The test of obscenity

The Supreme Court has recognised that there can be no uniform test of obscenity and that-each
case would have to be judged on its own facts.1 The Court has, however, through various
judgments laid down the broad parameters to be followed in judging whether a particular
publication is obscene

(1) Hicklins test

Indian Courts have chosen to adopt the old and long outdated English test, known as
Hicklin's test. Cockburn, C.J. laid down the test thus:
I think 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 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
character
Hicklins test was based upon the effective publication on the most vulnerable members of
society, Whether orwere likely to read it. The defense of literary merit was not available and the
test licensed the prosecution of several literary works early in the 20th century. D.H. Lawrences
The Rainbow was destroyed in 1915. The Well of Loneliness also met the same fate in 1928 at the
hands of a magistrate who felt that a passage that implied that two women had slept together
(And that night they were not divided) would arouse thought of a most impure character and
glorify a horrible tendency.
The Obscene Publications Act, 1959 was enacted in the UK as a result of a campaign to afford
protection to publications with literary merit. The preamble described the legislation as an Act to
amend the law relating to the publication of obscene matter; to provide for the protection of
literature; and to strengthen the law concerning pornography. The definition of obscenity in
the Act is based on the tendency to deprave and corrupt the likely audience i.e. persons who are
likely to read, see or hear the contents of the publication rather than those into whose hands the
publication may accidentally fall.
1

Ibid., para 16, p. 88j7.

Although Hicktins test was buried in England with the enactment of the Obscene Publications
Act, 1959, six years later, the Supreme Court in India chose to adopt it in Ranjit D. Udeshi v. State
of Maharashtra*2 The Supreme Court felt that Hicklins test should not be discarded on the ground
that [it] makes the Court the judge of obscenity in relation to an impugned book and lays
eipphasis on the potentiality of the impugned object to deprave and corrupt by immoral
influences,3 This is difficult to understand considering that the definition contained in Section
292(1) of the Indian Penal Code is based upon the effect of the publication on persons who are
likely, having regard to all relevant circumstances, to read, see or hear the matter contained or
embodied in it, and not just on any person into whose hands the publication may accidentally
fall
Ranjit Udeshi; arose out of an appeal to the Supreme Court against the conviction of a bookseller
and his partners by the Bombay High Court for being in, possession of a book containing,
obscene* ,material, Lawrences IjQdy Chatterleysi Lover. The Supreme CJourt confirmed the
conviction and rejected ,ihe challenge to the constitutionality of Section 292 of the Indian Penal
Code. The Supreme Court held that Section 292 constituted a reasonable restriction on the right
to freedom of expression under Article 19(2) in the interest of decency and morality. The Court
relied on Hicklins test and,, farther interpreted the word obscene to mean that, which is
offensiyiEj to modesty or decency; lewd, filthy and repulsive.* 4 In determining what can be
classified as obscene, the Court held that regard should be had to our community mores and
standards and whether the material 'appeals; to the carnal side of human nature, or having that
tendency.

AIR 1965 SC 881.

Ibid., para 19, p. 888.

Ibid., para 7, p. 88$.