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PETITIONER: RANJIT D. UDESHI

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT: 19/08/1964

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N. SHAH, J.C. AYYANGAR, N. RAJAGOPALA

CITATION:  1965 AIR  881            1965 SCR  (1)  65  CITATOR INFO :  R          1970 SC1390  (5)  R          1971 SC 481  (40,50,54)  R          1986 SC 967  (23,25,26)

ACT: 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.

HEADNOTE: 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

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offend  Art. 19(1) (a) of the Constitution.  [70B-C;  73H-1; 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, F-H].

JUDGMENT: 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 I.P. Code;

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                                  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 novel. 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

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             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 offending novel. Mr. Garg who argued the case with ability, raised these  two issues.  He bases his argument on three legal grounds  which briefly are:               (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 same article;               (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  v. 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

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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

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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 informations of public interest or profit."   When there is propagation of ideas, opinions and informations 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 sub-section. 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

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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

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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

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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)  [1954] 1 W.L.R. 738. 76 of in this light the impugned novel passes the Hicklin  test if it is reasonably modified.

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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

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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 Chatterley’s Lover. 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

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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 our review. 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               book. 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

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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 fulfilment.  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 framed. 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

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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. Appeal dismissed. 82