Holding

The writ petition is not maintainable as existing statutes and self‑regulatory mechanisms sufficiently protect minors, and the Court cannot issue a mandamus for new guidelines or a committee.

Summary

Ajay Goswami filed a writ petition under Article 32 seeking court‑issued guidelines for newspapers to prevent minors from being exposed to sexually explicit material, and to set up a committee for regulating such content. The petition argued that existing statutes were inadequate to protect children. The Supreme Court held that the Press Council Act, 1978, the Indian Penal Code and the Indecent Representation of Women Act already provide sufficient safeguards, and that newspapers have internal self‑regulatory mechanisms. Consequently, the Court dismissed the petition, noting that a mandamus directing legislation or a committee could not be issued and that the prayer was vague. The Court also observed that any blanket ban would infringe on the freedom of speech and expression guaranteed under Article 19(1)(a).

Issues considered

The adequacy of existing legislation (Press Council Act, IPC, Indecent Representation of Women Act) to protect minors from sexually explicit material.
Whether the Court can issue a mandamus directing the government or a statutory body to frame guidelines or constitute a committee.
The balance between freedom of speech and expression (Art. 19(1)(a)) and the need to protect children.
The applicability of obscenity standards to newspaper content accessible to minors.

Legislation cited

Indecent Representation of Women (Prohibition) Act, 1986s. 3, s. 4, s. 6
Indian Penal Code, 1860s. 292, s. 293

Subjects

Freedom of speech and expressionObscenityMinor protectionPress regulationPress Council ActArticle 19(1)(a)Article 21MandamusSelf‑regulationConstitutional law

Judgment

A AJAY GOSWAMI
v.
UNION OF INDIA AND ORS.

DECEMBER 12, 2006

B [DR. AR. LAKSHMANAN AND TARUN CHATTERJEE, JJ.]

Constitution of India, 1950: Articles 19(J)(a) and 21.

Newspapers-Freedom of speech and expression-Scope, ambit and
C limitation of-Sexually explicit ma.terial-Exposure of minors to-A writ
petition was filed seeking protection to ensure that minors were not exposed
to sexually exploitative materials; whether or not the same is obscene or is
within the law-:'.Prayer made for issue of guidelines to all the newspapers
regarding the matter which may not be suitable for the reading of minors or
D which may require parents' or teachers' discretion-Direction to appoint a
committee to suggest ways and means for regulating the access of minors to
adult oriented sexual, titillating or prurient material was also sought-
Maintainability-Held: Sufficient safeguards in terms of various legislations,
norms and rules and regulations to protect the society in general and children
in particular from obscene and prurient contents are already existing-
E Leading newspapers have an internal regulatory system to ensure that no
objectionable photographs or matters get published-Moreover. 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-Writ petition dismissed-Press Council Act,
F 1978, Ss..13 & 14-Penal Code, 1860, S. 292-Jndecent Representation of
Women Act, 1986, Ss. 4 & 6.

Words & Phrases:

"Obscenif)'''-Meaning of-Explained
G The petitioner filed a writ petition seeking protection from this Court
to ensure that minors were not exposed to sexually exploitative materials,
whether or not the same is obscene or is within the law. The petitioner made
the following prayers:-

H 770
AJAYGOSWAMlv. U.0.1. 771
(a) Guidelines in detail may be issued to all the newspapers regarding A
the matter which may not be suitable for the reading of minors or which may
require parents' or teachers' discretion.

(b) Newspapers should have self regulatory system to access the
publication in view of those guidelines.
B
(c) 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 minors. The discretion in this regard should vest with parents, guardians,
teachers or experts on sex education.

(d) A committee be appointed to suggest ways and means for regulating C
the access of minors to adult oriented sexual, titillating or prurient material.

Dismissing the petition, the Court

HELD: 1.1. The prayer No. 1 cannot at all be countenanced inasmuch
as sufficient protection in the form of legislations, rules, regulations and D
norms have already been laid down under the Press Council Act, 1978, Penal
Code, 1860 etc. [793-E)

1.2. Prayer No. 2 equally is vague and no case has been made out for
constituting an Expert Committee. (793-F)

Director General, Directorate General of Doordarshan v. Anand
Patwardhan, JT (2006) 8 SC 255, relied on.

Lakshmikant Pandey v. Union of India, [1984) 2 SCC 244,
Unnikrishnan, J.P. v. State ofAndhra Pradesh, [1993) 1 SCC 645,His Holiness
Kesavananda Bharati Sripadagalvaru v. State of Kera/a, (1973) 4 SCC 225, F
Brown v. Board ofEducation, 347 US 483 (1954), MC. Mehtav. State ofT.N.,
[1996) 6 SCC 756, Comptroller & Auditor General of India v. K.S.
Jaganathan, [1986) 2 SCC 679, Vineet Narain v. UO.J., [1998) 1 SCC 226,
Vishaka v.State ofRajasthan, [1997] 6 SCC 241, Union of India v. Association
for Democratic Reforms, (2002) 5 SCC 294, Shri Chandrakant Kalyandas G
Kakodkar v. State of Maharashtra, (1962) 2 SCC 687, Samaresh Bose v. Amal
Mitra, [1985] 4 SCC 289, Alfred E. Butler v. State ofMichigan, I Led 2d 412,
Networking of Rivers: In Re: (2004) 11SCC360 and Common Cause v. Union
of India, [2003) 8 SCC 250, referred to.
2. In view of the availability of sufficient safeguards in terms of various H
772 SUPREME COURT REPORTS (2006] SUPP. IO S.C.R.

A legislations, norms and rules and regulations to protect the society in general
and children in particular from obscene and prurient contents, the writ at
the instance of the petitioner is not maintainable. [796-B, CJ

Virendra v. State ofPunjab, AIR (1967) SC 896, referred to.

B 3.1. In judging whether a particular work is obscene, regard must be
had to contemporary mores and national standards. While this Court 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 U.K.
Perhaps "community mores and standards" played a part in this Court's
C 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. [801-G; 802-A)

D Director General, Directorate General of Doordarshan v. Anand
Patwardhan, JT (2006) 8 SC 255 and Shri Chandrakant Kalyandas
Kakodkar v. State of Maharashtra, [1962) 2 SCC 687, relied on.

Samaresh Bose v. Amal Mitra, (1985) 4 SCC 289, Alfred E. Butler v.
State of Michigan I Led2d 412, Janet Reno v. American Civil liberties Union,
E 138 Led 2d 874 and United States v. Playboy Entertainment Group, Inc., 146
Led 2d 865, referred to.

3.2. It is necessary that the publication must be judged as a whole and
the impugned passages should also be separately examined so as to judge
whether the impugned passages are so grossly obscene and are likely to
F deprave and corrupt [802-B)

Ranjit D. Udeshi v. State of Maharashtra, AIR 1965 SC and Samaresh
Base v. Amal Mitra, [1985) 4 SCC 289, referred to.

4. Section 14 of the Press Council Act, 1978 empowers the Press 1"

G Council only to warn, admonish or ensure 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
H authority to ensure that its directions are complied with and its observations
AJAY GOSWAMI v. U.0.1. 773
implemented by the erring parties. Lack of punitive powers with the Press A
Council of India has tied its hands in exercising control over the erring
publications. (803-C, D, E)

5. The present scenario provides for a regulatory framework under
which punishment is prescribed for flouting the standards set by the Press
Council of India by newspapers/print media. Further, respondents Nos. 3 and B
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 C
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, the special educational needs of school D
going children publishes a supplement called "HT Next School Times" every
Monday and respondent No. 4 does not send any supplement to schools other
than "Ht Next School Times" along with the main paper. Further, respondent
No. 4 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. E
The market segment of 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 F
due to publishing of its supplement "HT City". (803-H; 804-A-E)

6. In view of the foregoing legal propositions, the picture 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
respondents' newspaper seeks to provide a wholesome reading experience G
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 he may avail of the remedies H
774 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R..

A available to them under the present legal framework. Any steps to impose a
blanket ban on publishing of such photographs would amount to prejudging
the matter. (804-E, F, GI

Fraser v. Evans, (1969) I QB 549, referred to.

B 7.1. 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. (805-A]

C 7.2. 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
individual to take on any issue. However, this right is not absolute, if such
D speech and exprP.ssion are immensely gross and badly violate the standards
of morality of a society. Therefore, any expression is subject to a reasonable
restriction. Freedom of expression has contributed much to the development
and well being of our free society. (805-B, CJ

8. The right conferred by the Constitution has triggered various issues.
E 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. [805-C, DJ

9. Be that as it may, the respondents are leading newspapers in India
F and they have to respect the freedom of speech and expression as is guaranteed
by our constitution and in fact reaches out to its readers in a responsible and
decent manner. 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. It is clearly established that the present petition is liable
G to be dismissed as the petitioner has failed to estabfish 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 is not their intention to publish photographs
which cater to the prurient interest. They have an internal regulatory system
to ensure that no objectionable photographs or matters get published.
H Respondents Nos. 3 & 4 are conscious of their responsibility towards cbildren
.... AJAYGOSWAMiv. U.0.1. 775
but at the same time it would be inappropriate to deprive the adult population A
of the entertainment which is well within tbe 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 B
the normal norms of decency in any society. (805-E-H; 806-A]

10.1. A culture of'responsible reading' should be inculcated among the
readers of news article. No news item should be viewed or read in isolation.
It is necessary that the publication must be judged as a whole and news items, C
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. (806-B, CJ
D
10.2. Therefore, 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 respondents Nos. 3 and 4 'leave much for
the thoughts of minors'. (806-D, E)

United States v. Playboy Entertainment Group, Inc. 146 Led 2d 865, E
referred to.

11. Fertile imagination of anybody especially of minors should not be a
matter that should be agitated in the Court of law. In addition,_ it is also held
that news is not limited to Times of India and Hindustan Times. Any
hypersensitive person can subscribe to many other newspapers of his choice, F
which might not be against the standards of morality of the concerned person.

12. The writ petition is, therefore, dismissed but, however, it is 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 G
amendments be made in public interest. (806-G]

CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No. 384 of2005.

(Under Article 32 of the Constitution of India.)
H
776 SUPREME COURT REPORTS [2006] SUPP. IO S.C.R.

A Satyendra Kumar and Diwakar Singh for the Petitioner and Ajay Goswami-
Petitioner-In-Person.

Harish Chandra, Kiran Bhardwaj, G. Prakash and V.K. Verma with him for
U.O.I.

B P.H. Parekh, D.P. Mohanty, S. Goel and Rukmini Bobde (P.H. Parekh &
Co.) for Press Council.

Sanjay Kumar for Respondent No.5.

A.K. Seth, Vineet Seth and Dr. K.C. Aggarwal for Respondent No.6.
c Gopal Jain, R.N. Karanjawala, Ruby Singh Ahuja, Simran Brar and Manik
Karanjawala for Respodent No.4.

Vimal Chandra S. Dave, K.V. Mohan, Subramonium Prasad and Dr. Kailash
Chand for the Respondents.
D
The Judgment of the Court was delivered by

DR. AR. LAKSHMANAN, J. The Petitioner is a lawyer by profession.
Respondent No. I is Union of India, respondent No.2 is a statutory body,
respondent Nos. 3 & 4 are the leading national daily newspapers and
E 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(l)(a) of the Constitution
of India. The petitioner's grievance is that the freedom of speech and
F 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
G 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
H the Child, 1989 and Universal Declaration of Human Rights, to protect the
AJAY GOSWAMI v. U.0.1. [LAKSHMANA~, J.] 777
vulnerable minors from abuse, exploitation and harmful effects of such A
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
(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 C
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. D
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 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 E
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. F
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 G
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.
H
778 SUPREME COURT REPORTS (2006) SUPP: 10 S.C.R.

A l. ls 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
B 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
C 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
D 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
E 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,
F 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.

G 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 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
H control or check. Are these articles really making our children morally healthy?
AJAY GOSWAMI v. U.0.1. [LAKSHMANAN, J.] 779
Moral values should not be allowed to be sacrificed in the guise of social A
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 B
Article 39(t) 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. v.
Anand Patwardhan & Anr., (C.A.No. 613 of 2005), to which one of us was
a member, Dr. Justice AR. Lakshmanan, observed as under:
c
" .. one of the most controversial issue is balancing the need to protect
society against the potential hann that may flow from obscene material,
and the need to ensure respect for freedom of expression and to
preserve a free flow of infonnation and idea."

It was further observed by this Court : D
" ..... 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." E
" ....... 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 to have in the minds of the readers."
F
It was observed by this Court in the matter of Lakshmikant Pandey v.
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 G
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 H
' •'
780 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A it observed that "the physical and mental health of the nation is
detennined 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 fullness of physical and vital energy and the utmost breadth,
depth and height of its emotional, intellectual and spiritual being;
B 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
c 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 oflife with full appreciation and realisation
of the role which they have to play in the nation building process
without which the nation cannot develop and attain real prosperity
·n 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
E 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 a/ia 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
F 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
G
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
H find a prominent part in our national plans for the development of
AJAY GOSWAMI v. U.0.1. [LAKSHMANAN, J. ] 781
human resources, so that our children grow up to become robust A
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.
B
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 C
children are realised within the normal family neighbourhood and
community environment... ... "

Further this Court in Unnikrishnan, J.P & Ors. v. 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: D
"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 E
from the above stand-point that Question No. l 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.
F
In His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kera/a
& Anr., [ 1973] 4 SCC 225, this court observed as follows:

" ..... The fundamental rights and the directive principles constitute the
'conscience' of our Constitution .... To ignore Part IV is to ignore the
sustenance provided for in the Constitution, the hopes held out to the G
Nation and the very ideals on which our Constitution is buil....there
is no anti-thesis between the fundamental rights and the directive
principles. One supplements the other.

" ..... Both Parts III and IV ..... have to be balanced and harmonized,
then alone the dignity of the individual can be achieved .... "They H
782 SUPREME COURT REPORTS (2006) SUPP. 10 S.C.R.

A (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
B
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
c 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
D
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
E 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 ...."

This Court also cited observation in Brown v. Board of Education, 347
US 483 (1954) wherein "it was emphasized in the following words:
F
" .... Today, education is perhaps the most important function of State
and a local government... 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
G 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 v. State ofT.N. and Ors., [1996]
H
AJAY GOSWAMI v. U.0.1. [LAKSHMANAN, J.] 783
6 sec 756 observed that: A
"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 B
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. C
It would be apposite to apprise ourselves also about our
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. D
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 E
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: F
(0 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(l)(a), Article G
21 read with Article 39(t) 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
H
784 SUPREME COURT REPORTS [2006) SUPP. 10 S.C.R.

A 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
B 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
C legislation or executive orders has failed in its duty. The Press
Council oflndia 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
D t!le 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
E 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. v. KS. Jagnathan, [1986] 2
SCC 679, this Court held as under:
F
" .... .In order to prevent injustice resulting to the concerned 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."

G Similarly in Vineet Narain & Ors. v. UO.I., (1998) 1 SCC 226, this Gourt
held as under:

" ...... There 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
H
AJAY.GOSWAMI v. U.0.1. [LAKSHMANAN, J. ] 785
of this Court as provided in Article 144 of the Constitution. In a 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 ....... "

"Where there is inaction by the legislature it is the duty of B
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
c
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. D
(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 E
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, F
titilliating or prurient material.

Mr. Harish Chandra, learned senior counsel appearing for Union of
India - respondent No. I 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 G
,'
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:
H
786 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A "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,
B pamphlets etc, containing indecent representation of women -
No person shall produce or cause to be produced, sell, let to
hire, 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:
c
(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,
D 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; o~
.:
(ii) which is kept or used bona fide for religious purposes;

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

(i) any ancient monument within the meaning of the Ancient
Monument and Archaeological Sites and Remains Act, 1958
(24of1958)

F (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 (37of1952), will be applicable."

G 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
It either description for a term which may extend to two years, and with
AJAY GOSWAMI v. U.0.1. [LAKSHMANAN, J.] 787
fine which may extend to two thousand rupees, and in the event of A
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, B
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 C
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 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 D
comply with these Jaws and not to abuse the freedom of speech and expression
(freedom of press) guaranteed under Article l 9(l)(a) of the Constitution of
India.

Mr. P.H. Parekh, learned counsel appearing for respondent No.2-Press
Council oflndia, submitted that the Press Council enjoys only limited authority, E
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. How~ver,
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 F
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, G
the same has not been amenqed. 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-nation~! activities as found
H
.....
788 SUPREME COURT REPORTS [2006] SUPP. IO S.C.R.

A 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
B 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:

l. Vishaka & Ors. v. State of Rajasthan & Ors., [ 1997) 6 SCC 241

C 2. Vineet Narain & Ors. v. U.0.1. & Ors., [1998) I SCC 226
3. Union of India v. Association for Democratic Reforms and Anr.,
120021 s sec 294.

Learned counsel submitted that this Court may consider to issue
appropriate guidelines.
D
Learned counsel appearing for respondent no. 3 (Times of India)
contented that legislations, rules and regulations already exists within the
Indian legal frame·.ivork to check publication of obscene materials and articles.
Section 292 of the Indian Penal Code prohibits and punishes selling, hiring,
E 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 ofthe..said
F 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 (l) and 14 (2) of the Press Council of India
G Act empowers the Press Council to impose serious checks on the Newspaper,
News Agency, an editor or a journalist who flouts the norms as formulated
by the Press Council and is against societal norms of decency.

Learned Counsel also submitted that the Indian Constitution under
Article 19 (I) (a) guarantees every citizen the right to freedom of speech and
H
AJAY GOSWAMI v. U.O.I. [LAKSHMANAN, J.] 789

expression and respondent being a leading Newspaper has the right to express A
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: B
"(a) whether the average person applying contemporary community
standards would find that the work, taken as a whole appeal to the
prurient interest....

(b) whether the work depicts or describes, in a patently offensive way, C
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 D
Ors., [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 E
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 F
authors to write books only for the adolescent and not for the adults."

Learned counsel referred to the case of Samaresh Bose and Anr. v. Amal
Mitra and Anr., [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 G
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
H
790 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A 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
B 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 ofMichigan, I Led 2d 4 I 2, the U.S. Supreme
C 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. "

D 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 artkle 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
E 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 Jays down guidelines for
F newspapers/journalists to maintain standards with regard to obscenity and
vulgarity.

Norm 17 reads as follows:

"Obscenity and vulgarity to be eschewed
G
(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,
H provoke lecherous attention of males as if she herself was a
... AJAY GOSWAMI v. U.0.1. [LAKSHMANAN, J.] 791
commercial commodity for sale. A
(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? B
·( 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 C
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 D
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. E
(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." ·
F
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
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. " · G
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 jg in doubt, the assistance of the legal department is resorted H
792 SUPREME COURT REPORTS (2006) SUPP. 10 S.C.R.

A 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
B 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.
c 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
D 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.
E Maintainability of Writ Petition:

Before proceeding further, we feel better to reproduce the prayers made
in the writ petition which read as follows:

"( l) Issue writ in the nature of writ of mandamus/order or direction to
F the respondent Nos. l & 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. I & 2 be directed to constitute an expert committee
G
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
H particular, respondent Nos. 3 and 4. Learned counsel for respondent No.3
AJAY GOSWAMI v. U.0.1. [LAKSHMANAN, J.] 793
pointed out that there can be no mandamus for legislation and in support of A
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 B
legislation."

He also cited Common Cause v. Union of India & Ors., [2003] 8 SCC 250.
This Court held:

"From the facts placed before us it cannot be said that the Government C
is not alive to the problem or is desirous of ignoring the will of
Parliament. When the legislature itself 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 D
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.
E
We have already noticed the prayer in the present writ petition. In our
view, the prayer No. I 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
F
constituting an Expert Committee.

lEGlSLA TJONS AGAINST OBSCENITY:

Section 13 of the Press Council Act, 1978 specifies the objects and G
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 H
sense of both the rights and responsibilities of citizenship.: .. ;
794 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A 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,
B 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
c 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.
D
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
E 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.-( I) For the:purposes of sub-
F
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
G as to tend to deprave and corr\Jpt person, who are likely, having
regard to all relevant circumstances, to read, see or hear the
matter contained or embodied in it].

[(2)] Whoever-

H (a) sells, lets to hire, distributes, publicly exhibits or in any
manner puts into circulation, or for purposes of sale, hire,
AJAY GOSWAMI v. U.0.1. [LAKSHMANAN, I.] 795
distribution, public exhibition or circulation, makes, produces or A
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 B
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, C
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 D
. 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 E
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- F
(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 G
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 H
796 SUPREME COURT REPORTS [2006) SUPP. 10 S.C.R.

A 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,
B 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
C legislations, norms and rules and regulations to 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(I)(a) deals with freedom of speech and expression. In the
matter of Virendra v. State of Punjab & Anr., AIR (1957) SC 896 this Court
D held:

" ... It 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.
E
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
F
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.
G
Therefore, the crucial question must always be : Are the restrictions
imposed on the exercise of the rights under Arts. 19(l)(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
H
AJAY GOSWAMI v. U.0.1. [LAKSHMANAN, J.] 797
under Art. 19(6) ?" . A
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(l)(a) of the Constitution of India, its purport and intent, and laid B
down the broad principles to determine/judge obscenity.

In a recent judgment Director General, Directorate General of
Doordarshan & Ors. v. 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: C
"(a) whether the average person applying contemporary community
standards would find that the work, taken as a whole appeal to the
prurient interest...

(b) whether the work depicts or describes, in a patently offensive way, D
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 E
Ors., [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 F
'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 G
obscene, no books can be sold except those 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 H
)
798 SUPREME COURT REPORTS (2006] SUPP. 10 S.C.R.

A ·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"

B In Samaresh Bose & Anr. v. 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
c 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
D
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, ifthe Court considers it necessary, rely to an extent
on evidence and views of leading literary personage, if available, for
E 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
F
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
G 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
H
AJAY GOSWAMI v. U.0.1. [LAKSHMANAN, J.] 799
kind of outlook may not consider the same book to be obscene on A
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 B
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 C ,
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. 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 LP .C. by an objective assessment of the book as a D
whole and also of the passages complained of as obscene separately.
In appropriate cases, the Court, for eliminaHng 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 E
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: F
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. G
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
H
800 SUPREME COURT REPORTS [2006) SUPP. 10 S.C.R.

A 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."
B
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
C should not be that the adult population is restricted to read and see what is
fit for children.

In Alfred E Butler v. State of Michigan, l Led 2d 412, U.S. Supreme
Court held as under:

D "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 bum the house to roast the pig."

There should be no suppression of speech and expression in protecting
E children from harmful materials : In Janet Reno v. 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 address.ed to adults, in violation of the Federal Constitution's·
F 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
G Congress has designed its statute to accomplish its purpose without
imposing an unnecessarily great restriction on speech."

In 146 Led 2d 865, United States v. Playboy Entertainment Group, Inc.,'
it has been held that:
H
AJAY GOSWAMI v. U.0.1. [LAKSHMANAN, J.] 801
"In order for the State ....to justify prohibition of a particular A
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.... 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 B
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"
c
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 D
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 E
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 F
preponderating social purpose or profit cannot have the constitutional
protection of free speech ...."

Contemporary Standards

In judging as to whether a particular work is obscene, regard must be G
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
H

-·
802 SUPREME COURT REPORTS (2006] SUPP. 10 S.C.R.

A 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
B
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.

C 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.
D
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 the subconscious
mind and may unconsciously affect a proper objective assessment,
E 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."
F 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:
G "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
H thought should be intrinsically dangerous to the public interest. In
AJAY GOSWAMI v. U.0.1. [LAKSHMANAN, J.] 803
other words, the expression should be inseparably like the equivalent A
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 B
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."
c
An additional affidavit was filed on behalf of the Press Council oflndia
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 D
to giving directions to the answering respondents arraigned before it to
publish particulars relating to its enquiry and adjudication. It, however, has
rno 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 E
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 F
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. G
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 H
804 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A 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
B 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
C advertisements, which may offend the sensibilities -0f 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
D 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
E 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
F 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
G 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 v. Evans, (1969) l QB 54?.
H
- AJAY GOSWAMI v. U.O.I. [LAKSHMANAN, J.]

The definition of obscenity differs from culture to culture, between
805
A
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 B
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 C
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.

This right conferred by the Constitution has triggered various issues.
One of the most controversial issues is balancing the need to protect society D
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 E
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 F
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 ieading
newspapers that it is not their intention to publish photographs which cater G
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 H
806 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A 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 ofreading their share of their entertainment which
B 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
C 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
D States v. Playboy Entertainment Group, Inc, 146 Led 2d 865, that, "in order
·for the State .... to 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." Th,erefore, in ?ur view, in the present matter, the,
E 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
F 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 sta!Jdards of morality of the
concerned person.

We, therefore, dismiss the writ petition but however observed that the
G 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.

v.s.s. Petition. dismissed.