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Page 2

Chandrakant Kalyandas Kakodar v. State Of Maharashtra

And Ors.
AIR 1970 SC 1390
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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/or 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.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(1)
case 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 anywa y
tending to debase or debauch the mind.
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Page 3

K. A. Abbas v. The Union Of India & Anr.

AIR 1971 SC 481
framed that we are not reduced to a level where the protection of the
least capable and the most depraved amongst us determines what the
morally healthy cannot view or read. The standards that we set for our
censors must make a substantial allowance in favour of freedom thus
leaving a vast area for creative art to interpret life and society with some
of its foibles along with what is good. We must not look upon such human
relationships as banned in toto and for ever from human thought and
must give scope for talent to put them before society. The requirements
of art and literature include within themselves- a comprehensive view of
social life and not only in its ideal form and the line is to be drawn where
the average man moral man begins to feel embarrassed or disgusted at a
naked portrayal of life without the redeeming touch of art or genius or
social value. 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. In our
scheme of things ideas having redeeming social or artistic value must also
have importance and protection for their growth. Sex and obscenity are
not always synonymous and it is wrong to classify sex as essentially
obscene or even indecent or immoral. It should be our concern, however,
to prevent the use of sex designed to play a commerical role by making
its own appeal. This draws in the censors scissors. Thus audiences in
India can be expected to view with equanimity the story of Oedipus son of
Latius who committed patricide and incest with his mother. When the seer
Tiresias exposed him, his sister Jocasta committed suicide by hanging
herself and Oedipus put out his own eyes. No one after viewing these
episodes would think that patricide or incest with one's own mother is
permissible or suicide in such circumstances or tearing out one's own eyes
is a natural consequence.
Latius who committed patricide and incest with his mother. When the seer
Tiresias exposed him, his sister Jocasta committed suicide by hanging
herself and Oedipus put out his own eyes. No one after viewing these
episodes would think that patricide or incest with one's own mother is
permissible or suicide in such circumstances or tearing out one's own eyes
is a natural consequencLatius who committed patricide and incest with his
mother. When the seer Tiresias exposed him, his sister Jocasta committed
suicide by hanging herself and Oedipus put out his own eyes. No one after

Page 4

Raj Kapoor v. State

AIR 1980 SC 258
Jurisprudentially speaking, law, in the sense of command to do or not to
do, must be a reflect ion of the community's cultural norms, not the
State's regimentation of aesthetic expression or artistic creation. Here we
will realise the superior jurisprudential value of dharma, which is a
beautiful blend of the sustaining sense of morality, right conduct, society's
enlightened consensus and the binding force of norms so woven as
against positive law in the Austinian sense, with an awesome halo and
barren autonomy around the legislated text is fruitful area for creative
exploration. But morals made to measure by statute and court is a risky
operation with portentous impact on fundamental freedoms, and in our
constitutional order the root principle is liberty of expression and its
reasonable control with the limits of 'public order, decency or morality'.
Here, social dynamics guides legal dynamics in the province of 'policing'
art forms.
It is deplorable that a power for good like the cinema, by a subtle
process, and these days, by a ribald display, vulgarises the public palate,
pruriently infiltrates adolescent minds, commercially panders to the
lascivious appetite of rendy crowds and inflames the lecherous craze of
the people who succumb to the seduction of sex and resort, in actual life,
to 'horror' crimes of venereal violence. The need to banish
cinematographic pornos and the societal strategy in that behalf had led to
charged with power to direct doctoring, tailoring, sanitizing and even
tabooing films so that noxious obscenity may not be foul and erotic aroma
make mass appeal.
I am satisfied that the Film Censor Board, acting under s. 5A, is specially
entrusted to screen off the silver screen pictures which offensively
invadeff Surely, the satwa of society must rise progressively if m ankind is
I am not persuaded that once a certificate under the Cinematograph Act
is issued the Penal Code, pro tanto, will hang limp. The Court will examine
the film and judge whether its public display, in the given time and clime,
so breaches public morals or depraves basic decency as to offend the
penal provisions. Statutory expressions are not petrified by time but must
be up-dated by changing ethos even as popular ethics are not absolutes
but abide and evolve as community consciousness enlivens and escalates.
Surely, the satwa of society must rise progressively if mankind is to move
towards its timeless destiny and this can be guaranteed only if the

Page 5

Bobby Art International v. Om Pal Singh Hoon & Ors.

(1996) 4 SCC 1
She burns with anger, shame and the urge for vengeance. She gets it,
and kills many Thakurs too. It is not a pretty story. There are no syrupy
songs or pirouetting round trees. It is the serious and sad story of a
worm turning: a village born female. becoming a dreaded dacoit. An
innocent who turns into a vicious an accusing finger at members of dr
with the desire to revenge. It is in this light that the individual siewed.
First, the scene where she is humiliated, stripped naked, paraded, made
to draw water from the well, within the circle of a hundred men. is
intended by those who strip her to demean her. The effect of so doing
upon her could hardbeen better conveyed than by explicitly showing the
scene. the object of doing so late the cinema-goer's lust but to arouse in
him sympathy for the victim and disgust for the perpetrators. The revuls
Phoolan Devi's nudity but at the sadism and those who had stripped her
naked to rob her of every shared the scene of Phoolan Devi's enforced
naked parade her rage and vendetta against had heaped indignities upon
her.
The rape scene also helps to explain why Phoolan Devi become what she
did. Rape is crude and its crudity is what the rapist's bouncing bare
posterior is meant to illustrate.
Too much need not, we think, be made of a few swear words the like of
which can be heard every day in every city, town and village street. No
adult would be tempted to use them because they are used in this film.
In sum, we should recognise the message of a serious film and apply this
test to the individual scenes thereof : to comprehend intelligently the
message and react to it, not to the possible titillation of some particular
scene.
A film that illustrates the consequences of a social evil necessarily must
show that social evil. The guidelines must be interpreted in that light. No
film that extols the social evil or encourages it is permissible, but a film
that carries the message that the social evil is evil cannot be made
impermissible on the ground that it depicts the social evil.
Too much need not, we think, be made of a few swear words the like of
sagfh Too much need not, we think, be made of a few swear words the lifr

Page 6

Maqbool Fida Husain v. Raj Kumar Pandey

2008 Cri LJ 4107
of nearly every other form of freedom. It is the wellspring of civilization
and without it liberty of thought would shrivel.
Every time an artist portrays something different, something which is an
unpopular view point, it may accompany discomfort and unpleasantness
but that in itself cannot be a ground to curb the artistic freedom and
quickly go on to label it as obscene . There might be people who may
actually get offended by those of Hussain's paintings or others but the
right course of action for them, is to simply shrug it off or protest
peacefully. In my considered view, criticism of art may be there. Rather,
there are many other more appropriate avenues and fora for expression
of differences of opinion within a civil society. But criminal Justice system
ought not to be invoked as a convenient recourse to ventilate any and all
objections to an artistic work. It should not be used as a mere tool in the
hands of unscrupulous masters which in the process can cause serious
violations of the rights of the people especially taking into consideration
the people in the creative fields. Such a pernicious trend represents a
growing intolerance and divisiveness within the society which pose a
threat to the democratic fabric of our nation. It would be relevant to
reproduce the observations made by Markandey Katju J. in Himsa
Virodhak Sangh v. Mirzapur Moti Kuresh Jamat and Ors. where laying
stress on the importance of tolerance, the court gave the historical
illustration of Emperor Akbar's tolerance during his reign.
Such a pernicious trend represents a growing intolerance and divisiveness
within the society which pose a threat to the democratic fabric of our
nation. It would be relevant to reproduce the observations made by
Markandey Katju J. in Himsa Virodhak Sangh v. Mirzapur Moti Kuresh
Jamat and Ors. where laying stress on the importance of tolerance, the
court gave the historical illustration of Emperor Akbar's tolerance during
his reign.
Such a pernicious trend represents a growing intolerance and divisiveness
within the society which pose a threat to the democratic fabric of our
nation. It would be relevant to reproduce the observations made by
Markandey Katju J. in Himsa Virodhak Sangh v. Mirzapur Moti Kuresh
Jamat and Ors. where laying stress on the importance of tolerance, thgae

Page 7

S. Khushboo v. Kanniammal & Anr.

2010 (5) SCC 600
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Even though the constitutional freedom of speech and expression is not
absolute and can be subjected to reasonable restrictions on grounds such
as `decency and morality' among others, we must lay stress on the need
to tolerate unpopular views in the socio-cultural space. The framers of our
Constitution recognised the importance of safeguarding this right since
the free flow of opinions and ideas is essential to sustain the collective life
of the citizenry. While an informed citizenry is a pre-condition for
meaningful governance in the political sense, we must also promote a
culture of open dialogue when it comes to societal attitudes. Admittedly,
the appellant's remarks did provoke a controversy since the acceptance of
premarital sex and live-in relationships is viewed by some as an attack on
the centrality of marriage. While there can be no doubt that in India,
marriage is an important social institution, we must also keep our minds
open to the fact that there are certain individuals or groups who do not
hold the same view. To be sure, there are some indigenous groups within
our country wherein sexual relations outside the marital setting are
accepted as a normal occurrence. Even in the societal mainstream, there
are a significant number of people who see nothing wrong in engaging in
premarital sex. Notions of social morality are inherently subjective and
the criminal law cannot be used as a means to unduly interfere with the
domain of personal autonomy. Morality and Criminality are not coextensive. In the present case, the substance of the controversy does not
really touch on whether premarital sex is socially acceptable. Instead, the
real issue of concern is the disproportionate response to the appellant's
remarks. If the complainants vehemently disagreed with the appellant's
views, then they should have contested her views through the news
media or any other public platform. The law should not be used in a
manner that has chilling effects on the `freedom of speech and
expression'. It would be apt to refer to the following observations made
by this Court in S. Rangarajan Vs. P. Jagjivan Ram & Ors.
really touch on whether premarital sex is socially acceptable. Instead, the
real issue of concern is the disproportionate response to the appellant's
remarks. If the complainants vehemently disagreed with the appellant's
views, then they should have contested her views through the newsasf dff

Page 8

Aveek Sarkar & Anr. v. State Of West Bengal And Anr.

2014 STPL (Web) 72 SC
We have to examine whether the photograph of Boris Becker with his
fiance Barbara Fultus, a dark-skinned lady standing close to each other
bare bodied but covering the breast of his fiance with his hands can be
stated to be objectionable in the sense it violates Section 292 IPC.
Applying the community tolerance test, we are not prepared to say such a
photograph is suggestive of deprave minds and designed to excite sexual
passion in persons who are likely to look at them and see them, which
would depend upon the particular posture and background in which the
woman is depicted or shown. Breast of Barbara Fultus has been fully
covered with the arm of Boris Becker, a photograph, of course, seminude, but taken by none other than the father of Barbara. Further, the
photograph, in our view, has no tendency to deprave or corrupt the minds
of people in whose hands the magazine Sports World or Anandabazar
Patrika would fall.
28. We may also indicate that the said picture has to be viewed in the
background in which it was shown , and the message it has to convey to
the public and the world at large . The cover story of the Magazine carries
the title, posing nude, dropping of harassment, battling racism in
Germany. Boris Becker himself in the article published in the German
magazine, speaks of the racial discrimination prevalent in Germany and
the article highlights Boris Beckers protests against racism in Germany.
Boris Becker himself puts it, as quoted in the said article: the nude photos
were supposed to shock, no doubt about it....... What I am saying with
these photos is that an inter-racial relationship is okay.
29. The message , the photograph wants to convey is that the colour 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.
passion in persons who are likely to look at them and see them, which
would depend upon the particular posture and background in which the
woman is depicted or shown. Breast of Barbara Fultus has been fully
passion in persons who are likely to look at them and see them,
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