Anay Mehrotra and Ruhika Mandal
Abstract
The authors contributing to this case comment have endeavoured to dissect and analyse the Aveek Sarkar judgment. The authors have attempted to develop a comparative study vis-à-vis the judicial understanding of the legal facets of Obscenity in India and foreign jurisprudence. Concerning the former, the development of juridical thought over various cases is charted, and for the latter, highly influential decisions established by English and American courts are examined. The opinion derived from foreign cases in the Aveek Sarkar judgment, which contributed to adopting a ‘contemporary community standards’ test, is mainly considered and critiqued. This finally culminates in the evocation and appraisal of the concepts of Legal Moralism and Legal Paternalism for the ideas of legal luminaries such as Lord Devlin, Ronald Dworkin, and H.L.A. Hart. Through this evaluation, the authors respectfully present shortcomings in Aveek Sarkar, and inconsistencies in judicial standards, in the hope of a better-defined and more definite legal understanding of Obscenity as a reasonable restriction against the exercise of Article 19(1)(a) of the Indian Constitution.
I. Introduction
For over a century, courts worldwide have struggled to maintain a presumably unattainable balance between the freedom of speech and the protection of morals and decency. Obscenity, as defined by the law, has been modified over a period of time. To pinpoint obscenity, various tests have been propounded, used, and later discarded. “What constitutes obscenity?” is a question that cannot be answered definitively. It is seen to have become liberalized over time. In 2014, the Supreme Court (hereafter SC) of India leaned into the conversation with its decision in Aveek Sarkar v. State of West Bengal,[1] where the SC expressly rejected the classical test laid down in R. v. Hicklin[2] and moved towards the more liberal "Community Standards Test" (hereinafter CST), as set by the SC of the United States in Miller v. California[3].
While this shift in precedent can be celebrated for its more liberal and progressive stance for the reasonable person, in the authors’ opinion, the outcome of the judgment should be treated with feverous and cautious optimism because of the following points:
1. The SC made its own interpretation of the community standard test.
2. It used foreign jurisprudence and the legal norms without accurately applying the test laid down in foreign jurisdictions.
3. It applied the principle of paternalism and legal moralism in the judgment.
This interpretation may lead to a degree of arbitrariness as judges solely and independently determine what may be considered obscene today – introducing subjectivity into the legal process. While this may frequently lead to outcomes that favour speech over censorship, we must note that such application will cause a vast gap to exist between theoretical doctrinal liberalism and its practical application.
Part II of the paper encapsulates the facts, procedural history, and judgment delivered by K. S. Radhakrishnan, J in the Aveek Sarkar case.
Part III of the paper will delve into the evolution of evaluating obscenity from the lens of a reasonable person. This part will provide arguments for and against the court’s decision to change the law ruled in the Ranjit D. Udeshi case to the one currently followed under the Aveek Sarkar case.
Part IV of the paper will critique the incorrect application of the Community Standard Test.
Part V of the paper will analyse the inappropriate usage of foreign jurisprudence without considering its implication in the Indian context.
The last part of the paper will look at the interplay of Legal Moralism and Paternalism.
II. The Aveek Sarkar case in a Nutshell
Facts of the Case
A photograph of tennis star Boris Becker and his dark-skinned actress and fiancée Barbara Feltus posing naked was published in ‘Stern,’ a weekly German news magazine.[4] The photographer was Feltus's father himself. The purposes of the article and the photograph were to portray Becker as a person not approving of ‘apartheid’ and to demonstrate to the readers that love champions over hatred. A popular Indian magazine, ‘Star World’, in its issue Number 15 dated 5/5/1993, reproduced the picture and the article. Amrit Bazar Patrika reproduced the same, a widely read Calcutta-based newspaper in its 6/5/1993 issue.[5]
Issues
1. Should that photograph be regarded as obscene?
2. If the effect of the obscene photograph is taken in its entirety, then would it tend to corrupt and deprave the people who are likely to view it?
Judgement
The opinion in the Aveek Sarkar judgment was delivered by K. S. Radhakrishnan, J. The SC rejected Hicklin's test favouring the CST. Hicklin's obscenity test examined whether the content had the potential to corrupt and deprave the minds that are vulnerable to immoral influences. Furthermore, Hicken's test allowed for the evaluation of the content based on isolated portions of the material based on its impact on vulnerable viewers. The SC recognized that with time the notion of obscenity might change.
SC also stated that contemporary mores and national norms must be considered as the standard for Obscenity rather than the standard perceived by sensitive or vulnerable persons. According to the bare reading of Section 292 of IPC, a photograph of a naked or semi-naked woman "cannot be declared obscene unless it seeks to stir sentiments or indicate an overt sexual desire."[6] The photograph should be tailored to elicit sexual desire or passion in those who are likely to see it. The background and posture in which the nude/semi-nude woman is portrayed should also be considered. As per Section 292, IPC, Obscene materials are those sex-related materials that tend to evoke lustful feelings. However, obscenity must be considered from the perspective of the reasonable/ordinary person by using the CST.
The SC then evaluated the context and the social message that the nude/semi-nude photograph was trying to convey. The SC held that the photograph was not obscene under Section 292 of the IPC as per the CST.[7] The photograph did not arouse sexual desire or tend to deprave or corrupt the mind of anyone who may read or have seen the article. Furthermore, the photograph and the article seemed to encourage racial equality by means of love and marriage between people of different races. As a result, the Court decided that there was no violation of Section 292 of the IPC, amongst other acts. [8]
III. Evolving Standard and the Doctrine of Reasonable Person: Diversion from the Ranjit D. Udeshi case
The Ranjit D. Udeshi v. State of Maharashtra was one of India's earliest cases on Obscenity[9]. In its judgement, the SC banned the sale and publication of unexpurgated copies of DH Lawrence's Lady Chatterley's Lover. Four years prior to this case, in the 1960s, the Central Criminal Court of England and Wales had, on the other hand, allowed for the print and sale of the novel[10]. The SC found the bookseller (Appellant) guilty of the offence of the sale of obscene books, as defined under Section 292(1) of the IPC. This ban was held valid as a reasonable restriction on freedom of speech as enshrined under 19(2) of the Indian Constitution. The SC based its decision on the archaic Hicklin test, which states that every creative medium has a "tendency to corrupt and deprave individuals whose minds are receptive to such immoral influences and into whose hands a publication of this type may fall" [11] regardless of literary or aesthetic merit. The judicial bench in the English case had considered the broad opinions, literary themes, and overall messaging that hold significance in literature while considering its decision on Lady Chatterley's Lover. However, in Ranjit Udeshi's case, the Court dismissed the novel's literary merits such as industrialization, war, class ties, and questionable sexual morality[12], reducing the SC's critique to areas that suited the narrative for the ban.
The authors contend that to strike a balance and impose reasonable restrictions, the novel must be assessed in its entirety, or, more precisely, the novel's impact on a reasonable person should be the standard for critique. Additionally, suppose we were to examine 'objectionable phrases' and 'sections' in any work. In that case, these sections and phrases must be analysed considering the intent of the creator behind the work.[13] This was reiterated in the case of Directorate General of Doordarshan & Others v. Anand Patwardhan, as the filmmaker in this instance did not intend to support violence or social injustice, which was portrayed in the film. The Aveek Sarkar judgment did a more satisfactory job since it protects publications from charges based on an antiquated view of Indian values and culture by evaluating the impact of artistic works from the viewpoint of a reasonable person rather than a vulnerable person. As a result, the SC in Aveek Sarkar scrapped the Hicklin test and upheld the CST, allowing for a reasonable person's reaction to current societal norms of tolerance for similar publications as the basis for determining obscenity under Section 292 of the IPC. Hence the authors contend that the SC must evaluate the literary merits of the piece in its entirety and not cherry-pick elements that, when read out of context, seem obscene or devoid of any social value. In support of this rationale, the authors would like to put forward two examples:
In the Ranjit Udeshi, SC placed a low threshold for Section 292 of the IPC. The standard rightfully applicable in Ranjit Udeshi has been succinctly expounded upon in K.A. Abbas v. Union of India, in which it was held that: "A line must be established at the point at which the ordinary moral man feels ashamed or repulsed by a bare depiction of life devoid of the redeeming touch of art, brilliance, or social worth.”[14]
Chief Justice Hidayatullah impassionedly argued that sex cannot be equated to obscenity or indecency and that the most depraved or least capable of persons must not be allowed to determine what the rest of the country may be allowed to read or watch.[15] Thus, those who are particularly sensitive or vulnerable cannot be said to be the 'reasonable persons' who lay down the standard[16].
Counter Argument
Even though the court has adopted the CST, the authors believe that there can be a counter-argument to the above-stated principle of CST. It is the author’s contention that Aveek Sarkar distills the need to scrutinize contemporary community standards alongside the holistic context of the work, implicitly acknowledging the notion of social importance. Therefore, the standard fitting to these issues is that of the contemporary community, although its geographical extent of it remains unclear.
Moreover, since both Aveek Sarkar and Section 292 of IPC are silent on the acceptable proportion between obscenity and social value, it cannot be said with certainty that preponderance is the applicable threshold. This allows for a case-specific approach and, to that extent, leaves the law in flux. In other words, the ambiguity in defining obscenity that results from the CST, i.e., basing the standard on the standards of a community, would compel publishers and writers to adhere to the most conventional society's standards, thus resulting in a decrease in the amount of radical, and even legitimate content that can be published. The case of Devidas Ramachandra Tuljapurkar v. State of Maharashtra[17] highlights the issue of vagueness and subjectivity of the CST by labelling speech that mocks "historically renowned persons" as obscene. This effectively implies that a poet using harsh words via an "ordinary" person is not obscene. However, it is considered obscene when the same sentiment is expressed via a "historically renowned person" medium. Moreover, it's unclear what the Court meant when it said that the CST applies to a "higher degree." Considering this case, it is clear that the judges set community standards to their whims and fancy.
IV. An Incorrect application of CST in Aveek Sarkar case
The Aveek Sarkar judgment places particular emphasis on the application of contemporary community standards and consideration of the message and context of the work. However, the SC in Aveek Sarkar erred, albeit faintly, in applying its own version of the test for obscenity on two counts.
One, it emphasized the significance of viewing the material in its totality with specific regard to its context and background and rejected the Hicklin test for requiring isolated treatment of the said material. Despite this, the SC did venture into an isolated action towards the treatment of the nude/ semi-nude photograph to determine if it possessed the tendency to excite lustful or sexual thoughts. The SC concluded that the picture did not have this ability.[18] The SC could have followed the approach taken in the case of Bobby Art International & Ors. v. Ompal Singh Hoon,[19] where it was held that the scenes portraying obscenity must not be seen in isolation. The allegedly offensive scenes in the film must be seen in the background with the rest of the film. Even though a similar point has been reiterated in Aveek Sarkar, the SC in Aveek Sarkar didn’t stick to their own proposed principal, whereas in the Bobby Int. case the HC looked at the context of the whole film.
Two, the SC fails to apply its own professed test of contemporary community standards to the facts of the case. The content at consideration was a semi-nude photograph that had been published in two magazines. In ruling it not to be obscene, the SC relied heavily on the fact that the picture's intention was to convey a stance against apartheid. Prima facie, it appears that the SC's analysis is not lacking. However, a thorough examination indicates otherwise. Obscenity is dependent upon the social outlook of the people in contact with the material and varies across nations and communities. In Chandrakant Kayandas Kakodar v. State of Maharashtra,[20] it was ruled that in India, the norms of modern society are rapidly evolving, we need to look at the time when the Aveek Sarkar case came before the SC. Considering the timeline, i.e., in 1993, it is not impossible to assume that an ordinary Indian in 1993 may find such a nude/semi-nude picture obscene. In the absence of any evidence or discussion of its application, the sheer assertion that the photograph doesn’t affront community standards is, at best, an incomplete application of the test. To this extent, therefore, the Court's reasoning and application seem inchoate and underdeveloped.[21]
V. Inappropriate Usage of Foreign Jurisprudence in the Aveek Sarkar Case
Judgements from foreign cases of the US and Canada were used without considering their implication in the Indian context. The use of these cases in the Aveek Sarkar judgment made it messy as they didn’t consider the social value of these cases. Furthermore, the constructive criticism of the ‘Foreign Jurisprudence' on obscenity is critical in the context of Aveek Sarkar. The related cases demonstrate the vagueness of the legal framework encompassing obscenity.
United States of America
The Supreme Court in Aveek Sarkar relied on Roth to overrule the Hicklin test. In Roth v. United States[22], it was declared that "any ideas with even the faintest redeeming social value—unorthodox ideas, contentious ideas, and even ideas hostile to the dominant climate of opinion—are fully protected by the guarantees.”[23] The subsequent paragraph stated that any work categorized as obscene would not be covered under the First Amendment's protection of Speech and Expression, as it would then be bereft of social value and outside the scope of constitutionally protected speech and press[24].
Probable overlap alongside subsequent divergence between the two paragraphs raises questions on setting restrictions on free speech. The only factor that may tip the balances in favour of total censorship is provable harm. Numerous research projects, including the one done by the Butler Committee on Film Censorship and Obscenity, have shown that seeing or reading obscene material is unlikely to result in subsequent depravity in conduct. [25]
The Roth case has been overruled in the SC of the United States in two subsequent decisions, with the most recent one being that of Miller v. California[26]. The court cited that Roth had been far too vague and inadequate in setting a judicial yardstick for obscenity. The test recommended by the court was “whether, to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeal to prurient interest”.[27]
Unfortunately, in India, community standards differ from city to city and province to province. The standard given in Miller v. California is blatantly relative and would ensue chaos if applied in a country like India. The United States Commission on Obscenity and Pornography reiterated that the standard was a vague moral test with subjectivity that provided little guidance to law enforcement officials, juries, and courts.[28] The Miller decision did retain the test but added the following two points to the test of obscenity:
a) if the work portrays or discusses sexual activity as defined by relevant state legislation in an objectionable manner;
b) whether the work, considered in its whole, lacks significant literary, political, aesthetic, or scientific value.[29]
These criteria have not been discussed in Aveek Sarkar decision. Like the American government, Indian state or central governments must establish the definition of obscenity and proactively prevent ex-post-facto law making. Once the definition is laid down and accepted, we can begin to consider norms and ideals of due processes – and allow people in the creative and literary fields to exercise due to caution and restraint while pushing the boundaries of art and culture.
Canada
The CST, as developed in Roth v. United States, was taken a step forward by the Canadian Supreme Court in R. v. Butler[30] . The Court attributed to the test a necessary element of harm or substantial risk of harm[31]. The stance in Butler marks the shift from the CST, which hinged on the kind of material that the majority would tolerate rather than the harm or the negative effects that the material would have on the community. In the words of Gothier J., “while degrading or dehumanizing materials are likely to cause harm regardless of whether the community may be ready to tolerate such harm, materials which show no violence, no degradation or dehumanization are less likely to cause harm”. The court held that to qualify as ‘obscene’, the exploitation of sex must be undue’.
The reliance on the Butler decision, in this case, is problematic as, unlike the decision in Aveek Sarkar, it did not make the CST the sole criterion and made actual harm a mandatory requirement for a material to be classified as obscene.
VI. Legal Moralism and Paternalism: Interplay In Terms Of Obscenity
Though the Hicklin test was repealed in the Aveek Sarkar case, the SC's reasoning for restricting freedom of speech and expression enshrined under Article 19 in Ranjit Udeshi would remain valid because:
1. Legal Moralism: Public morality was invoked to preserve the legitimacy of Section 292 of the IPC.
2. Legal Paternalism: Community mores and the absence of an overarching societal aim (i.e., the need to safeguard people[32] from moral depravity) resulted in Lady Chatterley's Lover being deemed as an obscene novel.
The authors will now analyse these two concepts and the associated theories and debates. Furthermore, the authors will illustrate how the two concepts cannot override the protection afforded to free speech.
Legal moralism
The concept of legal moralism justifies the law that prohibits activities that violate a society's collective moral view, regardless of the harm they inflict.
In his article "Morals and the Criminal Law," Lord Devlin felt that the majority's moral beliefs protected a society's right to exist and that the majority could safeguard the society from the changes that threatened its survival[33]. This viewpoint, which accurately describes legal moralism, would allow for the passage of laws representing the majority's views[34].
The authors disagree with Devlin's reasoning and would like to cite two instances in which morals that supported behaviours like casteism and apartheid have since been exposed to be erroneous and incorrect:
1. Hart, in his critique of Devlin's perspective, questioned how a mere divergence from recognized sexual norms might endanger society's existence.[35] Additionally, Hart believed that Devlin was incorrect in theory for allowing the political majority of a society to have authority to create morals permanently since common ideas or norms on which a society is built are in a constant state of flux. Although Ronald Dworkin supported public morality, he envisioned a 'rational sieve' one within which society would determine morality from a logical standpoint and not emotional.[36]
2. The example of Emperor Justinian put forward by Hart further illustrates the notion of legal moralism[37]. “As a proposition of fact, it is entitled to nor more respect than the Emperor Justinian's statement that homosexuality was the cause of earthquakes.” The stance taken by Emperor Justinian cannot be regarded as moral, given there is no evidence to support it. It is worth noting that both Dworkin and Hart do not seek to oppose any imposition of public morality; instead, they wish to establish a high standard for the use of morality to prohibit actions, such as writing and paintings which are not quite straightlaced.
Legal paternalism
Legal paternalism allows the law to infringe on an individual's liberty when it is in the person's best interests.
Actions create conflict between the value placed on the well-being of others and on a person’s liberty[38]. J.S. Mill, Ronald Dworkin, and Immanuel Kant, among others, have all advanced arguments against this idea. For example, Dworkin advanced the endorsement thesis as a critique of paternalism, arguing that nothing could contribute to an individual's existence without that individual's endorsement. The authors agree with Dworkin's endorsement thesis in this instance since obscenity legislation that restricts people's ability and agency to discern is emotionally and culturally a paternalistic concept. Society is structured around good values, and legislation that reflects the same – is unfortunately often welcomed with open arms.
Conclusion
This case comment of Aveek Sarkar has been an endeavour to uncover the capricious and variable nature of the application of anti-obscenity laws in India. In today's day and age, banning any book or other creative work simply causes the internet and its niche audience to promote and find alternative sources for the material – and an attempt to rid, ban, or reduce access to literature in the digital age is a moot point. In contrast, one must question the abandoned Victorian morality and ask about the derivation and establishment of low or high standards to reasonably restrict speech.
The solution must be determined via a case-to-case analysis approach. As the critiques of the American legislature demonstrate, there must be defined objectivity in broad principles governing obscenity. To do this, the judge must be in touch with the morality that exists in each section of society at any moment in time and refrain from fabricating emotional public morals to enforce a specific prejudice.
Even though the Constitution has restrictions in place on freedoms of speech, these restrictions must be expanded prudently to find a balance between what can strict laws preventing immoral behaviour and creative liberty. These notions must also not be allowed to persist in the context of antiquated ideas such as the Hicklin test, which relies heavily on judicial discretion and cannot be considered to accurately reflect what the majority of the public views as corrupting or derogatory. Even the so-called contemporary community standards test, as illustrated above, does not ensure that judgments are made in a judicially sound manner. Given this, an outright prohibition of literary work based on archaic norms and selective inspection hardly qualifies as a fair restriction on free expression, the provision of which is possibly a democratic state's principal responsibility
[ The authors are 1st Year, BA-LLB students at NUJS Kolkata]
[1] Aveek Sarkar, (2014) 4 S.C.C. 257. [2] R. v. Hicklin, (1868) LR 3 QB 360. [3] Miller v. California, 413 U.S. 15 (1973). [4] Aveek Sarkar v. State of W.B., (2014) 4 SCC 257, ¶ 1, 2. [5] Aveek Sarkar v. State of W.B., (2014) 4 SCC 257, ¶ 2. [6] Aveek Sarkar v. State of W.B., (2014) 4 SCC 257, ¶ 27. [7] Aveek Sarkar v. State of W.B., (2014) 4 SCC 257, ¶ 28. [8] Aveek Sarkar v. State of W.B., (2014) 4 SCC 257, ¶ 31. [9] Ranjit D. Udeshi v. State of Maharashtra, AIR 1965 SC 881. [10] R. v. Penguin Books Ltd., 1961 Crim LR 176. [11] R. v. Hicklin, (1868) LR 3 QB 360. [12] Ranjit D. Udeshi v. State of Maharashtra, AIR 1965 SC 881, ¶68 (author's interpretation). [13] Leo M. Alpert, Judicial Censorship of Obscene Literature, p. 54, Harvard Law Review, Vol. 52, No. 1 (Nov. 1938), available at https://www.jstor.org/stable/1333623 (Last visited on May 22, 2022). [14] K. A. Abbas vs The Union Of India, AIR 1971 SC 481. (Last visited on May 22, 2022). [15] Ibid ¶ 50. [16] Hamling v. United States, 41 L Ed 2d 590 : 418 US 87 (1974). [17] Devidas Ramachandra Tuljapurkar v. the State of Maharashtra, 6 SCC 1 (2015). [18]Aveek Sarkar v. State of W.B., (2014) 4 SCC 257, ¶ 21, 23, 14. [19] Bobby Art International & Ors. v. Ompal Singh Hoon. (1996) 4 SCC 1. [20] Chandrakant Kayandas Kakodar vs The State of Maharashtra 1970 SCR (2) 80. [21]Aveek Sarkar v. State of W.B., (2014) 4 SCC 257, ¶ 12-19. [22] Roth v. United States,1 L Ed 2d 1498: 354 US 476 (1957). [23] Ibid at ¶ 2. [24] L.M. Singhvi, Jagdish SWARUP: Constitution of India, p. 739, Vol. 1 (2nd Edn., 2006). [25] William Butler, Report of the Committee on Film censorship and Obscenity (Cmnd. 7772), HO 265/9, (1977 Nov.) available at https://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=1907&context=ohlj (Last visited on May 22, 2022). [26] Miller v. California, 37 L Ed 2d 419: 413 US 15 (1973). The other decision superseding Roth was Memoirs v. Massachusetts, 16 L Ed 2d 1: 383 US 413 (1966). [27] Miller v. California, 37 L Ed 2d 419: 413 US 15 (1973) ¶ 8. [28] Obscenity Report at p. 53; Miller v. California, 37 L Ed 2d 419 : 413 US 15 (1973). [29] Miller ¶ 25-29. [30] R v. Butler, (1992) 1 SCR 452. [31] Richard Kramer, “R. v. Butler: A New Approach to Obscenity Law or Return to the Morality Play?”, p. 78, 35 Crim LQ 77 (1992-1993). [32]R v. Butler, (1992) 1 SCR 452 ¶28. [33]Devlin, Patrick, Morals and the Criminal Law 179, Faculty at Berea College, available at http : //faculty.berea.edu/butlerj/Devlin.pdf (Last visited on May 22, 2022). [34] As an example, consider the following: 1. Activity Y is incorrect. 2. Activity Y is harmful to the society's long-term survival. 3. Society S must take whatever steps are required to ensure its survival, i.e., to eliminate Activity Y. [35] Hart, H.L.A. Law, Liberty, and Morality. Stanford, Calif.: Stanford University Press, 1963, available at https://www.worldcat.org/title/law-liberty-and-morality/oclc/445497 (Last visited on May 22, 2022). [36] Guest, Stephen, Ronald Dworkin, Edinburgh: Edinburgh University Press, 1997, available at https://philpapers.org/rec/GUEHTC (Last visited on May 22, 2022). [37] Ibid. [38] Claire Andre and Manuel Velasquez, “Paternalism and Freedom of Choice”, Santa Clara University's Applied Ethics Centre Website, available at https : //www.scu.edu/ethics/publications/iie/v4n2/owngood.html (Last visited on May 22, 2022).