Holding

The High Court’s framing of a charge under Section 292 IPC against the poet is not flawed, but the publisher and printer are discharged, and the contemporary community standards test, applied with greater vigor when Gandhi’s name is used, governs the obscenity analysis.

Summary

The appeal concerned a poem titled "Gandhi Mala Bhetala" published in a private bulletin, for which the author, publisher and printer were charged under Section 292 of the Indian Penal Code for obscenity. The Supreme Court examined whether the use of Mahatma Gandhi’s name as an allusion or symbol heightened the applicability of the contemporary community standards test for obscenity, and whether the charge could be framed against the poet. It held that the High Court’s decision to frame the charge against the poet was not erroneous, as the poet may raise his defence at trial, but the test for obscenity must consider the heightened sensitivity when a historically respected personality is invoked. The court quashed the charges against the publisher and printer, leaving the poet’s trial to determine liability. The judgment reaffirmed that freedom of speech under Article 19(1)(a) is not absolute and must be balanced against public decency, applying the contemporary community standards test.

Issues considered

The applicability of Section 292 IPC to a poem that uses Mahatma Gandhi's name as an allusion or symbol.
Whether the contemporary community standards test for obscenity applies more stringently when a historically respected personality is invoked.
Whether the charge under Section 292 IPC can be validly framed against the poet at the stage of charge‑framing.
The extent of the limitation on freedom of speech and expression under Article 19(1)(a) and Article 19(2) of the Constitution.
The relevance of "poetic licence" and artistic freedom in determining obscenity.

Legislation cited

Code of Criminal Procedure, 1973s. 397, s. 482
Indian Penal Code, 1860s. 292

Subjects

freedom of speechobscenitySection 292 IPCcontemporary community standards testpoetic licenceMahatma GandhiArticle 19constitutional limitationcensorshipliterary expression

Judgment

[2015] 7 S.C.R. 853

DEVI DAS RAMACHANDRA TULJAPURKAR A
v.
STATE OF MAHARASHTRA& ORS.

(Criminal Appeal No.1179 of2010)
B
MAY14, 2015

[DIPAK MISRA AND PRAFULLA C. PANT, JJ.]

PENAL CODE, 1860:
c
s. 292 - Framing of charges under-Against the author,
publisher and the printer of a poem 'Gandhi Mala Bhetala'('I
met GandhiJ - Charges framed-Application by the accused
. for discharging them - Rejected by trial court - Order
D
confirmed by the revisional court as well as the High Court-
On appeal, held: The view of High Court pertaining to framing
of charges as against the poet cannot be flawed- Whether
the poem has any other layer of meaning or not, cannot be
gone into, at the time of framing of charges- It shall be open E
for the poet to put his defense at the trial - However, the
publisher and the printer, in the facts of the case, am
discharged- Code of Criminal Procedure, 1973.

s.292 - Offence under - Constituents of - Held: By
. bringing in a historically respected personality to the arena
of s.292 IPC, neither a new offence is created nor an ingredient
F

is interpreted - The parameter for adjudging obscenity is
'contemporary community standards' test- However, the test
becomes applicable with more vigour, in a greater degree, if G
the name of Mahatma Gandhi is used as a symbol or allusion
or surrealistic voice to put words or to show him doing such
acts which are obscene.

853 H
854 SUPREME COURT REPORTS [2015] 7 S.C.R.

A CONSTITUTION OF IND/A, 1950

Art. 19(1)(a) and 19(2) - Freedom of speech and
expression and limitations thereon - Held: Freedom of
speech and expression though has to be given a broad
B canvas, but it has its inherent limitations, it is not absolute.
Art. 19(1)(a) - Interpretation of - Held: When two
interpretations (restrictive and liberal) of Art. 19(1)(a) are
possible, liberal interpretation shouid be adopted - Art.
c 19(1)(a) is intrinsically linked with preambular objectives
which form a part of basic structure- Hence the Article should
be interpreted in aid of the preambular objective.

D
WORDS AND PHRASES:

'Poetic license'- Meaning of- Discussed.
-
'Obscenity' and 'vulgarity' - Meaning of, in the context of
s.292 /PC- Discussed.

E 'Poetry' - Meaning of.

Disposing of the appeal, the Court

HELD: 1. The prevalent test of obscenity in praesenti
is the contemporary community standards test. The
F contemporary community standards test is the main
criterion and it has to be appreciated on the foundation
of modern perception, regard being had to the criterion
that develops the literature. There can neither be
stagnation of ideas nor there can be staticity of ideals.
G The innovative minds can conceive of many a thing and
project them in different ways. As far as comparables
test is concerned, the Court may sometimes have
referred to various books on literature of the foreign
authors and expressed the view that certain writings are
H
not obscene, but that is not the applicable test. It may at
DEVI DAS RAMACHANDRA TULJAPURKAR v. 855
STATE OF MAHARASHTRA

best reflect what the community accepts. [para 59, 60) A
[946-E;947-D-G]

Ranjit D. Udeshi v. State of Maharashtra (1965) 1 SCR
65; Chandrakant Ka/yandas Kakodkar v. State of
Maharashtra 1970 (2) SCR 80 :::1969 (2) SCC 687; KA. B
Abbas v. Union of lf'dia and another 1971 (2) SCR 446 =1970
(2) SCC 780; Raj Kapoor and Others v. State and Others
1980 (1) SCR 1081 = 1980 (1) SCC 43; Samresh Bose &
Anr. v. Amal Mitra &Anr. 1985 (3) Suppl. SCR 17=1985 (4)
SCC 289; Director General, Directorate General of C
Doordarshan and others v. Anand Patwardhan and another
2006 (5) Suppl. SCR 403 = 2006 (8) SCC 433; Ajay Goswami
v. Union of India and others 2006 (10) Suppl. SCR 770 =
2007 (1) SCC 143; Bobby Art International v. Om Pal Singh
Hoon and Others 1996 (2) Suppl. SCR 136 = 1996 (4) SCC D
1; State of Bihar v. Shailabala Devi 1952 AIR 329 = 1952
SCR 654, Ramesh slo Chhote Lal Dalal v. Union of India
andothers1988 (2) SCR 1011=1988(1) SCC 668; Bhagwati
Charan Shukla v. Provincial Government AIR 1947 Nag 1;
Gandhi Smaraka Samithi, v. Kanuri Jagadish Prasad (1993) E
2 APLJ 91 (SN); Promil/a kapur v. Yash Pal Bhasin 1989
Cr.L.J.1241 ;B.K. Adarsh v. Union oflndiaAIR 1990AP100;
S. Khushboo v. Kanniamma/ and another2010 (5) seR 322
= 2010 (5) Sec 600; Aveek Sarkar and another v. State of F
West Bengal and others (2014) 4 sec 257; Shreya Singhal
· v. Union of India 2015 (4) SCALE 1 - referred to.
Kam/a Kant Singh v. Chairman/ManagingDirector,
Bennetta Colman and Company Ltd. and Ors. (1987) 2 AWC
1451; Public Prosecutor v. A.O. Sabapathy AIR 1958 Mad. G
210; R. v. Beaver(1905), 9 O.L.R. 418; Regina v. Hicklin LR
1868 3 QB 360; R. v. Martin Secker& Warburg LO (19541
WLR 11 1138; R. v. Penguin Books Ltd. [1961) Crim LR
176; Chaplinsky v. New Hampshire 315 U.S. 568 (1942); H
Roth v. United States (1957) 354 US 476; Memoirs v.
e56 SUPREME COURT REPORTS [2015) 7 S.C.R.

A Masachusetts 383 U.S. 413 (1966); Marvin Miller vs. State
of California 413 US 15 (1973): 93 S.Ct. 2607; Reno v.
American Union of Civil Liberties 521 U.S. 844 (1997); State
of Oregon v. Ear/A. Henry732 P.2d 9 (1987); United States
v. Various Articles of Obscene Merch 732 P.2d 9 (1987);
B Ashcroft v. Free Speech Coalition 535 U.S. 234, 248 (2002);
Kavita Phumbhra v. Commissioner of Customs (Port),
Calcutta (2012) 1 Cal LJ 157; Wingrove v. United Kingdom
1997 24 ECHRR (1); Muller and Others v. Switzerland 13
EHRR 212; Freadman v. Maryland (1965) 380 US 51; Teital
C Film Corp. v. Cusak (1968) 390 US 149; Times Film
Corporation v. Chicago (1961) 365 US 43; Brody v. R 1962
SCR 681 (Can SC); R. v. Butler (1992) 1 SCR 452 (Can
SC) - referred to.

D R. v. Peacock Unreported case [http://www.bbc.com/
news/uk-16443697] - referred to.

Vereinigung Bi/dender Kinstler v. Austria Application No.
68354/2001, 251h January 2007; Handyside v. United
E Kingdom Application No. 5493/72, 71h December 1976,
Series A No. 24; Editorial Board of Pravoye Delo and Shtekel
v. Ukraine Application No. 33014/05, 5 May 2011; Akda v.
Turkey Application No. 41056/04, 16 February, 2010 -
referred to.
F
Judicial Erosion of Protection for Defendants in
Obscenity Prosecutions?When Courts Say; Literally; Enough
is Enough and When Internet Availability Does Not Mean
Acceptance by Clay Clavert; Journal of Sports and
G Entertainment Law (Vol.1, Number 1), Harvard Law School,
2010 - referred to.
2.1 The words, freedom of speech and expression
find place in the association words "liberty of thought,
H expression, belief, faith and worship'', which form a part
DEVI DAS RAMACHANDRA TULJAPURKAR v. 857
STATE OF MAHARASHTRA

of the Preamble of the Constitution. It is true that Article A
19(1)(a) has to be interpreted in a manner by which the
fundamental right to "freedom of speech and
expression" is nourished. When two interpretations of
Article 19(1)(a), one a traditional or restrictive approach
and the other a modern/liberal approach are possible, B
the latter should be adopted, for by adopting the said
approach, the fundamental right to freedom of speech
and expression is guarded and any attempt.to overreach
the same is kept in check. Interpreting Article 19(1)(a) of
the Constitution, the test is always to see the said Article C
in aid of the Preambular objectives which form a part of
the basic structure of the Constitution. Article 19(1 )(a) is
intrinsically linked with the Preambular objectives and it
is the duty of the Court to progressively realise the values
0
of the Constitution. [par:.s 61, 64 and 67] [948-A-B; 950-
D-F; 952-C-D]
2.2 It is correct that there should not be narrow or
condensed interpretation of freedom of speech and
expression, but that does not mean that there cannot be E
any limit. It has to have inherent limitations which are
permissible within the constitutional parameters.
Freedom of speech and expression as enshrined under
Article 19(1 )(a) of the Constitution is not absolute in view
of Article 19(2) of the Constitution. The said right is a right F
of great value and transcends and with the passage of
time and growth of culture, it has to pave the path of
ascendancy, but it cannot be put in the compartment of
absoluteness. There is constitutional limitation attached
to it. [Paras 72 and 104] [961-A-B; 975-C-E] G
Kesavanada Bharti v. State of Kera/a and Others (1973)
4 SCC 225; Ranjit D. Udeshi v. State of Maharashtra (1965)
1 SCR 65 - followed.
Maneka Gandhi v. Union of India (1978) 1 SCC 248; H
858 SUPREME COURT REPORTS [2015] 7 S.C.R.

A Gajanan Visheshwar(1994) 5 SCC 550; Sahara India Real
Estate Corpn. Ltd. v. SEBI (2012) 10 SCC 603, State of
Kamataka v. Associated Management of English Medium
Primary & Secondary Schools (2014) 9 SCC 485 - relied
on.
B
Shreya Singhal v. Union of India 2015 (4) SCALE 1 - '
referred to.
American Communications Association v. Douds 339
US 382 - referred to.
c 3.1 The Constitution does not recognize any
personality whether historically or otherwise as far as
Article 19(1 )(a) is concerned. But it cannot be said that if
the concept of personality test is applied, a' new
0 ingredient to Section 292 IPC would be added which is
in the realm of legislature and this Court should refrain
from doing the same. [para 73) [961-D-E] ·
3.2 Section 292 IPC uses the term 'obscene'. While
dealing with the facet of obscenity, this Court has
E evolved the test, which holds the field today is the
'contemporary community standards test'. That does not
really create an offence or add an ingredient to the
offence as conceived by the legislature under Section
292 IPC. It is a test, thought of by this Court to judge
F obscenity. The said test has been evolved by conceptual
hermeneutics. This Court cannot create an offence which
is not there nor can it add an ingredient to it. [para 73)
[961-E-G]
G Kesavanada Bharti v. State of Kera/a and Others (1973)
4 SCC 225; K. Karunakaran v. T. II. Eachara Warrier 1978
(2) SCR 209 = 1978 (1) SCC 18; Maneka Gandhi v. Union
of India (1978) 1 SCC 248; Bangalore Water Supply &
=
Sewerage Board v. A. Rajappa1978 (3) SCR 207 (1978) 2
H SCC 213; Minerva Mills Ltd. v. Union of India (1980) 3 SCC
DEVIDAS RAMACHANDRA TULJAPURKAR v. 859
STATE OF MAHARASHTRA

625; Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. A
=
Union of India 1981 (2) SCR 185 1981 (1) SCC 246;
People's Union for Democratic Rights v. Union of India 1983
=
(1) SCR 456 1982 (3) SCC 235; Bachan Singh v. State of
Punjab 1983 (1) SCR 145 = (1982) 3 SCC 24; Kai/ash
Sankar v. Maya Devi 1984 (2) SCR 176 = 1984 (2) SCC 91; B
=
Pradeep Jain v. Union of India 1984 (3) SCR 942 1984 (3)
SCC 654; Indra Sawhney v. Union of India 1992 (2) Suppl.
=
SCR 454 1992 (3) Suppl. SCC 217; S.R. Bommai and
=
others v. Union of India and others 1994 (2) SCR 644 1994
(3) SCC 1; T.N. Godavarman Thirumu/pad v. Union of C
=
/ndia2012 (1) SCR 923 2012 (4) SCC 362; Dalip Singh v.
=
State of U.P and Ors. 2009 (16) SCR 111 2010 (2) SCC
114 - referred to.

3.3 There are several decisions of this Court, where D
the name of Mahatma Gandhi has been referred to with
reverence and elaborating on various facets of life of
Gandhi and Gandhian thought. There are also certain
eminent persons who have referred to Mahatma Gandhi
in their speech and articles. There are books which E
praise Gandhi, analyse Gandhian thoughts, criticise
Gandhian philosophy, express their dissent, disagree
with his political quotient and also comment on his views
on "Brahamcharya". On reading of the said books, one
can safely say they are the views of the authors in their F
own way and there is no compulsion to agree with the
personality or his thoughts or philosophy. [paras 90 and
92] [967-G; 970-B-C]

"Great Soul: Mahatma Gandhi and his struggle India" G
Lelyveld Joseph, Great Soul: Mahatma Gandhi and his
struggle with India, Harpr Collins, 2011; "Sex'"and Power"
Lelyveld Joseph, Great Soul: Mahatma Gandhi and his
struggle with India, Harpr Collins, 2011; Mahatma Gandhi The
Early Phase Vol. I Pyarelal, Navajivan Publishing House, 1965, H
860 SUPREME COURT REPORTS [2015] 7 S.C.R.

A Gandhian Constitution for Free India Shriman Narayan
Agarwal, Kitabistan, 1946; Gandhi's Philosophy of Law VS.
Hegde, Concept Publishing Company, 1983; Mahatma
Gandhi Sankar Ghose, Allied Publishers Limited, 1991; The
Myth of the Mahatma MMichael Edwardes, UBS Publishers'
B distributors Ltd., 1986; Gandhi Before India Ramachandra
Guha, Penguin Books, 2013; In Search of Gandhi Richard
Attenborough, B.I. Publications, 1982; Gandhi's View of Legal
Justice Ajit Atri, Deep & Deep Publications Pvt. Ltd., 2007;
Gandhi, Soldier of Non-Violence: An Introduction Calvin Kytle,
C Seven Locks Press, 1983; Trial of Mr. Gandhi Francis Watson,
Macmillan and Co., 1969; Gandhi and Civil Disobedience
Movement S.R. Bakshi, Gitanjali Publishing House, 1985;
Ti/ak, Gandhi and Gita D.K. Gosavi, Bharatiya Vidya Bhavan,
1983; Studies in Modem Indian Political thought: Gandhi an
0
Interpretation O.P. Goyal, Kitab Mahal Pvt. Ltd., 1964; Gandhi
and the Partition of India Sandhya Chaudhri, Sterling
Publishers Pvt. Ltd., 1984; Gandhi in London James D Hunt,
Promilla & Co., 1978; Mahatma Gandhi Contribution to
E Hinduism James D Hunt, Promilla & Co., 1978; Life of
Mahatma Gandhi Louis Fisher, Granada, 1982; Moral and
Political Thought of Mahatma Gandhi Raghavan N. Iyer,
Oxford University Press, 1973; Gandhi and Social Action
Today Mery Kappen (Ed.), Sterling Publishers Pvt. Ltd., 1990;
F Gandhi: The Man and the Mahatma Ram Sharma, Rajan,
1985; Gandhi and Ideology of Swadeshi S.R. Bakshi,
Reliance Publishing House, 1987; Gandhi's Khadi: History of
Contention and Conciliation Rahul Ramagundam, Orient
Longman Pvt Ltd., 2008; Mahatma Gandhi and Jawarhal
G Nehru: A Historic Partnership Vo/.1 (1916-1931) Madhu
Limaye, B.R. Publishing Corporation, 1989; Gandhi: Prisoner
of Hope Judith M. Brown, Oxford University Press, 1990;
Mahatma Gandhi and His Apostles Ved Mehta, Indian Book
Company, 1977'; Gandhi and Status of Women S.R. Bakshi,
H Criterion Publications, 1987; Philosophy of Gandhi: A Study
DEVI DAS RAMACHANDRA TULJAPURKAR v. 861
STATE OF MAHARASHTRA

of His Basic Ideas Glyn Richards, Rupa & Co., 1991; Gandhi A
Naked Ambition Jad Adams, Quercus, 201 O; Meera anJ the
. Mahatma Sudhir Kakar, Yiking- Penguin, 2004; and The Men
Who Killed Gandhi Manohar Malgonkar, Roli Books, 2008 -
referred to.
B
3.4 There can be no two opinions that one can
express his views freely about a historically respected
personality showing his disagr~ement, dissent, criticism,
non-acceptance or critical evaluation. There can be "art
for art's sake" which would include a poem for the sake C
of thought or expression or free speech and many a
concept. [paras 93 and 94] [970-D, G]

3.5 In the context of obscenity, the provision
enshrined under Section 292 IPC has its room to play. D
By bringing in a historically respected personality to the
arena of Section 292 IPC, neither a new offence is created
nor an ingredient is interpreted. The judicially evolved
test, that is, "contemporary community standards test"
is a parameter for adjudging obscenity, and in that E
context, the words used or spoken by a historically
respected personality is a medium of communication
through a poem or write-up or other form of artistic work
gets signification. That makes the test applicable in a
greater degree. [para 104] [975-D-G] F

4. When the name of Mahatma Gandhi is alluded or
used as a symbol, speaking or using obscene words,
the concept of "degree" comes in. The "contemporary
community standards test" becomes applicable with G
more vigour, in a greater degree and in an accentuated
manner. What can otherwise pass of the contemporary
community standards test for use of the same language,
it would not be so, if the name of Mahatma Gandhi is
used as a symbol or allusion or surrealistic voice to put H
862 SUPREME COURT REPORTS [2015] 7 S.C.R.

A words or to show him doing such acts which are
obscene. Whether the poem has any other layer of
meaning or not, cannot be gone into at the time of
framing of charge. The author in his own understanding
and through the process of trial, can put his stand and
B stance before the trial Judge. It is left to the poet to put
his defense at the trial explaining the manner, he has
used the words and in what context. The view of the High
Court pertaining to the framing of charge under Section
292 IPC cannot be flawed. It shall be open for the poet to
C raise all the pleas in defence, as available to him under
the law before the Magistrate, during trial. [paras 101, 105
and 106] [973-G; 976-E-G; 977-D]

5. So far as the appellant-publisher is concerned, he
D had published the poem in question, which had already
been recited during the Akhil Bhartiya Sahithya
Sammelan in 1980, and was earlier published on
2.10.1986 by others. The appellant has published the
poem only in 1994. But immediately after coming to know
E about the reactions of certain employees, he tendered
unconditional apology in the next issue of the 'Bulletin'
and almost more than two decades have passed. The
printer had printed as desired by the publisher. The
F charge framed against the publisher as well as the printer,
is quashed. [para 106] [976-H; 977-A-C]
Case Law Reference

(1987) 2 AWC 1451 Referred to Para 9
G
AIR 1958 Mad. 210 Referred to Para 10

(1905), 9 O.L.R. 418 Referred to Para 10

LR 1868 3 QB 360 Referred to Para 12
H
DEVI DAS RAMACHANDRA TULJAPURKAR v. 863
STATE OF MAHARASHTRA

(1954) 1WLR111138 Referred to Para 12 A

[1961] Crim LR 176 Referred to Para 15

315 U.S. 568 (1942) Referred to Para 18

(1957) 354 us 476 Referred to Para 19 B

383 U.S. 413 (1966) Referred to Para 20

413 us 15 (1973):

93 S.Ct. 2607 Referred to Para 21 c
521 U.S. 844 (1997) Referred to Para 23

732 P.2d 9 (1987) Referred to Para 24
D
535 U.S. 234, 248 (2002) Referred to Para 26

(2012) 1 Cal LJ 157 Referred to Para 26

1997 24 ECHRR (1) Referred to Para 32
E
13 EHRR 212 Referred to Para 33

(1965) 1 SCR 65 Referred to . Para 36

1970 (2) SCR 80 Referred to Para 41
·' F
1971 (2) SCR 446 Referred to Para 42

(1965) 380 us 51 Referred to Para 42

(1961) 365 us 4::. Referred to Para 42
G
1980 (1) SCR 1081 Referred to Para 45

1985 (3) S'..: ... ~;. SCR 17 Referred to Para 48

2006 (5) Suppl. SCR 403 Referred to Para 51
H
864 SUPREME COURT REPORTS [2015] 7 S.C.R.

A 2006 (10) Suppl. SCR 770 Referred to Para 52

1996 (2) Suppl. SCR 136 Referred to Para 53

1952 SCR 654 Referred to Para 53

B 1988 (2) SCR 1011 Referred to Para 54

AIR 1947 Nag 1 Referred to Para 54

(1993) 2 APLJ 91 (SN) Referred to Para 55
c 1989 Cr.L.J. 1241 Referred to Para 56

AIR 1990AP100 Referred to Para 56

2010 (5) SCR 322 Referred to Para 57
D
(2014) 4 sec 257 Referred to Para 58

1962 SCR 681 (Can SC) Referred to Para 58

(1992) 1 SCR 452 (Can SC) Referred to Para 58
E
2015 (4) SCALE 1 Referred to Para 59

(1973) 4 sec 225 Followed para 65

(1978) 1 sec 248 Relied on para 67
F
(1994) 5 sec 550 Relied on Para 69

339 us 382 Referred to Para 69

(2012) 1o sec 603 Relied on Para 70
G
(2014) 9 sec 485 Relied on Para 71

1978 (2) SCR 209 Referred to Para 77

1978 (3) SCR 207 Referred to Para 78
H
DEVIDAS RAMACHANDRA TULJAPURKAR v. 865
STATE OF MAHARASHTRA

(1980) 3 sec 625 Referred to Para 80 A

1981 (2) SCR 185 Referred to Para 81

1983 (1) SCR 456 Referred to Para 82

1983 (1) SCR 145 Referred to Para 83 B

1984 (2) SCR 176 Referred to Para 84

1984 (3) SCR 942 Referred to Para 85

1992 (2) Suppl. SCR 454 Referred to Para 86 c
1994 (2) SCR 644 Referred to Para 87

2012 (1) SCR 923 Referred to Para 88
I
D
2009 (16) SCR 111 Referred to Para 89

CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
No. 1179 of2010.

From the Judgment and Order dated 20.01.2010 of the E
High Court of Judicature of Bombay Bench atAurangabad in
Criminal Application No. 2074 of2002.

F. S. Nariman (A.C.), Gopal Subramanian, Pravin H.
Parekh, S. C. Sharma, Sameer Parekh, Lalit Chauhan, Pallavi F
Sharma, Kushagna Pandey, Abhishek Vinod Deshmukh, S.
Lakshmi Iyer (For Parekh & Co.), Asha Gopalan Nair,
Aniruddha P. Mayee, Charudatta Mahindrakar, A. Selvin Raja,
for the appearing parties.
G
The Judgment of the Court was delivered by

DIPAK MISRA, J.

The Controversy
H
866 SUPREME COURT REPORTS [2015] 7 S.C.R.

A The seminal issue that spiralled in the course of hearing
of this appeal centres around the question framed vide order
dated 18.2.2015, for this Court thought it apposite to answer,
whether the poem titled "Gandhi Mala Bhetala" ('I met Gandhi')
in the magazine named the 'Bulletin' which was published, in
B July-August, 1994 issue, meant for private circulation amongst
the members of All India Bank Association Union, could in the
ultimate eventuate give rise to framing of charge under Section
292 IPC against the author, the publisher and the printer. The
question framed reads thus:-
C
"Regard being had to the importance of the matter, we
had sought the assistance of Mr. Fali S. Nariman, learned
senior counsel, to assist the Court, and he has gladly
rendered. At the ~me of hearing, we have asked the
D learned senior counsel, learnedAmicus Curiae, to assist
the Court as regards the proposition whether in a write-
up or a poem, keeping in view the concept and conception
of poetic license and the liberty of perception and
expression, use the name of a historically respected
E personality by way of allusion or symbol is permissible."

Mr. Gopal Subramanium, learned senior counsel,
appearing for the appellant, in his written note of submissions,
has segregated the said question into five parts, namely, (a)
F whether there could be a reference to a historically respected
personality; (b) could that reference be by way of allusion or
symbol; (c) could that allusion be resorted to in a write-up or a
poem; (d) whether the conception and concept of poetic
license permits adopting an allusion; and (e) whether any of
G the above could involve ascribing words or acts to a historically
reputed personality which could appear obscene to a reader.
He has urged with solemn vehemence that when the author is
not represented before the Court, adjudication on an important
H issue which fundamentally relates to freedom of thought and
DEVIDAS RAMACHANDRA TULJAPURKAR v. 867
STATE OF MAHARASHTRA[DIPAK MISRA, J.] '

expression, would be inappropriate and a poem or a write-up A
is indeed a part of free speech and expression, as perceived
under Article 19(1 )(a) of the Constitution and that apart the
expression "poetic licence" is neither a concept nor a
conception because the idea of a poetic freedom is a
guaranteed and an enforceable fundamental right and this B
Court should not detract and convert it into a permissive
licence. Additionally, learned senior counsel has contended
that quintessential liberty of perception and expression when
placed in juxtaposition with "poetic licence", is inapposite since
the expression "permissible" sounds a discordant note with c
"liberty of perception and expression", a sacrosanct
fundamental right, integral to human dignity, thought, feeling,
behaviour, expression and all jural concepts of human freedom
guaranteed not only under the Constitution but even recognised
D
under the International Covenants, for they can never be placed
in the company or association of expressions such as "license"
or "permissibility". Emphasising on the said facet, submitted
Mr. Subramanium that the Constitution has liberated • the
citizens from 'license' and 'permissibility', whic~ are E
expressions of disempowerment and the entire freedom
struggle was centered around the concept of empowerment.
There is a suggestion in the written note of submissions to
place the matter before a Bench of five Judges as enshrined
under Article 145(3) of the Constitution. In spite of the said F
submission, learned senior counsel, we must appreciably state,
has copiously dealt with the issues that have emerged from
the question, in his written note of submissions.

Mr. Fali S. Nariman, learned senior counsel and amicus G
curiae supported the phraseology in the question with immense
intellectual vigour, patience, perseverance and endeavour and
submitted that the issue that this Court has thought of
addressing is absolutely invulnerable and unalterable as the
Constitution of India does not recognise absolute freedom and H
868 SUPREME COURT REPORTS [2015] 7 S.C.R.

A Article 19(2) of the Constitution regulates the same and Section
292 IPC being a provision which is saved by Article 19(2), the
presence or absence of the author is immaterial; what is to be
seen is whether the poem prima facie exhibits obscenity,
especially, in the context of Mahatma Gandhi, the "Father of
B the Nation", as the identity of the historically respected
personality is absolutely clear and there is no scintilla of doubt
in the mind of any average reader. Learned amicus curiae
would submit that the question deserves to be dealt with and
answered in proper perspective.
c
Clarification of the question framed

2. We are obligated to clarify the position. It is apt to state
here the question framed by us has to be contextually
D understood. The question was framed in the factual matrix of
the case. The proposition presented is that despite all the poetic
licence and liberty of perception and expression, whether
'poem' or 'write-up' can use the name of a historically
respected personality by way of an allusion or symbol in an
E obscene manner. "Historically respected personality" was used
in the backdrop of the use of the name of Mahatma Gandhi.
When the name of such a respected personality is used as an
allusion or symbol, and language is revoltingly suggestive
whether that is likely to come within the perceived ambit and
F sweep of Section 292 IPC, whether it is permissible. We shall
dwell upon this facet when we will discuss the poem in a prima
facie manner, for the purpose of scrutinising the order framing
charge; and we shall also deal with the submission of Mr.
Subramanium, which has been assiduously put forth by him
G that the name of Gandhi has been used as a surrealistic voice
and hence, the poet is entitled to use the language as a medium
of expression in the poem. We do not intend to catalogue
names of historically respected personalities as that is not an
H issue in this case. Here the case rests on the poem titled "I
DEVIDAS RAMACHANDRA TULJAPURKAR v. 869
STATE OF MAHARASHTRA[DIPAK MISRA, J.]

met Gandhi". As far as the words "poetic license", are A
concerned, it can never remotely mean a license as used or
understood in the language of law. There is no authority who
gives a license to a poet. These are.words from the realm of
literature. The poet assumes his own freedom which is allowed
to him by the fundamental concept of poetry. He is free to depart B
from the reality; fly away from grammar; walk in glory by not
following the systematic metres; coin words at his own will;
use archaic words to convey thoughts or attribute meanings;
hide ideas beyond myths which can be absolutely unrealistic;
totally pave a path where neither rhyme nor rhythm prevail; can C
put serious ideas in satires, ifferisms, notorious repartees; take
aid of analogies, metaphors, similes in his own style, compare
like "life with sandwiches that is consumed everyday" or "life is
like peeling of an onion", or "socit:ty is like a stew"; define ideas
0
that can balloon into the sky never to come down; cause
violence to logic at his own fancy; escape to the sphere of
figurative truism; get engrossed in "universal eye for
resemblance", and one can do nothing except writing a critical
appreciation in his own manner and according to his E
understanding. When the poet says "I saw eternity yesterday
night", no reader would understand the term 'eternity' in its
prosaic sense. The Hamletian question has many a layer; each
is free to confer a meaning; be it traditional or modern or
individualistic. No one can stop a dramatist or a poet or a writer F
to write freely expressing his thoughts and similarly none can
stop the critics to give their comments whatever its worth. One
may concentrate on classical facets and one may think at a
metaphysical level or concentrate on romanticism as is
understood in the poems of Keats, Byron or Shelley or one G
may dwell on the nature and write poems like William
Wordsworth whose poems, say some, are as didactic. One
may also venture to compose like Alexander Pope or Dryden
or get into individual modernism like Ezra Pound, T.S. Eliot or
H
870 SUPREME COURT REPORTS (2015] 7 S.C.R.

A Pablo Neruda. That is fundamentally what is meant by poetic
license.

3. We may slightly delve into the area in Sanskrit lijerature
that gave immense emphasis on aesthetics. The concept of
B rasa though mentioned in the Vedas and by Valmiki gets
consummate expression in all its complexity with Bharata when
he introduces it to explain aesthetic experience.
"Vibhavanubhav vyabhichari sanyogadrasnishpatl'. Bharata
discusses in detail the contributing factors like vibhavas,
C anubhavas, vybhicharibhavas and sthayibhavas. Dandin
emphasises on lucidity, sweetness, richness and grandeur to
basically constitute poetry and that is why it is said "Dandinha
Padlalityam". Some critics like Vamana, stressing on soul of
poetry perceive 'rill' as "Ritiraatma kavyasya". Some also ·
D subscribe to the theory that 'rasa' gets expressed through
dhvani. There are thinkers who compare writings of T.S. Eliot,
when he states poetic delineation of sentiments and feelings,
to have the potentiality of being associated with the 'element
of surprise' which is essential to poetry, and there he is akin to
E Indian poeticians like Kuntaka who called poetry 'vakroktl'
. which he explains as "vaidagdhyabhangibhanitl' - a mode of
expression depending on the peculiar turn given to it by the
skill of the poet. Some emphasise on "best words used in best
F order" so that poem can attain style and elevation. To put it
differently, the 'poetic licence' can have individual features,
deviate from norm, may form collective characteristics or it
may have a linguistic freedom wider than a syntax sentence
compass.
G 4. We have emphasised on these facets as we are
disposed to think that the manner in which the learned senior
counsel has suggested the meaning of 'poetic license' is not
apt. Freedom of writing is not in question. That cannot be. And
H we say so without any fear of contradiction.
DEVI DAS RAMACHANDRA TULJAPURKAR v. 871
STATE OF MAHARASHTRA [DIPAK MISRA, J.]

5. In course of our judgment, we shall deal with the other A
facets that have been so assiduously put forth by Mr.
'.
Subramanium and so indefatigably controverted by Mr. Fali
S. Nariman, learned amicus curiae.

The factual score B
6. As far as the suggestion given for placing the matter
before a five-Judge Bench, we are of the considered view that
there is no need forthe same.

7. Presently, we shall state the exposition of facts. On the c
basis of a complaint lodged by one V. V. Anaskar, a resident
of Pune, and a member of 'Patit Pawan Sangthan', with the
Commissioner of Police, relating to the publication of the poem,
which was published, in July-August, 1994, meant for private
D
circulation amongst the members of All India Bank Association
Union, a crime was registere~ as FIR No. 7/95 at P.S. Gandhi
Chowk, Latur, on being transferred from Pune, for the offences
punishable under Sections 153-A and 153-B read with Section
34, IPC and eventually after due investigation charge sheet E
was filed for the said offences along with 292, IPC against the
present appellant, the publisher and the printer, respondent
no.3, of the Bulletin and the author, one Vasant Dattatraya Gujar.
When the matter was pending before the Chief Judicial
Magistrate, Latur, all the accused persons filed an application F
f~r discharge and the learned Magistrate by order dated
4.5.2001 held that no case for the offences under Sections
153-A and 153-B was made out and accordingly discharged
them of the said offences but declined to do so in respect of
the offence under Section 292, IPC. On a revision being filed, G
the learned Additional Sessions Judge did not think it
appropriate to interfere with the order passed by the trial
Magistrate which constrained the accused persons to invoke
jurisdiction under Section 482 of the CrPC and the High Court
of Bombay, Aurangabad Bench dismissed the application. The H
872 SUPREME COURT REPORTS [2015] 7 S.C.R.

(1987) 2 AWC 1451
A said decision is the subject of matter of this appeal by special
leave at the instance of the publisher. The author has chosen
not to assail the order passed by the High Court.

Concept of obscenity
B
8. Apart from submitting that the orders passed by all the
Courts are absolutely perverse and deserve to be lancinated,
it is submitted by Mr. Subramanium, learned senior counsel
that to appreciate the question framed by this Court, despite
c his reservation on the legal score as regards its phraseology,
the meaning of the term "obscenity" has to be appositely
understood. He has referred to the Black's Law Dictionary that
defines obscenity as follows:-

"Obscene, adj. (16c) - Extremely offensive under
D
contemporary community standards of morality and
decency; grossly repugnant to the generally accepted
notions of what is appropriate. Under the Supreme
Court's three-part test, material is legally obscene - and
E therefore not protected under the First Amendment - if,
taken as a whole, the material (1) appeals to the prurient
interest in sex, as determined by the average person
applying contemporary community standards; (2)
portrays sexual conduct, as specifically defined by the
F applicable state law, in a patently offensive way; and (3)
lacks serious literary, artistic, political, or scientific value.
Millerv. Callifomia, 413 U.S. 15, 93 S.Ct. 2607 (1973).

If there be no abstract definition, ... should not the word
G 'obscene' be allowed to indicate the present critical point
in the compromise between candor and shame at which
the community may have arrived here and now?" United
States V Kennerley, 209 F. 119, 121(S.D.N.Y1913) (per
Hand.J.)"
H
DEVIDAS RAMACHANDRA TULJAPURKAR v. 873
STATE OF MAHARASHTRA [DIPAK MISRA, J.]

9. The learned senior counsel has also referred to the A
decision of the Allahabad High Court in Kam/a Kant Singh
Vs. Chairman/ManagingDirector, Bennetta Colman and
Company Ltd. and Ors. 1, wherein the High Court dealt with
the meaning of the word 'obscenity'. The delineation is as
follows:- B

"15. The word obscenity has been explained in 'Jowitts'
Dictionary of English Law as follows:

"An article is deemed to be obscene, if its effect, or where c
the article comprises two or more distinct iteins, the effect
of any one of its items if taken as a whole, is to tend to
deprave and corrupt persons, who are likely having
regard to all the relevant circumstances to read, to see
or hear matters contained or embodied in it. (See R. v. D
Claytone and Hasley, (1963) 1 QB 163, R. v. Anderson,
(1972) 1 -QB 304)". Obscenity and depravity are not
confined to sex. (See John Calder Publications v.
Powell, (1965) 1QB509.)
E
16. . ..According to Black's Law Dictionary obscenity
means character or quality of being obscene, conduct,
tending to corrupt the public merely by its indecency or
lewdness. According to Webster's New International
Dictionary, word 'obscene' means disgusting to the F
senses, usually because of some filthy grotesque or
unnatural quality, grossly repugnant to the generally
accepted notions of what is appropriate."

10. The High Court of Madras in Public Prosecutorv. G
A.D. Sabapathy2, has opined that the word "obscene" must
be given its ordinary and literal meaning, that is, 'repulsive',
'filthy', 'loathsome', 'indecent' and 'lewd'. The learned senior
1
(1987) 2 AWC 1451
2
AIR 1958 Mad. 210
H
874 SUPREME COURT REPORTS [2015] 7 S.C.R.

A counsel has also referred to the judgment of Supreme Court
of Canada in R. v. Beaver, wherein Maclaren, J.A., has
defined 'obscene' as follows:-

"The word 'obscene' ... was originally used to describe
B anything disgusting, repulsive, filthy or foul. The use of
the word is now said to be somewhat archaic or poetic;
and it is ordinarily restricted to something offensive to
modesty or decency, or expressing or suggesting
unchaste or lustful ideas, or being impure, indecent, or
C lewd."

11. After generally referring to the meaning of the term
obscenity, learned senior counsel has emphasised on the tests
adopted in various countries relating to obscenity. Mr.
D Subramanium has referred to various authorities of United
Kingdom, United States of America, European Courts and this
Court to pyramid the proposition that the tests laid down by
legal system including the authorities of this Court do not
suggest that that the instant poem can remotely be treated as
E obscene. First, we shall dwell upon the tests and standards
laid by various Courts and then the binding authorities of this
Court and thereafter to the concept of freedom of speech and
expression on the constitutional parameters and finally delve
to adjudge the facet of obscenity and address applicability of
F the determined test in the context of the question and ultimately
the nature of the poem and the justifiability of the order
impugned.
Test evolved in United Kingdom
G
12. As far as United Kingdom is concerned, Mr.
Subramanium has referred to Regina v. Hicktin4, the meaning

3
(1905), 9 O.L.R. 418
H •LR 1868 3 QB 360
DEVI OAS RAMACHANDRA TULJAPURKAR v. 875
STATE OF MAHARASHTRA[DIPAK MISRA, J.]

given by Cockburn C.J. and drawn our attention to the Article A
by J.E. Hall Williams in Obscenity in Modem English Lai.N5
wherein the learned author observed that Hicklin (supra) gave
a complete go by to the principle of "mens rea" which propounds
a certain degree of protection to the accused. The learned
author was critical on the concept of presumption as B
propounded in Hicklin (supra). In the said article, learned
author referred to certain observations in R. v. Martin Secker
& Warburg LCY3. In the said case, Stable J. has stated

'The test of obscenity to be applied today is extracted C
from a decision of 1868; it is this: ".... Whether the
tendency of the matter charged as obscenity is to deprave
and corrupt those whose mind are open to such immoral
influences, and into whose hands a publication of this sort
may fall." Because this test was laid down in 1868, that D
does not mean that you have to consider whether this book
is an obscene book by the standards of nearly a century
ago. Your task is to decide whether you think that the
tendency of the book is to deprave those whose minds
today are open to such immoral influences and into whose E
hands the book may fall in this year, or last year when it
was published in this country. Considering the curious
change of approach from one age to another, it is not
uninteresting to observe that in the course of the argument F
of the case in 1868 the rhetorical question was asked:
"What can be more obscene than many pictures "publicly
exhibited, as the Venus in the Dulwich Gallery?" There are
some who think with reverence that man is fashioned in
the image of God, and you know that babies are not born G
in this world, be they of either sex, dressed up in a frock-
coat or an equivalent feminine garment.

• 20, Law and Contemporary Problems (1955): 630-647
8
(19541WLR111138. H
876 SUPREME COURT REPORTS [2015] 7 S.C.R.

A We are not sitting here as judges of taste. We are not
here to say whether we like a book of this kind. We are
not here to say whether we think it would be a good thing
if books like this were never written. You are here trying a
criminal charge and in a criminal court you cannot find a
B verdict of "Guilty" against the accused unless, on the
evidence that you have heard, you and each one of you
are fully satisfied that the charge against the accused
person has been proved.

c Remember the charge is a charge that the tendency of
the book is to corrupt and deprave. The charge is not that
the tendency of the book is either to shock or to disgust.
That is not a criminal offence. Then you say: 'Well, corrupt
or "deprave whom?" and again the test: those whose
D minds are open to such immoral influences and into whose
hands a publication of this sort may fall. What, exactly,
does that mean? Are we to take our literary standards as
being the level of something that is suitable for a fourteen-
year-old school girl? Or do we go even further back than
E that, and are we to be reduced to the sort of books that
one reads as a child in the nursery? The answer to that is:
Of course not. Amass of literature, great literature, from
many angles is wholly unsuitable for reading by the
adolescent, but that does not mean that the publisher is
F
guilty of a criminal offence for making those works
available to the general public."
In the ultimate eventuate, the learned Judge concluded,
thus:-
G
"I do not suppose there is a decent man or woman in this
court who does not whole-heartedly believe that
pornography, the filthy bawdy muck that is just filth for filth's
sake, ought to be stamped out and suppressed. Such
H books are not literature. They have got no message; they
DEVI DAS RAMACHANDRA TULJAPURKAR v. 877
STATE OF MAHARASHTRA [DIPAK MISRA, J.]

have got no inspiration; they have got no thought. They A
have got nothing. They are just filth and ought to be
stamped out. But in our desire for a healthy society, if we
drive the criminal law too far, further than it ought to go, is
there not a risk that there will be a revolt, a demand for a
change in the law, and that the pendulum may swing too B
far the other way and allow to creep in things that at the
moment we can exclude and keep out?"

The aforesaid view of Stable, J. resulted in declaring the
accused not guilty. C

13. In England on July 29, 1959, the Obscene Publication
Act, 1959 (for short, "the 1959 Act") was enacted to amend
the law relating to publication of obscene matters, provided
for the protection of literature and to strengthen the law D
concerning pornography. Section 1(1) of the 1959Act reads
as follows:-
"1. - (1) For the purposes of this Act an article shall be
deemed to be obscene if its effect or (where the article E
comprises two or more distinct items) the effect of any
one of its items is, if taken as a whole, such as to tend to
deprave and corrupt persons who are likely, having regard
to all relevant circumstances, to read, see or hear the
matter contained or embodied in it." F

14. Section 4 of the 1959 Act stipulates that a person
accused of obscenity shall not be convicted if it is proved that
the publication in question is justified for public good as it is in
the interest of art, literature, science, etc. The said provision is G
as follows:-
"4 (1) A person shall not be convicted of an offence against
section two ofthisAct, and an order for forfeiture shall not
be made under the foregoing section, if it is proved that H
878 SUPREME COURT REPORTS [2015) 7 S.C.R.

A publication of the article in question is justified as being
for the public good on the ground that it is in the interests
of science, literature, art or learning, or of other objects of
general concern. (2) It is hereby declared that the opinion
of experts as to the literary, artistic, scientific or other merits
B of an article may be admitted in any proceedings under
this Act to establish or to negative the said ground."

15. Mr. Subramanium, learned senior counsel has referred
to R. v. Penguin Books Ltd. 7 where the Court was dealing
C with the publication of the book 'Lady Chatterley's Lover' by
the Penguin Books. The said case ended with "not guilty verdict"
as a consequence of which the book was allowed to be openly
published and was sold in England and Wales.

D 16. In R. v. Peacock8, a verdict, an unreported one,
rendered on January 6, 2011 by Southwark Crown Court,
London, submitted Mr. Subramanium, has resulted in great
upsurge in the demand for a review in the obscenity laws in
England and Wales. In the said case, Michael Peacock, was
E - charged on indictment with six counts under the 1959 Act for
allegedly distributing the obscene DVDs that contained videos
of homosexual sadomasochism and BDSM pornography. The
accused in the said case successfully pleaded not guilty. The
legal experts of England and Wales started opining that the
F 1959 Act had become redundant.

17. Relying on the aforesaid authorities, it is submitted by
Mr. Subramanium, learned senior counsel appearing for the
appellant that Hicklin test in its original has been abandoned
G in United Kingdom and the approach has been more liberal
regard being had to the developments in the last and the
present century. It is his submission that the perception of the
7
[1961] Crim LR 176
H ' Unreported case, See http://www.bbc.com/news/uk-16443697
DEVI DAS RAMACHANDRA TULJAPURKAR v. 879
STATE OF MAHARASHTRA[DIPAK MISRA, J.]

Victorian era or for that matter, thereafter has gone through a A
sea-change in the last part of 20th century and in the first part
of this century and the freedom of speech and expression has
been put on a high pedestal in the modern democratic republic.
It is urged by him that in the digital age, the writings and the
visuals do no longer shock or deprave or corrupt any member B
of the society as the persons are capable enough to accept
what is being stated and not to be depraved or corrupted.

Prevalent Tests in the United States of America
c
18. Presently, we shall proceed to deal with the prevalent
test in the United States of America. Learned senior counsel
for the appellant has taken us to various authorities of the U.S.
Supreme Court and other Courts. In Chaplinsky v. New
Hampshire9 , the appellant, a member of the sect known as o
Jehovah's Witnesses, was convicted in the Municipal Court of
Rochester, New Hampshire for violation of Chapter 378,
Section 2 of the Public Laws of New Hampshire. In course of
time, the appellant raised the questions that the statute was
invalid under the Fourteenth Amendment of the Constitution of E
the United States as it placed an unreasonable restriction on
freedom of speech, freedom <;>f press and freedom of worship
and further it was vague and indefinite. Be it noted, the challenge
was made in the highest court of the United States that declared
that the statutes purpose was to preserve the public peace F
and it did not violate the constitutional framework. The Court
observed allowing the broadest scope to the language and
purpose of the Fourteenth Amendment, it is well understood
that the right to free speech is not absolute at all times and
under all circumstances. G

19. In Roth v. United States10 , the principal question was

'315 U.S. 568 (1942)
10 (1957) 354 us 4 76 H
880 SUPREME COURT REPORTS [2015) 7 S.C.R.

A whether the Federal Obscenity Statute violated the First
Amendment of the US Constitution which guaranteed freedom
of speech. The Court held that free speech is provided under
the First Amendment gave no absolute protection for every
utterance. We may profitably reproduce the observations made
B therein:-

"All ideas having even the slightest redeeming social
importance - unorthodox ideas, controversial ideas, even
ideas hateful to the prevailing climate of opinion-have the
c full protection of the guaranties, unless excludable
because they encroach upon the limited area of more
important interests. But implicit in the history of the First
Amendment is the rejection of obscenity as utterly without
redeeming social importance. This rejection for that reason
D is mirro~ed in the universal judgment that obscenity should
be restrained, reflected in the international agreement of
over 50 nations, in the obscenity laws of all of the 48
States."

E The Court further opined that:

"We hold that obscenity is not within the area of
constitutionally protected speech or press."

F 20. In Memoirs v. Masachusetts 11 , while explaining the
term 'obscenity', the Court referred to the Roth (supra) and
stated thus:-

"3. We defined obscenity in Roth in the following terms:
"[W]hetherto the average person, applying contemporary
G community standards, the dominant theme of the material
taken as a whole appeals to prurient interest." Under this
definition, as elaborated in subsequent cases, three
elements must coalesce: it must be established that (a)
H 11
383 U.S. 413 (1966)
DEVI DAS RAMACHANDRA TULJAPURKAR v. 881
STATE OF MAHARASHTRA[DIPAK MISRA, J.]

the dominant theme of the material taken as a whole A
appeals to a prurient interest in sex; (b) the materi81 is
patently offensive because it anronts contemporary
community standards relating to the description or
representation of sexual matters; and (c) the material is
utterly without redeeming social value." B

After so stating, the U.S. Supreme Court proceeded to
consider whether the book in question could be stated to be
truly without social importance. Thus, there was no departure
from the redeeming social importance test, but it also C
introduced "contemporary community standards" test.

21. In Marvin Millet vs. State of California 12, while
rejecting the 'redeeming social value' test as laid down in Roth
(supra) and followed' in Memoirs (supra), the US Court D
established three pronged test which are as follows:-

"15. The case we now review was tried on the theory that
the California Penal Code § 311 approximately
incorporates the three-stage Memoirs test, supra. But now E
the Memoirs test has been abandoned as unworkable by
its author, 13 and no Member of the Court today supports
the Memoirs formulation.

17. The basic guidelines for the trier of fact must be: (a) F
whether 'the average person. applying contemporary
community standards' would find that the work, taken as a
whole, appeals to the prurient interest, Kais v. Wisconsin,
supra, 408 U.S .. at 230, 92 S.Ct.. at 2246, quoting Roth v.
United States, supra. 354 U.S .. at489, 77 S.Ct., at 1311; G
(b) whether the work depicts or describes, in a patently
offensive way, sexual conduct specifically defined by the
12 413 US 15 (1973): 93 S.Ct. 2607

13 See the dissenting opinion of Mr. Justice Brennan in Paris Adult Theatre I
v. Slaton, 413 US 49, 73, 93 S. Ct. 2628, 2642, 37 L.Ed.2d 446 (1973) H
882 SUPREME COURT REPORTS [2015] 7 S.C.R.

A applicable state law; and (c) whether the work, taken as a
whole, lacks serious literary, artistic, political, or scientific
value. We do not adopt as a constitutional standard the
'utterly without redeeming social value' test of Memoirs v.
Massachusetts, 383 U.S., at419, 86 S.Ct.. at 977; that
B concept has never commanded the adherence of more
than three Justices at one time 14 . See supra, at 21. If a
state.law that regulates obscene material is thus limited,
as written or construed, the First Amendment values
applicable to the States through the Fourteenth
c Amendment are adequately protected by the ultimate
power of appellante courts to conduct an independent
review of constitutional claims when necessary."

22. The US Supreme Court in Miller (supra) stated that
D the application and ascertainment of 'contemporary community
standards' would be the task of the Jury as they best represent
the 'contemporary community standards'. The Court
observed:-

E "19. Sex and nudity may not be exploited without limit by
films or pictures exhibited or sold in places of public
accommodation any more than live sex and nudity can be
exhibited or sold without limit in such public places. 15 At a
14
'A quotation from Voltaire in the fly leaf of a book will not constitutionally
F redeem and otherwise obscene publication .... .' Kois v. Wisconsin, 408 U.S.,
229, 231, 92 S.Ct., 2245, 2246, 33, LEd. 2d 312 (1972). See Memoirs v.
Massachusetts, 383 U.S., 413, 461, 86 S.Ct., 975, 999, 16 LEd. 2d 1 (1966)
(white, J., dissenting). We also reject, as a constitutional standard, the
ambiguous concept of 'social importance'. See id., at 462, 86 S. Ct. at 999
15 Although we are not presented here with the problem of regulating lewd
G public conduct itself, the States have greater power to regulate nonverbal,
physical conduct than to suppress depictions or descriptions of the same
behavior. In United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679,
20 LEd.2d 672 (1968), a case not dealing with obscenity, the Court held a
State regulation of conduct which itself embodied both speech and nonspeech
elements to be 'sufficiently justified if ... it furthers an important or substan-
tial governmental interest; if the governmental interest is unrelated to the
H suppression of free expression; and if the incidental restriction on alleged
First Amendment freedoms is no greater than is essential to the furtherance
of that interest.' See California v. LaRue, 409 U.S. 109, 117-118, 93 S.Ct.
390, 396-397, 34 L.Ed.2d 342 (1972).
;>
DEVI DAS RAMACHANDRA TULJAPURKAR v. 883
STATE OF MAHARASHTRA[DIPAK MISRA, J.]

minimum, prurient, patently offensive depiction or A
description of sexual conduct must have serious literary,
artistic, political, or scientific value to merit First
Amendment protection. For example, medical books for
the education of physicians and related personnel
necessarily use graphic illustrations and descriptions of B
human anatomy. In resolving the inevitably sensitive
questions of fact and law, we must continue to rely on the
jury system, accompanied by the safeguards that judges,
rules of evidence, presumption of innocence, and other
protective features provide, as we do with rape, murder, c
and a host of other offenses against society and its
·individual members. 16

25. Under a National Constitution, fundamental First
Amendment limitations on the powers of the States do D
not vary from community to community, but this does not
mean that there are, or should or can be, fixed, uniform
national standards of precisely what appeals to the
'prurient interest' or is 'patently offensive.' These are
essentially questions of fact, and our Nation is simply too E
big and too diverse for this Court to reasonably expect
that such standards could be articulated for all 50 States
in a single formulation, even assuming the prerequisite
consensus exists. When triers of fact are asked to decide
F
whether 'the average person, applying contemporary
community standards' would consider certain materials
'prurient,' it would be unrealistic to require thatthe answer
be based on some abstract formulation. The adversary
system, with lay jurors as the usual ultimate factfinders in G
1• The mere fact juries may reach different conclusions as to the same material

does not mean that constitutional rights are abridged. As this Court observed
in Roth v. United States, 354 U.S., at 492 n. 30, 77 S.Ct., at 1313 n. 30, 'it is
common experience that different juries may reach different results under
any criminal statute. That is one of the consequences we accept under our
jury system. Cf. Dunlop v. United States 486, 499-500.' H
884 SUPREME COURT REPORTS [2015] 7 S.C.R.

A criminal prosecutions, has historically permitted triers of
fact to draw on the standards of their community, guided
always by limiting instructions on the law. To require a State
to structure obscenity proceedings around evidence of a
national 'community standard' would be an exercise in
B futility."

23. In Reno v. American Union of Civil Liberties17 , the
plaintiffs filed a suit challenging the constitutionality of
provisions of Communications Decency Act, 1996 (CDA). The
C central issue pertained to the two statutory provisions enacted
to protect minors from 'indecent' and 'patently offensive'
communication on the internet. The Court declared that Section
223(a)(1) of the CDAwhich prohibited knowing transmission
of obscene or indecent messages to any recipient under 18
D years of age and Section 223(d)(1) of the said Act which
prohibited knowing, sending and displaying of obscene or
indecent messages to any recipient under 18 years of age, to
be abridging "the freedom of speech" protected by the First
Amendment.
E
24. In State of Oregon v. Earl A. Henry18 , the Oregon
Supreme Court declared the offence of obscenity to be
unconstitutional as it was in violation of Article I, Section 8 of
the Oregon Constitution that provides for freedom for speech
F and expression. Article I Section 8 reads thus:-
"No law shall be passed restraining the free expression
of opinion, or restricting the right to speak, write, or print
freely on any subject whatever; but every person shall be
G responsible for the abuse of this right."

25. The State Statute of Oregan i.e. ORS 167.087 that

17 521 U.S. 844 (1997)
H 18
732 P.2d 9 (1987)
DEVIDAS RAMACHANDRA TULJAPURKAR v. 885
STATE OF MAHARASHTRA[DIPAK MISRA, J.]

criminalized selling, exhibiting, delivery and dissemination of A
obscene material was struck down as being violative of Article
I Section 8. The Oregon SC held thus:-

'The indeterminacy of the crime createc by ORS 167 .087
does not lie in the phrase "sexual conduct" that is further B
defined in ORS 167.060 (10). It lies in tying the criminality
of a publication to "contemporary state standards." Even
in ordinary criminal law, we doubt that the legislature can
make it a crime to conduct oneself in a manner that falls
short of "contemporary state standards." In ~law censoring C
speech, writing or publication, such an indeterminate test
is intolerable. It means that anyone who publishers or
distributes arguably "obscene" words or pictures does so
at the peril of punishment for making a wrong guess about
a future jury's estimate of "contemporary state standards" D
of prurience."

As we understand, with the passage of time tests have
changed and there are different parameters to judge obscenity
but the authorities clearly lay down that the freedom of speech E
is not absolute on all occasions or in every circumstance.

Comparables Test

26. Mr. Subramanium has pointed out that in American F
Jurisprudence the argument of "comparables" has gained
considerable force. in cases of obscenity and freedom of
speech. He has referred to Joan Schleefs note on United
States v. Various Articles of Obscene Merch 19 wherein the
learned author has shown comparables test. Explaining the G
said concept, tne learned author projects that the gist of the
comparables argument is that in determining whether materials
are obscene, the trier of fact may rely on the widespread
1• Joan Schleef, Note, United States v. various Articles of Obscene Merch, 52,
U. Cin. L. Rev. 1131, 1132 (1983) H
886 SUPREME COURT REPORTS (2015] 7 S.C.R.

A availability of comparable materials to indicate that the
materials are accepted by the community and hence, not
obscene under the Miller test. The learned senior counsel has
also referred to an article, namely, Judicial Erosion of
Protection for Defendants in Obscenity Prosecutions? When
B Courts Say, Literally, Enough is Enough and When fQtemet
Availability Does Not Mean Acceptance by Clay Clavert20
wherein the learned author has opined thus:-

"Akin to the three-part test in Miller itself, a successful
C comparables argument requires three foundational
elements be present with the proffered evidence: similarity
or "reasonable resemblance"21 of content; availability of
content, and acceptance, to reasonable degree, of the
similar, available content." ·
D
The learned author in his conclusion has summed up:-

"The Miller test is more than thirty-five years old 22 , but
developments and changes are now taking place in
E courtrooms that affect its continuing viability. In particular,
this article has demonstrated that the taken-as-a-whole
requirement may be in some jeopardy, as at least two
courts-one in 2008 and one in 2009-have allowed the
prosecution to get away with only showing jurors selected
F portions of the works in question. The other change
addressed here is driven by technology, with the Internet
forcing judges to consider a new twist on the traditional
comparables argument that defense attorneys sometimes
use to prove contemporary community standards. Pro-
G prosecution rulings in this area have been handed down

20Journal of Sports and Entertainment Law (VoL1, Number 1), Harvard Law
School, 2010
21 United States v. Pinkus, 579 E2d 1174, 1175 9'" Cir. 1978).

H 22 Miller v. California, 413 U.S. 15 (1973)
DEVIDAS RAMACHANDRA TULJAPURKAR v. 887
STATE OF MAHARASHTRA[DIPAK MISRA, J.]

in both Adams23 and Burden24 • And while Judge Bucklew A
in Little25 allowed Internet-based search evidence to come
into court, she refused to instruct the jury that it could-not
even that it must-consider it as relevant of community
standards".
B
And again,

"While the U.S. Supreme Court is no longer in the business
of regularly hearing obscenity case as it once was, it may
be time for the Court to revisit the Miller test and to c
reassess the work-as a whole requirement and to consider
whether Internet based comparables arguments about
contemporary community standards are viable in a digital
online world the High Court never could have imagined
when it adopted Miller back in 1973. Unit such time, lower o
courts will be left to wrestle with these issues, with some
seeming to clearly sidestep Miller on the taken-as-a whole
requirement in contravention of the high court's
admonishment in 2002 that this was as essential rule of
FirstAmendmentjurisprudence." E

Thus, the comparables test even if it is applied, the concept
of contemporary comparative standards test along with other
tests has not been abandoned.
F
1he learned author in his article has referred to the majority
view in Ashcroft v. Free Speech Coalition26 where Justice
Anthony Kennedy added:-

"Under Miller, the FirstAmendment requires that redeeming
value be judged by considering the work as a whole. G
23 No. 08-5261, 2009 U.S. App. Lexis 16363 (4'" Cir. July 24, 2009)
24 55 S.W. 3d 608 (Tex. Crim. App. 2001)

25 No. 08-15964, 2010 U.S. App. Lexis 2320 (11'" Cir. Feb. 2, 2010

26
535 U.S. 234, 248 (2002) H
888 SUPREME COURT REPORTS [2015) 7 S.C.R.

A Where the scene is part of the narrative, the work itself
does not for this reason become obscene, even though
the ~cene in isolation might be offensive."

Mr. Subramanium has urged that the comparables test
B has also been accepted in a different context by some High
Courts in India. In this regard, he has been inspired by the
ratiocination in Kavita Phumbhra v. Commissioner of
Customs (Port), Calcutta 27 by the Calcutta High Court
wherein certain publications were imported by the petitioner
C which were meant for sale only to adults. The High Court took
note of the change in the society as well as similar articles and
.works readily being available in newspapers and magazines
and stated thus:-

D "As mentioned earlier, moral standards vary from
community and from person to person within one society
itself. The morals of the present day in our society also do
not represent a uniform pattern. The variations and the
variables inside a certain society are also crucial
E considerations while judging whether an object comes
within the mischief of obscenity. We cannot shut our eyes
to the changes that are taking place in our society as we
cannot be blind to the kind of advertisements, newspaper
articles, pictures and photographs which are regularly
F being published and most certainly with a target viewers
and readership in mind. Any closer observer will definitely
reckon the vast changes that have taken place around us,
particularly in the field of audio and visual representations
which are dinned into our ears or which arrest our ocular
G tastes. A certain shift in the moral and sexual standard is
very easily discernable over the years and we may take
judicial note of it. The appellant has produced many articles
of high circulating newspapers and reputed magazines
H 27 (2012) 1 Cal LJ 157
DEVI DAS RAMACHANDRA TULJAPURKAR v. 889
STATE OF MAHARASHTRA [DIPAK MISRA, J.]

which are freely available in the market. Judged by that, A
these items which were produced in courts, do not appear
to be more sexually explicit than many of those which are
permitted to be published in leading journals and
magazines."
8
Having dealt with the 'comparables test' as is understood
from the aforesaid decisions, we are to repeat that the
contemporary community standards test is still in vogue with
certain addition.
c
Test laid down by the European Courts

27. Now we shall proceed to deal with the perception of
obscenity by the European Courts. In Vereinigung Bildender
Kinstler v. Austria28 , the European Court of Human Rights
0
was concerned with the issue pertaining to withdrawal of a
painting entitled "Apocalypse" which had been produced for
the auction by the Austrian painter Otto Muhl. The painting,
measuring 450 cm by 360 cm showed a collage of various
public figures such as Mother Teresa, the former head of the E
Austrian Freedom Party (FPO) Mr. Jorg Haider, in sexual
positions. While the naked bodies of these figures were
painted, the heads and faces were depicted using blown-up
photos taken from newspapers. The eyes of some of the
persons portrayed were hidden under black bars. Among F
these persons was Mr. Meischberger, a former general
secretary of the FPO until 1995, who at the time of the events
was a member of the National Assembly. The Austrian Court
permanently barred the display of painting on the ground that
the painting debased the plaintiff and his political activities. G
The Association of Artists appealed to the European Court
and the said Court thought it appropriate to come to the
conclusion that the prohibition by the Austrian Court of the
28
Application No. 68354/2001.• 25'" January 2007
H
890 SUPREME COURT REPORTS [2015) 7 S.C .R.

A painting was not acceptable. It observed that though the
painting in its original state was somewhat outrageous but it
was clear that the photographs were caricature and the painting
was satirical. We have been commended, in this regard, to
certain passages by Mr. Subramanium. They read as follows:-
8 )r
"33. However, it must be emphasised that the painting used
only photos of the heads of the persons concerned, their
eyes being hidden under black bars and their bodies being
painted iri1an unrealistic and exaggerated manner. It was
c common ground in the understanding of the domestic
courts at all levels that the painting obviously did not aim
to reflect or even to suggest reality; the Government, in its
submissions, has not alleged otherwise. The Court finds
that such portrayal amounted to a caricature of the persons
D concerned using satirical elements. It notes that satire is
a form of artistic expression and social commentary and,
by its inherent features of exaggeration and distortion of
reality, naturally aims to provoke and agitate. Accordingly,
any interference with an artist's right to such expression
E must be examined with particular care.

xxx xxx xxx
35. Furthermore, the Court would stress that besides Mr
F Meischberger, the painting showed a series of 33 persons,
some of Jiihom were very well known to the Austrian public,
who were all presented in the way described above.
Besides ..torg Haider and the painter himself, Mother
Teresa and the Austrian cardinal Hermann Groer were
G pictured next to Mr Meischberger. The painting further
showed the Austrian bishop Kurt Krenn, the Austrian author
Peter Turrini and the director of the Vienna Burgtheater,
Claus Peymann. Mr Meisch berger, who at the time of the
events was an ordinary Member of Parliament, was
H certainly one of the less well known amongst all the people
DEVIDAS RAMACHANDRA TULJAPURKAR v. 891
STATE OF MAHARASHTRA [DIPAK MISRA, J.]

appearing on the painting and nowadays, having retired A
from politics, is hardly remembered by the public at all."
}i:
28. Mr. Nariman, learned amicus curiae in this regard has
submitted that the European Court of Human Rights' view is
divided inasmuch ~s four of the Judges in a Court· of seven B
have expressed the view, which is as follows:-

"26. The Court reiterates that freedom of expression, as
secured in paragraph 1 of Article 10, constitutes oqe of
the essential foundations of a democratic society, indeed c
one of the basic conditions for its progress and for the
self-fulfilment of the individual. Subject to paragraph 2, it
is applicable not only to "information" or "ideas" that are
favourably received or regarded as inoffensive or as a
matter of indifference, but also to those that offend, shock o
or disturb the State or any section of the population. Such
are the demands of that pluralism, tolerance and
broadmindedness without which there is no "democratic
society". Those who create, perform, distribute or exhibit
works of art contribute to the exchange of ideas and E
opinions which is essential for a democratic society. Hence
the obligation on the State not to encroach unduly on their
freedom of expression. Artists and those who promote
their work are certainly not immune from the possibility of
limitations as provided for in paragraph 2 of Article 10. F
Whoever exercises his freedom of expression
undertakes, in accordance with the express terms of that
paragraph, "duties and responsibilities"; their scope will
depend on his situation and the means he uses (see Muller
and Others v. Switzerland, judgment of 24May1988)." G
....
29. Learned amicus curiae has also referred to one of the
dissenting opinions of Judge Loucaides, which is to the
following effect:-
H
892 SUPREME COURT REPORTS [2015) 7 S.C.R.

A "The majority found that the images portrayed in the
"painting" in question were "artistic and satirical in nature".
This assessment had a decisive effect on the judgment.
The majority saw the "painting" as a form of criticism by
the artist of Mr Meischberger, a politician and one of the
B persons depicted in it. It was he who brought the
proceedings which led to the impugned measure.

The nature, meaning and effect of any image or images
in a painting cannot be judged on the basis of what the
c painter purported to convey. What counts is the effect of
the visible image on the observer. Furthermore, the fact
that an image has been produced by an artist does not
always make the end result "artistic". Likewise, an image
will not become "satirical" if the observer does not
D comprehend or detect any message in the form of a
meaningful attack or criticism relating to a particular
problem or a person's conduct.

In my view, the picture in question cannot, by any stretch
E of the imagination, be called satirical or artistic. It showed
a number of unrelated personalities (some political, some
religious) in a vulgar and grotesque presentation and
context of senseless, disgusting images of erect and
ejaculating penises and of n;:iked figures adopting
F repulsive sexual poses, some even involving violence, with
coloured and disproportionately large genitals or breasts.
The figures included religious personalities such as the
Austrian Cardinal Hermann Groerand Mother Teresa, the
latter portrayed with protruding bare breasts praying
G between two men-one of whom was the Cardinal-with
erect penises ejaculating on her! Mr Meisch berger was
shown gripping the ejaculating penis of Mr Haider while
at the same time being touched by two other FPO
politicians and ejaculating on Mother Teresa!
H
DEVI DAS RAMACHANDRA TULJAPURKAR v. 893
STATE OF MAHARASHTRA[DIPAK MISRA, J.]

The reader.will of course need to look at the "painting" in A
question in order to be able to form a view of its nature
and effect. It is my firm belief that the images depicted in
this product of what is, to say the least, a strange
imagination, convey no message; the "painting" is just a
senseless, disgusting combination of lewd images whose B
only effect is to debase, insult and ridicule each and every
person portrayed. Personally, I was unable to find any
.
criticism or satire in this "painting". Why were Mother
Teresa and Cardinal Hermann Groer ridiculed? Why were
the personalities depicted naked with erect and C
ejaculating penises? To find that situation comparable with
satire or artistic expression is beyond my comprehension.
And when we speak about art I do not think that we can
include each and ev,ery act of artistic expression
0
regardless of its nature and effect. In the same way that
we exclude insults from freedom of speech, so we must
exclude from the legitimate expression of artists insulting
pictures that undermine the reputation or dignity of others,
especially if they are devoid of any meaningful message E
and contain nothing more than senseless, repugnant and
disgusting images, as in the present case.

As was rightly observed in the judgment (paragraph 26)
"... Artists and those who promote their work are certainly F
not immune from the possibility of limitations as provided
for in paragraph 2 of Article 10. Whoever exercises his
freedom of expression undertakes, in accordance with the
express terms of that paragraph, 'duties and
responsibilities'; their scope will depend on his situation G
and the means he uses ... "

Nobody can rely on the fact that he is an artist or that a
work is a painting in order to escape liability for insulting
others. Like the domestic courts, I find that the "painting" H
894 SUPREME COURT REPORTS [2015] 7 S.C.R.

A in question undermined the reputation and dignity of Mr
Meischberger in a manner for which there can be no
legitimate justification and therefore the national authorities
were entitled to consider that the impugned measure was
necessary in a democratic society for the protection of
B the ~~putation or rights of others.

The learned amicus curiae has also commended us to
the joint dissenting opinion of Judges Spielmann and Jebens.
What is important to be noted is as follows:-
c
"9. In our opinion, it was not the abstract or indeterminate
concept of human dignity-a concept which can in itself
be dangerous since it may be used as justification for
hastily placing unacceptable limitations on fundamental
o rights29 - but the concrete concept of "fundamental
29
See D. Feldman, "Human Dignity as a legal value. Part I", (1999) Public Law
pp.682-702 at p.697: "The notion of dignity can easily become a screen
behind which paternalism or moralism are elevated above freedom in legal
decision-making." As another author has pointed out, " [/]a notion de dignite,
E a a
indefinie, est /'evidence manipulable /'extreme. Grande peut-etre a/ors la
tentation d'un ordre moral evoquee par G Lebreton (Chr. D. {1996, J., 177]).
La confusion etablie entre moralite publique et dignite
a
s'y prete particulierement /'heure ou le politiquement correct traverse
/'At/antique", J.-P. Theron, "Dignite et libertes. Propos sur une jurisprudence
a
contestable", in Pouvoir et liberte. Etudes offertes Jacques Mourgeon ,
(Brussels, Bruylant, 1998), p.305, concerning two decisions of October 27,
F 1995 by t~,e French Conseil d'Etat, sitting as a full court, Commune de
Morsang-sur-Orge and Ville d'Aix-en-Provence,AJDA, 1995, 942, RFDA, 1995,
1204, submissions by Mr Frydman, and Rev. trim. dr. h., 1996, 657,
submissions by Mr Frydman, note by Nathalie Deffains. See also P. Martens,
"Encore la. dignite humaine: Reflexions d'un juge sur la promotion par les
juges d'une norme suspecte", in Les droits de /'homme au seuil du troisieme
G millenaire. Melanges en hommage a Pierre Lambert , (Brussels, Bruylant,
2000), pp.561 et seq. On the role played by morals in the debate on dignity,
see J. Fierens, "La dignite humaine comme conceptjuridique", (2002) Journal
des Tribunaux, pp.577 et seq., in particular p.581. See also, from the
perspective of the "paradigm of humanity", B. Edelman, "La dignite de la
personne humaine, un concept nouveau", D., (1997), chron. p.185, and
reprinted in the book by the same author, La personne en danger , (Paris,
H PUF, 1999), 9~.505 et seq.
DEVI DAS RAMACHANDRA TULJAPURKAR v. 895
STATE OF MAHARASHTRA [DIPAK MISRA, J.]

personal dignity of others"30 which was central to the A
debate in the present case, seeing that a photograph of
Mr Meisch berger was used in a pictorial rrumtage which
he felt to be profoundly humiliating and degrading.

10. It should be noted in this connection that (.\1
in an order of B
June 3, 1987, in a case about cartoons, the German
31

Federal Constitutional Court relied on the concept of
human dignity as expressly enshrined in the Basic Law
(Article1(1)), 32 in dismissing a complaint-by a publisher.
30
On the distinction between protection of the dignity of others and protection C
of one's own fundamental dignity, see B. Maurer, Le principe de respect de la
dignite humaine et la Convention europeenne des droits de l'homme , (Paris,
La documentation fran~ise, 1999), in particular pp.450 et seq . and pp.464
et seq.
31
BVerfGE 75, 369 ; EuGRZ, 1988, 270 . See also the article by G. Nolte,
"Falwell vs. Strauot Die rechtlichen Grenzen politischer Satire in den USA und D
der Bundesrepublik", EuGRZ, (1988), pp.253-59.
32
See the German Federal Constitutional Court's decision of June 3, 1987
(BVerfGE 75, 369; EuGRZ, 1988, 270 ), discussed below:" Die umstrittenen
Karikaturen sind das geformte Ergebnis einer freien schOpferischen
Gestaltung, in welcher der Beschwerdefiihrer seine Eindriicke, Erfahrungen
und Erlebnisse zu unmittelbarer Anschauung bringt. Sie geniigen damit E
den Anforderungen, die das Bundesverfassungsgericht als wesentlich fiir
eine kiinstlerische Betiitigung alisieht ( BVerfGE 67, 213 (226) = EuGRZ 1984,
4 74 [477) unter Berufung auf BVerfGE 30, 173 [ 189)). Daf3 mitihnen gleichzeitig
eine bestimmte Meinung zum Ausdruck gebracht wird, nimmt ihnen nicht
die Eigenschaft als Kunstwerk. Kunst und Meinungsiiu{3erung schlie{3en sich
nicht aus; eine Meinung kann - wie es bei der sogenannten engagierten
Kunst iiblich ist - durchaus in der Form kiinstlerischer Betiitigung F
kundgegeben werden (Scholz, a.a.O., Rdnr. 13). Ma{3gebliches Grundrecht
bleibt in diesem Fall Art. 5 Abs. 3 Satz 1 GG, weil es sich um die spezielle
Norm handelt ( BVerfGE 30, 173 (200))." It should be noted that in German
Constitutional Law, freedom of the arts (Kunstfreiheit) is specifically pro-
tected by Art.5(3) of the Basic Law. "The exercise of this freedom is not lim-
ited, as is freedom of expression, by the provisions of general laws or the
right to reputation, but it must be considered in conjunction with other consti- G
tutional rights, notably the right to the free development of personality and
human dignity", E. Barendt, Freedom of Speech , (2nd edn, Oxford, Oxford
University Press, 2005), p.229, citing the order of the German Constitutional
Court of July 17, 1984 in the "street-theatre" case, ( BVerfGE 67, 213; EuGRZ,
1984, 474) in which the court held that a moving street theatre, in which
Franz-Josef Strauss, then a candidate for the Chancellorship, was portrayed H
in the same float as prominent Nazis, should be protected under freedom of
the arts in the absence of evidence that there was a very serious injury to
personality rights.
896 SUPREME COURT REPORTS [2015) 7 S.C.R.

A The cartoon portrayed a well-known politician as a pig
copulating with another pig dressed in judicial robes. The
court did not accept the publisher's argument relating to
artistic freedom as protected by Article 5(3) of the Basic
Law. 33 It is important to note that the court accepted that
B the cartoons could be described as a work of art; it was
not appropriate to perform a quality control
(Niveaukontrolle) and thus to differentiate between.
"superior'' and "inferior'' or "good" and "bad" art. 34 However,
it dismissed the complaint, finding that the cartoons were
c intended to deprive the politician concerned of his dignity
by portraying him as engaging in bestial sexual conduct.
Where there was a conflict with human dignity, artistic
freedom (Kunstfreiheit) must always be subordinate to
personality rights. 35
D
11. One commentator, Eric Barendt, rightly approved this
decision, stating:

"Political satire should not be protected when it amounts
E only to insulting speech directed against an individual. If,
say, a magazine feature attributes words to a celebrity, or

33 Article 5(3) of the German Basic Law provides: "Art and science, research

and teaching are free .... "As already noted, freedom of the arts (Kunstfreiheit)
is specifically protected by Art.5(3) of the Basic Law and the exercise of this
F freedom is not limited as freedom of expression is. It must be considered in
conjunction with other constitutional rights, such as the right to human dignity.
See E. Barendt, Freedom of Speech . (2nd edn, Oxford, Oxford University
Press, 2005), p.229.
3ol" Die Grundanforderungen kiinstlicher TB;tigkeit festzulegen, ist daher durch
Alt. 5 Abs. 3 Satz 1 GG nicht verboten sondem vetfassungsrechtlich gefordelt.
G Erlaubt und notwendig ist allerdings nur die Unterscheidung zwischen Kunst
und Nichtkunst; eine Niveaukontrol/e, also eine Differenzierung zwischen
'hOherer' und 'niederer', 'guter' und 'schlechter' (und deshalb nicht oder
weniger schutzwiirdiger) Kunst, liefe demgegeniiber auf eine
vetfassungsrechtlich unstatthafte lnhaltskontrolle hinaus (Scholz in: Maunzl
Durig, G~ Alt. 5Abs. 3 Rdnr. 39) ...
35 E. Barendt, Freedom of Speech, 2"• ed., Oxford, Oxford University Press,

H 2005, p.230.
,I

DEVI DAS RAMACHANDRA TULJAPURKAR v. 897
STATE OF MAHARASHTRA[DIPAK MISRA, J.)

uses a computerized image to portray her naked, it should A
make no difference that the feature was intended as a
parody of an interview she had given. It should be
regarded as a verbal assault on the individual's right to
dignity, rather than a contribution to political or artistic
debate protected under the free speech (or freedom of B
the arts) clauses of the Constitution."36

12. In a word, a person's human dignity must be respected,
regardless of whether the person is a well-known figure
orn~ C

13. Returning to the case before us, we therefore consider
that the reasons that led the court to find a violation (see
paragraph 4 above) are not relevant. Such considerations
must be subordinate to respect for human dignity." o
30. Mr. Nariman, scanning the judgment has submitted
that artistic freedom outweighs personal interest and cannot
and does not trump nor outweigh observance of laws for the
prevention of crime or laws for the protection of health or E
morals; that the limits of artistic freedom are exceeded when
the image of a person (renowned or otherwise) is substantially
deformed by wholly imaginary elements - without it being
evident from the work (in the present case from the poem) that
it was aimed at satire or some other form of exaggeration; F
that the freedom of artistic creation cannot be claimed where
the work in question constitutes a debasement and debunking
of a particular individual's public standing; that the European
law recognises that whosoever exercises freedom of
G
36
Op. cit., p.230. The author adds in a footnote the following: "For an Italian
case on the point, see the decision of the Corte di Cassazione, Penal Section,
of 20 Oct. 1998, reported in (1999) II Diritto dell'lnformazione e dell' Informatica
369, rejecting appeal of author of a newspaper article which included a cartoon
implying that a woman senator fellated Berlusconi. Satire is not protected if
does not respect personality rights." H
898 SUPREME COURT REPORTS [2015] 7 S.C.R.

A expression undertakes in addition duties and responsibilities
and their scope depends on the situation and the means used;
that it is only where personal interests of an individual are said
to be affected that the artistic and satirical nature of the portrayal
of the person in the work would outweigh mere personal
B interest; that the nature, meaning and effect of any image (in
say in a painting or a poem) cannot and must not be judged on
the basis of what the artist (or author) purports to convey; what
counts..is the effect of the image on the observer; the fact that
an image has been produced by an artist does not always
C make the end-result artistic; likewise an image does not
become a satirical if the observer does not comprehend or
detect any message in the work in question; that where the
images depicted in the work product convey no message but
"only a disgusting combination of lewd acts and words whose
0
only effect is to debase, insult and ridicule the person
portrayed" - this is neither criticism nor satire; and that the
artistic freedom is not unlimited and where rights and reputation
of others are involved; where there is conflict with human dignity
E artistic freedom must always be subordinated to personality
rights. Thus, the submission of Mr. Nariman is that freedom of
speech and expression is not absolute and any work of art
cannot derail the prohibition in law.

F 31. Mr. Subramanium has referred to the judgment in
Handyside v. United Kingdom 37 , wherein it has been held
thus:-

"The Court's supervisory functions oblige it to pay the
utmost attention to the principles characterising a
G "democratic society". Freedom of expression constitutes
one of the essential foundations of such a society, one of
the basic conditions for its progress and for the
development of every man. Subject to paragraph 2 of
H 37
Application No. 5493/72, 7'" December 1976, Series A No. 24
DEVI DAS RAMACHANDRA TULJAPURKAR v. ,899
STATE OF MAHARASHTRA [DIPAK MISRA, J.]

Article 10 (art. 10-2), it is applicable not only to A
"information" or "ideas" that are favourably received or
regarded as inoffensive or as a matter of indifference, but
also to those that offend, shock or disturb the State or any
sector of the population. Such are the demands of that
pluralism, tolerance and broadmindedness without which B
there is no "democratic society". This means, amongst
other things, that every "formality", "condition", "restriction"
or "penalty" imposed in this sphere must be proportionate
to the legitimate aim pursued.
c
From another standpoint, whoever exercises his freedom
of expression undertakes "duties and responsibilities" the
scope of which depends on his situation and the technical
means he uses. The Court cannot overlook such a
person's "duties" and "responsibilities" when it enquires, D
as in this case, whether "restri_ctions" or "penalties" were
conducive to the "protection of morals" which made them
"necessary" in a "democratic society"."
Mr. Subramanium, learnea"'senior counsel has E
emphasised that the freedom of expression as protected by
Article 1O of ECHR constitutes an essential basis of a
democratic society and any limitations on that freedom have
to be interpreted strictly. Mr. Subramanium has also referred
us to Editorial Board of Pravoye Delo and Shtekel v. F
Ukraine38 , wherein the European Court, for the first time,
acknowledged that Article 10 of ECHR has to be interpreted
as imposing on States a positive obligation to create an
appropriate regulatory framework to ensure effective
protection of journalists' freedom of expression on the Internet. G
He has also drawn our attention to Akda v. Turkey3 9 , wherein
the European Court has held that ban on translation of classic
"Application No. 33014/05, 5 May 2011
,. Application No. 41056/04, 16 February, 2010 H
900 SUPREME COURT REPORTS [2015] 7 S.C.R.

A work of literature that contained graphic description of sex,
vfolated the right to freedom of expression.

32. Mr. Nariman, learned senior counsel and amicus, has
commended us to Wingrove v. United Kingdom4° to show
B that the interpretation placed by the European Court of Human
Rights on Article 10 that deals with freedom of expression. In
the said case, a video movie characterising Saint Teresa of
Avila in profane ways was held to be properly banried and not
a violation of Article 10 of the European Convention on Human
C Rights. The said case originated from an application lodged
with the European Commission under Article 25 by a British
national Nigel Wingrove on 18111 June, 1990. The object of the
request and of the Application was to obtain a decision as to
whether the facts of the case disclosed a breach by the
D respondent State (United Kingdom) of its obligation under
Article 10 of the ECHR. Wingrove wrote the script for a video
and directed making of a video work entitled 'visions of ecstasy'
- the idea for the film was derived from the life and writings of
St. Teresa of Avila, the sixteenth century Carmelite, nun and
E founder of many convents, who experienced powerful ecstatic
visions of Jesus Christ. In paragraphs 9 and 10 of the report it
is stated:-

"The action of the film centres upon a youthful actress
F dressed as a nun and intended to represent St. Teresa. It
begins with the nun, dressed loosely in a black habit,
stabbing her own hand with a large nail and spreading
her blood over her naked breasts and clothing. In her
writhing, she spills a chalice of communion wine and
G proceeds to lick it up from the ground. She loses
~onsciousness. This sequence takes up approximately
half of the running time of the video. The second part shows

H •0 1997 24 ECHRR (1)
DEVI DAS RAMACHANDRA TULJAPURKAR v. 901 ,
STAT~ OF MAHARASHTRA [DIPAK MISRA, J.]

St. Teresa dressed in a white habit standing with her arms A
held above her head by a white cord which is suspended
from above and tied around her wrists. The near-naked
form of a second female, said to represent St. Teresa's
psyche, slowly crawls her way along the ground towards
her. Upon reaching St. Teresa's feet, the psyche begins B
to caress her feet and legs, then her midriff, then her
breasts, and finally exchanges passionate kisses with her.
Throughout this sequence, St Teresa appears to be
writhing in exquisite erotic sensation. This sequence is
intercut at frequent intervals with a second sequence in C
which one sees the body of Christ, fastened to the cross
which is lying upon the ground. St Teresa first kisses the
stigmata of his feet before moving up his body and kissing
or licking the gaping wound in his right side. Then she sits
0
astride him, seemingly naked under her habit, all the while
moving in a motion reflecting intense erotic arousal, and
kisses his lips. For a few seconds, it appears that he
responds to her 'kisses. This action is intercut with the
passionate kisses of the psyche already described. E
Finally, St Teresa runs her hand d6wn to the fixed hand of
Christ and entwines his fingers in hers. As she d9es so,
the fingers of Christ seem to curl upwards to hold with
hers, whereupon the video ends.
F
Apart from the cast list which appears on the screen for a
few seconds, the viewer has no means to knowing from
the film itself that the person dressed as a nun in the video
is intended to be St Teresa or that the other woman who
appears is intended to be her psyche. No attempt is made G
in the video to explain its historical background."

Thereafter dealing with the case, the European Court of
Human Rights held:-

"61. Visions of Ecstasy portrays, inter alia, a female H
902 SUPREME COURT REPORTS [2015] 7S.C.R.

A character astride the recumbent body of the crucified
Christ engaged in an act of an overtly sexual nature. The
national authorities, using powers that are not themselves
incompatible with the Convention, considered that the
manner in which such imagery was treated placed the
B focus of the work "less on the erotic feelings of the'
character than on those of the audience, which is the
primary function of pornography". They further held that
since no attempt was made in the film to explore the
meaning of the imagery beyond engaging the viewer in a
c "voyeuristic erotic experience", the public distribution of
such a video could outrage and insult the feelings of
believing Christians and constitute the criminal offence of
blasphemy. This view was reached by both the Board of
Film Classification and the Video Appeals Committee
D
following a careful consideration of the arguments in
defence of his work presented by the applicant in the
. course of two sets of proceedings. Moreover, it was open
to the applicant to challenge the decision of the Appeals
E Committee in proceedings for judicial review. Bearing in
mind the safeguard of the high threshold of profanation
embodied in the definition of the offence of blasphemy
under English law as well as the State's margin of
appreciation in this area, the reasons given to justify the
F measures taken can be considered as both relevant and
sufficient for the purpose of Article 10 para 2 (art. 10-2).
Furthermore, having viewed the film for itself, the Court is
satisfied that the decisions by the national authorities
cannot be said to be arbitrary or excessive."
G
Mr. Nariman, the friend of the Court has also laid immense
emphasis on the concurring opinion of Judge Pettit. The
learned Judge though voted with the majority, observed:-

"... I consider that the same decision could have been
H
DEVI DAS RAMACHANDRA TULJAPURKAR v. 903
STATE OF MAHARASHTRA[DIPAK MISRA, J.]

reached under paragraph 2 of Article 10 (art. 10-2) on A
grounds other than blasphemy, for example the profanation
of symbols, including secular ones (the national flag) or
jeopardising or prejudicing public order (but not for the
benefit of a religious majority in the territory concerned).
The reasoning should, in my opinion have been expressed B
in terms both of religious beliefs and of philosophical
convictions. It is only in paragraph 53 of the judgmentthat
the words "any other" are cited. Profanation and serious
attacks on the deeply held feelings of others or on religious
or secular ideals can be relied on under Article 10 para 2 C
(art. 102) in addition to blasphemy. What was particularly
shocking in the Wingrove case was the combination of
an ostensibly philosophical message and wholly irrelevant
obscene or pornographic images. In this case, the use of
0
obscenity for commercial ends may justify restrictions
under Article 10 para 2 (art 10-2); but the use of a figure of
symbolic value as a great thinker in the histt-ry of mankind
(such as Moses, Dante or Tolstoy) in a portrayal which
seriously offends the deeply.bE?ld feelings of those who E
respect their works or thought may, in some cases, justify
judicial supervision so that the public can be alerted through
the reporting of court decisions."

Judge Pettit further proceeded to state:-
F
"The majority of the Video Appeals Committee took the
view that the imagery led not to a religious perception, but
to a perverse one, the ecstasy being furthermore of a
perverse kind. That analysis was in conformity with the
approach of the House of Lords, which moreover did not G
discuss the author's intention with respect to the moral
element of the offence. The Board's Director said that it
would have taken just the same stance in respect of a film
that was contemptuous of Mohammed or Buddha.-The H
904 SUPREME COURT REPORTS [2015] 7 S.C.R.

A decision not to grant a certificate might possibly have been
justifiable and justified if, instead of St Teresa's ecstasies,
what had been in issue had been a video showing, for
example, the anti-clerical Voltaire having sexual relations
with some prince or king. In such a case, the decision of
B the European Court might well have been similar to that in
the Wingrove case. The rights of other under Article 10
para 2 (art. 10-2) cannot be restricted solely to the
protection of the rights of others in a single category of
religious believers or philosophers, or a majority of them.
c The Court was quite right to base its decision on the
protection of the rights of others pursuant to Article 10 (art.
10), but to my mind it could have done so on broader
grounds, inspired to a greater extent by the concern to
protect the context of religious beliefs "or any other", as is
D
rightly pointed out in paragraph 53 of the judgment. In the
difficult balancing exercise that has to be carried out in
these situations where religious and philosophical
sensibilities are confronted by freedom of expression, it
E is important that the inspiration provided by the European
Convention and its interpretation should be based both
on pluralism and a sense of values."

33. Learned Amicus, to cement the proponement of
F absence of total limitlessness of freedom of speech and
expression and to refute the principle of absoluteness has also
commended us to the authority in Muller and Others v.
Switzerland4 1• In the said case, the question was whether
paintings at an exhibition depicting in a crude manner, sexual
G relations particularly between men and animals to which
general public had free access as the organisers had not
imposed any admission charge or any age limit; the paintings
being displayed to the public at large. The European Court of
Human Rights stated:-
H ., 13 EHRR 212
DEVI DAS RAMACHANDRA TULJAPURKAR v. 905 ·
STATE OF MAHARASHTRA [DIPAK MISRA, J.]

"The Court recognises, as did the Swiss courts, that A
conceptions of sexual morality have changed in recent
years. Nevertheless. having inspected the original
paintings, the Court does not find unreasonable the view
taken by the Swiss courts that those paintings, with their
emphasis on sexualitv in some of its crudest forms. were B
"liable grossly to offend the sense of sexual propriety of
persons of ordinary sensitivity". In the circumstances,
having regard to the margin of appreciation left to them
under Article 1O part 2 (art. 10-2), the Swiss courts were
entitled to consider it "necessary" for the protection of C
morals to impose a fine on the applicants for publishing
obscene material.

The applicants claimed that the exhibition of the pictures
.had not given rise to any public outcry and indeed that the D
press on the whole was on their side. It may also be true
that Josef Felix Muller has been able to exhibit works in a
similar vein in other parts of Switzerland and abroad, both
before and after the "Fri-Art 81" exhibition. It does not,
however, follow that the applicants' conviction in Fribourg E
did not, in all the circumstances of the case, respond to a
genuine social need, as was affirmed.in substance by all
three of the Swiss courts which dealt with the case.

In conclusion, the disputed measure did not infringe Article F
10 (art. 10) of the Convention."

(emphasis supplied]

Perception and Perspective of this Court G
34. Keeping in view the developments in other countries
pertaining to the percep~ion as regards "obscenity","vulgarity"
and other aspects, we are obliged to see how this Court has
understood the provision, that is, Section 292 IPC, and laid H
906 SURREMECOURTREPORTS [2015] 7 S.C.R.

A down the law in the context of freedom of speech and
expression bearing in mind the freedom of a writer, poet, painter
or sculptor or broadly put, freedom of an artist. Section 292 of
the IPC presently reads thus:-

8 "292. Sale, etc., of obscene books, etc.-

ill For the purposes of sub-section (2), a book, pamphlet,
paper, writing, drawing, painting, representation, figure or
any other object, shall be deemed to be obscene if it is
c lascivious or appeals to the pruri-ent interest or if its effect,
or (where it comprises two or more distinct items) the
effect of any one of its items, is, if taken as a whole, such
as to tend to deprave and corrupt person, who are likely,
having regard to all relevant circumstances, to read, see
o or hear the matter contained or embodied in it.]

@.Whoever-

!fil sells, lets to hire, distributes, publicly exhibits or in any
manner puts into circulation, or for purposes of sale, hire,
E distribution, public exhibition or circulation, makes, produces
or has in his possession any obscene book, pamphlet, paper,
drawing.painting, representation or figure or any other obscene
object whatsoever, or

F .(!;ll imports, exports or conveys any obscene object for
any of the purposes aforesaid, or knowing or having reason to
believe that such object will be sold, let to hire, distributed or
publicly exhibited or in any manner put into circulation, or

G .(91 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 I

made, produced, purchased, kept, imported, exported,
conveyed, .... publicly exhibited or in any manner put into
H circulation, or
DEVIDAS RAMACHANDRA TULJAPURKAR v. 907
STATE OF MAHARASHTRA[DIPAK MISRA, J.]

@advertises or makes known by any means whatsoever A
that any person is engaged or is ready to engage in any act
which is an offence under this section, or that any such obscene
object can be procured from or through any person, or

.{fil offers·or attempts to do any act which is an offence B
under this section, shall be punished [on first conviction with
im-prisonment of either description for a term which may extend
to two years, and with fine which may extend to two thousand
rupees, and, in the event of a second or subsequent conviction,
with imprisonment of either description for a term which may C
extend to five years, and also with fine which may extend to
five thousand rupees].

Exception -This section does not extend to-
D
.(fil any book, pamphlet, paper, writing, drawing, painting,
repre-sentation 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, E
representation or figure is in the interest of science,
literature, art or learning or other objects1of general
concern, or

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

.{Q} any representation sculptured, engraved, painted or
otherwise represented on or in-
.rct G
(i) any ancient monument within the meaning of the
Ancient Monu-ments and Archaeological Sites and
Remains Act, 1958 (24 of 1958), or
(ii) any temple, or on any car used for the conveyance H
of idols, or kept or used for any religious purpose."
908 SUPREME COURT REPORTS [2015] 7 S.C.R.

A 35. The said Sectiori. prior to the present incarnation, read
as follows:-

"292. Whoever-

(a) sells, lets to hire, distributes, publicly exhibits or in any
B
manner puts into circulation, or for purposes of sale, hire,
distribution, public exhibition or circulation, makes,
produces or has in his possession any obscene book,
pamphlet, paper, drawing, painting, representation or
c figure or any other obscene object whatsoever, or

(b) imports, exports or conveys any obscene object for
any of the purposes aforesaid, or knowing or having reason
to believe that such object will be sold, let to hire,
distributed or publicly exhibited or in any manner put into
D
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
E aforesaid, made, produced, purchased, kept, imported,
exported, conveyed, publicly exhibited or in any manner
put intQ circulation, or

(d) advertises or makes known by any means whatsoever
F that any person is engaged or is ready to engage in any
act which is an offence under this section, or that any such
obscene object can be procured from or through any
person, or

G (e) offers or attempts to do any act which is an offence
under this section, shall be punished with im-prisonment
of either description for a term which may extend to three
months, or with fine, or with both.

H Exception.- This section does not extend to any book,
.,, -
DEVI DAS RAMACHANDRA TULJAPURKAR v. 909
STATE OF MAHARASHTRA [DIPAK MISRA, J.]

pamphle_t, paper, writing, drawing or painting kept or used A
bona fide for religious purposes or any representation
sculptured. Engraved, painted or otherwise represented
on or in any temple, or on any car used for the conveyance
or idols, or kept or used for any religious purpose.)"
.- B
36. For the first time this Court dealt with the effect and
. impact of the provision in the backdrop of the challenge to the
constitutional validity of the same, in Ranjit D. Udeshi v. State
of Maharashtra42 . Before the Constituti6n Bench a contention
was canvassed with regard to the constitutional validity of C
Section 292 IPC on the ground it imposes impermissible
restriction on the freedom of speech and expression
guaranteed by Article 19(1 )(a) of the Constitution and being
not saved by clause 2 of the said Article. The Constitution Bench
referred to Article 19(2) and held thus:- D

"7. No doubt this article guarantees complete freedom of
speech and expression but it also makes an exception in
favour of existing laws which impose restrictions on the
exercise of the right in the interests of public decency or E
morality. The section of the Penal Code in dispute was
introduced by the Obscene Publications Act, 1925 (7 of
1925) to give effect of the International Co~vention for the
suppression of or traffic in obscene pub_lications signed
by l_ndia in 1923 at Geneva. It does not go beyond F
obscenity which falls directly within the words "public
decency and morality" of the second clause of the article.
The word, as the dictionaries tell us, denotes the quality
of being obscene which means offensive to:modesty or
decency; lewd, filthy and repulsive. It cannot be denied G
that it is an important interest of society to suppress
obscenity. There is, of course, some difference between
obscenity and pornography in that the la~ter denotes
42 (1965) 1 SCR 65
H
910 SUPREME COURT REPORTS [2015) 7 S.C.R.

A writings, pictures etc. intended to arouse sexual desire
while the former may include writings etc. not intended to
do so but which have that tendency. Both, of course, offend
against public decency and morals but pornography is
obscenity in a more aggravated form. Mr Garg seeks to
B limit action to cases of intentional lewdness which he
describes as dirt for dirt's sake and which has now
received the appellation of hard-core pornography by
which tetm is meant libidinous writings of high erotic effect
unredeemed by anything literary or artistic and intended ·
c to arouse sexual feelings.

8. Speaking in terms of the Constitution it can hardly be
claimed that obscenity which is offensive to modesty or
decency is within the constitutional protection given to free
D speech or expression, because the article dealing with
the right itself excludes it. That cherished right on which
our democracy rests is meant for the expression of free
opinions to change political or social conditions or for the
advancement of human knowledge. This freedom is
E subject to reasonable restrictions which may be thought
necessary in the interest of the general public and one
such is the interest of public decency and morality. Section
'
292 of the Indian Penal Code manifestly embodies such
a restriction because the law against obscenity, of course.
F
correctly understood and applied. seeks no more than to
promote public decency and moralitv. The word obscenity
is really not vague because it is a word which is well
understood even if persons differ in their attitude to what
G is obscene and what is not."
[Emphasis added]

And again,

"9 ............ It is always a question of degree or as the
H lawyers are accustomed to say, of where the line is to be
DEVI DAS RAMACHANDRA TULJAPURKAR v. 911
STATE OF MAHARASHTRA[DIPAK MISRA, J.)

drawn. It is, however, clear that obscenity by i!self has A
. extremely poor value in the propagation of ideas, opinions
and information of public interest or profit. When there is
propagation of ideas, opinions and photographs collected
in book form without the medical text would may become
different because then the interest of society may tilt the B
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 immod~t. are not
considered to be obscene but the same illustrations and
photographs collected in book form without the medical C
text would certainly be considered to be obscene. Section
292 of the Indian Penal Code deals with obscenity in this
sense and cannot thus be said to be invalid in view of the
second clause of Article 19."
D
37. After dealing with the said facet, the Court referred to
various decisions of the English Courts, especially to Hicklin
(supra), wherein the Queen's Bench was called upon to
consider a pamphlet, the nature of which can be gathered from
the title and the colophon which read:- E

"The Confession Unmasked, showing the d~pravity of
Romish priesthood, the enquity of the confesskmal, and
the questions, put to females in confession."~··
11
F
It was bilingual with Latin and English texts on opposite
pages and the latter half of the pamphlet according to the report
was grossly obscene relating to impure and filthy'acts, words
or ideas. Cockburn, C.J. laid down the test of obscenity in the
following words:- · -' G

" ... I think the test of obscenity is this, 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 H
912 SUPREME COURT REPORTS [2015) 7 S.C.R.

A may fall ... it is quite certain that it would suggest to the
minds of the young of either sex, or even to persons of
more advanced years, thoughts of a most impure and
libidinous character."

B 38. After reproducing the said paragraph, the Court
observed that the said test has been uniformly applied in India.
Thereafter, the Court posed a question whether the said test
of obscenity squares with the freedom of speech and
expression guaranteed under the Constitution or it needs to
C be modified and if so, in what respects. The Court opined that
the first of the said questions invite the Court to reach a decision
on a constitutional issue of a most far-reaching character and
it must be aware that it may not lean too far away from the
guaranteed freedom. In that context, the Court observed that
D the laying down of the true test is not rendered any easier
because art has such varied facets and has such individualistic
appeals that in the same object the insensitive sees only
obscenity because his attention is arrested, not the general or
artistic appeal or message, which he cannot comprehend. But
E by what he can see, and the intellectual sees beauty and art
but nothing gross. The Indian Penal Code does not define the
word "obscene" and this delicate task of how to distinguish
between that which is artistic and that which is obscene has to
F be performed by courts. The test to be evolved 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. Thereafterthe court
G observed:-
"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
H
DEVI DAS RAMACHANDRA TULJAPURKAR v. 913
STATE OF MAHARASHTRA[DIPAK MISRA, J.]

in art and literature cannot be regarded as evidence of A
obscenity without something more. It is not ne:::essary that
the angels and saints of Michael Angelo should be made
to wear breeches before they can be viewed. If the rigid
test of treating with sex as the minimum ingredient were
accepted hardly any writer of fiction today would escape B
the fate Lawrence had in his days. Half the book-shop
would close and the other half would deal in nothing but
moral and religious books which Lord Campbell boasted
was the effect of his Act."
c
39. After so stating, the Court referred to certain authorities
of the United States of America and proceeded to observe
that the Court must, therefore, apply itself to consider each
work at a time. An overall view of the obscene matter in the
setting of the whole work would, of course, be necessary, but D
the obscene matter must be considered by itself and separately
to find out whether it is so gross and its obscenity so decided
that it is likely to deprave and corrupt those whose minds are
open to influences of this sort and into whose hands the book
is likely to fall. The interests of the contemporary society and E
particularly the influence of the book etc. on it must not be
overlooked. Then the court stated:-

"A number of considerations may here enter which it is
not necessary to enumerate, but we must draw attention F
to one fact. Today our National and Regional Languages
a1e strengthening themselves by new literary standards
after a deadening period under the impact of English.
Emulation by our writers of an obscene book under the
aegis of this Court's determination is likely to pervert our G
entire literature because obscenity pays and true Art finds
little popular support. Only an obscurent will deny the need
for such caution. This consideration marches with all law
and precedent and this subject and so considered we can H
914 SUPREME COURT REPORTS [2015] 7 S.C.R.

A only say that where obscenity and art are mixed, art must
be so preponderating as to throw the obscenity into a
shadow or the obscenity so trivial and insignificant that it
can have no effect and may be overlooked. In other words,
treating with sex in a manner offensive to public decency
B and morality (and these are the words of our Fundamental
Law), judged of by our National standards and considered
likely to pander to lascivious. prurient or sexually
precocious minds, must determine the result. We need
not attempt to bowdlerize all literature and thus rob speech
c and expression of freedom. A balance should be
maintained between freedom of speech and expression
and public decency and morality but when the latter is
substantially transgressed the former must give way."
[Emphasis supplied]
D
Eventually, the Court opined:-

"22 ....... In our opinion, the test to adopt in our country
regard being had to our community mores) is that
E obscenity without a preponderating social purpose or
profit cannot have the constitutional protection of free
speech and expression and obscenity is treating with sex
in a manner appealing to the carnal side of human nature,
or having that tendency. Such a treating with sex is
·F offensive to modesty and decency but the extent of such
appeal in a particular book etc. are matters for
consideration in each individual case."

40. Thereafter, the court proceeded to scan the various
G passages of the book, namely, Lady Chatterley's Lover and
ruled that:-

"29 ........ When everything said in its favour we find that in
treating with sex the impugned portions viewed separately
H and also in the setting of the whole book pass the
DEVIDAS RAMACHANDRA TULJAPURKAR v. 915
STATE OF MAHARASHTRA [DIPAK MISRA, J.]

permissible limits judged of from our community standards A
and as there is no social gain to us which can be said to
preponderate, we must hold the book to satisfy the test
we have indicate above."

41. In Chandrakant Ka/yandas Kakodkar v. State of B
Maharashtra43, the appellant was the author of a short story.
He faced a criminal charge under Section 292 IPC along with
the printer, publisher and the selling agent. The three-Judge
Bench referred to the Constitution Bench in Ranjit D. Udeshi
(supra) and thereafter the Court referred to the plots and sub- C
plots narrated in the story, adverted to the emotional thread
running in the story and eventually came to hold that none of
the passages was offending Section 292 IPC and accordingly
acquitted the accused persons. In that context the Court
observed:- D

"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 E
is considered h1 both countries as not harmful to public
order and morals may be obscene in our country. But to
insist that the standard shouldalways 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 F
is written whether that is the dominant theme or not they
would be affected, would be to require authors to write
books only for the adolescent and not for the adults. In
early English writings authors wrote only with unmarried
girls in view but society has changed since then to allow G
litterateurs and artists to give expression to their ideas,
and emotions and objective with full freedom except that
it should not fall within the definition of "obscene" having
., (1969) 2 sec 687 H
916 SUPREME COURT REPORTS (2015] 7 S.C.R.

A 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
B sex, love and romance. As observed in Udeshi (supra) if
a reference to sex by itself is considered 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
c considered derogatory to public morality, but having
regard to changed conditions are more taken for granted
without in anyway tending to debase or debauch the mind.
What we have to see is that whether a class, not an
isolated case, into whose hands the book, article or story
D
falls suffer in their moral outlook or become depraved by
reading it or might have impure and lecherous thoughts
aroused in their minds. The charge of obscenity must,
therefore, be judged from this aspect."
E From the aforesaid passage it is clear that the court
considered three facets, namely, "morals of contemporary
society", the fast changing scenario in our country and the
impact of the book on a class of readers but not an individual.

F 42. In K.A. Abbas v. Union of India and another4 4 , the
petitioner sought a declaration against the Union of India and
the Chairman, Central Board of Film Censors that the
provisions of Part II of the Cinematograph Act, 1952 together
with the rules prescribed by the Central Government, February
G 6, 1960, in the purported exercise of the powers under Section
5-8 of the Act are unconstitutional and void and consequently
sought a writ of Mandamus or any other appropriate writ,
direction or order for quashing the direction contained in letter
H .. (1970) 2 sec 1so
DEVIDAS RAMACHANDRA TULJAPURKAR v. 917
STATE OF MAHARASHTRA [DIPAK MISRA, J.]

dated July 3, 1969, for deletion of certain shots from a A
documentary film titled 'A Tale of Four Cities' produced by him
for unrestricted public exhibition. The said certificate was
declined and the petitioner was issued a letter that the film
was suited for exhibition restricted to adults. The petitioner
was given a chance to give explanation, but he did not change B
his decision. On an appeal, the Central Government opined
that it could be granted 'U' certificate subject to certain cuts
being made in the film. At that juncture, the petitioner preferred
a petition before this Court. The Court viewed the film and still
the stand of the Central Government was same. The petitioner C
thereafter amended the petition to challenge the pre-censorship
itself as offensive to freedom of speech and expression and
alternatively the provisions of the Act and the Rules, orders
and directions under the Act as vague, arbitrary and indefinite.
0
The prayer for amendment was allowed. The two fundamental
contentions that were raised before this Court were firstly, the
pre-censorship itself cannot be tolerated under the freedom
of speech and expression and secondly, even if it were a
legitimate restraint on the freedom, it must be exercised on E
very definite principles which leave no room for arbitrary action.
The Court referred to the Khosla Committee that had
addressed and examined history of development of film
censorship in India. The Court adverted to various provisions
of the Act and in that context observed that it has been almost F
universally recognised that treatment of motion pictures must
be different from that of other forms of art and expression. The
Court referred to the decision in Roth (supra), wherein three
tests have been laid down as under:
G
"(a) that the dominant theme taken as a whole appeals to
prurient interests according to the contemporary standards
of the average man;

(b) that the motion picture is not saved by any redeeming H
918 SUPREME COURT REPORTS [2015] 7 S.C.R.

A social value; and

(c) that it is patently offensive because it is opposed to
contemporary standards."

The court observed that Hicklin test in Regina (supra) was
8
not accepted in the said case. The Court also referred to
Freadman v. Maryland4 5 , which considered procedural
safeguards and thereafter the judgment in Teital Film Corp.
v. Cusak46 and observed that fight against censorship was
c finally lost in Times Film Corporation v. Chicago47 , but only
by the slender majority. Thereafter, the Court referred to later
decisions and observed:-

"33. To summarize. The attitude of the Supreme Court of
the United States is not as uniform as one could wish. It
D
may be taken as settled that motion picture is considered
a form of expression and entitled to protection of First
Amendment. The view that it is only commercial and
business and, therefore, not entitled to the protection as
E was said in Mutual Film Corpn48• is not now accepted."

43. The Court further referred to the majority judgments in
many cases and observed that judges in America have tried
to read the words 'reasonable restrictions' into the First
F Amendment and thus to make the rights it grants subject to
reasonable regulation. The Court further observed that the
American Courts in their majority opinions, therefore, clearly
support a case for censorship. Proceeding further, the Court
opined that the task of the censor is extremely delicate and its
G duties cannot be the subject of an exhaustive set of commands

45 (1965) 380 us 51
.. (1968) 390 us 149
47
(1961) 365 us 43
H ., (1915) 236 us 230
DEVIDAS RAMACHANDRA TULJAPURKAR v. 919
STATE OF MAHARASHTRA[DIPAK MISRA, J.]

established by prior ratiocination. In that context, the Court A
ruled:-

"The standards that we set for our censors must make a
substantial allowance in favour of freedom thus leaving a
vast area for creative art to interpret life and society with B
some of its foibles along with what is good. We must not
look upon such human relationships as banned in to and
for ever from human thought and must give scope for talent
to put them before society. The requirements of art and
literature include within themselves a comprehensive view C
of s0cial life and not only in its ideal form arid the line is to
be drawn where the average moral man begins to feel
embarrassed or disgusted at a naked portrayal of life
without the redeeming touch of art or genius or social
value. If the depraved begins to see in these things more · D
than what an average person would, in much the same
way, as it is wrongly said, a Frenchman seas a woman's
legs in everything, it cannot be helped. In our scheme of
things ideas having redeeming social or artistic value must
also have importance and protection for their growth. Sex E
and obscenity are not always synorymous and it is wrong
to classify sex as essentially obscene or even indecent or
immoral. It should be our concern; however, to prevent the
use of sex designed to play a commercial role by making F
its own appeal. This draws in the censor's scissors. Thus
audiences in India can be expected to view with
equanimity the story of Oedipus son of Latius who
committed patricide and incest with his mother. When the
seer Tiresias exposed him, his sister Jocasta committed G
suicide by hanging herself and Oedipus put out his own
eyes. No one after viewing these episodes would think
that patricide or incest with one's own mother is
permissible or suicide in such circumstances or tearing
out one's own eyes is a natural consequence. And yet if H
920 SUPREME COURT REPORTS [2015] 7 S.C.R.

A one goes by the letter of the directions the film cannot be
shown. Similarly, scenes depicting leprosy as a theme in
a story or in a documentary are not necessarily outside
the protection. If that were so Verrier Elwyn's Phulmat of
the Hills or the same episode in Henryson's Testament of
B Cressaid (from where Verrier Elwyn borrowed the idea)
would never see the light of the day. Again carnage and
bloodshed may have historical value and the depiction of
such scenes as the Sack of Delhi by Nadirshah may be
permissible, if handled delicately and as part of an artistic
c portrayal of the confrontation with Mohammad Shah
Rangila. If Nadir Shah made golgothas of skulls, must we
leave them out of the story because people must be made
to view a historical theme without true history? Rape in all
its nakedness may be objectionable but Voltaire's
D
Candide would be meaningless without Cunegonde's
episode with the soldier and the story of Lucrece could
never be depicted on the screen."
[Emphasis supplied]
E
44. The aforesaid passage, we must candidly state, is a
lucid expression of artistic freedom regard being had to
thematic context and the manner of delicate and subtle
delineation in contradistinction to gross, motivated and non-
F artistic handling. It is also graphically clear that the court has
opined that sex and obscenity are not always synonymous and
that is why the court has given example of Oedipus which is
known in the field of psychology as Oedipus complex. Be it
noted, in the field of literature there are writing which pertain,
G as psychology would christen them as 'Electra' complex and
'Lolita' complex. As is manifest from the judgment, the Court
has taken pains to refer to certain situations from certain novels
and the ideas from the plays and also emphasised on delicate
depiction of a situation in a theme-oriented story. The Court
H has made a distinction between a historical theme without true
DEVI DAS RAMACHANDRA TULJAPURKAR v. 921
STATE OF MAHARASHTRA [DIPAK MISRA, J.]

history and portrayal of an artistic scene. Be it noted, in the A
said case, the Court opined thatthe test in Ranjit D. Udeshi
(supra) would apply even to film censorship.

45. In Raj Kapoor and Others v. State and Others"9 ,
the High Court had refused the exercise of inherent power under B
Section 482 of the Criminal Procedure Code because the High
Court felt the subject fell under its revisional power under
Section 397 of the CrPC. The prosecution was launched by
the president of a youth organisation devoted to defending
Indian cultural standards, inter alia, against the unceasing C
waves of celluloid anti-culture, arraigning, together with the
theatre owner, the producer, actors and photographer of a
sensationally captioned and loudly publicised film by name
Satyam, Sivam, Sundaram, under Sections 292, 293 and 34
of the IPC for alleged punitive prurience, moral depravity and D
shocking erosion of public decency. The trial court examined
a few witnesses and thereafter issued notices to the petitioners
who rushed to the High Court but faced refusal on a technical
foundation. This Court formulated two questions - one of
jurisdiction and consequent procedural compliance, the other E
of jurisprudence as to when, in the setting of the Penal Code,
a picture to be publicly exhibited can be castigated as prurient
and obscene and violative of norms against venereal depravity.
The Court in that context observed:-

"8 ......Art, morals and law's manacles on aesthetics are a
sensitive subject where jurisprudence meets other social
sciences and never goes alone to bark and bite because
State-made strait-jacket is an inhibitive prescription for a
free country unless enlightened society actively G
participates in the administration of justice to aesthetics.

9. The world's greatest paintings, sculptures, songs and

• 9 (1980) 1 sec 43 H
922 SUPREME COURT REPORTS (2015] 7 S.C.R.

A dances, India's lustrous heritage, the Konaraks and
Khajurahos, lofty epics, luscious in patches, may be
asphyxiated by law, if prudes and prigs and State moralists
prescribe paradigms and proscribe heterodoxies. It is
plain that the procedural issue is important and the
B substantive issue portentous."

46. It is worthy to note that a contention was raised that
once a certificate under the Cinematograph Act is granted,
the homage to the law of morals is paid and the further
C challenge under the Penal Code is barred. Dealing with the
same, the Court opined that:-

"Jurisprudentially speaking, law, in the sense of command
to do or not to do, must be a reflection of the community's
D cultural norms, not the State's regimentation of aesthetic
expression or artistic creation. Here we will realise the
superior jurisprudential value of dharma. which is a
beautiful blend of the sustaining sense of morality, right
conduct, society's enlightened consensus and the binding
E force of norms so woven as against positive law in the
Austinian sense, with an awesome halo and barren
autonomy around the legislated text is fruitful area for
creative exploration. But morals made to measure by
statute and court is risky operation with portentous impact
F on fundamental freedoms, and in our constitutional order
the root principle is liberty of expression and its reasonable
control with the limits of"public order, decency or morality".
Here, social dynamics guides legal dynamics in the
province of "policing" art forms."
G
Krishna Iyer, J. while stating thus opined that once a
certificate under the Cinematograph Act is issued the Penal
Code, pro tanto, will not hang limp. The court examined the
film and dealt with the issue whether its public display, in the
H given time and clime, would breach the public morals or
DEVIDAS RAMACHANDRA TULJAPURKAR v. 923
STATE OF MAHARASHTRA [DIPAK MISRA, J.]

deprave basic decency as to offend the penal provisions. In A
that context, the learned Judge observed thus:-
" by time but
"15 ...... Statutory expressions are not petrified
must be,Updated by changing ethos even as popular ethics
are not absolutes but abide and evolve as community B
consciousness enlivens and escalates. Surely, the satwa
of society must rise progressively if mankind is to move
towards its timeless destiny and this can be guaranteed
only if the ultimate value-vision is rooted in the unchanging
basics, Truth-Goodness- Beauty, Satyam, Sivam, C
Sundaram. The relation between Reality ana Relativity
must haunt the Court's evaluation of obscenity, expressed
in society's pervasive humanity, not'law's penal
prescriptions. Social scientists and spiritual scientists will
broadly agree that man lives not alone by mystic squints, D
ascetic chants and austere abnegation but by luscious
love of Beauty, sensuous joy of companionship and
moderate non-denial of normal demands of the flesh.
Extremes and excesses boomerang although, some crazy
artists and film directors do practise Oscar Wilde's E
observation: "Moderation is a fatal thing. Nothing
succeeds like excess."

16. All these add up to one conclusion that finality and
infallibility are beyond courts which must interpret and F
administer the law with pragmatic realism, rather than
romantic idealism or recluse extremism."

Pathak, J. (as His Lordship then was) in his concurring
opinion, opined that there is no difficulty in laying down that in G
a trial for the offence under Sections 292 and 293 of the Indian
Penal Code, a certificate granted under Section 6 of the
Cinematograph Act by the Board of Censors does not provide
an irrebuttable defence to accused who have been granted
such a certificate, but it is certainly a relevant fact of some H
924 SUPREME COURT REPORTS [2015) 7.S.C.R.

A weight to be taken into consideration by the criminal court in
deciding whether the offence charged is established.

47. Thus, from the view expressed by Krishna Iyer, J., it is
vivid that the Court laid emphasis on social dynamics and the
B constitutional order which postulates the principle of liberty of
expression and the limits of 'public order', 'decency' and
'morality'. The learned Judge has discarded the extremes and
excesses for they boomerang and did not appreciate the
observation of Oscar Wilde which pertains to the statement
C "moderation is a fatal thing".

48. In Samresh Bose &Anr. v. Amal Mitra &Anr. 50 , the
appellants were the author and the publisher of a novel. The
appellant No.1 was the author of a novel which under the
o caption "Prajapati" that came to be published "Sarodiya Desh".
The application was filed before the Chief Presidency
Magistrate, Calcutta complaining that the said novel "Prajapati"
was obscene and both the accused persons had sold,
distributed, printed and exhibited the same which has a
E tendency to corrupt the morals of those in whose hands the
said "Sarodiya Desh" may fall, and accordingly they faced trial
under Section 292, IPC and eventually stood convicted. The
accused persons assailed their conviction in an appeal before
the High Court and the complainant filed a criminal revision
F seeking enhancement of sentence. The High Court by
common judgment dismissed the appeal and affirmed the
sentence. 'A question arose before this Court whether the
accused persons had committed the offence under Section
292, IPC and the Court observed the said question would be
G depending on the finding, whether the novel is obscene or not.
A two-Judge Bench scanned the evidence on record in great
detail, for it was essential for the Court to evaluate the evidence
on record inasmuch as some of the witnesses had compared
H "'(1985) 4 sec 289
DEVIDAS RAMACHANDRA TULJAPURKAR v. 925
STATE OF MAHARASHTRA[DIPAK MISRA, J.]

the plot in the novel to that of the novel "Chokher Bali" one of A
the works of Ravindra Nath Tagore. Shri Budhadeo Bose, who
was a whole time writer and Chairman of Comparative
Literature of Jadavpur University for a number of years, was
cited as a witness on behalf of the accused. While facing the
cross-examination, when asked to cite example of a writing B
vividly describing a sexual act and sexual perversity, Shri Bose
answered that anyone who knows the works of Ravindra Nath
Tagore knows that for his whc, '.e life he was a great advocate
of social and sexual freedom. He referred to novel "Chokher
Bali" where Tagore described a love relationship between a c
young Hindu widow and a young man. He also referred to
'Ghare Baire' where a highly respected married woman falls
in love with her husband's friend. The witness also cited
Tagore's another novel "Chaturanga" where an actual sexual
0
act has been described in a very poetic and moving language.
The said witness deposed that the novel has great social and
moral value.

49. The Court proceeded to deal with many other
witnesses at length and the view expressed by the Chief E
Presidency Magistrate and the learned Single Judge. We
notice that this Court copiously quoted from the order of the
learned Single Judge and thereafter proceeded to deal with
the contentions. The Court referred to Section 292 as it stood F
at the time of initiation of the proceeding, referred to the
decisions in Ranjit D. Udeshi (supra), Chandrakant
Kakodar(supra) and thereafter observed that the novel "Lady
Chatterley's Lover" which came to be condemned as obscene
in India by this Court, was held to be not obscene in England G
by the Central Criminal Court. The two-Judge Bench
reproduced a passage from Penguin Books Ltd. (supra).
The Coµrt referred to the obscenity test which rests with jury in
England but with judges in India. In that context, the Court
proceeded to state thus:- H
926 SUPREME COURT REPORTS [2015) 7 S.C.R.

A "In deciding the question of obscenity of any book, story
or article the court whose responsibility it is to adjudge
the question may, if the court considers it necessary, rely
to an extent on evidence and views of leading literary
personage, if available, for its own appreciation and
B 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
c take an overall view of the matter complained of as
obscene in the setting of the whole work, but the matter
charg~d as obscene must also be considered by itself
and separately to find out whether it is so gross and its
obsce,nity so pronounced that it is likely to deprave and
D
corrupt those whose minds are open to influence of this
sort and into whose hands the book is likely to fall. Though
· the court must consider the question objectively with an
open mind, yet in the matter of objective assessment the
E 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
F same to be obscene. It is possible that another Judge
with a different kind of outlook may not consider the same
book to be obscene on his objective assessment of the
very same book. The concept of obscenity is moulded to
a very great extent by the social outlook of the people who
G are generally expected to read the book. It is beyond
dispute that the concept of obscenity usually differs from
country to country depending on the standards of morality
of contemporary society in different countries. In our
opinion, in judging the question of obscenity, the Judge in
H the first place should try to place himself in the position of
DEVI DAS RAMACHANDRA TULJAPURKAR v. 927
STATE OF MAHARASHTRA [DIPAK MISRA, J,]

the author and from the viewpoint of the author the Judge A
should try to understand what is it that the author seeks to
convey and whether what the author conveys has any
literary and artistic value. The Judge should thereafter
place himself in the position of a reader of every age group
in whose hands the book is likely to fall and should try to B
appreciate what kind of possible influence. the book is
likely to have in the minds of the readers."
1
Thereafter, the Court proceeded to analyse the story of
the novel and noted thus:- C

"lfwe place ourselves in the position of readers, who are
likely to read this book, - and we must not forget that in
this class of readers there will probably be readers of both
sexes and of all ages between teenagers and the aged, o
- we feel that the readers as a class will read the book
with a sense of shock, and disgust and we do not think
that any reader on reading this book would become
depraved, debased and encouraged to lasciviousness. It
is quite possible that they come across such characters E
and such situations in life and have faced them or may
have to face them in life. On a very anxious consideration
.and after carefully applying our judicial mind in making an
objective assessment of the novel we do not think that it
can be said with any assurance that the novel is obscene F
merely because slang and unconventional words have
been used in the book in which there have been emphasis
on sex and description of female bodies and'there are
the narrations offeelings, thoughts and actions in vulgar
language. Some portions of the book may appear to be G
vulgar and readers of cultured and refined taste may feel
shocked and disgusted. Equally in some portions, the
words used and description given may not appear to be
in proper taste. In some places there may have been an H
'"
928 SUPREME COURT REPORTS [2015] 7 S.C.R.

A exhibition of bad taste leaving it to the readers of
experience and maturity to draw the necessary inference
but certainly not sufficient to bring home to the adolescents
any suggestion which is depraving or lascivious.''

B 50. The aforesaid analysis shows that the court has to
take an overall view of the matter; that there has to be an
objective assessment and the Judge must in the first place
put himself in the position of the author and, thereafter, in the
position of reader of every class and must eliminate the
C subjective element or personal preference; a novel cannot be
called obscene usually because of slang and unconventional
words in it; the court has to see that the writing is of such that it
cannot bring home to the adolescences any suggestion which
is depraving or lascivious and that the concept of obscenity
D usually differs from country to country depending on the
standards of morality of contemporary society in different
countries.

51. In Director General, Directorate General of
E Doordarshan and others v. Anand Patwardhan and
another61, the respondent had produced film titled Father, Son
and Holy War and had submitted the same to the Doordarshan
for telecast, but the Doordarshan refused to telecast. the
documentary film despite handing over a copy of U-matic
F certificate. He preferred a writ petition before the Bombay High
Court against the refusal by Doordarshan to telecast the
documentary film which was disposed by the Division Bench
by directing Doordarshan to take a decision on the application
within a period of six weeks. A Selection Committee was
G constituted and it declined the prayer of the applicant on the
foundation that it depicted the rise of Hindu fundamentalism
and male chauvinism without giving any solution how it could
be checked and it portrayed violence and hatred. The decision
H " (2006) a sec 433
DEVI DAS RAMACHANDRA TULJAPURKAR v. 929
STATE OF MAHARASHTRA[DIPAK MISRA, J.]

of Select Committee was communicated to the respondent A
who challenged the same in the High Court of Bombay which
directed the Doordarshan to telecast the documentary film
within the period of six weeks in the evening slot. The same
being challenged in a special leave petition, this court directed
for constitution of a new committee in accordance with the B
Guidelines of Doordarshan to consider the proposal of the
respondent. The committee constituted in pursuance of order
of this court observed that the film has a secular message
relevant to our times and our society, however the film contains
scenes and speeches which can influence negative passions C
and therefore the committee would like a larger committee to
see the film and form an opinion before it is open to public
viewing. Therefore, the Prasar Bharti Board previewed the
documentary film and formed opinion that its production quality D
was unsatisfactory and its telecast would be violative of the
policy of Doordarshan. The Court placing reliance on K.A.
Abbas (supra) and other authorities did not accept the stand
of the Doordarshan and dismissed the appeal.

52. lnAjayGoswamiv. Unionoflndiaandothers52 the E
petitioner agitated that the grievance of freedom of speech
and expression enjoyed by the newspaper industry is not
keeping balance with the protection of children from harmful
and disturbing material. The further prayer made was to F
command the authorities to strike a reasonable balance
between the fundamental right of freedom of speech and
exp~ession enjoyed by the press and the duties of the
Government, being signatory of the United Nations Convention
on the Rights of Child, 1989 and Universal Declaration of G
Human Rights, to protect the vulnerable minor from abuse,
exploitation and harmful effects of such expression. The further
prayer was the authorities concerned should provide for

02
c2001) 1 sec 143 H
930 SUPREME COURT REPORTS [2015] 7 S.C.R.

A classification or introduction of a regulatory system for
facilitating climate of reciprocal tolerance which should include
an acceptance of other people's rights to express and receive
certain ideas and actions; and accepting that other people
have the right not to be exposed against their will to one's
B expression of ideas and actions. The first question that the
court posed "is the material in newspaper really harmful for
the minors". In that context, the court observed that the moral
value should not be allowed to be sacrificed in the guise of
social change or cultural assimilation. The court then posed
C whether the minors have got any independent right enforceable
under Article 32 of the Constitution. In the course of discussion,
the court referred to earlier authorities pronounced by this court,
referred to Section 13 (2) of the Press Council Act 1978,
Section 292 of the IPC and Section 4 and 6 of the Indecent
0
Representation of Women (Prohibition) Act, 1986 (for short
'the 1986 Act') and thereafter proceeded to deal with test of
obscenity and in that context observed as follows:-

"67. In judging as to whether a particular work is obscene,
E regard must be had to contemporary mores and national
standards. While the Supreme Court in India held Lady
Chatterley's Lover to be obscene, in England the jury
acquitted the publishers finding that the publication did
not fall foul of the obscenity test. This was heralded as a
F
turning point in the fight for literary freedom in UK. Perhaps
"community mores and standards" played a part in the
Indian Supreme Court taking a different view from the
English jury. The test has become somewhat outdated in
G 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."

After so stating the court reproduced a passage from
H Samresh Bose (supra) and also a passage from K.A. Abbas
DEVI DAS RAMACHANDRA TULJAPURKAR v. 931
STATE OF MAHARASHTRA[DIPAK MISRA, J.]

(supra) and eventually held that:- A

"76. 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 to freedom B
of speech and expression to every citizen. This right will
encompass an individual's take on any issue. However,
this right is not absolute, if such speech and expression is
immensely gross and will badly violate the standards of
morality of a society. Therefore, any expression is subject C
to reasonable restriction. Freedom of expression has
contributed much to the development and well-being of
our free society.

77. This right conferred by the Constitution has triggered o
various issues. One of the most controversial issues is
balancing the need to protect society against the potential
harm that may flow from obscene material, and the need
to ensure respect for freedom of expression and to
preserve a free flow of information and ideas." E

Andagain:-

"79. We are also of the view that a culture of "responsible
leading" should be inculcated among the readers of any F
news article. No news item should be viewed or read in
isolation. It is necessary that a publication must be judged
as a whole and news items, advertisements or passages
should not be read without the accompanying message
that is purported to be conveyed to the public. Also the G
members of the public and readers should not look for
meanings in a picture or written article, which are not
conceived to be conveyed through the picture or the news
item.
H
80. We observe that, as decided by the U.S. Supreme
932 SUPREME COURT REPORTS [2015] 7 S.C.R.

A Court in United States v. Playboy Entertainment Group,
lnc. 53 that,

"in order for the State ... to justify prohibition of a particular
expression of opinion, it must be able to show that its action
B was caused by something more than a mere desire to
avoid the discomfort and unpleasantness that always
accompany an unpopular viewpoint".

Therefore, in our view, in the present matter, the petitioner
c has failed to establish his case clearly. The petitioner only
states that the pictures and the news items that are
published by Respondents 3 and 4 "leave much for the
thoughts of minors"."

D The aforesaid decision, as it appears to us, lays down
the guarantee given under the Constitution on the one hand
pertaining to right to freedom of speech and expression to
every citizen and the right of an individual expressing his views
on any issue and simultaneously the observance of the right is
E not absolute if such speech and expression is immensely gross
and will badly violate standards of morality of a society and
hence, any expression is subject to reasonable restriction.

53. At this juncture, we may refer to the pronouncement in
F Bobby Art International v. Om Pal Singh Hoon and
Others54, popularly known as "Bandit Queen case", because
the film dealt with the life of Phoolan Devi and it was based on
a true story. The appellant had approached this Court assailing
the order passed by the Division Bench of the High Court of
G Delhi in Letters Patent Appeal affirming the judgment of the
learned Single Judge, who had quashed the certificate granted
to the film and directed the Censor Board to consider the grant
of 'A' Certificate after certain excisions and modifications in
03
529 us 803 : 120 set 1878 : 146 L Ed 2d 865 c20ooi
H .. (1996) 4 sec 1
DEVI DAS RAMACHANDRA TULJAPURKAR v. 933
STATE OF MAHARASHTRA[DIPAK MISRA, J.]

accordance with the order that has been passed by the Court. A
The Court referred in extenso to the authorities in K.A. Abbas
(supra), Raj Kapoor(supra), Samresh Bose (supra), State
of Bihar v. Shai/aba/a Devi55 , narrated the story of the film
which is a serious and sad story of a village born female child
becoming a dreaded dacoit. The Court observed that an B
innocent woman had turned into a vicious criminal because
lust and brutality had affected her psyche. The Court referred
to the various levels of the film accusing the members of the
society who had tormented her and driven her to become a
dreaded dacoit filled with the desire to avenge. The Court C
expressed that in the light of the said story, the individual
scenes are to be viewed. Thereafter, the Court ruled that:-

"First, the scene where she is humiliated, stripped naked,
paraded, made to draw water from the well, within the circle D
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 E
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 F
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 G
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
55 AIR 1952 SC 329
H
934 SUPREME COURT REPORTS [2015] 7 S.C.R.

A 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
B 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."

C The decision rendered in the said case requires to be
appropriately appreciated. It is seemly to notice that the Court
has gone by the true live incidents, the sincerity in depiction by
the film maker, the necessity for such depiction and the
emotions that are likely to be invoked. Emphasis was on the
D central theme of suffering. It has also taken note of the fact that
sex had not been glorified in the film. It has also been observed
that a few swearwords, the like of which can be heard everyday
in every city, town and village street, would not tempt any adult
to use them because they are used in this film.
E
54. In this context, the learned senior counsel has
commended us to a two-Judge Bench decision in Ramesh s/
o Chhote Lal Dalal v. Union of India and others56 wherein
the Court declined to interfere to issue a writ in the nature of
F prohibition or any other order restraining Doordarshan and the
producer Govind Nihlani from telecasting or screening the serial
titled "Tamas". The Court referred to the view of Vivian Bose,
J. as he then was in the Nagpur High Court in the case of
Bhagwati Charan Shukla v. Provincial Government57 and
G K.A. Abbas (supra), Raj Kapoor(supra) and observed thus:-

"........the potency of the motion picture is as much for good

'"(1988) 1 sec 668
H 57
AIR 1947 Nag 1
DEVI DAS RAMACHANDRA TULJAPURKAR v. 935
STATE OF MAHARASHTRA[DIPAK MISRA, J.]

as for evil. If some scenes of violence, some nuances of A
expression or some events in the film can stir up certain
. feelings in the spectator, an equally deep strong, lasting
and beneficial impression can be conveyed by scenes
revealing the machinations of selfish interests, scenes
depicting mutual respect and tolerance, scenes showing B
comradeship, help and kindness which transcend the
barriers of religion. Unfortunately. modern developments
both in the field of cinema as well as in the field of national
and international politics have rendered it inevitable for
people to face the realities of internecine conflicts. inter C
alia. in the name of religion. Even contemporary news
bulletins very often carry scenes of pitched battle or
violence. What is necessary sometimes is to penetrate
behind the scenes and analyse the causes of such
0
conflicts. The attempt of the author in this film is to draw a
les~on from our country's past history, expose the motives
of persons who operate behind the scenes to generate
and foment conflicts and to emphasise the desire of
persons to live in amity and the need for them to rise above E
religious barriers and treat one another with kindness,
sympathy and affection. It is possible only for a motion
picture to convey such a message in depth and if it is able
to do this, it will be an achievement of great social value."
F
(Emphasis supplied)

55. In Gandhi Smaraka Samithi, v. Kanuri Jagadish
Prasac/'6 , the appellant filed a complaint against the publication
of a novel titled "Kamotsav", written by accused no.3 therein,
published in a weekly, namely, Andhra Jyothi. The novel G
showed two characters in nude one over the other in a
bathroom. The allegation was that the characters of the novel
would undermine the social values and the cultural heritage of
58
[(1993) 2 APLJ 91 (SN)] H
936 SUPREME COURT REPORTS [2015) 7 S.C.R.

A the society and the moral values of the individuals. The accused
faced trial under Section 292 and 293 IPC as well as under
Section 6 and 7 of the 1986Act, but it ended in an acquittal. In
the appeal preferred by the complainant assailing the judgment
of acquittal, the learned Single Judge referred to the meaning
B of "obscene", dwelt upon the theme projected by the author
relating to the present day society and how members of the
high class society behave and how they indulge in free sex
and how they are addicted to drunkenness. The Court observed
C that the object of the writer is only to create some fear in the
minds of the readers. The Court opined that the portions
appearing on the pages, which was found objectionable by
the learned counsel for the appellants, if analysed in the context
of the theme of the novel, in the strict sense, may not answer
the definition of obscene. The Court in that context proceeded
0
to observe:-

"5 ....... In order that an article should be obscene, it must
have the tendency to corrupt the morals of those in whose
hands the article may fall. The idea as to what is deemed
E as obscene of course varies from age to age and from
region to region depending upon particular social
conditions prevailing. Anything calculated to inflame the
passions is 'obscene'. Anything distinctly calculated to
incite a reader to indulge in acts of indecency or immorality
F
is obscene. A book may be obscene although it contains
a single obscene passage. A picture of a woman in the
nude is not per se obscene. For the purpose of deciding
whether a picture is obscene or not, one has to consider
G to a great extent the surrounding circumstances, the
suggestive element in the picture and the person or
persons in whose hands it is likely to fall. It is the duty of
the Court to find out where there is any obscenity or
anything in the novel which will undermine or take away or
H influence the public in general and the readers in particular."
DEVIDAS RAMACHANDRA TULJAPURKAR v. 937
STATE OF MAHARASHTRA[DIPAK MISRA, J.)

56. The High Court referred to its decision in Promilla A
kapur v. Yash Pal Bhasin59 , wherein it has been observed
thus:-

"It is true that prostitution has been always looked down
upon with hatred throughout the ages by the society and B
particularly "sex" has been considered an ugly word and
any talk· about sex in our conservative society was
considered a taboo not many years ago but with this
country progressing materially and with the spread of
education and coming of western culture, the society has C
become more open. It is indeed obvious that the
phenomenon of call girls has peaked in our country
amongst the affluent section of the society. The society is
changing vastly with spiritual thinking taking a back seat
and there is nothing wrong if a sociologist makes a D
research on the subject of call girls in order to know the
reasons as to why and how the young girls fall in this
profession of call girls and what society could do in order
to eradicate or at least minimize the possibility of young
budding girls joining this flesh trade. As a whole the book E
appears to be a serious study done on the subject of call
girls. Mere fact that some sort of vulgar language has been
used in some portions of the book in describing the sexual
intercourse would not, in the overall setting of the book, F
be deemed to be obscene. If some portions of the book
are taken in isolation, those portions may have the effect
of giving lustful thoughts to some young adolescent minds
butfor that reason alone it would not be in the interests of
justice to declare this book as obscene." G

The High Court also referred to an earlier decision of the
said Court in B.K. Adarsh v. Union oflndia6°, wherein it was
511 1989 Cr.L.J. 1241
00
AIR 1990AP 100 H
938 SUPREME COURT REPORTS [2015) 7 S.C.R.

A observed that decency or indecency of a particular picture,
sequence or scene cannot depend upon the nature of the
subject matter, but the question is one of the manner of handling
of the subject-matter and sociological or ethical interest or
message which the film conveys to the reasonable man, and
B that the approach of the Court would be from the perspective
of social pathological phenomenon with a critical doctor
keeping the balance between the felt necessities of the time
and social consciousness of a progressive society eliminating
the evils and propagating for the cultural evolution literary taste
C and pursuit of happiness in social relations, national integration
and solidarity of the nation and the effect of the film thereon. In
the said case, it was also obs~rved that the sense of decency
or indecency have to be kept in view in adjudging whether the
motion picture would stand to the test of satisfying a reasonable
0
man in the society that it would not deprave or debase or corrupt
his moral standards or induce lewdness, lasciviousness or
lustful thoughts.

57. In S. Khushboo v. Kanniammal and another" the
E appellant, a well known actress had approached this court
seeking quashment of the criminal proceeding registered
against her for offences punishable under Sections 499, 500,
509 IPC and Sections 4 and 6 of the 1986Act. The controversy
F arose as India Today, a fortnightly magazine, had conducted a
-survey on the subject of sexual habits of people residing in the
bigger cities of India. One of the issues discussed as part of
the said survey was increasing incidence of pre-marital sex.
As a part of this exercise the magazine had gathered and
G published the views expressed by several individuals from
different segments of society, including those of the appellant.
In her personal opinion, she had mentioned about live-in

H •• c2010) s sec eoo
DEVIDAS RAMACHANDRA TULJAPURKAR v. 939
STATE OF MAHARASHTRA [DIPAK MISRA, J.]

relationships and called for the societal acceptance of the A
same. She had qualified her remarks by observing that girls
should ·take adequate precautions to prevent unwanted
pregnancies and transmission of venereal diseases.
Subsequent to the publication in India today Dhina Thanthi, a
Tamil daily carried a news item which first quoted the B
appellant's statement published in India Today and then opined
that it had created a sensation all over the State of Tamil Nadu.
The news item also reported a conversation between the
appellant and a correspondent of Dhina Thanthiwherein the
appellant had purportedly defended her views. However, soon C
after publication in Dhina Thanthi the appellant sent a legal
notice categorically denying that she had made the statement
as had been reproduced in Dhina Thanthi and required to
publish her objection prominently within three days. The
0
publication of the statements in India Today and Dhina Thanthi
drew criticism from some quarters and several persons and
organizations filed criminal complaints against the appellant.
The appellant approached the High Court for quashment of
the criminal proceeding but as the High Court declined to E
interfere, this court was moved in a special leave petition. The
court perused the complaints which revealed that most of the
allegations pertained to offences such as defamation,
obscenity, indecent representation of women and incitement
among others. While dealing with the section 292 IPC, the court F
heldthus:-
"24. Coming to the substance of the complaints, we fail to
see how the appellant's remarks amount to "obscenity" in
the context of Section 292 IPC. sub-section (1) of Section G
292 states that the publication of a book, pamphlet, paper,
writing, drawing, painting, representation, figure, etc. will
be deemed obscene, if-
• It is lascivious (i.e. expressing or causing sexual desire); H
940 SUPREME COURT REPORTS [2015] 7 S.C.R.

A or

•Appeals to the prurient interest (i.e. excessive interest in
sexual matters); or

• If its effect, or the effect of any one of the items, tends to
B
deprave and corrupt persons, who are likely to read, see,
or hear the matter contained in such materials.

In the past, authors as well as publishers of artistic and
literary works have been put to trial and punished under
c this section."

Thereafter, the court referred to the authorities in Ranjit
D. Udeshi (supra) and Samresh Bose (surpa) and
proceeded to observe:-
D
"45. Even though the constitutional freedom of speech and
expression is not absolute and can be subjected to
reasonable restrictions on grounds such as "decency and
morality" among others, we must lay stress on the need to
E tolerate unpopular views in the sociocultural space. The
Framers of our Constitution recognised the importance
of safeguarding this right since the free flow of opinions
and ideas is essential to sustain the collective life of the
citizenry. While an informed citizenry is a precondition for
F meaningful governance in the political sense, we must also
promote a culture of open dialogue when it comes to
societal attitudes.

46. Admittedly, the appellant's remarks did provoke a
G controversy since the acceptance of premarital sex and
live-in relationships is viewed by some as an attack on
the centrali.ty of marriage. While there can be no doubt
that in India, marriage is an important social institution,
we must also keep our minds open to the fact that there
H are certain individuals or groups who do not hold the same
DEVI DAS RAMACHANDRA TULJAPURKAR v. 941
STATE OF MAHARASHTRA [DIPAK MISRA, J.]

view. To be sure, there are some indigenous groups within A
our country wherein sexual relations outside the marital
setting are accepted as a normal occurrence. Even in the
societal mainstream, there are a significant number of
people who see nothing wrong in engaging in premarital
sex. Notions of social morality are inherently subjective B
and the criminal law cannot be used as a means to unduly
interfere with the domain of personal autonomy. Morality
and criminality are not coextensive.

47. In the present case, the substance of the controversy C
does not really touch on whether premarital sex is socially
acceptable. Instead, the real issue of concern is the
disproportionate response to the appellant's remarks. If
the complainants vehemently disagreed with the
appellant's views, then they should have contested her D
views through the news media or any other public platform.
The law should not be used in a manner that has chilling
effects on the "freedom of speech and expression".

xxx xxx xxx E
50. Thus, dissemination of news and views for popular
consumption is permissible under our constitutional
scheme. The different views are allowed to be expressed
by the proponents and opponents. A culture of responsible F
reading is to be inculcated amongst the prudent readers.
Morality and criminality are far from being coextensive.
An expression of opinion in favour of non-dogmatic and
non-conventional morality has to be tolerated as the same
cannot be a ground to penalise the author." G

The aforesaid authority, thus, emphasises on tha need for
tolerance of unpopular views in the socio-cultural space. It also
takes note of the fact that notions of social morality are
inherently subjective; and morality and criminality are not co- H
942 SUPREME COURT REPORTS [2015) 7 S.C.R.

A extensive. It is apt to note here that in the said case, the Court
has also held that by the statement of the appellant therein no
offence was committed. The Court recognised that free flow
of notions and ideas is essential to sustain the collective lives
of the citizenry.
B
58. Recently in Aveek Sarkar and another v. State of
West Bengal and others62 , the Court was dealing with the
fact situation where Boris Becker, a world renowned tennis
player, had posed nude with his dark-skinned fiancee by name
C Barbara Feltus, a film actress. Both of them spoke freely about
their engagement, their lives and future plans. The article
projected Boris Becker as a strident protester of the pernicious
practice of "Apartheid" and the purpose of the photograph was
also to signify that love champions over hatred. The article was
D published in the German magazine by name "Stem". "Sports
World'', a widely circulated magazine had reproduced the
photograph and the article as cover story. "Anandabazar
Patrika", a newspaper having wide circulation in Kolkata, also
published in the second page of the newspaper the photograph
E as it appeared in Sports World. A lawyer claiming to be a
regular reader of Sports World as well as Anandabazar Patrika
filed a complaint under Section 292 of IPC against the
appellants therein, the Editor, the Publisher and Printer of the
F newspaper and also against the Editor of Sports World, former
Captain of Indian Cricket Team, Late Mansoor Ali Khan
Pataudi. The learned Magistrate took cognizance and issued
summons under Section 292, IPC and also under Section 4 of
the 1986 Act. The appellants approached the High Court for
G quashing the criminal proceeding but the High Court declined
to exercise the jurisdiction under Section 482 CrPC. It was
contended before this Court that obscenity has to be judged
in the context of contemporary social mores, current socio-

H ., c2014) 4 sec 2s1
DEVIDAS RAMACHANDRA TULJAPURKAR v. 943
STATE OF MAHARASHTRA[DIPAK MISRA, J.]

moral attitude of the community and the prevalent norms of A
acceptability/susceptibility of the community, in relation to
matters in issue. Reliance was placed on the Constitution
Bench decision .in Ranjit D. Udeshi (supra) and
Chandrakant Kalyandas Kakodkar(supra). The two-Judge
Bench referred to the principles stated in the aforesaid two B
decisions and the principles stated in Samresh Bose (supra).
While quoting a passage from Samresh Bose (supra), the
Court observed that the view expressed therein was the
contemporary social standards in the year 1985. The Court
further observed that while judging a particular photograph, C
and the article of the newspaper as obscene in 2014, regard
must be had to the contemporary mores and the national
standards and not the standards of a group of susceptible or
sensitive persons. The Court referred to the pronouncement
0
in Hicklin (supra) the majority view in Brody v. R63, and the
pronouncement i11 R. v. Butler6' and opined thus:-

"23. We are also of the view that Hicklin test65 is not the
correct test to be applied to determine ''what is obscenity".
Section 292 of the Penal Code, of course, uses the E
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 F
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 the "Hicklin test" to determine what is G
"obscenity". A bare reading of sub-section (1) of Section
292, makes clear that a picture or article shall be deemed
63
1962 SCR 681 (Can SC)
6
(1992) 1 SCR 452 (Can SC)
'
65
(1868) LR 3 QB 360 H
944 SUPREME COURT REPORTS [2015] 7 S.C.R.

A to be obscene

(xlvi) if it is lascivious;

(ii) it appeals to the prurient interest; and
B (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
c of the exceptions contained in the section. A picture of a.
nude/semi-nude woman, as such, cannot per se be called
obscene unless it has the tendency to arouse the feeling
of or revealing an overt sexual desire. The picture should
be suggestive of deprave mind and designed to excite
D 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
E the obscenity has to be judged from the point of view of
an average person, by applying contemporary community
standards."

The Court also referred to Bobby Art International
F (supra), Ajay Goswami (supra) and held that applying the
community tolerance test, the photograph was not suggestive
of deprave minds and designed to excite sexual passion in
persons who are likely to look at them and see them. The Court
further proceeded to state that the photograph has no tendency
G to deprave or corrupt the minds of the people because 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 Court observed that Boris Becker himself
H in the article published in the German magazine, spoke of the
DEVI DAS RAMACHANDRA TULJAPURKAR v. 945
STATE OF MAHARASHTRA[DIPAK MISRA, J.]

racial discrimination prevalent in Germany and the article A
highlighted Boris Becker's protest against racism in Germany.
Proceeding further, the Court ruled that:-

"The message, the photograph wants to convey is that
the colour of skin matters little and love champions over B
colour. The 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 C
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 D
objectionable so as to initiate proceedings under Section
292 IPC or under Section 4 of the Indecent Representation
of Women (Prohibition)Act, 1986."

Thus, the aforesaid decision applies the "contemporary E
community standards test" and rules that the factum of
obscenity has to be judged from the point of view of an average
person.

59. Very recently, in Shreya Singhal v. Union of/ndia66 , F
a two-Judge Bench of this Court, while dealing with the concept
of obscenity, has held that:-

"45. This Court in Ranjit Udeshi (supra) took a rather
restrictive view of what would pass muster as not beirig G
obscene. The Court followed the test laid down in the old
English judgment in Hicklin's case which was whether the
tendency of the matter charged as obscene is to deprave

66 2015 (4) SCALE 1 H
946 SUPREME COURT REPORTS [2015] 7 S.C.R.

A and corrupt those whose minds are open to such immoral
influences and into who hands a publication of this sort
may fall. Great strides have been made since this decision
in UK, United States, as well as in our country. Thus, in
Director General of Doordarshan v. Anand Patwardhan67 ,
B this Court notice the law in the United States and said that
a material may be regarded as obscene if the average
person applying contemporary community standards would
find that the subject matter taken as a whole appeals to
the prurient interest and that taken as a whole it otherwise
c lacks serious literary artistic, political, educational or
scientific value (see para 31).

46. In a recent judgment of this Court, Aveek Sarkar
(supra), this Court referred to English, U.S. and Candadian
D judgments and moved away from the Hicklin test and
applied the contemporary community standard test."

From the development of law in this country, it is clear as
day that the prevalent test in praesenti is the conte[llporary
E community standards test.

60. We have referred to the concept of obscenity as has
been put forth by the learned senior counsel for the appellant,
the prevalent test in United Kingdom, United States of America
F and the test formulated by the European Courts. We have
extensively dealt with the test adopted in this country. On the
studied scrutiny and analysis of the judgments. there can be
no shadow of doubt that this Court has laid down various
guidelines from time to time and accepted the contemporary
G community standards test as the parameter and also observed
that the contemporary community standards test would vary
from time to time, for the perception, views, ideas and ideais
can never remain static. They have to move with time and

H •1 (2006) s sec 433
DEVIDAS RAMACHANDRA TULJAPURKAR v. 947
STATE OF MAHARASHTRA [DIPAK MISRA, J.]

development of culture. Be it noted, it has become more liberal A
with the passage of time. Though Mr. Gopal Subramanium,
learned senior counsel has emphasised on the comparables
test and in that context, has referred to the judgment passed
by the Kolkata High Court in Kavita Phumbhra (supra), we
notice, as far as the authorities of this Court are concerned, B
the Court has emphatically laid down that the test as
contemporary community standards test, and it would, of
course, depend upon the cultural, attitudinal and civilisational
change. There has also been stress on the modernity of
approach and, the artistic freedom, the progression of global C
ideas and the synchronisation of the same into the thinking of
the writers of the age. In Samresh Bose (supra), in 1985, the
Court analysed the theme of the novel and dwelt upon the
description in the various parts of the book and found that there
0
was no obscenity. In 2014, in Aveek Sarkar(supra), the Court
has observed that was the contemporary community standards
test in 1985 and there has been a change with the passage of
time. We respectfully concur with the said view and hold that
contemporary community standards test is the main criterion E
and it has to be appreciated on the foundation of modern
perception, regard being had to the criterion that develops the
literature. There can neither be stagnation of ideas nor there
can be staticity of ideals. The innovative minds can conceive
of many a thing and project them in different ways. As far as F
comparables test is concerned, the Court may sometimes have
referred to various books on literature of the foreign authors
and expressed the view that certain writings are not obscene,
but that is not the applicable test. It may at best reflect what the
community accepts. G

Right to Freedom of Speech and Expression under
the Constitution

61. Having stated about the test that is ·applicable to H
948 SUPREME COURT REPORTS [2015) 7 S.C.R.

A determine obscenity we are required to dwell upon the right to
freedom of speech and expression. The words, freedom of
speech and expression find place in the association words
"liberty of thought, expression, belief, faith and worship", which
form a part of the Preamble of the Constitution. Preamble has
B its own sanctity and the said concepts have been enshrined in
the Preamble.

62. First, we shall deal with the approach of this Court
pertaining to freedom of speech and expression. Article 19(1)
C (a) and 19(2) of the Constitution are reproduced below:

"19. Protection of certain rights regarding freedom of
speech etc. - (1 )All citizens shall have the right-

(a) to freedom of speech and expression;
D

(2) Nothing in sub clause (a) to clause (1) shall affect the
operation of any existing law, or prevent the State from
E making any law, insofar as such law imposes reasonable
restrictions on the exercise of the right conferred by the
said sub clause in the interests of the sovereignty and
integrity of India, the security of the State, friendly relations
with foreign States, public order, decency or morality or in
F relation to contempt of court, defamation or incitement to
an offence."

63. Learned senior counsel for the appellant has drawn
inspiration from the ConstituentAssembly Debates especially
G the amendment that was introduced by Prof. K.T. Shah. He
has reproduced the following excerpts from the Constituent
Assembly Debates:-

"...... my purpose in bringing forward this amendment is to
H point out that, if all the freedoms enumerated in this article
DEVI DAS RAMACHANDRA TULJAPURKAR v. 949
STATE OF MAHARASHTRA[DIPAK MISRA, J.]

are to be in accordance with only the provisions of this A
article, or are to be guaranteed subject to the provisions
of this article only, then they would amount more to a
negation of freedom than the promise or assurance of
freedom, because in everyone of these clauses the
exceptions are much more emphasised than the positive B
provision. In fact, what is given by one right hand seems
to be taken away by three or four or five left hands; and
therefore the article is rendered negatory in any opinion.

I am sure that was not the intention or meaning of the C
draftsmen who put in the other articles also. I suggest
therefore that instead of making it subject to the provisions
of this article, we should make it subject to the provisions
of this Constitution. That is to say, in this Constitution this
article will remain. Therefore if you want to insist upon D
these exceptions, the exceptions will also remain. But the
spirit of the Constitution, the ideal under which this
Constitution is based, will also come in, which I humbly
submit, would not be the case, ifyouemphasiseonlythis
article. If you say merely subject to the provisions of this E
article, then you very clearly emphasise and make it
necessary to read only this article by itself, which is more
restrictive than necessary.

... ..... .The freedoms are curtly enumerated in 5, 6 or 7 items F
in one sub-clause of the article. The exceptions are all
separately mentioned in separate sub-clauses. And their
scope is so widened that I do not know what cannot be
included as exception to these freedoms rather than the
rule. In fact, the freedoms guaranteed or assured by this G
article become so elusive that are would find it necessary
to have a microscope to discover where these freedoms
are, whenever it suits the State or the authorities running it
to deny them. I would, therefore, repeat that you should H
950 SUPREME COURT REPORTS [2015) 7 S.C.R.

A bring in the provisions of the whole Constitution, including
its preamble, and including all other articles and chapters
where the spirit of the Constitution should be more easily
and fully gathered than merely in this article, which, in my
judgment, runs counter to the spirit of the Constitution ....
B
I also suggest that it would not be enough to enumerate
these freedoms, and say the citizen shall have them. I
would like to add the words also that by this Constitution
these freedoms are guaranteed. That is to say, any
C exception which is made, unless justified by the spirit of
the Constitution, the Constitution as a whole and every
part of it included, would be a violation of the freedoms
guaranteed hereby.
D (December 1, 1948)"

64. It is true thatArticle 19(1)(a) has to be interpreted in a
manner by which the fundamental right to "freedom of speech
and expression" is nourished. Elaborating the concept, it is
E urged by Mr. Subramanium that when two interpretations of
Article 19(1 ){a), one a traditional or restrictive approach and
the other a modern/liberal approach are possible, the latter
should be adopted, for by adopting the said approach, the
fundamental right to freedom of speech and expression is
F guarded and any attempt to overreach the same is kept in
check.
65. Now, we shall refer to the Preamble as it uses the
words "liberty of thought and expression" In Kesavanada
G Bharti v. State of Kera/a and Others6 8 , emphasis has been
laid on the preamble of the Constitution and its objectives. Sikri,
C.J. in Kesavanada Bharti (supra) observed thus:-·

"15. I need hardly observe that I am not interpreting an
H .. (1973) 4 sec 225
DEVIDAS RAMACHANDRA TULJAPURKAR v. 951
STATE OF MAHARASHTRA[DIPAK MISRA, J.]

ordinary statute, but a Constitution which apart from setting A
up a machiner1 for Government, has a noble and grand
vision. The vision was put in words in the preamble and
.carried out in part by conferring fundamental rights on the
people. The vision was directed to be further carried out
by the applicatio;i qf directive principles." B

66. Shelat and Grover JJs in their judgment in the said
case ruled:-

"506. The Constitution-makers gave to the Preamble the c
pride of place. It embodied in a solemn form all the ideals
and aspirations for which the country had struggled during
the British regime and a Constitution was sought to be
enacted in accordance with the genius of the Indian
people. It certainly represented an amalgam of schemes D
and ideas adopted from the Constitutions of other
- countries. But the constant strain which runs throughout
each and every article of the Constitution is reflected in
the Preamble which could and can be made sacrosanct.
It is not without significance that the Preamble was passed E
only after draft articles of the Constitution had been
adopted with ·such modifications as were approved by the
Constituent Assembly. The Preamble was, therefore,
meant to embody in a very few and well-defined words
the key to the understanding of the Constitution. F

513. The history of the drafting and the ultimate adoption
of the Preamble shows- G

(1) that it did not "walk before the Constitution" as is said
about the Preamble to the United States Constitution;

(2) that it was adopted last as a part of the Constitution;
H
952 SUPREME COURT REPORTS [2015] 7 S.C.R.

A (3) that the principles embodied in it were taken mainly
from the Objectives Resolution;

(4) the Drafting Committee felt, it should incorporate in it
"the essential features of the new State";
B
(5) that it embodied the fundamental concept of
sovereignty being in the people."

67. Interpreting Article 19(1)(a) of the Constitution, the test
is always to see the said Article in aid of the Preambular
C objectives which form a part of the basic structure of the
Constitution. Article 19(1 )(a) is intrinsically linked with the
Preambular objectives and it is the duty of the Court to
progressively realise the values of the Constitution. In Maneka
Gandhi v. Union of lndia69 , it has been held:-
0
"5 ........ It is indeed difficultto see on what principle we can
refuse to give its plain natural meaning to the expression
"personal liberty'' as used in Article 21 and read it in a
narrow and restricted sense so as to exclude those
E attributes of personal liberty which are specifically dealt
with in Article 19. We do not think that this would be a
correct way of interpreting the provisions of the
Constitution conferring fundamental rights. The attempt of
the Court should be to expand the reach and ambit of the
F
fundamental rights rather than attenuate their meaning and
content by a process of judicial construction. The
wavelength for comprehending the scope and ambit of
the fundamental rights has been set by this Court in R. C.
G Coopercase 70 and our approach in the interpretation of
the fundamental rights must now be in tune with this
wavelength. We may point out even at the cost of repetition

•• <1978) 1 sec 248
H 10
(1970) 2 sec 298
DEVI DAS RAMACHANDRA TULJAPURKAR v. 953
STATE OF MAHARASHTRA[DIPAK MISRA, J.]

that this Court has said in so many terms in RC. Cooper A
case that each freedom has different dimensions and
there may be overlapping between different fundamental
rights and therefore it is not a valid argument to say that
the expression "personal liberty" in Article 21 must be so
interpreted as to avoid overlapping between that article B
and Article 19(1). The expression "personal liberty" in
Article 21 is of the widest amplitude and it covers a variety
of rights which go to constitute the personal liberty of man
and some of them have .... "
c
Krishna Iyer, J. in his concurring opinion has observed
thus:-

"96. A thorny problem debated recurrently at the bar, turning
on Article 19, demands some juristic response although D
avoidance of overlap persuades me to drop all other
questions canvassed before us. The Gopalan verdict, with
the cocooning of Article 22 into a self-contained code, has
suffered suppression at the hands of R. C. Cooper(supra).
By way of aside, the fluctuating fortunes of fundamental E
rights, when the proletarist and the proprietarist have
asserted them in Court, partially provoke sociological
research and hesitantly project the Cardozo thesis of sub-
conscious forces in judicial noesis when the cycloramic
review starts from Gopalan, moves on to In re Kera/a F
Education Bilf 1 and then on to All-India Bank Employees'
Association72 , next to Sakal Papers73 , crowning in Cooper
and followed by Bennett Coleman74 and Shambhu Nath
Sarkar5 • Be that as it may, the law is now settled, as I
apprehend it, that no article in Part Ill is an island but part G
11
1959 SCR 995
72
' 1962 3 SCR 269
73 (1962) 3 SCR 842

14
(1973) 2 SCR 757
1
• (1973) 1 sec 856
H
'

954 SUPREME COURT REPORTS [2015] 7 S.C.R.

A of a continent, and the conspectus of the whole part gives
the direction and correction needed for interpretation of
these basic provisions. Man is not dissectible into
separate limbs and, likewise, cardinal rights in an organic
constitution, which make man human have a synthesis.
B The proposition is indubitable that Article 21 does not, in
a given situation, exclude Article 19 if both rights are
breached.

97. We may switch to Article 19 very briefly and travel along
c another street for a while. Is freedom of extra-territorial
travel to assure which is the primary office of an Indian
passport, a facet of the freedom of speech and
expression, of profession or vocation under Article 19?
My total consensus with Shri Justice Bhagwati jettisons
D from this judgment the profusion of precedents and the
mosaic of many points and confines me to some
fundamentals confusion on which, with all the clarity on
details, may mar the conclusion. It is a salutary thought
that the summit Court should not interpret constitutional
E rights enshrined in Part Ill to choke its life-breath or chill its
elan vital by processes of legalism, overruling the enduring
values burning in the bosoms of those who won our
independence and drew up our founding document. We
must also remember that when this Court lays down the
F
law, not ad hoc tunes but essential notes, not temporary
tumult but transcendental truth, must guide the judicial
process in translating into authoritative notation and mood
music of the Constitution."
G Beg, J. has stated that:-

"202. Articles dealing with different fundamental rights
contained in Part Ill of the Constitution do not represent
entirely separate streams of rights which do not mingle at
H many points. They are all parts of an integrated scheme
DEVI DAS RAMACHANDRA TULJAPURKAR v. 955
STATE OF MAHARASHTRA[DIPAK MISRA, J.)

in the Constitution Their waters must mix to constitute that A
grand flow of unimpeded and impartial Justice (social,
economic and political), Freedom (not Only of thought,
expression, belief, faith and worship, but also of
association, movement, vocation or occupation as well
as of acquisition and possession of reasonable property), B
of Equality (of status and of opportunity, which imply
absence of unreasonable or unfair discrimination between
individuals, groups, and classes) and of Fraternity
(assuring dignity of the individual and the unity of the
nation), which our Constitution visualizes. Isolation of C
various aspects of human freedom, for purposes of their
protection, is neither realistic nor beneficial but would
defeat the very objects of such protection."
68. In Maneka Gandhi (supra), while interpreting Article D
19(1 )(a), it has been ruled that what the said Article does is to
declare freedom of speech and expression as a fundamental
right and to protect it against State action. The State cannot
bind any legislative or executive action interfere with the
exercise of the said right, except insofar as permissible under E
Article 19(2).

69. In Gajanan VisheshwarBirjurv. Union oflndia76 ,
this Court was dealing with the order of confiscation of books
containing the Marxist literature. The Court referring to the F
supremacy of the fundamental right to freedom of speech and
expression, observed that the Constitution of India permits a
free trade in ideas and ideologies and guarantees freedom of
thought and expression, the only limitation being a law in terms
of Clause (2) of Article 19 of the Constitution. The Court further G
observed that thought control is alien to our constitutional
scheme and referred to the observations of Robert Jackson,
J. in American Communications Association v. Douds77
76 (1994) 5 sec 550
77 339 us 382
H
956 SUPREME COURT REPORTS [2015] 7 S.C.R.

A with reference to the US Constitution wherein it was stated
thatthought control is a copyright of totalitarianism, and it was
unacceptable. The Court finally stated that it is not the function
of our Government to keep the citizen from falling into error; it
is the function of the citizen to keep the Government from falling
B into error.
• ·1 ~

70. More important and relevantly lucid are observations
in Sahara India Real Estate Corpn. Ltd. v. SEBf8 , where
while dealing with the freedom of speech, the Constitution
C Bench held:-

"Freedom of expression is one of the most cherished
values of a free democratic society. It is indispensable to
the operation of a democratic society whose basic
D postulate is that the Government shall be based on the
consent of the governed. But, such a consent implies not
only that the consent shall be free but also that it shall be
·grounded on adequate information, discussion and aided
by the widest possible dissemination of information and
E opinions from diverse and antagonistic sources. Freedom
of expression which includes freedom of the press has a
capacious content and is not restricted to expression of
thoughts and ideas which are accepted and acceptable
. but also to those which offend or shock any section of the
F population. It also includes the right to receive information
and ideas of all kinds from different sources. In essence,
the freedom of expression embodies the right to know.
However, under our Constitution no right in Part Ill is
absolute. Freedom of expression is not an absolute value
G under our Constitution; It must not be forgotten that no single
value, no matter exalted, can bear the full burden of
upholding a democratic system of government. Underlying
our constitutional system are a number of important values,
H " c2012) 10 sec so3
DEVI DAS RAMACHANDRA TULJAPURKAR v. 957
STATE OF MAHARASHTRA[DIPAK MISRA, J.]

all of which help to guarantee our liberties, but in ways A
which sometimes conflict. Under our Constitution,
probably, no values are absolute. All important values,
therefore, must be qualified and balanced against other
important, and often competing, values. This process of
definition, qualification and balancing is as much required B
with respect to the value of freedom of expression as it is
for other values."

71. In State of Karnataka v. Associated Management
of English Medium Primary & Secondary Schools79 , while C
dealing with the freedom under Article 19(1 )(a), the Constitution
Bench opined:-

"36. The word "freedom" in Article 19 of the Constitution
means absence Jf control by the State and Article 19( 1) D
provides that the State will not impose controls on the
citizen in the matters mentioned in sub-clauses (a), (b),
(c), (d), (e) and (g) of Article 19(1) exceptthose specified
in clauses (2) to (6) of Article 19 of the Constitution. In all
matters specified in clause (1) of Article 19, the citizen E
has therefore the liberty to choose, subject only to
restrictions in clauses (2) to (6) of Article 19. One of the
reasons for giving this liberty to the citizens is contained
in the famous essay "On Liberty" by John Stuart Mill. He
writes: F

" ... Secondly, the principle requires liberty of tastes and
pursuits; of framing the plan of our life to suit our own
character; of doing as we like, subject to such
consequences as may follow: without impediment from G
our fellow creatures, so long as what we do does not harm
them, even though they should think our conduct foolish,
perverse, or wrong."
1
• (2014 > g sec 485 H
958 SUPREME COURT REPORTS [2015] 7 S.C.R.

A According to Mill, therefore, each individual must in certain
matters be left alone to frame the plan of his life to suit his
own character and to do as he likes without any
impediment and even if he decides to act foolishly in such
matters, society or on its behalf the State should not
B interfere with the choice of the individual. Harold J. Laski,
who was not prepared to accept Mill's attempts to define
the limits of State interference, was also of the opinion
that in some matters the individual must have the freedom
of choice. To quote a passage from A Grammar of Politics
c by Harold J. Laski:

"... My freedoms are avenues of choice through which I
may, as I deem fit, construct for myself my own course of
conduct. And the freedoms I must possess to enjoy a
D general liberty are those which, in their sum, will constitute
the path through which my best self is capable of
attainment. That is not to say it will be attained. It is to say
only that I alone can make that best self, and that without
those freedoms I have not the means of manufacture at
E my disposal."

37. Freedom or choice in the matter of speech and
expression is absolutely necessary for an individual to
develop his personality in his own way and this is one
F reason, if not the only reason, why under Article 19(1 )(a)
of the Constitution every citizen has been guaranteed the
right to freedom of speech and expression.
38. This Court has from time to time expanded the scope
G of the right to freedom of speech and expression
guaranteed under Article 19( 1)(a) of the Constitution by
consistently adopting a very liberal interpretation. In
Romesh Thappar v. State of Madras80 , this Court held

H 80
AIR 1950 SC 124
DEVIDAS RAMACHANDRA TULJAPURKAR v. 959
STATE OF MAHARASHTRA [DIPAK MISRA, J.]

that freedom of speech and expression includes freedom A
of propagation of ideas which is ensured by freedom of
circulation and in Saka/ Papers (P) Ltd. v. Union of Jndia81 ,
this Court held that freedom of speech and expression
carries with it the right to publish and circulate one's ideas,
opinions and views. In Bennett Coleman & Co. v. Union B
of lndia§l, this Court also held that the freedom of press
means right of citizens to speak, publish and express their
views as well as right of people to read and in Odyssey
Communications (P) Ltd. v. Lokvidayan Sanghatana 83 ,
this Court has further held that freedom of speech and c
expression includes the right of citizens to exhibit films on
Doordarshan."

72. Presently, we shall refer to the decision in Shreya
\
Singha/ (supra). Mr. Gopal Subramanium, while giving D
immense emphasis on the said authority, has submitted that
while striking down Section 66A of the IT Act, 2000 as
unconstitutional, the Court has really elevated the concept of
freedom of speech and expression to a great height. We have
already referred to certain passages of the said decision in E
the context of test for obscenity. Mr. Nariman, learned senior
counsel would submit that the said decision has to be read in
its context and as it relates to the field of internet and in the
present case, we are concerned with the obscenity test, as
F
understood by this Court in the context of Section 292 IPC. In
the said case, the two-Judge Bench, while dealing with the
content of ~reed om of expression, opined that:-

"There are three concepts which are fundamental in
understanding the reach of this most basic of human rights. G
The first is discussion, the second is advocacy, and the
81
AIR 1962 SC 305
., (1972 2 sec 788
83 (1988) 3 sec 410 H
960 SUPREME COURT REPORTS [2015] 7 S.C.R.

A third is incitement. Mere discussion or even advocacy of
a particular cause howsoever unpopular is at the heart of
Article 19(1 )(a). It is only when such discussion or
advocacy reaches the level of incitement that Article
19(1)(a). It is only when such discussion or advocacy
B reaches the level of incitement that Article 19(2) kicks in.
It is at this stage that a law may be made curtailing the
speech or expression that leads inexorably to or tends to
cause public disorder or tends to cause or tends to affect
the sovereignty & integrity or India, the security of the State,
c friendly relations with foreign States, etc. Why it is important
to have these three concepts in mind is because most of
the arguments of both petitioners and respondents tended
to veer around the expression "public order."
I
D And again:-

"47. What has been said with regard to public order and
incitement to an offence equally applies here. Section 66A
cannot possibly be said to create an offence which falls
E within the expression 'decency' or 'morality' in that what
may be grossly offensive or annoying under the Section
need not be obscene at all - in fact the word 'obscene' is
conspicuous by its absence in Section 66A."

F We have referred to the said passages only to understand
that the two-Judge Bench has succinctly put what freedom of
speech and expression mean. The Court has referred to
certain judgments which we have already referred in that
context. The Court was really not dealing with the obscenity
G test within the ambit and sweep of Section 292 IPC. The Court
has opined that Section 66A of the IT Act, 2000 violates Article
19(1)(a) of the Constitution. There can be no doubt that there
has been elevation of the concept in a different way, but it cannot
form the foundation or base to sustain the argument of Mr.
H Subramanium that the freedom has to be given absolute and
DEVI DAS RAMACHANDRA TULJAPURKAR v. 961
STATE OF MAHARASHTRA[DIPAK MISRA, J.]

uncurtailed expanse without any boundaries of exceptions. We A
accept the proposition that there should not be narrow or -
condensed interpretation of freedom of speech and
expression, but that does not mean that there cannot be any
limit. Constriction is permissible under Article 19(2) of the
Constitution and in Ranjit D. Udeshi (supra), the Constitution B
Bench has upheld the constitutional validity of Section 292 IPC.

Mahatma Gandhi as perceived by this Court and
certain authors
c
73. To appreciate the prevalent test in this country as
regards obscenity and the conceptual definition of poetry and
what is really understood by poetic license, we have to reflect
on the question that had been framed by this Court. We have
used the expression 'historically respected personalities'. It is o
true that the Constitution does not recognize any personality
whether historically or otherwise as far as Article 19(1 )(a) is
concerned. But it would be incorrect to subrriit that if the concept
of personality test is applied, a new ingredient to Section 292
IPC would be added which is in the realm of legislature and E
this Court should refrain from doing the same. At this juncture,
it is seemly to state that Section 292 IPC uses the term
'obscene'. While dealing with the facet of obscenity, this Court
has evolved the test. The test evolved by this Court, which holds
the field today is the 'contemporary community standards test'. F
That does not really create an offence or add an ingredient to
the offence as conceived by the legislature under Section 292
IPC. It is a test thought of by this Court to judge obscenity. The
said test has been evolved by conceptual hermeneutics. We
appreciate the anxiety of Mr. Subramanium, learned senior G
counsel appearing for the appellant, and we are also absolutely
conscious that this Court cannot create an offence which is
not there nor can it add an ingredient to it.
74. Keeping this in view, we shall now proceed to deal H
962 SUPREME COURT REPORTS [2015] 7 S.C.R.

A with the 'historically respected persons'. Though the question
uses the words 'htstorically respected persons', contextually,
in this case it would mean Mahatma Gandhi, the Father of the
Nation. Though some may think it is patently manifest or known
that Mahatma Gandhi is the Father of the Nation and the most
B respected historical personality in this country, yet we are
obliged to reflect on Mahatma Gandhi to know how this Court
has spoken about Mahatma Gandhi and how others have
perceived the life of 'Mahatma Gandhi' and 'Gandhian thought'.
Mr. Subramanium, learned senior counsel, in the course of
C hearing has referred to certain passages from the text books
which are critical of Mahatma Gandhi, his life and his thoughts.
We shall refer to the books at a subsequent stage.

75. As mentioned earlier, we think at this stage we should
D refer to certain decisions of this Court where Mahatma Gandhi
or Gandhian thought have been reflected.

76. In Kesavananda Bharati (supra), S.N. Dwivedi, J,
has stated that the Constitution bears the imprint of the
E philosophy of our National Movement for Swaraj. The Court
also stated that Mahatma Gandhi gave to the Movement the
philosophy of "Ahimsa". Two essential elements of his Ahimsa
are: (1) equality; and (2) absence of the desire of self-
acquisition (Aparigrah) and he declared that "to live above the
F means befitting a poor country is to live on stolen food."

And he further observed that:-

"The philosophy of Mahatma Gandhi was rooted in our
G ancient tradition; the philosophy of Jawaharlal Nehru was
influenced by modern progressive thinking. But the
common denominator in their philosophies was
humanism. The humanism of the Western Enlightenment
comprehended mere political equality; the humanism of
H Mahatma Gandhi and Jawaharlal Nehru was instinct with
DEVI DAS RAMACHANDRA TULJAPURKAR v. 963
STATE OF MAHARASHTRA[DIPAK MISRA, J.]

social and economic equality. The former mc:de man a A
political citizen; the latter aims to make him a 'perfect'
citizen. This new humanist philosophy became the catalyst
of the National Movement for Swaraj."

77. In K. Karunakaran v. T. V. Eachara Warrier, 84 this B
Court observed that lies are resorted to by the high and the
low being faced with inconvenient situations which require a
Mahatma Gandhi to own up Himalayan blunders and unfold
unpleasant truths truthfully.
c
78. In Maneka Gandhi (supra), this Court observed
thus:-

"22 .... These rights representthe basic values of a civilised
society and the constitution-makers declared that they
0
shall be given a place of pride in the Constitution and
elevated to the status of fundamental rights. The long years
of the freedom struggle inspired by the dynamic
spiritualism of Mahatma Gandhi and in fact the entire
cultural and spiritual history of India formed the background E
against which these rights were enacted and consequently,
these rights were conceived by the constitution-makers
not in a narrow limited sense but in their widest sweep,
for the aim and objective was to build a new social order
where man will not be a mere plaything in the hands of the F
State or a few privileged persons but there will be full scope
and opportunity for him to achieve the maximum
development of his personality and the dignity of the
individual will be fully assured."
G
79. In Bangalore Water Supply & Sewerage Board v.
A. Rajappa85 , this Court observed:-

.. (1978) 1 sec rn
•• (1978) 2 sec 213 H
964 SUPREME COURT REPORTS [2015] 7 S.C.R.

A "There is no degrading touch about "industry", especially
in the light of Mahatma Gandhi's dictum that 'Work is
Worship". Indeed the colonial system of education, which
divorced book learning from manual work and practical
training, has been responsible for the calamities in that
B field. For that very reason, Gandhiji and Dr Zakir Hussain
propagated basic education which used work as modus
operand us for teaching. We have hardly any hesitation in
regarding education as an industry."

c 80. In Minerva Mills Ltd. v. Union of lndia86 , the Court
noted thus:-

"53 ..... The emergence of Mahatma Gandhi on the political
scene gave to the freedom movement a new dimension:
D it ceased to be merely anti-British; it became a movement
for the acquisition of rights of liberty for the Indian
Community.

103 ....... Mahatma Gandhi, the father of the nation, said
E in his inimitable style in words, full of poignancy:

"Economic equality is the master key to non-violent
independence. A non-violent system of government is an
impossibility so long as the wide gulf between the rich
and the hungry millions persists. The contrast between the
F
palaces of New Delhi and the miserable hovels of the poor
labouring class cannot last one day in a free India in which
the poor will enjoy the same power as the rich in the land.
A violent and bloody revolution is a certainty one day,
G unless there is voluntary abdication of riches and the power
that riches give and sharing them for common good."

81. In Akhil Bharatiya Soshit Karamchari Sangh

H .. (1980) 3 sec a2s
DEVIDAS RAMACHANDRA TULJAPURKAR v. 965
STATE OF MAHARASHTRA[DIPAK MISRA, J.]

(Railway) v. Union of/ndia87 , there is an observation which A
reads thus:-

"13.... There was the Everest presence of Mahatma
Gandhi, the Father of the Nation, who staked his life for
the harijan cause. There was Baba SahebAmbedkar- B
a mahar by birth and fighter to his last breath against the
himalayan injustice to the harijan fellow millions
stigmatised by their genetic handicap - who was the
Chairman of the drafting committee of the Constituent
Assembly." C

82. In People's Union for Democratic Rights v. Union
oflndia88 , it has been stated:-

"Mahatma Gandhi once said to Gurudev Tagore, "I have
0
had the pain of watching birds, who for want of strength
could not be coaxed even into a flutter of their wings. The
human bird under the Indian sky gets up weaker than when
he pretended to retire. For millions it is an eternal vigil or
an eternal trance." E
83. In Bachan Singh v. State of Punjab89 , the Court
noted:-

"22 .... Mahatma Gandhi also wrote to the same effect in
his simple but inimitable style: F

"Destruction. of individuals can never be a virtuous act.
The evil-doers cannot be done to death. Today there is a
movement afoot for the abolition of capital punishment and
attempts are being made to convert prisons into hospitals G
as if they are persons suffering from a disease.""

• (1981) 1 sec 246
1

.. (1982) 3 sec 235
•• (1982) 3 sec 24 H
966 SUPREME COURT REPORTS [2015) 7S.C.R.

A 84. In Kai/ash Sankar v. Maya Dev1"9°, (1984) 2 SCC
91, the observation is:-

"4.As Mahatma Gandhi, father of the nation, said "India
lives in villages" and so do the backward classes, hence
B the primary task was to take constructive steps in order to
boost up these classes by giving them adequate
concessions, opportunities, facilities and representation
in the services and, last but not the least, in the electorate
so that their voices and views, grievances and needs in
C the Parliament and State legislatures in the country may
be heard, felt and fulfilled." ·

85. In Pradeep Jain v. Union oflndia91 , emphasising on
formation of one nation, the Court observed:-
D
"This concept of one nation took firm roots in the minds
and hearts of the people during the struggle for
independence under the leadership of Mahatma Gandhi.
He has rightly been called the Father of the Nation
E because it was he who awakened in the people of this
country a sense of national consciousness and instilled in
them a high sense of patriotism without which it is not
possible to build a country into nationhood."

86. In Indra Sawhney v. Union of lndia92 and ors. the
F Court observed that it is Mahatma Gandhi, who infused secular
spirit amongst the people of India.
87. In S.R. Bommai and others v. Union of India and
others93 speaking on statesmanship, the larger Bench noted:-
G
00
(1984) 2 sec 91
., (1984) 3 sec 654
supp. 3 sec 211
• 2 (1992)

H "(1994) 3 sec 1
DEVIDAS RAMACHANDRA TULJAPURKAR v. 967
STATE OF MAHARASHTRA[DIPAK MISRA, J.]

"24. Mahatma Gandhi and other leaders of modern times A
advocated to maintain national unity and integrity. It was
with the weapons of secularism and non-violence that
Mahatma Gandhi fought the battle for independence
against the mightly colonial rulers. As early as 1908,
Gandhiji wrote in Hind Swaraj: B

India cannot cease to be one nation, because people
belonging.to different religions live in it. ... ln no part of the
world are on nationality and on religion synonymous terms;
nor has it ever been so in India." C

88. In T.N. Godavarman Thirumulpad v. Union of
lndia 94 , while making a reference to fundamental duties, the
Court found that:-

"35. The Father of the Nation Mahatma Gandhi has also D
taught us the same principle and all those concepts find
their place in Article 51-A(g) as well."

89. In Dalip Singh Vs. State of U.P. and Ors. 95 , while
discussing on values of life, the Court opined that Mahavir, E
Gautam Buddha and Mahatma Gandhi guided the people to
ingrain these values in their daily life. Truth constituted· an
integral Dart of justice delivery system which was in vogue in
pre-independence era and the people used to feel proud to F
tell truth in the courts irrespective of the consequences.

90. Apart from these authorities, there are so many other
decisions where the ·name of Mahatma Gandhi has been
referred to with reverence and elaborating on various facets
of life of Gandhi and Gandhian thought. There are also certain G
eminent persons who have referred to Mahatma Gandhi in their
speech and articles. Justice H.R. Khanna, in one of his lectures
.. c2012) 4 sec 362
••c2010) 2 sec 114 H
968 SUPREME COURT REPORTS [2015] 7 S.C.R.

A has spoken:-

"We, in India, were fortunate to have been led during the
struggle for Independence by one, who, apart from being
an astute political leader, was also a great moral crusader
B who has his place in history along with the Buddha and
Christ. Fro him, means were no less important than the
ends. There was in the personality of the Mahatma a
subtle, indescribable, magic touch, for all the different
persons who came in close contact with him were turned
C into men of gold, be it Nehru or Patel, Azad or Rajendra
Prasad, Rajaji or J.P. Narayan. Since the death of
Mahatma, except for observing his birthday as a national
holiday, we have remembered him in no better way than
by riding roughshod over the principles of truth and moral
D values that he propagated all his life."

91. Having referred to the decisions of this Court and also
a part of lecture, we think it condign to refer to certain books
on Mahatma Gandhi. Mr. Subramanium, learned senior counsel
E also referred to certain books indicating that there are many
critical passages about Mahatma Gandhi. The books referred
to by him are "Great Soul: Mahatma Gandhi and his struggle
lndia"96 and "Sex and Power''97 . In this regard we may also refer
to Mahatma Gandhi The Early Phase Vof. /98, Gandhian
F Constitution for Free lndia 99 , Gandhi's Philosophy of Law100,
Mahatma Gandhi1° 1, The Myth of the Mahatma 102, Gandhi
96 Lelyveld Joseph, Great Soul: Mahatma Gandhi and his struggle with India,

Harpr Collins, 2011: page
97
Banerjee Rita, Sex and Power: Defining History, Shaping Societies, Penguin,
G 2008; page 274
96 Pyarelal, Navajivan Publishing House, 1965
99 Shriman Narayan Agarwal, Kitabistan, 1946
100
v.s. Hegde, Concept Publishing Company, 1983
101 Sankar Ghose, Allied Publishers Limited, 1991
H 102
MMichael Edwardes, UBS Publishers' distributors Ltd., 1986
DEVIDAS RAMACHANDRA TULJAPURKAR v. 969
·sTATE OF MAHARASHTRA [DIPAK MISRA, J.]

Before lndia 103, In Search of Gandhi104, Gandhi's View of Legal A
Justice 105, Gandhi, Soldier of Non-Violence: An
lntroduction 106, Trial of Mr. Gandhi 107, Gandhi and Civil
Disobedience Movement 108, Ti/ak, Gandhi and Gita 109,
Studies in Modern Indian Political thought: Gandhi an
lnterpretation 110, Gandhi and the Partition of lndia 111, Gandhi B
in London 112, Mahatma Gandhi Contribution to Hinduism 113,
Life of Mahatma Gandhi114 , Moral and Political Thought of
Mahatma Gandhi115, Gandhi and Social Action Today116,
Gandhi: The Man and the Mahatma 117, Gandhi and Ideology
of Swadeshi118, Gandhi's Khadi: History of Contention and C
Conciliation 119, Mahatma Gandhi and Jawarhal Nehru: A
Historic Partnership Vol.1 (1916-1931) 120, Gandhi: Prisoner
of Hope 121 , Mahatma Gandhi and His Apostles 122, Gandhi
and Status of Women 123, Philosophy of Gandhi: A Study of
0
103
Ramachandra Guha, Penguin Books, 2013
10
• Richard Attenborough, B.I. Publications, 1982
10
• AjitAtri, Deep & Deep Publications Pvt. Ltd., 2007
106
Calvin Kytle, Seven Locks Press, 1983
107
Francis Watson, Macmillan and Co., 1969 E
108 S.R. Bakshi, Gitanjali Publishing House, 1985
10
• D .K. Gosa vi, Bharatiya Vidya Bhavan, 1983
110
O.P. Goyal, Kitab Mahal Pvt. Ltd., 1964
111 Sandhya Chaudhri, Sterling Publishers Pvt. Ltd., 1984
112 James D Hunt, Promilla & Co., 1978
113
F
K.K. Lal Karna, Classical PubUshing Co., 1981
114
Louis Fisher, Granada, 1982
115
Raghavan N. Iyer, Oxford University Press, 1973
118 Mery Kappen (Ed.), Sterling Publishers Pvt. Ltd., 1990
117
Rain Sharma, Rajan, 1985
· 118 S.R. Bakshi, Reliance Publishing House, 1987 G
119 Rahul Ramagundam, Orient Longman Pv1. Ltd., 2008
120 Madhu Limaye, B.R. Publishing Corporation, 1989
121 Judith M. Brown, Oxford University Press, 1990
122 Ved Mehta, Indian Book Company, 1977
123
S.R. Bakshi, Criterion Publications, 1987 H
970 SUPREME COURT REPORTS [2015] 7S.C.R.

A His Basic ldeas 124, Gandhi Naked Ambition125 , Meera and
the Mahatma 126, and The Men Who Killed Gandht1 27 .

92. Some of these books praise Gandhi, analyse
Gandhian thoughts, criticise Gandhian philosophy, express
B their dissent, disagree with his political quotient and also
comment on his views on "Brahamcharya". On reading of the
said books, one can safely say they are the views of the authors
in their own way and there is no compulsion to agree with the
personality or his thoughts or philosophy. We are reminded of
C what Voltaire said, "I do not agree with what you have to say,
but I'll defend to the death your right to say if' qr for that matter
what George Orwell said, "If liberty means anything at all, it
means the right to tell people what they do not want to heat''.

D 93. There can be no two opinions that one can express
his views freely about a historically respected personality
showing his disagreement, dissent, criticism, non-acceptance
or critical evaluation.

E 94. If the image of Mahatma Gandhi or the voice of
Mahatma Gandhi is used to communicate the feelings of
Gandhiji or his anguish or his agony about any situation, there
can be no difficulty. The issue in the instant case, whether in
the name of artistic freedom or critical thinking or generating
F the idea of creativity, a poet or a writer can put into the said
voice or image such language, which may be obscene. We
have already discussed at length about the concept of 'poetic
license' and 'artistic freedom'. There can be "art for art's sake"
which would include a poem for the sake of thought or
G expression or free speech and many a concept.

12
• Glyn Richards, Rupa & Co., 1991
125
Jad Adams, Quercus, 2010
12
• Sudhir Kakar, Yiking - Penguin, 2004
H 127 Manohar Malgonkar, Roli Books, 2008
DEVI DAS RAMACHANDRA TULJAPURKAR v. 971
STATE OF MAHARASHTRA[DIPAK MISRA, J.]

Concept of poetry A

95. We do not intend to say that a poem should conform
to the definition or description as many authors have thought
of. According to Dr. Samuel Johnson, "Poetry i~, 'metrical
composition'; it is 'the art of uniting pleasure with truth by calling B
imagination to the help of reason'; and its 'essence' is
'invention'."

96. Mill's point of view "poetry is, but the thought and words
in which emotion spontaneously embodies itself." Macaulay c
understands poetry as "we mean the art of employing words
in such a manner as to produce an illusion on the imagination,
the art of doing by means of words what the painter does by
means of colours" .128
D
97. Carlyle assumed that poetry is "we will call Musical
Thought". 129 Shelley states, "in a general sense may be defined
as the expression of the imagination". 130 Hazlitt defines poetry
as "it is the language of the imagination and the passions". 131

98. Leigh Hunt declares poetry as "the utterance of a E
passion for truth, beauty, and power, embodying and illustrating
its conceptions by imagination and fancy, and modulating its
language on the principle of variety in unity". 132

99. S.T. Coleridge's has expressed that poetry is the anti- F
thesis of science, having for its immediate object pleasure,
not truth. 133 German philosopher Hegel has thought that the
use of verse in a given piece of literature serves in itself to lift
12
• Essay on Milton
129
Heroes and Hero-Worship, Lecture iii G
130
Defence of Poetry
131
Lectures on the English Poets, i
132 Imagination and Fancy, i.

133
Lectures and Notes on Shakespeare and other English Poets, and
Biographia Literaria, chapter xiv. H
972 SUPREME COURT REPORTS [2015] 7 S.C.R.

A the mankind into a world quite different from that of prose or
everyday life. Emerson says that the great poets are judged
by the frame of mind they induce. 134 There is no difficulty in
saying that the definition or understanding of concept of poetry
of any high authority can be ignored. That is the freedom of the
B poet.

The poem in issue

100. Presently, to the poem in question we are referring
c to the same solely for the purpose of adjudging whether the
order of framing of charge under Section 292 IPC is
sustainable, regard being had to the law pertaining to charge,
and whether the High Court has correctly applied the principle.
The High Court has categorically opined that there is a prima
o facie case for proceeding against the accused under Section
292 IPC. It is submitted by Mr. Subramanium, learned senior
counsel appearing for the appellant that the poem does not
use obscene words and it does not come within the ambit and
sweep of Section 292 IPC and the poet has expressed himself
E as he has a right to express his own thoughts in words. It is his
further submission that the poem actually expresses the
prevalent situation in certain arenas and the agony and anguish
expressed by the poet through Gandhi and thus, the poem is
surrealistic presentation. That apart, contends Mr.
F Subramanium, that the poem, as one reads as a whole, would
show the image or the surrealistic voice of Mahatma Gandhi,
is reflectible. Learned senior counsel would submit that apart
from two to three stanzas, all other stanzas of the poem uses
Gandhi, which may not have anything to do with the name of
G Mahatma Gandhi.

101. Mr. Nariman, learned amicus curiae, per contra,
would submit that the poem refers singularly and exclusively to
Mahatma Gandhi in every stanza. The learned friend of the
H Court has referred to certain stanzas of the poem. We do not
DEVI DAS RAMACHANDRA TULJAPURKAR v. 973
STATE OF MAHARASHTRA [DIPAK MISRA, J.]

intend to reproduce them in their original form. But we shall A
reproduce them with some self-caution. Some of them are:-

"(i) I met Gandhi on the road
u:
in the name of "
~- ~~-
B
xxxx xxxx xxxx
"(ii) I met Gandhi

In Tagore's Geetanjali, c
He was writing a poem

On - - -"
)()()()( )()()()(
)()()()(
D
"(iii) When I rr.3t Gandhi

On earth which is the property of the common man

Playing husband-and-wife games with orphan children, E

He said==

Nidharmi Bharat ka kya pahchan?
" F

We have left the spaces blank as we have not thought it
appropriate to reproduce the words. There are other stanzas
also which have their own reflection. Whether the poem has
any other layer of meaning or not, cannot be gone into at the G
time of framing of charge. The author in his own understanding
and through the process of trial can put his stand and stance
before the learned trial Judge.

102. Submission of Mr. Nariman, learned amicus curiae H
974 SUPREME COURT REPORTS [2015] 7 S.C.R.

A is that the words that have been used in various stanzas of the
poem, if they are spoken in the voice of an ordinary man or by
any other person, it may not come under the ambit and sweep
of Section 292 IPC, butthe momentthere is established identity
pertainin~ to Mahatma Gandhi, the character of the words
B change and they assume the position of obscenity. To put it
differently, the poem might net have been obscene otherwise
had the name of Mahatma Gandhi, a highly respected histC?rical
personality of this country, would not have been used. Mr.
C Nariman would emphatically submit that the poem distinctly
refers to Mahatma Gandhi because the sketch of Gandhiji is
there figuratively across the entire page in his customary garb,
stature and gait. According to him, the poem does not subserve
any artistic purpose and is loathsome and vulgar arid hence, it
comes within the sweep of Section 292 IPC. The learned
0
amicus curiae would submit that the use of the name of
·Mahatma Gandhi enhances the conceptual perception of
obscenity as is understood by this Court.

103. Mr. Subramanium would submit that the free speech
E is a guaranteed human right and it is in fact a transcendental
right. The recognition of freedom of thought and expression
cannot be pigeon-holed by a narrow tailored test. The principle
pertaining to the freedom of speech has to be interpreted on
F an extremely broad canvas and under no circumstances, any
historical personality can cause an impediment in the same.
It is urged that the Constitution of India is an impersonalised
documenrand poetry which encourages fearlessness of
expression, cannot be restricted because of use of name of
G a personality. Learned senior counsel has further submitted
that freedom to offend is also a part of freedom of speech.
Poetry, which is a great liberator, submits Mr. Subramanium,
can be composed through a merely voice explaining plurality
of thought. He would submit the instant poem is one where
H there is "transference of consciousness" Ithat exposes the
DEVI DAS RAMACHANDRA TULJAPURKAR v. 975
STATE OF MAHARASHTRA[DIPAK MISRA, J.]

social hypocrisy and it cannot be perceived with a conditioned A
mind.

104. The principle that has been put forth by Mr.
Subramanium can be broadly accepted, but w~ ~o not intend
to express any opinion that freedom of speech gives liberty to B
offend. As far as the use of the name of historicaUy respected
personality is concerned, learned senior counsel, while
submitting so, is making an endeavour to put the freedom of
speech on the pedestal of an absolute concept. Freedom of
speech and expression has to be given a broad canvas, but it C
has to have inherent limitations which are permissible within
the constitutional parameters. We have already opined that
freedom of speech and expression as enshrined under Article
19(1 )(a) of the Constitution is not absolute in view of Article
19(2) of the Constitution. We reiterate the said right is a right D
of great value and transcends and with the passage of time
and growth of culture, it has to pave the path of ascendancy,
but it cannot be put in the compartment of absoluteness. There
is constitutional li!llitation attached to it. In the context of
obscenity, the provision enshrined under Section 292 IPC has E
its room to play. We have already opined that by bringing in a
historically respected personality to the arena of Section 292
IPC, neither a new offence is created nor an ingredient is
incorporated. The judicially evolved test, that is, "contemporary F
community standards test" is a parameter for adjudging
obscenity, and in that context, the words used or spoken by a
historically respected personality as a medium of
communication through a poem or write-up or other form of
artistic work gets signification. That makes the test applicable G
in a greater degree. To understand the same;ira concrete
example can be given. A playwright conceives a plot where
Mahatma Gandhi, Vishwakavi Rabindra Nath Tagore, Sardar
Vallabh Bhai Patel meet in heaven and they engage
themselves in the discussion of their activities what they had H
976 SUPREME COURT REPORTS [2015] 7 S.C.R.

A undertaken when they lived in their human frame. In course of
discussion, their conversation enters into the area of egoism,
thereafter slowly graduates into the sphere of megalomania
and eventually they start abusing each other and in the abuses
they use obscene words. The question would be whether the
B dramatist can contend that he has used them as symbolic
voices to echo the idea of human fallacy and it's a creation of
his imagination; and creativity has no limitation and, therefore,
there is no obscenity. But, there is a pregnant one, the author·
has chosen historically respected persons as the medium to
C put into their mouth obscene words and, ergo, the creativity
melts into insignificance and obscenity merges into surface
even if he had chosen a "target domain". He in his approach
has travelled into the field of perversity and moved away from
the permissible "target domain", for in the context the historically
0
respected personality matters.

Conclusion

105. When the name of Mahatma Gandhi is alluded or
E used as a symbol, speaking or using obscene words, the.
concept of "degree" comes in. To elaborate, the "contemporary
community standards test" becomes applicable with more
vigour, in a greater degree and in an accentuated manner.
What can otherwise pass of the contemporary community
F standards test for use of the same language, it would not be
so, if the name of Mahatma Gandhi is used as a symbol or
allusion or surrealistic voice to put words or to show him doing
such acts which are obscene. While so concluding, we leave
it to the poet to put his defense at the trial explaining the manner
G he has used the words and in what context. We only opine that
view of the High Court pertaining to the framing of charge under
Section 292 IPC cannot be flawed.

106. Coming to the case put forth by the appellant-
H publisher, it is noticeable that he had published the poem in
DEVI DAS RAMACHANDRA TULJAPURKAR v. 977
STATE OF MAHARASHTRA [DIPAK MISRA, J.]

question, which had already been recited during the Akhil A
Bhartiya Sahithya Sammelan atAmba Jogai in 1980, and was
earlier published on 2.10.1986 by others. The appellant has
published the poem only in 1994. But immediately after coming
to know about the reactions of certain employees, he tendered
unconditional apology in the next issue of the 'Bulletin'. Once B
he has tendered the unconditional apology even before the
inception of the proceedings and almost more than two
decades have passed, we are inclined to quash the charge
framed against him as well as the printer. We are disposed to
quash the charge against the printer, as it is submitted that he C
had printed as desired by the publisher. Hence, they stand
discharged. However, we repeat at the cost of repetition that
we have not expressed any opinion as to the act on the part of
the author of the poem, who is co-accused in the case, and
0
facing trial before the Magistrate in respect of the offence
punishable under Section 292 IPC. It shall be open for him to
raise all the pleas in defence, as available to him under the
law. At this juncture, we are obliged to mention that Mr.
Nariman, learned friend of the Court also in course of hearing, E
had submitted that the appellant having offered unconditional
apology immediately and regard being had to the passage of
time, he along with the printer should be discharged.

107. Before we part with the case, we must candidly
F
express our unreserved and uninhibited appreciation for the
distinguished assistance rendered by Mr. Fali S. Nariman,
learned amicus curiae. We also record our appreciation for
the sustained endeavour put forth by Mr. Subramanium, learned
senior counsel for the appellant, for it has been of immense G
value in rendering the judgment.

108. Cor.sequently, ther appeal stands disposed of in
above terms.
Kalpana K. Tripathy Appeal disposed of. H