UNIVERSITY OF PETROLEUM & ENERGY STUDIES

COLLEGE OF LEGAL STUDIES

B.TECH (CS) + L.LB. (CYBERLAW)

SEMESTER VII
SESSION: AUG DEC

ACADEMIC YEAR: 2015-2016

PROJECT
FOR

Information Technology Law

Under the Supervision of: Mr. Krishna Deo Singh

NAME : ROHITASHWA SINGH

SAP NO : 500023285
ROLL NO: R120212004

PROJECT ON

HICKLIN TEST

Table of Contents
HICKLIN TEST......................................................................................................................... 2
INRODUCTION ........................................................................................................................ 5
What is obscenity? ................................................................................................................. 5
Process for solution ................................................................................................................ 5
Complaint under which Section? ....................................................................................... 5
Whom to complain / where to complaint? ......................................................................... 5
How to file the Case? ......................................................................................................... 5
Regina v. Hicklin, L.R. 2 Q.B. 360 (1868) [HICKLIN TEST] ................................................. 6
Indian scenario ....................................................................................................................... 7
Limiting the Hicklin Test ................................................................................................... 7
Express adoption of community standards ........................................................................ 8
The limits of law ................................................................................................................ 9
US Standards............................................................................................................................ 10
Canadian Standards .................................................................................................................. 10
Brodie (1962) ....................................................................................................................... 10
Section 163, CCC................................................................................................................. 10
CASE STUDIES ...................................................................................................................... 11
1. Ranjit D. Udeshi v. State of Maharashtra ........................................................................ 11
Citation:............................................................................................................................ 11
Judges:.............................................................................................................................. 11
Facts: ................................................................................................................................ 11
Issue: ................................................................................................................................ 12
Arguments: ....................................................................................................................... 12
Decision: .......................................................................................................................... 12
2. Samaresh Bose and Another v Amal Mitra and Another ................................................ 12
Citation:............................................................................................................................ 12
Judges:.............................................................................................................................. 12
Facts: ................................................................................................................................ 13
Issues: ............................................................................................................................... 13
Arguments: ....................................................................................................................... 13
3. K. A. Abbas v. Union Of India and Another ................................................................... 14
Citation:............................................................................................................................ 14
Judges:.............................................................................................................................. 14

Facts: ................................................................................................................................ 14
Issues: ............................................................................................................................... 14
Argument(s): .................................................................................................................... 15
Decision: .......................................................................................................................... 15
4. Raj Kapoor and Others v State and Others ...................................................................... 16
Citation............................................................................................................................. 16
Judges:.............................................................................................................................. 16
Facts ................................................................................................................................. 16
Issues: ............................................................................................................................... 16
Arguments: ....................................................................................................................... 16
Decision: .......................................................................................................................... 16
CONCLUSION ........................................................................................................................ 18

INRODUCTION
What is obscenity?
Obscenity is a difficult term to explain as it is intricately linked to the moral values of the
society. The Courts have laid down a principle saying that the test to determine obscenity is
whether the tendency of the matter, charged with 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. If it does, the matter falls within the purview of obscenity.

Process for solution

Complaint under which Section?
Section 292, IPC: Sale etc., of obscene books etc.
Section 293 IPC: Sale etc., of obscene objects to young person
Section 294 IPC: Obscene acts and songs
Whom to complain / where to complaint?
An FIR may be lodged in the nearest police station or with the Magistrate having the necessary
jurisdiction.
How to file the Case?
The case may be file in the court of the Magistrate having jurisdiction and the proceedings will
be conducted according to the Criminal Procedure Code.
The offences under these sections are cognizable, bailable offences.

Regina v. Hicklin, L.R. 2 Q.B. 360 (1868)

[HICKLIN TEST]
In the early nineteenth century, the Society for the Suppression of Vice in Great Britain
mobilized to control pornography and to promote morality through vigorous enforcement of
existing laws and adoption of new ones. In 1857, Parliament enacted the Obscene Publications
Act, commonly referred to as Lord Campbells Act after John Campbell, the Chief Justice
of the Queens Bench, who as a member of the House of Lords had introduced the bill. Before
the laws passage, Britain had relied on local courts and the common law offense of obscene
libel to regulate indecent or immoral material. The new statute brought Parliament into the
regulation of pornography and centralized public authority over the control of obscene books,
pictures, prints, and other articles. In particular, the law empowered local magistrates to
confiscate and destroy material deemed to be obscene. Simple possession was sufficient for
prosecution under the law in addition to selling or making it available to others, but as Lord
Campbell assured Parliament only material corrupting the morals of youth and of a nature
calculated to shock the common feelings of decency in a well regulated mind would fall under
the laws ambit.
Regina v. Hicklins significance rests in the definition or test of what constitutes obscene
material by the Queens Court. The case involved a salacious anti- Catholic pamphlet and the
trial had as much to do with quelling political unrest as protecting the morals of British citizens.
The tract, The Confessional Unmasked: Shewing the Depravity of the Romanish Priesthood,
the Iniquity of the Confessional and the Questions Put to Females in Confession, purported
to expose what Catholic priests talked about with young women during their confessions. The
tract was part of a wider campaign led by a militant Protestant, William Murphy, who stoked
the anti- Catholic sentiments of the working and lower-middle classes that erupted in Irish
Protestant riots during 18671869. A local magistrate ordered the seizure of the pamphlets; the
order was appealed to Benjamin Hicklin, a Recorders Court judge, who reversed the decision
and suspended the order. Hicklin did not disagree that the tract was licentious; however, he
declined to suppress the pamphlet, despite its indecency, because of the tracts political
purposes.
Three Queens Bench judges affirmed the magistrates decision. Alexander Cockburn, who
succeeded Lord Campbell as chief justice of the Queens Bench, speaking for the court
announced what became known as the Hicklin rule. In Cockburns formulation, The test of
obscenity is whether the tendency of the matter charged as obscenity is to deprave and corrupt
those whose minds are open to such immoral influences and into whose hands a publication of
this sort may fall. The implications of the decision, because the pamphlets obscene
aspects were subsumed by its larger political purposes, were that material could be declared
obscene if isolated parts rather than the publication taken as a whole contained immoral or
indecent material. The ruling further meant that the test depended on the impact the material
would have on the most susceptible audience, not the average reader. The Hicklin test entered
American legal doctrine in the Court of Appeals case, United States v. Bennett (1879), and its
place was consolidated by the Supreme Court in Rosen v. United States (1896).

Indian scenario
The recent legal prosecution of AIB, a stand-up comics collective, has thrown open the debate
on obscenity standards. In its show, AIB used cuss words and made express sexual innuendos.
It was plainly visible that they were challenging, even if unwittingly, not only the conventional
social mores but also the thresholds of obscenity law. Many see their prosecution as unfair and
unequitable and evidence of greater intolerance in Indian society. Many have also questioned
the law that formed the basis for the prosecution. It has been described as vague, indeterminate,
and providing a ground for complaint to the least tolerant.
This is properly a debate on the legal standards used to determine obscenity. As opposed to a
debate on the necessity of the offence of obscenity itself. This article focusses on examining
arguments for greater certainty in the legal tests for determining obscenity and seeks to build
towards a more ambitious proposal, that legal tests and criteria cannot define obscenity to any
reasonable certainty. Its moral desirability, even in the face of such subjectivity, is of course a
choice left for the legislature.
The legal standards governing obscenity arise from the case of Ranjit Udeshi v. State of
Maharashtra1 where the Supreme Court of India interpreted Section 292 of the Indian Penal
Code, 1860. Though Section 292 only criminalises printed materials, its definition of obscenity
is utilised in other criminal provisions such as Section 294, which criminalises obscene speech
and songs. In Ranjit Udeshi, a five-judge bench of the Supreme Court of India adopted the
Hicklin Test laid down in the case of Regina v. Hicklin by Justice Cockburn.

Limiting the Hicklin Test

It is not as if the criticisms of such an ad-hoc and content-by-content approach were not felt by
the Court. In the same year as the Kakodar case, the Supreme Court made express reference to
Udeshis case, when called to adjudge the legality of the pre-censorship of movies. The
petitioners in K.A. Abbas v. Union of India 2argued that the mandatory certification necessary
to any prior exhibition by the Cinematograph Act was unconstitutional as a prior-restraint. The
Court, while holding the Act constitutional, laid down some guidelines that in its view, afforded
reasonable safeguards. In its penultimate paragraph however, it contained some criticism that
indicated a small but significant realisation that the law by and large contained vague obscenity
standards. Its prescription revolted against any liberal conception of censorship, stating that
Parliament should legislate more, as if to clinically separate the obscene from the moral. As we
go along, we will discover the limits of law and of judicial eloquence to regulate the arts.
After an interregnum of about five years, the Supreme Court, in Samaresh Bose v. Amal Mitra3,
again faced its precedent and marked a significant departure from it by seeking to limit the
applicability of the Hicklin test. Rather, it sought to make community standards the
overreaching or controlling criteria to gauge obscenity. The Court in its inquiry, first focussed
on certain prongs devised under a community standards grouping and only after this, did it
proceeded to a pure analysis of obscenity under Section 292 and the Hicklin test. This was
1

AIR 1965 SC 881

1971 SCR (2) 446
3
1985 SCR Supl. (3) 17
2

achieved by the Court stating that in order to determine the offence of obscenity, the judge
should first place themselves in the position of the author to gauge the literary and artistic merit
and thereafter place themselves in the position of a reader of every age group, not only children
and those open to influences. Only after this should the inquiry on the Hicklin test proceed.
This test or the tiered approach to gauge illegality appears persuasive, however again, in
practice, requires subjective, content-by-content determinations.
The resultant confusion in standards which may be applied to obscenity is evident from the
Supreme Courts reasoning in Ajay Goswami v. Union of India4. These tests, which are
chronologically listed, are prefaced in the judgement as broad principles. Not only are these
principles broad, but their girth seems to have increased with time. Though the judgement in
terms of legal articulation correctly notices past precedent, it also makes it evident that India,
for a long period of time, had several legal standards to gauge obscenity, permitting subjectivity
and preventing adequate notice of illegality to artists and authors.

Express adoption of community standards

This position in law seems to have undergone a dramatic change last year, with the Supreme
Court ruling in Aveek Sarkar v. State of West Bengal5. The ruling expressly discards the
Hicklin test, stating that it is not good law. In its place, it adopts the more liberally oriented
community standards test. However, the manner in which the Court applies the community
standards test itself gives cause for concern. If one reads the judgement, the Court again
examines the content in question and the social merit in the publication. Again, the result may
be liberal, but the reasoning itself may only be a modest improvement on the Hicklin Test.
This is not to say that the express adoption of the community standards test in the Aveek Sarkar
case is not cause for hope, however its promise is limited. While it does signify an express
statement from the Supreme Court recognising the need for the greater liberty of artists and
authors, it maintains the necessity for artistic merit or social need. The application of the
community standards test can also be criticised on several other grounds but the major criticism
is that it again permits subjectivity and a value-driven assessment by our higher judiciary.
Again, it needs to be emphasised that the High Court of Delhi has in two recent cases, by the
application of Aveek Sarkar, refused to prohibit the exhibition of movies with Censor Board
certificates. In both instances however, the Court gave substantial credence to the legality of
the movies on the basis of the certificate for exhibition issued by the Censor Board. In the first
case, Nandini Tewari and Another v. Union of India6, the Court was asked to prohibit the
exhibition of the movie Finding Fanny due to the name of the movie itself. The Court examined
the term fanny as well as the term as it appeared in the dialogues of other movies in the past.
It not only applied the Aveek Sarkar case but even earlier precedent to implicitly form a
community interest and an anticipated danger test.

Writ Petition (civil) 384 of 2005 in the Supreme Court of India

CRIMINAL APPEAL NO.902 OF 2004 in the Supreme Court of India
6
W.P.(C) No.6053/2014 in the High Court of Delhi
5

In the second case, Ajay Gautam v. Union of India7, the High Court examined the contents of
the movie PK, which the petitioner complained, mocked the Hindu religion and hence should
be prohibited from exhibition. The Court again substantively appreciated the movie in question,
heavily relying on the prior existence of a Censor Board certificate, and the nature of the movie,
that is, a parody. Though the case is not per se concerned with obscenity, precedent on
obscenity is bundled with larger free speech jurisprudence including the, clear and present
danger test.
The limits of law
A review of legal precedent suggests that both the Hicklin test and the community standards
test are not only fallible in some isolated instances but by their very nature permit subjectivity
and value-based assessments. It has been my firm belief that any moral harm that is supposed
to originate from movies, songs, paintings, or any other form of creative art is illusory. This
moral harm is at the core of any justification for the offence of obscenity. Even if such an
outlook is not shared by others, it is evident that obscenity to a large degree is a vague concept
which will rely on a case-by-case determination, dependent on the facts of each case, in which
a judicially trained mind (as opposed to an artistically inclined one) will examine the artistic
merits and the potential illegality.
Though Indian case law to a large degree has drawn inspiration from the First Amendment
precedent of the United States Supreme Court, it has failed to notice the dissent of Justice
Brennan in Paris Adult Theatre I v. Slaton8. Justice Brennans eloquence lays evident the limits
of law, as it seeks to balance any purported moral harm with the liberty of artists. To end it is
quoted below:
Of course, the vagueness problem would be largely of our own creation if it stemmed
primarily from our [p84] failure to reach a consensus on any one standard. But, after 16 years
of experimentation and debate, I am reluctantly forced to the conclusion that none of the
available formulas, including the one announced today, can reduce the vagueness to a
tolerable level while at the same time striking an acceptable balance between the protections
of the First and Fourteenth Amendments, on the one hand, and, on the other, the asserted state
interest in regulating the dissemination of certain sexually oriented materials. Any effort to
draw a constitutionally acceptable boundary on state power must resort to such indefinite
concepts as prurient interest, patent offensiveness, serious literary value, and the like.
The meaning of these concepts necessarily varies with the experience, outlook, and even
idiosyncrasies of the person defining them. Although we have assumed that obscenity does exist
and that we know it when [we] see it, Jacobellis v. Ohio, supra, at 197 (STEWART, J.,
concurring), we are manifestly unable to describe it in advance except by reference to concepts
so elusive that they fail to distinguish clearly between protected and unprotected speech.

7
8

W.P.(C) No.112/2015 in the Delhi High Court

413 U.S. 49

US Standards
In Roth v. United States (1957), the Supreme Court rejected the Hicklin test and ruled that the
appropriate test for obscenity is "whether to the average person, applying contemporary
community standards, the dominant theme of the material, taken as a whole, appeals to
the prurient interest." Writing for the Court, Justice Brennan defined obscenity as "material
which deals with sex in a manner appealing to prurient interest . . . having a tendency to
excite lustful thoughts [or] as [a] shameful and morbid interest in sex."

In Jacobellis v. Ohio (1964), Justice Brennan, writing for the Court, said for the material to be
obscene, it must be "utterly without redeeming social value." In this case, Justice Potter
Stewart said, "I can't define pornography, but I know it when I see it."
In Miller v. California (1973), the Court, in a 5-to-4 vote, ruled that material could be banned
as obscene if it met a three-part test:

The average person, applying contemporary community standards, would find

that the work, taken as a whole, appeals to the prurient interest (Roth Test);
The work depicts, in a patently offensive way, sexual conduct specifically defined
by the applicable state law;
The work, taken as a whole, lacks serious literary, artistic, political or scientific
value

Material must meet all three parts if it is to be ruled obscene and outside of First Amendment
protection. Under the decision, only "ultimate sexual acts" could be forbidden, and relevant
community standards were local, not nationwide.

Canadian Standards
Brodie (1962)
[The work under attack] has none of the characteristics that are often described in judgments
dealing with obscenity dirt for dirts sake, the leer of the sensualist, depravity in the mind of
an author with an obsession for dirt, pornography, an appeal to a prurient interest, etc.

Section 163, CCC

any publication a dominant characteristic of which is the undue exploitation of sex, or of sex
andcrime, horror, cruelty and violence.

CASE STUDIES
1. Ranjit D. Udeshi v. State of Maharashtra
Citation: AIR 1965 SC 881
Judges: M. Hidayatullah, P.B. Gajendragadkar, K.N. Wancho, J.C. Shah, N. Rajagopala
Ayyangar
Facts: The appellant was prosecuted along with the other partners of a bookstall which was
found to be in possession (for the purposes of sale) of the unexpurgated edition of the book,
Lady Chatterleys Lover. The partners were charged under Section 292, Indian Penal Code
(IPC)9 for certain obscene passages in the book. During the trial, the accused produced as
9

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

(1) 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 lascivious or appeals to the prurient interest or if its
effect, or (where it comprises two or more distinct items) the effect of any one of its items, is, if taken as a whole,
such 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.]
(2)Whoever (a) Sells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation, or for purposes of sale,
hire, distribution, public exhibition or circulation, makes, reduces or has in his possession any obscene book,
pamphlet, paper, drawing, painting, representation or figure or any other
Obscene object whatsoever, or
(b) Imports, exports or conveys any obscene object for any of the purposes aforesaid, or knowing or having reason
to believe that such object will be sold, let to hire, distributed or publicly exhibited or in any manner put into
circulation, or
(c) Takes part in or receives profits from any business in the course of which he knows or has reason to believe
that any such obscene objects are, for any of the purposes aforesaid, made, produced, purchased, kept, imported,
exported, conveyed, publicly exhibited or in any manner put into circulation, or
(d) Advertises or makes known by any means whatsoever that any person is engaged or is ready to engage in any
act which is an offence under this section, or that any such obscene object can be procured from or through any
person, or
(e) Offers or attempts to do any act which is an offence under this section,
Shall be punished [on first conviction with imprisonment of either description for a term which may extend to two
years, and with fine which may extend to two thousand rupees, and, in the event of a second
Or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and
also with fine which may extend to five thousand rupees].
Exception
This section does not extend to (a) Any book, pamphlet, paper, writing, drawing, painting, representation or figure (i) The publication of which is proved to be justified as being for the public good on the ground that such
book, pamphlet, paper, writing, drawing, painting, representation or figure is in the interest of science, literature,
art or learning or other objects of general concern, or (ii) which is kept or used bona fide for religious purposes;
(b) Any representation sculptured, engraved, painted or otherwise represented on or in (i) Any ancient monument within the meaning of the Ancient Monuments and Archaeological Sites and
Remains Act, 1958 (24 of 1958), or
(ii) Any temple, or on any car used for the conveyance of idols, or kept or used for any religious purpose.

witness Mr. Mulk Raj Anand, a writer and art critic, who presented a detailed analysis of the
novel and opined that the novel was a classic work of considerable literary merit and not
obscene. Nonetheless the Trial Court found the appellant guilty; the Bombay High Court
upheld the verdict. Hence the appeal.
Issue: Whether S. 292, IPC was constitutionally valid; if so, whether or not it could be invoked
in the present case.
Arguments: The prosecution contended that the law regarding obscenity in India had its
underpinnings in the Hicklin test (which laid emphasis on the potential of the impugned object
to deprave and corrupt by immoral influences) and that the book failed the test.
The appellant argued that S. 292 of the IPC was void as an impermissible and vague restriction
on the freedom of speech and expression; that even if the Section were valid, if it was properly
construed and the book was considered as a whole, the book would not be found obscene; and
that for possession or sale to be punishable under the Section it must be with the intention of
corrupting the public in general and the purchasers in particular.
On the subject of obscenity, the appellant contended that the standard should not be that of an
immature teenager or a person who is abnormal but of one who is normal, that is to say, with
a mens sana in corporis sana. That, if valid, the section must apply only to cases of intentional
lewdness/hardcore pornography, libidinous writings of high erotic effect unredeemed by
anything literary or artistic and intended to arouse sexual feelings.
Decision: The Court dismissed the appeal with the following assertions:
(1) Where obscenity and art are mixed, art must so preponderate as to throw the obscenity
into a shadow or the obscenity must be so trivial and insignificant that it can have no effect and
may be overlooked. In other words, treatment of sex in a manner offensive to public decency
and, judged by our national standards, considered likely to pander to lascivious, prurient or
sexually precocious minds, must determine the result.
(2) The test to adopt in India is that obscenity without a preponderating social purpose or
profit cannot have the constitutional protection of free speech and expression, and obscenity is
treatment of sex in a manner appealing to the carnal sides of human nature, or having that
tendency.
(3) The law seeks to protect not those who can protect themselves but those whose prurient
minds take delight and secret sexual pleasure from erotic writings. No doubt this is treatment
of sex by an artist and hence there is some poetry even in the ugliness of sex. The book is
probably an unfolding of the authors philosophy of life and of the urges of the unconscious
but these are unfolded in his other books. Therefore, there is no loss to society if there was a
message in the book. The divagations (sic) with sex are not a legitimate embroidery but they
are the only attractions to the common man.

2. Samaresh Bose and Another v Amal Mitra and Another

Citation:

AIR 1986 SC 967, (1985) 4 SCC 289

Judges:

Amarendra Nath Sen, R.S. Pathak

Facts: Samaresh Bose, the first appellant, is a well-known writer of Bengali novels and stories,
and the author of a novel called Prajapati, which was published in Sarodiya Desh, a journal of
Bengali literature with wide circulation. Sitangshu Kumar Dasgupta, the second appellant, was
the publisher and the printer of the journal at the relevant time.
On 2 February1968, Amal Mitra, a young advocate, made an application in the Court of the
Chief Presidency Magistrate at Calcutta complaining that the novel, Prajapati, "contains
matters which are obscene and both the accused persons have sold, distributed, printed and
exhibited the same which has the tendency to corrupt the morals of those in whose hands the
said Sarodiya Desh may fall. Both the accused persons were said to have committed an offence
punishable under Section 292 of the Indian Penal Code and under Section 292 read with Section
109 IPC (abetment).
Both the accused persons were convicted of charges under Section 292 by the Chief Presidency
Magistrate at Calcutta. The Magistrate ordered that the offending portions in the journal be
destroyed.
The appellants then filed appeals in the Calcutta High Court. The appeals were dismissed and
the High Court held that the Chief Presidency Magistrate should also take appropriate steps to
destroy the offending portions of the journal in respect of the novel if published in book form.
The author and publisher then filed an appeal in the Supreme Court. The question for
consideration in this appeal was whether the two appellants could be said to have committed
an offence under Section 292. In order to decide this, the court looked at whether or not the
novel Prajapati was obscene.
Issues: Whether references to kissing, descriptions of the body and the figures of female
characters in the book and suggestions of sex acts by themselves have the effect of depraving
and debasing, and encouraging lasciviousness among, readers of any age, and must therefore
be considered obscene.
Arguments: The appellants argued that the novel depicts the feelings, thoughts, actions and
life of Sukhen, the hero of the novel and its main character; and that through the speeches,
thoughts and actions of Sukhen the novel seeks to condemn and criticise various prevalent
aspects of life in various strata of society. They argued that if different kinds of words - cultured
and sophisticated - were to be used for the thoughts, speeches and actions of Sukhen, the entire
portrayal of Sukhen's character would become unreal and meaningless. They argued that in
literature there was a distinction between obscenity and vulgarity, and it was only obscenity in
literature that attracts the provisions of Section 292. They argued that the book had a social
purpose to serve and had been written with the primary object of focusing the attention of
persons interested in literature to the various ills and maladies ailing society and destroying the
social fabric.
The state of West Bengal supported the judgment of the Chief Presidency Magistrate and the
High Court. The state submitted that the novel has to be judged in the background of the
conditions prevailing in society at the time when the novel was written.
The Supreme Court allowed the appeal and dismissed the charges of obscenity. It held that
vulgar writing is not necessarily obscene. Vulgarity arouses a feeling of disgust and revulsion

and also boredom but does not have the effect of depraving, debasing and corrupting the morals
of any reader of the novel, whereas obscenity has the tendency to deprave and corrupt those
whose minds are open to such immoral influences.
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.
The court said that although, in some places in the book there may have been an exhibition of
bad taste, it was up to readers of experience and maturity to draw the necessary inference. The
court said that it was not sufficient to bring home to adolescents any suggestion that was
depraving or lascivious. We have to bear in mind that the author has written this novel which
came to be published in the Sarodiya Desh for all classes of readers and it cannot be right to
insist that the standard should always be for the writer to see that the adolescent may not be
brought into contact with sex. If a reference to sex by itself in any novel is considered to be
obscene and not fit to be read by adolescents, adolescents will not be in a position to read any
novel and have to read books which are purely religious".

3. K. A. Abbas v. Union Of India and Another

Citation:

AIR 1971 SC 481

Judges:

M. Hidyatullah, J.M. Shelat, G.K. Mitter, C.A. Vaidyalingam, A.N. Ray

Facts: The petitioner produced in 1968 a documentary film in 2 reels (with a running time of
16 minutes) called a Tale of Four Cities. In this film he purported to contrast the luxurious life
of the rich in the four cities of Calcutta, Bombay, Madras and Delhi, with the squalor and
poverty of the poor, particularly those whose hands and labour help to build beautiful cities,
factories and other industrial complexes. The film, in motion sequences or still shots, showed
contrasting scenes of palatial buildings, hotels and factories - evidence of the prosperity of a
few, and shanties, huts and slums - evidence of poverty of the masses. Also included is a brief
scanning shot, blurred by the movement of the camera, in which the red light district of Bombay
is shown, with the inmates of the brothels waiting at the doors or windows.
The petitioner applied to the Central Board of Film Certification for a 'U' certificate for
unrestricted exhibition of the film but the Committee was willing to grant only an A
certificate. On the petitioners representation that the movie portrayed no obscenity, he was
informed that he would get a U certificate provided he deleted certain portions from the red
light scene. Hence the writ petition to the Supreme Court. However, after a joint screening, the
respondent acceded to the petitioners demand and stated that he would be given a U
certificate. The petitioner then amended his submission so as to be able to challenge precensorship 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.
Issues: Was Part 11 and Section 5B of the Cinematograph Act which authorised the Central
Government to issue directions to set out principles to guide the Censor Board in granting
certification -- constitutionally valid?
Does pre-censorship of films violate the fundamental right to the freedom of speech and

expression?
Even if pre-censorship were a legitimate restraint on freedom, does it have to be exercised on
definitive principles leaving no room for arbitrary action?
Argument(s): The petitioner contended that there are other forms of speech and expression
besides the films and none of them is subject to any prior restraint in the form of pre-censorship;
that there should equality of treatment with such other forms and that there was no justification
for differential treatment. Specifically, the petitioner argued:
a) That pre-censorship itself cannot be tolerated under the freedom of speech and
expression,
b) That even if it were a legitimate restraint on such freedom, it must be exercised on very
definite principles that leave no room for arbitrary action,
c) That there must be a reasonable, fixed time-limit for the decision of the authorities
censoring the film, and
d) That the appeal should go to a court or to an independent tribunal and not the Central
Government.
The respondent conceded (c) and (d) and stated that the Government would begin working on
legislation to address these concerns at the earliest possible opportunity. The case then, boiled
down to an academic debate of the validity of (a). The Courts opinion is set out in the following
passage.
Decision: The Court, relying on the Khosla Committee Report, 1968 10 and precedents from
Indian, American and British case law, said that pre-censorship was valid (in the context) and
an exception to the right to freedom of speech and expression had been provided under Article
19(2). The Court said that pre-censorship was necessary as the medium of film had to be treated
differently from other forms of art and expression. The art of the cameraman, with trick
photography, vistavision and three dimensional representation thrown in, has made the cinema
picture more true to life than even the theatre or, indeed, any other form of representative art.
It said that the general principles that applied to exceptions to Article 19 (1) (a) applied to the
censorship of film, and that there was nothing vague about the wording of the Censorship Act.
We are quite clear that expressions like seduction, immoral traffic in women, soliciting,
prostitution or procuration (sic), indelicate sexual situation and scenes suggestive of
immorality, traffic and use of drugs, class hatred, blackmail associated with immorality
are within the understanding of the average man and more so of persons who are likely to be
the panel for purposes of censorship. Any more definiteness is not only not expected but is not
possible.
However, the Court observed that the censors need to take into account the value of art while
making their decision. The artistic appeal or presentation of an episode robs it of its vulgarity
and harm and also what may be socially good and useful and what may not.
10

Report of the Enquiry Committee on Film Censorship 1968-1969 instituted by the Ministry of Information and
Broadcasting to enquire into the working of the existing procedures for certification of cinematograph films for
public exhibition in India

4. Raj Kapoor and Others v State and Others

Citation: AIR 1980 SC 258
Judges: V.R. Krishna Iyer, R. S. Pathak
Facts: A complaint was filed by the respondent, a private complainant claiming to be the
president of a youth organisation devoted to defending Indian cultural standards, alleging that
the movie, Satyam Shivam Sundaram, was obscene and indecent and rendered the producers
liable for an act constituting an offence under Section 292, IPC.
Issues: Whether the issuance of a censor certificate by the specialised Board of Film Censors
bars the criminal courts jurisdiction to try offences under Sections 292 and 29311 of the Indian
Penal Code relating to obscenity.
Arguments: When a notice was issued to the producer, he moved the High Court contending
that this was an abuse of the judicial process and engineered by ulterior considerations and that
no prosecution could be legally sustained in the circumstances of the case, the film having been
duly certified for public show by the Censor Board (the film had been given 'A' certificate by
the Central Board of Film Certification). The High Court, however, dismissed the petition. The
producer then appealed to the Supreme Court contending that he was protected under Section
79 of the IPC.12
Decision: While a certificate issued by the Censor Board is of relevance, it does not preclude
the court from deciding if a film is obscene or not.
Justice Krishna Iyer: An act of recognition of moral worthiness by a statutory agency is not
opinion evidence but an instance or transaction where the fact in issue has been asserted,
recognized or affirmed. The Court will examine the film and judge whether its public policy,
in the given time and clime, so breaches public morals or depraves basic decency as to offend
the penal provisions. Yet, especially when a special statute (the Cinematograph Act) has set
special standards for films for public consumption and created a special Board to screen and
censor from the angle of public morals and the like, with its verdicts being subject to higher
review, inexpert criminal courts must be cautious to rush in and must indeed fear to tread
lest the judicial process become a public footpath for any highwayman wearing a moral mask
holding up a film-maker who has traveled the expensive and perilous journey to the exhibition
of his certificated picture.
Iyer went on to state, Art, morals and laws, aesthetics are sensitive subjects where
jurisprudence meets other social sciences and never goes alone to bark and bite because statemade strait-jacket is inhibitive prescription for a free country unless enlightened society
11

293. Sale, etc., of obscene objects to young person.-- Whoever sells, lets to hire, distributes, exhibits or
circulates to any person under the age of twenty years any such obscene object as is referred to in the last preceding
section, or offers or attempts so to do, shall be punished 1[on first conviction with imprisonment of either
description for a term which may extend to three 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 extend to seven years, and also with fine which may extend to five thousand rupees.
12

Section 79 - Nothing is an offence which is done by any person who is justified by law, or who by reason of a
mistake of fact and not by reason of a mistake of believes himself to be justified by law, in doing it

actively participates in the administration of justice to aesthetics. He observed, The worlds

greatest paintings, sculptures, songs, and dances, Indias lustrous heritage, the Konarks and
Khajurahos, lofty epics, luscious in patches, may be asphyxiated by law, if prudes and prigs
and state moralists prescribe paradigms and prescribe heterodoxies.
The Court allowed the appeal and sent back the case to the High Court for fresh disposal.

CONCLUSION
New multimedia technology is being misused and abused by criminals in cyberspace. Cyber
pornography, online child pornography, cyber spamming etc. are increasing every moment.
Cyber pornography is not only national but also international legal challenge which needs
intensive study, research and world-wide awareness.
We require more teeth to the law to cope up with the situation. We need to adopt specific and
clear definition of cyber crime, cyber pornography, and child pornography in cyberspace. There
is need of teaching and training to law enforcing agencies, judiciary, intermediaries, Internet
Service Providers, cyber cafes, Government sectors, private sectors, teachers, students, parents
and general public to be aware about effect of this dangerous threat to society. Banning mobile
phone within the premises of educational institutions is one firm way to prevent cyberpornography within these institutions.13
There is great need to impose more responsibilities on the Internet Service Providers and cyber
cafes. They must use filter system, firewall software, regular virus scanning system and verify
all detail identifications of users i.e. with photo, address, date and time of use of particular
computer by particular user and the like.
Young users are very much interested to download objectionable materials and access those
materials. Therefore cyber as well as parents at home must keep a watch while children are
using computer. They should not use it privately.
Any person who wishes to protect their right to privacy in the cyberspace should adopt
encryption process. Encryption process is a tool to cyber crime and protection of privacy in
cyberspace. This is a process of self-protection or self-defense. There are 2 main key systems
in encryption process and these are (i) public key and (ii) private key. When any one writes
messages with encryption technique, such encryption turns that message into gibberish so that
specific person to whom any one wishes to disclose or transfer his private information, that
particular person only can access and read said information by using proper key of the key pair.
We can adopt the process which South Korea adopted in July 2004 making cell phone
manufacturer mandatory to install a beep audible within a radius of 10 feet before using the
camera mobile phone.
The situation can be curbed by the law enforcement agencies, more so police by regular track,
search, seizure process, frequent visit of those suspected places to nip in the bud. With this
people of India must contribute in the process of prevention and control of cyber pornography.
The Internet is being recognised as a modality of cultural transmission. It is, however, opposed
to regulation. But the effects of the online world are felt in the offline world where we live.
Regulation must be given a chance and legal acumen must come forth to extend the arms of
law to the jungle of lawless abode called cyberspace. The Net power has weakened the force
of law and a mammoth legal response to the cybercrimes, in the first instance, may not be so
promising, but it will give a constructive start. Fraud, forgery and obscenity are the cybercrimes
Dr. Raghunath Patnaik, Vulnerability of Children through Cyber crimes, Central India Law Quarterly, 2003,
p. 269
13

which constitute a substantial percentage of online crimes. In UK, though as seen above, there
is sufficient response to it under the traditional provisions yet the efforts are still continuing.
The proposed possession offence will not be a real success unless the technological hardships
are also given due consideration. In a squeamish society like India, obscenity is the most
intolerable offence as it erodes the highly sensitive moral ethos of traditional culture. Keeping
a watch on the technological fallouts which are being faced by countries with high connectivity
and convergence and at the same time, reporting and prosecuting the infringers in this area
would fetch positive results. Where humans survive, law must reign supreme else we will all
perish.