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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.