Freedom of speech and Expression includes freedom of Press, Reasonable

Restriction applied on freedom of Press , Obscenity , Test for obscenity

(Hicklins Test) and its implementation and present view of courts
Information is the oxygen of democracy. If people do not know what is happening in
their society, if the actions of those who rule them are hidden, then they cannot
take a meaningful part in the affairs of that society. But information is not just a
necessity for people it is an essential part of good government. Bad government
needs secrecy to survive. It allows inefficiency, wastefulness and corruption to
thrive. As Amartya Sen, the Nobel Prize-winning economist has observed, there has
not been a substantial famine in a country with a democratic form of government
and a relatively free press. Information allows people to scrutinize the actions of a
government and is the basis for proper, informed debate of those actions and
therefore the right to
know is the most essential rights of the citizens which can
be availed by them through the fourth pillar of our democracy that is the press.
The strength and importance of media in a democracy is well recognized. Article
19(1)(a) of the Indian Constitution, which gives freedom of speech and expression
includes within its ambit, freedom of press. The existence of a free, independent
and powerful media is the cornerstone of a democracy, especially of a highly mixed
society like India. Media is not only a medium to express once feelings, opinions and
views, but it is also responsible and instrumental for building opinions and views on
various topics of regional, national and international agenda. The pivotal role of the
media is its ability to mobilize the thinking process of millions. The criminal justice
system in this country has many lacunae which are used by the rich and powerful to
go scot-free. Figures speak for themselves in this case as does the conviction rate in
our country which is abysmally low at 4 percent. In such circumstances the media
plays a crucial role in not only mobilizing public opinion but bringing to light
injustices which most likely would have gone unnoticed otherwise.
It cannot be denied that it is of practical importance that a precarious balance
between the fundamental right to expression and the right to ones privacy be
maintained. The second practice which has become more of a daily occurrence now
is that of Media trials. Something which was started to show to the public at large
the truth about cases has now become a practice interfering dangerously with the
justice delivery system. The following observations of the Supreme Court in R.
Rajagopal and Another v. State of Tamil Nadu and Others(1994) 6 SCC 632
are true reminiscence of the limits of freedom of press with respect to the right to
privacy
But the legal implications arising out of the concept of 'press freedom' are many
and hence they are not confined to the constitutional provisions alone. The different
aspects of it infringe inter aliaon criminal law , law of contempt, Copyright Act ,
Official Secrets Act, Freedom of Information Act, Law of torts, Prevention of Insults to
National Honour Act etc , to name a few .

These laws deal with different issues like those of decency or morality, the issue of
privacy Vs right to information, defamation etc. Issues arising due to investigative
reporting are also dealt with by these laws. There are also exclusive press laws like
Working Journalists Act, Press Councils Acts, Newspapers Act, Press and Registration
of Books Act etc. The Press Councils Act created the quasi judicial body- Press
Council of India. Basic issues relating to Article 19 (1)(a) personal liberties and the
principles of natural justice need to be settled.
Existing privilege laws are a bit too ambiguous and expansive in nature as it doesn't
define what exactly constitutes a breach of privilege or Contempt of House. Hence
the need to codify privileges. Recommendations have also been made with the
intentions to protect journalists and professionals, from being compelled to disclose
information received in confidence except when required in public interest and also
against a charge of contempt of Court by permitting truth as a defense.
At this juncture, as we are approaching the sixth decade of our freedom , lets keep
in mind the pertinence of freedom of press and what our former Prime Minister Rajiv
Gandhi had said about press freedom:
"Freedom of Press is an Article of Faith with us , sanctified by our Constitution,
validated by four decades of freedom and indispensable to our future as a Nation."
The Meaning and scope of Art 19 (1)(a) and its Evolvement over the years
for the Press
As defined in Lowell v Griffin, (1939) 303 US 444 Freedom of speech and
expression means the right to express ones own convictions and opinions freely by
means of mouth, writing, printing pictures or any other mode. It thus includes the
expression of ones ideas through any communicable medium or visible
representation, such as gesture, signs and the like. The expression connotes also
publications and thus the freedom of press is included in this category. Free
propagation of ideas is the necessary objective and this may be done on the
platform or through the press.
In the Romesh Thappar (Romesh Thappar v State of Madras, AIR 1950 SC
124) case the court laid down an important principle:- So long as the possibility of
the law being applied for purposes not sanctioned by the Constitution cannot be
ruled out, it must be held to be wholly unconstitutional and void. In other words,
Clause 2 of Art 19 having allowed the imposition of restrictions on the freedom of
speech and expression only in cases where danger to public security is involved, an
enactment which is capable of being applied to cases where no such danger could
arise, cannot be held to be unconstitutional and valid to any extent.
Art 19(2) was subsequently amended by the Constitution (First Amendment)
Act,1951, which was enacted with retrospective effect on 18 June,1951 (The new
article was as follows-(2) Nothing in sub clause (a) of clause (i) shall effect the

operation of any existing law or prevent the state from making any law, in so far as
such law imposes reasonable restrictions on the exercise of the rights conferred by
the said sub clause in the interest of the security of the state, friendly relations with
foreign states, public order, decency or morality or in relation to contempt of court,
defamation or incitement to an offence) Art 19(2) was subsequently amended by
the Constitution (Sixteenth Amendment) Act, which was enacted with prospective.
Thus by way of judicial pronouncements over the years there had been a paradigm
shift in the application of this article and it became somewhat press friendly
although imposing restrictions by way of amendments.
In Prabhu Dutt v Union of India AIR 1982 SC 6 the Supreme Court has held that
the right to know news and information regarding administration of the Government
is included in the freedom of press. But this right is not absolute and restrictions can
be imposed on it in the interest of the society and the individual from which the
press obtains information. They can obtain information from an individual when he
voluntarily agrees to give such information.
In its landmark judgment in the case of Sakal Papers (P) Ltd v Union of India
AIR 1962 SC 305 the Supreme Court ruled that Art 19(2) of our Constitution
permits imposition of reasonable restrictions under the heads specified in Art 19(2)
and on no other grounds. Freedom of the press cannot be curtailed, like the freedom
to carry on business, in the interest of the general public
In another celebrated decision, Bennett Coleman & Co. v Union of India AIR
1972 SC 106the Supreme Court again came to the rescue of the press. It held that
freedom of press entitles newspapers to achieve any volume of circulation and
freedom lies both in its circulation and content. Freedom of press is the heart of
social and political intercourse. It is the primary duty of the courts to uphold the
freedom of the press and invalidate all laws or administrative actions which
interfere with it contrary to the constitutional mandate
In the case of Tata Press Ltd v Mahanagar Telephone Nigam Ltd. (1995) 5
SCC 139 at 154 the issue was that whether a commercial speech is protected
under Art 19(1) (a). The court after an extensive review of the judgments of the US
Supreme Court and previous Supreme Court held that Commercial advertisements
are entitled to the protection of Article 19(1) (a).
The domain of Art 19(2) of the Constitution
Clause (2) of Art 19 contains the grounds on which restrictions on the freedom of
speech and expression can be imposed. Amongst them the ground of obscenity is
discussed in my presentation in which the meaning of obscenity, test for obscenity
the judicial interpretation of the term and the changing trends is discussed in my
presentation.

Used often in the context of decency and morality is the term obscenity which
is expressly prohibited by Sec. 292 of the Indian Penal Code.
Section 292(1) of the I.P.C. defines obscenity as:
for the purposes of sub-section(2), a book, pamphlet, paper, writing, drawing,
painting, representation, figure or any other object, shall be deemed to be obscene
if it is lascivious or appeals to prurient interest or if its effect, or (where it comprises
two or more distinct items) the effect of any one of its items, is if taken as a whole
tend to deprave and corrupt persons who are likely, having regard to all relevant
circumstances to read, see or hear the matter contained or embodied in it.
The Supreme Court in Ranjit D. Udeshi vs State of Maharashtra has defined
obscenity as the quality of being obscene which means offensive to morality or
decency, lewd, filthy and repulsive.
Indecency is a concept wider than obscenity. Anything that is obscene must
necessarily be indecent. In other words, indecent only means non-conformance
with accepted standards of morality, obscenity refers to that which is prurient or
lascivious appeal.
In ajay goswami v. UOI. AIR2007 SC 493 it was observed that obscenity is used
to describe expressions (words, images and actions) that offend prevalent sexual
morality.
The word obscene has not been defied in IPC as the concept of obscenity differs
from society to society and from time to time.18 The test of obscenity has been
given in 292(1) of IPC19 which is based on an 1868 English decision20 in the
Hicklin Case where the test for obscenity was laid down by
Cockburn, C.J. as follows:
.the test of obscenity is this, whether the tendency of the matter charged as
obscenity is to deprave and corrupt those whose minds are open to such immoral
inflences, 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.
Regina v. Hicklin involved one Henry Scott, who resold copies of an anti-Catholic
pamphlet entitled "The Confessional Unmasked: shewing the depravity of the
Romish priesthood, the iniquity of the Confessional, and the questions put to
females in confession." When the pamphlets were ordered destroyed as obscene,
Scott appealed the order to the court of Quarter Sessions. Benjamin Hicklin, the
official in charge of such orders as Recorder, revoked the order of destruction.
Hicklin held that Scott's purpose had not been to corrupt public morals but to
expose problems within the Catholic Church; hence, Scott's intention was innocent.
[4]
The authorities appealed Hicklin's reversal, bringing the case to the consideration
of the Court of Queen's Bench.

In india the test has been ecognised first in the case of Ranjit D. Udeshi v. State
of Maharashtra AIR 1965 SC 881
Facts: The appellant was prosecuted along with the other partners of a bookstall
which was found to be in possession (for the purposes of sale) of the unexpurgated
edition of the book, Lady Chatterleys Lover. The partners were charged under
Section 292, Indian Penal Code (IPC) 1 for certain obscene passages in the book.
During the trial, the accused produced as witness Mr. Mulk Raj Anand, a writer and
art critic, who presented a detailed analysis of the novel and opined that the novel
was a classic work of considerable literary merit and not obscene. Nonetheless the
Trial Court found the appellant guilty; the Bombay High Court upheld the verdict.
Hence the appeal.
Issue: Whether S. 292, IPC was constitutionally valid; if so, whether or not it could
be invoked in the present case.
Decision: (1) Where obscenity and art are mixed, art must so preponderate as to
throw the obscenity into a shadow or the obscenity must be so trivial and
insignificant that it can have no effect and may be overlooked. In other words,
treatment of sex in a manner offensive to public decency and, judged by our
national standards, considered likely to pander to lascivious, prurient or sexually
precocious minds, must determine the result.
(2) The test to adopt in India is that obscenity without a preponderating social
purpose or profit cannot have the constitutional protection of free speech and
expression, and obscenity is treatment of sex in a manner appealing to the carnal
sides of human nature, or having that tendency.
The law seeks to protect not those who can protect themselves but those whose
prurient minds take delight and secret sexual pleasure from erotic writings. No
doubt this is treatment of sex by an artist and hence there is some poetry even in
the ugliness of sex. The book is probably an unfolding of the authors philosophy of
life and of the urges of the unconscious but these are unfolded in his other books.
Therefore, there is no loss to society if there was a message in the book. The
divagations (sic) with sex are not legitimate embroidery but they are the only
attractions to the common man.
Later the court in its various interpretations has been using the hicklins test and
community standards test to define and interpret obscenity in various issues. The
community standards test was interpreted in the case of Roth v. United
States where it was observed that sex and obscenity are not to be seen as synonyms. It
was held that only those sex-related materials which had the tendency of exciting lustful
thoughts were found to be obscene and the same has to be judged from the point of view of
an average person by applying contemporary community standards.

The Indian courts find it difficult to interpret obscenity in various cases as the
condition of india and is different from other nations in comparison to culture ,
customs and usages however the courts tried to interpret obscenity in following
cases by using the tests of obscenity :
In Chandrakant Kakodkar v. State of Maharashtra, (1969) 2 SCC 687
The appellant, the author of a short story, along with the printer and publisher
thereof, were convicted under section 292 of the Indian Penal Code. Setting aside
the conviction, the Court held that it was necessary to take an overall view of the
entire work and to determine whether the obscene passages are so likely to
deprave and corrupt those whose minds are open to such influences and in whose
hands the book is likely to fall; and in doing so the influence of the book on the
social morality of our contemporary society cannot be overlooked.
In, Samaresh Bose and Another v Amal Mitra and another AIR 1986 SC 967,
(1985) 4 SCC 289 the Court distinguished mere vulgarity from obscenity, holding
that vulgar writings were not necessarily obscene. The Court observed, Vulgarity
arouses a feeling of disgust and revulsion and also boredom but does not have the
effect of depraving, debasing and corrupting the morals of any reader of the novel,
whereas obscenity has the tendency to deprave and corrupt those whose minds are
open to such immoral influences.
"The concept of obscenity is mouled to a very great extent by the social outlook of
the people who are generally expected to read the book. It is beyond dispute that
the concept of obscenity usually differs from country to country depending on the
standards of morality of contemporary society in different countries. In our opinion,
in judging the question of obscenity, the Judge in the first place should try to place
himself in the position of the author and from the view point of the author the judge
should thereafter place himself in the position of a reader of every age group in
whose hands the books is likely to fall and should try to appreciate what kind of
possible influence the book is likely to have in the minds of the reader. The judge
should thereafter apply his judicial mind dispassionately to decide whether the book
in question can be said to be obscene within the meaning of S.292, IPC by an
objective assessment of the book as a whole and also of the passage complained of
as obscene separately.
Raj Kapoor and Others v State and Others AIR 1980 SC 258 A complaint was
filed by the respondent, a private complainant claiming to be the president of a
youth organization devoted to defending Indian cultural standards, alleging that the
movie, Satyam Shivam Sundaram, was obscene and indecent and rendered the
producers liable for an act constituting an offence under Section 292, IPC.
Iyer went on to state, Art, morals and laws, aesthetics are sensitive subjects where
jurisprudence meets other social sciences and never goes alone to bark and bite
because state-made strait-jacket is inhibitive prescription for a free country unless
enlightened society actively participates in the administration of justice to
aesthetics. He observed, The worlds greatest paintings, sculptures, songs, and
dances, Indias lustrous heritage, the Konarks and Khajurahos, lofty epics, luscious
in patches, may be asphyxiated by law, if prudes and prigs and state moralists
prescribe paradigms and prescribe heterodoxies. The Court allowed the appeal and
sent back the case to the High Court for fresh disposal.

1.

In Bobby Art International & Others. v. Om Pal Singh Hoon & Others
1996 AIR (SC) 1846 the case involved a challenge to the A certificate issued to
the appellants film on basis of opinion by a Tribunal. The Court observed that a
film would not be certified for public exhibition if, in the opinion of the certifying
authority, it was against decency contemplated in Article 19(2). The Court held
that in this case, the guidelines issued to the certifying authority were complied
while granting A certificate and declined to interfere with its release,
observing that the relevancy of the social theme would have to be taken into
consideration while considering matter of certification of a film. Supreme Court
held, we do not censor to protect the pervert or to assuage the susceptibilities
of the over-sensitive. Bandit Queen tells a powerful human story and that
story the scene of Phoolan Devis enforced naked parade is central. It helps to
explain why Phoolan Devi became what she did: her rage and vendetta against
the society that had heaped indignities upon her and allowed the appeal with
cost and restored the A certificate issued by the Appellate Tribunal.

In, Suo Moto v State of Rajasthan AIR 2005 Raj 300 The Court, taking up the
matter (of the depiction of women in an undignified manner by the media) suo
moto, directed the Ministry of Information and Broadcasting, the Director General of
Doordarshan and the Registrar of Newspapers, to submit affidavits of the concerned
authorities indicating how the menace was being controlled and eradicated.
The Court said that in cases where a programme is telecast and broadcast in
violation of Rule 6(1)(k) of the Cable Television Networks Rules, 1994, and where the
programme is found indecent or derogatory to women, or is likely to deprive,
corrupt or injure public morality or morals, strict action had to be initiated against
those responsible for such telecasting. Similar action must also be taken against
persons responsible for hoardings, advertisements and posters .
The Court directed the government to ensure that advertisements not following
rules and regulations be discontinued. Using scantily clad female models for
products like car batteries, tobacco, electric inverters, shaving appliances and other
advertisements should be stopped forthwith. According to the Court, the Censor
Board should ensure that 'A' certificates are given to adult films and posters for
such films are displayed in a healthier and less revealing manner at public places
and near cinema halls.
Directorate General of Doordarshan v. AnandPatwardhan, (2006) 8 SCC
433 he case was filed by independent filmmaker Anand Patwardhan challenging
Doordarshans refusal to telecast his documentary titled, Father, Son and Holy
War. The documentary portrayed issues such as patriarchy, violence,
fundamentalism, suppression of women, etc. Part I of the film was given a 'U'
Certificate and Part II was given an 'A' Certificate by the Censor Board
here are scenes of violence and social injustices but the film, by no stretch of the
imagination, can be said to subscribe to any of that. The depiction is meant to
convey that such social evils are evil. There cannot be any apprehension that it is
likely to affect public order or incite commission of an offence. The Court observed
that the documentary was given two awards at the 42nd National Film Festival in
1995, conducted by the Ministry of Information and Broadcasting, Government of

India, after being adjudged best investigative film and best film on social issues. It
was, therefore, highly irrational and incorrect to say that such a film promotes
violence, that its production quality was unsatisfactory and that it had no specific
message to convey. Dismissing the appeal, the Court observed that the sections
were unacceptably vague and held that the film was well within the limits
prescribed by the Constitution and did not appeal to the prurient interests in an
average person. Further, applying contemporary community standards while taking
the work as a whole, the Court held that the film was not patently offensive and
would not deprave and corrupt any average Indian citizens mind.
In Pratibha Naitthani v Union of India AIR 2006 (Bom) 259 Pratibha Naithani,
a political science teacher in St Xaviers College, Mumbai, aggrieved by the telecast
of adult and obscene films shown by the electronic media and obscene
photographs in the print media, filed a writ petition before the Bombay High Court.
The Court held that a number of television channels were violative of the
programme code under the Cable TV Network Act and the Cable TV Network Rules.
The Court issued a number of orders while hearing the case.
The Court held that the adult viewer's right to view films with adult content is not
taken away by Clause (o) of Rule 6(1). Such a viewer can always view Adult
certified films in cinema halls. He can also view such films on his private TV set by
means of DVD, VCD or such other mode for which no restriction exists in law. The
Court held that the restriction upon cable operators and cable service providers that
no programme should be transmitted that is not suitable for unrestricted public
exhibition did not violate their right to carry on trade and business. The Court
further held that only films sanctioned by the CBFC, under the Cinematograph Act
and Rules, as suitable for unrestricted public exhibition could be telecast or
transmitted on Cable TV.
Ajay Goswami v. Union of India, (2007) 1 SCC 143
The petitioner sought a direction from the Court for censorship of allegedly obscene
material and news being printed in newspapers, on the ground that it would
deprave and corrupt children who read the newspapers. Dismissing the petition, the
court held that there could be no suppression of freedom of speech and expression
in protecting children from harmful materials and that in judging whether a
particular work is obscene, the test should be that of ordinary adult man of common
sense and prudence, not that of a hypersensitive man or a child. The relevance of
the Hicklin test in the information age was questioned.
Maqbool Fida Husain v Raj Kumar Pandey, Crl. Revision Petition No.
114/2007 MF Husain painted an art work of a nude lady in grief without giving it
any title. The untitled painting was sold to a private collector in 2004. In 2006 it was
included as part of an online charity auction for victims of the Kashmir earthquake
under the name Bharat Mata. Husain had no role or involvement in this auction.
There were large-scale protests against the painting, which appeared in an
advertisement for the auction. Husain had to tender an apology to the public for the
same.
The Court held that, on the face of it, the painting was neither lascivious nor likely
to appeal to the prurient interest i.e. the painting would not arouse sexual interest
in a perverted person and would not morally corrupt or debase a person viewing it.
The Court ruled that nudity alone cannot said to be obscene. According to the

judgment, the aesthetic touch to the painting dwarfs the so-called obscenity in
the form of nudity and renders it so picayune and insignificant that the nudity in the
painting can easily be overlooked. The nude woman was not shown in any peculiar
kind of posture, nor were her surroundings painted so as to arouse sexual feelings
or lust. The placement of the Ashoka Chakra was also not on any particular part of
the body of the woman that could be deemed to show disrespect to the national
emblem. The Court pointed out that ...the literature of India, both religious and
secular, is full of sexual allusions, sexual symbolisms and passages of such frank
eroticism the likes of which are not to be found elsewhere in world literature. It
went on to state that While an artist should have creative freedom, he is not free to
do anything he wants. The line which needs to be drawn is between art as an
expression of beauty and art as an expression of an ill mind intoxicated with a
vulgar manifestation of counter-culture where the latter needs to be kept away from
a civilian society. The Court also said, There should be freedom for the thought we
hate. Freedom of speech has no meaning if there is no freedom after speech. The
reality of democracy is to be measured by the extent of freedom and
accommodation it extends.
In S. Khushboo v. Kanniammal, (2010) 5 SCC 600
The petitioner was sought to be prosecuted for certain statements made by her
about pre-marital sex, on the ground that they were obscene, offensive and
defamatory. Quashing the prosecution, the Court held that the threshold for placing
reasonable restrictions on the freedom of speech and expression was very high and
there should be a presumption in favour of the accused in such cases. The Court
further observed that notions of social morality being inherently subjective, the
criminal law could not be used as a means to unduly interfere with the domain of
personal autonomy or cause a chilling effect on free speech.
In, Aveek Sarkar & Anr vs State Of West Bengal And Anr on 3 February,
2014 the supreme court finally discarded the hicklin test and applied the
community standard test in the case A German magazine by name STERN
having worldwide circulation published an article with a picture of Boris Becker,
a world renowned Tennis player, posing nude with his dark-skinned fiance by
name Barbara Feltus, a film actress, which was photographed by none other than
her father. The article states that, in an interview, both Boris Becker and
Barbaba Feltus spoke freely about their engagement, their lives and future plans
and the message they wanted to convey to the people at large, for posing to
such photograph. Article picturised Boris Becker as a strident protester of the
pernicious practice of Apartheid. Further, it was stated that the purpose of the
photograph was also to signify that love champions over hatred. Sports World, a
widely circulated magazine published in India reproduced the article and the
photograph as cover story in its Issue 15 dated 05.05.1993 with the caption
Posing nude dropping out of tournaments, battling Racism in Germany. Boris
Becker explains his recent approach to life Boris Becker Unmasked.Anandabazar
Patrika, a newspaper having wide circulation in Kolkata, also published in the
second page of the newspaper the above-mentioned photograph as well as the
article on 06.05.1993, as appeared in the Sports World. Aveek Sarkar, a lawyer

filed a case under Section 292 of IPC against the editor, publisher and printer of the
newspaper and the editor of the magazine alleging the photograph will corrupt and
deprave the minds of the young and were against the cultural and moral values of
society. He further alleged that both the publishing houses had published the
photograph particularly with the intent of increasing sales.
It was further contended that the accused should also be prosecuted under Section
4 of the Indecent Representation of Women (Prohibition) Act, 1986 since the
photograph prima facie gives a sexual titillation and its impact is moral degradation
and would also encourage the people to commit sexual offences.
The court in this case examined the COMMUNITY STANDARD TEST in following
words which are:

24. We are also of the view that Hicklin test is not the correct test to be applied to
determine what is obscenity. Section 292 of the Indian Penal Code, of course,
uses the expression lascivious and prurient interests or its effect. Later, it has
also been indicated in the said Section of the applicability of the effect and the
necessity of taking the items as a whole and on that foundation where such items
would tend to deprave and corrupt persons who are likely, having regard to all
the relevant circumstances, to read, see or hear the matter contained or
embodied in it.
We have, therefore, to apply the community standard test rather than Hicklin
test to determine what is obscenity. A bare reading of Sub-section (1) of
Section 292 , makes clear that a picture or article shall be deemed to be obscene
(i) if it is lascivious; (ii) it appeals to the prurient interest, and (iii) it tends to
deprave and corrupt persons who are likely to read, see or hear the matter,
alleged to be obscene. Once the matter is found to be obscene, the question may
arise as to whether the impugned matter falls within any of the exceptions
contained in Section. A picture of a nude/semi-nude 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 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.
The message, the photograph wants to convey is that the color of skin matters
little and love champions over colour. Picture promotes love affair, leading to a
marriage, between a white-skinned man and a black skinned woman.

We should, therefore, appreciate the photograph and the article in the light of the
message it wants to convey, that is to eradicate the evil of racism and apartheid in
the society and to promote love and marriage between white skinned man and a
black skinned woman. When viewed in that angle, we are not prepared to say that
the picture or the article which was reproduced by Sports World and the
Anandabazar Patrika be said to be objectionable so as to initiate proceedings
under Section 292 IPC or under Section 4 of the Indecent Representation of Women
(Prohibition) Act, 1986.
We have found that no offence has been committed under Section 292 IPC and
then the question whether it falls in the first part of Section 79 IPC has become
academic. We are sorry to note that the learned Magistrate, without proper
application of mind or appreciation of background in which the photograph has been
shown, proposed to initiate prosecution proceedings against the Appellants. Learned
Magistrate should have exercised his wisdom on the basis of judicial precedents in
the event of which he would not have ordered the Appellants to face the trial. The
High Court, in our view, should have exercised powers under Section 482 Cr.P.C. to
secure the ends of justice.

Conclusion
The ground realities are that a citizen is largely dependent on the press for the
quality, proportion, and the extent of news. He can seldom obtain for himself the
information necessary for the intelligent discharge of his political duties and
responsibilities. In disseminating news, the press therefore acts as a representative
or, more appropriately, as the custodian of the public. It serves public interest in
pluralistic democracy by permitting expression and opinions of all persons. Hence
freedom of the press has a dimension and range that is vastly different from the
ambit and content of other individual freedoms. Press freedom embodies the
principle of accountability and thus enables press to be an instrument of democratic
control. Protection and promotion of free press is substance sub serves and
strengthens democracy, an essential feature of the Constitution.
But on the other hand where it is the duty of the pres to provide the information to
its viewers in their best possible interest it also imposes a liability upon the press to
filter and to regulate the content which is published and showed by them as the
media and press are being the fourth pillar of democracy should bear such
responsibility and should follow up the reasonable restrictions imposed in article
19(2) of the constitution.
Coming to the topic of obscenity the laws and legislations has been created to
prohibit the press and media from publishing or showing such content and courts
also in above discussed case has interpreted the meaning of obscenity and its
extent and by the best of their wisdom and knowledge has laid down the test for

determining obscenity according to the changing trends in society from hicklins to

community standards and protected the rights of people and the press of freedom
of speech and expression.
But the morality that these courts stress upon seems more like an illusionary,
predefined concept that everyone has agreed upon. The questions as to what
exactly constitute this morality, and who set the principle to determine it has been
left unanswered. The line demarcating the decent from the obscene is still vague.
The statutes, be it IPC or the IRWP Act has merely copied the age-old English Law
and the set of morals they were then based upon. The laws in England have
changed but the Indian law still remains stagnant. The growth of black market for
pornographic materials has clearly
shown the ineffectiveness of these laws. But now as there's CST in our bags it can
be said that its a new dawn where much well defined principles relating to the
obscenity and morality touching closely the Indian scenario can b laid down in years
to come, and it will b interesting to see what new principles evolve in the
jurisprudence of obscenity n the coming years as though small but the first step has
been taken.