SUPREME COURT OF INDIA
Ajay Goswami
Vs
Union of India and Others
Writ Petition (Civil) 384 of 2005
(Dr. Ar. Lakshmanan and Tarun Chatterjee, JJ)
12.12.2006
DR. AR. LAKSHMANAN, J.
The Petitioner is a lawyer by profession. Respondent No.1 is Union of
India, respondent No.2 is a statutory body, respondent Nos. 3 & 4 are the
leading national daily newspapers and respondent No.5 & 6 are news
agencies. The present petition involves a substantial question of law and
public importance on the fundamental right of the citizens, regarding the
freedom of speech and expression as enshrined under Article 19(1)(a) of the Constitution Of India, 1950. The petitioner's grievance is
that the freedom of speech and expression enjoyed by the newspaper industry is
not keeping balance with the protection of children from harmful and disturbing
materials. Article 19(1)(a) guarantees freedom of speech and expression of
individual as well as press. It acknowledges that the press is free to express
its ideas but on the same hand, individual also has right to their own space
and right not to be exposed against their will to other's expressions of ideas
and actions.
By way of this petition, the petitioner requested the Court to direct the
authorities to strike a reasonable balance between the fundamental right of
freedom of speech and expression enjoyed by the press and the duty of the
Government, being signatory of United Nations Convention on the Rights of the Child,
1989 and Universal Declaration of Human Rights, to protect the vulnerable
minors from abuse, exploitation and harmful effects of such expression. The
petitioner requested the Court to direct the concerned authorities to provide
for classification or introduction of a regulatory system for facilitating
climate of reciprocal tolerance which may include:-
(a) an acceptance of other people's rights to express and receive certain ideas
and actions; and
(b) accepting that other people have the right not to be exposed against their
will to one's expression of ideas and actions.
The reciprocal tolerance is further necessary considering the growing tendency
among youngsters and minors in indulging in X-rated jokes, SMS and MMS.
We heard Mr. Ajay Goswami, petitioner-in-person and Mr. Harish Chandra, learned
senior counsel, Mr. P.H. Parekh, Mr. Sanjay Kumar, Mr. A.K. Seth, Mr. Gopal
Jain, Mr. Vimal Chandra, Mr. S. Dave, learned counsel appearing for the
respondents and the entire documents placed before us. The Lawyer Petitioner
who appeared in person submitted that he filed this petition to seek protection
from this Court to ensure that minors are not exposed to sexually exploitative
materials, whether or not the same is obscene or is within the law. The real objective
is that the nature and extent of the material having sexual contents should not
be exposed to the minors indiscriminately and without regard to the age of
minor. The discretion in this regard should vest with parents, guardians,
teachers or experts on sex education.
The petitioner is not in any way seeking restrain on the freedom of press or
any censorship prior to the publication of article or other material. The
petitioner is only seeking for the regulation at the receiving end and not at
the source. Whatever is obscene is not protected by any law and there are
numerous avenues for the redressal of grievance for the publication of any
obscene material. However, all sex oriented material are not always obscene or
even indecent or immoral. The effect of words or written material should always
judged from the standards of reasonable strong minded, firm and courageous man
i.e. an average adult human being. No attempt has been made till date to define
any yardstick for the minors whose tender minds are open for being polluted and
are like plain state on which any painting can be drawn.
1. Is the material in newspaper really harmful for the minors? These articles
etc. may not be obscene within the four corners of law but certainly have
tendencies to deprave and corrupt the minds of young and adolescent who by
reasons of their physical and mental immaturity needs special safeguards and
care. He invited our attention to some of the clippings annexed along with the
petition. These clipping are only examples and such examples not only confine
to newspapers mentioned herein but is of general nature. The double meaning
jokes cannot in any way leave healthy impact on the tender minds of the
teenagers. The photographs certainly are part of news from around the world and
India. However, the tone and tenor of the article as a whole and the way some
of the photographs are published and described may not be in the interest of
the minors. The photographs annexed at page 24 of the paper book and the
caption below them such as "the center of attention", "double
jeopardy" "butt of course" leave much for the thoughts of
minors. If the minor is of an age where he/she cannot understand the meaning,
he/she would like to know from others and if the minor has come to an age where
he/she is able to understand this would certainly energize his grey cells in
the brain and would titillate him/her. What kind of culture and message the
article titled "moan for more" or "get that zing bag into your
sex life" convey. Is it really necessary for a child to read at a very
early stage the concept of masturbation, ejaculation, penetration etc. as is
normally discussed by so called sex experts in columns of newspapers. At what
age should we start telling our children where to have sex and how to break
their monotony. News item on MMS clipping is certainly not obscene but do we
really need to show the nude photographs with only small black stripes on the
private parts to our children without even bothering of its effect. In Times of
India dated 1.8.2005 an article titled "Porn In potter VI" was
published, copy of which is annexed with the petition. The author has tried to
read and suggest sexual messages in these lines. Children who were reading the
book might not have any such inclination. However, after reading newspaper
their mind would certainly wander to an area which the author might not have
even conceived.
No doubt, we are not living an era of Gandhari but certainly we have culture
and respect for elders and some decorum and decency towards children.
Undoubtedly, such kind of stuff is available freely on internet, movies;
televisions etc. but are the families and the community environment really
ready to accept it in toto or are they passive receiver of the same without any
control or check. Are these articles really making our children morally
healthy? Moral values should not be allowed to be sacrificed in the guise of
social change or cultural assimilation.
2. Whether the minors have got any independent right enforceable under Article
32 of the Constitution Of India, 1950. The right of
the minor flows from Article 19(1)(a), Article 21 read with Article 39(f) of
the Constitution Of India, 1950 and United Nation
Convention on the Rights of the Child. In a recent judgment delivered by this court
in the matter of Director General, Directorate General of Doordarshan &
Ors. Vs. Anand Patwardhan & Anr. (C.A.No. 613 of 2005), to which one of us
was a member, Dr. Justice AR. Lakshmanan, observed as under:
"..one of the most controversial issue is balancing the need to protect
society against the potential harm that may flow from obscene material, and the
need to ensure respect for freedom of expression and to preserve a free flow of
information and idea."
It was further observed by this Court :
".The Indian Penal Code, 1860 on obscenity
grew out of the English Law, which made court the guardian of public morals. It
is important that where bodies exercise discretion, which may interfere in the
enjoyment of constitutional rights, that discretion must be subject to adequate
law."
"The judge should thereafter place himself in the position of a reader of
every age group in whose hands the book 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 readers."
It was observed by this Court in the matter of Lakshmikant Pandey vs. Union of
India, as follows:
"It is obvious that in a civilized society the importance of child welfare
cannot be over-emphasized, because the welfare of the entire community, its
growth and development, depend on the health and well-being of its children.
Children are a "supremely important national asset" and the future
well being of the nation depends on how its children grow and develop. The
great poet Milton put it admirably when he said: "Child shows the man as
morning shows the day" and the Study Team on Social Welfare said much to
the same effect when it observed that "the physical and mental health of
the nation is determined largely by the manner in which it is shaped in the
early stages". The child is a soul with a being, a nature and capacities
of its own, who must be helped to find them, to grow into their maturity, into
fulness of physical and vital energy and the utmost breadth, depth and height
of its emotional, intellectual and spiritual being; otherwise there cannot be a
healthy growth of the nation. Now obviously children need special protection
because of their tender age and physique mental immaturity and incapacity to
look-after themselves. That is why there is a growing realisation in every part
of the globe that children must be brought up in an atmosphere of love and
affection and under the tender care and attention of parents so that they may
be able to attain full emotional, intellectual and spiritual stability and
maturity and acquire self-confidence and self-respect and a balanced view of
life with full appreciation and realisation of the role which they have to play
in the nation building process without which the nation cannot develop and
attain real prosperity because a large segment of the society would then be
left out of the developmental process. In India this consciousness is reflected
in the provisions enacted in the Constitution. Clause (3) of Article 15 enables
the State to make special provisions inter alia for children and Article 24
provides that no child below the age of fourteen years shall be employed to
work in any factory or mine or engaged in any other hazardous employment.
Clauses (e) and (f) of Article 39 provide that the State shall direct its
policy towards securing inter alia that the tender age of children is not
abused, that citizens are not forced by economic necessity to enter avocations
unsuited to their age and strength and that children are given facility to
develop in a healthy manner and in conditions of freedom and dignity and that
childhood and youth are protected against exploitation and against moral and
material abandonment. These constitutional provisions reflect the great anxiety
of the constitution makers to protect and safeguard the interest and welfare of
children in the country. The Government of India has also in pursuance of these
constitutional provisions evolved a National Policy for the Welfare of
Children. This Policy starts with a goal-oriented perambulatory introduction:
The nation's children are a supremely important asset. Their nurture and
solicitude are our responsibility. Children's programme should find a prominent
part in our national plans for the development of human resources, so that our
children grow up to become robust citizens, physically fit, mentally alert and
morally healthy, endowed with the skills and motivations needed by society.
Equal opportunities for development to all children during the period of growth
should be our aim, for this would serve our larger purpose of reducing
inequality and ensuring social justice.
The National Policy sets out the measures which the Government of India
proposes to adopt towards attainment of the objectives set out in the
perambulatory introduction and they include measures designed to protect
children against neglect, cruelty and exploitation and to strengthen family
ties "so that full potentialities of growth of children are realised
within the normal family neighbourhood and community environment.."
Further this Court in Unnikrishnan, J.P & Ors vs. State of Andhra Pradesh
& Ors. , 6 upheld the right to education
for children of age of 14 as fundamental right. In para 165, this Court
observed as follows:
"It is thus well established by the decisions of this Court that the
provisions of Parts III and IV are supplementary and complementary to each
other and that Fundamental Rights are but a means to achieve the goal indicated
in Part-IV. It is also held that the fundamental Rights must be construed in
the light of the Directive Principles. It is from the above stand- point that
Question No. 1 has to be approached".
This judgment to that extent was not overruled even by larger Bench. This Court
in the case of Unnikrishnan (supra) relied upon numerous judgments.
In His Holiness Kesavananda Bharati Sripadagalvaru vs. State of Kerala &
Another, , this court observed as follows:
"..The fundamental rights and the directive principles constitute the
'conscience' of our Constitution .To ignore Part IV is to ignore the sustenance
provided for in the Constitution, the hopes held out to the Nation and the very
ideals on which our Constitution is built here is no anti-thesis between the
fundamental rights and the directive principles. One supplements the other.
..Both Parts III and IV have to be balanced and harmonized .then alone the
dignity of the individual can be achieved ..They (fundamental rights and
directive principles) were meant to supplement each other.
Mathew, J. while adopting the same approach remarked: (SCC pp. 875-76, para
1700)
The object of the people in establishing the Constitution was to promote
justice, social and economic, liberty and equality. The modus operandi to
achieve these objectives is set out in Part III and IV of the Constitution.
Both parts III and IV enumerate certain moral rights. Each of these parts
represent in the main the statements in one sense of certain aspirations whose
fulfillment was regarded as essential to the kind of society which the
Constitution- makers wanted to build. Many of the articles, whether in Part III
or IV, represents moral rights which they have recognized as inherent in every
human being in this country. The tasks of protecting and realizing these rights
is imposed upon all organs of the state, namely, legislative, executive and
judicial. What then is the importance to be attached to the fact that the
provisions of Part III are enforceable in a court and the provisions in Part IV
are not? Is it that the rights reflected in the provisions of Part III are
somehow superior to the moral claims and aspirations reflected in the
provisions of Part IV or not? I think not. Free and compulsory education under
Article 25, Freedom from starvation is as important as right to life. Nor are
the provisions in Part III absolute in the sense that the rights represented by
them can always be given full implementation.."
This Court also cited observation in Brown vs. Board of Education 347 US
483 (1954) wherein it was emphasized in the following words:
".Today, education is perhaps the most important function of State and
a local government.It is required in the performance of our most basic
responsibilities, even service in the armed forces. It is the very foundation
of good citizenship. Today, it is the principal instrument in awakening the
child to cultural values, in preparing him for later professional training, and
in helping him to adjust normally to his environment. In these days, it is
doubtful any child may reasonably be expected to succeed in life if he is
denied the opportunity of education."
This Court in the case of M.C. Mehta vs. State of T.N. and Ors. , 6 observed that:
"Of the aforesaid provisions, the one finding place in Article 24 has
been a fundamental right ever since 28th January, 1950. Article 45 too has been
raised to high pedestal by Unni krishnan, which was decided on 4th February,
1993. Though other articles are part of directive principles, they are fundamental
in the governance of our country and it is the duty of all the organs of the
State (a la Article 37) to apply these principles. Judiciary, being also one of
the three principal organs of the State, has to keep the same in mind when
called upon to decide matters of great public importance. Abolition of child
labour is definitely a matter of great public concern and significance.
It would be apposite to apprise ourselves also about our commitment to world
community. For the case at hand it would be enough to note that India has
accepted the convention on the Rights of the Child, which was concluded by the
UN General Assembly on 20th November, 1989. This Convention affirms that
children's right require special protection and it aims, not only to provide such
protection, but also to ensure the continuous improvement in the situation of
children all over the world, as well as their development and education in
conditions of peace and security. Thus, the Convention not only protects the
child's civil and political right, but also extends protection to child's
economic, social, cultural and humanitarian rights."
3. Maintainability of Petition In view of the above facts and circumstances and
legal proposition, Mr. Ajay Goswami, the petitioner-in-person submitted that:
i) Newspapers are publishing sex oriented material which may not be obscene
otherwise but still caters to prurient interest of the minor.
ii) Minors have got fundamental right under Article 19(1)(a), Article 21 read
with Article 39(f) of the Constitution Of India, 1950
and United Nation Convention on the Rights of the Child. As freedom of speech
and expression also includes the expressions of the minors which need care as
the minor due to their tender age and mental immaturity are not capable of deciding
themselves as to what is in the interest of their growth morally &
culturally, so that they can assume their responsibility within the community.
iii) The right also flows from Article 21 as the right to live shall also
includes right to education as pronounced in the judgments of this Court. By
necessary corollary, it shall also mean right to proper education which may be
decided by the parents, teachers and other experts and newspapers cannot be
allowed to disturb that by their indeterminately access of the offending
article to the minors regardless of their age.
iv) The State which has the duty to protect the minors by appropriate
legislation or executive orders has failed in its duty. The Press Council of
India which was constituted for preserving the freedom of press and maintaining
and improving the standards of newspapers and news agency is a powerless body.
No guidelines have been framed for the minors and adolescents in particular,
which can be enforced in Court of law. The Council itself feel the necessity of
some strong and effective measure to correct it.
v) The citizens of this country can only pray to this Court to prevent
injustice being done to them. This Court under Article 32 read with Article 142
can issue guidelines to ensure the growth of the children in a healthy and
moral atmosphere which is exploited by the newspapers.
Mr. Ajay Goswami relied on two judgments of this Court. In Comptroller &
Auditor General of India & anr. Vs. K.S. Jagnathan, , this Court held
as under:
".In order to prevent injustice resulting to the concerned parties, the
Court may itself pass an order to give directions which the government or the
public authority should have passed or given had it properly and lawfully
exercised its discretion."
Similarly in Vineet Narain & Ors. Vs. U.O.I. 7,
this Court held as under:
"There are ample powers conferred by Article 32 read with Article 142
to make orders which have the effect of law by virtue of Article 141 and there
is mandate to all authorities to act in aid of the orders of this Court as
provided in Article 144 of the Constitution Of India, 1950.
In a catena of decisions of this Court, this power has been recognized and
exercised, if need be, by issuing necessary directions to fill the vacuum till
such time the legislature steps in to cover the gap or the executive discharges
its role."
"Where there is inaction by the legislature it is the duty of executive to
fill the vacuum and where there is inaction even by executive for whatever
reasons judiciary must step in."
Concluding his arguments, Mr. Ajay Goswamy, petitioner-in-person made the
following proposals:
i) Guidelines in detail may be issued to all the newspapers regarding the matter
which may not be suitable for the reading of minors or which may require
parents or teachers discretion.
ii) Newspapers should have self regulatory system to access the publication in
view of those guidelines.
iii) In case the newspapers publishe any material which is categorized in the
guidelines the newspaper be packed in some different form and should convey in
bold in front of newspapers of the existence of such material.
iv) This would give discretion to the parents to instruct the news vendor
whether to deliver such newspaper or not. OR
In the alternative, he suggested a Committee be appointed to suggest ways and
means for regulating the access of minors to adult oriented sexual,
titilliating or prurient material.
Mr. Harish Chandra, learned senior counsel appearing for Union of India -
respondent No.1 in reply to the arguments of the petitioner submitted that
publishing as well as circulating of obscene and nude/semi-nude photographs of
women already constitutes a penal offence under the provisions of the Indecent Representation of Women (Prohibition) Act, 1986,
administered by the Department of Women & Child Development, Ministry of
Human Resources Development. Relevant Sections 3 & 4 of the Indecent Representation of Women (Prohibition) Act, 1986
are reproduced hereunder for ready reference:
"3. Prohibition of advertisements containing indecent representation of
woman:- No person shall publish, or cause to be published or arrange or take
part in the publication or exhibition or, any advertisement which contains
indecent representation of women in any form.
4. Prohibition of publication or sending by post of books, pamphlets etc.
containing indecent representation of women. No person shall produce or cause
to be produced, sell, let to hire, distribute or circulate or send by post any
book, pamphlet, paper, slide, film, writing drawing, painting, photographs,
representation or figure of women in any form, provided that nothing in this
section shall apply to:
(a) any book, pamphlet, paper, slide, film, writing, drawing, painting,
photograph, representation or figure:-
(i) the publication of which is proved to be justified as being for the public
good on the ground that such book, pamphlet, paper, slide, film, writing,
drawing, painting, photograph, representation or figure is in the interest of
science, literature, art or learning or other object of general concern; or
(ii) which is kept or used bona fide for religious purposes;
(b) any representation sculptured, engraved, painted or otherwise represented
on or in –
(i) any ancient monument within the meaning of the Ancient Monument and
Archaeological Sites and Remains Act, 1958 (24 of 1958)
(ii) any temple, or on any car used for the conveyance of idols, or kept or
used for any religious purposes;
(c) any film in respect of which the provisions of Part II of the Cinematograph Act, 1952 (37 of 1952), will be
applicable."
Section 6 of the Indecent Representation of Women (Prohibition)
Act, 1986 provides the penalty for committing such offences in
contravention of Sections 3 & 4 of the said Act. Section 6 reads as
follows:
"6. Penalty- Any person who contravenes the provisions of Sections 3
& 4 shall be punishable on first conviction with imprisonment of either
description for a term which may extend to two years, and with fine which may
extend to two thousand rupees, and in the event of a second or subsequent
conviction with imprisonment for a term of not less than six months but which
may extend to five years and also with a fine not less than ten thousand rupees
but which may extend to one lac rupees."
It was further submitted that sale, letting, hiring, distributing, exhibiting,
circulating of obscene books and objects of young persons under the age of
twenty years also constitutes a penal offence under Sections 292 and 293 of the
Indian Penal Code, 1860 and is punishable on first
conviction with imprisonment of either description for a term which may extend
to two thousand rupees and in the event of a second or subsequent conviction,
with imprisonment of either description for a term which may extend to seven
years, and also with fine which may extend to five thousand rupees. Concluding
his submissions, he submitted that there are laws in existence which prohibit
publishing, circulating and selling obscene books and objects to young persons
and it is the responsibility of the "Press" to adhere to and comply
with these laws and not to abuse the freedom of speech and expression (freedom
of press) guaranteed under Article 19(1)(a) of the Constitution
Of India, 1950.
Mr. P.H. Parekh, learned counsel appearing for respondent No.2-Press Council of
India, submitted that the Press Council enjoys only limited authority, with its
power limited to giving directions, censure etc. to the parties arraigned
before it, to publish particulars relating to its enquiry and adjudication etc.
The powers of the Council in so far its authority over the press is concerned
are enumerated under Section 14 of the Press Council Act,
1978. However, it has no further authority to ensure that its directions
are complied with and its observations implemented by the erring parties. Lack
of punitive powers with Press Council has tied its hands in exercising control
over the erring publications.
Learned counsel further submitted that despite various requests to the Central
Government from the year 1999 to amend the Press Council
Act, 1978, the same has not been amended. Recently, on 1.6.2006, under
clause 18(d), an advertisement policy was issued by the Directorate of Audio
Visual Publicity under the Central Government Advertisement Policy stating that
the newspapers will be suspended from empanelment by DG, DAVP with immediate
effect if it indulged in unethical practices or anti-national activities as
found by the Press Council of India.
Learned counsel further submitted that as the issue which arise in the present
petition requires urgent action, it will be appropriate that this Court may
formulate certain guidelines as suggested by the Press Council vide its letter
dated 6.1.2002 for amendment by way of incorporation of two provisions viz.,
Section 14(2)(a) and Section 14(2)(b) in the Press Council
Act, 1978 till the law made by the legislature amending the Press Council Act, 1978 as per the various judgments
passed by this Court which are as follows:
1. Vishaka & Ors. Vs. State of Rajasthan & Ors. 4
2. Vineet Narain & Ors. Vs. U.O.I. & Ors., 7
3. Union of India vs. Association for Democratic Reforms and Anr. .
Learned counsel submitted that this Court may consider to issue appropriate
guidelines.
Learned counsel appearing for respondent no. 3 (Times of India) contented that
legislations, rules and regulations already exists within the Indian legal
framework to check publication of obscene materials and articles. Section 292
of the Indian Penal Code, 1860 prohibits and
punishes selling, hiring, exhibition, circulation, possession, importation,
exportation of obscene material.
Sections 3 and 4 of the Indecent Representation of Women Act also imposes a
prohibition on the publication or sending by post of books, pamphlets etc,
selling, hiring, distributing and circulating any material that contains
indecent representation of women in any form. Section 6 of the said Act, also
provides for punishment in the case of non- compliance to sections 3 and 4 of
the Act.
Further he submitted that the Press Council of India is constituted duly under
the Constitution Of India, 1950 for regulating the
functions and activities of the Press. Sections 13 (2) (c), 14 (1) and 14 (2)
of the Press Council of India Act empowers the Press Council to impose serious
checks on the Newspaper, News Agency, an editor or a journalist who flouts the
norms as formulated by the Press Council and is against societal norms of
decency.
Learned Counsel also submitted that the Constitution Of
India, 1950 under Article 19 (1) (a) guarantees every citizen the right
to freedom of speech and expression and respondent being a leading Newspaper
has the right to express its views and various news of National and
International relevance in its edition and any kind of unreasonable restriction
on this right will amount to the violation of the right guaranteed by the Constitution Of India, 1950. Learned Counsel referred to a
recent judgment of this Court, Director General of Doordarshan and Ors. v.
Anand Patwardhan (Supra), it was observed that the basic test for obscenity
would be:
"(a) whether the average person applying contemporary community
standards would find that the work, taken as a whole appeal to the prurient
interest
(b) whether the work depicts or describes, in a patently offensive way, sexual
conduct specifically, defined by the applicable state law,
(c) whether the work taken as a whole, lacks serious literary, artistic,
political or scientific value."
In Shri Chandrakant Kalyandas Kakodkar v. The State of Maharashtra and Others,
1962 (2) SCC 687, this Court observed that:
"12. The concept of obscenity would differ from country to country
depending on the standards of morals of contemporary society. What is
considered as a piece of literature in France may be obscene in England and
what is considered in both countries as not harmful to public order and morals
may be obscene in our country. But to insist that the standard should always be
for the writer to see that the adolescent ought not to be brought into contact
with sex or that if they read any references to sex in what is written whether
that is the dominant theme or not they would be affected, would be to require
authors to write books only for the adolescent and not for the adults."
Learned counsel referred to the case of Samaresh Bose and Another v. Amal Mitra
and Another, this court observed that:
"The decision of the Court must necessarily be on an objective
assessment of the book or story or article as a whole and with particular
reference to the passages complained of in the book, story or article. The
Court must take an overall view of the matter complained of as obscene in the
setting of the whole work, but the matter charged as obscene must also be
considered by itself and separately to find out whether it is so gross and its
obscenity so pronounced that it is likely to deprave and corrupt those whose
minds are open to influence of this sort and into whose hands the book is
likely to fall."
Learned counsel also referred to American jurisprudence and stated that even
nudity per se is not obscenity. In 50 Am Jur 2 d, para 22 at page 23,
"Articles and pictures in a newspaper must meet the Miller's test's
Constitutional standard of obscenity in order for the publisher or distributor
to be prosecuted for obscenity. Nudity alone is not enough to make a material
legally obscene"
In Alfred E Butler v. State of Michigan, 1 Led 2d 412, the U.S. Supreme Court
has held that:
"The state insists that, by thus quarantining the general reading
public against books not too rugged for grown men and women in order to shield
juvenile innocence, it is exercising its power to promote the general welfare.
Surely, this is to burn the house to roast the pig."
Further the learned counsel submitted that, the Times of India, respondent
no.3, is one of the leading newspapers and its popularity only stands to show
that the pictures published in it are not objectionable and also that
respondent while publishing any news article has any intention to cater to the
prurient interest of anybody. Also the respondent no.3 has an internal
regulatory system to ensure that no objectionable photograph or matter gets
published.
Mr. Gopal Jain, learned counsel appearing for Hindustan Times respondent no.4,
practically adopted the arguments put forth by respondent no.3. In addition,
respondent no.4 drew our attention to the Guidelines under the "Norms of
Journalistic Conduct" which lays down guidelines for newspapers
/journalists to maintain standards with regard to obscenity and vulgarity.
Norm 17 reads as follows:
"Obscenity and vulgarity to be eschewed
i) Newspapers/journalists shall not publish anything which is obscene, vulgar
or offensive to public good taste.
ii) Newspapers shall not display advertisements which are vulgar or which,
through depiction of a woman in nude or lewd posture, provoke lecherous
attention of males as if she herself was a commercial commodity for sale.
iii) Whether a picture is obscene or not, is to be judged in relation to three
tests: namely
a) Is it vulgar and indecent?
b) Is it a piece of mere pornography?
c) Is its publication meant merely to make money by titillating the sex
feelings of adolescents and among whom it is intended to circulate? In other
words, does it constitute an unwholesome exploitation for commercial gain.
Other relevant considerations are whether the picture is relevant to the
subject matter of the magazine. That is to say, whether its publication serves
any preponderating social or public purpose, in relation to art, painting,
medicine, research or reform of sex.
iv) The globalisation and liberalization does not give licence to the media to
misuse freedom of the Press and to lower the values of the society. The media
performs a distinct role and public purpose which require it to rise above
commercial consideration guiding other industries and businesses. So far as
that role is concerned, one of the duties of the media is to preserve and
promote our cultural heritage and social values.
v) Columns such as 'Very Personal' in a newspaper replying to personal queries
of the readers must not become grossly offensive presentations, which either
outrage public decency or corrupt public moral."
Learned Counsel contented that, the test of judging should be that of an
ordinary man of common sense and prudence and not an "out of the ordinary
hypersensitive man". In the case of K.A.Abbas , Hidayatullah, C.J. opined:
"If the depraved begins to see in these things more than what an average
person would, in much the same way, as it is wrongly said, a Frenchman sees a
woman's legs in everything, it cannot be helped."
Learned counsel further explained the procedure followed by Hindustan Times
before the publication of any advertisement, "Advertisements are
scrutinized by the advertising department and in the event the advertising
department is in doubt, the assistance of the legal department is resorted to.
The departments are manned by qualified persons who are well acquainted with
the Norms and Guidelines issued by the Press Council."
Further the learned counsel submitted that, keeping in mind special educational
needs of the school-going students a supplement called "HT Next- School
Times" is published by Hindustan Times. The respondent does not send any
other supplement other than this to educational institutions along with the
main paper. Thus, it was stated that respondent realizes its responsibility
towards children and at the same time it would be inappropriate to deprive the
adult population of the entertainment which is well within the acceptable
levels on the ground that it may not be appropriate for the children. In conclusion,
it was urged that any step to ban publishing of certain news-pieces or pictures
would fetter the independence of free-press.
Learned Counsel appearing for respondent no.5 and Learned Counsel Dr. Kailash
Chand appearing for respondent no.6, submitted that the relief sought by the
petitioner does not relate to them and accordingly they are not giving any
reply.
We have given our careful consideration to the entire material placed before us
and the rival submissions made by learned counsel appearing for the respective
parties. Maintainability of Writ Petition:
Before proceeding further, we feel better to reproduce the prayers made in the
writ petition which read as follows:
"1) Issue writ in the nature of writ of mandamus/order or direction to
the respondent Nos. 1 & 2 for laying down rules/regulations to ensure that
minor is not exposed to sexually explicit material whether or not the same is
obscene or is within the law without express consent of the parents, guardians
or the experts on sex education.
2) Respondent Nos. 1 & 2 be directed to constitute an expert committee to
look into the problem of unwanted exposure to the minor through press and to
lay down appropriate rules and regulations for the same."
The maintainability of the writ petition was also raised as a preliminary issue
by learned counsel appearing for some of the respondents and, in particular,
respondent Nos. 3 and 4. Learned counsel for respondent No.3 pointed out that
there can be no mandamus for legislation and in support of the said submission,
he relied on the judgment of this Court in Networking of Rivers: In Re:
2004 (11) SCC 360 wherein this Court held .
"It is not open to this Court to issue any direction to Parliament to
legislate but the Attorney General submits that the Government will consider
this aspect and, if so advised, will bring an appropriate legislation."
He also cited Common Cause vs. Union of India & Ors, . This Court
held:
"From the facts placed before us it cannot be said that the Government
is not alive to the problem or is desirous of ignoring the will of Parliament.
When the legislature itself had vested the power in the Central Government to
notify the date from which the Act would come into force, then the Central
Government is entitled to take into consideration various facts including the
facts set out above while considering whether the Act should be brought into
force or not. No mandamus can be issued to the Central Government to issue the
notification contemplated under Section 1 (3) of the Act to bring the Act into
force, keeping in view the facts brought on record and the consistent view of
this Court.
We have already noticed the prayer in the present writ petition. In our view, the
prayer No.1 cannot at all be countenanced inasmuch as sufficient protection in
the form of legislations, rules, regulations and norms have already been laid
down under the Press Council Act, 1978, I.P.C. etc.
Prayer No.2 equally is vague and no case has been made out for constituting an
Expert Committee.
LEGISLATIONS AGAINST OBSCENITY:
Section 13 of the Press Council Act, 1978 specifies
the objects and functions of the council. Section 13(2) (c) states: "to
ensure on the part of newspapers, news agencies and journalists, the
maintenance of high standards of public taste and foster a due sense of both
the rights and responsibilities of citizenship;
Section 14(1) states:
"Where, on receipt of a complaint made to it or otherwise, the Council has
reason to believe that a newspaper or news agency has offended against the
standards of journalistic ethics or public taste or that an editor or working
journalist has committed any professional misconduct, the Council may, after
giving the newspaper, or news agency, the editor or journalist concerned an
opportunity of being heard, hold an inquiry in such manner as may be provided
by regulations made under this Act and, if it is satisfied that it is necessary
so to do, it may, for reasons to be recorded in writing, warn, admonish or
censure the newspaper, the news agency, the editor or the journalist or
disapprove the conduct of the editor or the journalist, as the case may be :
Provided that the Council may not take cognizance of a complaint if in the
opinion of the Chairman, there is no sufficient ground for holding an inquiry.
Section 14(2) states:-
"If the Council is of the opinion that it is necessary or expedient in
public interest so to do, it may require any newspaper to publish therein in
such manner as the Council thinks fit, any particulars relating to any inquiry
under this section against a newspaper or news agency, an editor or a
journalist working therein, including the name of such newspaper, news agency,
editor or journalist.
Section 292 of the Indian Penal Code, 1860 reads:-
"Sale, etc., of obscene books, etc. (1) 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 the 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, such as to tend to deprave and corrupt person, who are likely, having
regard to all relevant circumstances, to read, see or hear the matter contained
or embodied in it].
[(2)] Whoever-
(a) sells, lets to hire, distributes, publicly exhibits or in any manner puts
into circulation, or for purposes of sale, hire, distribution, public
exhibition or circulation, makes, produces or has in his possession any obscene
book, pamphlet, paper, drawing, painting, representation or figure or any other
obscene object whatsoever, or
(b) imports, exports or conveys any obscene object for any of the purposes aforesaid,
or knowing or having reason to believe that such object will be sold, let to
hire, distributed or publicly exhibited or in any manner put into circulation,
or
(c) takes part in or receives profits from any business in the course of which
he knows or has reason to believe that any such obscene objects are for any of
the purposes aforesaid, made, produced, purchased, kept, imported, exported,
conveyed, publicly exhibited or in any manner put into circulation, or
(d) advertises or makes known by any means whatsoever that any person is
engaged or is ready to engage in any act which is an offence under this
section, or that any such obscene object can be procured from or through any
person, or
(e) offers or attempts to do any act which is an offence under this section,
shall be punished on first conviction with imprisonment of either description
for a term which may extend to two years, and with fine which may extend to two
thousand rupees, and, in the event of a second or subsequent conviction, with imprisonment
of either description for a term which may extend to five years, and also with
fine which may extend to five thousand rupees.
[Exception- This section does not extend to- (a) any book, pamphlet, paper,
writing, drawing, painting, representation or figure-
(i) the publication of which is proved to be justified as being for the public
good on the ground that such book, pamphlet, paper, writing, drawing, painting,
representation or figure is in the interest of science, literature, art of
learning or other objects of general concern, or
(ii) which is kept or used bona fide for religious purposes;
(b) any representation sculptured, engraved, painted or otherwise represented
on or in-
(i) any ancient monument within the meaning of the Ancient
Monuments and Archaeological Sites and Remains Act, 1958 (24 of 1958),
or
(ii) any temple, or on any car used for the conveyance of idols, or kept or
used for any religious purpose.]"
Sections 4 and 6 of the Indecent Representation of Women Act, 1986 are also in
existence.
In view of the availability of sufficient safeguards in terms of various
legislations, norms and rules and regulations to protect the society in general
and children, in particular, from obscene and prurient contents, we are of the
opinion that the writ at the instance of the petitioner is not
maintainable.
Article 19(1)(a) deals with freedom of speech and expression. In the matter of
Virendra vs. State of Punjab & Another, this Court held:
"It is certainly a serious encroachment on the valuable and cherished
right to freedom of speech and expression if a newspaper is prevented from
publishing its own views or the views of its correspondents relating to or
concerning what may be the burning topic of the day.
Our social interest ordinarily demands the free propagation and interchange of
views but circumstances may arise when the social interest in public order may
require a reasonable subordination of the social interest in free speech and
expression to the needs of our social interest in public order.
Our Constitution recognises this necessity and has attempted to strike a
balance between the two social interests. It permits the imposition of
reasonable restrictions on the freedom of speech and expression in the interest
of public order and on the freedom of carrying on trade or business in the
interest of the general public.
Therefore, the crucial question must always be : Are the restrictions imposed
on the exercise of the rights under Arts. 19(1)(a) and 19(1)(g) reasonable in
view of all the surrounding circumstances ? In other words are the restrictions
reasonably necessary in the interest of public order under Art. 19(2) or in the
interest of the general public under Art. 19(6) ?"
Test of obscenity:
This Court has time and again dealt with the issue of obscenity and laid down
law after considering the right of freedom and expression enshrined in Article
19(1)(a) of the Constitution of India, its purport and intent, and laid down
the broad principles to determine/judge obscenity. In a recent judgment
Director General, Directorate General of Doordarshan & Ors. Vs. Anand
Patwardhan & Anr. reported in 2006 (8) JT 255 (Dr. AR. Lakshmanan and
L.S. Panta, JJ) This Court has referred to the Hicklin test laid down in
1868 (3) QB 360 and observed:
(a) whether the average person applying contemporary community standards
would find that the work, taken as a whole appeal to the prurient interest
(b) whether the work depicts or describes, in a patently offensive way, sexual
conduct specifically, defined by the applicable state law,
(c) whether the work taken as a whole, lacks serious literary, artistic,
political or scientific value."
In Shri Chandrakant Kalyandas Kakodkar vs. The State of Maharashtra and Others,
. This Court has held:
"In early English writings authors wrote only with unmarried girls in
view but society has changed since then to allow litterateurs and artists to
give expression to their ideas, emotions and objectives with full freedom
except that is should not fall within the definition of 'obscene' having regard
to the standards of contemporary society in which it is read. The standards of
contemporary society in India are also fast changing. The adults and
adolescents have available to them a large number of classics, novels, stories
and pieces of literature which have a content of sex, love and romance. As
observed in Udeshi's case (Supra) if a reference to sex by itself is considered
obscene, no books can be sold except those which are purely religious. In the
field of art and cinema also the adolescent is shown situations which even a
quarter of a century ago would be considered derogatory to public morality, but
having regard to changed conditions are more taken for granted without in
anyway tending to debase or debauch the mind. What we have to see is that
whether a class, not an isolated case, into whose hands the book, article or
story falls suffer in their moral outlook or become depraved by reading it or
might have impure and lecherous thought aroused in their minds. The charge of
obscenity must, therefore, be judged from this aspect"
In Samaresh Bose & Anr. Vs. Amal Mitra & Anr. (Supra), this Court held
as under:
"In England, as we have earlier noticed, the decision on the question
of obscenity rests with the jury who on the basis of the summing up of the
legal principles governing such action by the learned Judge decides whether any
particular novel, story or writing is obscene or not. In India, however, the
responsibility of the decision rests essentially on the Court. As laid down in
both the decisions of this Court earlier referred to, "the question
whether a particular article or story or book is obscene or not does not
altogether depend on oral evidence, because it is the duty of the Court to
ascertain whether the book or story or any passage or passages therein offend
the provisions of Section 292 I.P.C." In deciding the question of
obscenity of any book, story or article the Court whose responsibility it is to
adjudge the question may, if the Court considers it necessary, rely to an
extent on evidence and views of leading literary personage, if available, for
its own appreciation and assessment and for satisfaction of its own conscience.
The decision of the Court must necessarily be on an objective assessment of the
book or story or article as a whole and with particular reference to the
passages complained of in the book, story or article. The Court must take an
overall view of the matter complained of as obscene in the setting of the whole
work, but the matter charged as obscene must also be considered by itself and
separately to find out whether it is so gross and its obscenity so pronounced
that it is likely to deprave and corrupt those whose minds are open to
influence of this sort and into whose hands the book is likely to fall. Though
the Court must consider the question objectively with an open mind, yet in the
matter of objective assessment the subjective attitude of the Judge hearing the
matter is likely to influence, even though unconsciously, his mind and his
decision on the question. A Judge with a puritan and prudish outlook may on the
basis of an objective assessment of any book or story or article, consider the
same to be obscene. It is possible that another Judge with a different kind of
outlook may not consider the same book to be obscene on his objective
assessment of the very same book. The concept of obscenity is moulded 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 try to understand what is it that the author seeks to convey and whether
what the author conveys has any literary and artistic value. The Judge should
thereafter place himself in the position of a reader of every age group in
whose hands the book 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 readers. A
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
Section 292 I.P.C. by an objective assessment of the book as a whole and also
of the passages complained of as obscene separately. In appropriate cases, the
Court, for eliminating any subjective element or personal preference which may
remain hidden in the sub-conscious mind and may unconsciously affect a proper
objective assessment, may draw upon the evidence on record and also consider
the views expressed by reputed or recognised authors of literature on such
questions if there be any for his own consideration and satisfaction to enable
the Court to discharge the duty of making a proper assessment".
Per se nudity is not obscenity:
The American Courts, from time to time, have dealt with the issues of obscenity
and laid down parameters to test obscenity. It was further submitted that while
determining whether a picture is obscene or not it is essential to first
determine as to quality and nature of material published and the category of
readers.
In 50 Am Jur 2 d, para 22 at page 23 reads as under:
"Articles and pictures in a newspaper must meet the Miller test's
constitutional standard of obscenity in order for the publisher or distributor
to be prosecuted for obscenity. Nudity alone is not enough to make material
legally obscene.
The possession in the home of obscene newspaper is constitutionally protected,
except where the such materials constitute child poronography."
Contemporary Society:
It was also submitted that in order to shield minors and children the State
should not forget that the same content might not be offensive to the
sensibilities of adult men and women. The incidence of shielding the minors
should not be that the adult population is restricted to read and see what is
fit for children.
In Alfred E Butler vs. State of Michigan, 1 Led 2d 412, U.S. Supreme Court held
as under:
"The State insists that, by thus quarantining the general reading
public against books not too rugged for grown men and women in order to shield
juvenile innocence, it is exercising its power to promote the general welfare.
Surely, this is to burn the house to roast the pig."
There should be no suppression of speech and expression in protecting children
from harmful materials : In Janet Reno vs. American Civil Liberties Union, 138
Led 2d 874, it has been held that:
"The Federal Government's interest in protecting children from harmful
materials does not justify an unnecessarily broad suppression of speech
addressed to adults, in violation of the Federal Constitution's First
Amendment; the Government may not reduce the adult population to only what is
fit for children, and thus the mere fact that a statutory regulation of speech
was enacted for the important purpose of protecting children from exposure to
sexually explicit material does not foreclose inquiry into the statute's
validity under the First Amendment, such inquiry embodies an overarching
commitment to make sure that Congress has designed its statute to accomplish
its purpose without imposing an unnecessarily great restriction on
speech."
In 146 Led 2d 865, United States v Playboy Entertainment Group, Inc., it has
been held that:
"In order for the State to justify prohibition of a particular
expression of opinion, it must be able to show that its action was caused by
something more than a mere desire to avoid the discomfort and unpleasantness
that always accompany an unpopular viewpoint.What the Constitution says is that
these judgments are for the individual to make, not for the government of
decree, even with the mandate or approval of a majority. Technology expands the
capacity to choose; and it denies the potential of this revolution if we assume
the Government is best positioned to make these choices for us."
Literary merit and "prepondering social purpose" Where art and
obscenity are mixed, what must be seen is whether the artistic, literary or
social merit of the work in question outweighs its "obscene" content.
This view was accepted by this Court in Ranjit D. Udeshi v. State of
Maharashtra. AIR 1965 SC case:
"Where there is propagation of ideas, opinions and information of
public interest or profit the approach to the problem may become different
because then the interest of society may tilt the scales in favour of free
speech and expression. It is thus that books on medical science with intimate
illustrations and photographs, though in a sense immodest, are not considered to
be obscene but the same illustrations and photographs collected in book form
without the medical text would certainly be considered to be obscene.
Where art and obscenity are mixed, the element of art must be so prepondering
as to overshadow the obscenity or make it so trivial/inconsequential that it
can be ignored; Obscenity without a preponderating social purpose or profit
cannot have the constitutional protection of free speech"
Contemporary Standards
In judging as to whether a particular work is obscene, regard must be had to
contemporary mores and national standards. While the Supreme Court in India
held Lady Chatterley's Lover to be obscene, in England the jury acquitted the
publishers finding that the publication did not fall foul of the obscenity
test. This was heralded as a turning point in the fight for literary freedom in
UK. Perhaps "community mores and standards" played a part in the
Indian Supreme Court taking a different view from the English jury. The test
has become somewhat outdated in the context of the internet age which has
broken down traditional barriers and made publications from across the globe
available with the click of a mouse. Judging the work as a whole
It is necessary that publication must be judged as a whole and the impugned
should also separately be examined so as to judge whether the impugned passages
are so grossly obscene and are likely to deprave and corrupt.
Opinion of literary/artistic experts
In Ranjit Udeshi (Supra) this Court held that the delicate task of deciding
what is artistic and what is obscene has to be performed by courts and as a
last resort by the Supreme Court and therefore, the evidence of men of
literature or others on the question of obscenity is not relevant.
However, in Samresh Bose v. Amal Mitra (Supra) this Court observed:
"In appropriate cases, the court, for eliminating any subjective
element or personal preference which may remain hidden in the subconscious mind
and may unconsciously affect a proper objective assessment, may draw upon the
evidence on record and also consider the views expressed by reputed or
recognized authors of literature on such questions as if there by any of his
own consideration and satisfaction to enable the court to discharge the duty of
making a proper assessment."
Clear and Present Danger In S.Ragarajan v. P. Jagjivam Ram, while interpreting
Article 19(2), this Court borrowed from the American test of clear and present
danger and observed:
"the commitment to freedom demands that it cannot be suppressed unless
the situations created by allowing the freedom are pressing and the community
interest is endangered. The anticipated danger should not be remote,
conjectural or far-fetched. It should have a proximate and direct nexus with
the expression. The expression of thought should be intrinsically dangerous to
the public interest. In other words, the expression should be inseparably like
the equivalent of a 'spark in a power keg'."
Test of Ordinary Man
The test for judging a work should be that of an ordinary man of common sense
and prudence and not an "out of the ordinary or hypersensitive man."
As Hidayatullah, C.J. remarked in K.A. Abbas:
"If the depraved begins to see in these things more than what an
average person would, in much the same way, as it is wrongly said, a Frenchman
sees a woman's legs in everything, it cannot be helped."
An additional affidavit was filed on behalf of the Press Council of India on
7.8.2006. Inviting our attention to the said affidavit, Mr. P.H. Parekh
submitted that Section 14 of the Press Council Act, 1978
empowers the Press Council only to warn, admonish or censure newspapers or news
agencies and that it has no jurisdiction over the electronic media and that the
Press Council enjoys only the authority of declaratory adjudication with its
power limited to giving directions to the answering respondents arraigned
before it to publish particulars relating to its enquiry and adjudication. It,
however, has no further authority to ensure that its directions are complied
with and its observations implemented by the erring parties. Lack of punitive
powers with the Press Council of India has tied its hands in exercising control
over the erring publications.
Mr. P.H. Parekh further submitted that prompted by the continued flouting of
its observation/directions by some of the Press of the country, the Press
Council has recommended to the Government between 1999-2003 to amend the
provisions of Section 14(1) of the Press Council Act, 1978
to arm the Council with the authority to recommend to the Government
de-recognition of newspapers for Government advertisement or withdrawal of the
accreditation granted to a journalist which facilitates performance of his
function and also entitles him to claim concession in railways etc. or to
recommend de- recognition of a newspaper for the period deemed appropriate for
the proposals made. The Press Council of India is yet to receive any response
from the Government. The counsel has also filed the copies of the letters
written by Justice K.Jayachandra Reddy dated 17.12.2002 and 06.12.2003 issued
by the Press Council to the Government of India for extending punitive powers
and the amendments proposed by the Council have been annexed to the main writ
petition. In our opinion, the present scenario provides for a regulatory
framework under which punishment is prescribed for flouting the standards set
by the Press Council of India by newspapers/print media. Further, respondent
Nos. 3 & 4 have a self-regulatory mechanism in place and they have to
strictly adhere to the standards set by the Press Council
Act, 1978. According to them, the advertisement, news articles and
photographs are scrutinized by the advertising department and in the event the
advertising department is in doubt, the assistance of the legal department is
resorted to. It is also their case that the said departments are manned by
qualified persons who are well acquainted with the Norms and Guidelines issued
by the press Council. It was also submitted that respondent No.4, as among
others, consistently rejected the publication of liquor and sexually
exploitative advertisements, which may offend the sensibilities of families and
in contravention it was further submitted that respondent No.4, keeping in mind,
special educational needs of school going children publishes a supplement
called "HT Next School Times" every Monday and the respondent does
not send any supplement to schools other than "HT Next School Times"
along with the main paper. Further, the respondent publishes "HT
Next" which is a newspaper positioned mainly for the youth. This paper too
keeps in mind the special needs of the youth of today. The market segment that
the respondent's paper wishes to cater and caters to sections of society interested
in business and is keen on gathering information on all fronts of life. It was
further submitted that the newspaper intends to give a holistic perspective of
the world to an individual. It was submitted that the respondent's paper has
consistently over the last few decades had a large circulation and consistent
increase in its circulation each year has not been due to publishing of its
supplement "HT City".
In view of the foregoing legal propositions the pictures in dispute had been
published by the respondents with the intent to inform readers of the current
entertainment news from around the world and India. The respondent's newspaper
seeks to provide a wholesome reading experience offering current affairs,
sports, politics as well as entertainment news to keep its readers abreast of
all the latest happenings in the world. The pictures that have been published
should not be viewed in isolation rather they have to be read with the news
reports next to them. In the event, that a particular news items or picture
offends any person they may avail of the remedies available to them under the
present legal framework. Any steps to impose a blanket ban on publishing of
such photographs, in our opinion, would amount to prejudging the matter as has
been held in the matter of Fraser vs. Evans, 1969 (1) QB 549.
The definition of obscenity differs from culture to culture, between
communities within a single culture, and also between individuals within those
communities. Many cultures have produced laws to define what is considered to
be obscene, and censorship is often used to try to suppress or control
materials that are obscene under these definitions. The term obscenity is most
often used in a legal context to describe expressions (words, images, actions)
that offend the prevalent sexual morality. On the other hand the Constitution Of India, 1950 guarantees the right of
freedom to speech and expression to every citizen. This right will encompass an
individuals take on any issue.However, this right is not absolute, if such
speech and expression is immensely gross and will badly violate the standards
of morality of a society. Therefore, any expression is subject to reasonable
restriction. Freedom of expression has contributed much to the development and
well-being of our free society. This right conferred by the Constitution has
triggered various issues. One of the most controversial issues is balancing the
need to protect society against the potential harm that may flow from obscene
material, and the need to ensure respect for freedom of expression and to
preserve a free flow of information and idea.
Be that as it may, the respondents are leading newspapers in India they have to
respect the freedom of speech and expression as is guaranteed by our
constitution and in fact reaches out to its readers any responsible and decent
manner. In our view, any steps to ban publishing of certain news pieces or
pictures would fetter the independence of free press which is one of the
hallmarks of our democratic setup. In our opinion, the submissions and the
propositions of law made by the respective counsel for the respondents clearly
established that the present petition is liable to be dismissed as the
petitioner has failed to establish the need and requirement to curtail the
freedom of speech and expression. The Times of India and Hindustan Times are
leading newspapers in Delhi having substantial subscribers from all sections.
It has been made clear by learned counsel appearing for the leading newspapers
that it is not their intention to publish photographs which cater to the
prurient interest. As already stated, they have an internal regulatory system
to ensure no objectionable photographs or matters gets published. We are able
to see that respondent Nos. 3 & 4 are conscious of their responsibility
towards children but at the same time it would be inappropriate to deprive the
adult population of the entertainment which is well within the acceptable
levels of decency on the ground that it may not be appropriate for the
children. An imposition of a blanket ban on the publication of certain
photographs and news items etc. will lead to a situation where the newspaper
will be publishing material which caters only to children and adolescents and
the adults will be deprived of reading their share of their entertainment which
can be permissible under the normal norms of decency in any society.
We are also of the view that a culture of 'responsible reading' should be
inculcated among the readers of any news article. No news item should be viewed
or read in isolation. It is necessary that publication must be judged as a
whole and news items, advertisements or passages should not be read without the
accompanying message that is purported to be conveyed to the public. Also the
members of the public and readers should not look for meanings in a picture or
written article, which is not conceived to be conveyed through the picture or
the news item.
We observe that, as decided by the American Supreme Court in United States v.
Playboy Entertainment Group, Inc, 146 L ed 2d 865, that, "in order for the
State to justify prohibition of a particular expression of opinion, it must be
able to show that its action was caused by something more than a mere desire to
avoid the discomfort and unpleasantness that always accompany an unpopular
viewpoint." Therefore, in our view, in the present matter, the petitioner
has failed to establish his case clearly. The petitioner only states that the pictures
and the news items that are published by the respondents 3 and 4 'leave much
for the thoughts of minors'. Therefore, we believe that fertile imagination of
anybody especially of minors should not be a matter that should be agitated in
the court of law. In addition we also hold that news is not limited to Times of
India and Hindustan Times. Any hypersensitive person can subscribe to many
other Newspaper of their choice, which might not be against the standards of
morality of the concerned person.
We, therefore, dismiss the writ petition but however observed that the request
made by the Press Council of India to amend the Section should be seriously
looked into by the Government of India and appropriate amendments be made in
public interest. No costs.