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The Elephant in the Court Room: Analysis of Ranjit D Udeshi Case

In 1965, D.H. Lawrence's Lady Chatterley's Lover was dragged to the court and stripped bare on the question of obscenity in Ranjit D Udeshi v. State of Maharashtra 1965 AIR 881, 1965 SCR (1) 65. The court adjudged the novel as obscene and along with it upheld the applicability of Hicklin's Test in deciding issues related to the same. This article engages with the court's line of argument and points out three things that court should have considered in the case.

First, the incapacity of the Hicklin's test in deciding the question of obscenity by considering the development around this during 1960s around the world. Second, obscenity is a matter of perspective, especially in matters of arts and courts should be lenient in deciding this and only considered such materials to be obscene which are blatant pornography. Third, the evolution of jurisprudence of offence of obscenity in India. It shall elaborate on this arguments by using judgements rendered in other international and Indian cases.

In the dark Begum Jaan's quilt was once again swaying like an elephant. These lines are from the short story Lihaaf written by Urdu writer Ismat Chugtai in the 20th Century. She spearheaded the movement of female sexuality and femininity. These lines also came under attack and were objected to by many as immoral and indecent. We might have honoured her with Padma Sri and called her work a classic but the question that needs to be actively investigated is whether 21st century morality around obscenity continues to reflect the standards of the time when Ismat Chugtai and Saadat Hasan Manto had to face trial for their fearless engagement with the human body and its desires. The journey from Ranjit D. Udeshi v. State of Maharashtra to the trial of M.F. Hussain represents an interesting journey of the court's way of looking at the elephant under Begum Jaan's quilt.

It is a completely acceptable argument that the constitution of India guarantees fundamental right of Freedom of expression under article 19(1) with reasonable restriction. One among the restrictions that have been enforced to circumscribe the article's ambit is restriction in the interest of public decency and morality. The court rooms have, on numerous occasions, resounded with discussions about the decency of a text and decided what is moral for the society.

One such book is Lady Chatterley's Lover written by D.H. Lawrence which was first published in 1928. The book now considered to be a classic, faced an obscenity trial and was once banned inter alia by United States, Canada, Australia, India, Japan and United Kingdom. The book explores sexual relations between a working class man who is a game keeper and an upper class woman, who is married.

The uproar was caused by the fact that the protagonist of the book, Lady Chatterley, was married and at the time the sanctity and protection of the institution of marriage was above individual liberty. The book explored the sexuality of a married woman neglected by her paralysed husband with explicit description of nudity and sex (including anal sex). This was illegal at the time and considered taboo in many societies.

The book was under question in India in the year 1965 and was adjudged for whether it was and attempt to revive in the human consciousness an awareness of savage sensuality, a sensuality with the power to free men and women from the enslaving sterility of modern technology and intellectualism.[1] or no social gain[2]. The institution of marriage continues to hold utmost salience but courts in various parts of the world are evolving to accommodate personal liberty in marriage.

One such accommodation is irretrievable breakdown of marriage[3] in India. But it continues to be crucial to examine the judicial engagement with ideas such as public morality, sexuality and nudity. Ranjit D Udesh V. State of Maharashtra4 becomes an important point of investigation to examine these ideas.

Fact in Issue
The case of Ranjit D Udesh V. State of Maharashtra5 was to decide the fate of the book in 1965. In this case, the appellant and four others were partners of a firm which owned a bookstall in Bombay. They were prosecuted under section 292 of Indian Penal Code on account of possession of Lady Chatterley's Lover (unexpurgated edition) for the purpose of sale. The magistrate found them guilty as the book was obscene as per section 192 of Indian Penal Code. The decision was appealed in High Court but the decision was against him. By virtue of special leave, the decision of High court was appealed in Supreme Court.

The major contention in the case that was raised by the appellant was:
  1. that s. 292 of the Indian Penal Code is void as being an impermissible and vague restriction on the freedom of speech and expression guaranteed by Art. 19 (1) (a) and is not saved by cl. (2) of the same article;
  2. that even if s. 292, Indian Penal Code, be valid, the book is not obscene if the section is properly construed and the book as a whole is considered; and
  3. that the possession or sale to be punishable under the section must be with the intention to corrupt the public in general and the purchasers in particular.

Overview of the judgment
Rejecting the argument number third raised by appellant that the prosecution must prove that the person who sells or keeps for sale any obscene object knows that it is obscene, before he can be adjudged guilty. The apex court said that sub section 1 of section 292 of IPC does not open with or contains whoever knowingly or negligently etc. Which means this section makes the offence strict and thus the concept of mens rea is not a matter of question.

Further, with regard to the question that whether the material in question is obscene or not, the court explored the definition of obscenity. The court begins with treating with sex and nudity in art and literature cannot be regarded as evidence of obscenity without something more. It is not necessary that the angels and saints of Michaelangelo should be made to wear breeches before they can be viewed.

However, court further says that:
where obscenity and art are mixed, art must so preponderate as to throw the obscenity into a shadow or the obscenity so trivial and insignificant that it can have no effect and may be overlooked. Though the court upheld the Hicklin test6 but with some modification that due diligence should be given to our community mores and standards.

Question was raised over validity of Hicklin test7, the court emphasised that it still holds the trust of court and further expressed on the test for obscenity.
In our opinion, the test to adopt in our country (regard being had to our community mores) is that obscenity without a preponderating social purpose or profit cannot have the constitutional protection of free speech and expression, and obscenity is treating with sex in a manner appealing to the carnal side of human nature, or having that tendency.

The court discussed the personal life of the writer D.H. Lawrence, who had died nearly three decades before this case. So as to conclude that the book's zeal was misplaced because it was born of hate and banning the book would be no loss to society if there was a message in the book. Which in contrary was sold around 3 million within three months by Penguin when the case R v. Penguin8 Books was settled in 1961.

Respondent's Arguments
The prosecution examined two witness in order to prove the requirement laid down in section 292 of Indian Penal Code. However, supreme court stressed that the question whether the material is obscene or not doesn't depend on oral evidence but the offending novel and the portions which are the subject of the charge must be judged by the' court in the light of s. 292, Indian- Penal Code, and the provisions of the Constitution. Thus, it was at the discretion of the court to judge whether the book comes under the purview of obscenity or not.

In this landmark case, the substantial discussion was regarding obscenity and it's meaning. Even though it is not defined anywhere in Indian Penal Code it is made punishable under Section 292. The appellant contended that work of art is not necessarily obscene if it treats with sex even with nudity and should be viewed as a whole, and its artistic or literary merits should be weighed against the so-called obscenity, the context in which the obscenity occurs and the purpose it seeks to serve. Further, the test adopted by High Court and lower court in order to identify whether the book was obscene or not was based on Queeen V. Hicklin9. Which we will discuss later in the article.

The court discussed the meaning of obscenity and in their consideration, it meant offensive to modesty or decency; lewd, filthy and repulsive. It is crucial to note that the word obscene is vague, by itself, and was defined by other vague words such as modesty, decency, lewd, filthy or repulsive. Contrastingly, the apex court considered the word obscene as not vague.

The ambiguity or uncertainty of the definition of obscenity can be established from the fact that the sense of understanding of the apex court judges regarding obscenity seemed to derive from a certain Colonial morality and knowledge production. The Supreme Court established that a book on medical science which contains numerous intimate illustrations and photographs is not obscene but in a sense immodest. Reflecting an inherent bias in favour of scientific knowledge production the opinion would render even the Indian sculptures of Khajuraho, erotic imagery in Bubhneshwar, Puri and Konark to be obscene.

The Hicklin Test
As was discussed earlier, due to a lack of codified definition of obscenity, the Hicklin test was majorly employed by Indian courts to decide the extent of obscenity of any text— literature, film, artwork etc. The Test was given by Cockburn C.J. in Queen v. Hicklin4. Cockburn,. C.J. laid down the test of obscenity in the following words

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 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.

The reliability of the test was also considered in the case based on two landmark cases Samuel Roth V. U.S.A10 and Regina V. Martin Secker10. In Samuel Roth case the court discarded the Hicklin test and introduced the rationale of contemporary community as a whole in respect to the material in question.

The court in this case accepted that every case related to obscenity should be judged based on its merit. Contrary to this significant move, it continued to rely on the age old test. The Hicklin Test which was given up by United States in Roth V. United States11 and by Canada in Brodi V. The Queen12, considered the explicit description of sex in the book from the perspective of an average and not a depraved member of the society.
It is highly unlikely that the court can assure that explicit nude depiction of human body in biology books wouldn't be indecent and moral for the individual in consideration. After all, the classroom is always filled with giggles, squirming and awkward silences during the discussion of reproduction, a chapter that is often read with the relish in the comfort and privacy of the student's own house, such is the fascination.

The Indian Penal Code has made room to declare obscenity as an offence by Obscene Publications Act (7 of 1925) and given effect to Article 1 of the International' Convention for the suppression of or traffic in obscene publications signed by India in 1923 at Geneva. But morality for public is not something which can be discussed and decided upon in an International Convention that dictates its parameters for the whole world.

It is derived and evolves differently in different societies and communities. Moreover, the morality of any society or community is not only intangible but is also extremely fluid changing with circumstances and social codes of conduct. This makes it necessary to interrogate the decision by the esteemed judges of Supreme Court on upholding validity of the Hicklin Test.

Section 292 of IPC
India participated in the International Convention for Suppression of Traffic in Obscene Literature, 1923. In effect to this convention by virtue of Act no. 8 of 1925, a substantial amendment was made to section 292 and 293 of IPC regarding dissemination of Obscene materials, especially to children. However, in its form of 1925, the Act lacked the definition of obscenity. Thus, the court depended on Hickin test.

This form of section 292, gave more consideration to susceptible groups of population then it should have. The reason was the vagueness of definition of obscenity. It mostly dependent on the judge's understanding.

The sole exception to 1925 exception was limited to religious matters.
According to section 292 of IPC:
a book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object, shall be deemed to be obscene if it is lascivious or appeals to the prurient interest or if its effect (is) such as to tend to deprave and corrupt person.

The section was enacted during the British era when Fundamental Right of citizens was a consideration only so long as it created ground for Britain to strengthen its hold over its colonies. It remained controversial after independence due to its vagueness and the frequency with which it was used to curtail artistic freedom and creative expression. Thus, a committee headed by Akbar Ali Khan was formulated in 1963, which recommended that protection should be given to publication which aims for bona fide purpose of art, science or literature.

Emphasis was also given on consideration of the opinion of experts in matter of considering whether the material in question is obscene or not. Moreover, complexities arising out of lack of definition of obscene led to recommendation by the committee that obscene should be defined based on the jurisprudence of the courts.

The recommendation of the Akbar Ali Khan committee has been taken up and the section was amended by Act 36 of 1969. After which the exceptions has been increased to cover more aspects like representation on ancient monuments which needs to be read with Ancient Monuments and Archaeological Sites and remains Act 1958.

In the 2008 case Maqbool Fida Hussain v. Raj Kumar Pandey13, an appeal was brought by private complainants claiming that M.F. Hussain's painting ‘Bharat Mata' was obscene and appealed to be liable under not only section 298 but also section 500 of the IPC (defamation). The case represented an interesting juncture wherein the moral outrage at obscenity and nudity stood hand in hand with socio-political outrage against defamation of the glorified national symbol.

A veritable heady cocktail for right wing groups across the country. But the decision rendered by the High Court of Delhi was exemplary and instrumental in indicating a liberal shift away from the stand taken in Ranjit D Udeshi v. State of Maharashtra14. It upheld that Article 19(2) circumscribed freedom of expression within the reasonable restriction of public decency and moral outrage but the naked representation of the figure of ‘Mother India' was not enough to constitute obscenity.

It asserted that the painting was a ‘work of art', moving away from the Hicklin Test in allowing for the possibility of looking at a piece of work not as an immoral influence but as a means of creative expression. It was a long journey from when Lady Chatterley's Lover was denied status as a valuable work of art as it did not serve a social purpose.

But the question arises is whether the court should be allowed to speak from its pedestal in cases of where the question of obscenity or the lack of it of a piece of art arises. There is a well-constructed argument that it is not the government's duty to legislate on the matter of interfering of one's private fantasy. Importantly, whether any article or book is obscene or not is based perspective and so is the idea of public good.

However, the conclusion would not be to completely do away with the section but the focus of legislation and adjudication should be on blatant pornography and not to regulate people's fantasies. In other words it will be justified to restrict the Fundamental Right of expression but only when the harm condition is fulfilled. For that any test if adopted should prove beyond reasonable doubt that harm will be caused unless restriction are imposed by Law.15

The Supreme court should have kept in mind that Our standards must be so framed that we are not reduced to a level where the protection of the least capable and the most depraved amongst us determines what the morally healthy cannot view or read.16

Thus, It is important to understand that, the dynamism of the society is such that it accommodates and will adapt to things which it considered taboo a few years ago. Thus, the idea of morality and obscenity will remain vague. The court in coming years will be challenged on its understanding of obscenity and it should actively expand the meaning of it so as to accommodate more freedom of expression then restricting it due to most depraved amongst us.
· Anees Backer. Rejecting moral harm as a ground under obscenity Law
· Sharma, Vishnu D., and F. Wooldridge. The Law Relating to Obscene Publications in India. The International and Comparative Law Quarterly, vol. 22, no. 4, 1973, pp. 632–647. JSTOR, Accessed 26 Apr. 2020.
· First Amendment: Obscenity. The Journal of Criminal Law and Criminology (1973-), vol. 68, no. 4, 1977, pp. 613–623. JSTOR, Accessed 26 Apr. 2020.
· Morawski, Stefan. Art and Obscenity. The Journal of Aesthetics and Art Criticism, vol. 26, no. 2, 1967, pp. 193–207. JSTOR, Accessed 26 Apr. 2020.
· Ismart Chugtai, Lihaaf [The Quilt] (first published 1941, Manushi 1941)
· Simon Coldham, Reports of the Committee on Obscenity and Film Cenorship, 43 MLR 306, 308 (1980)
· K. A. Abbas vs The Union Of India & Anr 1971 AIR 481, 1971 SCR (2) 446
· Ranjit D. Udeshi vs State Of Maharashtra 1965 AIR 881, 1965 SCR (1) 65

  1. Susan Ostrov Weisser is a professor in the English Department at Adelphi University
  2. Ranjit D Udeshi v. State of Maharashtra 1965 AIR 881, 1965 SCR (1) 65
  3. Naveen Kholi V. Neelu Kholi, 2006 4 SCC 558
  4. Ranjit D Udeshi v. State of Maharashtra 1965 AIR 881, 1965 SCR (1) 65
  5. Ibid
  6. Queen v. Hicklin, (1868) L.R. 3 Q.B. 360
  7. Ibid
  8. R v. Penguin Books Limited [1961] Crim LR 176
  9. Queen v. Hicklin, (1868) L.R. 3 Q.B. 360
  10. Roth v. United States, 354 U.S. 476 (1957)
  11. R v. Martin Secker d- Warburg Ltd. [1954] 1 W.L.K. 1138, 1139-1140
  12. Ibid
  13. Brody, Dansky, Rubin v. The Queen, [1962] S.C.R.681
  14. M.F. Hussain v. Raj Kumar Pandey, 2008 CrLJ4107 (Del)
  15. Ranjit D Udeshi v. State of Maharashtra 1965 AIR 881, 1965 SCR (1) 65
  16. Simon Coldham, Reports of the Committee on Obscenity and Film Censorship, 43 MLR 306, 308 (1980)
  17. K. A. Abbas vs The Union Of India & Anr 1971 AIR 481, 1971 SCR (2) 446

Written By: Rishabh Paliwal
is pursuing LL.B from Law Faculty, University of Delhi. He has worked with various research organizations and NGOs in various states like Madhya Pradesh, Chhattisgarh, Maharashtra, Delhi, and Rajasthan. He immensely appreciates the ability of law as a curative measure in providing the marginalized a tool in enforcing their rights. 

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