SECTION 295A AND 153A :
APEX in Ramji Lal v. State of U.P. , Section 295A does not penalise any and every act of insult to or attempt to insult the religions or religious belief of a class of citizens, which are perpetuated with the deliberate and malicious intention of outraging the religious feelings of that class. Insult to religion offered unwittingly or carelessly or without any deliberate or malicious intention to outrage the religious feelings of that class are not encompassed by the provision. It only punishes the aggravated form of insult to religion when it is perpetrated with deliberate and malicious intention of outraging the religious feelings of that class. It is obvious that one who alleges malicious and deliberate act on the part of another has to prove it. It would also be necessary to consider as to what act could be said to have been done maliciously. Malice in common acceptation means ill will against a person, but in this legal sense it means a wrongful act, done intentionally, without just cause or excuse. A man acts maliciously when he willfully and without lawful excuse does that which he knows will injure another in person or property. the term maliciously denotes wicked, perverse and incorrigible disposition. It means and implies an intention to do an act which is wrongful to the detriment of another. Where any person willfully does an act injurious to another without lawful excuse he does it maliciously. Whether a person has acted corruptly or maliciously is a question of fact and must be proved prosecution.
Section 153-A IPC punishes (a) the act of promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, caste, community or any other ground, and (b) acts prejudicial to the maintenance of harmony between different groups or castes or communities if the acts disturb the public tranquillity. The object of Section 153-a is to prevent breaches of the public tranquillity which might result from excited feelings of enmity between classes of people. Absence of malicious intention is a relevant factor to judge whether the offence is committed. It can be said to be promoting enmity only where the written or spoken words have the tendency or intention of creating public disorders or disturbances of law and order or affect public tranquillity. mens rea has to be proved for proving commission of the offence. (See. Balwant Singh v. State of Punjab )
In Ramesh Chotalal Dalal v. Union of India & Others [AIR 1988 SC 775], this Court held that TV serial "Tamas" did not depict communal tension and violence and the provisions of Section 153A of IPC would not apply to it. It was also not prejudicial to the national integration falling under Section 153B of IPC. Approving the observations of Vivian Bose, J. in Bhagvati Charan Shukla v. Provincial Government [AIR 1947 Nagpur 1], the Court observed that the effect of the words must be judged from the standards of reasonable, strong-minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view. It is the standard of ordinary reasonable man or as they say in English Law, "the man on the top of a clapham omnibus". (reiterated in Manzar Sayeed Khan vs State Of Maharashtra & Anr on 5 April, 2007)
Again in Bilal Ahmed Kaloo v. State of A.P. [(1997) 7 SCC 431], it is held that the common feature in both the Sections, viz., Sections 153A and 505 (2), being promotion of feeling of enmity, hatred or ill-will "between different" religious or racial or linguistic or regional groups or castes and communities, it is necessary that at least two such groups or communities should be involved. Further, it was observed that merely inciting the feeling of one community or group without any reference to any other community or group cannot attract either of the two Sections.
Delhi High Court
The Trustees Of Safadar Hashmi ... vs Govt Of Nct Of Delhi on 16 July, 2001
FACTS - Ram Katha in buddhist tradition and Jain tradition displayed in the banner of the Safdar Hasmi Memorial Trust @ Sahmat were held to have been published, circulated and displayed with deliberate and malicious intention to insult or attempt to insult religious belief of a particular community and also that these posters promote or attempt to promote on the ground of religion, disharmony or feeling of enmity between different religions/communities which act is an offence punishable under Section 153-A and Section 295A of the Indian Penal Code, 1860.the Government of NCT of Delhi has declared every copy of the aforesaid posters and material containing the above-said objectionable material forfeited to the Government.
Court held - "there is no material to show application of mind, and on the contrary the concerned authority has merely acted as a rubber stamp. Everything was pre-designed, pre-determined. It is to be noted that except saying that a large section of the community (without indicating which community) was likely to be incensed, there is no indication regarding existence of requisite ingredients of Section 153-A and Section 295A IPC."
Calcutta High Court
Chandanmal Chopra And Anr. vs State Of West Bengal on 17 May, 1985
The petitioners have, in this petition, quoted some passages from the English translation of Koran and thereafter made the following averments : --
"The offending expressions contained in the Koran and quoted in paragraphs 4, 5 and 6 above are not so offensive in their translation in which they are so quoted as they are in the original verses in the Arabic or in the Urdu, the very sound of whose inimitable symphoney not only send the Muslims to tears and ecstasy but arouse in them the worst communal passions and religous fanaticism, which have manifested themselves in murder, slaughter, loot, arson, rape and destruction or desecration of holy places in historical times as also in contemporary period not only in India but almost all over the world." (paragraph 8) ' "In this way, the publication of the Koran in the original Arabic as well as in its translations in various languages including Urdu, Hindi, Bengali, English etc., amounts to commission of offences punishable Under Sections 153A and 295A of the Penal Code and accordingly each copy of the book must be declared as forfeited by the respondent Under Section 95 of the Criminal P.C., 1973."
Court held - " In my opinion the Koran being a sacred Book and "an object held sacred by a class of persons" within the meaning of Section 295 of Penal Code, against such book no action can be taken under Section 295A. Section 295A is not attracted in such a case. Section 295A has application in respect of a sacred book which is protected under Section 295 of I.P.C. Any other interpretation would lead to absurdity. If any offence, within the meaning of Section 295 is committed, in respect of Koran then it is punishable. Such Book gets protection in view of Section 295. At the same time if it is open to take any such action under Section 295A against such Book, then the protection given under Section 295 will become nugatory and meaningless.In my opinion passing of such order as prayed for, would go against the Preamble of the Constitution and would violate the provisions of Article 25 thereof. The Preamble proclaims India to be a secular State. It means that each and every religion is to be treated equally. No preference is to be given to any particular religion. No religion is to be belittled. Liberty of thought, expression, belief, faith and worship are assured. Banning or forfeiture of Koran would infringe that right. Such action would amount to abolition of the Muslim religion itself. Muslim religion cannot exist without Koran. The proposed action would take away the freedom of conscience of the people of that faith and their right to profess, practise and propagate the said religion. Such action is unthinkable. The Court cannot sit in judgment on a holy book like Koran, Bible, Gita and Granth Sahib. For similar reasons I also hold that Section 153A of the Penal Code has no application in the facts of the present case. Apart from anything else, there is no question for forfeiture or banning the said book on the ground of disharmony or feelings of enmity or hatred or ill will between different religions or communities. This book is not prejudicial to the maintenance of harmony between different religions. Because of the Koran no public tranquility has been disturbed up to now and there is no reason to apprehend any likelihood of such disturbance in future. On the other hand the action of the petitioners may be said to have attempted to promote, on the grounds of religion, disharmony or feelings of enmity, hatred or ill will between different religions, i.e. between Muslims on the one hand and non-Muslims on the other within the meaning of Section 153A. Similarly, in my opinion, it may be said that by this petition the petitioners insult or attempt to insult the Muslim religion and the religious belief of the Muslims within the meaning of Section 295A of the Penal Code. It is an affront to Islam's Supreme Scriptual authority. For this reason the contention of the respondents that this application is motivated cannot be completely ruled out."
section 153 A and Section 295 A have a deep and intimate relation with section 95 Of Cr.PC:-
In Baragur Ramachandrappa and Others Vs. State of Karnataka and Others , Apex Court again considered the scope of Section 95 of the Code. Approving the interpretation of Sections 95 and 96 of the Code given by a special bench of the Patna High Court in Nand Kishore Singh & etc. Vs. State of Bihar and Another13, wherein it was observed that it would be fallacious to mathematically equate the proceedings under Sections 95 and 96 of the Code with a trial under Section 295-A of the IPC with the accused in the dock, the Court went on to elucidate that Section 95 did not require that it should be "proved" to the satisfaction of the State Government that all requirements of the punishing Sections including mens rea were fully established and all that Section 95(1) required was that the ingredients of the offence should "appear" to the Government to be present. While observing that Section 95 of the Code exemplifies the principle that freedom of speech and expression is not unfettered, this Court commended that freedom must be available to all and no person has a right to impinge on the feelings of others on the premise that his right to freedom of speech remains AIR 1986 PATNA 98 unrestricted and unfettered. It cannot be ignored that India is a country with vast disparities in language, culture and religion and unwarranted and malicious criticism or interference in the faith of others cannot be accepted.
SECTIN 295 A -
Raj Paul Vs. Emperor Decided On: 04.05.1927
Section 295-A of the Indian Penal Code was introduced after an abortive prosecution of a person who had published a pamphlet called "Rangeela Rasool" meaning 'amorous Prophet' in which he described the incontinence of the Prophet Mohommed. When he was charged under Section 153-A Indian Penal Code the Lahore High Court held that the man could not be convicted as the attack was only on the founder of the religion and did not amount to creating class hostilities or hatred between classes within the meaning of Section 153-A.
However in Kali Charan Sharma v. Emperor, AIR 1927 All 649 -
If the inevitable consequence of such writing is the excitement of feelings of hatred between the followers of two religions, then it must be put an end to. The matter must be judged primarily by the language of the book itself though it is permissible to receive and consider external evidence either to prove or to rebut the meaning ascribed to it in the order of forfeiture: Kali Charan Sharma v. Emperor, AIR 1927 All 649.
The Supreme Court in the case of Veerabhadra Chettiar v. Ramaswami Naicker, observes that "Section 295 of the Penal Code has been intended to respect the religious susceptibilities of persons of different religions, persuasions or creeds. Courts have got to be very circumspect in such matters and to pay due regard to the feelings and religious emotions of different persons with different beliefs irrespective of the consideration..... Whether they are rational or otherwise in the opinion of the Court."
Andhra High Court
N. Veerabrahmam vs State Of Andhra Pradesh ... on 12 March, 1959
The right to freedom of religion Is guaranteed under Article 25 and Article 26 of the Constitution, In a case before the Supreme Court where a person was charged under Sections 153-A and 295A and convicted for having published an article in a paper or a cartoon about a donkey on which the agitation was started by the Muslims of Uttar Pradesh, it was contended before the Supreme Court that Section 295-A was ultra vires in that it interfered with the petitioner's right to freedom of expression guaranteed to him under Article 19(1)(a) of the Constitution and it was urged that the restriction imposed thereon was not a reasonable restriction. While dealing with this question, their Lordships stated that where the restriction was in the interests of the security of the State and where the restriction is made in the interests of public order, such a restriction was a reasonable restriction and, therefore, it is no longer open to contend that Section 295-A of the Penal Code is violative of the fundamental rights guaranteed to the citizen under Article 19(1)(a) of the Constitution
Bombay High Court
R.V. Bhasin vs Marine Drive Police Station on 6 January, 2010
We must also note that the author has quoted the views of Dr. Babasaheb Ambedkar, Mahatma Gandhi, Ramkrishna Paramhans, Swami Vivekananda and other thinkers which are compiled by Rana Pratap Roy which AJN support him. We must also state that several other Ayats were referred to by Counsel which are also strongly worded against idolators. But then two views are always possible of every Ayat. The Supreme Court has cautioned us not to import our views while dealing with scriptures.
(Shri Krishna Singh v. Mathura Ahir & Ors. (1981) 3 SCC 689). The Calcutta High Court has taken a similar view (Aga Mahomed Jaffer Bindanim v. Koolsom Beebee & Ors. (1898) ILR XXV Cal.9). We, therefore, do not want to import our own views. But, in the ultimate analysis, we feel that several view points are in the field about Islam as there are about other religions and we cannot stop people from expressing their views. As said by one of us Chandrachud, J. in Anant Dighe ".... it is important to realise that there are eternal values on which the Constitution of a democracy is founded. Tolerance of a diversity of view points and the acceptance of the freedom to express of those whose thinking may not accord with the mainstream are cardinal values which lie at the very foundation of a democratic form of AJN Government". The Supreme Court has also clarified that Section 295-A of the IPC does not penalize any and every act of insult or attempt to insult the religion or the religious beliefs of a class of citizens. There must be a malicious intention to outrage the religious feelings of that class of citizens. That is the reason Counsel submitted that assuming the book contains material which insults religious beliefs of Muslims, it is not aggravated form of insult.
Whatever be the author's perception of Islam, to conclude that all Muslims want to eliminate all non-Muslims; that they want to spread Islam all over the world by violence is highly objectionable. The author has gone a step further and said that Indian Muslims have given a call for Mughalstan from out of India and that all Indian Muslims believe that Hindus and Muslims are distinctly two different nations politically, socially, culturally and religiously. The author has stated that the Indian Muslims have recommended a plan of action which inter alia includes converting every Hindu to Islam, attacking Hindu temples, abducting Hindu women, thwarting family planning programme, etc. It is these statements which are likely to incite people to violence and which may promote violence, enmity or hatred. The author has referred to inflammatory statements of Osama Bin Laden.In view of the above, in our considered opinion the State Government is justified in imposing a ban on the circulation of the book. The application is therefore dismissed.
GUIDELINES WHEN A BOOK OR ARTICLE IS FORFEITED UNDER SECTOIN 95 CRPC ON GROUNDS OF SECTION 153A AND 295A :
Supreme Court of India
State Of Maharashtra & Ors vs Sangharaj Damodar Rupawate & Ors on 9 July, 2010
Nonetheless the following legal aspects can be kept in mind while examining the validity of such a notification:
(i) The statement of the grounds of its opinion by the State Government is mandatory and a total absence thereof would vitiate the declaration of forfeiture. Therefore, the grounds of Government's opinion must be stated in the notification issued under Section 95 of the Code and while testing the validity of the notification the Court has to confine the inquiry to the grounds so disclosed;
(ii) Grounds of opinion must mean conclusion of facts on which opinion is based. Grounds must necessarily be the import or the effect or the tendency of matters contained in the offending publication, either as a whole or in portions of it, as illustrated by passages which Government may choose. A mere repetition of an opinion or reproduction of the Section will not answer the requirement of a valid notification. However, at the same time, it is not necessary that the notification must bear a verbatim record of the forfeited material or give a detail gist thereof;
(iii) The validity of the order of forfeiture would depend on the merits of the grounds. The High Court would set aside the order of forfeiture if there are no grounds of opinion because if there are no grounds of opinion it cannot be satisfied that the grounds given by the Government justify the order. However, it is not the duty of the High Court to find for itself whether the book contained any such matter whatsoever;
(iv) The State cannot extract stray sentences of portions of the book and come to a finding that the said book as a whole ought to be forfeited;
(v) The intention of the author has to be gathered from the language, contents and import of the offending material. If the allegations made in the offending article are based on folklore, tradition or history something in extenuation could perhaps be said for the author;
(vi) If the writing is calculated to promote feelings of enmity or hatred, it is no defence to a charge under Section 153- A of the IPC that the writing contains a truthful account of past events or is otherwise supported by good authority. Adherence to the strict path of history is not by itself a complete defence to a charge under Section 153-A of the IPC;
(vii) Section 95(1) of the Code postulates that the ingredients of the offences stated in the notification should "appear" to the Government to be present. It does not require that it should be "proved" to the satisfaction of the Government that all requirements of punishing sections, including mens rea, were fully established;
(viii) The onus to dislodge and rebut the prima facie opinion of the Government that the offending publication comes within the ambit of the relevant offence, including its requirement of intent is on the applicant and such intention has to be gathered from the language, contents and import thereof;
(ix) The effect of the words used in the offending material must be judged from the standards of reasonable, strong- minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view. The class of readers for whom the book is primarily meant would also be relevant for judging the probable consequences of the writing.
ON SECTION 292 :-
TEST OF OBSCENITY AND COMMUNITY STANDARDS
Constitution Bench of this Court in the year 1965 in Ranjit D. Udeshi v. State of Maharashtra AIR 1965 SC 881 indicated that the concept of obscenity would change with the passage of time and what might have been “obscene” at one point of time would not be considered as obscene at a later period. Judgment refers to several examples of changing notion of obscenity and ultimately the Court observed as follows :-
“…. The world, is now able to tolerate much more than formerly, having coming indurate by literature of different sorts. The attitude is not yet settled…..” This is what this Court has said in the year 1965.
Above mentioned principle has been reiterated in Samaresh Bose v. Amal Mitra (1985) 4 SCC 289 by laying emphasis on contemporary social values and general attitude of ordinary reader. Again in 2010, the principle of contemporary community standards and social values have been reiterated in S. Khushboo V. Kanniammal (2010) 5 SCC 600.
This Court in Ranjit D. Udeshi (supra) highlighted the delicate task to be discharged by the Courts in judging whether the word, picture, painting, etc. would pass the test of obscenity under Section 292 of the Code and the Court held as follows :
“The 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 the Supreme Court. The test 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. The test of obscenity must square with the freedom of speech and expression guaranteed under our Constitution. This invites the court to reach a decision on a constitutional issue of a most far reaching character and it must beware that it may not lean too far away from the guaranteed freedom.”
Applying the above test, to the book “Lady Chatterley’s Lover”, Apex Court in Ranjit D. Udeshi (supra) held that in treating with sex the impugned portions viewed separately and also in the setting of the whole book passed the permissible limits judged of from our community standards and there was no social gain to the public which could be said to preponderate the book must be held to satisfy the test of obscenity.
The novel “Lady Chatterley’s Lover” which came to be condemned as obscene by Apex Court was held to be not obscene in England by Central Criminal Court. In England, the question of obscenity is left to the Jury. Byrne, J., learned Judge who presided over the Central Criminal Court in R. v. Penguin Books Ltd. (1961 Crl. Law Review 176) observed as follows :-
“In summing up his lordship instructed the jury that: They must consider the book as a whole, not selecting passages here and there and, keeping their feet on the ground, not exercising questions of taste or the functions of a censor. The first question, after publication was: was the book obscene? Was its effect taken as a whole to tend to deprave and corrupt persons who were likely, having regard to all the circumstances, to read it? To deprave meant to make morally bad, to pervert, to debase or corrupt morally. To corrupt meant to render morally unsound or rotten, to destroy the moral purity or chastity, to pervert or ruin a good quality, to debase, to defile. No intent to deprave or corrupt was necessary. The mere fact that the jury might be shocked and disgusted by the book would not solve the question. Authors had a right to express themselves but people with strong views were still members of the community and under an obligation to others not to harm them morally, physically or spiritually. The jury as men and women of the world, not prudish but with liberal minds, should ask themselves was the tendency of the book to deprave and corrupt those likely to read it, not only those reading under guidance in the rarefied atmosphere of some educational institution, but also those who could buy the book for three shillings and six pence or get it from the public library, possibly without any knowledge of Lawrence and with little knowledge of literature. If the jury were satisfied beyond reasonable doubt that the book was obscene, they must then consider the question of its being justified for public good in the interest of science, literature, art or learning or other subjects of general concern. Literary merits were not sufficient to save the book, it must be justified as being for the public good. The book was not to be judged by comparison with other books. If it was obscene then if the defendant has established the probability that the merits of the book as a novel were so high that they outbalanced the obscenity so that the publication was the public good, the jury should acquit.”
Later, Apex Court in Samaresh Bose (supra), referring to the Bengali novel “Prajapati” written by Samaresh Bose, observed as follows :-
“35. .................. We are not satisfied on reading the book that it could be considered to be obscene. Reference to kissing, description of the body and the figures of the female characters in the book and suggestions of acts of sex by themselves may not have the effect of depraving, debasing and encouraging the readers of any age to lasciviousness and the novel on these counts, may not be considered to be obscene. It is true that slang and various unconventional words have been used in the book. Though there is no description of any overt act of sex, there can be no doubt that there are suggestions of sex acts and that a great deal of emphasis on the aspect of sex in the lives of persons in various spheres of society and amongst various classes of people, is to be found in the novel. Because of the language used, the episodes in relation to sex life narrated in the novel, appear vulgar and may create a feeling of disgust and revulsion. The mere fact that the various affairs and episodes with emphasis on sex have been narrated in slang and vulgar language may shock a reader who may feel disgusted by the book does not resolve the question of obscenity...............” This was the contemporary standard in the year 1985.
HICKLIN TEST:
In the United Kingdom, way back in 1868, the Court laid down the Hicklin test in Regina v. Hicklin (1868 L.R. 2 Q.B. 360), and held as follows :-
“The test of obscenity is whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall.”
Hicklin test postulated that a publication has to be judged for obscenity based on isolated passages of a work considered out of context and judged by their apparent influence on most susceptible readers, such as children or weak-minded adults. United States, however, made a marked departure. Of late, it felt that the Hicklin test is not correct test to apply to judge what is obscenity. In Roth v. United States 354 U.S. 476 (1957), the Supreme Court of United States directly dealt with the issue of obscenity as an exception to freedom of speech and expression. The Court held that the rejection of “obscenity” was implicit in the First Amendment. Noticing that sex and obscenity were held not to be synonymous with each other, the Court held that only those sex-related materials which had the tendency of “exciting lustful thoughts” were found to be obscene and the same has to be judged from the point of view of an average person by applying contemporary community standards.
In Canada also, the majority held in Brodie v. The Queen (1962 SCR 681) that D.H. Lawrence’s novel “Lady Chatterley’s Lover” was not obscene within the meaning of the Canadian Criminal Code
The Supreme Court of Canada in Regina v. Butler (1992) 1 SCR 452, held that the dominant test is the “community standards problems test”. The Court held that explicit sex that is not violent and neither degrading nor dehumanizing is generally tolerated in the Canadian society and will not qualify as the undue exploitation of sex unless it employs children in its production. The Court held, in order for the work or material to qualify as ‘obscene’, the exploitation of sex must not only be a dominant characteristic, but such exploitation must be “undue”. Earlier in Towne Cinema Theatres Ltd. v. The Queen (1985) 1 SCR 494, the Canadian Court applied the community standard test and not Hicklin test.
COMMUNITY STANDARD TEST:
Hicklin test is not the correct test to be applied to determine “what is obscenity”. Section 292 of the Indian Penal Code, of course, uses the expression ‘lascivious and prurient interests’ or its effect. Later, it has also been indicated in the said Section of the applicability of the effect and the necessity of taking the items as a whole and on that foundation where such items would tend to deprave and corrupt persons who are likely, having regard to all the relevant circumstances, to read, see or hear the matter contained or embodied in it. We have, therefore, to apply the “community standard test” rather than “Hicklin test” to determine what is “obscenity”. A bare reading of Sub-section (1) of Section 292 , makes clear that a picture or article shall be deemed to be obscene (i) if it is lascivious; (ii) it appeals to the prurient interest, and (iii) it tends to deprave and corrupt persons who are likely to read, see or hear the matter, alleged to be obscene. Once the matter is found to be obscene, the question may arise as to whether the impugned matter falls within any of the exceptions contained in Section. A picture of a nude/semi-nude woman, as such, cannot per se be called obscene unless it has the tendency to arouse feeling or revealing an overt sexual desire. The picture should be suggestive of deprave mind and designed to excite sexual passion in persons who are likely to see it, which will depend on the particular posture and the background in which the nude/semi-nude woman is depicted. Only those sex-related materials which have a tendency of “exciting lustful thoughts” can be held to be obscene, but the obscenity has to be judged from the point of view of an average person, by applying contemporary community standards. (vide Aveek sarkar v. state of west bengal )
MESSAGE AND CONTEXT
We have to examine the question of obscenity in the context in which the photograph appears and the message it wants to convey. In Bobby Art International & Ors. v. Om Pal Singh Hoon (1996) 4 SCC 1, Apex Court while dealing with the question of obscenity in the context of film called Bandit Queen pointed out that the so-called objectionable scenes in the film have to be considered in the context of the message that the film was seeking to transmit in respect of social menace of torture and violence against a helpless female child which transformed her into a dreaded dacoit. The Court expressed the following view :-
“First, the scene where she is humiliated, stripped naked, paraded, made to draw water from the well, within the circle of a hundred men. The exposure of her breasts and genitalia to those men is intended by those who strip her to demean her. The effect of so doing upon her could hardly have been better conveyed than by explicitly showing the scene. The object of doing so was not to titillate the cinemagoer’s lust but to arouse in him sympathy for the victim and disgust for the perpetrators. The revulsion that the Tribunal referred to was not at Phoolan Devi’s nudity but at the sadism and heartlessness of those who had stripped her naked to rob her of every shred of dignity. Nakedness does not always arouse the baser instinct. The reference by the Tribunal to the film “Schindler’s List” was apt. There is a scene in it of rows of naked men and women, shown frontally, being led into the gas chambers of a Nazi concentration camp. Not only are they about to die but they have been stripped in their last moments of the basic dignity of human beings. Tears are a likely reaction; pity, horror and a fellow- feeling of shame are certain, except in the pervert who might be aroused. We do not censor to protect the pervert or to assuage the susceptibilities of the over-sensitive. “Bandit Queen” tells a powerful human story and to that story the scene of Phoolan Devi’s enforced naked parade is central. It helps to explain why Phoolan Devi became what she did: her rage and vendetta against the society that had heaped indignities upon her.” [Emphasis Supplied]
In Ajay Goswami v. Union of India (2007) 1 SCC 143, while examining the scope of Section 292 IPC and Sections 3, 4 and 6 of the Indecent Representation of Women (Prohibition) Act, 1986, Apex Court held that the commitment to freedom of expression demands that it cannot be suppressed, unless the situations created by it allowing the freedom are pressing and the community interest is endangered.
Supreme Court of India
Aveek Sarkar & Anr vs State Of West Bengal And Anr on 3 February, 2014
"We have to examine whether the photograph of Boris Becker with his fiancée Barbara Fultus, a dark-skinned lady standing close to each other bare bodied but covering the breast of his fiancée with his hands can be stated to be objectionable in the sense it violates Section 292 IPC. Applying the community tolerance test, we are not prepared to say such a photograph is suggestive of deprave minds and designed to excite sexual passion in persons who are likely to look at them and see them, which would depend upon the particular posture and background in which the woman is depicted or shown. Breast of Barbara Fultus has been fully covered with the arm of Boris Becker, a photograph, of course, semi-nude, but taken by none other than the father of Barbara. Further, the photograph, in our view, has no tendency to deprave or corrupt the minds of people in whose hands the magazine Sports World or Anandabazar Patrika would fall.
We may also indicate that the said picture has to be viewed in the background in which it was shown, and the message it has to convey to the public and the world at large. The cover story of the Magazine carries the title, posing nude, dropping of harassment, battling racism in Germany. Boris Becker himself in the article published in the German magazine, speaks of the racial discrimination prevalent in Germany and the article highlights Boris Becker’s protests against racism in Germany. Boris Becker himself puts it, as quoted in the said article:
“the nude photos were supposed to shock, no doubt about it....... What I am saying with these photos is that an inter-racial relationship is okay.”
The message, the photograph wants to convey is that the colour of skin matters little and love champions over colour. Picture promotes love affair, leading to a marriage, between a white-skinned man and a black skinned woman.
We should, therefore, appreciate the photograph and the article in the light of the message it wants to convey, that is to eradicate the evil of racism and apartheid in the society and to promote love and marriage between white skinned man and a black skinned woman. When viewed in that angle, we are not prepared to say that the picture or the article which was reproduced by Sports World and the Anandabazar Patrika be said to be objectionable so as to initiate proceedings under Section 292 IPC or under Section 4 of the Indecent Representation of Women (Prohibition) Act, 1986."
Supreme Court of India
K. A. Abbas vs The Union Of India & Anr on 24 September, 1970
in Mishkin v. New York removes the test of the average person by saying that if the material is designed for a deviant sexual group, the material can only be censored if taken as a whole, it appeals to the purient interest in sex of-the members of that group. This is known as the. selective- audience obscenity test and even children are a special class.
Artistic as well as inartistic presentations are treated alike and also what may be socially good and useful and what may not. In Ranjit D. Udeshi's case(1) this court laid down certain Principles on which the obscenity of a book was to be considered with a view to deciding whether the book should be allowed to circulate or withdrawn. Those principles apply mutatis mutandis to films and also other areas besides obscenity. The Khosla Committee also adopted them and recommended them for the guidance of the film censors. We may reproduce them here as summarized by the Khosla Committee:
"The Supreme Court laid down the following principles which must be carefully studied and applied by our censors when they have to deal with a film said to be objectionable on the ground of indecency or immorality :- (1) Treating with sex and nudity in art and literature cannot be regarded as evidence of obscenity without something more. (2) Comparison of one book with another to find the extent of permissible action is not necessary.
(3) The delicate task of deciding what is artistic and what is obscene has to be perfo rmed by courts and in the last resort, by the Supreme Court and so, oral evidence of men of literature or others on the question of obscenity is not relevant.
(4) 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 is so decided that it is likely to deprave or corrupt those whose minds are open to influence of this sort and into whose hands the book is likely to fall.
(5)The interest s of contemporary society and particularly the influence of the book etc., on it must not be overlooked.
(6) Where obscenity and art are mixed, art must be so preponderating as to throw obscenity into shadow or render the obscenity so trivial and insignificant that it can have no effect and can be overlooked.
(7) Treating with sex in a manner offensive to public decency or morality which are the words of our Fundamental Law judged by our national standards and considered likely to pender to lascivious, prurient or sexually precocious minds must determine the result.
(8) When there is propagation of ideas, opinions and informations or public interests or profits, the interests of society may tilt the scales in favour of free speech and expression. Thus% books on medical science with intimate illustrations and photographs though in a sense immodest, are not to be considered obscene, but the same illustrations and photographs collected in a book from without the medical text would certainly be considered to be obscene.
(9) Obscenity without a preponderating social purpose or profit cannot have the constitutional protection of free speech or expression. 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.
(10)Knowledge, is not a part of the guilty act. The offender's knowledge of the obscenity of the book is not required under the law and it is a case of strict liability." Applicationof these principles does not seek to whittle down the fundamentalright of free speech and expression beyond the limits permissibleunder our Constitution for however high or cherished that right it does not go to pervert or harm society and the line has to be drawn somewhere. As was observed in the same case:
".. ..... 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..........."
A similar line has to be drawn in the case of every topic in films considered unsuitable for _public exhibition or specially to children.
Director General,Directorate General of Doordarshan & Ors. vs Anand Patwardhan & Anr on 25 August, 2006
In the United States, obscene material is any material or performance, if: the average person applying contemporary community standards would find that the subject matter taken as a whole appeals to the prurient interest; the subject matter depicts or describes in a patently offensive way, sexual conduct of a type described in this section; and the subject matter, taken as a whole, lacks serious literary, artistic, political, educational or scientific value. Therefore, one can observe that, the basic guidelines for the tier of fact must be:
(a) whether " the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest.;
(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
(c) whether the work, taken as a whole, lacks serious literary, artistic political, or scientific value.
In addition we are emphasizing here on the fact that many Committees have screened this documentary film including a committee set up by the appellants themselves involving media experts, representatives of various religions and politics, who have opined that, "It is a very good film and must be shown. It may alienate sections of Indian society and screening may lead to reactions by organized groups. In the unanimous view of the committee that protest is an important part of Indian democracy and was a part of its fight for independence, which is also a compelling reason for the film to be shown. Keeping these in mind the committee recommends that the screening of the film be preceded by a discussion in which alternative views are given by persons with different views." As we see, only Doordarshan has an opposition with airing the documentary film stating policy related difficulties. To this we are of the view that, since the Central Board of Film Certification has already cleared the documentary film in question by award of U/A certificate, the policy of Doordarshan of non-telecast of 'A' certified films will not stand on the way of this film being aired. A blanket ban as this one will be in violation of Article 19(2) of the Constitution which guarantees right of a citizen to express himself/herself. The Supreme Court has clarified on this regard way back in 1970, in the case of K.A. Abbas vs The Union of India & Anr, (1970) 2 SCC 780 where this Court held that, "Sex and obscenity are not always synonymous and it is wrong to classify sex as essentially obscene or even indecent or immoral." In yet another case of Ramesh vs. Union of India, (1988 (1) SCC 668) this court has observed that, "that the effect of the words must be judged from the standards of reasonable, strong minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view. This, in our opinion, is the correct approach in judging the effect of exhibition of a film or of reading a book. It is the standard of ordinary reasonable man or as they say in English law "the man on the top of Claapham omnibus."
Hence, in our view, the correct approach to be taken here is to look at the documentary film as a whole and not in bits, as any message that is purported to be conveyed by way of a film cannot be conveyed just by watching certain bits of the film. In the present situation the documentary film is seeking to portray certain evils prevalent in our society and is not seeking to cater to the prurient interests in any person. Therefore, we have no hesitation in saying that this documentary film if judged in its entirety has a theme and message to convey and the view taken by the appellants that the film is not suitable for telecast is erroneous.