Ranjit D.
Udeshi vs State Of Maharashtra on 19 August, 1964, 1965 AIR 881
In his appeal to the
Supreme Court he contended that : (i) the section was void
because it violated the freedom of speech and
expression
guaranteed by Art. 19(1)(a) of the Constitution of India.,
(ii) even if the section was valid, the book was not obscene
and (iii) it must be shown by the prosecution that he sold
the book with the intention to corrupt the purchaser, that
is to say, that he knew that the book was obscene.
(i) the section embodies a reasonable restriction
upon the freedom of speech and expression guaranteed by Art.
19 and does not fall outside the limits of
restriction
permitted by cl. (2) of the Article. The section seeks no
more than the promotion of public decency and morality which
are the words of that clause. [69G; 70E-F; 74B].
(ii) The book must be declared obscene within the meaning of
s. 292, Indian Penal Code.
The Indian 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 us. The test which we evolve 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. It is not necessary that the angels and saints of Michelangelo should be
made to wear breeches before they can be viewed. If the rigid test of treating with sex as
the minimum ingredient were accepted hardly any writer of fiction today would escape
the fate Lawrence had in his days. Half the book-shops would close and the other half
would deal in nothing but moral and religious books which Lord Campbell boasted was
the effect of his Act.
The question is now narrowed to what is obscenity as distinguished from a permissible
treating with sex ? Mr. Garg relies on some passages from the opinions expressed in the
Supreme Court of the United States in Samuel Roth v. U.S.A.(') and from the (1) 354
U.S. 476; 1 L ed. 2d. 1498 (1957).
charge to the jury by Stable J. in Regina v. Martin Secker and Warburg Ltd.(1) and
invites us to adopt the test of "hard-core pornography" for the interpretation of the word
"obscene" in the Indian Penal Code. He points out that the latest statute in England now
makes exceptions leading to the same result. He has also referred to some books and
literary and artistic publications which have not been considered objectionable.
In July last year, one Ajay Hatewar was booked under Section 67(A) of
the IT Act for a “defamatory” comment against Maharastra chief minster
Devendra Fadnavis’s picture with his family on a yacht. A youth from
Tamil Nadu was arrested under Section 67 on October 30, 2017, for
allegedly making abusive comments about Prime Minister Narendra Modi
in a private Facebook conversation.
Significantly, while exceptions for scientific, literary, artistic or religious
purposes are allowed under IPC Section 292, they are not allowed under
Section 67 of the IT Act.
The publication and transmission of sexually explicit material online has
been further singled out and made punishable under Section 67(A). Also,
punishments for publishing sexually explicit material are higher than
punishments for publishing obscene material under the IT Act. According
to the report, Section 67 and Section 67(A) are being used interchangeably.
“The way Section 67 is being used controls a woman’s sexuality,” says
Datta, suggesting that there is no place under Section 67(A) for a woman to
express her sexuality.
Point of View aims to push the judiciary to flag crimes booked under anti-
obscenity as crimes of consent. “Section 67 has outlived its purpose and is
causing harm to consent and freedom,” says Datta. “Its utility is so low that
it should be used only in exceptional cases rather than how it is being used
now. ” Datta however added, “At this time, it is extraordinarily difficult to
voice the opinion that Section 67 should be scrapped.”
Several PILs have been filed challenging the constitutionality of Section 66A of
the IT Act. In a November 2012 PIL, Shreya Singhal submitted to the Supreme
Court that Section 66A curbs freedom of speech and expression and violates
Articles 14, 19 and 21 of the Constitution. The petition further contends that the
expressions used in the Section are “vague” and “ambiguous”
WHILE STRIKING DOWN SECTION 66A OF THE IT ACT, THE
HON’BLE SUPREME COURT HAS STATED THE FOLLOWING:
The petitioners are right in saying that Section 66A in creating an offence against persons
who use the internet and annoy or cause inconvenience to others very clearly affects the
freedom of speech and expression of the citizenry of India at large in that such speech or
expression is directly curbed by the creation of the offence contained in Section 66A.
In an Article 19(1)(g) challenge, there is no question of a law being applied for purposes not
sanctioned by the Constitution for the simple reason that the eight subject matters of Article
19(2) are conspicuous by their absence in Article 19(6) which only speaks of reasonable
restrictions in the interests of the general public. The present is a case where, as has been held
above, Section 66A does not fall within any of the subject matters contained in Article 19(2)
and the possibility of its being applied for purposes outside those subject matters is clear. We
therefore hold that no part of Section 66A is severable and the provision as a whole must be
declared unconstitutional.
Freedom of speech is the most important freedom in any democracy, without
which, it would be impossible to reach at political truths in public life. It
promotes a 'marketplace for ideas' and allows society to progress continuously
by spreading new ideas, thoughts and discussion. It is equally necessary for self-
expression, which is an important vehicle of free conscience and self
fulfillment, playing a pivotal role in facilitating artistic and scholarly endeavors
of all sorts.
