Content Regulation / Censorship, Gender Expression, Indecency / Obscenity
The State v. Momar Sowe and Alieu Sarr
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The constitutionality of section 292 of the Indian Penal Code (IPC), which punishes the sale of obscene books, was upheld in this case involving the DH Lawrence novel, Lady Chatterley’s Lover. The Hicklin test, as articulated in a case from the United Kingdom, Queen v. Hicklin, was found to be a valid test for determining what constitutes obscenity. Under this standard, Lady Chatterley’s Lover was determined to be obscene, and persons selling the book could be punished under section 292.
Ranjit D. Udeshi was one of the four partners of a firm that owned a book-stall. The partners were prosecuted under section 292 of the IPC for selling copies of an allegedly obscene book, Lady Chatterley’s Lover, by DH Lawrence. Section 292 punishes any person who sells any obscene book or other material. Udeshi argued that section 292 is violative of the rights to freedom of speech and expression under article 19(1)(a) of the Indian Constitution and that the book is not obscene if considered as a whole.
Hidayatullah J. delivered the decision in this case. Article 19(1)(a) of the Indian Constitution guarantees the freedoms of speech and expression, and article 19(2) allows reasonable restrictions to be placed on these rights in the interest of public decency or morality. Section 292 of the IPC, which deals with obscenity, falls within the exception—addressing issues implicating public decency and morality—and is therefore constitutional. The Supreme Court argued that obscenity has poor value in the dissemination of ideas and information of public interest, but found exception for when elements of obscenity are necessarily present, for example, in medical science books that may contain intimate illustrations and photographs. Such materials will not be held obscene and will be protected under the right to free speech and expression.
Section 292 does not define “obscenity.” Therefore, the Supreme Court had to differentiate between what was obscene and what was artistic. The Court proceeded to examine the test of obscenity that should be employed to determine what falls within constitutional limits, as mere sex and nudity do not amount to obscenity. The Court used the Hicklin test, which examines whether the impugned matter tends to “deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall.” This test was found not to violate article 19 of the Indian Constitution. Under Hicklin, a work should be viewed as a whole, but the obscene matter should also be separately considered to see if it violates the test. Where art and obscenity coexist, “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.”
Where a work substantially transgresses public decency and morality, the rights to free speech and freedom of expression must give away. In India, “obscenity without a preponderating social purpose of profit” is not protected. Treating “sex in a manner appealing [or tending to appeal] to the carnal side of human nature” is offensive to modesty and decency and is obscene. But the extent of such appeal must be examined in each case. The Court examined the text of Lady Chatterley’s Lover and concluded that it was obscene under Hicklin. The appeal against conviction was thus dismissed.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case has been criticized for applying the archaic Hicklin test to determine obscenity. The Supreme Court of India has since rejected this test in a 2004 case, Aveek Sarkar v. West Bengal.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
Supreme Court decisions are binding on all courts throughout India.
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