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During his obscenity trial in the colonial courts, Saadat Hasan Manto was asked why he had used the word “bosom" to describe a woman’s breasts. “What should I have called them," he retorted, “Peanuts?" The courtroom erupted with laughter, and Manto was censured by the judge for indulging in “tawdry humour". One Constitution and many decades later, much has changed in the legal firmament, but judicial squeamishness has remained a fixed star.

Last year, in determining whether a Marathi poet had been correctly charged with obscenity for writing a poem about Gandhi, justice Dipak Misra of the Supreme Court engaged in a 120-page disquisition about literary merit, obscenity and free speech, but redacted the offending poem itself. The series of meaningless words and blank spaces that remained left readers who had struggled through the judgement without even a few choice Marathi expletives for their pains.

As a matter of fact, justice Misra’s delicate moral reticence has been the hallmark of the Indian judiciary’s approach to obscenity. Like sedition, which we discussed in the previous column in this series, and like many other notorious speech restricting provisions that we shall go on to discuss, the constitutionality of obscenity was challenged before the Supreme Court, and upheld by it.

Section 292 of the Indian Penal Code, which penalized—but did not define—obscenity, was brought to the apex court in 1964, in a case called Ranjit Udeshi vs State of Maharashtra. At issue was D.H. Lawrence’s Lady Chatterley’s Lover, a book about an aristocratic woman’s amorous escapades with her gamekeeper. The book had been banned. Ranjit Udeshi, a Bombay bookseller, was caught in possession of unexpurgated copies, and prosecuted.

He challenged both his prosecution and the constitutionality of obscenity itself. He lost.

Ranjit Udeshi vs State of Maharashtra, which effectively created and defined obscenity law in post-constitutional India, is a very curious judgement. One half of it reads like the imprecations of a stern, Victorian schoolmaster, and the other half the ardent scribbling of a high school English student’s unreconstructed pretentions to literary criticism.

Then chief justice Mohammad Hidayatullah began by observing that “it can hardly be claimed that obscenity which is offensive to modesty or decency is within the constitutional protection given to free speech or expression, because the article dealing with the right itself excludes it. That cherished right on which our democracy rests is meant for the expression of free opinions to change political or social conditions or for the advancement of human knowledge".

Obscenity, on the other hand, “has extremely poor value in the propagation of ideas, opinions and informations of public interest or profit". Obscenity was of such poor value, in fact, that the accused need not even be given the basic protection that criminal law normally accorded, which is the requirement of intent, or knowledge.

According to the learned chief justice, a writer of obscene literature could be prosecuted whether or not he knew that what he was writing was obscene, and similarly, a bookseller could be prosecuted for the sale of obscene literature, unless he could show that it was sold without his knowledge or consent.

Did this mean that a bookseller now had the obligation of reading every book that he commissioned from his distributors, and determining for himself whether or not a court might declare it obscene? Well, it was either that, or keeping a team of lawyers on permanent action stations.

This raised a bit of a problem, however. Obscenity was now criminalized without the need for knowledge or intent, but it was still nowhere defined in the Indian Penal Code. So, chief justice Hidayatullah cast around for a satisfactory definition, and naturally, hit upon an 1863 case from Victorian England: R v Hicklin.

According to this definition, the test was 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".

There is a deep irony here, because just four years before, the Hicklin test had been abandoned in its very country of birth. In fact, even as Lady Chatterley’s Lover was being brought to court in India, the US, the UK and Australia had either lifted decades-old bans upon it, or had seen the publishers triumph in court.

Not for the first time, however—and not for the last—the Supreme Court resolutely set its face against the progress of law in the Commonwealth, and decided that the notoriously repressed and repressive England in the 1870s would be the model for the Indian republic to follow.

Soon after the judgement, the legislature codified the Udeshi opinion into law, and Section 292 now bears the language of the Hicklin test, with its oddly quaint terminology of corruption and depravity, and its infantilization of the citizenry.

There remained the matter of the book itself. The time had come for the chief justice to don the mantle of the literary critic. “The poetry and music which Lawrence attempted to put into sex apparently cannot sustain it long and without them the book is nothing," he wrote. “The promptings of the unconscious particularly in the region of sex is suggested as the message in the book. But it is not easy for the ordinary reader to find it. The Machine Age and its impact on social life which is its secondary theme does not interest the reader for whose protection, as we said, the law has been framed."

The last line—“for whose protection… the law has been framed"—is crucial, because it is at the heart of how the Hicklin test, as mentioned above, treats citizens as infants: obscenity law is not for the protection of the strong-minded, but those whose—in the words of the chief justice—“prurient minds take delight and secret sexual pleasure from erotic writings".

In other words, the obscenity law is not for the strong-willed, the severe and the austere, but for those who simply cannot control the stirrings in their loins when they read Lawrence’s “divagations with sex" (again, the words of the chief justice).

To give the Supreme Court its due, in the 50 years after Udeshi, its judges struggled valiantly to break free of Hicklin’s fetters, making gradual, incremental advances (until all that was brought to a shuddering halt by justice Misra last year).

In the 1970s, judges began to take the opinion of literary experts in the field, thus sensibly refusing to follow chief justice Hidayatullah’s foray into literary criticism. In the 1980s and 1990s, they abandoned the vulnerable, depravity-prone proto-pervert of Udeshi and Hicklin for the “reasonable, strong-willed individual".

And in 2014, in Aveek Sarkar vs State of West Bengal, the Supreme Court finally repudiated the 1863 English Hicklin test, and adopted instead the 1957 US test developed in Roth. Progress, of sorts!

According to the Roth test, the key aspect is not the tendency of a work to lead to moral depravity or corruption, but whether it appeals to the “prurient" interest—i.e., whether the work is designed predominantly to excite lustful thoughts, without any other redeeming feature. This is hardly satisfactory in its own right, but it is certainly an improvement over Hicklin.

It remains to be seen, however, whether the Supreme Court will ever manage to shake off the weighty chains of the moral guardianship of the nation, that it draped upon itself, unasked, 50 years ago.

Gautam Bhatia is a New Delhi-based lawyer. A more detailed critique of the Ranjit Udeshi judgement, and of the Supreme Court’s obscenity jurisprudence, may be found in his book, Offend, Shock, or Disturb: Free Speech under the Indian Constitution.

Case Studies is a series that looks at why we have the laws that we have and what it means to change them. Read the first instalment in the series here.

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