Constitution Project 2017

PROJECT REPORT OF MEDIA LAWS
A CASE COMMENT ON-

K. A. Abbas v. Union of India and Anr.
(AIR 1971 SC 481)
&
MOVING FROM HICKLIN TEST OF

OBSCENITY TO THE COMMUNITY
SANDARDS TEST IN INDIA
SUBMITTED TO: SUBMITTED BY:
Ms. Sugandha Ma’am Rivisha Sachdeva
101/15
Section B
B.A.LL.B.(Hons.)
7th Semester
A Case Comment on K. A. Abbas v. The Union of India and Anr. & Moving from
Hicklin Test of Obscenity to the Community Standards Test in India
ACKNOWLEDGEMENT
I, hereby, would like to express my immense gratitude to Ms. Sugandha Ma’am who
provided me with a wonderful opportunity to present a project report on, “K.A. Abbas
v. Union of India & Moving from Hicklin Test of Obscenity to the Community
Standards Test in India.”
K.A. Abbas v. Union of India is a the landmark judgment and very pertinent case in
the history of the constitution of India as it questioned the constitutional validity of
the pre- censorship laws in India under the Cinematograph Act of 1952.
This case comment and critical analysis of different tests of obscenity in India would
not have been possible without the expert guidance of Ms. Sugandha Ma’am who
always inspired me to think out of the box and helped me in widening my horizons. I
am really grateful to you Ma’am for constantly supporting me and sharing your expert
opinion.
I would also like to take this opportunity to extend my gratitude to my parents and
friends for their constant support and motivation while making this project report. It
would not have been possible without you all.
- Rivisha Sachdeva
2
TABLE OF CONTENTS
S.NO. TITLE PAGE NO.
1. List of Abbreviations 4
2. Table of Cases 5
3. Introduction 6
4. Concept of Censorship of Films 8
5. Statement of Facts 9
6. Legal Issues Involved 10
7. Arguments Advanced 11
8. Summary of Judgment 12
9. Position of Censorship of Films after K.A. Abbas 14
10. Observations 17
11. Bibliography 19
3
LIST OF ABBREVIATIONS
1. AIR All India Reporter
2. Art. Article
3. Ed. Edition
4. i.e. That is
5. No. Number
6. Ors. Others
7. SC Supreme Court
8. SCC Supreme Court Case
9. v. Versus
4
TABLE OF CASES
Aveek Sarkar v. State of West Bengal, decided on 3rd February 2014, Criminal
Appeal No 902 of 2004
Bobby Art International v. Om Pal Singh Hoon, (1996) 4 S.C.C. 1
Phantom Films Pvt. Ltd. And Anr v. The Central Borad Of Cetification, 2016 S.C.C.
Bom 3862
Ranjit D. Udeshi v. State of Maharashtra, A.I.R. 1965 S.C. 881
S. Rangrajan v. P. Jagjivan Ram, (1989) 2 S.C.C. 574
5
INTRODUCTION
Article 19 (1) (a) of the Constitution guarantees freedom of speech and expression
which brings in to its contours the freedom of the press. Films as a medium of
expression also are put in the same footing and accordingly granted the equal status.
Both the press and films are considered as strong mediums of communication. Both
the mediums cater to the needs of a vast number of people. Thus the films and the
press enjoy the same status and right so far as constitutional freedom relating to
expression of ideas and spreading the messages are concerned. But when a
comparison comes the press enjoys a bit more freedom because the films are subject
to censorship as per the provision of existing law. Press is immune from such
censorship. Immediately after independence attempts were made to curb the media
freedom but with interference by the judiciary such attempts were negated. The films
are treated differently from the press so far as pre-censorship or censorship is
concerned. It is natural that a difference of opinion should be there regarding the
question why censorship of films and not the press. The apex Court has tried to find
out an answer to this through various judgments. The present case is one of the first
attempts made by the judiciary to go in to the crux of the matter and arrive at a
conclusion.
We are in the 21st Century which saw certain scientific and innovative innovations in
the field of literature, science, technology and other related fields. In fact we carried
on this process of progress which the society witnessed in the later part of the 20th
century. After hard struggles for freedom and in the era of independence, we marched
side by side with the developed and developing countries and had left a mark for
ourselves. We have contributed significantly to the all-round development of the
country in almost all the fields. Art and literature is one such area where perhaps no
other country could show the development like we contributed. From the very ancient
times we were known for our culture, for our art and literature and for our religious
developments and contributions. Films which form a very basic part of the art and
literature also saw dramatic developments. In the meantime Indian cinema has
completed hundred years of its existence and going strong in spreading the message
of rich cultural, social, economic and political heritage of this great country. Film is a
medium which touches the minds of the millions of people by spreading its base both
6
in rural and urban areas. Contribution of Indian cinema in the growth and
development of Indian society is outstanding and unparallel. It is an established fact
that the Constitution of India guarantees a bunch of rights to the citizens. These rights
also include certain fundamental freedoms. So far as films are concerned, any
individual is at liberty to make a film and exhibit it anywhere in India. But like other
freedoms, this freedom is also not absolute. It is also subject to certain restrictions as
mentioned in our Constitution. We also have a specific law to see that the film
adheres to the norms prescribed by it before it gets approval for public viewing.
But as compared to the freedom guaranteed to the films, the Press enjoys a bit more
because the film is subject to censorship as provided in the Cinematograph Act, 1952.
Press is immune from such censorship although immediately after independence and
thereafter attempts were made by the Government to impose certain restrictions on the
Press, the Supreme Court negated all such attempts. The films are treated differently
from the Press so far as pre-censorship or censorship is concerned. Therefore, a
difference of opinion persists in the academic circles why censorship for films and not
for the Press. The Supreme Court has tried to a great extent to solve this issue. Let us
discuss both the aspects separately and also the provisions laid down in the
legislation.
7
CONCEPT OF CENSORSHIP OF FILMS
Films are considered as a great medium of communication with the people. With the
development and progress of the society and also with the progress in the field of
science and technology the films have undergone a sea change and by adopting all the
available technologies have been able to reach the masses and also significantly
contributed to the social and cultural development of the country. In this way the
films are equated with the Press as Press is also considered as a great medium of
communication. Both the films and the Press enjoy the same status and right so far as
constitutional freedom relating to expression of ideas and spreading of ideas and
messages are concerned.
As is known Article 19(1)(a) of the Constitution guarantees freedom of speech and

expression which is extended to the Press also. Therefore, both these mediums are
regulated under this provision of the Constitution. Simultaneously as these freedoms
are not absolute and subject to constitutional restrictions, both these mediums are also
to adhere to this. As mentioned above, we have the Cinematograph Act, 1952 to see
the films fulfill the norms prescribed by the law.
The Act provides for the establishment of a 'Central Board of Film Certification', the
regulatory body for films in India to issue the certificate to the makers of the film for
public exhibition. As per the provision of the law, the Board after examining the film
or having it examined could
(a) sanction the film for unrestricted public exhibition;
(b) sanction the film for public exhibition restricted to adults;
(c) direct such excisions and modifications in the film before sanctioning the film to
any unrestricted public exhibition or for public exhibition restricted to adults; and
(d) refuse to sanction the film for public exhibition.
8
STATEMENT OF FACTS
K.A. Abbas v. Union of India,1 is perhaps the first case where the question relating to
the censorship of films arose. In this case, the Supreme Court considered important
question relating to pre-censorship of cinematograph films in relation to the
fundamental right of freedom of speech and expression conferred by Article 19(1)(a)
of the Constitution.
The petitioner in this case challenged the decision of the Board of Film Censors in
refusing a “U” certificate2 for him film "A Tale of Four Cities". While the case was
pending in the Supreme Court, the Central Government decided to grant the “U”
certificate provided certain cuts were made in the film.
As the petitioner’s grievance was completely redressed, the petitioner applied for an
amendment enabling him to raise the question of pre-censorship in general, in order
that persons who invested money in making films may have guidance on this
important constitutional question. The amendment sought by the petition was allowed
for consideration by the apex court.
1
(1970) 2 S.C.C. 780.
2
`U' certificate means it is for universal exhibition. 'A' certificate means it is for viewing by Adults
only.
9
LEGAL ISSUES INVOLVED
The filed a writ petition before the Supreme Court and the following issues were
before the court for consideration:
Firstly, whether or not pre-censorship itself can be tolerated under the garb of Article
19(1)(a) which provides freedom of speech and expression.
Secondly, if any censorship is allowed and if it were a legitimate restraint on the

freedom, it must be exercised on very definite principles which leave no room for
arbitrary action.
The petitioner also asked for directions for a fixed time-limit for a decision of the
Censor Board as well as an alternative appellate mechanism to approaching the
Central Government; these were granted by the government and so were not discussed
by the Supreme Court.
10
ARGUMENTS ADVANCED
When the matter came up for hearing the petitioner raised four points:
(a) that pre- censorship itself cannot be tolerated under the freedom of speech and
expression,
(b) that even if it were a legitimate restraint on the freedom, it must be exercised on
very definite principles which leave no room for arbitrary action,
(c) that there must be a reasonable time-limit fixed for the decision of the authorities
censoring the film, and
(d) that the appeal should lie to a court or to an independent tribunal and not the
Central Government.
On the behalf of the respondents, the Solicitor-General conceded (c) and (d)
arguments of the petitioner and stated that Government would set on foot legislation
to effectuate them at the earliest possible opportunity. Since the petitioner felt
satisfied with-this assurance they did not go into the matter. But to place on record,
the respondents exhibited charts showing the time taken in the censorship of films
during the last one year or so and the judges were satisfied that except in very rare
cases the time taken could not be said to be unreasonable. The bench expressed its
satisfaction that the Central Government will cease to perform curial functions
through one of its Secretaries in this sensitive field involving the fundamental right of
speech and expression. Experts sitting as a Tribunal and deciding matters quasi-
judicially inspire more confidence than a Secretary and therefore it is better that the
appeal should lie to a court or tribunal.
11
SUMMARY OF THE JUDGMENT
This Writ Petition No. 491 of 1969 was decided in the Supreme Court of India on
24.09.1970 where Chief Justice Hidayatullah delivered the Court’s opinion, on
behalf of Justices Shelat, Mitter, Vidyialingam and Ray.
The Court did not accept the distinction between prior censorship and censorship in
general and considered both to be governed by the standards of reasonable restrictions
within Article 19(2) of the Indian Constitution. The Constitution recognized that
freedom of speech and expression was not an unrestricted right and therefore,
reasonable restrictions could be imposed. The absence of the word ‘reasonable’ in the
Cinematograph Act was considered inconclusive in this regard. Prior censorship was
permitted under the Constitution for public order or tranquillity. The Court referred to
the guardianship role of the Courts as the legal protector of citizens in preserving
public interest.
With respect to the issue of insufficient guidelines in the Act and the arbitrary
exercise of powers under the Act, the Court found that the guidelines given under the
Act read with Article 19(2) of the Constitution were sufficiently clear. However, it
recommended that the guidelines draw a distinction between artistic expression and
non-artistic expression in assessing obscenity. This alone was however considered
insufficient to strike down the provisions of the Act.
The Supreme Court opining that “the films have to be treated separately from other
forms of art and expression because a Motion Picture is able to stir up emotion more
deeply than any other product of art”3 upheld that the films are subject to censorship
on the grounds mentioned under Article 19 (2). Thus censorship is permitted mainly
on social interests specified under Article 19 (2) of the Constitution with emphasis on
maintenance of values and standards of society. The Court further went on to observe
that “…censorship in India (and pre-censorship is not different in quality) has full
justification in the field of exhibition of cinema films. We need not generalize about
other forms of speech and expression here for each such fundamental right has a
different content and importance. The censorship imposed on the making and
3
K.A. Abbas v. Union of India, (1970) 2 S.C.C. 780 at p. 790.
12
exhibition of films is in the interest of the society. If the regulations venture into
something which goes beyond this legitimate opening to restrictions, they can be
questioned on the ground that a legitimate power is being abused. We hold, therefore,
that censorship of films including prior restraint is justified under our Constitution.”4
Holding the view that "precensorship was only an aspect of censorship and censorship
of cinematograph film was 'universal', Hidayatullah, C.J. went on to observe that "it
had been almost universally recognized that motion pictures must be treated
differently from other forms of art and expression, because a motion picture's instant
appeal both to the sight and to hearing, and because a motion picture had become
more true to life than even the theatre or any other form of artistic representation. Its
effect, particularly on children and immature adolescents was great." The court upheld
the general principles which had been laid down for the guidance of the censors and
said that the test of obscenity and principles laid down in Ranjit D. Udeshi v. State of
Maharashtra,5 applied mutatis mutandis to an obscene cinematograph film.
4
K.A. Abbas v. Union of India, (1970) 2 S.C.C. 780 at p. 797
5
A.I.R. 1965 S.C. 881.
13
POSITION OF CENSORSHIP OF FILMS AFTER K.A. ABBAS
In S. Rangrajan v. P. Jagjivan Ram6 the Supreme Court again confronted the

question of censorship of films vis-a-vis Article 19(1)(a) of the Constitution. In this
case, the Madras High Court revoked the `U' certificate issued to a film entitled "Ore
Oru Gramathile" ("In Just One Village"), and also banned the exhibition of the film as
there was some public protest against the film. The film was critical of the reservation
policy of the Government of Tamil Nadu. During the pendency of the case, the film
received the National Award by the Directorate of Film Festival of the Government of
India. After the decision of the Madras High Court, the matter went to the Supreme
Court on an appeal and the court reiterated the importance of the freedom of speech
and expression and the role of films as a legitimate media for its exercise. The Court
was of the opinion that "if exhibition of the film cannot be validly restricted under
Article 19(2), it cannot be suppressed on account of threat of demonstration and
precessions or threat of violence. That would tantamount to negation of the Rule of
Law and surrender to blackmail and intimidation. It is the duty of the State to protect
the freedom of expression since it is a liberty guaranteed to handle the hostile
audience problem. It is its obligatory duty to prevent it and protect the freedom of
expression”7
Again in Bobby Art International v. Om Pal Singh Hoon,8 better known as the
Bandit Queen case, the Supreme Court considering the censorship issue upheld the
freedom of expression through films and removed the restrictions imposed on the
exhibition of the film "Bandit Queen"9 on the ground of obscenity. In this case, the
petitioner Om Pal Singh Hoon filed a petition asking the court to quash the certificate
of exhibition for screening the film "Bandit Queen" and also to restrain its exhibition
in India. It was contended in the petition that the depiction of the life story of Phoolan
Devi in this film was "abhorrent and unconscionable and a slur on the womanhood of
India." The way the rape scenes were depicted and the manner in which such scenes
6
(1989) 2 S.C.C. 574.
7
S. Rangarajan v. P. Jagjivan Ram, (1989) 2 S.C.C. 574 at pp. 598-599.
8
(1996) 4 S.C.C. 1
9
'Bandit Queen' depicts the life story of Phoolan Devi, the dreaded dacoit of yester years who was
brutally gang raped and sexually assaulted. Subsequently she retaliated and took the revenge by killing
many people who were involved in the assault.
14
were picturised was also questioned and it was also contended that the depiction of
Gujjar community in those scenes amounts to moral depravity of that particular
community.
The Delhi High Court quashed the order of the Tribunal granting 'A' certificate to the
film on the ground that the rape scenes were obscene. When the matter went to the
Supreme Court by way of appeal, allowing the appeal, the Supreme Court reversed
the decision of the High Court and upheld the decision of the Tribunal in granting the
'A' certificate to be valid.
The court was of the opinion that:

"The film must be judged in its entirety from the point of overall impact. Where
theme of the film is to condemn degradation, violence and rape on women, scenes of
nudity and rape and use of expletives to advance the message intended by the film by
arousing a sense of revulsion against the perpetrators and pity for the victim is
permissible.”10 The court rejecting the challenge under the provisions of the
Cinematograph Act, 1952 went on to observe that: “We do not censor to protect the
pervert or to assuage the susceptibilities of the over sensitive. ‘Bandit Queen’ tells a
powerful human story and to that story the scene of Phoolan Devi's enforced naked
parade is central. It helps to explain why Phoolan Devi became what she did, her rage
and vendetta against the society that had heaped indignities upon her.”11
The most recent one is Phantom Films Pvt. Ltd. And Anr v. The Central Borad Of
Cetification12where the film in controversy was ‘Udta Punjab’ and the CBFC had
ordered 90 excisions in the film. The Bombay High Court quashed the order with the
exception of one cut and an alteration in the disclaimer. It was held that film must be
viewed in its entirety and the principle laid down was that the core scenes must not be
deleted arbitrarily.
10
Bobby Art International v. Om Pal Singh Hoon, (1996) 4 S.C.C. 1 at pp. 1446.
11
Ibid, at p. 15.
12
2016 SCC Bom 3862.
15
Last year, a committee headed by a prolific director, Sir Shyam Benegal, submitted its
report in January, which was also published by the Ministry of Information and
Broadcasting which gave certain guidelines to ensure that –
Children and adults are protected from potentially harmful or unsuitable content;
Audiences, particularly parents are empowered to make informed viewing

decisions;
Artistic expression and creative freedom are not unduly curbed in the process of
classification of films;
The process of certification by CBFC is responsive, at all times, to social change;
The certification by CBFC keeps within the rights and obligations as laid down in
the Indian Constitution.
In the same report it has been mentioned that -
“CBFC should only be a film certification body whose scope should be restricted to
categorizing the suitability of the film to audience groups on the basis of age and
maturity except in the following instances to refuse certification –
a) When a film contains anything that contravenes the provisions of Section 5B (1) of
the Cinematograph Act, 1952.
b) When content in a film crosses the ceiling laid down in the highest category of
certification.
Therefore, according to the above guidelines the Board is a Certification Board and
not a Censor Board and it can thus merely direct excisions but cannot command them.
However these are mere guidelines given by Shyam Benegal and have no legal
enforceability.
16
OBSERVATIONS
Within the facts of the case, it is reasonable to hold that deletion of scenes may be
required in order to get a certificate for unrestricted public viewing as a ‘U certificate’
is not a matter of right.
However, by generally upholding censorship powers under the Cinematograph Act,
the Court contracted the right to freedom of expression. This power under the Act is
not confined to cases of age-appropriate certification, rather, it applies to demands for
all categories of certification. The Cinematograph (Amendment) Act, 1981 (w.e.f.
1983) amended the Act and the Censor Board was renamed the Central Board of Film
Certification and the Cinematograph Rules, 1983 were introduced. However, despite
the change in nomenclature, the Board continues to exercise censorship powers,
which is justified because of the Supreme Court’s acceptance of a wider, more
arbitrary censorship provision as constitutional.
In S. Rangarajan v. P. Jagajivan Ram13 the Supreme Court justified the pre-

censorship by expressing the view that “though movie enjoys the guarantee under
Article 19(1) (a) but there is one significant difference between the movie and other
modes of communication. Movie motivates thought and action and assures a high
degree of attention and retention. It has a unique capacity to disturb and arouse
feelings. IT has as much potential for evil as it has for good. With these qualities and
since it caters for mass audience who are generally not selective about what they
watch, the movie cannot be allowed to function in a free market place just as does the
newspapers and magazines. Censorship by prior restraint is, therefore, not only
desirable but also necessary.”14 Further referring to the film producers right to express
his own opinion and project the message he wants in connection with the film, the
Court opined that the State cannot prevent open discussion open expression of views
and then went on to observe that:
“In a democracy it is not necessary that everyone should sing the same song. Freedom
of expression is the rule and it is generally taken for granted. Everyone has a
fundamental right to form his own opinion on any issue of general concern. He can
form and inform by any legitimate means.” Thus in the interest of the society
13
(1989) 2 S.C.C. 574.
14
S. Rangarajan v. P. Jagajivan Ram, (1989) 2 S.C.C. 574 at p. 583.
17
restrictions can be imposed. But it was clarified by the Court that when there is a
conflict between the freedom of expression and the restrictions, there should be a
compromise between the interest of freedom of expression and special interests. Now
it is clear that films cannot be equated with other modes of communication.
18
MOVING FROM HICKLIN TEST TO COMMUNITY

STANDARDS TEST OF OBSCENITY IN INDIA
‘She is humiliated, stripped naked, paraded, made to draw water from the well, within
the circle of a hundred men. The exposure of breasts and genitalia to those men is
intended by those who strip her to demean her.’ The portrayal of the tragic story of
dacoit Phoolan Deviin Bandit Queen fell in a legal battle when a criminal case of
obscenity was filed against the makers. The petitioners objected to some scenes
depicting nudity and violence in the movie and claimed that they were obscene,
lascivious, and would corrupt and deprave the minds of the viewers and hence, a
criminal act under Section 292 of the Indian Penal Code.
The Supreme Court ruled in the Bobby International Case that the scenes depicting
nudity must not be seen in isolation. They must be seen in the context or the
background in which they (film, portrait, writing, and photograph) are made. The
message being conveyed through the portrayal is of utmost importance when deciding
the obscenity of an act. The movie Phoolan Devi depicts the social menace of torture
and violence against a helpless female child which transformed her into a dreaded
dacoit. The object of the scenes was not to titillate the cinemagoer’s lust but to arouse
in him the sympathy for the victim and disgust for the perpetrators. ‘Nakedness does
not always arouse baser instinct.’
The acceptable level of obscenity in films, photographs, paintings, and stories and
novels, is not yet settled in India. In terms of section 292 of the Indian Penal Code,
any matter is obscene if taken as a whole, it is lascivious or appeals to the prurient
interest or if its effect and tends to deprave and corrupt persons who read, see or hear
the matter contained or embodied in it.
The community standards test as against the Hicklin test was adopted by the Supreme
Court in the judgement of Aveek Sarkar v. State of West Bengal (3rd February 2014)
Criminal Appeal No 902 of 2004.
19
AVEEK SARKAR CASE
In 1994, German magazine STERN published an article with a picture of Boris

Becker, a world renowned tennis player and his dark-skinned fiancée, German actress
Barbara Feltus. In the picture, both Becker and Feltus were naked and he had put his
arms around her in a manner to cover her breasts with his palms. The article states
that, in an interview, both spoke freely about their engagement, their lives and future
plans and the message they wanted to convey to the people at large, for posing to such
a photograph. Article picturises Boris Becker as a strident protester of the pernicious
practice of “Apartheid”. Further, it was stated that the purpose of the photograph was
also to signify that love champions over hatred.
The article along with the photograph was published in an Indian magazine Sports
World and a Kolkata based newspaper Anandabazar Patrika. Aveek Sarkar, a lawyer
filed a case under Section 292 of IPC against the editor, publisher and printer of the
newspaper and the editor of the magazine alleging the photograph will corrupt and
deprave the minds of the young and were against the cultural and moral values of
society. He further alleged that both the publishing houses had published the
photograph particularly with the intent of increasing sales.
It was further contended that the accused should also be prosecuted under Section 4 of
the Indecent Representation of Women (Prohibition) Act, 1986 since the photograph
prima facie gives a sexual titillation and its impact is moral degradation and would
also encourage the people to commit sexual offences.
The respondents claimed that since the magazine was not banned in India and was
never considered as obscene. Section 79 of the Indian Penal Code states that nothing
is an offence which is done by any person who is justified by law, or who by reason
of a mistake of fact and not reason of a mistake of law in good faith, believes himself
to be justified by law, in doing it. Since there was no action taken against the sale of
STERN in India, the respondents reasonably assumed that the reproduction of the
photograph was valid in the eyes of law.
20
However, the Magistrate issued process against the accused and put them to trial for
the offence punishable under Section 292 adding that it would be too early to give
them the benefit of Section 79. The respondents then appealed before the High Court
of Calcutta under Section 482 of the Code of Criminal Procedure for quashing the
proceedings pending before the Alipore Magistrate Court. The court refused to quash
the proceedings against which an appeal was preferred before the Supreme Court.
The Supreme Court found the appellants innocent of the charges levied against them
under Section 292 of IPC and Section 4 of the Indecent Representation of Women
(Prohibition) Act, 1986 and overturned the decisions of the lower courts. The
appellants were given the defence of Section 79 of IPC. The Supreme Court held that
the question of obscenity must be seen in the context in which the photograph appears
and the message it wants to convey. The court further said that the correct test to
determine obscenity would be Community Standards Test and not Hicklin Test.
The Hicklin Test was laid down by the Queen’s Bench in Regina v. Hicklin. 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. On application of the Hicklin test, a
publication can be judged for obscenity based on isolated passages of a work
considered out of context. Works can be judged by their apparent influence on most
susceptible readers, such as children or weak-minded adults.
The United States in Roth v. United States observed that sex and obscenity are not to
be seen as synonyms. It was held that only those sex-related 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.
In Canada, D. H. Lawrence’s novel ‘Lady Chatterley’s Lover’ was held not obscene
in Brodie v. The Queen. In Regina v. Butler, the community standards test was held to
be the dominant test. The court had applied the community standards test and not
Hicklin test in Towne Cinema Industries v. The Queen.
21
HICKLIN TEST WAS ADOPTED IN RANJIT D. UDESHI CASE
In Ranjit D. Udeshi v. State of Maharashtra15, the Supreme Court of India had upheld
obscenity charges levelled against Lady Chatterley’s Lover and its release in India
was banned. However, the judges had indicated that the concept of obscenity would
change with the passage of time and what might have been obscene at one point of
time would not be considered as obscene at a later period. Even though the case is
heavily criticized for having curtailed the freedom of speech and expression, this
observation in the case stands out to show how the community standards mattered
even then.
Section 292 of the Indian Penal Code requires any material which is in question to be
‘taken as a whole’. When the material is taken as a whole, if it is lascivious and tends
to deprave and corrupt persons who read, see or hear the matter contained. The
Hicklin test is in contravention of IPC as the former requires the passages to be seen
in isolation.
Further, the terms ‘obscene’ or ‘obscenity’ have not been defined in IPC, which
makes the application of community standards test more suitable to India. The
community standards test is more adaptive to any changing society. One cannot miss
the myriad changes in the continuously emerging Indian society.
The Court had observed in Aveek Sarkar that the decisions in such cases must be
taken keeping in mind the contemporary national standards and not that of a group of
sensitive persons.
15
A.I.R. 1965 S.C. 881
22
CONCLUSION
In a continuously evolving society, which changes with every passing day, having a
fixed standard for determining a crime which is based on the perspective and
acceptance of the society is wrong. The society will never accept murder, or rape. But
if a filmmaker attempts to portray the sufferings of a Phoolan Devi, the society may
not have accepted it then but criticizes the decision today. If a photographer wishes to
send a message against domestic violence through the bruised bare back of a woman,
the picture must be seen in the context of the message and not in isolation.
The Supreme Court by striking down the Hicklin test and upholding the more
adaptive Community Standards test has done an admirable job. If the society accepts
the portrayal of sexual activities on the silver screen, the court must not strike it down
for the sake of a few sensitive persons. If it is acceptable to the society in general, the
court must accept it too. Materials may have sometimes have content which is not
acceptable to the society, like frontal female nudity is not acceptable in India but it is
acceptable in United States of America and United Kingdom. In such scenarios, one
needs to look into the bigger picture, the message being conveyed through the
otherwise obscene material. The message should be beneficial and helpful to the
society. People should have the freedom to send a message to the society through
images/films/paintings/writings which if seen in isolation would be considered
obscene or lascivious. It is important to see the full picture instead of squinting our
eyes at certain sexually explicit scenes. The Court was justified in upholding the
rights of the creators in Aveek Sarkar and Bobby International case.
23
BIBLIOGRAPHY
BOOKS REFERRED:
 Kumar Narendra, “Constituttional Law of India”, Allahabad Law Agency, 9th

Edition
 Basu Durga Das, 1 Commentary on Constitution of India (8th Ed. Wadhwa
And Company Nagpur 2007)
 Kiran Prasad, “Media Law in India”, (1st ed, Wolters Kluwer)
 Westel Woodbury Willoughby in "Constitutional law of the United States";
"Oliver Wendell Holmes - Free Speech and the Living Constitution" 1991
Edition: New York University Publication
STATUTES REFERRED:
 Cinematograph Act, 1952

 Constitution of India, 1950
WEBLINKS REFERRED:
 http://www.gktoday.in/ (last visited on 29 October, 2018)

 https://globalfreedomofexpression.columbia.edu/cases/abbas-v-india/(last
visited on 29 October, 2018)
 https://www.ijstm.com/images/short_pdf/1422000190_P77-83.pdf (last visited
on 29 October, 2018)
 https://indiankanoon.org/doc/116968980/ (last visited on 29 October, 2018)
 http://www.indialawjournal.org/archives/volume3/issue_1/article_by_jenna.ht
ml (last visited on 29 October, 2018)
 www.manupatra.com (last visited on 29 October, 2018)
24

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PROJECT REPORT OF MEDIA LAWS

A CASE COMMENT ON-

MOVING FROM HICKLIN TEST OF

SUBMITTED TO: SUBMITTED BY:

Ms. Sugandha Ma’am Rivisha Sachdeva

S.NO. TITLE PAGE NO.

1. AIR All India Reporter

8. SCC Supreme Court Case

Bobby Art International v. Om Pal Singh Hoon, (1996) 4 S.C.C. 1

Ranjit D. Udeshi v. State of Maharashtra, A.I.R. 1965 S.C. 881

S. Rangrajan v. P. Jagjivan Ram, (1989) 2 S.C.C. 574

CONCEPT OF CENSORSHIP OF FILMS

As is known Article 19(1)(a) of the Constitution guarantees freedom of speech and

(a) sanction the film for unrestricted public exhibition;

(b) sanction the film for public exhibition restricted to adults;

(d) refuse to sanction the film for public exhibition.

LEGAL ISSUES INVOLVED

Secondly, if any censorship is allowed and if it were a legitimate restraint on the

SUMMARY OF THE JUDGMENT

POSITION OF CENSORSHIP OF FILMS AFTER K.A. ABBAS

In S. Rangrajan v. P. Jagjivan Ram6 the Supreme Court again confronted the

The court was of the opinion that:

Audiences, particularly parents are empowered to make informed viewing

The process of certification by CBFC is responsive, at all times, to social change;

In the same report it has been mentioned that -

In S. Rangarajan v. P. Jagajivan Ram13 the Supreme Court justified the pre-

MOVING FROM HICKLIN TEST TO COMMUNITY

AVEEK SARKAR CASE

In 1994, German magazine STERN published an article with a picture of Boris

HICKLIN TEST WAS ADOPTED IN RANJIT D. UDESHI CASE

 Kumar Narendra, “Constituttional Law of India”, Allahabad Law Agency, 9th

 Cinematograph Act, 1952

 http://www.gktoday.in/ (last visited on 29 October, 2018)

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