex education. The petitioner is not in any way seeking restrain on the  freedom of press or any censorship prior to the publication of  article or other material.  The petitioner is only seeking for the  regulation at the receiving end and not at the source.   Whatever is obscene is not protected by any law and there are  numerous avenues for the redressal of grievance for the  publication of any obscene material.  However, all sex oriented  material are not always obscene or even indecent or immoral.   The effect of words or written material should always judged  from the standards of reasonable strong minded, firm and  courageous man i.e. an average adult human being.  No  attempt has been made till date to define any yardstick for the  minors whose tender minds are open for being polluted and  are like plain state on which any painting can be drawn. 1. Is the material in newspaper really harmful for the  minors? These articles etc. may not be obscene within the four  corners of law but certainly have tendencies to deprave and  corrupt the minds of young and adolescent who by reasons of  their physical and mental immaturity needs special safeguards  and care.  He invited our attention to some of the clippings  annexed along with the petition.  These clipping are only  examples and such examples not only confine to newspapers  mentioned herein but is of general nature.  The double  meaning jokes cannot in any way leave healthy impact on the  tender minds of the teenagers.  The photographs certainly are  part of news from around the world and India.  However, the  tone and tenor of the article as a whole and the way some of  the photographs are published and described may not be in  the interest of the minors.  The photographs annexed at page  24 of the paper book and the caption below them such as "the  center of attention", "double jeopardy" "butt of course" leave  much for the thoughts of minors.  If the minor is of an age  where he/she cannot understand the meaning, he/she would  like to know from others and if the minor has come to an age  where he/she is able to understand this would certainly  energize his grey cells in the brain and would titillate him/her.   What kind of culture and message the article titled "moan for  more" or "get that zing bag into your sex life" convey.  Is it  really necessary for a child to read at a very early stage the  concept of masturbation, ejaculation, penetration etc. as is  normally discussed by so called sex experts in columns of  newspapers.  At what age should we start telling our children  where to have sex and how to break their monotony.  News  item on MMS clipping is certainly not obscene but do we really  need to show the nude photographs with only small black  stripes on the private parts to our children without even  bothering of its effect.  In Times of India dated 1.8.2005 an  article titled "Porn In potter VI" was published, copy of which  is annexed with the petition.  The author has tried to read and  suggest sexual messages in these lines.  Children who were  reading the book might not have any such inclination.   However, after reading newspaper their mind would certainly  wander to an area which the author might not have even  conceived. No doubt, we are not living an era of Gandhari but  certainly we have culture and respect for elders and some  decorum and decency towards children.  Undoubtedly, such  kind of stuff is available freely on internet, movies; televisions

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etc. but are the families and the community environment  really ready to accept it in toto or are they passive receiver of  the same without any control or check.  Are these articles  really making our children morally healthy? Moral values should not be allowed to be sacrificed in the  guise of social change or cultural assimilation. 2.      Whether the minors have got any independent right  enforceable under Article 32 of the Constitution? The right of the minor flows from Article 19(1)(a), Article 21  read with Article 39(f) of the Constitution of India and United  Nation Convention on the Rights of the Child.  In a recent  judgment delivered by this court in the matter of Director  General, Directorate General of Doordarshan & Ors. Vs.  Anand Patwardhan & Anr. (C.A.No. 613 of 2005), to which  one of us was a member, Dr. Justice AR. Lakshmanan,  observed as under: "\005..one of the most controversial issue is balancing the  need to protect society against the potential harm that may  flow from obscene material, and the need to ensure respect  for freedom of expression and to preserve a free flow of  information and idea."    It was further observed by this Court : "\005\005\005.The Indian Penal Code on obscenity grew out of the  English Law, which made court the guardian of public  morals. It is important that where bodies exercise discretion,  which may interfere in the enjoyment of constitutional  rights, that discretion must be subject to adequate law."

"\005\005\005The judge should thereafter place himself in the  position of a reader of every age group in whose hands the  book is likely to fall and should try to appreciate what kind  of possible influence the book is likely to have in the minds  of the readers."     It was observed by this Court in the matter of  Lakshmikant Pandey vs. Union of India,  (1984) 2   SCC 244 as follows: "It is obvious that in a civilized society the importance of child  welfare cannot be over-emphasized, because the welfare of  the entire community, its growth and development, depend on  the health and well-being of its children. Children are a  "supremely important national asset" and the future well  being of the nation depends on how its children grow and  develop. The great poet Milton put it admirably when he said:  "Child shows the man as morning shows the day" and the  Study Team on Social Welfare said much to the same effect  when it observed that "the physical and mental health of the  nation is determined largely by the manner in which it is  shaped in the early stages". The child is a soul with a being, a  nature and capacities of its own, who must be helped to find  them, to grow into their maturity, into fulness of physical and  vital energy and the utmost breadth, depth and height of its  emotional, intellectual and spiritual being; otherwise there  cannot be a healthy growth of the nation. Now obviously  children need special protection because of their tender age  and physique mental immaturity and incapacity to look-after  themselves. That is why there is a growing realisation in  every part of the globe that children must be brought up in an  atmosphere of love and affection and under the tender care  and attention of parents so that they may be able to attain full  emotional, intellectual and spiritual stability and maturity and  acquire self-confidence and self-respect and a balanced view  of life with full appreciation and realisation of the role which  they have to play in the nation building process without which

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the nation cannot develop and attain real prosperity because  a large segment of the society would then be left out of the  developmental process. In India this consciousness is reflected  in the provisions enacted in the Constitution. Clause (3) of  Article 15 enables the State to make special provisions inter  alia for children and Article 24 provides that no child below  the age of fourteen years shall be employed to work in any  factory or mine or engaged in any other hazardous  employment. Clauses (e) and (f) of Article 39 provide that the  State shall direct its policy towards securing inter alia that the  tender age of children is not abused, that citizens are not  forced by economic necessity to enter avocations unsuited to  their age and strength and that children are given facility to  develop in a healthy manner and in conditions of freedom and  dignity and that childhood and youth are protected against  exploitation and against moral and material abandonment.  These constitutional provisions reflect the great anxiety of the  constitution makers to protect and safeguard the interest and  welfare of children in the country. The Government of India  has also in pursuance of these constitutional provisions  evolved a National Policy for the Welfare of Children. This  Policy starts with a goal-oriented perambulatory introduction:

The nation’s children are a supremely important asset.  Their nurture and solicitude are our responsibility. Children’s  programme should find a prominent part in our national plans  for the development of human resources, so that our children  grow up to become robust citizens, physically fit, mentally  alert and morally healthy, endowed with the skills and  motivations needed by society. Equal opportunities for  development to all children during the period of growth should  be our aim, for this would serve our larger purpose of reducing  inequality and ensuring social justice.

The National Policy sets out the measures which the  Government of India proposes to adopt towards attainment of  the objectives set out in the perambulatory introduction and  they include measures designed to protect children against  neglect, cruelty and exploitation and to strengthen family ties  "so that full potentialities of growth of children are realised  within the normal family neighbourhood and community  environment\005.." Further this Court in Unnikrishnan, J.P & Ors vs. State  of Andhra Pradesh & Ors. , (1993) 1 SCC 645 upheld the  right to education for children of age of 14 as fundamental  right.  In para 165, this Court observed as follows: "It is thus well established by the decisions of this Court that  the provisions of Parts III and IV are supplementary and  complementary to each other and that Fundamental Rights  are but a means to achieve the goal indicated in Part-IV. It is  also held that the fundamental Rights must be construed in  the light of the Directive Principles. It is from the above stand- point that Question No. 1 has to be approached".

This judgment to that extent was not overruled even by  larger Bench.  This Court in the case of Unnikrishnan (supra)  relied upon numerous judgments. In His Holiness Kesavananda Bharati  Sripadagalvaru vs. State of Kerala & Another, (1973) 4  SCC 225, this court observed as follows: "\005\005..The fundamental rights and the directive principles  constitute the ’conscience’ of our Constitution\005.To ignore Part  IV is to ignore the sustenance provided for in the Constitution,  the hopes held out to the Nation and the very ideals on which  our Constitution is built\005here is no anti-thesis between the

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fundamental rights and the directive principles. One  supplements the other.

\005..Both Parts III and IV\005have to be balanced and  harmonized\005.then alone the dignity of the individual can be  achieved\005..They (fundamental rights and directive principles)  were meant to supplement each other.

Mathew,J. while adopting the same approach  remarked: (SCC pp. 875-76, para 1700)

The object of the people in establishing the Constitution  was to promote justice, social and economic, liberty and  equality. The modus operandi to achieve these objectives is  set out in Part III and IV of the Constitution. Both parts III and  IV enumerate certain moral rights. Each of these parts  represent in the main the statements in one sense of certain  aspirations whose fulfillment was regarded as essential to the  kind of society which the Constitution- makers wanted to  build. Many of the articles, whether in Part III or IV, represents  moral rights which they have recognized as inherent in every  human being in this country. The tasks of protecting and  realizing these rights is imposed upon all organs of the state,  namely, legislative, executive and judicial. What then is the  importance to be attached to the fact that the provisions of  Part III are enforceable in a court and the provisions in Part IV  are not? Is it that the rights reflected in the provisions of Part  III are somehow superior to the moral claims and aspirations  reflected in the provisions of Part IV or not? I think not. Free  and compulsory education under Article 25, Freedom from  starvation is as important as right to life. Nor are the  provisions in Part III absolute in the sense that the rights  represented by them can always be given full  implementation\005.."

This Court also cited observation in Brown vs. Board of  Education  347 US 483 (1954) wherein it was emphasized in  the following words: "\005.Today, education is perhaps the most important  function of State and a local government\005.It is required in  the performance of our most basic responsibilities, even  service in the armed forces.  It is the very foundation of good  citizenship.  Today, it is the principal instrument in  awakening the child to cultural values, in preparing him for  later professional training, and in helping him to adjust  normally to his environment.  In these days, it is doubtful  any child may reasonably be expected to succeed in life if he  is denied the opportunity of education."

This Court in the case of M.C. Mehta vs. State of  T.N. and Ors. ,  (1996) 6 SCC 756 observed that: "Of the aforesaid provisions, the one finding place in Article 24  has been a fundamental right ever since 28th January, 1950.  Article 45 too has been raised to high pedestal by Unni  krishnan, which was decided on 4th February, 1993. Though  other articles are part of directive principles, they are  fundamental in the governance of our country and it is the  duty of all the organs of the State (a la Article 37) to apply  these principles. Judiciary, being also one of the three  principal organs of the State, has to keep the same in mind  when called upon to decide matters of great public  importance. Abolition of child labour is definitely a matter of  great public concern and significance.

It would be apposite to apprise ourselves also about our

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commitment to world community. For the case at hand it  would be enough to note that India has accepted the  convention on the Rights of the Child, which was concluded by  the UN General Assembly on 20th November, 1989. This  Convention affirms that children’s right require special  protection and it aims, not only to provide such protection, but  also to ensure the continuous improvement in the situation of  children all over the world, as well as their development and  education in conditions of peace and security. Thus, the  Convention not only protects the child’s civil and political right,  but also extends protection to child’s economic, social, cultural  and humanitarian rights."

3.  Maintainability of Petition  In view of the above facts and circumstances and legal  proposition, Mr. Ajay Goswami, the petitioner-in-person  submitted that:

i)      Newspapers are publishing sex oriented  material which may not be obscene otherwise  but still caters to prurient interest of the minor. ii)     Minors have got fundamental right under  Article 19(1)(a), Article 21 read with Article 39(f)  of the Constitution and United Nation  Convention on the Rights of the   Child.  As freedom of speech and expression  also includes the expressions of the minors  which need care as the minor due to their  tender age and mental immaturity are not  capable of deciding themselves as to what is in  the interest of their growth morally &  culturally, so that they can assume their  responsibility within the community. iii)    The right also flows from Article 21 as the right  to live shall also includes right to education as  pronounced in the judgments of this Court.  By  necessary corollary, it shall also mean right to  proper education which may be decided by the  parents, teachers and other experts and  newspapers cannot be allowed to disturb that  by their indeterminately access of the offending  article to the minors regardless of their age. iv)     The State which has the duty to protect the  minors by appropriate legislation or executive  orders has failed in its duty.  The Press Council  of India which was constituted for preserving  the freedom of press and maintaining and  improving the standards of newspapers and  news agency is a powerless body.  No guidelines  have been framed for the minors and  adolescents in particular, which can be  enforced in Court of law.  The Council itself feel  the necessity of some strong and effective  measure to correct it. v)      The citizens of this country can only pray to  this Court to prevent injustice being done to  them.  This Court under Article 32 read with  Article 142 can issue guidelines to ensure the  growth of the children in a healthy and moral  atmosphere which is exploited by the  newspapers.   Mr. Ajay Goswami relied on two judgments of this Court.  In   Comptroller & Auditor General of India & anr. Vs. K.S.  Jagnathan, (1986) 2 SCC 679, this Court held as under: "\005\005.In order to prevent injustice resulting to the concerned

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parties, the Court may itself pass an order to give directions  which the government or the public authority should have  passed or given had it properly and lawfully exercised its  discretion."

Similarly in Vineet Narain & Ors. Vs. U.O.I. (1998) 1  SCC 226, this Court held as under: "\005\005\005\005\005There are ample powers conferred by Article  32 read with Article 142 to make orders which have the  effect of law by virtue of Article 141 and there is mandate to  all authorities to act in aid of the orders of this Court as  provided in Article 144 of the Constitution. In a catena of  decisions of this Court, this power has been recognized and  exercised, if need be, by issuing necessary directions to fill  the vacuum till such time the legislature steps in to cover  the gap or the executive discharges its role\005\005\005\005."

"Where there is inaction by the legislature it is the  duty of executive to fill the vacuum and where there is  inaction even by executive for whatever reasons judiciary  must step in."

Concluding his arguments, Mr. Ajay Goswamy,  petitioner-in-person made the following proposals: i)      Guidelines in detail may be issued to all the  newspapers regarding the matter which may not  be suitable for the reading of minors or which  may require parents or teachers discretion. ii)     Newspapers should have self regulatory system to  access the publication in view of those guidelines. iii)    In case the newspapers publishe any material  which is categorized in the guidelines the  newspaper be packed in some different form and  should convey in bold in front of newspapers of  the existence of such material. iv)     This would give discretion to the parents to  instruct the news vendor whether to deliver such  newspaper or not. OR         In the alternative, he suggested a Committee be  appointed to suggest ways and means for regulating the  access of minors to adult oriented sexual, titilliating or  prurient material.    Mr. Harish Chandra, learned senior counsel appearing  for Union of India - respondent No.1 in reply to the arguments  of the petitioner submitted that publishing as well as  circulating of obscene and nude/semi-nude photographs of  women already constitutes a penal offence under the  provisions of the Indecent Representation of Women  (Prohibition) Act, 1986, administered by the Department of  Women & Child Development, Ministry of Human Resources  Development.  Relevant Sections 3 & 4 of the Indecent  Representation of Women (Prohibition) Act, 1986 are  reproduced hereunder for ready reference: "3.  Prohibition of advertisements containing indecent  representation of woman:-  No person shall publish, or  cause to be published or arrange or take part in the  publication or exhibition or, any advertisement which  contains indecent representation of women in any  form.

4.      Prohibition of publication or sending by post of  books, pamphlets etc. containing indecent  representation of women \026 No person shall  produce or cause to be produced, sell, let to hire,

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distribute or circulate or send by post any book,  pamphlet, paper, slide, film, writing drawing,  painting, photographs, representation or figure of  women in any form, provided that nothing in this  section shall apply to:

(a)     any book, pamphlet, paper, slide, film,  writing, drawing, painting, photograph,  representation or figure:-

(i)     the publication of which is proved  to be justified as being for the  public good on the ground that  such book, pamphlet, paper, slide,  film, writing, drawing, painting,  photograph, representation or  figure is in the interest of science,  literature, art or learning or other  object of general concern; or

(ii)    which is kept or used bona fide for  religious purposes;

(b)     any representation sculptured, engraved,  painted or otherwise represented on or in -               

(i)     any ancient monument within the  meaning of the Ancient Monument  and Archaeological Sites and  Remains Act, 1958 (24 of 1958)

(ii)    any temple, or on any car used for  the conveyance of idols, or kept or  used for any religious purposes;

(c)     any film in respect of which the provisions  of Part II of the Cinematograph Act, 1952  (37 of 1952), will be applicable."

Section 6 of the Indecent Representation of Women  (Prohibition) Act, 1986 provides the penalty for committing  such offences in contravention of Sections 3 & 4 of the said  Act.  Section 6 reads as follows: "6. Penalty- Any person who contravenes the  provisions of Sections 3 & 4 shall be punishable on  first conviction with imprisonment of either description  for a term which may extend to two years, and with  fine which may extend to two thousand rupees, and in  the event of a second or subsequent conviction with  imprisonment for a term of not less than six months  but which may extend to five years and also with a fine  not less than ten thousand rupees but which may  extend to one lac rupees."

It was further submitted that sale, letting, hiring,  distributing, exhibiting, circulating of obscene books and  objects of young persons under the age of twenty years also  constitutes a penal offence under Sections 292 and 293 of the  Indian Penal Code and is punishable on first conviction with  imprisonment of either description for a term which may  extend to two thousand rupees and in the event of a second or  subsequent conviction, with imprisonment of either  description for a term which may extend to seven years, and  also with fine which may extend to five thousand rupees. Concluding his submissions, he submitted that there are

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laws in existence which prohibit publishing, circulating and  selling obscene books and objects to young persons and it is  the responsibility of the "Press" to adhere to and comply with  these laws and not to abuse the freedom of speech and  expression (freedom of press) guaranteed under Article 19(1)(a)  of the Constitution of India. Mr. P.H. Parekh, learned counsel appearing for  respondent No.2-Press Council of India, submitted that the  Press Council enjoys only limited authority, with its power  limited to giving directions, censure etc. to the parties  arraigned before it, to publish particulars relating to its  enquiry and adjudication etc.  The powers of the Council in so  far its authority over the press is concerned are enumerated  under Section 14 of the Press Council Act, 1978.  However, it  has no further authority to ensure that its directions are  complied with and its observations implemented by the erring  parties.  Lack of punitive powers with Press Council has tied  its hands in exercising control over the erring publications.           Learned counsel further submitted that despite various  requests to the Central Government from the year 1999 to  amend the Press Council Act, 1978, the same has not been  amended.  Recently, on 1.6.2006, under clause 18(d), an  advertisement policy was issued by the Directorate of Audio  Visual Publicity under the Central Government Advertisement  Policy stating that the newspapers will be suspended from  empanelment by DG, DAVP with immediate effect if it indulged  in unethical practices or anti-national activities as found by  the Press Council of India.             Learned counsel further submitted that as the issue  which arise in the present petition requires urgent action, it  will be appropriate that this Court may formulate certain  guidelines as suggested by the Press Council vide its letter  dated 6.1.2002 for amendment by way of incorporation of two  provisions viz., Section 14(2)(a) and Section 14(2)(b) in the  Press Council Act, 1978 till the law made by the legislature  amending the Press Council Act, 1978 as per the various  judgments passed by this Court which are as follows: 1.      Vishaka & Ors. Vs. State of Rajasthan & Ors. (1997)  6 SCC 241 2.      Vineet Narain & Ors. Vs. U.O.I. & Ors., (1998) 1 SCC  226 3.      Union of India vs. Association for Democratic  Reforms and Anr. (2002) 5 SCC 294. Learned counsel submitted that this Court may consider  to issue appropriate guidelines.   Learned counsel appearing for respondent no. 3 (Times of  India) contented that legislations, rules and regulations  already exists within the Indian legal framework to check  publication of obscene materials and articles.  Section 292 of  the Indian Penal Code prohibits and punishes selling, hiring,  exhibition, circulation, possession, importation, exportation of  obscene material. Sections 3 and 4 of the Indecent Representation of  Women Act also imposes a prohibition on the publication or  sending by post of books, pamphlets etc, selling, hiring,  distributing and circulating any material that contains  indecent representation of women in any form. Section 6 of the  said Act, also provides for punishment in the case of non- compliance to sections 3 and 4 of the Act. Further he submitted that the Press Council of India is  constituted duly under the Constitution of India for regulating  the functions and activities of the Press. Sections 13 (2) (c), 14  (1) and 14 (2) of the Press Council of India Act empowers the  Press Council to impose serious checks on the Newspaper,  News Agency, an editor or a journalist who flouts the norms as

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formulated by the Press Council and is against societal norms  of decency.  Learned Counsel also submitted that the Indian  Constitution under Article 19 (1) (a) guarantees every citizen  the right to freedom of speech and expression and respondent  being a leading Newspaper has the right to express its views  and various news of National and International relevance in its  edition and any kind of unreasonable restriction on this right  will amount to the violation of the right guaranteed by the  Indian Constitution.  Learned Counsel referred to a recent  judgment of this Court, Director General of Doordarshan  and Ors. v. Anand Patwardhan (Supra), it was observed that  the basic test for obscenity would be:  "(a) whether the average person applying contemporary  community standards would find that the work, taken as  a whole appeal to the prurient interest\005 (b) whether the work depicts or describes, in a patently  offensive way, sexual conduct specifically, defined by the  applicable state law, (c) whether the work taken as a whole, lacks serious  literary, artistic, political or scientific value."  In Shri Chandrakant Kalyandas Kakodkar v. The State of  Maharashtra and Others, (1962 (2) SCC 687), this Court  observed that: "12. The concept of obscenity would differ from country to  country depending on the standards of morals of  contemporary society. What is considered as a piece of  literature in France may be obscene in England and what is  considered in both countries as not harmful to public order  and morals may be obscene in our country. But to insist that  the standard should always be for the writer to see that the  adolescent ought not to be brought into contact with sex or  that if they read any references to sex in what is written  whether that is the dominant theme or not they would be  affected, would be to require authors to write books only for  the adolescent and not for the adults."

Learned counsel referred to the case of Samaresh Bose and  Another v. Amal Mitra and Another, (1985) 4 SCC 289, this  court observed that:         "The decision of the Court must necessarily be on an objective  assessment of the book or story or article as a whole and with  particular reference to the passages complained of in the  book, story or article. The Court must take an overall view of  the matter complained of as obscene in the setting of the  whole work, but the matter charged as obscene must also be  considered by itself and separately to find out whether it is so  gross and its obscenity so pronounced that it is likely to  deprave and corrupt those whose minds are open to influence  of this sort and into whose hands the book is likely to fall."

Learned counsel also referred to American jurisprudence  and stated that even nudity per se is not obscenity. In 50 Am  Jur 2 d, para 22 at page 23, "Articles and pictures in a  newspaper must meet the Miller’s test’s Constitutional standard  of obscenity in order for the publisher or distributor to be  prosecuted for obscenity. Nudity alone is not enough to make a  material legally obscene" In Alfred E Butler v. State of Michigan, 1 Led 2d 412,  the U.S. Supreme Court has held that: "The state insists that,  by thus quarantining the general reading public against books  not too rugged for grown men and women in order to shield  juvenile innocence, it is exercising its power to promote the  general welfare. Surely, this is to burn the house to roast the  pig."

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Further the learned counsel submitted that, the Times of  India, respondent no.3, is one of the leading newspapers and  its popularity only stands to show that the pictures published  in it are not objectionable and also that respondent while  publishing any news article has any intention to cater to the  prurient interest of anybody. Also the respondent no.3 has an  internal regulatory system to ensure that no objectionable  photograph or matter gets published. Mr. Gopal Jain, learned counsel appearing for Hindustan  Times respondent no.4, practically adopted the arguments put  forth by respondent no.3. In addition, respondent no.4 drew  our attention to the Guidelines under the "Norms of  Journalistic Conduct" which lays down guidelines for  newspapers /journalists to maintain standards with regard to  obscenity and vulgarity. Norm 17 reads as follows:  "Obscenity and vulgarity to be eschewed

i)      Newspapers/journalists shall not publish anything  which is obscene, vulgar or offensive to public good  taste.

ii)     Newspapers shall not display advertisements which  are vulgar or which, through depiction of a woman in  nude or lewd posture, provoke lecherous attention of  males as if she herself was a commercial commodity  for sale.

iii)    Whether a picture is obscene or not, is to be judged in  relation to three tests: namely

a)      Is it vulgar and indecent? b)      Is it a piece of mere pornography? c)      Is its publication meant merely to make money by  titillating the sex feelings of adolescents and among  whom it is intended to circulate?  In other words,  does it constitute an unwholesome exploitation for  commercial gain. Other relevant considerations are whether the  picture is relevant to the subject matter of the  magazine.  That is to say, whether its publication  serves any preponderating social or public purpose,  in relation to art, painting, medicine, research or  reform of sex.

iv)     The globalisation and liberalization does not give  licence to the media to misuse freedom of the Press  and to lower the values of the society.  The media  performs a distinct role and public purpose which  require it to rise above commercial consideration  guiding other industries and businesses.  So far as  that role is concerned, one of the duties of the media is  to preserve and promote our cultural heritage and  social values.

v)      Columns such as ’Very Personal’ in a newspaper  replying to personal queries of the readers must not  become grossly offensive presentations, which either  outrage public decency or corrupt public moral."

Learned Counsel contented that, the test of judging  should be that of an ordinary man of common sense and  prudence and not an "out of the ordinary hypersensitive man".  In the case of K.A.Abbas , Hidayatullah, C.J. opined: "If the  depraved begins to see in these things more than what an

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average person would, in much the same way, as it is wrongly  said, a Frenchman sees a woman’s legs in everything, it cannot  be helped."  Learned counsel further explained the procedure followed  by Hindustan Times before the publication of any  advertisement, "Advertisements are scrutinized by the  advertising department and in the event the advertising  department is in doubt, the assistance of the legal department  is resorted to. The departments are manned by qualified  persons who are well acquainted with the Norms and  Guidelines issued by the Press Council." Further the learned counsel submitted that, keeping in  mind special educational needs of the school-going students a  supplement called "HT Next- School Times" is published by  Hindustan Times. The respondent does not send any other  supplement other than this to educational institutions along  with the main paper. Thus, it was stated that respondent  realizes its responsibility towards children and at the same  time it would be inappropriate to deprive the adult population  of the entertainment which is well within the acceptable levels  on the ground that it may not be appropriate for the children. In conclusion, it was urged that any step to ban  publishing of certain news-pieces or pictures would fetter the  independence of free-press. Learned Counsel appearing for respondent no.5 and  Learned Counsel Dr. Kailash Chand appearing for respondent  no.6, submitted that the relief sought by the petitioner does  not relate to them and accordingly they are not giving any  reply.                We have given our careful consideration to the entire  material placed before us and the rival submissions made by  learned counsel appearing for the respective parties.  Maintainability of Writ Petition:         Before proceeding further, we feel better to reproduce the  prayers made in the writ petition which read as follows: "1)  Issue writ in the nature of writ of mandamus/order or  direction to the respondent Nos. 1 & 2 for laying down  rules/regulations to ensure that minor is not exposed to  sexually explicit material whether or not the same is obscene  or is within the law without express consent of the parents,  guardians or the experts on sex education.

2)  Respondent Nos. 1 & 2 be directed to constitute an expert  committee to look into the problem of unwanted exposure to  the minor through press and to lay down appropriate rules  and regulations for the same."

       The maintainability of the writ petition was also raised as  a preliminary issue by learned counsel appearing for some of  the respondents and, in particular, respondent Nos. 3 and 4.   Learned counsel for respondent No.3 pointed out that there  can be no mandamus for legislation and in support of the said  submission, he relied on the judgment of this Court in  Networking of Rivers: In Re: (2004 (11) SCC 360) wherein this  Court held .  "It is not open to this Court to issue any direction to  Parliament to legislate but the Attorney General submits that  the Government will consider this aspect and, if so advised,  will bring an appropriate legislation."

He also cited Common Cause vs. Union of India & Ors, 2003  (8) SCC 250.  This Court held: "From the facts placed before us it cannot be said that the  Government is not alive to the problem or is desirous of  ignoring the will of Parliament.  When the legislature itself

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had vested the power in the Central Government to notify  the date from which the Act would come into force, then the  Central Government is entitled to take into consideration  various facts including the facts set out above while  considering whether the Act should be brought into force or  not.  No mandamus can be issued to the Central  Government to issue the notification contemplated under  Section 1 (3) of the Act to bring the Act into force, keeping in  view the facts brought on record and the consistent view of  this Court.

       We have already noticed the prayer in the present writ  petition.  In our view, the prayer No.1 cannot at all be  countenanced inasmuch as sufficient protection in the form of  legislations, rules, regulations and norms have already been  laid down under the Press Council Act, 1978, I.P.C. etc. Prayer No.2 equally is vague and no case has been made  out for constituting an Expert Committee.  LEGISLATIONS AGAINST OBSCENITY: Section 13 of the Press Council Act, 1978 specifies the objects  and functions of the council. Section 13(2) (c) states: "to ensure on the part of newspapers, news agencies and  journalists, the maintenance of high standards of public  taste and foster a due sense of both the rights and  responsibilities of citizenship\005;

Section 14(1) states: "Where, on receipt of a complaint made to it or otherwise,  the Council has reason to believe that a newspaper or news  agency has offended against the standards of journalistic  ethics or public taste or that an editor or working journalist  has committed any professional misconduct, the Council  may, after giving the newspaper, or news agency, the editor  or journalist concerned an opportunity of being heard, hold  an inquiry in such manner as may be provided by  regulations made under this Act and, if it is satisfied that it  is necessary so to do, it may, for reasons to be recorded in  writing, warn, admonish or censure the newspaper, the news  agency, the editor or the journalist or disapprove the  conduct of the editor or the journalist, as the case may be :  

Provided that the Council may not take cognizance of a  complaint if in the opinion of the Chairman, there is no  sufficient ground for holding an inquiry.

Section 14(2) states:- "If the Council is of the opinion that it is necessary or expedient in  public interest so to do, it may require any newspaper to publish  therein in such manner as the Council thinks fit, any particulars  relating to any inquiry under this section against a newspaper or  news agency, an editor or a journalist working therein, including  the name of such newspaper, news agency, editor or journalist.

Section 292 of the Indian Penal Code reads:- "Sale, etc., of obscene books, etc._ (1) For the purposes of  sub-section (2), a book, pamphlet, paper, writing, drawing,  painting, representation, figure or any other object, shall be  deemed to be obscene if it is lascivious or appeals to the  prurient interest or if its effect, or (where it comprises two or  more distinct items) the effect of any one of its items, is, if  taken as a whole, such as to tend to deprave and corrupt  person, who are likely, having regard to all relevant  circumstances, to read, see or hear the matter contained or  embodied in it].

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[(2)] 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 circulation, 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,

shall be punished on first conviction with imprisonment of  either description for a term which may extend to two years,  and with fine which may extend to two thousand rupees,  and, in the event of a second or subsequent conviction, with  imprisonment of either description for a term which may  extend to five years, and also with fine which may extend to  five thousand rupees.

[Exception- This section does not extend to- (a) any book, pamphlet, paper, writing, drawing,  painting, representation or figure-

(i)     the publication of which is proved to be justified as  being for the public good on the ground that such book,  pamphlet, paper, writing, drawing, painting, representation  or figure is in the interest of science, literature, art of  learning or other objects of general concern, or          (ii) which is kept or used bona fide for religious purposes;

(b) any representation sculptured, engraved, painted or  otherwise represented on or in-

(i) any ancient monument within the meaning of the Ancient  Monuments and Archaeological Sites and Remains Act, 1958  (24 of 1958), or

(ii) any temple, or on any car used for the conveyance of  idols, or kept or used for any religious purpose.]"

Sections 4 and 6 of the Indecent Representation of Women  Act, 1986 are also in existence. In view of the availability of sufficient safeguards in terms of  various legislations, norms and rules and regulations to

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protect the society in general and children, in particular, from  obscene and prurient contents, we are of the opinion that the  writ at the instance of the petitioner is not maintainable.          Article 19(1)(a) deals with freedom of speech and  expression.  In the matter of Virendra vs. State of Punjab &  Another, [AIR 1957 SC 896] this Court held:  "\005It is certainly a serious encroachment on the valuable and  cherished right to freedom of speech and expression if a  newspaper is prevented from publishing its own views or the  views of its correspondents relating to or concerning what  may be the burning topic of the day.  Our social interest ordinarily demands the free propagation  and interchange of views but circumstances may arise when  the social interest in public order may require a reasonable  subordination of the social interest in free speech and  expression to the needs of our social interest in public order.  Our Constitution recognises this necessity and has attempted  to strike a balance between the two social interests. It permits  the imposition of reasonable restrictions on the freedom of  speech and expression in the interest of public order and on  the freedom of carrying on trade or business in the interest of  the general public.  Therefore, the crucial question must always be : Are the  restrictions imposed on the exercise of the rights under Arts.  19(1)(a) and 19(1)(g) reasonable in view of all the surrounding  circumstances ? In other words are the restrictions reasonably  necessary in the interest of public order under Art. 19(2) or in  the interest of the general public under Art. 19(6) ?"

Test of obscenity:         This Court has time and again dealt with the issue of  obscenity and laid down law after considering the right of  freedom and expression enshrined in Article 19(1)(a) of the  Constitution of India, its purport and intent, and laid down  the broad principles to determine/judge obscenity.   In a recent judgment Director General, Directorate  General of Doordarshan & Ors. Vs. Anand Patwardhan &  Anr.   reported in JT 2006(8) SC 255 (Dr. AR. Lakshmanan  and L.S. Panta, JJ) This Court has referred to the Hicklin test  laid down in 1868-3 QB 360 and observed: "(a) whether the average person applying contemporary  community standards would find that the work, taken as a  whole appeal to the prurient interest\005 (b) whether the work depicts or describes, in a patently  offensive way, sexual conduct specifically, defined by the  applicable state law, (c) whether the work taken as a whole, lacks serious literary,  artistic, political or scientific value."

In Shri Chandrakant Kalyandas Kakodkar vs. The State  of Maharashtra and Others, 1969 (2) SCC 687. This Court  has held: "In early English writings authors wrote only with unmarried  girls in view but society has changed since then to allow  litterateurs and artists to give expression to their ideas,  emotions and objectives with full freedom except that is  should not fall within the definition of ’obscene’ having regard  to the standards of contemporary society in which it is read.  The standards of contemporary society in India are also fast  changing. The adults and adolescents have available to them  a large number of classics, novels, stories and pieces of  literature which have a content of sex, love and romance. As  observed in Udeshi’s case (Supra) if a reference to sex by itself  is considered obscene, no books can be sold except those

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which are purely religious. In the field of art and cinema also  the adolescent is shown situations which even a quarter of a  century ago would be considered derogatory to public  morality, but having regard to changed conditions are more  taken for granted without in anyway tending to debase or  debauch the mind. What we have to see is that whether a  class, not an isolated case, into whose hands the book, article  or story falls suffer in their moral outlook or become depraved  by reading it or might have impure and lecherous thought  aroused in their minds. The charge of obscenity must,  therefore, be judged from this aspect"

       In Samaresh Bose & Anr. Vs. Amal Mitra & Anr.  (Supra),  this Court held as under: "In England, as we have earlier noticed, the decision on the  question of obscenity rests with the jury who on the basis of  the summing up of the legal principles governing such action  by the learned Judge decides whether any particular novel,  story or writing is obscene or not. In India, however, the  responsibility of the decision rests essentially on the Court. As  laid down in both the decisions of this Court earlier referred  to, "the question whether a particular article or story or book is  obscene or not does not altogether depend on oral evidence,  because it is the duty of the Court to ascertain whether the  book or story or any passage or passages therein offend the  provisions of Section 292 I.P.C." In deciding the question of  obscenity of any book, story or article the Court whose  responsibility it is to adjudge the question may, if the Court  considers it necessary, rely to an extent on evidence and  views of leading literary personage, if available, for its own  appreciation and assessment and for satisfaction of its own  conscience. The decision of the Court must necessarily be on  an objective assessment of the book or story or article as a  whole and with particular reference to the passages  complained of in the book, story or article. The Court must  take an overall view of the matter complained of as obscene in  the setting of the whole work, but the matter charged as  obscene must also be considered by itself and separately to  find out whether it is so gross and its obscenity so pronounced  that it is likely to deprave and corrupt those whose minds are  open to influence of this sort and into whose hands the book is  likely to fall. Though the Court must consider the question  objectively with an open mind, yet in the matter of objective  assessment the subjective attitude of the Judge hearing the  matter is likely to influence, even though unconsciously, his  mind and his decision on the question. A Judge with a puritan  and prudish outlook may on the basis of an objective  assessment of any book or story or article, consider the same  to be obscene. It is possible that another Judge with a  different kind of outlook may not consider the same book to be  obscene on his objective assessment of the very same book.  The concept of obscenity is moulded to a very great extent by  the social outlook of the people who are generally expected to  read the book. It is beyond dispute that the concept of  obscenity usually differs from country to country depending  on the standards of morality of contemporary society in  different countries. In our opinion, in judging the question of  obscenity, the Judge in the first place should try to place  himself in the position of the author and from the view point of  the author the judge should try to understand what is it that  the author seeks to convey and whether what the author  conveys has any literary and artistic value. The Judge should  thereafter place himself in the position of a reader of every age  group in whose hands the book is likely to fall and should try  to appreciate what kind of possible influence the book is likely

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to have in the minds of the readers. A Judge should thereafter  apply his judicial mind dispassionately to decide whether the  book in question can be said to be obscene within the meaning  of Section 292 I.P.C. by an objective assessment of the book  as a whole and also of the passages complained of as  obscene separately. In appropriate cases, the Court, for  eliminating any subjective element or personal preference  which may remain hidden in the sub-conscious mind and may  unconsciously affect a proper objective assessment, may draw  upon the evidence on record and also consider the views  expressed by reputed or recognised authors of literature on  such questions if there be any for his own consideration and  satisfaction to enable the Court to discharge the duty of  making a proper assessment". Per se nudity is not obscenity:         The American Courts, from time to time, have dealt with  the issues of obscenity and laid down parameters to test  obscenity.  It was further submitted that while determining  whether a picture is obscene or not it is essential to first  determine as to quality and nature of material published and  the category of readers.         In 50 Am Jur 2 d, para 22 at page 23 reads as under: "Articles and pictures in a newspaper must meet the Miller  test’s constitutional standard of obscenity in order for the  publisher or distributor to be prosecuted for obscenity.   Nudity alone is not enough to make material legally obscene.

       The possession in the home of obscene newspaper is  constitutionally protected, except where the such materials  constitute child poronography."

Contemporary Society: It was also submitted that in order to shield minors and  children the State should not forget that the same content  might not be offensive to the sensibilities of adult men and  women.  The incidence of shielding the minors should not be  that the adult population is restricted to read and see what is  fit for children. In Alfred E Butler vs. State of Michigan, 1 Led 2d  412, U.S. Supreme Court held as under: "The State insists that, by thus quarantining the  general reading public against books not too rugged for  grown men and women in order to shield juvenile innocence,  it is exercising its power to promote the general welfare.   Surely, this is to burn the house to roast the pig."

There should be no suppression of speech and  expression in protecting children from harmful materials : In  Janet Reno vs. American Civil Liberties Union, 138 Led 2d  874, it has been held that: "The Federal Government’s interest in protecting  children from harmful materials does not justify an  unnecessarily broad suppression of speech addressed to  adults, in violation of the Federal Constitution’s First  Amendment; the Government may not reduce the adult  population to only what is fit for children, and thus the mere  fact that a statutory regulation of speech was enacted for the  important purpose of protecting children from exposure to  sexually explicit material does not foreclose inquiry into the  statute’s validity under the First Amendment, such inquiry  embodies an overarching commitment to make sure that  Congress has designed its statute to accomplish its purpose  without imposing an unnecessarily great restriction on  speech."

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In 146 Led 2d 865, United States v Playboy Entertainment  Group, Inc., it has been held that: "In order for the State\005to justify prohibition of a  particular expression of opinion, it must be able to show that  its action was caused by something more than a mere desire  to avoid the discomfort and unpleasantness that always  accompany an unpopular viewpoint\005.What the Constitution  says is that these judgments are for the individual to make,  not for the government of decree, even with the mandate or  approval of a majority. Technology expands the capacity to  choose; and it denies the potential of this revolution if we  assume the Government is best positioned to make these  choices for us."

Literary merit and "prepondering social purpose" Where art and obscenity are mixed, what must be seen is  whether the artistic, literary or social merit of the work in  question outweighs its "obscene" content. This view was  accepted by this Court in Ranjit D. Udeshi v. State of  Maharashtra. AIR 1965 SC  case: "Where there is propagation of ideas, opinions and  information of public interest 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.

Where art and obscenity are mixed, the element of art  must be so prepondering as to overshadow the obscenity or  make it so trivial/inconsequential that it can be ignored;  Obscenity without a preponderating social purpose or profit  cannot have the constitutional protection of free speech\005"

Contemporary Standards In judging as to whether a particular work is obscene, regard  must be had to contemporary mores and national standards.  While the Supreme Court in India held Lady Chatterley’s Lover  to be obscene, in England the jury acquitted the publishers  finding that the publication did not fall foul of the obscenity  test. This was heralded as a turning point in the fight for  literary freedom in UK. Perhaps "community mores and  standards" played a part in the Indian Supreme Court taking a  different view from the English jury. The test has become  somewhat outdated in the context of the internet age which  has broken down traditional barriers and made publications  from across the globe available with the click of a mouse. Judging the work as a whole It is necessary that publication must be judged as a whole and  the impugned should also separately be examined so as to  judge whether the impugned passages are so grossly obscene  and are likely to deprave and corrupt. Opinion of literary/artistic experts In Ranjit Udeshi (Supra) this Court held that the delicate task  of deciding what is artistic and what is obscene has to be  performed by courts and as a last resort by the Supreme Court  and therefore, the evidence of men of literature or others on  the question of obscenity is not relevant. However, in Samresh Bose v. Amal Mitra (Supra) this Court  observed: "In appropriate cases, the court, for eliminating any subjective  element or personal preference which may remain hidden in

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the subconscious mind and may unconsciously affect a proper  objective assessment, may draw upon the evidence on record  and also consider the views expressed by reputed or  recognized authors of literature on such questions as if there  by any of his own consideration and satisfaction to enable the  court to discharge the duty of making a proper assessment."

Clear and Present Danger In S.Ragarajan v. P. Jagjivam Ram, while interpreting  Article 19(2), this Court borrowed from the American test of  clear and present danger and observed: "the commitment to freedom demands that it cannot be  suppressed unless the situations created by allowing the  freedom are pressing and the community interest is  endangered. The anticipated danger should not be remote,  conjectural or far-fetched. It should have a proximate and  direct nexus with the expression. The expression of thought  should be intrinsically dangerous to the public interest. In  other words, the expression should be inseparably like the  equivalent of a ’spark in a power keg’."  

Test of Ordinary Man  The test for judging a work should be that of an ordinary man  of common sense and prudence and not an "out of the  ordinary or hypersensitive man." As Hidayatullah, C.J.  remarked in K.A. Abbas: "If the depraved begins to see in these things more than what  an average person would, in much the same way, as it is  wrongly said, a Frenchman sees a woman’s legs in  everything, it cannot be helped."  

An additional affidavit was filed on behalf of the Press  Council of India on 7.8.2006.  Inviting our attention to the  said affidavit, Mr. P.H. Parekh submitted that Section 14 of  the Press Council Act, 1978 empowers the Press Council only  to warn, admonish or censure newspapers or news agencies  and that it has no jurisdiction over the electronic media and  that the Press Council enjoys only the authority of declaratory  adjudication with its power limited to giving directions to the  answering respondents arraigned before it to publish  particulars relating to its enquiry and adjudication.  It,  however, has no further authority to ensure that its directions  are complied with and its observations implemented by the  erring parties.  Lack of punitive powers with the Press Council  of India has tied its hands in exercising control over the erring  publications. Mr. P.H. Parekh further submitted that prompted by the  continued flouting of its observation/directions by some of the  Press of the country, the Press Council has recommended to  the Government between 1999-2003 to amend the provisions  of Section 14(1) of the Press Council Act, 1978 to arm the  Council with the authority to recommend to the Government  de-recognition of newspapers for Government advertisement or  withdrawal of the accreditation granted to a journalist which  facilitates performance of his function and also entitles him to  claim concession in railways etc. or to recommend de- recognition of a newspaper for the period deemed appropriate  for the proposals made.  The Press Council of India is yet to  receive any response from the Government.  The counsel has  also filed the copies of the letters written by Justice  K.Jayachandra Reddy dated 17.12.2002 and 06.12.2003  issued by the Press Council to the Government of India for  extending punitive powers and the amendments proposed by  the Council have been annexed to the main writ petition.  In  our opinion, the present scenario provides for a regulatory

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framework under which punishment is prescribed for flouting  the standards set by the Press Council of India by  newspapers/print media.  Further, respondent Nos. 3 & 4  have a self-regulatory mechanism in place and they have to  strictly adhere to the standards set by the Press Council Act,  1978.  According to them, the advertisement, news articles  and photographs are scrutinized by the advertising  department and in the event the advertising department is in  doubt, the assistance of the legal department is resorted to.  It  is also their case that the said departments are manned by  qualified persons who are well acquainted with the Norms and  Guidelines issued by the press Council.  It was also submitted  that respondent No.4, as among others, consistently rejected  the publication of liquor and sexually exploitative   advertisements, which may offend the sensibilities of families  and in contravention it was further submitted that respondent  No.4, keeping in mind, special educational needs of school  going children publishes a supplement called "HT Next School  Times" every Monday and the respondent does not send any  supplement to schools other than "HT Next School Times"  along with the main paper.  Further, the respondent publishes  "HT Next" which is a newspaper positioned mainly for the  youth.  This paper too keeps in mind the special needs of the  youth of today.  The market segment that the respondent’s  paper wishes to cater and caters to sections of society  interested in business and is keen on gathering information on  all fronts of life.  It was further submitted that the newspaper  intends to give a holistic perspective of the world to an  individual.  It was submitted that the respondent’s paper has  consistently over the last few decades had a large circulation  and consistent increase in its circulation each year has not  been due to publishing of its supplement "HT City".             In view of the foregoing legal propositions the pictures in  dispute had been published by the respondents with the  intent to inform readers of the current entertainment news  from around the world and India.  The respondent’s  newspaper seeks to provide a wholesome reading experience  offering current affairs, sports, politics as well as  entertainment news to keep its readers abreast of all the latest  happenings in the world.  The pictures that have been  published should not be viewed in isolation rather they have to  be read with the news reports next to them.  In the event, that  a particular news items or picture offends any person they  may avail of the remedies available to them under the present  legal framework.  Any steps to impose a blanket ban on  publishing of such photographs, in our opinion, would amount  to prejudging the matter as has been held in the matter of  Fraser vs. Evans, 1969 (1) QB 549. The definition of obscenity differs from culture to culture,  between communities within a single culture, and also  between individuals within those communities. Many cultures  have produced laws to define what is considered to be  obscene, and censorship is often used to try to suppress or  control materials that are obscene under these definitions. The term obscenity is most often used in a legal context  to describe expressions (words, images, actions) that offend  the prevalent sexual morality. On the other hand the  Constitution of India guarantees the right of freedom to speech  and expression to every citizen. This right will encompass an  individuals take on any issue.However, this right is not  absolute, if such speech and expression is immensely gross  and will badly violate the standards of morality of a society.   Therefore, any expression is subject to reasonable restriction.  Freedom of expression has contributed much to the  development and well-being of our free society.

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This right conferred by the Constitution has triggered  various issues. One of the most controversial issues is  balancing the need to protect society against the potential  harm that may flow from obscene material, and the need to  ensure respect for freedom of expression and to preserve a free  flow of information and idea.         Be that as it may, the respondents are leading  newspapers in India they have to respect the freedom of  speech and expression as is guaranteed by our constitution  and in fact reaches out to its readers any responsible and  decent manner.  In our view, any steps to ban publishing of  certain news pieces or pictures would fetter the independence  of free press which is one of the hallmarks of our democratic  setup.  In our opinion, the submissions and the propositions  of law made by the respective counsel for the respondents  clearly established that the present petition is liable to be  dismissed as the petitioner has failed to establish the need  and requirement to curtail the freedom of speech and  expression.  The Times of India and Hindustan Times are  leading newspapers in Delhi having substantial subscribers  from all sections.  It has been made clear by learned counsel  appearing for the leading newspapers that it is not their  intention to publish photographs which cater to the prurient  interest.  As already stated, they have an internal regulatory  system to ensure no objectionable photographs or matters gets  published.  We are able to see that respondent Nos. 3 & 4 are  conscious of their responsibility towards children but at the  same time it would be inappropriate to deprive the adult  population of the entertainment which is well within the  acceptable levels of decency on the ground that it may not be  appropriate for the children.  An imposition of a blanket ban  on the publication of certain photographs and news items etc.  will lead to a situation where the newspaper will be publishing  material which caters only to children and adolescents and the  adults will be deprived of reading their share of their  entertainment which can be permissible under the normal  norms of decency in any society. We are also of the view that a culture of ’responsible  reading’ should be inculcated among the readers of any news  article. No news item should be viewed or read in isolation. It  is necessary that publication must be judged as a whole and  news items, advertisements or passages should not be read  without the accompanying message that is purported to be  conveyed to the public. Also the members of the public and  readers should not look for meanings in a picture or written  article, which is not conceived to be conveyed through the  picture or the news item. We observe that, as decided by the American Supreme  Court in United States v. Playboy Entertainment Group,  Inc, 146 L ed 2d 865, that, "in order for the State\005to justify  prohibition of a particular expression of opinion, it must be able  to show that its action was caused by something more than a  mere desire to avoid the discomfort and unpleasantness that  always accompany an unpopular viewpoint." Therefore, in our  view, in the present matter, the petitioner has failed to  establish his case clearly. The petitioner only states that the  pictures and the news items that are published by the  respondents 3 and 4 ’leave much for the thoughts of minors’. Therefore, we believe that fertile imagination of anybody  especially of minors should not be a matter that should be  agitated in the court of law. In addition we also hold that news  is not limited to Times of India and Hindustan Times. Any  hypersensitive person can subscribe to many other Newspaper  of their choice, which might not be against the standards of  morality of the concerned person.

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       We, therefore, dismiss the writ petition but however  observed that the request made by the Press Council of India  to amend the Section should be seriously looked into by the  Government of India and appropriate amendments be made in  public interest.  No costs.