TaxTMI 
TaxTMI 
2015 (5) TMI 1137
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.... learned senior counsel, learned Amicus Curiae, to assist the Court as regards the proposition whether in a write-up or a poem, keeping in view the concept and conception of poetic license and the liberty of perception and expression, use the name of a historically respected personality by way of allusion or symbol is permissible." Mr. Gopal Subramanium, learned senior counsel, appearing for the appellant, in his written note of submissions, has segregated the said question into five parts, namely, (a) whether there could be a reference to a historically respected personality; (b) could that reference be by way of allusion or symbol; (c) could that allusion be resorted to in a write-up or a poem; (d) whether the conception and concept of poetic license permits adopting an allusion; and (e) whether any of the above could involve ascribing words or acts to a historically reputed personality which could appear obscene to a reader. He has urged with solemn vehemence that when the author is not represented before the Court, adjudication on an important issue which fundamentally relates to freedom of thought and expression, would be inappropriate and a poem or a write-up is indeed a par....
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....average reader. Learned amicus curiae would submit that the question deserves to be dealt with and answered in proper perspective. Clarification of the question framed 2. We are obligated to clarify the position. It is apt to state here the question framed by us has to be contextually understood. The question was framed in the factual matrix of the case. The proposition presented is that despite all the poetic licence and liberty of perception and expression, whether 'poem' or 'write-up' can use the name of a historically respected personality by way of an allusion or symbol in an obscene manner. "Historically respected personality" was used in the backdrop of the use of the name of Mahatma Gandhi. When the name of such a respected personality is used as an allusion or symbol, and language is revoltingly suggestive whether that is likely to come within the perceived ambit and sweep of Section 292 IPC, whether it is permissible. We shall dwell upon this facet when we will discuss the poem in a prima facie manner, for the purpose of scrutinising the order framing charge; and we shall also deal with the submission of Mr. Subramanium, which has been assiduously put forth by him that....
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....ly what is meant by poetic license. 3. We may slightly delve into the area in Sanskrit literature that gave immense emphasis on aesthetics. The concept of rasa though mentioned in the Vedas and by Valmiki gets consummate expression in all its complexity with Bharata when he introduces it to explain aesthetic experience. "Vibhavanubhav vyabhichari sanyogadrasnishpati". Bharata discusses in detail the contributing factors like vibhavas, anubhavas, vybhicharibhavas and sthayibhavas. Dandin emphasises on lucidity, sweetness, richness and grandeur to basically constitute poetry and that is why it is said "Dandinha Padlalityam". Some critics like Vamana, stressing on soul of poetry perceive 'riti' as "Ritiraatma kavyasya". Some also subscribe to the theory that 'rasa' gets expressed through dhvani. There are thinkers who compare writings of T.S. Eliot, when he states poetic delineation of sentiments and feelings, to have the potentiality of being associated with the 'element of surprise' which is essential to poetry, and there he is akin to Indian poeticians like Kuntaka who called poetry 'vakrokti' which he explains as "vaidagdhyabhangibhaniti" - a mode of expression depending on the p....
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.... jurisdiction under Section 482 of the CrPC and the High Court of Bombay, Aurangabad Bench dismissed the application. The said decision is the subject of matter of this appeal by special leave at the instance of the publisher. The author has chosen not to assail the order passed by the High Court. Concept of obscenity 8. Apart from submitting that the orders passed by all the Courts are absolutely perverse and deserve to be lancinated, it is submitted by Mr. Subramanium, learned senior counsel that to appreciate the question framed by this Court, despite his reservation on the legal score as regards its phraseology, the meaning of the term "obscenity" has to be appositely understood. He has referred to the Black's Law Dictionary that defines obscenity as follows:- "Obscene, adj. (16c) - Extremely offensive under contemporary community standards of morality and decency; grossly repugnant to the generally accepted notions of what is appropriate. Under the Supreme Court's three- part test, material is legally obscene - and therefore not protected under the First Amendment - if, taken as a whole, the material (1) appeals to the prurient interest in sex, as determined by the av....
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....ord 'obscene' ... was originally used to describe anything disgusting, repulsive, filthy or foul. The use of the word is now said to be somewhat archaic or poetic; and it is ordinarily restricted to something offensive to modesty or decency, or expressing or suggesting unchaste or lustful ideas, or being impure, indecent, or lewd." 11. After generally referring to the meaning of the term obscenity, learned senior counsel has emphasised on the tests adopted in various countries relating to obscenity. Mr. Subramanium has referred to various authorities of United Kingdom, United States of America, European Courts and this Court to pyramid the proposition that the tests laid down by legal system including the authorities of this Court do not suggest that that the instant poem can remotely be treated as obscene. First, we shall dwell upon the tests and standards laid by various Courts and then the binding authorities of this Court and thereafter to the concept of freedom of speech and expression on the constitutional parameters and finally delve to adjudge the facet of obscenity and address applicability of the determined test in the context of the question and ultimately the n....
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.... evidence that you have heard, you and each one of you are fully satisfied that the charge against the accused person has been proved. Remember the charge is a charge that the tendency of the book is to corrupt and deprave. The charge is not that the tendency of the book is either to shock or to disgust. That is not a criminal offence. Then you say: "Well, corrupt or "deprave whom?" and again the test: those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall. What, exactly, does that mean? Are we to take our literary standards as being the level of something that is suitable for a fourteen- year-old school girl? Or do we go even further back than that, and are we to be reduced to the sort of books that one reads as a child in the nursery? The answer to that is: Of course not. A mass of literature, great literature, from many angles is wholly unsuitable for reading by the adolescent, but that does not mean that the publisher is guilty of a criminal offence for making those works available to the general public." In the ultimate eventuate, the learned Judge concluded, thus:- "I do not suppose there is a decent man or woman i....
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....enguin Books Ltd.[ [1961] Crim LR 176] where the Court was dealing with the publication of the book 'Lady Chatterley's Lover' by the Penguin Books. The said case ended with "not guilty verdict" as a consequence of which the book was allowed to be openly published and was sold in England and Wales. 16. In R. v. Peacock[Unreported case, See http://www.bbc.com/news/uk-16443697], a verdict, an unreported one, rendered on January 6, 2011 by Southwark Crown Court, London, submitted Mr. Subramanium, has resulted in great upsurge in the demand for a review in the obscenity laws in England and Wales. In the said case, Michael Peacock, was charged on indictment with six counts under the 1959 Act for allegedly distributing the obscene DVDs that contained videos of homosexual sadomasochism and BDSM pornography. The accused in the said case successfully pleaded not guilty. The legal experts of England and Wales started opining that the 1959 Act had become redundant. 17. Relying on the aforesaid authorities, it is submitted by Mr. Subramanium, learned senior counsel appearing for the appellant that Hicklin test in its original has been abandoned in United Kingdom and the approach has been more....
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....g climate of opinion-have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. This rejection for that reason is mirrored in the universal judgment that obscenity should be restrained, reflected in the international agreement of over 50 nations, in the obscenity laws of all of the 48 States." The Court further opined that: "We hold that obscenity is not within the area of constitutionally protected speech or press." 20. In Memoirs v. Masachusetts[383 U.S. 413 (1966)], while explaining the term 'obscenity', the Court referred to the Roth (supra) and stated thus:- "3. We defined obscenity in Roth in the following terms: "[W]hether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest." Under this definition, as elaborated in subsequent cases, three elements must coalesce: it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interes....
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....ards' would be the task of the Jury as they best represent the 'contemporary community standards'. The Court observed:- "19. Sex and nudity may not be exploited without limit by films or pictures exhibited or sold in places of public accommodation any more than live sex and nudity can be exhibited or sold without limit in such public places.[15] At a minimum, prurient, patently offensive depiction or description of sexual conduct must have serious literary, artistic, political, or scientific value to merit First Amendment protection. For example, medical books for the education of physicians and related personnel necessarily use graphic illustrations and descriptions of human anatomy. In resolving the inevitably sensitive questions of fact and law, we must continue to rely on the jury system, accompanied by the safeguards that judges, rules of evidence, presumption of innocence, and other protective features provide, as we do with rape, murder, and a host of other offenses against society and its individual members.[16] 25. Under a National Constitution, fundamental First Amendment limitations on the powers of the States do not vary from community to community, but this does no....
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....hat criminalized selling, exhibiting, delivery and dissemination of obscene material was struck down as being violative of Article I Section 8. The Oregon SC held thus:- "The indeterminacy of the crime created by ORS 167.087 does not lie in the phrase "sexual conduct" that is further defined in ORS 167.060 (10). It lies in tying the criminality of a publication to "contemporary state standards." Even in ordinary criminal law, we doubt that the legislature can make it a crime to conduct oneself in a manner that falls short of "contemporary state standards." In a law censoring speech, writing or publication, such an indeterminate test is intolerable. It means that anyone who publishers or distributes arguably "obscene" words or pictures does so at the peril of punishment for making a wrong guess about a future jury's estimate of "contemporary state standards" of prurience." As we understand, with the passage of time tests have changed and there are different parameters to judge obscenity but the authorities clearly lay down that the freedom of speech is not absolute on all occasions or in every circumstance. Comparables Test 26. Mr. Subramanium has pointed out that in Ameri....
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....11th Cir. Feb. 2, 2010] allowed Internet-based search evidence to come into court, she refused to instruct the jury that it could-not even that it must-consider it as relevant of community standards". And again, "While the U.S. Supreme Court is no longer in the business of regularly hearing obscenity case as it once was, it may be time for the Court to revisit the Miller test and to reassess the work-as a whole requirement and to consider whether Internet based comparables arguments about contemporary community standards are viable in a digital online world the High Court never could have imagined when it adopted Miller back in 1973. Unit such time, lower courts will be left to wrestle with these issues, with some seeming to clearly sidestep Miller on the taken-as-a whole requirement in contravention of the high court's admonishment in 2002 that this was as essential rule of First Amendment jurisprudence." Thus, the comparables test even if it is applied, the concept of contemporary comparative standards test along with other tests has not been abandoned. The learned author in his article has referred to the majority view in Ashcroft v. Free Speech Coalition[535 U.S. 234, 248....
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....wn by the European Courts 27. Now we shall proceed to deal with the perception of obscenity by the European Courts. In Vereinigung Bildender Kinstler v. Austria[Application No. 68354/2001, 25th January 2007], the European Court of Human Rights was concerned with the issue pertaining to withdrawal of a painting entitled "Apocalypse" which had been produced for the auction by the Austrian painter Otto Muhl. The painting, measuring 450 cm by 360 cm showed a collage of various public figures such as Mother Teresa, the former head of the Austrian Freedom Party (FPO) Mr. Jorg Haider, in sexual positions. While the naked bodies of these figures were painted, the heads and faces were depicted using blown-up photos taken from newspapers. The eyes of some of the persons portrayed were hidden under black bars. Among these persons was Mr. Meischberger, a former general secretary of the FPO until 1995, who at the time of the events was a member of the National Assembly. The Austrian Court permanently barred the display of painting on the ground that the painting debased the plaintiff and his political activities. The Association of Artists appealed to the European Court and the said Court tho....
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.... essential foundations of a democratic society, indeed one of the basic conditions for its progress and for the self-fulfilment of the individual. Subject to paragraph 2, it is applicable not only to "information" or "ideas" that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any section of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no "democratic society". Those who create, perform, distribute or exhibit works of art contribute to the exchange of ideas and opinions which is essential for a democratic society. Hence the obligation on the State not to encroach unduly on their freedom of expression. Artists and those who promote their work are certainly not immune from the possibility of limitations as provided for in paragraph 2 of Article 10. Whoever exercises his freedom of expression undertakes, in accordance with the express terms of that paragraph, "duties and responsibilities"; their scope will depend on his situation and the means he uses (see Muller and Others v. Switzerland, judgment of 24 May 1988)." 29. Learned....
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....satire in this "painting". Why were Mother Teresa and Cardinal Hermann Groer ridiculed? Why were the personalities depicted naked with erect and ejaculating penises? To find that situation comparable with satire or artistic expression is beyond my comprehension. And when we speak about art I do not think that we can include each and every act of artistic expression regardless of its nature and effect. In the same way that we exclude insults from freedom of speech, so we must exclude from the legitimate expression of artists insulting pictures that undermine the reputation or dignity of others, especially if they are devoid of any meaningful message and contain nothing more than senseless, repugnant and disgusting images, as in the present case. As was rightly observed in the judgment (paragraph 26) "... Artists and those who promote their work are certainly not immune from the possibility of limitations as provided for in paragraph 2 of Article 10. Whoever exercises his freedom of expression undertakes, in accordance with the express terms of that paragraph, 'duties and responsibilities'; their scope will depend on his situation and the means he uses ..." Nobody can rely on the....
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....ts only to insulting speech directed against an individual. If, say, a magazine feature attributes words to a celebrity, or uses a computerized image to portray her naked, it should make no difference that the feature was intended as a parody of an interview she had given. It should be regarded as a verbal assault on the individual's right to dignity, rather than a contribution to political or artistic debate protected under the free speech (or freedom of the arts) clauses of the Constitution."[36] 12. In a word, a person's human dignity must be respected, regardless of whether the person is a well-known figure or not. 13. Returning to the case before us, we therefore consider that the reasons that led the court to find a violation (see paragraph 4 above) are not relevant. Such considerations must be subordinate to respect for human dignity." 30. Mr. Nariman, scanning the judgment has submitted that artistic freedom outweighs personal interest and cannot and does not trump nor outweigh observance of laws for the prevention of crime or laws for the protection of health or morals; that the limits of artistic freedom are exceeded when the image of a person (renowned....
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....ormation" or "ideas" that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no "democratic society". This means, amongst other things, that every "formality", "condition", "restriction" or "penalty" imposed in this sphere must be proportionate to the legitimate aim pursued. From another standpoint, whoever exercises his freedom of expression undertakes "duties and responsibilities" the scope of which depends on his situation and the technical means he uses. The Court cannot overlook such a person's "duties" and "responsibilities" when it enquires, as in this case, whether "restrictions" or "penalties" were conducive to the "protection of morals" which made them "necessary" in a "democratic society"." Mr. Subramanium, learned senior counsel has emphasised that the freedom of expression as protected by Article 10 of ECHR constitutes an essential basis of a democratic society and any limitations on that freedom have to be interpreted strictly. Mr. Subramanium has also ....
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....arms held above her head by a white cord which is suspended from above and tied around her wrists. The near-naked form of a second female, said to represent St. Teresa's psyche, slowly crawls her way along the ground towards her. Upon reaching St. Teresa's feet, the psyche begins to caress her feet and legs, then her midriff, then her breasts, and finally exchanges passionate kisses with her. Throughout this sequence, St Teresa appears to be writhing in exquisite erotic sensation. This sequence is intercut at frequent intervals with a second sequence in which one sees the body of Christ, fastened to the cross which is lying upon the ground. St Teresa first kisses the stigmata of his feet before moving up his body and kissing or licking the gaping wound in his right side. Then she sits astride him, seemingly naked under her habit, all the while moving in a motion reflecting intense erotic arousal, and kisses his lips. For a few seconds, it appears that he responds to her kisses. This action is intercut with the passionate kisses of the psyche already described. Finally, St Teresa runs her hand down to the fixed hand of Christ and entwines his fingers in hers. As she does so, the fin....
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....ched under paragraph 2 of Article 10 (art. 10-2) on grounds other than blasphemy, for example the profanation of symbols, including secular ones (the national flag) or jeopardising or prejudicing public order (but not for the benefit of a religious majority in the territory concerned). The reasoning should, in my opinion have been expressed in terms both of religious beliefs and of philosophical convictions. It is only in paragraph 53 of the judgment that the words "any other" are cited. Profanation and serious attacks on the deeply held feelings of others or on religious or secular ideals can be relied on under Article 10 para 2 (art. 102) in addition to blasphemy. What was particularly shocking in the Wingrove case was the combination of an ostensibly philosophical message and wholly irrelevant obscene or pornographic images. In this case, the use of obscenity for commercial ends may justify restrictions under Article 10 para 2 (art 10-2); but the use of a figure of symbolic value as a great thinker in the history of mankind (such as Moses, Dante or Tolstoy) in a portrayal which seriously offends the deeply held feelings of those who respect their works or thought may, in some ca....
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....ion charge or any age limit; the paintings being displayed to the public at large. The European Court of Human Rights stated:- "The Court recognises, as did the Swiss courts, that conceptions of sexual morality have changed in recent years. Nevertheless, having inspected the original paintings, the Court does not find unreasonable the view taken by the Swiss courts that those paintings, with their emphasis on sexuality in some of its crudest forms, were "liable grossly to offend the sense of sexual propriety of persons of ordinary sensitivity". In the circumstances, having regard to the margin of appreciation left to them under Article 10 part 2 (art. 10-2), the Swiss courts were entitled to consider it "necessary" for the protection of morals to impose a fine on the applicants for publishing obscene material. The applicants claimed that the exhibition of the pictures had not given rise to any public outcry and indeed that the press on the whole was on their side. It may also be true that Josef Felix Muller has been able to exhibit works in a similar vein in other parts of Switzerland and abroad, both before and after the "Fri-Art 81" exhibition. It does not, however, follow th....
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....ed or is ready to engage in any act which is an offence under this section, or that any such obscene object can be procured from or through any person, or (e) offers or attempts to do any act which is an offence under this section, shall be punished [on first conviction with imprisonment of either description for a term which may extend to two years, and with fine which may extend to two thousand rupees, and, in the event of a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and also with fine which may extend to five thousand rupees]. Exception - This section does not extend to- (a) any book, pamphlet, paper, writing, drawing, painting, representation or figure- the publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, writing, drawing, painting, representation or figure is in the interest of science, literature, art or learning or other objects of general concern, or which is kept or used bona fide for religious purposes; (b) any representation sculptured, engraved, painted or otherwise represented on or in- any ancient monument wit....
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....eech and expression guaranteed by Article 19(1)(a) of the Constitution and being not saved by clause 2 of the said Article. The Constitution Bench referred to Article 19(2) and held thus:- "7. No doubt this article guarantees complete freedom of speech and expression but it also makes an exception in favour of existing laws which impose restrictions on the exercise of the right in the interests of public decency or morality. The section of the Penal Code in dispute was introduced by the Obscene Publications Act, 1925 (7 of 1925) to give effect of the International Convention for the suppression of or traffic in obscene publications signed by India in 1923 at Geneva. It does not go beyond obscenity which falls directly within the words "public decency and morality" of the second clause of the article. The word, as the dictionaries tell us, denotes the quality of being obscene which means offensive to modesty or decency; lewd, filthy and repulsive. It cannot be denied that it is an important interest of society to suppress obscenity. There is, of course, some difference between obscenity and pornography in that the latter denotes writings, pictures etc. intended to arouse sexual de....
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....nal Code deals with obscenity in this sense and cannot thus be said to be invalid in view of the second clause of Article 19." 37. After dealing with the said facet, the Court referred to various decisions of the English Courts, especially to Hicklin (supra), wherein the Queen's Bench was called upon to consider a pamphlet, the nature of which can be gathered from the title and the colophon which read:- "The Confession Unmasked, showing the depravity of Romish priesthood, the enquity of the confessional, and the questions, put to females in confession." It was bilingual with Latin and English texts on opposite pages and the latter half of the pamphlet according to the report was grossly obscene relating to impure and filthy acts, words or ideas. Cockburn, C.J. laid down the test of obscenity in the following words:- " ... I think the test of obscenity is this, 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 ... it is quite certain that it would suggest to the minds of the young of either sex, or even to persons of more advanced year....
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....erica and proceeded to observe that the Court must, therefore, apply itself to consider each work at a time. An overall view of the obscene matter in the setting of the whole work would, of course, be necessary, but the obscene matter must be considered by itself and separately to find out whether it is so gross and its obscenity so decided that it is likely to deprave and corrupt those whose minds are open to influences of this sort and into whose hands the book is likely to fall. The interests of the contemporary society and particularly the influence of the book etc. on it must not be overlooked. Then the court stated:- "A number of considerations may here enter which it is not necessary to enumerate, but we must draw attention to one fact. Today our National and Regional Languages are strengthening themselves by new literary standards after a deadening period under the impact of English. Emulation by our writers of an obscene book under the aegis of this Court's determination is likely to pervert our entire literature because obscenity pays and true Art finds little popular support. Only an obscurent will deny the need for such caution. This consideration marches with all....
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....me to hold that none of the passages was offending Section 292 IPC and accordingly acquitted the accused persons. In that context the Court observed:- "12. The concept of obscenity would differ from country to country depending on the standards of morals of contemporary society. What is considered as a piece of literature in France may be obscene in England and what is considered in both countries as not harmful to public order and morals may be obscene in our country. But to insist that the standard should always be for the writer to see that the adolescent ought not to be brought into contact with sex or that if they read any references to sex in what is written whether that is the dominant theme or not they would be affected, would be to require authors to write books only for the adolescent and not for the adults. In early English writings authors wrote only with unmarried girls in view but society has changed since then to allow litterateurs and [pic]artists to give expression to their ideas, and emotions and objective with full freedom except that it should not fall within the definition of "obscene" having regard to the standards of contemporary society in which it is read....
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....nd still the stand of the Central Government was same. The petitioner thereafter amended the petition to challenge the pre-censorship itself as offensive to freedom of speech and expression and alternatively the provisions of the Act and the Rules, orders and directions under the Act as vague, arbitrary and indefinite. The prayer for amendment was allowed. The two fundamental contentions that were raised before this Court were firstly, the pre-censorship itself cannot be tolerated under the freedom of speech and expression and secondly, 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. The Court referred to the Khosla Committee that had addressed and examined history of development of film censorship in India. The Court adverted to various provisions of the Act and in that context observed that it has been almost universally recognised that treatment of motion pictures must be different from that of other forms of art and expression. The Court referred to the decision in Roth (supra), wherein three tests have been laid down as under: "(a) that the dominant theme taken as a whole appeal....
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.... without the redeeming touch of art or genius or social value. If the depraved begins to see in these things more than what an average person would, in much the same way, as it is wrongly said, a Frenchman seas a woman's legs in everything, it cannot be helped. In our scheme of things ideas having redeeming social or artistic value must also have importance and protection for their growth. Sex and obscenity are not always synonymous and it is wrong to classify sex as essentially obscene or even indecent or immoral. It should be our concern, however, to prevent the use of sex designed to play a commercial role by making its own appeal. This draws in the censor's scissors. Thus audiences in India can be expected to view with equanimity the story of Oedipus son of Latius who committed patricide and incest with his mother. When the seer Tiresias exposed him, his sister Jocasta committed suicide by hanging herself and Oedipus put out his own eyes. No one after viewing these episodes would think that patricide or incest with one's own mother is permissible or suicide in such circumstances or tearing out one's own eyes is a natural consequence. And yet if one goes by the letter of the dir....
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....isation devoted to defending Indian cultural standards, inter alia, against the unceasing waves of celluloid anti-culture, arraigning, together with the theatre owner, the producer, actors and photographer of a sensationally captioned and loudly publicised film by name Satyam, Sivam, Sundaram, under Sections 292, 293 and 34 of the IPC for alleged punitive prurience, moral depravity and shocking erosion of public decency. The trial court examined a few witnesses and thereafter issued notices to the petitioners who rushed to the High Court but faced refusal on a technical foundation. This Court formulated two questions - one of jurisdiction and consequent procedural compliance, the other of jurisprudence as to when, in the setting of the Penal Code, a picture to be publicly exhibited can be castigated as prurient and obscene and violative of norms against venereal depravity. The Court in that context observed:- "8. .....Art, morals and law's manacles on aesthetics are a sensitive subject where jurisprudence meets other social sciences and never goes alone to bark and bite because State-made strait-jacket is an inhibitive prescription for a free country unless enlightened society ac....
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....if the ultimate value- vision is rooted in the unchanging basics, Truth - Goodness - Beauty, Satyam, Sivam, Sundaram. The relation between Reality and Relativity must haunt the [pic]Court's evaluation of obscenity, expressed in society's pervasive humanity, not law's penal prescriptions. Social scientists and spiritual scientists will broadly agree that man lives not alone by mystic squints, ascetic chants and austere abnegation but by luscious love of Beauty, sensuous joy of companionship and moderate non-denial of normal demands of the flesh. Extremes and excesses boomerang although, some crazy artists and film directors do practise Oscar Wilde's observation: "Moderation is a fatal thing. Nothing succeeds like excess." 16. All these add up to one conclusion that finality and infallibility are beyond courts which must interpret and administer the law with pragmatic realism, rather than romantic idealism or recluse extremism." Pathak, J. (as His Lordship then was) in his concurring opinion, opined that there is no difficulty in laying down that in a trial for the offence under Sections 292 and 293 of the Indian Penal Code, a certificate granted under Section 6 of the Cinematograp....
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....iting vividly describing a sexual act and sexual perversity, Shri Bose answered that anyone who knows the works of Ravindra Nath Tagore knows that for his whole life he was a great advocate of social and sexual freedom. He referred to novel "Chokher Bali" where Tagore described a love relationship between a young Hindu widow and a young man. He also referred to 'Ghare Baire' where a highly respected married woman falls in love with her husband's friend. The witness also cited Tagore's another novel "Chaturanga" where an actual sexual act has been described in a very poetic and moving language. The said witness deposed that the novel has great social and moral value. 49. The Court proceeded to deal with many other witnesses at length and the view expressed by the Chief Presidency Magistrate and the learned Single Judge. We notice that this Court copiously quoted from the order of the learned Single Judge and thereafter proceeded to deal with the contentions. The Court referred to Section 292 as it stood at the time of initiation of the proceeding, referred to the decisions in Ranjit D. Udeshi (supra), Chandrakant Kakodar (supra) and thereafter observed that the novel "Lady Chatterl....
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....uthor the Judge should try to understand what is it that the author seeks to convey and whether what the author conveys has any literary and artistic value. The Judge should thereafter place himself in the position of a reader of every age group in whose hands the book is likely to fall and should try to appreciate what kind of possible influence the book is likely to have in the minds of the readers." Thereafter, the Court proceeded to analyse the story of the novel and noted thus:- "If we place ourselves in the position of readers, who are likely to read this book, - and we must not forget that in this class of readers there will probably be readers of both sexes and of all ages between teenagers and the aged, - we feel that the readers as a class will read the book with a sense of shock, and disgust and we do not think that any reader on reading this book would become depraved, debased and encouraged to lasciviousness. It is quite possible that they come across such characters and such situations in life and have faced them or may have to face them in life. On a very anxious consideration and after carefully applying our judicial mind in making an objective assessment of the ....
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....nce and hatred. The decision of Select Committee was communicated to the respondent who challenged the same in the High Court of Bombay which directed the Doordarshan to telecast the documentary film within the period of six weeks in the evening slot. The same being challenged in a special leave petition, this court directed for constitution of a new committee in accordance with the Guidelines of Doordarshan to consider the proposal of the respondent. The committee constituted in pursuance of order of this court observed that the film has a secular message relevant to our times and our society, however the film contains scenes and speeches which can influence negative passions and therefore the committee would like a larger committee to see the film and form an opinion before it is open to public viewing. Therefore, the Prasar Bharti Board previewed the documentary film and formed opinion that its production quality was unsatisfactory and its telecast would be violative of the policy of Doordarshan. The Court placing reliance on K.A. Abbas (supra) and other authorities did not accept the stand of the Doordarshan and dismissed the appeal. 52. In Ajay Goswami v. Union of India and o....
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....xt of the internet age which has broken down traditional barriers and made publications from across the globe available with the click of a mouse." After so stating the court reproduced a passage from Samresh Bose (supra) and also a passage from K.A. Abbas (supra) and eventually held that:- "76. The term obscenity is most often used in a legal context to describe expressions (words, images, actions) that offend the prevalent sexual morality. On the other hand, the Constitution of India guarantees the right to freedom of speech and expression to every citizen. This right will encompass an individual's take on any issue. However, this right is not absolute, if such speech and expression is immensely gross and will badly violate the standards of morality of a society. Therefore, any expression is subject to reasonable restriction. Freedom of expression has contributed much to the development and well-being of our free society. 77. This right conferred by the Constitution has triggered various issues. One of the most controversial issues is balancing the need to protect society against the potential harm that may flow from obscene material, and the need to ensure respect for freed....
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....' Certificate after certain excisions and modifications in accordance with the order that has been passed by the Court. The Court referred in extenso to the authorities in K.A. Abbas (supra), Raj Kapoor (supra), Samresh Bose (supra), State of Bihar v. Shailabala Devi[AIR 1952 SC 329], narrated the story of the film which is a serious and sad story of a village born female child becoming a dreaded dacoit. The Court observed that an innocent woman had turned into a vicious criminal because lust and brutality had affected her psyche. The Court referred to the various levels of the film accusing the members of the society who had tormented her and driven her to become a dreaded dacoit filled with the desire to avenge. The Court expressed that in the light of the said story, the individual scenes are to be viewed. Thereafter, the Court ruled that:- "First, the scene where she is humiliated, stripped naked, paraded, made to draw water from the well, within the circle of a hundred men. The exposure of her breasts and genitalia to those men is intended by those who strip her to demean her. The effect of so doing upon her could hardly have been better conveyed than by explicitly showing t....
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....(supra), Raj Kapoor (supra) and observed thus:- "........the potency of the motion picture is as much for good as for evil. If some scenes of violence, some nuances of expression or some events in the film can stir up certain feelings in the spectator, an equally deep strong, lasting and beneficial impression can be conveyed by scenes revealing the machinations of selfish interests, scenes depicting mutual respect and tolerance, scenes showing comradeship, help and kindness which transcend the barriers of religion. Unfortunately, modern developments both in the field of cinema as well as in the field of national and international politics have rendered it inevitable for people to face the realities of internecine conflicts, inter alia, in the name of religion. Even contemporary news bulletins very often carry scenes of pitched battle or violence. What is necessary sometimes is to penetrate behind the scenes and analyse the causes of such conflicts. The attempt of the author in this film is to draw a lesson from our country's past history, expose the motives of persons who operate behind the scenes to generate and foment conflicts and to emphasise the desire of persons to live in ....
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....umstances, the suggestive element in the picture and the person or persons in whose hands it is likely to fall. It is the duty of the Court to find out where there is any obscenity or anything in the novel which will undermine or take away or influence the public in general and the readers in particular." 56. The High Court referred to its decision in Promilla kapur v. Yash Pal Bhasin[1989 Cr.L.J. 1241], wherein it has been observed thus:- "It is true that prostitution has been always looked down upon with hatred throughout the ages by the society and particularly "sex" has been considered an ugly word and any talk about sex in our conservative society was considered a taboo not many years ago but with this country progressing materially and with the spread of education and coming of western culture, the society has become more open. It is indeed obvious that the phenomenon of call girls has peaked in our country amongst the affluent section of the society. The society is changing vastly with spiritual thinking taking a back seat and there is nothing wrong if a sociologist makes a research on the subject of call girls in order to know the reasons as to why and how the young girl....
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....ed as part of the said survey was increasing incidence of pre-marital sex. As a part of this exercise the magazine had gathered and published the views expressed by several individuals from different segments of society, including those of the appellant. In her personal opinion, she had mentioned about live-in relationships and called for the societal acceptance of the same. She had qualified her remarks by observing that girls should take adequate precautions to prevent unwanted pregnancies and transmission of venereal diseases. Subsequent to the publication in India today Dhina Thanthi, a Tamil daily carried a news item which first quoted the appellant's statement published in India Today and then opined that it had created a sensation all over the State of Tamil Nadu. The news item also reported a conversation between the appellant and a correspondent of Dhina Thanthi wherein the appellant had purportedly defended her views. However, soon after publication in Dhina Thanthi the appellant sent a legal notice categorically denying that she had made the statement as had been reproduced in Dhina Thanthi and required to publish her objection prominently within three days. The publicat....
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....ia, marriage is an important social institution, we must also keep our minds open to the fact that there are certain individuals or groups who do not hold the same view. To be sure, there are some indigenous groups within our country wherein sexual relations outside the marital setting are accepted as a normal occurrence. Even in the societal mainstream, there are a significant [pic]number of people who see nothing wrong in engaging in premarital sex. Notions of social morality are inherently subjective and the criminal law cannot be used as a means to unduly interfere with the domain of personal autonomy. Morality and criminality are not coextensive. 47. In the present case, the substance of the controversy does not really touch on whether premarital sex is socially acceptable. Instead, the real issue of concern is the disproportionate response to the appellant's remarks. If the complainants vehemently disagreed with the appellant's views, then they should have contested her views through the news media or any other public platform. The law should not be used in a manner that has chilling effects on the "freedom of speech and expression". xxx xxx xxx 50. Thus, dissemination ....
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....riminal proceeding but the High Court declined to exercise the jurisdiction under Section 482 CrPC. It was contended before this Court that obscenity has to be judged in the context of contemporary social mores, current socio-moral attitude of the community and the prevalent norms of acceptability/susceptibility of the community, in relation to matters in issue. Reliance was placed on the Constitution Bench decision in Ranjit D. Udeshi (supra) and Chandrakant Kalyandas Kakodkar (supra). The two-Judge Bench referred to the principles stated in the aforesaid two decisions and the principles stated in Samresh Bose (supra). While quoting a passage from Samresh Bose (supra), the Court observed that the view expressed therein was the contemporary social standards in the year 1985. The Court further observed that while judging a particular photograph, and the article of the newspaper as obscene in 2014, regard must be had to the contemporary mores and the national standards and not the standards of a group of susceptible or sensitive persons. The Court referred to the pronouncement in Hicklin (supra) the majority view in Brody v. R[1962 SCR 681 (Can SC)], and the pronouncement in R. v. Bu....
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....convey to the public and the world at large. The Court observed that Boris Becker himself in the article published in the German magazine, spoke of the racial discrimination prevalent in Germany and the article highlighted Boris Becker's protest against racism in Germany. Proceeding further, the Court ruled that:- "The message, the photograph wants to convey is that the colour of skin matters little and love champions over colour. The picture promotes love affair, leading to a marriage, between a white-skinned man and a [pic]black- skinned woman. We should, therefore, appreciate the photograph and the article in the light of the message it wants to convey, that is to eradicate the evil of racism and apartheid in the society and to promote love and marriage between white-skinned man and a black-skinned woman. When viewed in that angle, we are not prepared to say that the picture or the article which was reproduced by Sports World and the Anandabazar Patrika be said to be objectionable so as to initiate proceedings under Section 292 IPC or under Section 4 of the Indecent Representation of Women (Prohibition) Act, 1986." Thus, the aforesaid decision applies the "contemporary commun....
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....with the passage of time. Though Mr. Gopal Subramanium, learned senior counsel has emphasised on the comparables test and in that context, has referred to the judgment passed by the Kolkata High Court in Kavita Phumbhra (supra), we notice, as far as the authorities of this Court are concerned, the Court has emphatically laid down that the test as contemporary community standards test, and it would, of course, depend upon the cultural, attitudinal and civilisational change. There has also been stress on the modernity of approach and, the artistic freedom, the progression of global ideas and the synchronisation of the same into the thinking of the writers of the age. In Samresh Bose (supra), in 1985, the Court analysed the theme of the novel and dwelt upon the description in the various parts of the book and found that there was no obscenity. In 2014, in Aveek Sarkar (supra), the Court has observed that was the contemporary community standards test in 1985 and there has been a change with the passage of time. We respectfully concur with the said view and hold that contemporary community standards test is the main criterion and it has to be appreciated on the foundation of modern perc....
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....ation of freedom than the promise or assurance of freedom, because in everyone of these clauses the exceptions are much more emphasised than the positive provision. In fact, what is given by one right hand seems to be taken away by three or four or five left hands; and therefore the article is rendered negatory in any opinion. I am sure that was not the intention or meaning of the draftsmen who put in the other articles also. I suggest therefore that instead of making it subject to the provisions of this article, we should make it subject to the provisions of this Constitution. That is to say, in this Constitution this article will remain. Therefore if you want to insist upon these exceptions, the exceptions will also remain. But the spirit of the Constitution, the ideal under which this Constitution is based, will also come in, which I humbly submit, would not be the case, if you emphasise only this article. If you say merely subject to the provisions of this article, then you very clearly emphasise and make it necessary to read only this article by itself, which is more restrictive than necessary. .........The freedoms are curtly enumerated in 5, 6 or 7 items in one sub- clau....
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....s directed to be further carried out by the application of directive principles." 66. Shelat and Grover JJs in their judgment in the said case ruled:- "506. The Constitution-makers gave to the Preamble the pride of place. It embodied in a solemn form all the ideals and aspirations for which the country had struggled during the British regime and a Constitution was sought to be enacted in accordance with the genius of the Indian people. It certainly represented an amalgam of schemes and ideas adopted from the Constitutions of other countries. But the constant strain which runs throughout each and every article of the Constitution is reflected in the Preamble which could and can be made sacrosanct. It is not without significance that the Preamble was passed only after draft articles of the Constitution had been adopted with such modifications as were approved by the Constituent Assembly. The Preamble was, therefore, meant to embody in a very few and well-defined words the key to the understanding of the Constitution. 513. The history of the drafting and the ultimate adoption of the Preamble shows- (1) that it did not "walk before the Constitution" as is said about the Preamble t....
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....bar, turning on Article 19, demands some juristic response although avoidance of overlap persuades me to drop all other questions canvassed before us. The Gopalan verdict, with the cocooning of Article 22 into a self-contained code, has suffered suppression at the hands of R.C. Cooper (supra). By way of aside, the fluctuating fortunes of fundamental rights, when the proletarist and the proprietarist have asserted them in Court, partially provoke sociological research and hesitantly project the Cardozo thesis of sub-conscious forces in judicial noesis when the cycloramic review starts from Gopalan, moves on to In re Kerala Education Bill[1959 SCR 995] and then on to All-India Bank Employees' Association[1962 3 SCR 269], next to Sakal Papers[(1962) 3 SCR 842], crowning in Cooper and followed by Bennett Coleman[(1973) 2 SCR 757] and Shambhu Nath Sarkar[(1973) 1 SCC 856]. Be that as it may, the law is now settled, as I apprehend it, that no article in Part III is an island but part of a continent, and the conspectus of the whole part gives the direction and correction needed for interpretation of these basic provisions. Man is not dissectible into separate limbs and, likewise, cardinal....
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....a), it has been ruled that what the said Article does is to declare freedom of speech and expression as a fundamental right and to protect it against State action. The State cannot bind any legislative or executive action interfere with the exercise of the said right, except insofar as permissible under Article 19(2). 69. In Gajanan Visheshwar Birjur v. Union of India[(1994) 5 SCC 550], this Court was dealing with the order of confiscation of books containing the Marxist literature. The Court referring to the supremacy of the fundamental right to freedom of speech and expression, observed that the Constitution of India permits a free trade in ideas and ideologies and guarantees freedom of thought and expression, the only limitation being a law in terms of Clause (2) of Article 19 of the Constitution. The Court further observed that thought control is alien to our constitutional scheme and referred to the observations of Robert Jackson, J. in American Communications Association v. Douds[339 US 382] with reference to the US Constitution wherein it was stated that thought control is a copyright of totalitarianism, and it was unacceptable. The Court finally stated that it is not the f....
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.... the citizen in the matters mentioned in sub-clauses (a), (b), (c), (d), (e) and (g) of Article 19(1) except those specified in clauses (2) to (6) of Article 19 of the Constitution. In all matters specified in clause (1) of Article 19, the citizen has therefore the liberty to choose, subject only to restrictions in clauses (2) to (6) of Article 19. One of the reasons for giving this liberty to the citizens is contained in the famous essay "On Liberty" by John Stuart Mill. He writes: "... Secondly, the principle requires liberty of tastes and pursuits; of framing the plan of our life to suit our own character; of doing as we like, subject to such consequences as may follow: without impediment from our fellow creatures, so long as what we do does not harm them, even though they should think our conduct foolish, perverse, or wrong." According to Mill, therefore, each individual must in certain matters be left alone to frame the plan of his life to suit his own character and to do as he likes without any impediment and even if he decides to act foolishly in such matters, society or on its behalf the State should not interfere with the choice of the individual. Harold J. Laski, who ....
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....on to a great height. We have already referred to certain passages of the said decision in the context of test for obscenity. Mr. Nariman, learned senior counsel would submit that the said decision has to be read in its context and as it relates to the field of internet and in the present case, we are concerned with the obscenity test, as understood by this Court in the context of Section 292 IPC. In the said case, the two-Judge Bench, while dealing with the content of freedom of expression, opined that:- "There are three concepts which are fundamental in understanding the reach of this most basic of human rights. The first is discussion, the second is advocacy, and the third is incitement. Mere discussion or even advocacy of a particular cause howsoever unpopular is at the heart of Article 19(1)(a). It is only when such discussion or advocacy reaches the level of incitement that Article 19(1)(a). It is only when such discussion or advocacy reaches the level of incitement that Article 19(2) kicks in. It is at this stage that a law may be made curtailing the speech or expression that leads inexorably to or tends to cause public disorder or tends to cause or tends to affect the sov....
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....ingredient to Section 292 IPC would be added which is in the realm of legislature and this Court should refrain from doing the same. At this juncture, it is seemly to state that Section 292 IPC uses the term 'obscene'. While dealing with the facet of obscenity, this Court has evolved the test. The test evolved by this Court, which holds the field today is the 'contemporary community standards test'. That does not really create an offence or add an ingredient to the offence as conceived by the legislature under Section 292 IPC. It is a test thought of by this Court to judge obscenity. The said test has been evolved by conceptual hermeneutics. We appreciate the anxiety of Mr. Subramanium, learned senior counsel appearing for the appellant, and we are also absolutely conscious that this Court cannot create an offence which is not there nor can it add an ingredient to it. 74. Keeping this in view, we shall now proceed to deal with the 'historically respected persons'. Though the question uses the words 'historically respected persons', contextually, in this case it would mean Mahatma Gandhi, the Father of the Nation. Though some may think it is patently manifest or known that Mahatma ....
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....of Mahatma Gandhi and in fact the entire cultural and spiritual history of India formed the background against which these rights were enacted and consequently, these rights were conceived by the constitution-makers not in a narrow limited sense but in their widest sweep, for the aim and objective was to build a new social order where man will not be a mere plaything in the hands of the State or a few privileged persons but there will be full scope and opportunity for him to achieve the maximum development of his personality and the dignity of the individual will be fully assured." 79. In Bangalore Water Supply & Sewerage Board v. A. Rajappa[(1978) 2 SCC 213], this Court observed:- "There is no degrading touch about "industry", especially in the light of Mahatma Gandhi's dictum that 'Work is Worship". Indeed [pic]the colonial system of education, which divorced book learning from manual work and practical training, has been responsible for the calamities in that field. For that very reason, Gandhiji and Dr Zakir Hussain propagated basic education which used work as modus operandus for teaching. We have hardly any hesitation in regarding education as an industry." 80. In Minerva....
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....ilash Sonkar v. Maya Devi[(1984) 2 SCC 91], the observation is:- "4. As Mahatma Gandhi, father of the nation, said "India lives in villages" and so do the backward classes, hence the primary task was to take constructive steps in order to boost up these classes by giving them adequate concessions, opportunities, facilities and representation in the services and, last but not the least, in the electorate so that their voices and views, grievances and needs in the Parliament and State legislatures in the country may be heard, felt and fulfilled." 85. In Pradeep Jain v. Union of India[(1984) 3 SCC 654], emphasising on formation of one nation, the Court observed:- "This concept of one nation took firm roots in the minds and hearts of the people during the struggle for independence under the leadership of Mahatma Gandhi. He has rightly been called the Father of the Nation because it was he who awakened in the people of this country a sense of national consciousness and instilled in them a high sense of patriotism without which it is not possible to build a country into nationhood." 86. In Indra Sawhney v. Union of India[(1992) Supp. 3 SCC 217] and ors. the Court observed that it i....
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.... observing his birthday as a national holiday, we have remembered him in no better way than by riding roughshod over the principles of truth and moral values that he propagated all his life." 91. Having referred to the decisions of this Court and also a part of lecture, we think it condign to refer to certain books of Mahatma Gandhi. Mr. Subramanium, learned senior counsel also referred to certain books indicating that there are many critical passages about Mahatma Gandhi. The books referred to by him are "Great Soul: Mahatma Gandhi and his struggle India"[ Lelyveld Joseph, Great Soul: Mahatma Gandhi and his struggle with India, Harpr Collins, 2011; page] and "Sex and Power"[ Banerjee Rita, Sex and Power: Defining History, Shaping Societies, Penguin, 2008; page 274]. In this regard we may also refer to Mahatma Gandhi The Early Phase Vol.I[Pyarelal, Navajivan Publishing House, 1965], Gandhian Constitution for Free India[Shriman Narayan Agarwal, Kitabistan, 1946], Gandhi's Philosophy of Law[V.S. Hegde, Concept Publishing Company, 1983], Mahatma Gandhi[Sankar Ghose, Allied Publishers Limited, 1991], The Myth of the Mahatma[MMichael Edwardes, UBS Publishers' distributors Ltd., 1986], ....
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.... what you have to say, but I'll defend to the death your right to say it" or for that matter what George Orwell said, "If liberty means anything at all, it means the right to tell people what they do not want to hear". 93. There can be no two opinions that one can express his views freely about a historically respected personality showing his disagreement, dissent, criticism, non-acceptance or critical evaluation. 94. If the image of Mahatma Gandhi or the voice of Mahatma Gandhi is used to communicate the feelings of Gandhiji or his anguish or his agony about any situation, there can be no difficulty. The issue in the instant case, whether in the name of artistic freedom or critical thinking or generating the idea of creativity, a poet or a writer can put into the said voice or image such language, which may be obscene. We have already discussed at length about the concept of 'poetic license' and 'artistic freedom'. There can be "art for art's sake" which would include a poem for the sake of thought or expression or free speech and many a concept. Concept of poetry 95. We do not intend to say that a poem should conform to the definition or description as many authors have thou....
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.... and it does not come within the ambit and sweep of Section 292 IPC and the poet has expressed himself as he has a right to express his own thoughts in words. It is his further submission that the poem actually expresses the prevalent situation in certain arenas and the agony and anguish expressed by the poet through Gandhi and thus, the poem is surrealistic presentation. That apart, contends Mr. Subramanium, that the poem, as one reads as a whole, would show the image or the surrealistic voice of Mahatma Gandhi, is reflectible. Learned senior counsel would submit that apart from two to three stanzas, all other stanzas of the poem uses Gandhi, which may not have anything to do with the name of Mahatma Gandhi. 101. Mr. Nariman, learned amicus curiae, per contra, would submit that the poem refers singularly and exclusively to Mahatma Gandhi in every stanza. The learned friend of the Court has referred to certain stanzas of the poem. We do not intend to reproduce them in their original form. But we shall reproduce them with some self-caution. Some of them are:- "(i) I met Gandhi on the road _____ in the name of ______" xxxx ....
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....reted on an extremely broad canvas and under no circumstances, any historical personality can cause an impediment in the same. It is urged that the Constitution of India is an impersonalised document and poetry which encourages fearlessness of expression, cannot be restricted because of use of name of a personality. Learned senior counsel has further submitted that freedom to offend is also a part of freedom of speech. Poetry, which is a great liberator, submits Mr. Subramanium, can be composed through a merely voice explaining plurality of thought. He would submit the instant poem is one where there is "transference of consciousness" that exposes the social hypocrisy and it cannot be perceived with a conditioned mind. 104. The principle that has been put forth by Mr. Subramanium can be broadly accepted, but we do not intend to express any opinion that freedom of speech gives liberty to offend. As far as the use of the name of historically respected personality is concerned, learned senior counsel, while submitting so, is making an endeavour to put the freedom of speech on the pedestal of an absolute concept. Freedom of speech and expression has to be given a broad canvas, but it ....
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....clusion 105. When the name of Mahatma Gandhi is alluded or used as a symbol, speaking or using obscene words, the concept of "degree" comes in. To elaborate, the "contemporary community standards test" becomes applicable with more vigour, in a greater degree and in an accentuated manner. What can otherwise pass of the contemporary community standards test for use of the same language, it would not be so, if the name of Mahatma Gandhi is used as a symbol or allusion or surrealistic voice to put words or to show him doing such acts which are obscene. While so concluding, we leave it to the poet to put his defense at the trial explaining the manner he has used the words and in what context. We only opine that view of the High Court pertaining to the framing of charge under Section 292 IPC cannot be flawed. 106. Coming to the case put forth by the appellant-publisher, it is noticeable that he had published the poem in question, which had already been recited during the Akhil Bhartiya Sahithya Sammelan at Amba Jogai in 1980, and was earlier published on 2.10.1986 by others. The appellant has published the poem only in 1994. But immediately after coming to know about the reactions of ....
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....behavior. In United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968), a case not dealing with obscenity, the Court held a State regulation of conduct which itself embodied both speech and nonspeech elements to be 'sufficiently justified if . . . it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.' See California v. LaRue, 409 U.S. 109, 117-118, 93 S.Ct. 390, 396-397, 34 L.Ed.2d 342 (1972). [16] The mere fact juries may reach different conclusions as to the same material does not mean that constitutional rights are abridged. As this Court observed in Roth v. United States, 354 U.S., at 492 n. 30, 77 S.Ct., at 1313 n. 30, 'it is common experience that different juries may reach different results under any criminal statute. That is one of the consequences we accept under our jury system. Cf. Dunlop v. United States 486, 499-500.' [17] 521 U.S. 844 (1997) [18] 732 P.2d 9 (1987) [19] Joan Schleef, Not....
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....vention européenne des droits de l'homme , (Paris, La documentation française, 1999), in particular pp.450 et seq . and pp.464 et seq . [31] BVerfGE 75, 369 ; EuGRZ, 1988, 270 . See also the article by G. Nolte, "Falwell vs. Strauß: Die rechtlichen Grenzen politischer Satire in den USA und der Bundesrepublik", EuGRZ, (1988), pp.253-59. [32] See the German Federal Constitutional Court's decision of June 3, 1987 (BVerfGE 75, 369 ; EuGRZ, 1988, 270 ), discussed below: " Die umstrittenen Karikaturen sind das geformte Ergebnis einer freien schöpferischen Gestaltung, in welcher der Beschwerdeführer seine Eindrücke, Erfahrungen und Erlebnisse zu unmittelbarer Anschauung bringt. Sie genügen damit den Anforderungen, die das Bundesverfassungsgericht als wesentlich für eine künstlerische Betätigung ansieht ( BVerfGE 67, 213 [226] = EuGRZ 1984, 474 [477] unter Berufung auf BVerfGE 30, 173 [189]). Daß mit ihnen gleichzeitig eine bestimmte Meinung zum Ausdruck gebracht wird, nimmt ihnen nicht die Eigenschaft als Kunstwerk. Kunst und Meinungsäußerung schließen sich nicht aus; eine Meinung kann - wie es bei d....