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Aveek Sarkar & Anr vs State Of West Bengal And Anr on 3 February, 2014
for three shillings and six pence or get it from the public library, possibly without any
knowledge of Lawrence and with little knowledge of literature. If the jury were satisfied
beyond reasonable doubt that the book was obscene, they must then consider the question
of its being justified for public good in the interest of science, literature, art or learning or
other subjects of general concern. Literary merits were not sufficient to save the book, it
must be justified as being for the public good. The book was not to be judged by
comparison with other books. If it was obscene then if the defendant has established the
probability that the merits of the book as a novel were so high that they outbalanced the
obscenity so that the publication was the public good, the jury should acquit.”
18. Later, this Court in Samaresh Bose (supra), referring to the Bengali novel “Prajapati” written by
Samaresh Bose, observed as follows :
“35. .................. We are not satisfied on reading the book that it could be considered to be
obscene. Reference to kissing, description of the body and the figures of the female
characters in the book and suggestions of acts of sex by themselves may not have the effect
of depraving, debasing and encouraging the readers of any age to lasciviousness and the
novel on these counts, may not be considered to be obscene. It is true that slang and various
unconventional words have been used in the book. Though there is no description of any
overt act of sex, there can be no doubt that there are suggestions of sex acts and that a great
deal of emphasis on the aspect of sex in the lives of persons in various spheres of society
and amongst various classes of people, is to be found in the novel. Because of the language
used, the episodes in relation to sex life narrated in the novel, appear vulgar and may create
a feeling of disgust and revulsion. The mere fact that the various affairs and episodes with
emphasis on sex have been narrated in slang and vulgar language may shock a reader who
may feel disgusted by the book does not resolve the question of obscenity...............” We
have already indicated, this was the contemporary standard in the year 1985.
19. We are, in this case, concerned with a situation of the year 1994, but we are in 2014 and while
judging as to whether a particular photograph, an article or book is obscene, regard must be had to the
contemporary mores and national standards and not the standard of a group of susceptible or sensitive
persons.
HICKLIN TEST:
20. In the United Kingdom, way back in 1868, the Court laid down the Hicklin test in Regina v.
Hicklin (1868 L.R. 2 Q.B.
360), and held as follows :
“The test of obscenity is whether the tendency of the matter charged as obscenity is to
deprave and corrupt those whose minds are open to such immoral influences and into
whose hands a publication of this sort may fall.”
21. Hicklin test postulated that a publication has to be judged for obscenity based on isolated passages
of a work considered out of context and judged by their apparent influence on most susceptible readers,
such as children or weakminded adults. United States, however, made a marked departure. Of late, it
felt that the Hicklin test is not correct test to apply to judge what is obscenity. In Roth v. United States
354 U.S. 476 (1957), the Supreme Court of United States directly dealt with the issue of obscenity as
an exception to freedom of speech and expression. The Court held that the rejection of “obscenity” was
implicit in the First Amendment. Noticing that sex and obscenity were held not to be synonymous with
each other, the Court held that only those sexrelated materials which had the tendency of “exciting
lustful thoughts” were found to be obscene and the same has to be judged from the point of view of an
average person by applying contemporary community standards.
22. In Canada also, the majority held in Brodie v. The Queen (1962 SCR
681) that D.H. Lawrence’s novel “Lady Chatterley’s Lover” was not obscene within the meaning of the
Canadian Criminal Code
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