“Historically respectable personalities”: The Supreme Court invents a new exception to free speech

When the Supreme Court struck down S. 66A of the IT Act in Shreya Singhal vs Union of India two months ago, the verdict was hailed as a landmark milestone in Indian free speech jurisprudence, for two reasons. First, for once, the Supreme Court followed up its platitudes about the value of free speech in a democracy not with a sentence beginning with “but...”, but rather with actual concrete action – striking down a speech-restricting provision. And secondly, it was a judgement in which the Supreme Court began with the text of Article 19(1)(a) and 19(2), proceeded to rigorously examine that text in light of constitutional history, purpose and precedent, and analysed the impugned law on the touchstone of the Constitution, as understood and interpreted over the years.

Today, in Devidas Ramachandra Tuljapurkar vs State of Maharashtra, the Supreme Court reversed the slight gains made by Shreya Singhal on both counts, creating a new exception to 19(1)(a) when it comes to putatively obscene speech about “historically respectable figures”. As I shall presently explain, today’s judgement is entirely misconceived, for the following reasons: first, it misstates and misconstrues fifty years of Indian obscenity law jurisprudence; secondly, it invents a “historically respectable figures” exception with no basis in constitutional text, history, precedent or reason; thirdly, in failing to define this new standard, it opens a Pandora’s Box of future claims brought on behalf of “historically respectable figures”, which will cast a deep and broad chilling effect upon core political speech; and fourthly, in creating an artificial hierarchy between “historically respectable figures” and the rest, with differential standards applying to both, it destroys the very basis of having a fundamental right to free speech in the first place – that is, to enable citizens to contest the most entrenched and basic norms that society subscribes to.

In Devidas Ramachandra Tuljapurkar, the question before the Court was asked to quash charges of obscenity leveled against a poet for writing a poem called “Gandhi Mala Bhetala” (‘I Met Gandhi’), published in 1994 and meant for private circulation among the employees of the All India Bank Association. A member of the “Patit Pawan Sangathan” lodged a complaint with the Police against the author and publisher, alleging offences under Sections 153A and 153B of the IPC (causing disharmony between classes) and 292 (obscenity). The Magistrate discharged the accused under 153A and 153B, but not under 292. After unsuccessfully moving the Additional Sessions Judge and the High Court to quash the charge, the accused finally reached the Supreme Court.

After setting out the factual matrix, the Court spent the next thirty-seven pages extracting excerpts from various judgements handed down by American, English and European Courts (paragraphs 12 to 33); thefifty-four pages extracting excerpts from various Indian judgements on obscenity (paragraphs 34 to 60); and then sixteen pages extracting excerpts from the Constituent Assembly Debates and various Indian judgements in praise of free speech (paragraphs 61 to 72). Since the Court made no attempt at a synthesis, however, it is essential to set out, in brief, the development of Indian obscenity law over the last fifty years.

In its 1965 judgement in Ranjit Udeshi vs State of Maharashtra, the Supreme Court had adopted the Victorian-era English test in R vs Hicklin: material was obscene if it tended to deprave or corrupt the people into whose hands it was likely to fall. There were three problems with the Hicklin test as it stood: the broadness of the terms “deprave or corrupt”; its acontextuality (prosecutions under the Hicklin test would focus on pointing out specific words or phrases that were supposedly obscene); and its focus on looking at the text from the point of view of the people who, in the opinion of the Court, were most likely to be corrupted or depraved – something that Madhavi Divan has called “the most vulnerable constituency test”. The second of these issues was resolved by the Court in Udeshi itself, when it clarified that obscenity must be tested by looking at the work of art as a whole, and in context. Subsequently, over the next fifty years, the other prongs of Hicklin were gradually liberalised. In cases over the 80s and 90s, and ending with D-G Doordarshan vs Anand Patwardhan, and Ajay Goswami, the Supreme Court shifted from the “most vulnerable constituency test” to that of the average, reasonable and strong-minded reader; and in Aveek Sarkar, decided last year, it finally expressly abandoned Hicklin after a half-century of chipping away, and replacing it with the 1957 American test in Roth vs US. The Roth test holds that:

“The standard for judging obscenity, adequate to withstand the charge of constitutional infirmity, is whether, to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest.”

The Roth test, therefore, is sharper and narrower than Hicklin. It does not cover all material that might corrupt or degrade, but limits itself to whether the dominant theme of the material, taken as a whole, appeals to the prurient interest (and whether it is utterly without redeeming social value). Admittedly, Roth is a problematic test, and as I’ve pointed out before, Aveek Sarkar ought to have considered the developments within American obscenity jurisprudence as well, in future cases, before relying upon a test that has been significantly displaced in its own country of origin. Nonetheless, as a test for obscenity, it is at least more speech-protective than Hicklin – because, for instance, merely (allegedly) vulgar or distasteful work, that might also allegedly deprave or corrupt individuals, would not be caught by the obscenity net.

This survey is essential to understand why the Court proceeds to go entirely off the rails in Tuljapurkar. The test for obscenity, as developed in Roth and adopted in Aveek Sarkar, does not contemplate differential standards for different people. It proceeds on a simple basis: does the work, taken as a whole, to the average reader, appeal to the prurient interest? Presumably, under the old Hicklin test, it would be somewhat possible to make this distinction by (somehow) arguing that disrespecting historically respectable figures would corrupt all those people who follow them as models for the ideal life. I say presumably, because this argument is a stretch, but it is at least conceivable. Under Roth and Sarkar, however, it is the nature of the work that matters, not not who it is about.

The Court gets around this rather basic problem by engaging in what can only be called a sleight of hand. In paragraph 73, it holds that “the test evolved by this Court, which holds the field today is the ‘contemporary community standards test’.”

This, however, entirely misstates the Roth test by omitting what follows after community standards. A complete statement of the test is:

“…applying contemporary community standards, [whether] the dominant theme of the material, taken as a whole, appeals to prurient interest.”

It is not open to judges to pick one part of a judicially evolved test, established through years of gradual and incremental precedent, and omit another part that is inconvenient to the conclusion that they wish to reach. If a judge wishes to depart from a test, than it is incumbent upon him to state the old test, provide his new version, and give reasons for doing so. This is how the Court went about replacing Hicklin with Roth in Aveek Sarkar, and how a Court is normally supposed to act.

By simply ignoring the second part of the Roth test, the Court is able to invent a new exception to free speech: obscenity standards are different when it comes to “historically respectable figures”, because of community standards. To prove the established “community standards” in case of Gandhi, the judgement spends the next twelve pages extracting various Supreme Court judgements that had referred to Gandhian thought and principles, and cites the names of various books about Gandhi. What role these citations are meant to play in the explication of an obscenity test is unclear, but at the end of it, Justice Dipak Misra observes that:

“The issue in the instant case, whether in the name of artistic freedom or critical thinking or generating the idea of creativity, a poet or a writer can put into the said voice or image such language, which may be obscene.”

This, however, is deeply confusing, because the Court begs the question: first, it says that historically respectable figures command a different threshold of obscenity; then, without explaining what that threshold is, it says that the question is whether “in the name of artistic freedom… a poet… may be obscene.” But there is absolutely no quarrel with that proposition! Everyone accepts that obscenity is a constitutional restriction upon the freedom of speech in India. The question is what constitutes obscenity.

Confusion is worse confounded in its concluding paragraph, where the Court says:

“When the name of Mahatma Gandhi is alluded or used as a symbol, speaking or using obscene words, the concept of “degree” comes in. To elaborate, the “contemporary community standards test” becomes applicable with more vigour, in a greater degree and in an accentuated manner. What can otherwise pass of the contemporary community standards test for use of the same language, it would not be so, if the name of Mahatma Gandhi is used as a symbol or allusion or surrealistic voice to put words or to show him doing such acts which are obscene.”

Quite apart from the fact that the last sentence is viciously circular again, the question remains: how do you apply the “community standards” test as a matter of degree? What does it mean to say that the test applies with “greater vigour“? Prima facie, juxtaposing “community standards” with questions of degree seems entirely incoherent. Does it mean that the burden of proof shifts? Does it mean that the evidentiary standards for establishing community standards are lower (not that the Court has bothered with evidence of community standards in its obscenity judgements before)? The Court does not provide any guidance upon these issues. And by refusing to do so, it opens the floodgates for a whole host of future 292 claims in which organisations, claiming to speak on “behalf” of historically respectable figures (another term that the Court refuses to define), will make of S. 292 what has already been made of S. 295A and 153A. The chilling effect of Ss. 295A and 153A will not be compounded because of a conceptually incoherent and incorrect judgement has made vague observations about strict “community standards” for “historically respectable personalities”, but has made no attempt to clarify the meanings of those vague and open-ended terms.

Lastly, the philosophical implications of this judgement are deeply troubling. In walling off a class of individuals – “historically respectable figures”, the Court does two things. First, it arrogates to itself the power to define “respectability”. On what basis must we all accept Gandhi’s “respectability”? By now, we have reams of literature that impugn Gandhi’s personal and political motivations, his actions and his character, and his impact upon the freedom movement. Through this judicial fiction of Gandhi’s “respectability”, the Court creates a judicial narrative which it then imposes upon the rest of the country. This is not the judiciary’s province. And secondly – and relatedly – by creating differential standards about what can and cannot be said based upon the respectability of historical personalities, the Court betrays the whole purpose of a free speech right: the freedom to question, criticise, and undermine the most deeply entrenched narratives that society holds dear, the freedom to use speech to attempt to uproot and transform the most fundamental social and moral norms of a community (as held in Khushboo vs Kanniamal), the freedom to offend, shock or disturb. A right to free speech is nothing without the right to attack and undermine one of the most deeply crystallised narratives of modern India – the narrative of the “father of the nation”.

The vagueness and conceptual slippages rife throughout this judgement leave it unclear how much of an impact it will have doctrinally. For the reasons adduced above, it is submitted that this judgement is incorrect, productive of great public mischief, and ought to be overruled the first chance the Supreme Court gets.

Lastly, the following observation is necessary: it is one thing to decide a case on the basis of one’s moral or political instinct, and then reverse-engineer reasoning to make the conclusion fit with text and precedent. That is an unavoidable facet of the judicial task, and demonstrates at least a degree of respect for constitutional fidelity. It is quite another thing to decide a case, and then bowdlerize text and precedent by ignoring inconvenient parts that don’t suit your conclusion. In the Make-Up Artists judgement, Justice Dipak Misra did this with regard to the Trade Union Act, citing one half of a statute and ignoring the other half that entirely undermined his argument. Today, he has done it again, citing one half of an existing test, and ignoring the other that would preclude his conclusion. The results – to repeat – make for good headlines or bad headlines, depending upon one’s predilections, but in the long run, they cause serious damage to constitutional fidelity and constitutional doctrine.

Obscenity: The Supreme Court discards the Hicklin Test

Just now, in Aveek Sarkar v. State of West Bengal, the Supreme Court has held that a photograph of Boris Becker and his fiancee, in the nude, is not “obscene” within the meaning of S. 292 of the Indian Penal Code. This judgment is particularly significant because it expressly rejects the Hicklin Test, the archaic 1868 rule for determining obscenity, that the Court has regularly used in its history – most notably, to uphold the ban on Lady Chatterly’s Lover in Ranjit Udeshi’s Case. Interestingly, by citing a number of countries where Lady Chatterly’s Lover was not found obscene, the Court seems – at least implicitly – to be expressing its disapproval of Udeshi, almost fifty years after it was decided (paragraphs 16, 17 and 22). 

In contrast to the Hicklin Test, which was focused on individual or isolated aspects of an entire work that could be deemed obscene, as well as its impact on “vulnerable” sections of society, the Court adopts what it called the “community standards” test:

“A picture of a nude/seminude woman, as such, cannot per se be called obscene unless it has the tendency to arouse feeling or revealing an overt sexual desire. The picture should be suggestive of deprave mind (sic) and designed to excite sexual passion in persons who are likely to see it, which will depend on the particular posture and the background in which the nude/semi-nude woman is depicted. Only those sex-related materials which have a tendency of “exciting lustful thoughts” can be held to be obscene, but the obscenity has to be judged from the point of view of an average person, by applying contemporary community standards.” (Paragraph 24)

While welcome in that the Supreme Court gets rid of the Hicklin Test at last, the judgment is also problematic in many respects. First, the Court cites the 1957 US Supreme Court case of  Roth v. United States, and its use of the phrase “contemporary community standards” has been lifted from Roth – but the test in Roth itself was superseded twice over – first in 1966, by Memoirs v. Massachusetts, and then in 1973, by Miller v. California, neither of which are cited by the Court.

More troublingly, however, Roth did not just speak about community standards test, but actually laid down a three-pronged test. Community standards constituted the first prong, but under the second prong, the material had to be “patently offensive”, and under the third prong, “of no redeeming social value” (Memoirs and Miller saw a liberalization of the third prong). The second and third parts of the Roth test are conspicuously absence from the Court’s judgment – in essence, it seems to be saying that if (on applying community standards), a particular work “has a tendency to arouse feeling or reveal an overt sexual desire“, it can be criminalized as obscene. This is worse than vague. On what ground does the Court hold sexual arousal to be something that ought to be criminalised? Additionally, the last Roth ground is crucial, because it is on the social value prong that works of art, literature, sculpture etc., that would otherwise be deemed obscene, are spared. The Court has referred to social value elsewhere, notably in Udeshi itself, and so its absence in this judgment, that otherwise rejects the foundation of Udeshi, leaves the law of obscenity in a state of flux.

The Court also cites the Canadian case of R v. Butler in its support for the community standards test, but regrettably, doesn’t do much with it. This is a pity, because Butler restricted itself to outlawing “undue exploitation of sex”, which in turn it defined as either sex with violence, or that was “degrading or dehumanizing”. In this way, unlike in the US, while Butler made community standards relevant in its obscenity enquiry, it did not make them dispositive. This, naturally, is extremely important, because in determining “community standards”, time and time again we have seen that the Courts simply adopt the dominant majority’s publicly affirmed views, and thus a fortiori exclude alternative, marginalized and minority ways of thinking, especially about sexual matters. Butler tries to provide at least some protection against this tyranny of the majority.

Nonetheless, today’s decision is an important step forward. The Hicklin test is now gone. Furthermore, in focusing so closely upon contemporary community standards, the Court will hopefully henceforth close its doors to claims based upon an idealized, purified (and imaginary) vision of “Indian culture and values”, a monolithic, eternal entity, whose proscriptions tend to match the views of its most extreme  advocates. And lastly, by referring to both Roth and Butler with approval, the very incompleteness of today’s decision leaves it open to revision in light of these cases in a more specific and meaningful way. There is a long way to go before India’s obscenity laws are truly speech-protective, but perhaps we have at last stopped moving backwards.

 

What is Decency?: Article 19(2) and the Bal Thackeray Case

The word “decency” in Article 19(2) is often run together with “morality”, forming the compendious term, “decency or morality“. Since judicial discussion tends to focus on the meaning of “morality” (see, for instance, our previous analysis of the Ranjit Udeshi case), the word “decency” tends to get subsumed within the meaning of “morality”. Bal Thackeray v. Prabhakar Kashinath Kunte (1996) is, however, a notable exception, and deserves close scrutiny.

S. 123(3) of the Representation of Peoples Act prohibited a person from appealing for votes on the basis of “his religion, race, caste, community or language.” In the Bal Thackeray Case, it was argued that S. 123(3) violated Article 19(1)(a), and was constitutional only if the said appeal was directly prejudicial to public order, as envisaged by Article 19(2). The Court rejected this contention. Naturally, then, S. 123(3) was either unconstitutional, or saved by another head under Article 19(2). The Court settled upon the latter course, and chose decency. Rejecting the appellant’s argument that the phrase “decency or morality” was limited to “sexual morality”, the Court held:

“The ordinary dictionary meaning of ‘decency’ indicates that the action must be in conformity with with the current standards of behavior or propriety, etc. In a secular polity, the requirement of correct behavior or propriety is that an appeal for votes should not be made on the ground of the candidate’s religion which by itself is no index of the suitability of a candidate for membership of the house.” (Paragraph 29)

The Court went on to add:

The fact that the scheme of separate electorates was rejected in framing the Constitution and secularism is the creed adopted in the Constitutional scheme are relevant considerations to treat this as a reasonable restriction on the freedom of speech and expression, for maintaining the standard of behavior required in conformity with the decency and propriety of the societal norms. (Paragraph 31)

These observations are crucial. Recall that in our discussions of Ranjit Udeshi (here, here and here), we had found that much turns upon what, precisely, “morality” means in Article 19(2). For reasons both textual and philosophical, I had argued that the Court was mistaken in equating “morality” with either “public morality” or “individual morality”; and that, in the alternative, the best interpretation was reading it to mean “constitutional morality“, that is, the moral principles espoused by the Constitution as a whole, and not those of a shifting, transient majority. In Bal Thackeray, the Court clearly accepted such a reading of the word “decency”. Because obviously, if decency means “public decency”, or the standards of decency maintained by a present majority, then it makes no sense to curtail election speeches on the grounds of decency, because – and this much, at least, is uncontroversial – the ballot box is, at present, one of the – if not the – most effective way of gauging public opinion. If I appeal to my religion to gain votes, and I do succeed in persuading the majority to vote for me, then it cannot really be argued that the public considers such an appeal contrary to decency.

The argument is buttressed by the specific observations of the Court. In Paragraph 29, it defines acceptable behaviour in the context of a secular polity. A secular polity, however, is not a matter of public opinion – it is a constitutional commitment, and has been repeatedly held to be part of the basic structure of the Constitution. In paragraph 31, the Court makes it explicit, holding that secularism is part of the constitutional scheme. Thus, the Court derives its meaning of decency not from a vague reference to public standards, but by directly invoking the philosophy of our Constitution.

This has important ramifications. Consider again, the phrase 19(2) phrase, “public order, decency or morality“. In our discussions on Udeshi, we asked whether the word “public” qualifies only “order”, or all three words, “order”, “decency” and “morality”. Clearly, both interpretations are grammatically unexceptionable. But if, per Bal Thackeray, “decency” means “constitutional decency”, then “public” doesn’t qualify “decency” after all. And if that is the case, then it would be grammatically absurd for it to quality “order” and “morality”, but not “decency”. Therefore, it is a necessary implication of the Bal Thackeray decision that the morality referred to in Article 19(2) is not public morality.

Regretfully, however, the Court’s overall jurisprudence in this area remains a tangled knot. In Odyssey Communications v. Lokvidayan Sanghatana (1988), the Court blithely employed the phrase “public morality”, without any argument. In Bobby Art International v. Om Pal Singh Hoon (1996), the case about the screening of The Bandit Queen, the Court allowed the screening of the film, including scenes of rape and frontal nudity, because it found on fact that the impugned scenes advanced the message of the film, and were not designed to “titillate the cinema-goer’s lust“. (Paragraph 30). Since the Court declined to expound upon the particular harm caused to self or others by this “titillating of lust”, we must assume that this is a case of legal moralism (see the analysis of Udeshi), predicated upon reading “morality” in Article 19(2) as referring to “individual morality”, with the Court taking upon itself the role of protecting individual morals from depravity. On the other hand, in Ajay Goswami v. Union of India (2007) the Court, dealing with an obscenity case, after citing a bewildering array of tests, from  “Hicklin” to “clear and present danger”, from “ordinary man” to “contemporary standards”, finally affirmed both a harm standard and a violation of morality standard within the same paragraph! (paragraph 44) And most recently, in S. Khushboo v. Kanniammal (2010) the question arose whether criminal proceedings against an actress who called for social acceptance for pre-marital sex in live-in relationships, could be sustained. It was argued that public morality was strongly supportive of limiting sexual intercourse to the marital relationship, and that such statements would lead to “deviant behaviour which would adversely affect public notions of morality.” (Paragraph 10) While the Court accepted the present state of the law on obscenity (which, it would seem, astonishingly enough, is still the Victorian-era Hicklin Test), it also observed:

“Notions of social morality are inherently subjective and the criminal law cannot be used as a means to unduly interfere with the domain of personal autonomy.” (Paragraph 29)

The Court noted that those who viewed her remarks as an attack upon the centrality of the institution of marriage had every freedom to contest their merit through the existing channels of free speech, such as the media. This was precisely how dialogue and discussion took place in a democracy, “wherein people can choose to either defend or question the existing social mores.” (Paragraph 18)

And:

“An expression of opinion in favour of non-dogmatic and non- conventional morality has to be tolerated as the same cannot be a ground to penalise the author.” (Paragraph 30)

Assuming – reasonably – that “conventional morality” and “public morality” refer to the same idea, it is clear, on a combined reading of the three observations of the Court, that preservation of “public morality” is not, after all, in itself, a ground for restricting free speech! Of course, the issue is more complicated, since the Court was undoubtedly influenced by the fact that the case was not about a pornographic film that depicted sex, but about a statement in a newspaper. Yet is there a principled difference between an influential actress persuading people about the desirability of pre-marital sex by making a statement, and a pornographic film doing the same by depicting it? If there is, the Court did not attempt to explicate it.

In conclusion, therefore, it is rather difficult to extract a coherent philosophy out of the Court’s “decency and morality” jurisprudence over the last fifty years. We saw that there are at least three possible ways of interpreting this phrase, each of which correspond to a different political philosophy, and a different vision of society: speaking very broadly, and ignoring all the nuances employed within this terms, these are legal paternalism, legal moralism and a strong, autonomy-respecting harm principle. The Court, in its decisions, has at various times endorsed all of them, some of them, or none of them. We await clarity on this important issue.

Ranjit Udeshi – II: The Enforcement of Morals

In the previous post, we noticed that in Ranjit Udeshi, the Court upheld the constitutionality of obscenity laws. Two justifications emerge from a close reading of the decision: first, the enforcement of “public morality” via Article 19(2); and secondly, the need to protect people from “moral depravity and corruption.” While there are connections between the two, conceptually, they remain separate arguments; and we shall consider them in turn.

The Hart/Devlin/Dworkin debate, conducted in the aftermath of the publication of the Wolfenden Committee Report in the United Kingdom, remains the locus classicus on the point. The Wolfenden Committee Report, on homosexuality and prostitution, famously stated that “there is an area of private morality… that is none of the law’s business.” In an essay – later a book – called The Enforcement of Morals, Lord Devlin made two arguments against this position: first, that society had the right to protect itself against practices that threatened its existence; and secondly, that society had the right to follow its own moral convictions to prevent (what it considered to be) an adverse change in its moral environment. In the case of pornography, for instance, it may be argued that the institution of marriage and the family, being a fundamental feature of our society, will be eroded by the prevalence of pornographic material (the first prong of Lord Devlin’s case); or, it may be argued that the widespread availability of pornographic material will fundamentally change the way people view sex and relationships, and that is something society has the right to forestall through criminal legislation (the second prong).

Hart attacked the first prong of the argument, and Dworkin the second. Hart argued that “society” could mean one of two things: the physical fact of a collection of people – in which case, it was absurd to suggest that “society” in this sense could be destroyed by a simple change in practices; or – as Lord Devlin held – it could mean a community with “shared ideas on politics, morals and ethics.” But if that was the definition of society, and if, admittedly, these shared ideas were constantly shifting and changing, then on what principled basis could the majority of a moment arrogate to itself the power to freeze a transient moral status quo into permanence?

Dworkin argued (here) that Lord Devlin’s idea of a “moral conviction” was inconsistent with his definition of it (“a level of disgust, rising to intolerance”). Distinguishing a moral conviction (“homosexuality is immoral”) from questions of taste (“homosexuals make me sick!“), prejudice (“homosexuals aren’t real men), rationalisations stemming from verifiably incorrect facts (“homosexuality is physically debilitating“), and parroting (“everyone knows that homosexuality is immoral!), Dworkin argued that:

“the principles of democracy we follow do not call for the enforcement of the consensus, for the belief that prejudices, personal aversions and rationalizations do not justify restricting another’s freedom itself occupies a critical and fundamental position in our popular morality. Nor would the bulk of the community then be entitled to follow its own lights, for the community does not extend that privilege to one who acts on the basis of prejudice, rationalization, or personal aversion. Indeed, the distinction between these and moral convictions, in the discriminatory sense, exists largely to mark off the former as the sort of positions one is not entitled to pursue.”

It is important to note that the upshot of Hart and Dworkin’s arguments is not to defeat any enforcement of morality, but to set an extremely high threshold upon the use of that method. The question remains, however, whether it is permissible for the so-called moral majority to apply criminal sanctions to behaviour it deems immoral. In the previous post, some arguments were adduced to demonstrate that such is not the purpose of Article 19(2) of our Constitution. We can now add three further observations: Article 19 is part of our entrenched Bill of Rights, and one – if not the most important – function of a bill of rights in a democracy is to protect minorities against the legislative power of the extant majority. Justice Jackson’s statement in West Virginia Board of Education vs Barnette deserves to be quoted in full, at this point:

“The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”

If, therefore, the right to free speech is an entrenched fundamental right (which it is), and if obscene speech comes within the ambit of the right (which, it would appear from this case, it does), then the logic of a bill of rights makes it clear that majority opinion ought not to be a valid ground of restriction.

Secondly – and this is a matter of great controversy, so I shall only advance this claim in a very tentative fashion – the nature of the rights guaranteed by Part III of our Constitution (equal protection before the law; the fundamental freedoms; life and liberty; the freedom of conscience; cultural minority rights, and so on) suggest strongly that the underlying philosophy of our bill of rights is that of political liberalism. Now, whatever else may be in dispute about the nature and meaning of liberal political theory, this much is certain (endorsed, among others, by Rawls and Dworkin): liberalism is committed to neutrality, that is, it is not for government to adjudicate upon the desirability of competing world-views and forms of life – that is a matter for individual judgment. Naturally, then, it is not for the government to promote or to hinder particular world-views through the mechanism of law.

Now, as Raz points out, it is through speech, expression and – most of all – communication that we define and place ourselves within our society; and it is through unhindered public expression and portrayals of particular forms of life that we seek validation for them; correspondingly, censorship and bans on expression amount to:

“…not only a disapproval of the particular act in question, but a disapproval of the way of life that that act or expression has come to symbolize.” (emphasis supplied)

A government ban, therefore, on an allegedly obscene publication or a pornographic work is not only censorship of that individual creation, but in our society, comes to symbolise an authoritative condemnation of the entire style or way of life that such work forms part of, is an example of, or portrays. And that is a judgment that a liberal Constitution and a liberal polity is not permitted to publicly undertake.

Lastly – and as a matter of pure textual exegesis – the framers of our Constitution appear not to have viewed “morality” as referring to “public morality”; in the Constituent Assembly Debates on 1st December, 1948, while discussing the draft article 13(2) (later 19(2)), “public order” was not yet part of the wording, and a proposed amendment sought to insert the phrase “decency or morality” (sans “public”) into 13(2). The phrase “decency or morality” was used again on 2nd December 1948 in the specific context of discussing the limitations on free speech, while “public order” was being simultaneously discussed. I suggest that from a reading of the debates, it becomes clear that “public order” and “decency and morality” were discussed separately, as separate concepts. Our Constitutional text, therefore, does not expressly make “public morality” a ground for restricting free speech; and I have suggested, in this post and the last, that our Constitutional philosophy militates against such a conclusion.

What then does the word “morality” mean, if not public morality? One possibility is that it refers to individual morality. This, indeed, is the second line of argument pursued by the Court: it is permissible to ban obscene publications because they deprave and corrupt individual morals. In the next post, we shall discuss whether and to what extent that argument can be used to justify restrictions on free speech.

Ranjit Udeshi v. State of Maharashtra – I: Obscenity, morality and public interest

All constitutional courts must, at some point, deal with controversial questions about what constitutes obscenity, and whether – and to what extent – obscenity is protected by the right to free expression. Ranjit Udeshi v. State of Maharashtra (1965) is a case in which a Constitution Bench of the Indian Supreme Court engaged with precisely these issues.

D.H. Lawrence’s Lady Chatterley’s Lover was banned. Certain booksellers were found with copies of the book, and prosecuted under S. 292, IPC that, inter alia, criminalises the sale and possession of obscene books. The petitioners made two arguments in court: first, that S. 292 was unconstitutional since it violated Article 19(1)(a); and secondly, in any event, Lady Chatterley’s Lover was not an obscene book within the meaning of the provision.

While reading the judgment, it is important to keep apart Article 19(1)(a) [the scope of the right to freedom of speech and expression] and Article 19(2) [reasonable restrictions upon that right], especially since it appears that the Hon’ble Court did not do so. In paragraph 8 of the judgment, Hidayatullah J., speaking for the Court, observed:

“No doubt this article guarantees complete freedom of speech and expression but it also makes an exception in favour of existing laws which impose restrictions on the exercise of the right in the interests of public decency or morality… the word, as the dictionaries tell us, denotes the quality of being obscene which means offensive to modesty or decency; lewd, filthy and repulsive. It cannot be denied that it is an important interest of society to suppress obscenity.” [emphasis supplied]

    In the next paragraph, he went on to note:

    “Speaking in terms of the Constitution it can hardly be claimed that obscenity which is offensive to modesty or decency is within the constitutional protection given to free speech or expression, because the article dealing with the right itself excludes it. That cherished right on which our democracy rests is meant for the expression of free opinions to change political or social conditions or for the advancement of human knowledge. This freedom is subject to reasonable restrictions which may be thought necessary in the interest of the general public and one such is the interest of public decency and morality. Section 292, Indian Penal Code, manifestly embodies such a restriction because the law against obscenity, of course, correctly understood and applied, seeks no more than to promote public decency and morality.” [emphasis supplied]

Four important points may be made about the observations of the learned Judge. They are of a technical character, but essential for laying the basis of the (more) philosophical discussion that shall follow.

First, the word “modesty” is not found in Article 19(2) of the Constitution. It is not entirely clear what role the concept of modesty ultimately played in the decision of the Court. Nevertheless, considering that the word is found elsewhere in the much-criticised S. 354(3) of the IPC (the offence of “outraging the modesty of a woman”), that has been alleged to be a throwback to Victorian-era sexual morality (something that, one would hope and expect, the framers of our Constitution disavowed), the conflation of “decency” (explicitly written into Article 19(2)) and “modesty” is problematic at best.

Secondly, in paragraph 8, Hidayatullah J. uses the phrase “important interest of society”, and in paragraph 9, “interest of the general public”. Neither of these phrases is found in Article 19(2). In fact, considering that public interest is found in Article 19(6) as a permissible ground for restricting the freedom to carry on a trade, business of profession, it is necessarily implied – by omission (or the expressio unius principle) – that  public interest cannot justify a restriction upon free speech. This contention is supported by Mr. Seervai, while writing in the context of potential overlaps and clashes between Arts. 19(1)(a) and 19(1)(g), as well as by a number of judgments (Sakal Papers, as saw in the previous post, being one of them).

Thirdly, the introduction of the public interest exception allows Hidayatullah J. to interpret Article 19(2) as providing for a “public decency and morality” exception (he makes the link explicit in paragraph 9 with the use of the connector “and one such [public interest] is the interest of [public decency and morality]…” This proposition, however, is not self-evident. Article 19(2) uses the phrase “public order, decency or morality”. “Public order” is a term of art, and is found in many other legislations; but there is nothing to suggest that the word “public” qualifies not only the word “order”, but the words “decency” and “morality” as well. Indeed, if Hidayatullah J. is right, and the protection of public morality is merely a branch of the more general protection of public interest, then the absence of the public interest exception in 19(2) implies that what is at stake is not, after all, “public morality”, but some other kind of morality.  The distinction – as we shall go on to discuss – is crucial.

Lastly, in paragraph 8, Hidayatullah J. frames his discussion in the context of Article 19(2); In paragraph 9, however, he appears to hold that what is at stake is not a 19(2), but a 19(1)(a) issue: “it can hardly be claimed that obscenity which is offensive to modesty or decency is within the constitutional protection given to free speech or expression, because the article dealing with the right itself excludes it. That cherished right on which our democracy rests is meant for the expression of free opinions to change political or social conditions or for the advancement of human knowledge.” The distinction is important. In paragraph 9, Hidayatullah J. makes the familiar argument for the instrumental justification of free speech (protection of democracy, advancement of knowledge etc.) that we saw made in Sakal Papers in the last post. Such an argument excludes obscenity from the ambit of Article 19, taken as a whole, altogether – because it doesn’t even qualify as protected speech in the first place. However, if paragraph 8 is the Court’s actual opinion on the subject, then obscenity does, after all, come within the protection of 19(1)(a) (but may subsequently be limited under 19(2); and that means that the theory of free speech that our Constitution is committed to cannot be a simple, restrictive democratic-instrumentalist view. Indeed, if something like obscenity (“dirt for dirt’s sake”, in the words of the counsel) is protected, our theory of free speech is very strongly liberal, and extremely far-reaching in scope. In light of the fact that the rest of the case ignores the observations of paragraph 9, and the argument is focused entirely on 19(2), it can safely be said that the Court has – in Ranjit Udeshi – implicitly endorsed this latter, expansive theory of free speech.

Let us now return to the case. Having upheld the constitutionality of S. 292, Hidayatullah J. then addressed the issue of what, precisely, was obscenity. After going into the common-law history of the obscenity offence, he settled upon Cockburn C.J.’s famous “Hicklin Test”, enunciated in 1868, according to which obscenity is something that would:

    “… deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall . . . . it is quite certain that it would suggest to the minds of the young of either sex, or even to persons of more advanced years, thoughts of a most impure and libidinous character.” [emphasis supplied].

Hidayatullah J. emphasized the aspect of the Hicklin test that focused upon “the potentiality of the impugned object to deprave and corrupt by immoral influences.” (paragraph 19). Clarifying this further, he observed that: “treating with sex in a manner offensive to public decency and morality (and these are the words of our Fundamental Law), judged of by our national standards and considered likely to pander to lascivious, prurient or sexually precocious minds, must determine the result.” (paragraph 21)

    The Court then entered upon a lengthy analysis of the book, and concluded that no “social good” could be found in Lawrence’s vividly descriptive sex scenes; taking upon itself the task to protect “not those who can protect themselves but those whose prurient minds take delight and secret sexual pleasure from erotic writings”, (paragraph 26) it upheld the ban on Lady Chatterley’s Lover.

The structure of the Court’s argument is as follows: it read a public interest exception into Article 19(2). Using this, it interpreted “decency or morality” to mean “public decency or morality” which, in turn, clarified as referring to “national standards” and “community mores” [of decency and morality].  The Hicklin’s test explicitly moral language made it the ideal standard to use in conjunction with the “community mores” test in order to determine whether something was obscene, and therefore not protected by the right to freedom of speech and expression.

The arguments so far have attempted to show that, on their own terms, certain steps in this argument may be open to criticism. In the next post, I will examine the philosophical justification for the Court’s view, and ask whether our Constitution is – and whether it should be – committed to such a philosophy.