6/15/2019
Aveek Sarkar & Anr vs State Of West Bengal And Anr on 3 February, 2014
“…. The world, is now able to tolerate much more than formerly, having coming indurate
by literature of different sorts. The attitude is not yet settled…..” This is what this Court
has said in the year 1965.
13. Again in the year 1969, in Chandrakant Kalyandas Kakodar (supra), this Court reiterated the
principle as follows:
“The standards of contemporary society in India are also fast changing. “
14. Above mentioned principle has been reiterated in Samaresh Bose v. Amal Mitra (1985) 4 SCC 289
by laying emphasis on contemporary social values and general attitude of ordinary reader. Again in
2010, the principle of contemporary community standards and social values have been reiterated in S.
Khushboo V. Kanniammal (2010) 5 SCC 600.
15. This Court in Ranjit D. Udeshi (supra) highlighted the delicate task to be discharged by the Courts
in judging whether the word, picture, painting, etc. would pass the test of obscenity under Section 292
of the Code and the Court held as follows :
“The Penal Code does not define the word obscene and this delicate task of how to
distinguish between that which is artistic and that which is obscene has to be performed by
courts, and in the last resort by the Supreme Court. The test must obviously be of a general
character but it must admit of a just application from case to case by indicating a line of
demarcation not necessarily sharp but sufficiently distinct to distinguish between that
which is obscene and that which is not. None has so far attempted a definition of obscenity
because the meaning can be laid bare without attempting a definition by describing what
must be looked for. It may, however, be said at once that treating with sex and nudity in art
and literature cannot be regarded as evidence of obscenity without something more. The
test of obscenity must square with the freedom of speech and expression guaranteed under
our Constitution. This invites the court to reach a decision on a constitutional issue of a
most far reaching character and it must beware that it may not lean too far away from the
guaranteed freedom.”
16. Applying the above test, to the book “Lady Chatterley’s Lover”, this Court in Ranjit D. Udeshi
(supra) held that in treating with sex the impugned portions viewed separately and also in the setting of
the whole book passed the permissible limits judged of from our community standards and there was
no social gain to the public which could be said to preponderate the book must be held to satisfy the
test of obscenity.
17. The novel “Lady Chatterley’s Lover” which came to be condemned as obscene by this Court was
held to be not obscene in England by Central Criminal Court. In England, the question of obscenity is
left to the Jury. Byrne, J., learned Judge who presided over the Central Criminal Court in R. v. Penguin
Books Ltd. (1961 Crl. Law Review 176) observed as follows :
“In summing up his lordship instructed the jury that: They must consider the book as a
whole, not selecting passages here and there and, keeping their feet on the ground, not
exercising questions of taste or the functions of a censor. The first question, after
publication was: was the book obscene? Was its effect taken as a whole to tend to deprave
and corrupt persons who were likely, having regard to all the circumstances, to read it? To
deprave meant to make morally bad, to pervert, to debase or corrupt morally. To corrupt
meant to render morally unsound or rotten, to destroy the moral purity or chastity, to
pervert or ruin a good quality, to debase, to defile. No intent to deprave or corrupt was
necessary. The mere fact that the jury might be shocked and disgusted by the book would
not solve the question. Authors had a right to express themselves but people with strong
views were still members of the community and under an obligation to others not to harm
them morally, physically or spiritually. The jury as men and women of the world, not
prudish but with liberal minds, should ask themselves was the tendency of the book to
deprave and corrupt those likely to read it, not only those reading under guidance in the
rarefied atmosphere of some educational institution, but also those who could buy the book
https://indiankanoon.org/doc/195958005/
4/7