CASE NOTES

Ranjit D. Udeshi vs State of Maharashtra

AIR 1965 SC 881

KHANAK MALIK
21011385
BBA LLB Hons.
Section E
 CONTENTS

 FACTS

 ISSUES

 RELEVANT SECTION

 ARGUMENTS FOR THE APPELLANT

 ARGUMENTS FOR THE RESPONDENTS

 JUDGEMENTS

 FINAL DECISION

 MY OPINION
FACTS

The appellant is one of four partners in a firm that operates a bookstall named Happy
Bookstall in Bombay. The appellant and the partners were charged under Section 292 of the
Indian Penal Code for having in their possession for the purpose of selling copies of an
obscene book named Lady Chatterley's Lover (unexpurgated edition) by DH Lawrence,
which contained obscene matter, among other things (IPC). This book was sold to Ali Raza
Sayeed Hasan on December 12, 1959. The text in the book described a variety of accounts
depicting sexual intimacies between one Mrs Chatterley and her lovers, which became the
impugned text to be decided for under obscenity.

The storyline of the novel Lady Chatterley's Lover revolves around a baronet who was
injured in the war and is paralysed from the waist down. He then married Constance (Lady
Chatterley) shortly before joining the army, and they enjoyed a brief honeymoon. Sensing his
wife's sexual frustration and their inability to conceive a child, he allowed her to associate
with other men. She first had an encounter with one Michaelis, and then with the
groundskeeper, Mellors. The first partner was sexually selfish, while the second was an artist.
He explains the entire enigma of sensuality to Constance, and they put it into practice. There
are several descriptions of their sexual interactions. The game-speech keepers and vocabulary
were not genteel. He knew no Latin that could be used to placate the censors, and he freely
discusses the human pudenda and other erogenous areas, which are also named by the author
in the descriptions. The sexual congress is recounted each time with tremendous candour and
in prose that is as tense as it is intense, and of which Lawrence was always a superb master.
The rest of the narrative is monotonous and mundane. There is some criticism of modern
machine society and its enervating consequences, as well as the development of sexually
ineffective men and women, which Lawrence believes is the source of sex maladjustment and
unhappiness. DH Lawrence had a dual purpose in writing the book. The first was to shock the
genteel society of the country of his birth which had hounded him and the second was to
portray his ideal of sexual relations which was never absent from any of his books.

The Magistrate ruled that the book was obscene and objectionable for the purposes of Section
292 of the Indian Penal Code, and so convicted all four partners on the first count, fining each
of them Rupees 20 and sentencing them with one week's simple imprisonment in default.

The present appellant filed a revision at the High Court of Bombay, and the High Court's
verdict was held to be against him.

He then sought special leave to appeal to the Supreme Court, citing Article 19 (1) (a) of the
Indian Constitution, which guarantees freedom of speech and expression.

The Hicklin test, as articulated in a case from the United Kingdom, Queen v. Hicklin, was

found to be a valid test for determining what constitutes obscenity.
ISSUES

1. Whether Section 292 of the Indian Penal Code is constitutionally valid against Article
(1) (a) of the Indian Constitution, i.e., the right to freedom of speech and expression.

2. Whether the book when looked at in context can be considered obscene within the
meaning of Section 292 (a).

3. Whether Section 292, which is silent on mens rea, would be interpreted using strict
liability.
RELEVANT SECTION
As per Section 292 of the Indian Penal Code, the sale of obscene books etc: Whoever—

(a) sells, lets to hire, distributes, publicity exhibits or in any manner puts into circulation, or
for purposes of sale, hire, distribution, public exhibition or circulation, makes, produces or
has in his possession any obscene book, pamphlet, paper, drawing, painting, representation or
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 a 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.
ARGUMENTS FOR THE APPELLANT

Mr Garg, for the appellant.

The legal counsel for the appellant raised two legal concerns of law namely, the validity of
Section 292 of the Indian Penal Code and the proper interpretation and application of the
aforementioned section to the impugned novel.

His argument was primarily based on the following three legal grounds:
(1) that Section 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 clause (2) of the same article;
(2) that even if section 292 of the Indian Penal Code, is valid, the book is not obscene if
the section is properly construed and the book as a whole is considered. Thus, the
appellant contended that the test adopted by the High Court and the courts in Queen v.
Hicklin needs to be modified; 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.

His primary focus was that obscenity is a work of art that does not have to be regarded as
objectionable if it involves sex or nudity. He claims that any piece of literature should not be
destroyed if it is in the public interest and that the contested subject should be examined as a
whole, with aesthetic and literary merits weighed against the claimed obscenity, the context
in which it appears, and the intended outcome.

Furthermore, he discusses the landmark case of Queen v. Hicklin, arguing that the test
established in that case by the High Court and lower courts was redundant, regressive, and
needed to be adjusted. The Hicklin test assessed obscenity based on its proclivity to deprave
and corrupt weak persons whose brains are susceptible to such immoral influence and who
may have access to such publications. And that the publication's illegality is unaffected by a
benevolent ulterior motive. He contended that the Hicklin test should be altered in two ways.
He continues by claiming that a stray passage here or there, or a specific word here or there,
does not have the power to discredit an entire text and that a normal person, that is, one with
mens sana in corporis sana, should be the standard rather than an immature adolescent or an
abnormal individual. First, he claimed that the overall effect of the book should be the test;
secondly, The book should be condemned only if it has no redeeming qualities; and third,
there must be an aim to corrupt the minds of the people to whom the book was sold.
ARGUMENTS FOR THE RESPONDENT

Mr Mulkraj Anand, for the respondent.

The respondent's legal counsel began by questioning two witnesses in order to prove the
requirements of the relevant clause. The first was the test purchaser stated in the allegation,
and the second was a Vigilance Department inspector. The prosecution established ownership
and sale of the book by the testimony of these witnesses, which are undisputed facts. In his
statement, the inspector also stated his reasons for believing the book to be obscene.

Regarding the problem of infringement of freedom of speech and expression under Article 19
of the Indian Constitution, he contends that, while this article protects entire freedom of
speech and expression, it does not protect all forms of expression. It also acknowledges that
certain laws may limit the exercise of this right in the name of morality or public decency. In
terms of the Constitution, it is impossible to argue that obscenity that offends modesty or
societal decency is protected by this right to free speech or expression because the article
dealing with it forbids it in its second clause. Article 19(2) states that “Nothing -in sub-clause
(a) of clause (1) shall affect the operation of any existing law, or prevent the State from
making any law, in so far as such law imposes reasonable restrictions on the exercise of the
right conferred by the said sub-clause in the interests of public order, decency or morality".

The prosecution then intends to address the appellant's third argument, which is that the
prosecution must prove that the person who sells or keeps for sale any obscene object knows
it is obscene before he can be found guilty. He rejects this argument and claims that the first
sub-section of Section 292 of the Indian Penal Code does not include knowledge of obscenity
as a component of the offence. The prosecution claims that they do not need to establish
something that the law does not require. If knowledge were made a part of the guilty act (acts
reus) and the prosecution was compelled to show it, offenders would have an almost
impregnable defence. As a result, something far less than true knowledge must satisfy.

He then goes on to argue that because the quantity of books available now is so vast and their
contents so diverse, the question of whether or not there is mens rea must be based on
specific knowledge of the existence of obscenity.

Following that, he analyses the second half of the guilty act, namely the selling or
maintaining for sale of an obscene thing. He claims that the perpetrator must have sold or
maintained the offending product for sale and that the circumstances of the case will indicate
the criminal intent.

He then uses the example of Wilkes printing a dozen copies of his Essay on Woman for
private distribution, and the printer taking an extra copy for himself, which was acquired
from the printer and brought Wilkes to grief in front of Lord Mansfield.
He claims that the appellant's counsel is incorrect in claiming that the Hicklin case (1868)
emphasised the significance of a few words or a stray phrase. The Chief Justice stated that
"the matter charged" must have a "tendency to deprave and corrupt." He claims that the
remark does not imply that even a stray word or a little passage would suffice. Any remark to
that effect in the judgement must be read secundum subjectam materiam, that is, only in
relation to the pamphlet under consideration. It is also not essential to compare one book to
another to determine the scope of legal activity.
JUDGEMENTS

Judges sitting:
1. P. B. Gajendragadkar, Chief Justice
2. K. N. Wanchoo, Justice
3. M. Hidayatullah, Justice
4. N. Rajagopala Ayyangar, Justice
5. J. C. Shah, Justice

The Court determined that the Hicklin test applied to the entire case, not just specific parts of
it. The court found that while the story of the book Lady Chatterley's Lover did not reveal
obscenity in portions, the whole story had a very sexual atmosphere and so could be
categorised as obscene. The court rejected the third argument that there must have been an
intent to corrupt the minds of the people to whom the book was sold because, unlike some
other Sections of the IPC that begin with the words "whoever knowingly or negligently etc.",
this Section does not make knowledge of obscenity an ingredient of the offence. The
prosecution is not required to establish anything that the law does not require. The court
imposed strict liability for retaining obscene content for sale with or without knowledge of
obscenity.

The court further stated, “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. Such a treating with sex is offensive to modesty and decency but the extent of such
appeal in a particular book etc. are matters for consideration in each individual case.”

The Court also stated that where obscenity and art are mixed, art must be 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 test with some
modifications due diligence should be given to our community mores and standards.

The Supreme Court of India held that the appellant was guilty under Section 292 of the IPC
as he was in possession for the purpose of selling obscene material.
MY OPINION

After going through the entire case, analysing the arguments, and comprehending the
judgment, I believe that, despite people's fundamental right to free speech and expression, as
expressed in Article 19 of the Indian Constitution, this right might be restricted if the harm
condition is fulfilled. The harm principle states that conduct should be criminalised only if it
is harmful. An action that causes injury to another person is not only immoral, but it is also
bad enough that the state can intervene to prevent the harm from occurring.

In this case, it was found that the overall story of the book Lady Chatterley’s Lover had a
very sexual atmosphere and hence, could be construed as obscene. Therefore, it can be
logically interpreted that this book has the potential to corrupt and harm the minds of the
people to whom the book was being sold.

I also agree with the words of the Supreme Court where they stated that their standards must
be so framed that they 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.

I believe that it is crucial to understand the dynamics of the society we live in and learn to
adapt to the changing ideas of morality and obscenity, which were considered taboo a few
years ago.

All in all, I agree with the judgements of the Supreme Court in this case.