'Mass Media' versus 'Obscenity': The Judicial Contribution

Abstract

The ‘basic law of the land’ confers to its citizens the most basic inalienable right in the form of ‘freedom of speech and expression’ by which a human being conveys his feelings, thoughts, views, opinions and sentiments, etc. to others. In other words, it means, the right to express one’s own convictions, and opinions freely by words of mouth, writing, painting pictures or any other mode. The conferring of this right under Article 19(1)(a) by the basic law of the lands gives it a status of being a constitutional right. The Founding Fathers of the Indian Constitution attached great importance to the freedom of speech and expression. They also endorsed the thinking of Jawaharlal Nehru who said - “I would rather have a completely free speech and expression with all dangers involved in the wrong use of that freedom than a suppressed or regulated speech and expression.” The right conferred by Article 19(1) (a) is not absolute. Not only the human nature but it is the demand of the society in order to be a civilized society that the State should impose certain reasonable restrictions on this particular guaranteed Constitutional right and that restriction has been provided under Article 19(2). One of the limitations imposed on this constitutional right of ‘freedom of speech and expression’ is the ‘decency and morality’. The principle behind this restriction is that public mind should not be corrupted. The concept of ‘obscenity’ is not same everywhere. What is obscene at one place may not be obscene at the other. So the concept of obscenity varies from place to place and from time to time. In India, the test laid down by Cockburn, C.J. in R. vs. Hicklin (1868) had been the test for a very long time Since Ranjit D. Udeshi Case (1965) to determine obscenity. In Hicklin’s Case it was laid down that ‘the test of obscenity is this, whether the tendency of the matter charged as obscene is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands the a publication of this sort may fall. It is quiet certain that it would suggest to minds, of the young either sex, or even to persons of more advanced years, thoughts as a most impure and libidinous character. Whereas in Samaresh Bose vs. Amal Mitra (1986) the Court draw a line between obscenity and vulgarity and observed that “what arouses a feeling of disgust and revulsion and also boredom but does not have the effect of depraving, debasing and corrupting the morals of any reader of the novel is vulgarity.”The concept of ‘obscenity’ is not same everywhere. What is obscene at one place may not be obscene at the other. So the concept of obscenity varies from place to place and from time to time. This paper emphasizes on the concept of obscenity in the constitutional perspective. Further, it seeks to analyze the concept of obscenity in context to mass media. For the sake of convenience this paper has been divided into five parts. Part I covers the introductory outline of the paper. Part II deals with the concept of obscenity. Part III deals with the test of obscenity by Statute. Part IV covers the Indian judicial approach towards obscenity with an emphasis on the judicial approach in the United Kingdom and the United States of America and ends with the recapitulating words under Part V.