The case of Ranjit D. Udeshi v. State of Maharashtra, is important to understand the meaning of obscenity in Indian criminal law and also this case serves as an important example beyond Section 292 and how to interpret the whole code judicially. From the past many years, we have been seeing that the meaning of obscenity is the same but it needs to change with the current scenario. This case also sheds light on the clauses which are silent on mens rea. So, Section 292 of the Indian Penal Code declares obscenity to be of a criminal nature but does not define the meaning of obscenity and the element of criminality but leave it to the judicial agents of the country to interpret them. Over the years, judicial agents have shed light on the meaning of obscenity depending on the community and society.
In the Supreme Court of India
|Name of the Case||Ranjit D. Udeshi v. State of Maharashtra|
|Citation||1965 AIR 881, 1965 SCR (1) 65|
|Year of the Case||1964|
|Appellant||Ranjit D. Udeshi|
|Respondent||State of Maharashtra|
|Bench||Gajendragadkar, P.B. (Cj), Wanchoo, K.N., Hidayatullah, M., Shah, J.C., Ayyangar, N. Rajagopala|
|Court||Supreme Court of India|
|Relevant Section||Section 292 of IPC|
Background of the case
Section 292 of the Indian Penal Code says that selling, or letting to hire, or distributing books, magazines, or written material that are obscene is an offence. It also includes the advertisement of such products is a punishable offence. In Indian law, the word ‘obscene’ is not given a meaning and creates fiction whether it is artistic or obscene which has to be interpreted by courts. Cockburn, C.J., has defined the meaning of obscenity in the Hicklin test which is widely acceptable. He defined obscenity as “whether the tendency of the matter is to deprave and corrupt those whose minds are open to such immoral influences.” The Supreme Court accepted the Hicklin test in Ranjit D. Udeshi v. State of Maharashtra. This case also helped in proving that Section 292 helps in establishing a balance with Article 19(1)(a) and also in maintaining public morality and decency.
A bookstore owner, Ranjit D. Udeshi with three other partners of the firm were prosecuted under Section 292 of IPC for selling copies of Lady Chatterley’s Lover, by DH Lawrence because it was considered obscene. Ranjit D. Udeshi argued that this charge violated his right to freedom of speech and expression given under Article 19(1)(a) of the Indian Constitution, and also that book is not obscene if we read as a whole.
There were two broad issues raised by the appellant:
Firstly, they considered Section 292 as void because it puts restrictions on the fundamental right of speech and expression guaranteed by Article 19(1)(a) of the Indian Constitution. Secondly, the appellant argued that if the book was read thoroughly then it proves that it is not obscene and the courts should use the modified meaning of obscenity. They also contended that the intention was not to corrupt the general interest of the public.
The Supreme Court responded that Section 292 is not void because of Article 19(2). It does not fall outside the limits or restrictions of Article 19(1)(a). They argued that when there is spread of thoughts, feelings, and information of open intrigue or benefit, the way to deal with the issue may become diverse on the grounds that then the enthusiasm of society may tilt the scales with the expectation of complimentary discourse and articulation. With respect to the second argument, the respondent argued that the word ‘obscenity’ is not defined in Indian law. So, it was on the courts to differentiate between artistic and obscene.
The court examined the test of obscenity which was employed to determine that only sex and nudity do not fall into obscenity. It stated the definition of obscenity as per the Hicklin test and according to the definition under Section 292 does not fall within the restriction under Article 19(1)(a). The accused again argued and asked for Community Standard Test in which obscenity was tested by giving an average person material and see if he/she considers it obscene. In any case, the court expressed that the Hicklin test can not be disposed of. As per the Hicklin test, a work ought to be seen as a whole, yet the obscene issue ought to be considered independently to check whether it disregards the test. Respondent argued that the bookseller’s knowledge of obscenity is not to be considered and it is not required to establish it.
In Aveek Sarkar v. State of Bengal a newspaper magazine posted an article with a picture of Boris Becker, posing nude with his dark-skinned fiancé, Barbara Felltus, covering her breasts with his hands. The picture was taken by Feltus’s father. A complaint was filed against the newspaper under Section 292 of the Indian Penal Code (IPC). In this case, the Apex Court overruled Rajnit Udeshi Case. This time, they used the ‘Community Standard Test’ and replaced it with Hicklin Test. Under this test, it was examined that items will be evaluated on the basis of circumstances. The Hicklin test was discarded by the court stating that in the 19th century, it is necessary to interpret the meaning of obscenity in the contemporary style.
This case was a gradual movement towards acknowledging a change in society. This case also turned the judgments of Samaresh Bose v Amal Mitra (1985) and S Khushboo v Kanniammal (2010).
In Maqbool Fida Hussain v. Raj Kumar Pandey, a 2008 case, private complainants claimed that M.F. Hussain’s painting of ‘Bharat Mata’ appeared to be obscene under Section 292 and also Section 500 of the IPC. The court upheld that the figure of ‘Mother India’ is not enough to constitute Section 292. The Court did not use the Hicklin Test to judge the level of obscenity.
The Supreme Court rejected the issue raised by the appellant that the prosecution should prove that the person who is selling the object of obscene should know about it before the appellant is proved guilty. The Apex Court passed this judgement stating that Section 292(2) does not mention terms like negligently or knowingly. The court also held that mens rea is not part of strict liability in this case. Regarding whether the material is obscene or not, the court mentioned that when obscenity and art are mixed, art should dominate and obscenity should not put art in its shadow. It held that nudity and sex cannot be the only criteria to declare something as obscene.
A judgment on profanity depends as much upon the mores of the individuals as upon the person. When there is a proliferation of thoughts, assessments and data of open intrigue or benefits, the way to deal with the issue may become distinctive on the grounds that then the enthusiasm of society may tilt the scale with the expectation of complimentary discourse and articulation. It is in this way that books on clinical science with intimate illustrations and photos are categorised as obscene. However, these are not viewed as vulgar. Yet similar representations and photos gathered in book structures without clinical content would surely be viewed as foul. Section 292 of the Indian Penal Code addresses vulgarity in this sense and cannot subsequently be supposed to be invalid taking into account the second provision of Article 19.
The Court dismissed the third argument at the start itself stating that the person has no need to demonstrate that the individual who sells or keeps any foul article realizes that it is profane, before he can be pronounced liable. The subsection of Section 292 does not make information on obscenity an element of the offense. The prosecution need not demonstrate something which the law does not trouble it with. Something substantially less than the real information should consequently suffice. The trouble of acquiring legitimate proof of the guilty party’s information on the obscenity of the book has made the risk severe.
Under Indian law, non-appearance of such information might be taken in moderation. However, it does not remove the case from the sub-section. This brings on the inquiry of whether the book and so forth can in those conditions be viewed as revolting. It is important to tolerate it as a primary concern that this may raise decent points of the cases or attempts by society to suppress obscenity and to permit free speech. Laying one true test is not possible as everyone has their own thoughts and opinions. There will be various opinions on whether the material is obscene or not.
The Indian Penal Code does not characterize or clearly define the term “obscene” and this delicate assignment of how to recognize what is aesthetic and that which is foul must be performed by Courts. The test to be developed should clearly be of an overall character yet it must concede to a flexible application from case to case by showing a line of the boundary not really correct but rather adequate. It should establish unmistakably what constitutes as obscene and that which isn’t. The inclusion of sex and nakedness in craftsmanship and writing cannot be viewed as proof of foulness without something else. A large portion of the book-shops would close and the other half would bargain in only good and strict books.