Introduction

• This case replaces the “Hicklin Test” with the “Community Standard Test” to check the obscenity in the material.

Facts

• In this case, the appellant was accused of selling obscene material in his bookstore under the book Lady Chatterley’s Lover, by DH Lawrence along with three more partners in Bombay.
• The appellant argued that Section 292 of Indian Penal Code 1860 (IPC) in violation of Article 19(1)(a) of the Constitution of India (COI) that is freedom of Speech & Expression.
• It was also contended by the appellant that he did not have the knowledge of presence of obscene content in the book.
• It was also argued that by reading the whole book and the context of the book it cannot be held obscene.
• The appellant was held guilty under Section 292 of the IPC by the Trial Court and the High Court.
• Aggrieved by the decision of the lower courts the appellant appealed before the Supreme Court.

Issues Involved

• Whether Section 292 of IPC is in violation with Article 19(1)(a) of the Constitution and is invalid?
• Whether knowledge of the seller of the obscene material required to held him guilty for the offence?
• Whether contents of the book in issue amount to corrupt the mind of the readers?

Observations

• The Supreme Court in this case held that Section 292 of IPC is a reasonable restriction to the right of freedom of speech and expression as it ensures decency and morality to be maintained.
• The Supreme Court also observed that the word ‘obscenity’ is not defined under section 292 of IPC, the Supreme Court had to differentiate between what was obscene and what was artistic.
  • The court applied Community Standard Test where the obscene matter is judged by an average person's standard considering its context not in isolation by introducing three modifications in the Hicklin Test as:
    • Sex and nudity in art and literature alone cannot be evidence of obscenity.
    • The work must be evaluated, considering both obscene and non-obscene parts.
    • Publication for the public good can be a defense against the charge of obscenity.
• The Supreme Court also stated that Parliament makes law which made knowledge an integral part of section 292 of IPC and not the courts.

Conclusion

• The Supreme Court held that the book in issue is obscene and held the book sellers liable under the provisions.

Note

• Section 292 of IPC is now covered under Section 294 of Bharatiya Nyaya Sanhita, 2023(BNS) with the following changes:
  • The fine is increased from two thousand to five thousand rupees and from five thousand to ten thousand rupees on subsequent conviction.
  • “Including display of any content in electronic form'” is added.
  • “In whatever manner” is also added.

[Original Judgment]