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TMI Blog1964 (8) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... e punishable u/s 292 of the I.P. Code; AND That you Gokuldas Shamji on or about the 12th day of December 1959 at Bombay did sell to Bogus Customer Ali Raza Sayeed Hasan a copy of an obscene book called Lady Chatterley s Lover (unexpurgated edition) which inter alia contained obscene matter as detailed separately and attached herewith and thereby committed an offence punishable u/s 292 of the I.P. Code. The first count applied to the appellant who was accused No. 2 in the case. The Additional Chief Presidency Magistrate, III Court, Esplanade, Bombay, convicted all the partners on the first count and fined each of them ₹ 20 with one week s simple imprisonment in default. Gokuldas Shamji was additionally convicted on the second count and was sentenced to a further fine of ₹ 20 or like imprisonment in default. The Magistrate held that the offending book was obscene for purposes of the section. The present appellant filed a revision in the High Court of Bombay. The decision of the High Court was against him. He has now appealed to this Court by special leave and has raised the issue of freedom of speech and expression guaranteed by the nineteenth Article. Before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in spite of its apparent indelicate theme and the candidness of its delineation and diction, the novel was a work of considerable literary merit and a classic and not obscene. The question does not altogether depend on oral evidence because the offending novel and the portions which are the subject of the charge must be judged by the court in the light of s. 292, Indian- Penal Code, and the provisions of the Constitution. This raises two broad and independent issues of law-the validity of s. 292, Indian Penal Code, and the proper interpretation of the section and its application to the offending novel. Mr. Garg who argued the case with ability, raised these two issues. He bases his argument on three legal grounds which briefly are: (i) that s. 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 cl. (2) of the same article; (ii) that even if s. 292, Indian Penal Code, be valid, the book is not obscene if the section is properly construed and the book as a whole is considered; and (iii) that the possession or sale to be punishable under the section m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cency and morality of the second clause of the article. 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. There is, of course, some difference between obscenity and pornography in that the latter denotes writings, pictures etc. intended to arouse sexual desire while the former may include writings etc. not intended to do so but which have that tendency. Both, of course, offend against public decency and morals but pornography is obscenity in a more aggravated form. Mr. Garg seeks to limit action to cases of intentional lewdness which he describes as dirt for dirt s sake and which has now received the appellation of hardcore pornography by which term is meant libidinous writings of high erotic effect unredeemed by anything literary or artistic and intended to arouse ,sexual feelings. 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 artic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... obscene object knows that it is obscene, before he can be adjudged guilty. We do not accept this argument. The first sub-section of s. 292 (unlike some others which open with the words whoever knowingly or negligently etc. ) does not make knowledge of obscenity an ingredient of the offence. The prosecution need not prove something which the law does not burden it with. If knowledge were made a part of the guilty act (actus reus), and the law required the prosecution to prove it would place an almost impenetrable defence in the hands of offenders. Something much less than actual knowledge must therefore suffice. It is argued that the number of books these days is so large and their contents so varied that the question whether there is mens era or not must be based on definite knowledge of the existence of obscenity. We can only interpret the law as we find it and if any exception is to be made it is for Parliament to enact a law. As we have pointed out, the difficulty of obtaining legal evidence of the offender s knowledge of the obscenity of the book etc., has made the liability strict. Under our law absence of such knowledge, may be taken in mitigation but it does not take the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 370 U.S. 478: 8 L. ed. 2nd 639.) but there was so little concurrence in the Court that it has often been said, and perhaps rightly, that the case has little opinion value. The same is perhaps true of the latest case Nico Jacobellis v. State of Ohio (decided on June 22, 1964) of which a copy of the judgment was produced for our perusal. It may, however, be pointed out that one may have to consider a plea that the publication was for public good. This bears on the question whether the book etc. can in those circumstances be regarded as obscene. It is necessary to bear in mind that this may raise nice points of the claims of society to suppress obscenity and the claims of society to allow free speech. No such plea has been raised in this case but we mention it to draw attention to the fact that this may lead to different results in different cases. When Savage published his Progress of a Divine, and was prosecuted for it, his plea was that he bad introduced obscene ideas with a view to exposing them to detestation, and of amending the age by showing the depravity of wickedness and the plea was accepted (See Dr. Johnson s Life of Savage in his Lives of the Poets). In Hicklin s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... test of obscenity is this, whether the tendency of the matter charged as obscenity is to deperave and corrupt those whose minds are open to such immoral (1) (1868) L.R. 3 Q.B, 360 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. This test has been uniformly applied in India. The important question is whether this test of obscenity squares with the freedom of speech and expression guaranteed under our Constitution, or it needs to be modified and, if so, in what respects. The first of these questions invites the Court to reach a decision on a constitutional issue of a most far-reaching character and we must beware that we may not lean too far away from the guaranteed freedom. The laying down of the true test is not rendered any easier because art has such varied facets and such individualistic appeals that in the same object the insensitive sees only obscenity because his attention is arrested, not by the general or artistic appeal or message which he cannot comprehe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . If our attitude to art versus obscenity had not undergone a radical change, books like Caldwell s God s Little Acre and Andre Gide s If It Die would not have survived the strict test. The English Novel has come out of the drawing room and it is a far cry from the days when Thomas Hardy described the seduction of Tess by speaking of her guardian angels. Thomas Hardy himself put in his last two novels situations which were strongly disapproved of under the conventions of the age , but they were extremely mild compared with books today. The world is now able to tolerate much more than formerly, having become indurated by literature of different sorts. The attitude is not yet settled. Curiously, varying results are noticeable in respect of the same book and in the United States the same book is held to be obscene in one State but not in another [See A Suggested Solution to the Riddle of Obscenity (1964), 112 Penn. L. Rev. 8341. But even if we agree thus far, the question remains still whether the Hicklin test is to be discarded ? We do not think that it should be discarded. It makes the court the judge of obscenity in relation to an impugned book etc. and lays emphasis on the pot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cided that it is likely to deprave and corrupt those whose minds are open to influences of this sort and into whose hands the book :is likely to fall. In this connection the interests of our contemporary society and Particularly the influence of the book etc. on it must not be overlooked A number of considerations may here enter which it is not necessary to enumerate, out we must draw attention to one fact. Today our national and regional languages are strengthening themselves by new literary standards after a deadening period under the impact of English. Emulation by our writers of an obscene book under the aegis of this Court s determination is likely to -pervert our entire literature because obscenity pays and true -art finds little popular support. Only an obscurant will deny the need for such caution. This consideration marches with all law and precedent on this subject and so considered we can only say that where (1) (1868) L. R. 3 Q. B. 360 (2) (1954) 2 Q. B. 16 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. In other words, tre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f their sexual intimacies. The game-keeper s speech and vocabulary (1) 354 U.S. 476, 1 L. ed. 2d. 1498 (1957). were not genteel. He knew no Latin which could be used to appease the censors and the human pudenda and other erogenous parts are freely discussed by him and also named by the author in the descriptions. The sexual congress each time is described with great candidness and in prose as tense as it is intense and of which Lawrence was always a consummate master. The rest of the story is a mundane one. There is some criticism of the modern machine civilization and its enervating effects and the production of sexually inefficient men and women and this, according to Lawrence, is the cause of maladjustment of sexes and their unhappiness. 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. His life was a long battle with the censormorons, as he called them. Even before he became an author he was in clash with conventions. He had a very repressive mother who could not reconcile h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d they occur in conversation between Mellors and Constance and in the descriptions of the sexual congresses and the erotic love play. The realism is staggering and outpaces the French Realists. But he says of himself : I am abused most of all for using the so called obscene words . Nobody quite knows what the word obscene itself means, or what it is intended to mean; but gradually all the old words that belong to the body below the navel, have come to be judged obscene. (Introduction to Pansies). This was the second motivating factor in the book. One cannot doubt the sincerity of Lawrence s belief and his missionary zeal. Boccaccio seemed fresh and wholesome to him and Dante was obscene. He prepared a theme which would lend itself to treating with sex on the most erotic plane and one from which the genteel society would get the greatest shock and introduced a game-keeper in whose mouth he could put all the taboo words and then he wrote of sex, of the sex organs and sex actions with brutal candidness. With the magic of words he made the characters live and what might even have passed for allegory and symbolism became extreme realism. He went too far. While trying to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... says that the value of the book then diminishes and it leaves no permanent impression. The poetry and music which Lawrence attempted to put into sex apparently cannot sustain it long and without them the book is nothing. The promptings of the unconscious particularly in the region of sex is suggested as the message in the book. But it is not easy for the ordinary reader to find it. The Machine Age and its impact on social life which is its-secondary theme does not interest the reader for whose protection, as we said, the law has been framed. We have dealt with the question at some length because this is the first case before this Court invoking the constitutional guarantee against the operation of the law regarding obscenity and the book is one from an author of repute and the centre of many controversies. The book is probably an unfolding of his philosophy of life and of the urges of the Unconscious but these are unfolded in his other books also and have been fully set out in his Psychoanalysis and the- Unconscious and finally in the Fantasia of the Unconscious. There is no loss to society if there was a message in the book. The divagations with sex are not a legitimate embroid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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