Shreya Singhal Vs.

Respondent: Union of India (UOI)- This batch of writ petitions filed

Under Article 32 of the Constitution of India raises very important and far-reaching questions
relatable primarily to the fundamental right of free speech and expression guaranteed by
Article 19(1)(a) of the Constitution of India.

Janhit Manch and Ors. ... Petitioners Versus The Union of India ... Respondents;( High
Court of Mumbai)

Petitioner by the present petition has approached this court, seeking relief to direct the
respondents to make coordinated and sustained efforts, to have a blanket ban on websites
which according to Petitioners are displaying material pertaining to sex and which in their
opinion is harmful to the youth of this country in their formative years.
Mr. Jalan, Petitioner No. 2 appearing in person draws our attention to amongst others to
Section 67 and 67A of the Information & Technology Act, 2000. Under Section 67 if any
person publishes or transmits or causes to be published or transmitted in the electronic form
any material which is lascivious or appeals to the prurient interest or if its effect is such as to
tend to deprave and corrupt persons who are likely, having regarding to all relevant
circumstances, to read, see or hear the matter contained or embodied in it, shall be punished
on first conviction with imprisonment of either description for a term which may extend to
three years and fine which may extend to five lakh rupees. Section 67A pertains to publishing
or transmitting or causing to be published or transmitted in the electronic form any material
which contains sexually explicit act or conduct can be punished on first conviction with
imprisonment of either description for a term which may extend to five years and with fine
which may extend to ten lakh rupees.
The Act therefore, makes provision for punishment of a person against whom a complaint is
filed, if such person commits the offence which falls within the purview of section 67 or 67A
as the case may be. Such person can be tried and convicted. For that prosecution will have to
establish that an offence has been committed.
By the present petition what the petitioner seeks is that this court which is a protector of free
speech to the citizens of this country, should interfere and direct the respondents to make a
coordinated and sustained efforts to close down the websites as aforestated. Once Parliament
in its wisdom has enacted a law and has provided for the punishment for breach of that law
any citizen of this country including the Petitioner who is aggrieved against any action on the
part of any other person which may amount to an offence has a right to approach the
appropriate forum and lodge a complaint upon which the action can be taken if an offence is
disclosed. Courts in such matters, the guardian of the freedom of free speech, and more so a
constitutional court should not embark on an exercise to direct State Authorities to monitor
websites. If such an exercise is done, then a party aggrieved depending on the sensibilities of
persons whose views may differ on what is morally degrading or prurient will be sitting in
judgment, even before the aggrieved person can lead his evidence and a competent court
decides the issue. The Legislature having enacted the law a person aggrieved may file a
complaint.
In the light of that we are not inclined to interfere in the exercise of our extra ordinary
jurisdiction. If the petitioner comes across any website/s which according to him publishes or
transmits any act which amounts to offence under section 67 or 67A of the Information &
Technology Act, 2000, it is upto him to file a a complaint.
With the above observations, Petition disposed of.
GINSBERG VS NEWYORK
The U.S. Supreme Court reaffirmed that historical record on Monday in declaring
California’s ban on the sale of violent video games to minors unconstitutional. The Supreme
Court, in essence, said no—“sexually assaulting an image of a human being” is protected
speech, but depicting graphic sexual activity that is nonviolent and consensual is not. “Justice
Alito has done considerable independent research to identify video games in which ‘the
violence is astounding….Victims are dismembered, decapitated, disemboweled, set on fire,
and chopped into little pieces… Blood gushes, splatters, and pools.’ Justice Alito recounts all
these disgusting video games in order to disgust us—but disgust is not a valid basis for
restricting expression….Thus, ironically, Justice Alito’s argument highlights the precise
danger posed by the California Act:

in Queen v. Hicklin, (1868)

L.R. 3 Q.B. 360, to the effect that the tendency of the matter charged as obscene must
be to deprave and corrupt those, whose minds are open to such immoral influences
and into whose hands a publication of the sort may fall, so far followed in India, is the
right test. The test does not offend Art. 19(1) (a) of the Constitution.

Ranjit D. Udeshi vs State Of Maharashtra on 19 August, 1964, 1965 AIR 881

In judging a work, stress should not be laid upon a word here and a word there, or a
passage here and a passage there. Though the work as a whole must be considered, 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. In this connection the interests of
contemporary society and particularly the influence of the impugned book on it must not
be overlooked. 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. It is necessary that a balance should be maintained
between "freedom of speech and expression" and "public decency or morality"; but when
the latter is substantially transgressed the former must give way. In other cases obscenity
may be overlooked if it has a preponderating social purpose or profit.

In Reno v. ACLU (1997), the US Supreme Court considered what standards should be
created to access obscene and indecent content on the Internet.

The English case of Regina v. Hicklin (1868) or the Hicklin test, became a defining marker
of what constitutes obscenity. In other words, obscenity was what ‘reasonable men’
thought would corrupt public morals or order. The Point of View study asserts that the test
of the ‘reasonable man’ in itself is subjective and questions if these colonial words have a
place in today’s world.

For example, in the early case of Romesh Thappar v. State of Madras, [1950] S.C.R. 594
at 602, this Court stated that freedom of speech lay at the foundation of all democratic
organizations. In Sakal Papers (P) Ltd. & Ors. v. Union of India, [1962] 3 S.C.R. 842 at
866, a Constitution Bench of this Court said freedom of speech and expression of opinion is
of paramount importance under a democratic constitution which envisages changes in the
composition of legislatures and governments and must be preserved. In a separate concurring
judgment Beg,J. said, in Bennett Coleman & Co. & Ors. v. Union of India & Ors., [1973]
2 S.C.R. 757 at 829, that the freedom of speech and of the press is the Ark of the Covenant of
Democracy because public criticism is essential to the working of its institutions.

Whitney v. California, 71 L. Ed. 1095 said:

"Those who won our independence believed that the final end of the state was to make men

free to develop their faculties, and that in its government the deliberative forces should

prevail over the arbitrary. They valued liberty both as an end and as a means. They believed

liberty to be the secret of happiness and courage to be the secret of liberty. They believed that

freedom to think as you will and to speak as you think are means indispensable to the

discovery and spread of political truth; that without free speech and assembly discussion

would be futile; that with them, discussion affords ordinarily adequate protection against the

dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that

public discussion is a political duty; and that this should be a fundamental principle of the

American government. They recognized the risks to which all human institutions are subject.

But they knew that order cannot be secured merely through fear of punishment for its

infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds

repression; that repression breeds hate; that hate menaces stable government; that the path of

safety lies in the opportunity to discuss freely supposed grievances and proposed remedies.

. This leads us to a discussion of what is the content of the expression "freedom of speech and

expression". There are three concepts which are fundamental in understanding the reach of

this most basic of human rights. The first is discussion, the second is advocacy, and the 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(2) kicks in. [3] 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 and integrity of India, the security of the

State, 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".

Sakal Papers (P) Ltd. & Ors. v. Union of India, [1962] 3 S.C.R. 842, this Court said
"It may well be within the power of the State to place, in the interest of the general public,
restrictions upon the right of a citizen to carry on business but it is not open to the State to
achieve this object by directly and immediately curtailing any other freedom of that citizen
guaranteed by the Constitution and which is not susceptible of abridgment on the same
grounds as are set out in clause (6) of Article 19. Therefore, the right of freedom of speech
cannot be taken away with the object of placing restrictions on the business activities of a
citizen. Freedom of speech can be restricted only in the interests of the security of the State,
friendly relations with foreign State, public order, decency or morality or in relation to
contempt of court, defamation or incitement to an offence. It cannot, like the freedom to carry
on business, be curtailed in the interest of the general public. If a law directly affecting it is
challenged, it is no answer that the restrictions enacted by it are justifiable under clauses (3)
to (6). For, the scheme of Article 19 is to enumerate different freedoms separately and then to
specify the extent of restrictions to which they may be subjected and the objects for securing
which this could be done. A citizen is entitled to enjoy each and every one of the freedoms
together and clause (1) does not prefer one freedom to another. That is the plain meaning of
this clause. It follows from this that the State cannot make a law which directly restricts one
freedom even for securing the better enjoyment of another freedom. All the greater reason,
therefore for holding that the State cannot directly restrict one freedom by placing an
otherwise permissible restriction on another freedom.

This Court has laid down what "reasonable restrictions" means in several cases. In
Chintaman Rao v. The State of Madhya Pradesh, [1950] S.C.R. 759, this Court said: "The
phrase "reasonable restriction" connotes that the limitation imposed on a person in
enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is
required in the interests of the public. The word "reasonable" implies intelligent care and
deliberation, that is, the choice of a course which reason dictates. Legislation which
arbitrarily or excessively invades the right cannot be said to contain the quality of
reasonableness and unless it strikes a proper balance between the freedom guaranteed in
article 19(1)(g) and the social control permitted by clause (6) of article 19, it must be held to
be wanting in that quality." (at page 763)

Janhit Manch & Others v. The Union of India

Gagan Harsh Sharma & Anr v State of Maharashtra & Anr (Criminal Writ Petition No
4361 of 2018) held that when an offence is sufficiently covered under the provisions of the
Information Technology Act, 2000 (IT Act), the IT Act will apply as lex specialis to the
exclusion of the Indian Penal Code, 1860 (IPC). The Bombay High Court vide its judgment
quashed and set aside the First Information Report (FIR) insofar as the investigation into the
offences punishable under the IPC were concerned, on the basis that the ingredients of
offences alleged under IPC were the same as compared to the ingredients of the offences
alleged to have been committed under IT Act.

In June 2003, the Interactive Digital Software Association (IDSA) hailed a unanimous
decision by the U.S. Court of Appeals for the 8th Circuit Court finding that video games are a
constitutionally protected form of expression and that government cannot enact laws
regulating sale of violent video games to minors.
This decision is a total and unambiguous assertion of the fact that video games have the same
constitutional status as a painting, film, and book. this decision sends a powerful signal to
government at all levels to regulate consumer's access to the creative and expressive content
in video games will not be tolerated.

In its ruling the court made some extremely important findings. it said that games, regardless
of their content are constitutionally protected speech. 'If the first amendment is versatile
enough to shield the painting of Jackson Pollack, music of Arnold Schoenberg, or
Jabberwocky verse of Lewis Carol, we see no reason why the pictures, graphic designs,
concept art, sounds, music, stories and narratives present in video games are not entitled to
free protection.

In Canada, video games enjoy complete freedom from government regulation. The Canadian
Interactive Digital Software Association (CIDSA), comprising major Canadian video game
manufacturers, has adopted the U.S industry's voluntary classification system. Association
member companies are encouraged, but not mandated, to submit their wares to the U.S board
for rating before sending them to Canadian stores. Harvey Nightingale, CIDSA Executive
Director, says the purpose of the board is "not to censor, but to provide consumer
information." while the industry maintains that the classification system is intended to keep
adult-rated games out of the hands of children and youth, they vigorously oppose any attempt
to legislate the system by mounting legal challenges and lobbying politicians. In the present
case, the petitioner with the same intent made the game accessible only to the age group
between 19-24.

Chandrakant Kalyandas Kakodkar v. Province of Maharashtra[9], the court held: “What is

obscenity has not been characterized either in area 292 of IPC or in whatever other statutes. It
just restricts or punishes the mailing, granting, sending out, distributing and offering of the
obscene issues. It is the obligation of the Court to consider the obscene issue by taking a
general perspective of the whole work furthermore, to decide if the obscene entries are so
prone to debase and degenerate those whose minds are interested in impacts of this short.”
In state of Punjab v. Amristsar Beverages Ltd1, creative interpretation had been restored to by
the Hon’ble court so as to achieve a balance between the age old and rigid laws on the one
hand and the rigid laws on the other. The Judiciary always responds to the need of the
changing scenario in regard to development of technologies. It uses its own interpretative
principles to achieve a balance when Parliament has not responded to the need to amend the
statute having regard to the developments in the field of science. This court has approved the
principle of updating construction, as enunciated by Francis Bennion, in a number of
decisions. These principles were quoted with approval in the case of CIT v. Podar cement 2.
They were also cited with approval in the case of State v. S.J.Choudhary3.

A statute is vague when persons of ordinary intelligence have no reasonable opportunity to

know what is prohibited. The American Supreme Court noted that a vague law impermissibly
delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc
and subjective basis, with the attendant dangers of arbitrary and discriminatory application.
There are, therefore, a number of problems with vague laws: one of the fundamental purposes
of law is to allow citizens to plan their affairs with a degree of certainty. Vagueness in
legislation prevents that. And equally importantly, vague laws leave a wide scope of
implementing power with non-elected bodies, such as the police – leading to the fear of
arbitrary application.

In Shreya Singhal v. Union of India4, section 66A of the IT Act was struck down by the
Supreme Court since it fell foul of article 14, 19 and 21 of the Indian Constitution. The Court
held that Section 66-A was ambiguous and over-expansive, and in this way fell foul of
Article 19(1)(a), since the statute was not barely customized to particular occasions of
discourse which it tried to check. We could relate this on similar grounds with section 67 and
67A of the IT Act.

Shreya Singhal v. Union of india, has upset the idea of Freedom of Speech and Expression
ensured by the Constitution under Article 19(1). As years passed, the Supreme Court
interpreted the idea of the Freedom of Speech and the almost negligible difference between
the right to speak freely what's more, criticism law and expanded the right to speak freely
restricting a thin degree to the defamation law.

1
AIR 2006 SC 2820
2
3
4
Legitimacy of the law was tried utilizing both sacred and different parameters. The protected
parameters or the legality of the law was considered and it was discovered that it was
explicitly violative of Article 19(1) and not spared by the special cases or the parameters of
"sensibility" as expressed in Article 19(2). This was the perception made by the court
making this law unlawful. The counsel would like to relate this case to that of the Young
Persons (Harmful Publications) Act which violates the Fundamental Rights of a person on
similar grounds.

United Nations Educational, Scientific and Cultural Organization (UNESCO) conference on

‘Freedom of Expression on the Internet’ in Marrakech has held that "Everyone has the right
to freedom of opinion and expression; This right includes not to be disturbed by their
opinions, to investigate and receive information and opinions, and to disseminate them,
without limitation of frontiers, by any means of expression."

In Samaresh Bose and Another v Amal Mitra and Another5, the case was regarding the
obscenity shown in a book and the court held that 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".

In Director General, Directorate General of Doordarshan & Others v Anand

Patwardhan and Another6, the court said that there are scenes of violence and social
injustices but the film, by no stretch of the imagination, can be said to subscribe to any of
that. The depiction is meant to convey that such social evils are evil. There cannot be any
apprehension that it is likely to affect public order or incite commission of an offence.
Similarly, in the present cases also, the game allowed the players to play the role that
resembled the real life of a person where one could heroic, noble, offensive or obscene acts

5
AIR 1986 SC 967
6
1996(8)SCC433
and this is left to the choice of the players to select the role they liked. This game shows the
real life situations and is no way trying to derogate the morality of the society and cannot be
considered to arose prurient interest among the youth.

In Maqbool Fida Husain v Raj Kumar Pandey7, the case was regarding the nudity in a
painting and was challenged to be obscene. The Court held that, on the face of it, the painting
was neither lascivious nor likely to appeal to the prurient interest – i.e. the painting would not
arouse sexual interest in a perverted person and would not morally corrupt or debase a person
viewing it. In our present case also, the game is just meant for the purpose of entertainment
and is not meant to arise any lascivious effect on the players. Since the game is made of
graphics and animations, it cannot be considered to be obscene and it cannot debase the
morality of the society and cannot corrupt the players playing the game.

It is not concerned with the determination of the legislative competence or vires of a particular
enactment.3 To make out a case under this Article the petitioner should not merely establish that
the law complained of is beyond the competency of the particular legislature, as not being covered
by any of the items in the legislative lists, but also that it invades the fundamental rights guaranteed
by the Constitution of which he can seek enforcement by an appropriate writ or order.4 It is said
that an enactment cannot be struck down on the plea that it is unreasonable, unnecessary or
unwarranted. There is always a presumption in favour of constitutionality. In this case the Petitioner,
Mathew, alleges infringement of Articles 14, 19(1) (a) & (g) and 21 of the Constitution. But there is
no violation of fundamental rights as the Petitioner claims and hence this writ petition is not
maintainable.

Hightlight

In Romesh Thappar v State of Madras (AIR 1950 SC 124), the Supreme Court of India held
that the freedom of speech and expression includes freedom to propagate ideas which is
ensured by freedom of circulation of a publication, as publication is of little value without
circulation. Patanjali Sastri, J., rightly observed that-

‘Freedom of Speech and of Press lat at the foundation of all democratic organizations, for
without free political discussion no public education, so essential for the proper functioning
of the process of Government, is possible’

However Article 19(2) of the Constitution provides that this right is not absolute and
‘reasonable restrictions’ may be imposed on the exercise of this right for certain purposes.
The right to freedom of expression includes the right to express ones views and opinions on
any issue and through any medium whether it be in writing or by word of mouth.

7
Crl. Revision Petition No. 114/2007
Respondent side:

Moreover, it is important to note that liberty of one must not offend the liberty of others.
Patanjali Shastri, J. in A.K. Gopalan case, observed, “man as a rational being desires to do
many things, but in a civil society his desires will have to be controlled with the exercise of
similar desires by other individuals”. Here the liberty of the publishers is curbed to ensure
the law and order of the society. The young persons harmful Publications Act is necessary to
protect the young society from the harmful publications which seems to be violent, immoral,
obscene or cruel and may arouse criminal behaviour or lascivious effect among the youth.

Freedom of speech, though guaranteed, is not absolute in India. Unlike the U.S. Constitution,
the text of India’s Constitution clearly sets out restrictions on free speech and expression. The
freedom of speech and expression guaranteed under Article 19(1)(a) can be subject to
reasonable state restriction in the interest of decency or morality. Obscenity in India is
defined as “offensive to modesty or decency; lewd, filthy and repulsive.” It stated that the test
of obscenity is whether the publication, read as a whole, has a tendency to deprave and
corrupt those whose minds are open to such immoral influences, and therefore each work
must be examined by itself .

With respect to art and obscenity, the Court held that “the art must be so preponderating as to
throw obscenity into a shadow or the obscenity so trivial and insignificant that it can have no
effect and may be overlooked .” The Court concluded that the test to adopt in India,
emphasizing community mores, is that obscenity without a preponderating social purpose or
profit cannot have the constitutional protection of free speech.

It is necessary to maintain and preserve freedom of speech and expression in a democracy, so also it is
necessary to place some restrictions on this freedom for the maintenance of social order because no
freedom can be absolute or completely unrestricted. Accordingly, under Article 19(2) of the
Constitution of India, the State may make a law imposing “reasonable restrictions” on the exercise of
the right to freedom of speech and expression “in the interest of” the public on the following grounds:
Clause (2) of Article 19 of the Indian constitution contains the grounds on which restrictions on the
freedom of speech and expression can be imposed:-

Public Order: Next restriction prescribed by constitution is to maintain public

order: This ground was added by the Constitution (First Amendment) Act. ‘Public order’ is
an expression of wide connotation and signifies “that state of tranquility which prevails
among the members of political society as a result of internal regulations enforced by the
Government which they have established.”

Here it is pertinent to look into meaning of the word “Public order. Public order is something
more than ordinary maintenance of law and order. ‘Public order’ is synonymous with public
peace, safety and tranquility. Anything that disturbs public tranquility or public peace
disturbs public order. Thus communal disturbances and strikes promoted with the sole object
of accusing unrest among workmen are offences against public order. Public order thus
implies absence of violence and an orderly state of affairs in which citizens can peacefully
pursue their normal avocation of life. Public order also includes public safety. Thus creating
internal disorder or rebellion would affect public order and public safety. But mere criticism
of government does not necessarily disturb public order

Decency or morality: The way to express something or to say something should be a decent one. It
should not affect the morality of society adversely. Our constitution has taken care of this view and
inserted decency and morality as a ground. The words ‘morality or decency’ are words of wide
meaning. Sections 292 to 294 of the Indian Penal Code provide instances of restrictions on the
freedom of speech and expression in the interest of decency or morality. These sections prohibit the
sale or distribution or exhibition of obscene words, etc. in public places. No fix standard is laid down
till now as to what is moral and indecent. The standard of morality varies from time to time and from
place to place.

Hamdard Dawakhana v. Union of India8v. Union of India9

The validity of the Drug and Magic Remedies (Objectionable Advertisement)

Act, which put restrictions on advertisement of drugs in certain cases and
prohibited advertisements of drugs having magic qualities for curing diseases
was challenged on the ground that the restriction on advertisement abridged
the freedom. The Supreme Court held that an advertisement is no doubt a
form of speech but every advertisement was held to be dealing with
commerce or trade and not for propagating ideas.

People’s Union for civil liberties v. Union of india9

In this case, public interest litigation (PIL) 11 was filed under Article 3212 of the
Indian Constitution by PUCL, against the frequent cases of telephone
tapping. The validity of Section 5(2)13 of The Indian Telegraph Act, 1885 was
challenged. It was observed that “occurrence of public emergency” and “in
the interest of public safety” is the sine qua non14for the application of the
provisions of Section 5(2). If any of these two conditions are not present, the
government has no right to exercise its power under the said section.

Telephone tapping, therefore, violates Article 19(1) (a) unless it

comes within the grounds of reasonable restrictions under Article
19(2).

A.Abbas v.Union of india10

The case is one of the firsts in which the issue of prior censorship of films
under Article 19(2) came into consideration of the Supreme Court of India.
Under the Cinematograph Act, 1952, films are divided into two categories-

8
AIR 1960 SC 554
9
AIR 1997 SC 568
10
AIR 1971 SC 481
‘U’ films for unrestricted exhibition, and ‘A’ films that can be shown to adults
only. The petitioner’s film was refused the ‘U’ certificate, and he challenged
the validity of censorship as violative of his fundamental right of freedom of
speech and expression. He contended that no other form of speech and
expression was subject to such prior restraint, and therefore, he demanded
equality of treatment with such forms. The Court, however, held that motion
pictures are able to stir emotions more deeply than any other form of art.

Hence, pre- censorship and classification of films between ‘U’ and ‘A’
was held to be valid and was justified under Article 19(2) of the
Constitution.

Indian Express Newspapers v. Union of India:

The Court, in this case, observed that, Article 19 of the Indian Constitution does not use the
phrase “freedom of press”16 in its language, but it is contained within Article 19(1) (a). There
cannot be any interference with the freedom of press in the name of public interest. The
purpose of the press is to enhance public interest by publishing facts and opinions, without
which a democratic electorate cannot take responsible decisions.

It is, therefore, the primary duty of courts to uphold the freedom of press and invalidate all
laws or administrative actions which interfere with it contrary to the constitutional mandate.

Since the freedom of speech is mainly governed by the first amendment of the constitution
and first amendment did not talk about obscenity and freedom of speech, The Supreme Court
has usually refused to give obscenity any protection. The governments, both federal and state,
have been permitted to make suitable legislation. However the court from time to time
developed various tests to examine obscenity. In Roth v. United States, Court applied a new
test for obscenity, which was "whether to the average person, applying contemporary
community standards, the dominant theme of the material, taken as a whole, appeals to the
prurient interest." this is known as Ruth test of obscenity.

The Roth test was further expanded when the Court decided Miller v. Californiacase. It is
commonly known as Miller test. Under the Miller test, a work is obscene if it would be found
appealing to the prurient interest by an average person applying contemporary community
standards depicts sexual conduct in a patently offensive way and has no serious literary,
artistic, political or scientific value. It thus includes the expression of one’s ideas through any
communicable medium or visible representation, such as gesture, signs and the like .It very
important to note that under Miller test, the “community" standards are followed, which
might be different from the national standard. Thus, material may be deemed obscene in one
locality but not in another. National standards, however, are applied whether the material is
of value.

No law or action would state in words that rights of freedom of speech and expression are abridged.
Nevertheless, it is the duty of the Court to strike down the legislation or the executive action if it
causes direct interference with the freedom of speech and expression notwithstanding that it does
not appear to do so on its face11.

Clause (2) of Article 19 specifies the purposes or grounds in the interest of which or in relation to
which the reasonable restrictions can be imposed on the freedom of speech and expression. It may
be noticed that reasonable restrictions under Clause (2) of Article 19 can be imposed only by a duly
enacted law and not by executive action unsupported by law12.

In M.R.F. Ltd. Vs. Inspector Kerala Government13 the following principles on the reasonableness of
restrictions imposed upon the Fundamental Rights available under Article 19 have been laid down
on a conspectus of various decisions ofthe Supreme Court: (1) While considering the reasonableness
of the restrictions, the Court has to keep in mind the Directive Principles of State Policy,
(2)Restrictions must not be arbitrary or of an excessive nature so as to go beyond the requirement of
the interest ofthe general public. (3) In order to judge the reasonableness of the restrictions, no
abstract or general pattern or a fixed principle can be laid down so as to be of universal application
and the same will vary from ease to case as also with regard to changing conditions, values of human
life, social philosophy of the Constitution, prevailing conditions and the surrounding circumstances.
(4)A just balance has to be struck between the restrictions imposed and the social control envisaged
by Clause (6) of Article 19 of the Constitution. (5) Prevailing social values as also social needs which
are intended to be satisfied45. (6) There must be a direct and proximate nexus or a reasonable
connection between the restrictions and the object sought to be achieved.

In the Narendra Kumar case14 the Court laid down. "In applying the test of reasonableness, the Court
has to consider the question in the background of the facts and circumstances under which the
order was made, taking into account the nature of the evil sought to be remedied by such law, the
ratio of the harm caused to individual citizens by the proposed remedy to the beneficial effect
reasonably expected to result to the general public.

Important

Reasonableness of restrictions is to be considered from the point of view of the general public and
not from the point of view of the person upon whom restrictions are imposed. The restrictions must
be reasonable both from the stand-point of substantive as well as procedural law. The restrictions
must not be excessive. The Courts have adopted the principle of natural justice in determining
reasonableness or otherwise of restrictions. It is to be noted that a decision dealing with the validity
of restrictions imposed on one of the rights conferred by Article 19(1) cannot have much value as a

11
Sakai papers, AIR 1962 SC 315
12
Romesh Thaper vs. State ofMadras, AIR 1950 SC 124
13
(1998) 8 SCC 227
14
AIR 1960 SC 430
precedent for adjudging the validity of the restrictions imposed on another right, even when the
constitutional criterion is the same, namely reasonableness, as the conclusion must depend upon
the cumulative effect of the varying facts and circumstances of each case15.

The power of the Government to limit human liberty must itself be limited, as also the right of the
individual to enjoy his liberty. In absence of any such provisions, personal liberty might itself be put
in jeopardy. When the Government restricts individual liberty, no doubt it results in the curtailment
thereof. But. in the absence of such an action on the part of Government, individual liberty itself
might come to an end by the actions of anti-social persons. Hence, a reconciliation of the two is very
necessary. In the United States of America, the Amendments guarantee Fundamental Rights. But,
there is no specific provision in the Constitution enabling the Government to restrict these rights.
Hence, the Supreme Court of the U.S.A. invented the doctrine of ‘Police Power’ for bringing about
the essential reconciliation. The Supreme Court of America observed, “The liberty of the individual
to do as he pleases, even in innocent matters, is not absolute. It must frequently yield to the
common good”16.

Clause (2) of Article 19 expressly authorizes the legislature to impose reasonable restrictions on the
ground of “decency” or “morality”. The word ‘obscenity’ of English law is identical with the word
‘indecency’ under the Indian Constitution. The words ‘indecent’ and ‘obscenity’ are used in the
English statutes in the same sense, such as Obscene Publications Act, 1959; Indecent Advertisements
Act. Though both the words are used synonymously, there is a difference in degree between the two
expressions17. The English Court says “indecent is at the lower end of the scale and obscene at the
upper end of the scale.... an indecent article is not necessarily obscene, whereas an obscene article
must almost certainly be indecent”. The correct interpretation, according to the legal meaning of the
two words, is that obscenity is a graver form of indecency. According to the Oxford Dictionary
obscenity means “offensive to modesty or decency; expressing or suggesting unchaste or lustful
ideas, impure, indecent lewd”, etc.

In Sukanta Haider vs. The State18, Mr. Justice R.P. Mookherjee says: The idea as to what is to be
deemed to be obscene has varied from age to age, from region to region, dependent upon particular
social conditions. There cannot be an immutable standard of moral values”. There is hardly a country
in the world that has succeeded in defining obscenity. The concept of obscenity would not only vary
from individual to individual but it would also vary from community to community and in the same
community from one place to another. What is obscene to a community would ultimately be
determined by the attitude of the society, in a particular period. What has been condemned as
obscene by one community has been appreciated as a masterpiece of literary work by the same
community in a later period or by another community at the same time. The classic illustration of
this could be found in the reaction of English and French communities to Emile Zola’s La Terre. Just
at the time Vizetelly, the publisher of La Terre, was convicted and sentenced by an English Court for
having publishing the novel, Zola was awarded membership of the Legion of Honour by the French
Government. Seven years later, Zola was honoured by Literacy London.

15
State ofMadras vs. V.G. Row, AIR 1952 SC 196.
16
Adkins vs. Children ’s Hospital, 261 US 525
17
R. V Stanley^ (1965) 1 All ER 1035 (1038)
18
AIR 1952 Cal. 214.
In Samaresh Bose vs. Amal Mitra19, the Supreme Court considered and rejected the charge of
obscenity against a novel titled Prajapati written by a well known writer. The Court held that, the
book which was intended to expose various evils and ills pervading society cannot be said to be
obscene only because slang and unconventional words have been used, in which there is an
emphasis on sex and description of the female body. The Court explained that, “Some portions of
the book may appear to be vulgar and readers of cultured and refined taste may feel shocked and
disgusted”, but that was not the test of obscenity. The Court distinguished between vulgar and the
obscene and said that what is vulgar does not necessarily corrupt the morals but the obscenity does.
The Court says, “in our opinion, in judging the question of obscenity', the judge in the first place
should try to place himself in the position of the author and from the view point of the author the
judge should try to understand what is it that the author seeks to convey and what the author
conveys has literary and artistic value”83.

The States have a legitimate interest in prohibiting discrimination or exhibition of obscene material
when the mode of dissemination carries with it a significant danger of offending the sensibilities of
unwilling recipients or of exposure to juveniles20. The Supreme Court of the U.S.A. disapproved the
theory from state regulation simply because they are exhibited for consenting adults only”21

The
 right
 to
 freedom
 of
 expression
 is
 guaranteed
 in
 very
 similar

terms
 by
 both
 Article
 19
 of
 the
 Universal
 Declaration
 on
 Human

Rights
 (UDHR), 22
 a
 UN
 General
 Assembly
 resolution,
 and
 Article

19(2)
 of
 International
 Covenant
 on
 Civil
 and

Political
Rights
(ICCPR),2
a
formally
binding
legal
treaty
ratified
by
165

States. 3
The
 latter
states:
Everyone
shall
have
the
right
to
freedom
of
expression;
this
right
shall

include
freedom
 to
 seek,
 receive
and
impart
information
and
ideas

of
all
 kinds,
 regardless
 of
 frontiers,

either
orally,
in
writing
or
in
print,
in
the
form
of
art
or
through
any

other
media
of
his
 choice.

19
AIR. 1986 SC 967.
20
Uarnpnt vs. Postmaster General 381 US 301
21
Paris Adult Theatre vs. Slayton 413 US 40
22
United Nations General Assembly Resolution 217A (III), 10 December 1948