DEVI DAS RAMACHANDRA TULJAPURKAR versus STATE OF MAHARASHTRA& ORS.
[2015] 7 S.C.R. 853, Supreme Court of India, 2015
Outcome: Disposed off
Segment: Facts
[2015] 7 S.C.R. 853 
DEVI DAS RAMACHANDRA TULJAPURKAR 
A 
v. 
STATE OF MAHARASHTRA& ORS. 
(Criminal Appeal No.1179 of2010) 
B 
MAY14, 2015 
[DIPAK MISRA AND PRAFULLA C. PANT, JJ.] 
PENAL CODE, 1860: 
c 
s. 292 - Framing of charges under-Against the author, 
publisher and the printer of a poem 'Gandhi Mala Bhetala'('I 
met GandhiJ - Charges framed-Application by the accused 
. 
for discharging them - Rejected by trial court - Order D 
confirmed by the revisional court as well as the High Court-
On appeal, held: The view of High Court pertaining to framing 
of charges as against the poet cannot be flawed- Whether 
the poem has any other layer of meaning or not, cannot be 
gone into, at the time of framing of charges- It shall be open E 
for the poet to put his defense at the trial - However, the 
publisher and the printer, in the facts of the case, am 
discharged- Code of Criminal Procedure, 1973. 
s.292 - Offence under - Constituents of - Held: By F 
.. 
bringing in a historically respected personality to the arena 
of s.292 IPC, neither a new offence is created nor an ingredient 
is interpreted - The parameter for adjudging obscenity is 
'contemporary community standards' test- However, the test 
becomes applicable with more vigour, in a greater degree, if G 
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. 
853 
H
854 
SUPREME COURT REPORTS 
[2015] 7 S.C.R. 
A 
CONSTITUTION OF IND/A, 1950 
Art. 19(1)(a) and 19(2) - Freedom of speech and 
expression and limitations thereon - Held: Freedom of 
speech and expression though has to be given a broad 
B canvas, but it has its inherent limitations, it is not absolute. 
Art. 19(1)(a) - Interpretation of - Held: When two 
interpretations (restrictive and liberal) of Art. 19(1)(a) are 
possible, liberal interpretation shouid be adopted - Art. 
c 19(1)(a) is intrinsically linked with preambular objectives 
which form a part of basic structure- Hence the Article should 
be interpreted in aid of the preambular objective. 
WORDS AND PHRASES: 
-
D 
'Poetic license'- Meaning of- Discussed. 
'Obscenity' and 'vulgarity' - Meaning of, in the context of 
s.292 /PC- Discussed. 
E 
'Poetry' - Meaning of. 
Disposing of the appeal, the Court 
HELD: 1. The prevalent test of obscenity in praesenti 
is the contemporary community standards test. The 
F contemporary community standards test is the main 
criterion and it has to be appreciated on the foundation 
of modern perception, regard being had to the criterion 
that develops the literature. There can neither be 
G 
stagnation of ideas nor there can be staticity of ideals. 
The innovative minds can conceive of many a thing and 
project them in different ways. As far as comparables 
test is concerned, the Court may sometimes have 
referred to various books on literature of the foreign 
H authors and expressed
the view that certain writings are 
not obscene, but that is not the applicable test. It may at
DEVI DAS RAMACHANDRA TULJAPURKAR v. 
855 
STATE OF MAHARASHTRA 
best reflect what the community accepts. [para 59, 60) A 
[946-E;947-D-G] 
Ranjit D. Udeshi v. State of Maharashtra (1965) 1 SCR 
65; Chandrakant Ka/yandas Kakodkar v. State of 
Maharashtra 1970 (2) SCR 80 :::1969 (2) SCC 687; KA. B 
Abbas v. Union of lf'dia and another 1971 (2) SCR 446 =1970 
(2) SCC 780; Raj Kapoor and Others v. State and Others 
1980 (1) SCR 1081 = 1980 (1) SCC 43; Samresh Bose & 
Anr. v. Amal Mitra &Anr. 1985 (3) Suppl. SCR 17=1985 (4) 
SCC 289; Director General, Directorate General of C 
Doordarshan and others v. Anand Patwardhan and another 
2006 (5) Suppl. SCR 403 = 2006 (8) SCC 433; Ajay Goswami 
v. Union of India and others 2006 (10) Suppl. SCR 770 = 
2007 (1) SCC 143; Bobby Art International v. Om Pal Singh 
Hoon and Others 1996 (2) Suppl. SCR 136 = 1996 (4) SCC D 
1; State of Bihar v. Shailabala Devi 1952 AIR 329 = 1952 
SCR 654, Ramesh slo Chhote Lal Dalal v. Union of India 
andothers1988 (2) SCR 1011=1988(1) SCC 668; Bhagwati 
Charan Shukla v. Provincial Government AIR 1947 Nag 1; 
Gandhi Smaraka Samithi, v. Kanuri Jagadish Prasad (1993) E 
2 APLJ 91 (SN); Promil/a kapur v. Yash Pal Bhasin 1989 
Cr.L.J.1241 ;B.K. Adarsh v. Union oflndiaAIR 1990AP100; 
S. Khushboo v. Kanniamma/ and another2010 (5) seR 322 
= 2010 (5) Sec 600; Aveek Sarkar and another v. State of F 
West Bengal and others (2014) 4 sec 257; Shreya Singhal 
· v. Union of India 2015 (4) SCALE 1 - referred to. 
Kam/a Kant
Singh v. Chairman/ManagingDirector, 
Bennetta Colman and Company Ltd. and Ors. (1987) 2 AWC 
1451; Public Prosecutor v. A.O. Sabapathy AIR 1958 Mad. G 
210; R. v. Beaver(1905), 9 O.L.R. 418; Regina v. Hicklin LR 
1868 3 QB 360; R. v. Martin Secker& Warburg LO (19541 
WLR 11 1138; R. v. Penguin Books Ltd. [1961) Crim LR 
176; Chaplinsky v. New Hampshire 315 U.S. 568 (1942); 
H 
Roth v. United States (1957) 354 US 476; Memoirs v.
e56 
SUPREME COURT REPORTS 
[2015) 7 S.C.R. 
A Masachusetts 383 U.S. 413 (1966); Marvin Miller vs. State 
of California 413 US 15 (1973): 93 S.Ct. 2607; Reno v. 
American Union of Civil Liberties 521 U.S. 844 (1997); State 
of Oregon v. Ear/A. Henry732 P.2d 9 (1987); United States 
v. Various Articles of Obscene Merch 732 P.2d 9 (1987); 
B Ashcroft v. Free Speech Coalition 535 U.S. 234, 248 (2002); 
Kavita Phumbhra v. Commissioner of Customs (Port), 
Calcutta (2012) 1 Cal LJ 157; Wingrove v. United Kingdom 
1997 24 ECHRR (1); Muller and Others v. Switzerland 13 
EHRR 212; Freadman v. Maryland (1965) 380 US 51; Teital 
C Film Corp. v. Cusak (1968) 390 US 149; Times Film 
Corporation v. Chicago (1961) 365 US 43; Brody v. R 1962 
SCR 681 (Can SC); R. v. Butler (1992) 1 SCR 452 (Can 
SC) - referred to. 
D 
R. v. Peacock Unreported case [http://www.bbc.com/ 
news/uk-16443697] - referred to. 
Vereinigung Bi/dender Kinstler v. Austria Application No. 
68354/2001, 251h January 2007; Handyside v. United 
E Kingdom Application No. 5493/72, 71h December 1976, 
Series A No. 24; Editorial Board of Pravoye Delo and Shtekel 
v. Ukraine Application No. 33014/05, 5 May 2011; Akda v. 
Turkey Application No. 41056/04, 16 February, 2010 -
referred to. 
F 
Judicial Erosion of Protection for Defendants in 
Obscenity Prosecutions?When Courts Say; Literally; Enough 
is Enough and When Internet Availability Does Not Mean 
Acceptance by Clay Clavert; Journal of Sports and 
G Entertainment Law (Vol.1,
Number 1 ), Harvard Law School, 
2010 - referred to. 
2.1 The words, freedom of speech and expression 
find place in the association words "liberty of thought, 
H expression, belief, faith and worship'', which form a part
DEVI DAS RAMACHANDRA TULJAPURKAR v. 
857 
STATE OF MAHARASHTRA 
of the Preamble of the Constitution. It is true that Article A 
19(1)(a) has to be interpreted in a manner by which the 
fundamental right to "freedom of speech and 
expression" is nourished. When two interpretations of 
Article 19(1)(a), one a traditional or restrictive approach 
and the other a modern/liberal approach are possible, B 
the latter should be adopted, for by adopting the said 
approach, the fundamental right to freedom of speech 
and expression is guarded and any attempt.to overreach 
the same is kept in check. Interpreting Article 19(1)(a) of 
the Constitution, the test is always to see the said Article C 
in aid of the Preambular objectives which form a part of 
the basic structure of the Constitution. Article 19(1 )(a) is 
intrinsically linked with the Preambular objectives and it 
is the duty of the Court to progressively realise the values 0 
of the Constitution. [par:.s 61, 64 and 67] [948-A-B; 950-
D-F; 952-C-D] 
2.2 It is correct that there should not be narrow or 
condensed interpretation of freedom of speech and 
expression, but that does not mean that there cannot be E 
any limit. It has to have inherent limitations which are 
permissible within the constitutional parameters. 
Freedom of speech and expression as enshrined under 
Article 19(1 )(a) of the Constitution is not absolute in view 
of Article 19(2) of the Constitution. The said right is a right F 
of great value and transcends
and with the passage of 
time and growth of culture, it has to pave the path of 
ascendancy, but it cannot be put in the compartment of 
absoluteness. There is constitutional limitation attached 
to it. [Paras 72 and 104] [961-A-B; 975-C-E] 
G 
Kesavanada Bharti v. State of Kera/a and Others (1973) 
4 SCC 225; Ranjit D. Udeshi v. State of Maharashtra (1965) 
1 SCR 65 - followed. 
Maneka Gandhi v. Union of India (1978) 1 SCC 248; H
858 
SUPREME COURT REPORTS 
[2015] 7 S.C.R. 
A Gajanan Visheshwar(1994) 5 SCC 550; Sahara India Real 
Estate Corpn. Ltd. v. SEBI (2012) 10 SCC 603, State of 
Kamataka v. Associated Management of English Medium 
Primary & Secondary Schools (2014) 9 SCC 485 - relied 
on. 
B 
c 
Shreya Singhal v. Union of India 2015 (4) SCALE 1 -
' 
referred to. 
American Communications Association v. Douds 339 
US 382 - referred to. 
3.1 The Constitution does not recognize any 
personality whether historically or otherwise as far as 
Article 19(1 )(a) is concerned. But it cannot be said that if 
' 
the concept of personality test is applied, a new 
0 ingredient to Section 292 IPC would be added which is 
in the realm of legislature and this Court should refrain 
from doing the same. [para 73) [961-D-E] 
· 
3.2 Section 292 IPC uses the term 'obscene'. While 
dealing with the facet of obscenity, this Court has 
E evolved the test, 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 
F obscenity. The said test has been evolved by conceptual 
hermeneutics. This Court cannot create an offence which 
is not there nor can it add an ingredient to it. [para 73) 
[961-E-G] 
G 
Kesavanada Bharti v. State of Kera/a and Others (1973) 
4 SCC 225; K. Karunakaran v. T. II. Eachara Warrier 1978 
(2) SCR 209
= 1978 (1) SCC 18; Maneka Gandhi v. Union 
of India (1978) 1 SCC 248; Bangalore Water Supply & 
Sewerage Board v. A. Rajappa1978 (3) SCR 207 = (1978) 2 
H SCC 213; Minerva Mills Ltd. v. Union of India (1980) 3 SCC
DEVIDAS RAMACHANDRA TULJAPURKAR v. 
859 
STATE OF MAHARASHTRA 
625; Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. 
A 
Union of India 1981 (2) SCR 185 = 1981 (1) SCC 246; 
People's Union for Democratic Rights v. Union of India 1983 
(1) SCR 456 = 1982 (3) SCC 235; Bachan Singh v. State of 
Punjab 1983 (1) SCR 145 = (1982) 3 SCC 24; Kai/ash 
Sankar v. Maya Devi 1984 (2) SCR 176 = 1984 (2) SCC 91; B 
Pradeep Jain v. Union of India 1984 (3) SCR 942 = 1984 (3) 
SCC 654; Indra Sawhney v. Union of India 1992 (2) Suppl. 
SCR 454 = 1992 (3) Suppl. SCC 217; S.R. Bommai and 
others v. Union of India and others 1994 (2) SCR 644 = 1994 
(3) SCC 1; T.N. Godavarman Thirumu/pad v. Union of C 
/ndia2012 (1) SCR 923 = 2012 (4) SCC 362; Dalip Singh v. 
State of U.P and Ors. 2009 (16) SCR 111 = 2010 (2) SCC 
114 - referred to. 
3.3 There are several decisions of this Court, where D 
the name of Mahatma Gandhi has been referred to with 
reverence and elaborating on various facets of life of 
Gandhi and Gandhian thought. There are also certain 
eminent persons who have referred to Mahatma Gandhi 
in their speech and articles. There are books which E 
praise Gandhi, analyse Gandhian thoughts, criticise 
Gandhian philosophy, express their dissent, disagree 
with his political quotient and also comment on his views 
on "Brahamcharya". On reading of the said books, one 
can safely say they are the views of the authors in their F 
own way and there is no compulsion to agree with the
personality or his thoughts or philosophy. [paras 90 and 
92] [967-G; 970-B-C] 
"Great Soul: Mahatma Gandhi and his struggle India" G 
Lelyveld Joseph, Great Soul: Mahatma Gandhi and his 
'" 
struggle with India, Harpr Collins, 2011; "Sex and Power" 
Lelyveld Joseph, Great Soul: Mahatma Gandhi and his 
struggle with India, Harpr Collins, 2011; Mahatma Gandhi The 
Early Phase Vol. I Pyarelal, Navajivan Publishing House, 1965, 
H
860 
SUPREME COURT REPORTS 
[2015] 7 S.C.R. 
A 
Gandhian Constitution for Free India Shriman Narayan 
Agarwal, Kitabistan, 1946; Gandhi's Philosophy of Law VS. 
Hegde, Concept Publishing Company, 1983; Mahatma 
Gandhi Sankar Ghose, Allied Publishers Limited, 1991; The 
Myth of the Mahatma MMichael Edwardes, UBS Publishers' 
B distributors Ltd., 1986; Gandhi Before India Ramachandra 
Guha, Penguin Books, 2013; In Search of Gandhi Richard 
Attenborough, B.I. Publications, 1982; Gandhi's View of Legal 
Justice Ajit Atri, Deep & Deep Publications Pvt. Ltd., 2007; 
Gandhi, Soldier of Non-Violence: An Introduction Calvin Kytle, 
C Seven Locks Press, 1983; Trial of Mr. Gandhi Francis Watson, 
Macmillan and Co., 1969; Gandhi and Civil Disobedience 
Movement S.R. Bakshi, Gitanjali Publishing House, 1985; 
Ti/ak, Gandhi and Gita D.K. Gosavi, Bharatiya Vidya Bhavan, 
0 
1983; Studies in Modem Indian Political thought: Gandhi an 
Interpretation O.P. Goyal, Kitab Mahal Pvt. Ltd., 1964; Gandhi 
and the Partition of India Sandhya Chaudhri, Sterling 
Publishers Pvt. Ltd., 1984; Gandhi in London James D Hunt, 
Promilla & Co., 1978; Mahatma Gandhi Contribution to 
E Hinduism James D Hunt, Promilla & Co., 1978; Life of 
Mahatma Gandhi Louis Fisher, Granada, 1982; Moral and 
Political Thought of Mahatma Gandhi Raghavan N. Iyer, 
Oxford University Press, 1973; Gandhi and Social Action 
Today Mery Kappen (Ed.), Sterling Publishers Pvt. Ltd., 1990; 
F Gandhi: The Man and the Mahatma Ram Sharma,
Rajan, 
1985; Gandhi and Ideology of Swadeshi S.R. Bakshi, 
Reliance Publishing House, 1987; Gandhi's Khadi: History of 
Contention and Conciliation Rahul Ramagundam, Orient 
Longman Pvt Ltd., 2008; Mahatma Gandhi and Jawarhal 
G Nehru: A Historic Partnership Vo/.1 (1916-1931) Madhu 
Limaye, B.R. Publishing Corporation, 1989; Gandhi: Prisoner 
of Hope Judith M. Brown, Oxford University Press, 1990; 
Mahatma Gandhi and His Apostles Ved Mehta, Indian Book 
Company, 1977'; Gandhi and Status of Women S.R. Bakshi, 
H Criterion Publications, 1987; Philosophy of Gandhi: A Study
DEVI DAS RAMACHANDRA TULJAPURKAR v. 
861 
STATE OF MAHARASHTRA 
of His Basic Ideas Glyn Richards, Rupa & Co., 1991; Gandhi A 
Naked Ambition Jad Adams, Quercus, 201 O; Meera anJ the 
. Mahatma Sudhir Kakar, Yiking- Penguin, 2004; and The Men 
Who Killed Gandhi Manohar Malgonkar, Roli Books, 2008 -
referred to. 
B 
3.4 There can be no two opinions that one can 
express his views freely about a historically respected 
personality showing his disagr~ement, dissent, criticism, 
non-acceptance or critical evaluation. There can be "art 
for art's sake" which would include a poem for the sake C 
of thought or expression or free speech and many a 
concept. [paras 93 and 94] [970-D, G] 
3.5 In the context of obscenity, the provision 
enshrined under Section 292 IPC has its room to play. D 
By bringing in a historically respected personality to the 
arena of Section 292 IPC, neither a new offence is created 
nor an ingredient is interpreted. The judicially evolved 
test, that is, "contemporary community standards test" 
is a parameter for adjudging obscenity, and in that E 
context, the words used or spoken by a historically 
respected personality is a medium of communication 
through a poem or write-up or other form of artistic work 
gets signification. That makes the test applicable in a 
greater degree. [para 104] [975-D-G] 
F 
4. When the name of Mahatma Gandhi is alluded or 
used as a symbol, speaking or using obscene words, 
the concept of "degree" comes in. The "contemporary
community standards test" becomes applicable with G 
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 H
862 
SUPREME COURT REPORTS 
[2015] 7 S.C.R. 
A words or to show him doing such acts which are 
obscene. Whether the poem has any other layer of 
meaning or not, cannot be gone into at the time of 
framing of charge. The author in his own understanding 
and through the process of trial, can put his stand and 
B stance before the trial Judge. It is left to the poet to put 
his defense at the trial explaining the manner, he has 
used the words and in what context. The view of the High 
Court pertaining to the framing of charge under Section 
292 IPC cannot be flawed. It shall be open for the poet to 
C raise all the pleas in defence, as available to him under 
the law before the Magistrate, during trial. [paras 101, 105 
and 106] [973-G; 976-E-G; 977-D] 
5. So far as the appellant-publisher is concerned, he 
D had published the poem in question, which had already 
been recited during the Akhil Bhartiya Sahithya 
Sammelan 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 
E about the reactions of certain employees, he tendered 
unconditional apology in the next issue of the 'Bulletin' 
and almost more than two decades have passed. The 
printer had printed as desired by the publisher. The 
F charge framed against the publisher as well as the printer, 
is quashed. [para 106] [976-H; 977-A-C] 
Case Law Reference 
(1987) 2 AWC 1451 
Referred to 
Para 9 
G 
AIR 1958 Mad. 210 
Referred
to 
Para 10 
(1905), 9 O.L.R. 418 
Referred to 
Para 10 
LR 1868 3 QB 360 
Referred to 
Para 12 
H

DEVI DAS RAMACHANDRA TULJAPURKAR v. 
863 
STATE OF MAHARASHTRA 
(1954) 1WLR111138 
Referred to 
Para 12 
A 
[1961] Crim LR 176 
Referred to 
Para 15 
315 U.S. 568 (1942) 
Referred to 
Para 18 
(1957) 354 us 476 
Referred to 
Para 19 
B 
383 U.S. 413 (1966) 
Referred to 
Para 20 
413 us 15 (1973): 
93 S.Ct. 2607 
Referred to 
Para 21 
c 
521 U.S. 844 (1997) 
Referred to 
Para 23 
732 P.2d 9 (1987) 
Referred to 
Para 24 
535 U.S. 234, 248 (2002) 
Referred to 
Para 26 
D 
(2012) 1 Cal LJ 157 
Referred to 
Para 26 
1997 24 ECHRR (1) 
Referred to 
Para 32 
E 
13 EHRR 212 
Referred to 
Para 33 
(1965) 1 SCR 65 
Referred to 
. Para 36 
1970 (2) SCR 80 
Referred to 
Para 41 
·' 
F 
1971 (2) SCR 446 
Referred to 
Para 42 
(1965) 380 us 51 
Referred to 
Para 42 
(1961) 365 us 4::. 
Referred to 
Para 42 
G 
1980 (1) SCR 1081 
Referred to 
Para 45 
1985 (3) S'..: ... ~;. SCR 17 
Referred to 
Para 48 
2006 (5) Suppl. SCR 403 Referred to 
Para 51 
H
864 
SUPREME COURT REPORTS 
[2015] 7 S.C.R. 
A 
2006 (10) Suppl. SCR 770 Referred to 
Para 52 
1996 (2) Suppl. SCR 136 Referred to 
Para 53 
1952 SCR 654 
Referred to 
Para 53 
B 
1988 (2) SCR 1011 
Referred to 
Para 54 
AIR 1947 Nag 1 
Referred to 
Para 54 
(1993) 2 APLJ 91 (SN) 
Referred to 
Para 55 
c 
1989 Cr.L.J. 1241 
Referred to 
Para 56 
AIR 1990AP100 
Referred to 
Para 56 
2010 (5) SCR 322 
Referred to 
Para 57 
D 
(2014) 4 sec 257 
Referred to 
Para 58 
1962 SCR 681 (Can SC) 
Referred to 
Para 58 
(1992) 1 SCR 452 (Can SC) Referred to 
Para 58 
E 
2015 (4) SCALE 1 
Referred to 
Para 59 
(1973) 4 sec 225 
Followed 
para 65 
(1978) 1 sec 248 
Relied on 
para 67 
F 
(1994) 5 sec 550 
Relied on 
Para 69 
339 us 382 
Referred to 
Para 69 
G 
(2012) 1 o sec 603 
Relied on 
Para 70 
(2014) 9 sec 485 
Relied on 
Para 71 
1978 (2) SCR 209 
Referred to 
Para 77 
1978 (3) SCR 207 
Referred to 
Para 78 
H
DEVIDAS RAMACHANDRA TULJAPURKAR v. 
865 
STATE OF MAHARASHTRA 
(1980) 3 sec 625 
Referred to 
Para 80 
A 
1981 (2) SCR 185 
Referred to 
Para 81 
1983 (1) SCR 456 
Referred to 
Para 82 
1983 (1) SCR 145 
Referred to 
Para 83 
B 
1984 (2) SCR 176 
Referred to 
Para 84 
1984 (3) SCR 942 
Referred to 
Para 85 
1992 (2) Suppl. SCR 454 Referred to 
Para 86 
c 
1994 (2) SCR 644 
Referred to 
Para 87 
2012 (1) SCR 923 
Referred to 
Para 88 
I 
D 
2009 (16) SCR 111 
Referred to 
Para 89 
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal 
No. 1179 of2010. 
From the Judgment and Order dated 20.01.2010 of the E 
High Court of Judicature of Bombay Bench atAurangabad in 
Criminal Application No. 2074 of2002. 
F. S. Nariman (A.C.), Gopal Subramanian, Pravin H. 
Parekh, S. C. Sharma, Sameer Parekh, Lalit Chauhan, Pallavi F 
Sharma, Kushagna Pandey, Abhishek Vinod Deshmukh, S. 
Lakshmi Iyer (For Parekh & Co.), Asha Gopalan Nair, 
Aniruddha P. Mayee, Charudatta Mahindrakar, A. Selvin Raja, 
for the appearing parties. 
The Judgment of the Court was delivered by 
G 
DIPAK MISRA, J. 
The Controversy 
H
866 
SUPREME COURT REPORTS 
[2015] 7 S.C.R. 
A 
The seminal issue that spiralled in the course of hearing 
of this appeal centres around the question framed vide order 
dated 18.2.2015, for this Court thought it apposite to answer, 
whether the poem titled "Gandhi Mala Bhetala" ('I met Gandhi') 
in the magazine named the 'Bulletin' which was published, in 
B July-August, 1994 issue, meant for private circulation amongst 
the members of All India Bank Association Union, could in the 
ultimate eventuate give rise to framing of charge under Section 
292 IPC against the author, the publisher and the printer. The 
question framed reads thus:-
C 
D 
E 
"Regard being had to the importance of the matter, we 
had sought the assistance of Mr. Fali S. Nariman, learned 
senior counsel, to assist the Court, and he has gladly 
rendered. At the ~me of hearing, we have asked the 
learned senior counsel, learnedAmicus 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) 
F 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 
G 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 
H issue which fundamentally relates to freedom of thought and
DEVIDAS RAMACHANDRA TULJAPURKAR v. 
867 
STATE OF MAHARASHTRA[DIPAK MISRA, J.] 
' 
expression, would be inappropriate and a poem or a write-up A 
is indeed a part of free speech and expression, as perceived 
under Article 19(1 )(a) of the Constitution and that apart the 
expression "poetic licence" is neither a concept nor a 
conception because the idea of a poetic freedom is a 
guaranteed and an enforceable fundamental right and this B 
Court should not detract and convert it into a permissive 
licence. Additionally, learned senior counsel has contended 
that quintessential liberty of perception and expression when 
placed in juxtaposition with "poetic licence", is inapposite since c 
the expression "permissible" sounds a discordant note with 
"liberty of perception and expression", a sacrosanct 
fundamental right, integral to human dignity, thought, feeling, 
behaviour, expression and all jural concepts of human freedom 
guaranteed not only under the Constitution but even recognised D 
under the International Covenants, for they can never be placed 
in the company or association of expressions such as "license" 
or "permissibility". Emphasising on the said facet, submitted 
• 
Mr. Subramanium that the Constitution has liberated the 
citizens from 'license' and 'permissibility', whic~ are E 
expressions of disempowerment and the entire freedom 
struggle was centered around the concept of empowerment. 
There is a suggestion in the written note of submissions to 
place the
matter before a Bench of five Judges as enshrined 
under Article 145(3) of the Constitution. In spite of the said F 
submission, learned senior counsel, we must appreciably state, 
has copiously dealt with the issues that have emerged from 
the question, in his written note of submissions. 
Mr. Fali S. Nariman, learned senior counsel and amicus G 
curiae supported the phraseology in the question with immense 
intellectual vigour, patience, perseverance and endeavour and 
submitted that the issue that this Court has thought of 
addressing is absolutely invulnerable and unalterable as the 
Constitution of India does not recognise absolute freedom and H
868 
SUPREME COURT REPORTS 
[2015] 7 S.C.R. 
A Article 19(2) of the Constitution regulates the same and Section 
292 IPC being a provision which is saved by Article 19(2), the 
presence or absence of the author is immaterial; what is to be 
seen is whether the poem prima facie exhibits obscenity, 
especially, in the context of Mahatma Gandhi, the "Father of 
B the Nation", as the identity of the historically respected 
personality is absolutely clear and there is no scintilla of doubt 
in the mind of any average reader. Learned amicus curiae 
would submit that the question deserves to be dealt with and 
answered in proper perspective. 
c 
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 
D 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 
E 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 
F 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 
G that the name of Gandhi has been used as a surrealistic voice 
and hence, the poet is entitled to use the language as a medium 
of expression in the poem. We do not intend to catalogue 
names of historically respected personalities as that is not an 
H issue in this case. Here the case rests on the poem titled "I
DEVIDAS RAMACHANDRA TULJAPURKAR v. 
869 
STATE OF MAHARASHTRA[DIPAK MISRA, J.] 
met Gandhi". As far as the words "poetic license", are A 
concerned, it can never remotely mean a license as used or 
understood in the language of law. There is no authority who 
gives a license to a poet. These are.words from the realm of 
literature. The poet assumes his own freedom which is allowed 
to him by the fundamental concept of poetry. He is free to depart B 
from the reality; fly away from grammar; walk in glory by not 
following the systematic metres; coin words at his own will; 
use archaic words to convey thoughts or attribute meanings; 
hide ideas beyond myths which can be absolutely unrealistic; 
totally pave a path where neither rhyme nor rhythm prevail; can C 
put serious ideas in satires, ifferisms, notorious repartees; take 
aid of analogies, metaphors, similes in his own style, compare 
like "life with sandwiches that is consumed everyday" or "life is 
like peeling of an onion", or "socit:ty is like a stew"; define ideas 0 
that can balloon into the sky never to come down; cause 
violence to logic at his own fancy; escape to the sphere of 
figurative truism; get engrossed in "universal eye for 
resemblance", and one can do nothing except writing a critical 
appreciation in his own manner and according to his E 
understanding. When the poet says "I saw eternity yesterday 
night", no reader would understand the term 'eternity' in its 
prosaic sense. The Hamletian question has
many a layer; each 
is free to confer a meaning; be it traditional or modern or 
individualistic. No one can stop a dramatist or a poet or a writer F 
to write freely expressing his thoughts and similarly none can 
stop the critics to give their comments whatever its worth. One 
may concentrate on classical facets and one may think at a 
metaphysical level or concentrate on romanticism as is 
understood in the poems of Keats, Byron or Shelley or one G 
may dwell on the nature and write poems like William 
Wordsworth whose poems, say some, are as didactic. One 
may also venture to compose like Alexander Pope or Dryden 
or get into individual modernism like Ezra Pound, T.S. Eliot or 
H
870 
SUPREME COURT REPORTS 
(2015] 7 S.C.R. 
A Pablo Neruda. That is fundamentally what is meant by poetic 
license. 
3. We may slightly delve into the area in Sanskrit lijerature 
that gave immense emphasis on aesthetics. The concept of 
B 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 sanyogadrasnishpatl'. Bharata 
discusses in detail the contributing factors like vibhavas, 
C 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 'rill' as "Ritiraatma kavyasya". Some also · 
D 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 
E Indian poeticians like Kuntaka who called poetry 'vakroktl' 
. which he explains as "vaidagdhyabhangibhanitl' - a mode of 
expression depending on the peculiar turn given to it by the 
skill of the poet. Some emphasise on "best words used in best 
F order" so that poem can attain style and elevation. To put it 
differently, the 'poetic
licence' can have individual features, 
deviate from norm, may form collective characteristics or it 
may have a linguistic freedom wider than a syntax sentence 
compass. 
G 
4. We have emphasised on these facets as we are 
disposed to think that the manner in which the learned senior 
counsel has suggested the meaning of 'poetic license' is not 
apt. Freedom of writing is not in question. That cannot be. And 
H we say so without any fear of contradiction.
DEVI DAS RAMACHANDRA TULJAPURKAR v. 
871 
STATE OF MAHARASHTRA [DIPAK MISRA, J.] 
5. In course of our judgment, we shall deal with the other A 
'. 
facets that have been so assiduously put forth by Mr. 
Subramanium and so indefatigably controverted by Mr. F ali 
S. Nariman, learned amicus curiae. 
The factual score 
B 
6. As far as the suggestion given for placing the matter 
before a five-Judge Bench, we are of the considered view that 
there is no need forthe same. 
7. Presently, we shall state the exposition of facts. On the c 
basis of a complaint lodged by one V. V. Anaskar, a resident 
of Pune, and a member of 'Patit Pawan Sangthan', with the 
Commissioner of Police, relating to the publication of the poem, 
which was published, in July-August, 1994, meant for private D 
circulation amongst the members of All India Bank Association 
Union, a crime was registere~ as FIR No. 7/95 at P.S. Gandhi 
Chowk, Latur, on being transferred from Pune, for the offences 
punishable under Sections 153-A and 153-B read with Section 
34, IPC and eventually after due investigation charge sheet E 
was filed for the said offences along with 292, IPC against the 
present appellant, the publisher and the printer, respondent 
no.3, of the Bulletin and the author, one Vasant Dattatraya Gujar. 
When the matter was pending before the Chief Judicial 
Magistrate, Latur, all the accused persons filed an application 
F 
f~r discharge and the learned Magistrate by order dated 
4.5.2001 held that no
case for the offences under Sections 
153-A and 153-B was made out and accordingly discharged 
them of the said offences but declined to do so in respect of 
the offence under Section 292, IPC. On a revision being filed, G 
the learned Additional Sessions Judge did not think it 
appropriate to interfere with the order passed by the trial 
Magistrate which constrained the accused persons to invoke 
jurisdiction under Section 482 of the CrPC and the High Court 
of Bombay, Aurangabad Bench dismissed the application. The H
872 
SUPREME COURT REPORTS 
[2015] 7 S.C.R. 
(1987) 2 AWC 1451 
A 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. 
B 
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 
c 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:-
D 
E 
F 
G 
H 
"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 average person 
applying contemporary community standards; (2) 
portrays sexual conduct, as specifically defined by the 
applicable state law, in a patently offensive way; and (3) 
lacks serious literary, artistic, political, or scientific value. 
Millerv. Callifomia, 413 U.S. 15, 93 S.Ct. 2607 (1973). 
If there be no abstract
definition, ... should not the word 
'obscene' be allowed to indicate the present critical point 
in the compromise between candor and shame at which 
the community may have arrived here and now?" United 
States V Kennerley, 209 F. 119, 121(S.D.N.Y1913) (per 
Hand.J.)"
DEVIDAS RAMACHANDRA TULJAPURKAR v. 
873 
STATE OF MAHARASHTRA [DIPAK MISRA, J.] 
9. The learned senior counsel has also referred to the A 
decision of the Allahabad High Court in Kam/a Kant Singh 
Vs. Chairman/ManagingDirector, Bennetta Colman and 
Company Ltd. and Ors. 1, wherein the High Court dealt with 
the meaning of the word 'obscenity'. The delineation is as 
follows:-
B 
"15. The word obscenity has been explained in 'Jowitts' 
Dictionary of English Law as follows: 
"An article is deemed to be obscene, if its effect, or where c 
the article comprises two or more distinct iteins, the effect 
of any one of its items if taken as a whole, is to tend to 
deprave and corrupt persons, who are likely having 
regard to all the relevant circumstances to read, to see 
or hear matters contained or embodied in it. (See R. v. D 
Claytone and Hasley, (1963) 1 QB 163, R. v. Anderson, 
(1972) 1 -QB 304)". Obscenity and depravity are not 
confined to sex. (See John Calder Publications v. 
Powell, (1965) 1QB509.) 
E 
16. . .. According to Black's Law Dictionary obscenity 
means character or quality of being obscene, conduct, 
tending to corrupt the public merely by its indecency or 
lewdness. According to Webster's New International 
Dictionary, word 'obscene' means disgusting to the F 
senses, usually because of some filthy grotesque or 
unnatural quality, grossly repugnant to the generally 
accepted notions of what is appropriate." 
10. The High Court of Madras in Public Prosecutorv.
G 
A.D. Sabapathy2, has opined that the word "obscene" must 
be given its ordinary and literal meaning, that is, 'repulsive', 
'filthy', 'loathsome', 'indecent' and 'lewd'. The learned senior 
1 (1987) 2 AWC 1451 
2AIR 1958 Mad. 210 
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874 
SUPREME COURT REPORTS 
[2015] 7 S.C.R. 
A counsel has also referred to the judgment of Supreme Court 
of Canada in R. v. Beaver, wherein Maclaren, J.A., has 
defined 'obscene' as follows:-
"The word 'obscene' ... was originally used to describe 
B 
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 
C 
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. 
D 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 
E 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 
F the determined test in the context of the question and ultimately 
the nature of the poem and the justifiability of the order 
impugned. 
Test
evolved in United Kingdom 
G 
12. As far as United Kingdom is concerned, Mr. 
Subramanium has referred to Regina v. Hicktin4, the meaning 
3 (1905), 9 O.L.R. 418 
H •LR 1868 3 QB 360
DEVI OAS RAMACHANDRA TULJAPURKAR v. 
875 
STATE OF MAHARASHTRA[DIPAK MISRA, J.] 
given by Cockburn C.J. and drawn our attention to the Article A 
by J.E. Hall Williams in Obscenity in Modem English Lai.N5 
wherein the learned author observed that Hicklin (supra) gave 
a complete go by to the principle of "mens rea" which propounds 
a certain degree of protection to the accused. The learned 
author was critical on the concept of presumption as B 
propounded in Hicklin (supra). In the said article, learned 
author referred to certain observations in R. v. Martin Secker 
& Warburg LCY3. In the said case, Stable J. has stated 
'The test of obscenity to be applied today is extracted C 
from a decision of 1868; it is this: " .... Whether the 
tendency of the matter charged as obscenity is to deprave 
and corrupt those whose mind are open to such immoral 
influences, and into whose hands a publication of this sort 
may fall." Because this test was laid down in 1868, that D 
does not mean that you have to consider whether this book 
is an obscene book by the standards of nearly a century 
ago. Your task is to decide whether you think that the 
tendency of the book is to deprave those whose minds 
today are open to such immoral influences and into whose E 
hands the book may fall in this year, or last year when it 
was published in this country. Considering the curious 
change of approach from one age to another, it is not 
uninteresting to observe that in the course of the argument
F 
of the case in 1868 the rhetorical question was asked: 
"What can be more obscene than many pictures "publicly 
exhibited, as the Venus in the Dulwich Gallery?" There are 
some who think with reverence that man is fashioned in 
the image of God, and you know that babies are not born G 
in this world, be they of either sex, dressed up in a frock-
coat or an equivalent feminine garment. 
• 20, Law and Contemporary Problems (1955): 630-647 
8 (19541WLR111138. 
H
876 
A 
B 
c 
D 
E 
F 
G 
SUPREME COURT REPORTS 
[2015] 7 S.C.R. 
We are not sitting here as judges of taste. We are not 
here to say whether we like a book of this kind. We are 
not here to say whether we think it would be a good thing 
if books like this were never written. You are here trying a 
criminal charge and in a criminal court you cannot find a 
verdict of "Guilty" against the accused unless, on the 
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. Amass 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 in this 
court who does not whole-heartedly believe that 
pornography, the filthy bawdy muck that is just filth for filth's 
sake, ought to be stamped out and suppressed. Such 
H 
books are not literature. They have got no message; they
DEVI DAS RAMACHANDRA TULJAPURKAR v. 
877 
STATE OF MAHARASHTRA [DIPAK MISRA, J.] 
have got no inspiration; they have got no thought. They A 
have got nothing. They are just filth and ought to be 
stamped out. But in our desire for a healthy society, if we 
drive the criminal law too far, further than it ought to go, is 
there not a risk that there will be a revolt, a demand for a 
change in the law, and that the pendulum may swing too B 
far the other way and allow to creep in things that at the 
moment we can exclude and keep out?" 
The aforesaid view of Stable, J. resulted in declaring the 
accused not guilty. 
C 
13. In England on July 29, 1959, the Obscene Publication 
Act, 1959 (for short, "the 1959 Act") was enacted to amend 
the law relating to publication of obscene matters, provided 
for the protection of literature and to strengthen the law D 
concerning pornography. Section 1(1) of the 1959Act reads 
as follows:-
"1. - (1) For the purposes of this Act an article shall be 
deemed to be obscene if its effect or (where the article E 
comprises two or more distinct items) the effect of any 
one of its items is, if taken as a whole, such as to tend to 
deprave and corrupt persons who are likely, having regard 
to all relevant circumstances, to read, see or hear the 
matter contained or embodied in it." 
F 
14. Section 4 of the 1959 Act stipulates that a person 
accused of obscenity shall not be convicted if it is proved that 
the publication in question is justified
for public good as it is in 
the interest of art, literature, science, etc. The said provision is G 
as follows:-
"4 ( 1) A person shall not be convicted of an offence against 
section two ofthisAct, and an order for forfeiture shall not 
be made under the foregoing section, if it is proved that H
878 
A 
B 
SUPREME COURT REPORTS 
[2015) 7 S.C.R. 
publication of the article in question is justified as being 
for the public good on the ground that it is in the interests 
of science, literature, art or learning, or of other objects of 
general concern. (2) It is hereby declared that the opinion 
of experts as to the literary, artistic, scientific or other merits 
of an article may be admitted in any proceedings under 
this Act to establish or to negative the said ground." 
15. Mr. Subramanium, learned senior counsel has referred 
to R. v. Penguin Books Ltd. 7 where the Court was dealing 
C 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. 
D 
16. In R. v. Peacock8, 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 
E - 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 
F 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 
G in United Kingdom and the approach has been more liberal 
regard being had to the developments in the last and the 
present century. It is his submission that the perception of the 
7 [1961] Crim LR 176 
H ' Unreported case, See http://www.bbc.com/news/uk-16443697
DEVI DAS RAMACHANDRA TULJAPURKAR v. 
879 
STATE OF MAHARASHTRA[DIPAK MISRA, J.] 
Victorian era or for that matter, thereafter has gone through a A 
sea-change in the last part of 20th century and in the first part 
of this century and the freedom of speech and expression has 
been put on a high pedestal in the modern democratic republic. 
It is urged by him that in the digital age, the writings and the 
visuals do no longer shock or deprave or corrupt any member B 
of the society as the persons are capable enough to accept 
what is being stated and not to be depraved or corrupted. 
Prevalent Tests in the United States of America 
18. Presently, we shall proceed to deal with the prevalent 
test in the United States of America. Learned senior counsel 
c 
for the appellant has taken us to various authorities of the U.S. 
Supreme Court and other Courts. In Chaplinsky v. New 
Hampshire9, the appellant, a member of the sect known as o 
Jehovah's Witnesses, was convicted in the Municipal Court of 
Rochester, New Hampshire for violation of Chapter 378, 
Section 2 of the Public Laws of New Hampshire. In course of 
time, the appellant raised the questions that the statute was 
invalid under the Fourteenth Amendment of the Constitution of E 
the United States as it placed an unreasonable restriction on 
freedom of speech, freedom <;>f press and freedom of worship 
and further it was vague and indefinite. Be it noted, the challenge 
was made in the highest court of the United States
that declared 
that the statutes purpose was to preserve the public peace F 
and it did not violate the constitutional framework. The Court 
observed allowing the broadest scope to the language and 
purpose of the Fourteenth Amendment, it is well understood 
that the right to free speech is not absolute at all times and 
under all circumstances. 
G 
19. In Roth v. United States10, the principal question was 
'315 U.S. 568 (1942) 
10 (1957) 354 us 4 76 
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880 
SUPREME COURT REPORTS 
[2015) 7 S.C.R. 
A whether the Federal Obscenity Statute violated the First 
Amendment of the US Constitution which guaranteed freedom 
of speech. The Court held that free speech is provided under 
the First Amendment gave no absolute protection for every 
utterance. We may profitably reproduce the observations made 
B therein:-
c 
D 
E 
"All ideas having even the slightest redeeming social 
importance - unorthodox ideas, controversial ideas, even 
ideas hateful to the prevailing 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 mirro~ed 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." 
F 
20. In Memoirs v. Masachusetts11 , while explaining the 
term 'obscenity', the Court referred to the Roth (supra) and 
stated thus:-
G 
"3. We defined obscenity in Roth in the following terms: 
"[W]hetherto 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) 
H 
11 383 U.S. 413 (1966)
DEVI DAS RAMACHANDRA TULJAPURKAR v. 
881 
STATE OF MAHARASHTRA[DIPAK MISRA, J.] 
the dominant theme of the material taken as a whole A 
appeals to a prurient interest in sex; (b) the materi81 is 
patently offensive because it anronts contemporary 
community standards relating to the description or 
representation of sexual matters; and (c) the material is 
utterly without redeeming social value." 
B 
After so stating, the U.S. Supreme Court proceeded to 
consider whether the book in question could be stated to be 
truly without social importance. Thus, there was no departure 
from the redeeming social importance test, but it also C 
introduced "contemporary community standards" test. 
21. In Marvin Millet vs. State of California12, while 
rejecting the 'redeeming social value' test as laid down in Roth 
(supra) and followed' in Memoirs (supra), the US Court D 
established three pronged test which are as follows:-
"15. The case we now review was tried on the theory that 
the California Penal Code § 311 approximately 
incorporates the three-stage Memoirs test, supra. But now E 
the Memoirs test has been abandoned as unworkable by 
its author, 13 and no Member of the Court today supports 
the Memoirs formulation. 
17. The basic guidelines for the trier of fact must be: (a) F 
whether 'the average person. applying contemporary 
community standards' would find that the work, taken as a 
whole, appeals to the prurient interest, Kais v. Wisconsin, 
supra, 408 U.S .. at 230, 92
S.Ct.. at 2246, quoting Roth v. 
United States, supra. 354 U.S .. at489, 77 S.Ct., at 1311; G 
(b) whether the work depicts or describes, in a patently 
offensive way, sexual conduct specifically defined by the 
12 413 US 15 (1973): 93 S.Ct. 2607 
13 See the dissenting opinion of Mr. Justice Brennan in Paris Adult Theatre I 
v. Slaton, 413 US 49, 73, 93 S. Ct. 2628, 2642, 37 L.Ed.2d 446 (1973) 
H
882 
A 
B 
c 
SUPREME COURT REPORTS 
[2015] 7 S.C.R. 
applicable state law; and (c) whether the work, taken as a 
whole, lacks serious literary, artistic, political, or scientific 
value. We do not adopt as a constitutional standard the 
'utterly without redeeming social value' test of Memoirs v. 
Massachusetts, 383 U.S., at419, 86 S.Ct.. at 977; that 
concept has never commanded the adherence of more 
than three Justices at one time14. See supra, at 21. If a 
state.law that regulates obscene material is thus limited, 
as written or construed, the First Amendment values 
applicable to the States through the Fourteenth 
Amendment are adequately protected by the ultimate 
power of appellante courts to conduct an independent 
review of constitutional claims when necessary." 
22. The US Supreme Court in Miller (supra) stated that 
D the application and ascertainment of 'contemporary community 
standards' would be the task of the Jury as they best represent 
the 'contemporary community standards'. The Court 
observed:-
E 
"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 
14 'A quotation from Voltaire in the fly leaf of a book will not constitutionally 
F 
redeem and otherwise obscene publication .... .' Kois v. Wisconsin, 408 U.S., 
229, 231, 92 S.Ct., 2245, 2246, 33, LEd. 2d 312 (1972). See
Memoirs v. 
Massachusetts, 383 U.S., 413, 461, 86 S.Ct., 975, 999, 16 LEd. 2d 1 (1966) 
(white, J., dissenting). We also reject, as a constitutional standard, the 
ambiguous concept of 'social importance'. See id., at 462, 86 S. Ct. at 999 
15 Although we are not presented here with the problem of regulating lewd 
G public conduct itself, the States have greater power to regulate nonverbal, 
physical conduct than to suppress depictions or descriptions of the same 
behavior. In United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 
20 LEd.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 substan-
tial governmental interest; if the governmental interest is unrelated to the 
H 
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).
;> 
DEVI DAS RAMACHANDRA TULJAPURKAR v. 
883 
STATE OF MAHARASHTRA[DIPAK MISRA, J.] 
minimum, prurient, patently offensive depiction or A 
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 B 
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 c 
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 D 
not vary from community to community, but this does not 
mean that there are, or should or can be, fixed, uniform 
national standards of precisely what appeals to the 
'prurient interest' or is 'patently offensive.' These are 
E 
essentially questions of fact, and our Nation is simply too 
big and too diverse for this Court to reasonably expect 
that such standards could be articulated for all 50 States 
in a single formulation, even assuming the prerequisite 
consensus exists. When triers of fact are asked to decide F 
whether 'the average person, applying contemporary 
community standards'
would consider certain materials 
'prurient,' it would be unrealistic to require thatthe answer 
be based on some abstract formulation. The adversary 
system, with lay jurors as the usual ultimate factfinders in G 
1• 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.' 
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A 
criminal prosecutions, has historically permitted triers of 
fact to draw on the standards of their community, guided 
always by limiting instructions on the law. To require a State 
to structure obscenity proceedings around evidence of a 
national 'community standard' would be an exercise in 
B 
futility." 
23. In Reno v. American Union of Civil Liberties17, the 
plaintiffs filed a suit challenging the constitutionality of 
provisions of Communications Decency Act, 1996 (CDA). The 
C central issue pertained to the two statutory provisions enacted 
to protect minors from 'indecent' and 'patently offensive' 
communication on the internet. The Court declared that Section 
223(a)(1) of the CDAwhich prohibited knowing transmission 
of obscene or indecent messages to any recipient under 18 
D years of age and Section 223(d)(1) of the said Act which 
prohibited knowing, sending and displaying of obscene or 
indecent messages to any recipient under 18 years of age, to 
be abridging "the freedom of speech" protected by the First 
Amendment. 
E 
24. In State of Oregon v. Earl A. Henry18, the Oregon 
Supreme Court declared the offence of obscenity to be 
unconstitutional as it was in violation of Article I, Section 8 of 
the Oregon Constitution that provides for freedom for speech 
F and expression. Article I Section 8 reads thus:-
" No law shall be passed restraining the free expression 
of opinion, or restricting the right to speak,
write, or print 
freely on any subject whatever; but every person shall be 
G 
responsible for the abuse of this right." 
25. The State Statute of Oregan i.e. ORS 167.087 that 
17 521 U.S. 844 (1997) 
H 
18 732 P.2d 9 (1987)
DEVIDAS RAMACHANDRA TULJAPURKAR v. 
885 
STATE OF MAHARASHTRA[DIPAK MISRA, J.] 
criminalized selling, exhibiting, delivery and dissemination of A 
obscene material was struck down as being violative of Article 
I Section 8. The Oregon SC held thus:-
'The indeterminacy of the crime createc by ORS 167 .087 
does not lie in the phrase "sexual conduct" that is further B 
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 ~law censoring C 
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" D 
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 E 
is not absolute on all occasions or in every circumstance. 
Comparables Test 
26. Mr. Subramanium has pointed out that in American F 
Jurisprudence the argument of "comparables" has gained 
considerable force. in cases of obscenity and freedom of 
speech. He has referred to Joan Schleefs note on United 
States v. Various
Articles of Obscene Merch19 wherein the 
learned author has shown comparables test. Explaining the G 
said concept, tne learned author projects that the gist of the 
comparables argument is that in determining whether materials 
are obscene, the trier of fact may rely on the widespread 
1• Joan Schleef, Note, United States v. various Articles of Obscene Merch, 52, 
U. Cin. L. Rev. 1131, 1132 (1983) 
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A availability of comparable materials to indicate that the 
materials are accepted by the community and hence, not 
obscene under the Miller test. The learned senior counsel has 
also referred to an article, namely, Judicial Erosion of 
Protection for Defendants in Obscenity Prosecutions? When 
B Courts Say, Literally, Enough is Enough and When f Qtemet 
Availability Does Not Mean Acceptance by Clay Clavert20 
wherein the learned author has opined thus:-
"Akin to the three-part test in Miller itself, a successful 
C 
comparables argument requires three foundational 
elements be present with the proffered evidence: similarity 
or "reasonable resemblance"21 of content; availability of 
content, and acceptance, to reasonable degree, of the 
D 
similar, available content." 
· 
The learned author in his conclusion has summed up:-
"The Miller test is more than thirty-five years old22, but 
developments and changes are now taking place in 
E 
courtrooms that affect its continuing viability. In particular, 
this article has demonstrated that the taken-as-a-whole 
requirement may be in some jeopardy, as at least two 
courts-one in 2008 and one in 2009-have allowed the 
prosecution to get away with only showing jurors selected 
F 
portions of the works in question. The other change 
addressed here is driven by technology, with the Internet 
forcing judges to consider a new twist on the traditional 
comparables argument that defense
attorneys sometimes 
use to prove contemporary community standards. Pro-
G 
prosecution rulings in this area have been handed down 
20 Journal of Sports and Entertainment Law (VoL1, Number 1), Harvard Law 
School, 2010 
21 United States v. Pinkus, 579 E2d 1174, 1175 9'" Cir. 1978). 
H 
22 Miller v. California, 413 U.S. 15 (1973)
DEVIDAS RAMACHANDRA TULJAPURKAR v. 
887 
STATE OF MAHARASHTRA[DIPAK MISRA, J.] 
in both Adams23 and Burden24• And while Judge Bucklew A 
in Little25 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 
B 
be time for the Court to revisit the Miller test and to c 
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 o 
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 
FirstAmendmentjurisprudence." 
Thus, the comparables test even if it is applied, the concept 
of contemporary comparative standards test along with other 
tests has not been abandoned. 
E 
F 
1he learned author in his article has referred to the majority 
view in Ashcroft v. Free Speech Coalition26 where Justice 
Anthony Kennedy added:-
"Under Miller, the FirstAmendment requires that redeeming 
value be judged by considering the work as a whole. G 
23 No.
08-5261, 2009 U.S. App. Lexis 16363 (4'" Cir. July 24, 2009) 
24 55 S.W. 3d 608 (Tex. Crim. App. 2001) 
25 No. 08-15964, 2010 U.S. App. Lexis 2320 (11'" Cir. Feb. 2, 2010 
26 535 U.S. 234, 248 (2002) 
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A 
Where the scene is part of the narrative, the work itself 
does not for this reason become obscene, even though 
the ~cene in isolation might be offensive." 
Mr. Subramanium has urged that the comparables test 
B has also been accepted in a different context by some High 
Courts in India. In this regard, he has been inspired by the 
ratiocination in Kavita Phumbhra v. Commissioner of 
Customs (Port), Calcutta27 by the Calcutta High Court 
wherein certain publications were imported by the petitioner 
C which were meant for sale only to adults. The High Court took 
note of the change in the society as well as similar articles and 
. works readily being available in newspapers and magazines 
and stated thus:-
D 
E 
F 
G 
"As mentioned earlier, moral standards vary from 
community and from person to person within one society 
itself. The morals of the present day in our society also do 
not represent a uniform pattern. The variations and the 
variables inside a certain society are also crucial 
considerations while judging whether an object comes 
within the mischief of obscenity. We cannot shut our eyes 
to the changes that are taking place in our society as we 
cannot be blind to the kind of advertisements, newspaper 
articles, pictures and photographs which are regularly 
being published and most certainly with a target viewers 
and readership in mind. Any closer observer will definitely 
reckon the vast changes that have taken
place around us, 
particularly in the field of audio and visual representations 
which are dinned into our ears or which arrest our ocular 
tastes. A certain shift in the moral and sexual standard is 
very easily discernable over the years and we may take 
judicial note of it. The appellant has produced many articles 
of high circulating newspapers and reputed magazines 
H 
27 (2012) 1 Cal LJ 157
DEVI DAS RAMACHANDRA TULJAPURKAR v. 
889 
STATE OF MAHARASHTRA [DIPAK MISRA, J.] 
which are freely available in the market. Judged by that, A 
these items which were produced in courts, do not appear 
to be more sexually explicit than many of those which are 
permitted to be published in leading journals and 
magazines." 
Having dealt with the 'comparables test' as is understood 
from the aforesaid decisions, we are to repeat that the 
contemporary community standards test is still in vogue with 
certain addition. 
Test laid down by the European Courts 
8 
c 
27. Now we shall proceed to deal with the perception of 
obscenity by the European Courts. In Vereinigung Bildender 
Kinstler v. Austria28, the European Court of Human Rights 0 
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 E 
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 F 
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. G 
The Association of Artists appealed to the European Court 
and the said Court thought it appropriate to come to the 
conclusion that the prohibition by the Austrian Court of the 
28 Application No. 68354/2001 .• 25'" January 2007 
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SUPREME COURT REPORTS 
[2015) 7 S.C .R. 
A painting was not acceptable. It observed that though the 
painting in its original state was somewhat outrageous but it 
was clear that the photographs were caricature and the painting 
was satirical. We have been commended, in this regard, to 
certain passages by Mr. Subramanium. They read as follows:-
8 
)r 
c 
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E 
F 
G 
H 
"33. However, it must be emphasised that the painting used 
only photos of the heads of the persons concerned, their 
eyes being hidden under black bars and their bodies being 
painted iri1an unrealistic and exaggerated manner. It was 
common ground in the understanding of the domestic 
courts at all levels that the painting obviously did not aim 
to reflect or even to suggest reality; the Government, in its 
submissions, has not alleged otherwise. The Court finds 
that such portrayal amounted to a caricature of the persons 
concerned using satirical elements. It notes that satire is 
a form of artistic expression and social commentary and, 
by its inherent features of exaggeration and distortion of 
reality, naturally aims to provoke and agitate. Accordingly, 
any interference with an artist's right to such expression 
must be examined with particular care. 
xxx 
xxx 
xxx 
35. Furthermore, the Court would stress that besides Mr 
Meischberger, the painting showed a series of 33 persons, 
some of Jiihom were very well known to the Austrian public, 
who were all presented in the way described above.
Besides .. torg Haider and the painter himself, Mother 
Teresa and the Austrian cardinal Hermann Groer were 
pictured next to Mr Meischberger. The painting further 
showed the Austrian bishop Kurt Krenn, the Austrian author 
Peter Turrini and the director of the Vienna Burgtheater, 
Claus Peymann. Mr Meisch berger, who at the time of the 
events was an ordinary Member of Parliament, was 
certainly one of the less well known amongst all the people
DEVIDAS RAMACHANDRA TULJAPURKAR v. 
891 
STATE OF MAHARASHTRA [DIPAK MISRA, J.] 
appearing on the painting and nowadays, having retired A 
from politics, is hardly remembered by the public at all." 
}i: 
28. Mr. Nariman, learned amicus curiae in this regard has 
submitted that the European Court of Human Rights' view is 
divided inasmuch ~s four of the Judges in a Court· of seven B 
have expressed the view, which is as follows:-
"26. The Court reiterates that freedom of expression, as 
secured in paragraph 1 of Article 10, constitutes oqe of 
the essential foundations of a democratic society, indeed c 
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 o 
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 E 
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. F 
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 24May1988)." 
G 
.... 
29. Learned amicus curiae has also referred to one of the 
dissenting opinions of Judge Loucaides, which is to the 
following effect:-
H
892 
A 
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SUPREME COURT REPORTS 
[2015) 7 S.C.R. 
"The majority found that the images portrayed in the 
"painting" in question were "artistic and satirical in nature". 
This assessment had a decisive effect on the judgment. 
The majority saw the "painting" as a form of criticism by 
the artist of Mr Meischberger, a politician and one of the 
persons depicted in it. It was he who brought the 
proceedings which led to the impugned measure. 
The nature, meaning and effect of any image or images 
in a painting cannot be judged on the basis of what the 
painter purported to convey. What counts is the effect of 
the visible image on the observer. Furthermore, the fact 
that an image has been produced by an artist does not 
always make the end result "artistic". Likewise, an image 
will not become "satirical" if the observer does not 
comprehend or detect any message in the form of a 
meaningful attack or criticism relating to a particular 
problem or a person's conduct. 
In my view, the picture in question cannot, by any stretch 
of the imagination, be called satirical or artistic. It showed 
a number of unrelated personalities (some political, some 
religious) in a vulgar and grotesque presentation and 
context of senseless, disgusting images of erect and 
ejaculating penises and of n;:iked figures adopting 
repulsive sexual poses, some even involving violence, with 
coloured and disproportionately large genitals or breasts. 
The figures included religious
personalities such as the 
Austrian Cardinal Hermann Groerand Mother Teresa, the 
latter portrayed with protruding bare breasts praying 
between two men-one of whom was the Cardinal-with 
erect penises ejaculating on her! Mr Meisch berger was 
shown gripping the ejaculating penis of Mr Haider while 
at the same time being touched by two other FPO 
politicians and ejaculating on Mother Teresa!
DEVI DAS RAMACHANDRA TULJAPURKAR v. 
893 
STATE OF MAHARASHTRA[DIPAK MISRA, J.] 
The reader.will of course need to look at the "painting" in A 
question in order to be able to form a view of its nature 
and effect. It is my firm belief that the images depicted in 
this product of what is, to say the least, a strange 
imagination, convey no message; the "painting" is just a 
senseless, disgusting combination of lewd images whose B 
only effect is to debase, insult and ridicule each and every 
person portrayed. Personally, I was unable to find any 
criticism or satire in this "painting". Why were Mother 
.. 
Teresa and Cardinal Hermann Groer ridiculed? Why were 
the personalities depicted naked with erect and C 
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 ev,ery act of artistic expression 0 
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 E 
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 F 
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 G 
and the means he uses ... " 
Nobody can rely on the fact that he is an artist or that a 
work is a painting in order to escape liability for insulting 
others. Like the domestic courts, I find that the "painting" H
894 
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SUPREME COURT REPORTS 
[2015] 7 S.C.R. 
in question undermined the reputation and dignity of Mr 
Meischberger in a manner for which there can be no 
legitimate justification and therefore the national authorities 
were entitled to consider that the impugned measure was 
necessary in a democratic society for the protection of 
the ~~putation or rights of others. 
The learned amicus curiae has also commended us to 
the joint dissenting opinion of Judges Spielmann and Jebens. 
What is important to be noted is as follows:-
"9. In our opinion, it was not the abstract or indeterminate 
concept of human dignity-a concept which can in itself 
be dangerous since it may be used as justification for 
hastily placing unacceptable limitations on fundamental 
o 
rights29 -
but the concrete concept of "fundamental 
29See D. Feldman, "Human Dignity as a legal value. Part I", (1999) Public Law 
pp.682-702 at p.697: "The notion of dignity can easily become a screen 
behind which paternalism or moralism are elevated above freedom in legal 
decision-making." As another author has pointed out, " [/]a notion de dignite, 
E 
indefinie, est a /'evidence manipulable a /'extreme. Grande peut-etre a/ors la 
tentation d'un ordre moral evoquee par G Lebreton (Chr. D. {1996, J., 177]). 
La confusion etablie entre moralite publique et dignite 
s'y prete particulierement a /'heure ou le politiquement correct traverse 
/'At/antique", J.-P. Theron, "Dignite et libertes. Propos sur une
jurisprudence 
contestable", in Pouvoir et liberte. Etudes offertes a Jacques Mourgeon , 
F 
(Brussels, Bruylant, 1998), p.305, concerning two decisions of October 27, 
1995 by t~,e French Conseil d'Etat, sitting as a full court, Commune de 
Morsang-sur-Orge and Ville d'Aix-en-Provence,AJDA, 1995, 942, RFDA, 1995, 
1204, submissions by Mr Frydman, and Rev. trim. dr. h., 1996, 657, 
submissions by Mr Frydman, note by Nathalie Deffains. See also P. Martens, 
"Encore la. dignite humaine: Reflexions d'un juge sur la promotion par les 
juges d'une norme suspecte", in Les droits de /'homme au seuil du troisieme 
G millenaire. Melanges en hommage a Pierre Lambert , (Brussels, Bruylant, 
2000), pp.561 et seq. On the role played by morals in the debate on dignity, 
see J. Fierens, "La dignite humaine comme conceptjuridique", (2002) Journal 
des Tribunaux, pp.577 et seq., in particular p.581. See also, from the 
perspective of the "paradigm of humanity", B. Edelman, "La dignite de la 
personne humaine, un concept nouveau", D., (1997), chron. p.185, and 
reprinted in the book by the same author, La personne en danger , (Paris, 
H PUF, 1999), 9~.505 et seq.
DEVI DAS RAMACHANDRA TULJAPURKAR v. 
STATE OF MAHARASHTRA [DIPAK MISRA, J.] 
895 
personal dignity of others"30 which was central to the A 
debate in the present case, seeing that a photograph of 
Mr Meisch berger was used in a pictorial rrumtage which 
he felt to be profoundly humiliating and degrading. 
10. It should be noted in this connection that in an order of B 
(.\1 
June 3, 1987,31 in a case about cartoons, the German 
Federal Constitutional Court relied on the concept of 
human dignity as expressly enshrined in the Basic Law 
(Article1(1)), 32 in dismissing a complaint-by a publisher. 
30 On the distinction between protection of the dignity of others and protection C 
of one's own fundamental dignity, see B. Maurer, Le principe de respect de la 
dignite humaine et la Convention europeenne des droits de l'homme , (Paris, 
La documentation fran~ise, 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. Strauot Die rechtlichen Grenzen politischer Satire in den USA und D 
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 schOpferischen 
Gestaltung, in welcher der Beschwerdefiihrer seine Eindriicke, Erfahrungen 
und Erlebnisse zu unmittelbarer Anschauung bringt. Sie geniigen damit E
den Anforderungen, die das Bundesverfassungsgericht als wesentlich fiir 
eine kiinstlerische Betiitigung alisieht ( BVerfGE 67, 213 (226) = EuGRZ 1984, 
4 7 4 [ 4 77) unter Berufung auf BVerfGE 30, 173 [ 189)). Daf3 mitihnen gleichzeitig 
eine bestimmte Meinung zum Ausdruck gebracht wird, nimmt ihnen nicht 
die Eigenschaft als Kunstwerk. Kunst und Meinungsiiu{3erung schlie{3en sich 
nicht aus; eine Meinung kann - wie es bei der sogenannten engagierten 
Kunst iiblich ist -
durchaus in der Form kiinstlerischer Betiitigung F 
kundgegeben werden (Scholz, a.a.O., Rdnr. 13). Ma{3gebliches Grundrecht 
bleibt in diesem Fall Art. 5 Abs. 3 Satz 1 GG, weil es sich um die spezielle 
Norm handelt ( BVerfGE 30, 173 (200))." It should be noted that in German 
Constitutional Law, freedom of the arts (Kunstfreiheit) is specifically pro-
tected by Art.5(3) of the Basic Law. "The exercise of this freedom is not lim-
ited, as is freedom of expression, by the provisions of general laws or the 
right to reputation, but it must be considered in conjunction with other consti-
G 
tutional rights, notably the right to the free development of personality and 
human dignity", E. Barendt, Freedom of Speech , (2nd edn, Oxford, Oxford 
University Press, 2005), p.229, citing the order of the German Constitutional 
Court of July 17, 1984 in the "street-theatre" case, ( BVerfGE 67, 213; EuGRZ, 
1984, 474) in which the court held that a moving street theatre, in which 
Franz-Josef Strauss, then a candidate
for the Chancellorship, was portrayed H 
in the same float as prominent Nazis, should be protected under freedom of 
the arts in the absence of evidence that there was a very serious injury to 
personality rights.
896 
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SUPREME COURT REPORTS 
[2015) 7 S.C.R. 
The cartoon portrayed a well-known politician as a pig 
copulating with another pig dressed in judicial robes. The 
court did not accept the publisher's argument relating to 
artistic freedom as protected by Article 5(3) of the Basic 
Law. 33 It is important to note that the court accepted that 
the cartoons could be described as a work of art; it was 
not appropriate to perform a quality control 
(Niveaukontrolle) and thus to differentiate between. 
"superior'' and "inferior'' or "good" and "bad" art. 34 However, 
it dismissed the complaint, finding that the cartoons were 
intended to deprive the politician concerned of his dignity 
by portraying him as engaging in bestial sexual conduct. 
Where there was a conflict with human dignity, artistic 
freedom (Kunstfreiheit) must always be subordinate to 
personality rights. 35 
11. One commentator, Eric Barendt, rightly approved this 
decision, stating: 
"Political satire should not be protected when it amounts 
E 
only to insulting speech directed against an individual. If, 
say, a magazine feature attributes words to a celebrity, or 
33 Article 5(3) of the German Basic Law provides: "Art and science, research 
and teaching are free .... "As already noted, freedom of the arts (Kunstfreiheit) 
is specifically protected by Art.5(3) of the Basic Law and the exercise of this 
F 
freedom is not limited as freedom of expression is. It must be considered in 
conjunction with
other constitutional rights, such as the right to human dignity. 
See E. Barendt, Freedom of Speech . (2nd edn, Oxford, Oxford University 
Press, 2005), p.229. 
3ol" Die Grundanforderungen kiinstlicher TB;tigkeit festzulegen, ist daher durch 
Alt. 5 Abs. 3 Satz 1 GG nicht verboten sondem vetfassungsrechtlich gefordelt. 
G Erlaubt und notwendig ist allerdings nur die Unterscheidung zwischen Kunst 
und Nichtkunst; eine Niveaukontrol/e, also eine Differenzierung zwischen 
'hOherer' und 'niederer', 'guter' und 'schlechter' (und deshalb nicht oder 
weniger schutzwiirdiger) Kunst, liefe demgegeniiber auf eine 
vetfassungsrechtlich unstatthafte lnhaltskontrolle hinaus (Scholz in: Maunzl 
Durig, G~ Alt. 5Abs. 3 Rdnr. 39) ... 
35 E. Barendt, Freedom of Speech, 2"• ed., Oxford, Oxford University Press, 
H 2005, p.230.
, I 
DEVI DAS RAMACHANDRA TULJAPURKAR v. 
897 
STATE OF MAHARASHTRA[DIPAK MISRA, J.) 
uses a computerized image to portray her naked, it should A 
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 B 
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 
orn~ 
C 
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." 
o 
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 E 
morals; that the limits of artistic freedom are exceeded when 
the image of a person (renowned or otherwise) is substantially 
deformed by wholly imaginary elements - without it being 
evident from the work (in the present case from the poem) that 
it was aimed at satire or some other form of exaggeration; 
F 
that the freedom of artistic creation cannot be claimed where 
the work in question constitutes a debasement and
debunking 
of a particular individual's public standing; that the European 
law recognises that whosoever exercises freedom of 
36 Op. cit., p.230. The author adds in a footnote the following: "For an Italian 
case on the point, see the decision of the Corte di Cassazione, Penal Section, 
of 20 Oct. 1998, reported in (1999) II Diritto dell'lnformazione e dell' Informatica 
369, rejecting appeal of author of a newspaper article which included a cartoon 
implying that a woman senator fellated Berlusconi. Satire is not protected if 
G 
does not respect personality rights." 
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A expression undertakes in addition duties and responsibilities 
and their scope depends on the situation and the means used; 
that it is only where personal interests of an individual are said 
to be affected that the artistic and satirical nature of the portrayal 
of the person in the work would outweigh mere personal 
B interest; that the nature, meaning and effect of any image (in 
say in a painting or a poem) cannot and must not be judged on 
the basis of what the artist (or author) purports to convey; what 
counts..is the effect of the image on the observer; the fact that 
an image has been produced by an artist does not always 
C make the end-result artistic; likewise an image does not 
become a satirical if the observer does not comprehend or 
detect any message in the work in question; that where the 
images depicted in the work product convey no message but 
0 "only a disgusting combination of lewd acts and words whose 
only effect is to debase, insult and ridicule the person 
portrayed" - this is neither criticism nor satire; and that the 
artistic freedom is not unlimited and where rights and reputation 
of others are involved; where there is conflict with human dignity 
E artistic freedom must always be subordinated to personality 
rights. Thus, the submission of Mr. Nariman is that freedom of 
speech and expression is not absolute and any work of art 
cannot derail the prohibition in law. 
F 
31. Mr. Subramanium has
referred to the judgment in 
Handyside v. United Kingdom37, wherein it has been held 
thus:-
G 
"The Court's supervisory functions oblige it to pay the 
utmost attention to the principles characterising a 
"democratic society". Freedom of expression constitutes 
one of the essential foundations of such a society, one of 
the basic conditions for its progress and for the 
development of every man. Subject to paragraph 2 of 
H 
37 Application No. 5493/72, 7'" December 1976, Series A No. 24
DEVI DAS RAMACHANDRA TULJAPURKAR v. 
,899 
STATE OF MAHARASHTRA [DIPAK MISRA, J.] 
Article 10 (art. 10-2), it is applicable not only to A 
"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 
sector of the population. Such are the demands of that 
pluralism, tolerance and broadmindedness without which B 
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. 
c 
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, D 
as in this case, whether "restri_ctions" or "penalties" were 
conducive to the "protection of morals" which made them 
"necessary" in a "democratic society"." 
Mr. Subramanium, learnea"'senior counsel has E 
emphasised that the freedom of expression as protected by 
Article 1 O 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 referred 
us to Editorial Board of Pravoye Delo and Shtekel v. 
F 
Ukraine38, wherein the European Court, for the first time,
acknowledged that Article 10 of ECHR has to be interpreted 
as imposing on States a positive obligation to create an 
appropriate regulatory framework to ensure effective 
protection of journalists' freedom of expression on the Internet. G 
He has also drawn our attention to Akda v. Turkey39, wherein 
the European Court has held that ban on translation of classic 
"Application No. 33014/05, 5 May 2011 
,. Application No. 41056/04, 16 February, 2010 
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A work of literature that contained graphic description of sex, 
vfolated the right to freedom of expression. 
32. Mr. Nariman, learned senior counsel and amicus, has 
commended us to Wingrove v. United Kingdom4° to show 
B that the interpretation placed by the European Court of Human 
Rights on Article 10 that deals with freedom of expression. In 
the said case, a video movie characterising Saint Teresa of 
Avila in profane ways was held to be properly banried and not 
a violation of Article 10 of the European Convention on Human 
C Rights. The said case originated from an application lodged 
with the European Commission under Article 25 by a British 
national Nigel Wingrove on 18111 June, 1990. The object of the 
request and of the Application was to obtain a decision as to 
whether the facts of the case disclosed a breach by the 
D respondent State (United Kingdom) of its obligation under 
Article 10 of the ECHR. Wingrove wrote the script for a video 
and directed making of a video work entitled 'visions of ecstasy' 
- the idea for the film was derived from the life and writings of 
St. Teresa of Avila, the sixteenth century Carmelite, nun and 
E founder of many convents, who experienced powerful ecstatic 
visions of Jesus Christ. In paragraphs 9 and 10 of the report it 
is stated:-
F 
G 
"The action of the film centres upon a youthful actress 
dressed as a nun and intended to represent St. Teresa. It 
begins with the nun,
dressed loosely in a black habit, 
stabbing her own hand with a large nail and spreading 
her blood over her naked breasts and clothing. In her 
writhing, she spills a chalice of communion wine and 
proceeds to lick it up from the ground. She loses 
~onsciousness. This sequence takes up approximately 
half of the running time of the video. The second part shows 
H •0 1997 24 ECHRR (1)
DEVI DAS RAMACHANDRA TULJAPURKAR v. 
901 , 
STAT~ OF MAHARASHTRA [DIPAK MISRA, J.] 
St. Teresa dressed in a white habit standing with her arms A 
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 B 
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 C 
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 0 
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. E 
Finally, St Teresa runs her hand d6wn to the fixed hand of 
Christ and entwines his fingers in hers. As she d9es so, 
the fingers of Christ seem to curl upwards to hold with 
hers, whereupon the video ends. 
F 
Apart from the cast list which appears on
the screen for a 
few seconds, the viewer has no means to knowing from 
the film itself that the person dressed as a nun in the video 
is intended to be St Teresa or that the other woman who 
appears is intended to be her psyche. No attempt is made G 
in the video to explain its historical background." 
Thereafter dealing with the case, the European Court of 
Human Rights held:-
"61. Visions of Ecstasy portrays, inter alia, a female H
902 
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G 
H 
SUPREME COURT REPORTS 
[2015] 7 S.C.R. 
character astride the recumbent body of the crucified 
Christ engaged in an act of an overtly sexual nature. The 
national authorities, using powers that are not themselves 
incompatible with the Convention, considered that the 
manner in which such imagery was treated placed the 
focus of the work "less on the erotic feelings of the' 
character than on those of the audience, which is the 
primary function of pornography". They further held that 
since no attempt was made in the film to explore the 
meaning of the imagery beyond engaging the viewer in a 
"voyeuristic erotic experience", the public distribution of 
such a video could outrage and insult the feelings of 
believing Christians and constitute the criminal offence of 
blasphemy. This view was reached by both the Board of 
Film Classification and the Video Appeals Committee 
following a careful consideration of the arguments in 
defence of his work presented by the applicant in the 
. course of two sets of proceedings. Moreover, it was open 
to the applicant to challenge the decision of the Appeals 
Committee in proceedings for judicial review. Bearing in 
mind the safeguard of the high threshold of profanation 
embodied in the definition of the offence of blasphemy 
under English law as well as the State's margin of 
appreciation in this area, the reasons given to justify the 
measures taken can be considered as both relevant and 
sufficient for
the purpose of Article 10 para 2 (art. 10-2). 
Furthermore, having viewed the film for itself, the Court is 
satisfied that the decisions by the national authorities 
cannot be said to be arbitrary or excessive." 
Mr. Nariman, the friend of the Court has also laid immense 
emphasis on the concurring opinion of Judge Pettit. The 
learned Judge though voted with the majority, observed:-
" ... I consider that the same decision could have been
DEVI DAS RAMACHANDRA TULJAPURKAR v. 
903 
STATE OF MAHARASHTRA[DIPAK MISRA, J.] 
reached under paragraph 2 of Article 10 (art. 10-2) on A 
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 B 
in terms both of religious beliefs and of philosophical 
convictions. It is only in paragraph 53 of the judgmentthat 
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 C 
(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 0 
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 histt-ry of mankind 
(such as Moses, Dante or Tolstoy) in a portrayal which 
seriously offends the deeply.bE?ld feelings of those who E 
respect their works or thought may, in some cases, justify 
judicial supervision so that the public can be alerted through 
the reporting of court decisions." 
Judge Pettit further proceeded to state:-
"The majority of the Video
Appeals Committee took the 
view that the imagery led not to a religious perception, but 
F 
to a perverse one, the ecstasy being furthermore of a 
perverse kind. That analysis was in conformity with the 
approach of the House of Lords, which moreover did not G 
discuss the author's intention with respect to the moral 
element of the offence. The Board's Director said that it 
would have taken just the same stance in respect of a film 
that was contemptuous of Mohammed or Buddha.-The H
904 
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SUPREME COURT REPORTS 
[2015] 7 S.C.R. 
decision not to grant a certificate might possibly have been 
justifiable and justified if, instead of St Teresa's ecstasies, 
what had been in issue had been a video showing, for 
example, the anti-clerical Voltaire having sexual relations 
with some prince or king. In such a case, the decision of 
the European Court might well have been similar to that in 
the Wingrove case. The rights of other under Article 10 
para 2 (art. 10-2) cannot be restricted solely to the 
protection of the rights of others in a single category of 
religious believers or philosophers, or a majority of them. 
The Court was quite right to base its decision on the 
protection of the rights of others pursuant to Article 10 (art. 
10), but to my mind it could have done so on broader 
grounds, inspired to a greater extent by the concern to 
protect the context of religious beliefs "or any other", as is 
rightly pointed out in paragraph 53 of the judgment. In the 
difficult balancing exercise that has to be carried out in 
these situations where religious and philosophical 
sensibilities are confronted by freedom of expression, it 
is important that the inspiration provided by the European 
Convention and its interpretation should be based both 
on pluralism and a sense of values." 
33. Learned Amicus, to cement the proponement of 
F absence of total limitlessness of freedom of speech and 
expression and to refute the principle of absoluteness
has also 
commended us to the authority in Muller and Others v. 
Switzerland41• In the said case, the question was whether 
paintings at an exhibition depicting in a crude manner, sexual 
G relations particularly between men and animals to which 
general public had free access as the organisers had not 
imposed any admission charge or any age limit; the paintings 
being displayed to the public at large. The European Court of 
Human Rights stated:-
H ., 13 EHRR 212
DEVI DAS RAMACHANDRA TULJAPURKAR v. 
905 · 
STATE OF MAHARASHTRA [DIPAK MISRA, J.] 
"The Court recognises, as did the Swiss courts, that A 
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 sexualitv in some of its crudest forms. were B 
"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 1 O part 2 (art. 10-2), the Swiss courts were 
entitled to consider it "necessary" for the protection of C 
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 D 
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 that the applicants' conviction in Fribourg E 
did not, in all the circumstances of the case, respond to a 
genuine social need, as was affirmed.in substance by all 
three of the Swiss courts which dealt with the case. 
In conclusion, the disputed measure did not infringe Article F 
10 (art. 10) of the Convention."
(emphasis supplied] 
Perception and Perspective of this Court 
G 
34. Keeping in view the developments in other countries 
pertaining to the percep~ion as regards "obscenity","vulgarity" 
and other aspects, we are obliged to see how this Court has 
understood the provision, that is, Section 292 IPC, and laid 
H
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SURREMECOURTREPORTS 
[2015] 7 S.C.R. 
A down the law in the context of freedom of speech and 
expression bearing in mind the freedom of a writer, poet, painter 
or sculptor or broadly put, freedom of an artist. Section 292 of 
the IPC presently reads thus:-
8 
"292. Sale, etc., of obscene books, etc.-
ill For the purposes of sub-section (2), a book, pamphlet, 
paper, writing, drawing, painting, representation, figure or 
any other object, shall be deemed to be obscene if it is 
c 
lascivious or appeals to the pruri-ent interest or if its effect, 
or (where it comprises two or more distinct items) the 
effect of any one of its items, is, if taken as a whole, such 
as to tend to deprave and corrupt person, who are likely, 
having regard to all relevant circumstances, to read, see 
o 
or hear the matter contained or embodied in it.] 
@.Whoever-
!fil sells, lets to hire, distributes, publicly exhibits or in any 
manner puts into circulation, or for purposes of sale, hire, 
E distribution, public exhibition or circulation, makes, produces 
or has in his possession any obscene book, pamphlet, paper, 
drawing.painting, representation or figure or any other obscene 
object whatsoever, or 
F 
.(!;ll imports, exports or conveys any obscene object for 
any of the purposes aforesaid, or knowing or having reason to 
believe that such object will be sold, let to hire, distributed or 
publicly exhibited or in any manner put into circulation, or 
G 
.(91 takes part in or receives
profits from any business in 
the course of which he knows or has reason to believe that 
any such obscene objects are for any of the purposes aforesaid I 
made, produced, purchased, kept, imported, exported, 
conveyed, publicly exhibited or in any manner put into 
.... 
H circulation, or
DEVIDAS RAMACHANDRA TULJAPURKAR v. 
907 
STATE OF MAHARASHTRA[DIPAK MISRA, J.] 
@advertises or makes known by any means whatsoever A 
that any person is engaged 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 
.{fil offers·or attempts to do any act which is an offence B 
under this section, shall be punished [on first conviction with 
im-prisonment 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 C 
extend to five years, and also with fine which may extend to 
five thousand rupees]. 
Exception -This section does not extend to-
D 
.(fil any book, pamphlet, paper, writing, drawing, painting, 
repre-sentation or figure-
- (i) 
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, E 
representation or figure is in the interest of science, 
literature, art or learning or other objects1of general 
concern, or 
(ii) which is kept or used bona fide for religious F 
purposes; 
.{Q} any representation sculptured, engraved, painted or 
otherwise represented on or in-
.rct 
G 
(i) 
any ancient monument within the meaning of the 
Ancient Monu-ments and Archaeological Sites and 
Remains Act, 1958
(24 of 1958), or 
(ii) any temple, or on any car used for the conveyance H 
of idols, or kept or used for any religious purpose."
908 
SUPREME COURT REPORTS 
[2015] 7 S.C.R. 
A 
35. The said Sectiori. prior to the present incarnation, read 
B 
c 
D 
E 
F 
as follows:-
"292. Whoever-
(a) sells, lets to hire, distributes, publicly exhibits or in any 
manner puts into circulation, or for purposes of sale, hire, 
distribution, public exhibition or circulation, makes, 
produces or has in his possession any obscene book, 
pamphlet, paper, drawing, painting, representation or 
figure or any other obscene object whatsoever, or 
(b) imports, exports or conveys any obscene object for 
any of the purposes aforesaid, or knowing or having reason 
to believe that such object will be sold, let to hire, 
distributed or publicly exhibited or in any manner put into 
circulation, or 
(c) takes part in or receives profits from any business in 
the course of which he knows or has reason to believe 
that any such obscene objects are for any of the purposes 
aforesaid, made, produced, purchased, kept, imported, 
exported, conveyed, publicly exhibited or in any manner 
put intQ circulation, or 
( d) advertises or makes known by any means whatsoever 
that any person is engaged 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 
G 
(e) offers or attempts to do any act which is an offence 
under this section, shall be punished with im-prisonment 
of either description for a term which may extend to three 
months, or with fine,
or with both. 
H 
Exception.- This section does not extend to any book,
.,, -
DEVI DAS RAMACHANDRA TULJAPURKAR v. 
909 
STATE OF MAHARASHTRA [DIPAK MISRA, J.] 
pamphle_t, paper, writing, drawing or painting kept or used A 
bona fide for religious purposes or any representation 
sculptured. Engraved, painted or otherwise represented 
on or in any temple, or on any car used for the conveyance 
or idols, or kept or used for any religious purpose.)" 
.-
36. For the first time this Court dealt with the effect and 
. impact of the provision in the backdrop of the challenge to the 
constitutional validity of the same, in Ranjit D. Udeshi v. State 
B 
of Maharashtra42. Before the Constituti6n Bench a contention 
was canvassed with regard to the constitutional validity of C 
Section 292 IPC on the ground it imposes impermissible 
restriction on the freedom of speech 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:-
D 
"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 E 
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 Co~vention for the 
suppression of or traffic in obscene pub_lications signed 
by l_ndia in 1923 at Geneva. It does not
go beyond F 
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 G 
that it is an important interest of society to suppress 
obscenity. There is, of course, some difference between 
obscenity and pornography in that the la~ter denotes 
42 (1965) 1 SCR 65 
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SUPREME COURT REPORTS 
[2015) 7 S.C.R. 
writings, pictures etc. intended to arouse sexual desire 
while the former may include writings etc. not intended to 
do so but which have that tendency. Both, of course, offend 
against public decency and morals but pornography is 
obscenity in a more aggravated form. Mr Garg seeks to 
limit action to cases of intentional lewdness which he 
describes as dirt for dirt's sake and which has now 
received the appellation of hard-core pornography by 
which tetm is meant libidinous writings of high erotic effect 
unredeemed by anything literary or artistic and intended · 
to arouse sexual feelings. 
8. Speaking in terms of the Constitution it can hardly be 
claimed that obscenity which is offensive to modesty or 
decency is within the constitutional protection given to free 
speech or expression, because the article dealing with 
the right itself excludes it. That cherished right on which 
our democracy rests is meant for the expression of free 
opinions to change political or social conditions or for the 
advancement of human knowledge. This freedom is 
subject to reasonable restrictions which may be thought 
necessary in the interest of the general public and one 
such is the interest of public decency and morality. Section 
' 
292 of the Indian Penal Code manifestly embodies such 
a restriction because the law against obscenity, of course. 
correctly understood and applied. seeks no more than to 
promote public
decency and moralitv. The word obscenity 
is really not vague because it is a word which is well 
understood even if persons differ in their attitude to what 
is obscene and what is not." 
[Emphasis added] 
And again, 
"9 ............ It is always a question of degree or as the 
H 
lawyers are accustomed to say, of where the line is to be
DEVI DAS RAMACHANDRA TULJAPURKAR v. 
911 
STATE OF MAHARASHTRA[DIPAK MISRA, J.) 
drawn. It is, however, clear that obscenity by i!self has A 
. extremely poor value in the propagation of ideas, opinions 
and information of public interest or profit. When there is 
propagation of ideas, opinions and photographs collected 
in book form without the medical text would may become 
different because then the interest of society may tilt the B 
scales in favour of free speech and expression. It is thus 
that books on medical science with intimate illustrations 
and photographs, though in a sense immod~t. are not 
considered to be obscene but the same illustrations and 
photographs collected in book form without the medical C 
text would certainly be considered to be obscene. Section 
292 of the Indian Penal Code deals with obscenity in this 
sense and cannot thus be said to be invalid in view of the 
second clause of Article 19." 
D 
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:-
E 
"The Confession Unmasked, showing the d~pravity of 
Romish priesthood, the enquity of the confesskmal, and 
the questions, put to females in confession."~·· 
11 
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 
F 
G 
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 H
912 
SUPREME COURT REPORTS 
[2015) 7 S.C.R. 
A 
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 years, thoughts of a most impure and 
libidinous character." 
B 
38. After reproducing the said paragraph, the Court 
observed that the said test has been uniformly applied in India. 
Thereafter, the Court posed a question whether the said test 
of obscenity squares with the freedom of speech and 
expression guaranteed under the Constitution or it needs to 
C be modified and if so, in what respects. The Court opined that 
the first of the said questions invite the Court to reach a decision 
on a constitutional issue of a most far-reaching character and 
it must be aware that it may not lean too far away from the 
guaranteed freedom. In that context, the Court observed that 
D the laying down of the true test is not rendered any easier 
because art has such varied facets and has such individualistic 
appeals that in the same object the insensitive sees only 
obscenity because his attention is arrested, not the general or 
artistic appeal or message, which he cannot comprehend. But 
E by what he can see, and the intellectual sees beauty and art 
but nothing gross. The Indian Penal Code does not define the 
word "obscene" and this delicate task of how to distinguish 
between that which is artistic and that which is obscene has to 
F be performed by courts. The test to be evolved must obviously 
be
of a general character but it must admit of a just application 
from case to case by indicating a line of demarcation not 
necessarily sharp but sufficiently distinct to distinguish between 
that which is obscene and that which is not. Thereafterthe court 
G observed:-
H 
"None has so far attempted a definition of obscenity 
because the meaning can be laid bare without attempting 
a definition by describing what must be looked for. It may, 
however, be said at once that treating with sex and nudity
DEVI DAS RAMACHANDRA TULJAPURKAR v. 
913 
STATE OF MAHARASHTRA[DIPAK MISRA, J.] 
in art and literature cannot be regarded as evidence of A 
obscenity without something more. It is not ne:::essary that 
the angels and saints of Michael Angelo should be made 
to wear breeches before they can be viewed. If the rigid 
test of treating with sex as the minimum ingredient were 
accepted hardly any writer of fiction today would escape B 
the fate Lawrence had in his days. Half the book-shop 
would close and the other half would deal in nothing but 
moral and religious books which Lord Campbell boasted 
was the effect of his Act." 
c 
39. After so stating, the Court referred to certain authorities 
of the United States of America 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 D 
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 E 
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 F 
to one fact.
Today our National and Regional Languages 
a1e 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 G 
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 law 
and precedent and this subject and so considered we can H
914 
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[2015] 7 S.C.R. 
only say that where obscenity and art are mixed, art must 
be so preponderating as to throw the obscenity into a 
shadow or the obscenity so trivial and insignificant that it 
can have no effect and may be overlooked. In other words, 
treating with sex in a manner offensive to public decency 
and morality (and these are the words of our Fundamental 
Law), judged of by our National standards and considered 
likely to pander to lascivious. prurient or sexually 
precocious minds, must determine the result. We need 
not attempt to bowdlerize all literature and thus rob speech 
and expression of freedom. A balance should be 
maintained between freedom of speech and expression 
and public decency and morality but when the latter is 
substantially transgressed the former must give way." 
[Emphasis supplied] 
Eventually, the Court opined:-
"22 ....... In our opinion, the test to adopt in our country 
regard being had to our community mores) is that 
E 
obscenity without a preponderating social purpose or 
profit cannot have the constitutional protection of free 
speech and expression and obscenity is treating with sex 
in a manner appealing to the carnal side of human nature, 
or having that tendency. Such a treating with sex is 
· F 
offensive to modesty and decency but the extent of such 
appeal in a particular book etc. are matters for 
consideration in each individual case." 
40. Thereafter, the court proceeded to scan the
various 
G passages of the book, namely, Lady Chatterley's Lover and 
ruled that:-
"29 ........ When everything said in its favour we find that in 
treating with sex the impugned portions viewed separately 
H 
and also in the setting of the whole book pass the
DEVIDAS RAMACHANDRA TULJAPURKAR v. 
915 
STATE OF MAHARASHTRA [DIPAK MISRA, J.] 
permissible limits judged of from our community standards A 
and as there is no social gain to us which can be said to 
preponderate, we must hold the book to satisfy the test 
we have indicate above." 
41. In Chandrakant Ka/yandas Kakodkar v. State of B 
Maharashtra43, the appellant was the author of a short story. 
He faced a criminal charge under Section 292 IPC along with 
the printer, publisher and the selling agent. The three-Judge 
Bench referred to the Constitution Bench in Ranjit D. Udeshi 
(supra) and thereafter the Court referred to the plots and sub-
C 
plots narrated in the story, adverted to the emotional thread 
running in the story and eventually came to hold that none of 
the passages was offending Section 292 IPC and accordingly 
acquitted the accused persons. In that context the Court 
observed:-
D 
"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 E 
is considered h1 both countries as not harmful to public 
order and morals may be obscene in our country. But to 
insist that the standard shouldalways 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 F 
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 G 
litterateurs and 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 
., (1969) 2 sec 687 
H
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SUPREME COURT REPORTS 
(2015] 7 S.C.R. 
regard to the standards of contemporary society in which 
it is read. The standards of contemporary society in India 
are also fast changing. The adults and adolescents have 
available to them a large number of classics, novels, 
stories and pieces of literature which have a content of 
sex, love and romance. As observed in Udeshi (supra) if 
a reference to sex by itself is considered obscene, no 
books can be sold except those which are purely religious. 
In the field of art and cinema also the adolescent is shown 
situations which even a quarter of a century ago would be 
considered derogatory to public morality, but having 
regard to changed conditions are more taken for granted 
without in anyway tending to debase or debauch the mind. 
What we have to see is that whether a class, not an 
isolated case, into whose hands the book, article or story 
falls suffer in their moral outlook or become depraved by 
reading it or might have impure and lecherous thoughts 
aroused in their minds. The charge of obscenity must, 
therefore, be judged from this aspect." 
From the aforesaid passage it is clear that the court 
considered three facets, namely, "morals of contemporary 
society", the fast changing scenario in our country and the 
impact of the book on a class of readers but not an individual. 
F 
42. In K.A. Abbas v. Union of India and another44, the 
petitioner sought a declaration against the Union of India and 
the
Chairman, Central Board of Film Censors that the 
provisions of Part II of the Cinematograph Act, 1952 together 
with the rules prescribed by the Central Government, February 
G 6, 1960, in the purported exercise of the powers under Section 
5-8 of the Act are unconstitutional and void and consequently 
sought a writ of Mandamus or any other appropriate writ, 
direction or order for quashing the direction contained in letter 
H .. (1970) 2 sec 1so
DEVIDAS RAMACHANDRA TULJAPURKAR v. 
917 
STATE OF MAHARASHTRA [DIPAK MISRA, J.] 
dated July 3, 1969, for deletion of certain shots from a A 
documentary film titled 'A Tale of Four Cities' produced by him 
for unrestricted public exhibition. The said certificate was 
declined and the petitioner was issued a letter that the film 
was suited for exhibition restricted to adults. The petitioner 
was given a chance to give explanation, but he did not change B 
his decision. On an appeal, the Central Government opined 
that it could be granted 'U' certificate subject to certain cuts 
being made in the film. At that juncture, the petitioner preferred 
a petition before this Court. The Court viewed the film and still 
the stand of the Central Government was same. The petitioner C 
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. 0 
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 E 
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 F 
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 appeals to 
prurient interests according to the contemporary standards 
of the average man; 
G 
(b) that the motion picture is not saved by any redeeming H
918 
SUPREME COURT REPORTS 
[2015] 7 S.C.R. 
A 
social value; and 
(c) that it is patently offensive because it is opposed to 
contemporary standards." 
8 
The court observed that Hicklin test in Regina (supra) was 
not accepted in the said case. The Court also referred to 
Freadman v. Maryland45, which considered procedural 
safeguards and thereafter the judgment in Teital Film Corp. 
v. Cusak46 and observed that fight against censorship was 
c finally lost in Times Film Corporation v. Chicago47 , but only 
by the slender majority. Thereafter, the Court referred to later 
decisions and observed:-
D 
E 
"33. To summarize. The attitude of the Supreme Court of 
the United States is not as uniform as one could wish. It 
may be taken as settled that motion picture is considered 
a form of expression and entitled to protection of First 
Amendment. The view that it is only commercial and 
business and, therefore, not entitled to the protection as 
was said in Mutual Film Corpn48• is not now accepted." 
43. The Court further referred to the majority judgments in 
many cases and observed that judges in America have tried 
to read the words 'reasonable restrictions' into the First 
F Amendment and thus to make the rights it grants subject to 
reasonable regulation. The Court further observed that the 
American Courts in their majority opinions, therefore, clearly 
support a case for censorship. Proceeding further, the Court 
opined that the task of the censor is extremely delicate
and its 
G duties cannot be the subject of an exhaustive set of commands 
45 (1965) 380 us 51 
.. (1968) 390 us 149 
47 (1961) 365 us 43 
H ., (1915) 236 us 230
DEVIDAS RAMACHANDRA TULJAPURKAR v. 
919 
STATE OF MAHARASHTRA[DIPAK MISRA, J.] 
established by prior ratiocination. In that context, the Court A 
ruled:-
"The standards that we set for our censors must make a 
substantial allowance in favour of freedom thus leaving a 
vast area for creative art to interpret life and society with B 
some of its foibles along with what is good. We must not 
look upon such human relationships as banned in to and 
for ever from human thought and must give scope for talent 
to put them before society. The requirements of art and 
literature include within themselves a comprehensive view C 
of s0cial life and not only in its ideal form arid the line is to 
be drawn where the average moral man begins to feel 
embarrassed or disgusted at a naked portrayal of life 
without the redeeming touch of art or genius or social 
value. If the depraved begins to see in these things more · D 
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 E 
and obscenity are not always synorymous 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 F 
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 G 
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 H
920 
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SUPREME COURT REPORTS 
[2015] 7 S.C.R. 
one goes by the letter of the directions the film cannot be 
shown. Similarly, scenes depicting leprosy as a theme in 
a story or in a documentary are not necessarily outside 
the protection. If that were so Verrier Elwyn's Phulmat of 
the Hills or the same episode in Henryson's Testament of 
Cressaid (from where Verrier Elwyn borrowed the idea) 
would never see the light of the day. Again carnage and 
bloodshed may have historical value and the depiction of 
such scenes as the Sack of Delhi by Nadirshah may be 
permissible, if handled delicately and as part of an artistic 
portrayal of the confrontation with Mohammad Shah 
Rangila. If Nadir Shah made golgothas of skulls, must we 
leave them out of the story because people must be made 
to view a historical theme without true history? Rape in all 
its nakedness may be objectionable but Voltaire's 
Candide would be meaningless without Cunegonde's 
episode with the soldier and the story of Lucrece could 
never be depicted on the screen." 
[Emphasis supplied] 
44. The aforesaid passage, we must candidly state, is a 
lucid expression of artistic freedom regard being had to 
thematic context and the manner of delicate and subtle 
delineation in contradistinction to gross, motivated and non-
F artistic handling. It is also graphically clear that the court has 
opined that sex and obscenity are not always synonymous and 
that is why the court has given example of Oedipus
which is 
known in the field of psychology as Oedipus complex. Be it 
noted, in the field of literature there are writing which pertain, 
G as psychology would christen them as 'Electra' complex and 
'Lolita' complex. As is manifest from the judgment, the Court 
has taken pains to refer to certain situations from certain novels 
and the ideas from the plays and also emphasised on delicate 
depiction of a situation in a theme-oriented story. The Court 
H has made a distinction between a historical theme without true
DEVI DAS RAMACHANDRA TULJAPURKAR v. 
921 
STATE OF MAHARASHTRA [DIPAK MISRA, J.] 
history and portrayal of an artistic scene. Be it noted, in the A 
said case, the Court opined thatthe test in Ranjit D. Udeshi 
(supra) would apply even to film censorship. 
45. In Raj Kapoor and Others v. State and Others"9, 
the High Court had refused the exercise of inherent power under B 
Section 482 of the Criminal Procedure Code because the High 
Court felt the subject fell under its revisional power under 
Section 397 of the CrPC. The prosecution was launched by 
the president of a youth organisation devoted to defending 
Indian cultural standards, inter alia, against the unceasing C 
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 D 
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 E 
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 actively G 
participates in the administration of justice to aesthetics. 
9. The world's greatest paintings, sculptures, songs and 
•9 (1980) 1 sec 43 
H
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SUPREME COURT REPORTS 
(2015] 7 S.C.R. 
A 
dances, India's lustrous heritage, the Konaraks and 
Khajurahos, lofty epics, luscious in patches, may be 
asphyxiated by law, if prudes and prigs and State moralists 
prescribe paradigms and proscribe heterodoxies. It is 
plain that the procedural issue is important and the 
B 
substantive issue portentous." 
46. It is worthy to note that a contention was raised that 
once a certificate under the Cinematograph Act is granted, 
the homage to the law of morals is paid and the further 
C challenge under the Penal Code is barred. Dealing with the 
D 
E 
F 
G 
same, the Court opined that:-
"Jurisprudentially speaking, law, in the sense of command 
to do or not to do, must be a reflection of the community's 
cultural norms, not the State's regimentation of aesthetic 
expression or artistic creation. Here we will realise the 
superior jurisprudential value of dharma. which is a 
beautiful blend of the sustaining sense of morality, right 
conduct, society's enlightened consensus and the binding 
force of norms so woven as against positive law in the 
Austinian sense, with an awesome halo and barren 
autonomy around the legislated text is fruitful area for 
creative exploration. But morals made to measure by 
statute and court is risky operation with portentous impact 
on fundamental freedoms, and in our constitutional order 
the root principle is liberty of expression and its reasonable 
control with the limits of"public order,
decency or morality". 
Here, social dynamics guides legal dynamics in the 
province of "policing" art forms." 
Krishna Iyer, J. while stating thus opined that once a 
certificate under the Cinematograph Act is issued the Penal 
Code, pro tanto, will not hang limp. The court examined the 
film and dealt with the issue whether its public display, in the 
H given time and clime, would breach the public morals or
DEVIDAS RAMACHANDRA TULJAPURKAR v. 
923 
STATE OF MAHARASHTRA [DIPAK MISRA, J.] 
deprave basic decency as to offend the penal provisions. In A 
that context, the learned Judge observed thus:-
" 
"15 ...... Statutory expressions are not petrified by time but 
must be,Updated by changing ethos even as popular ethics 
are not absolutes but abide and evolve as community B 
consciousness enlivens and escalates. Surely, the satwa 
of society must rise progressively if mankind is to move 
towards its timeless destiny and this can be guaranteed 
only if the ultimate value-vision is rooted in the unchanging 
basics, Truth-Goodness- Beauty, Satyam, Sivam, C 
Sundaram. The relation between Reality ana Relativity 
must haunt the 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, D 
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 E 
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 
F 
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 G 
a trial for the offence under Sections 292 and 293 of the Indian 
Penal Code, a certificate granted under Section 6 of the 
Cinematograph Act by the Board of Censors does not provide 
an irrebuttable defence to accused who have been granted 
such a certificate, but it is certainly a relevant fact of some H
924 
SUPREME COURT REPORTS 
[2015) 7.S.C.R. 
A weight to be taken into consideration by the criminal court in 
deciding whether the offence charged is established. 
4 7. Thus, from the view expressed by Krishna Iyer, J., it is 
vivid that the Court laid emphasis on social dynamics and the 
B constitutional order which postulates the principle of liberty of 
expression and the limits of 'public order', 'decency' and 
'morality'. The learned Judge has discarded the extremes and 
excesses for they boomerang and did not appreciate the 
observation of Oscar Wilde which pertains to the statement 
C "moderation is a fatal thing". 
48. In Samresh Bose &Anr. v. Amal Mitra &Anr.50, the 
appellants were the author and the publisher of a novel. The 
appellant No.1 was the author of a novel which under the 
o caption "Prajapati" that came to be published "Sarodiya Desh". 
The application was filed before the Chief Presidency 
Magistrate, Calcutta complaining that the said novel "Prajapati" 
was obscene and both the accused persons had sold, 
distributed, printed and exhibited the same which has a 
E tendency to corrupt the morals of those in whose hands the 
said "Sarodiya Desh" may fall, and accordingly they faced trial 
under Section 292, IPC and eventually stood convicted. The 
accused persons assailed their conviction in an appeal before 
the High Court and the complainant filed a criminal revision 
F seeking enhancement of sentence. The High Court by 
common judgment dismissed the
appeal and affirmed the 
sentence. 'A question arose before this Court whether the 
accused persons had committed the offence under Section 
292, IPC and the Court observed the said question would be 
G depending on the finding, whether the novel is obscene or not. 
A two-Judge Bench scanned the evidence on record in great 
detail, for it was essential for the Court to evaluate the evidence 
on record inasmuch as some of the witnesses had compared 
H "'(1985) 4 sec 289
DEVIDAS RAMACHANDRA TULJAPURKAR v. 
925 
STATE OF MAHARASHTRA[DIPAK MISRA, J.] 
the plot in the novel to that of the novel "Chokher Bali" one of A 
the works of Ravindra Nath Tagore. Shri Budhadeo Bose, who 
was a whole time writer and Chairman of Comparative 
Literature of Jadavpur University for a number of years, was 
cited as a witness on behalf of the accused. While facing the 
cross-examination, when asked to cite example of a writing B 
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 whc, '.e 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 
c 
in love with her husband's friend. The witness also cited 
Tagore's another novel "Chaturanga" where an actual sexual 0 
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 E 
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 F 
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 
Chatterley's Lover" which came to be condemned as obscene 
in India by this Court, was held to be not obscene in England G 
by the Central Criminal Court. The two-Judge Bench 
reproduced a passage from Penguin Books Ltd. (supra). 
The Coµrt referred to the obscenity test which rests with jury in 
England but with judges in India. In that context, the Court 
proceeded to state thus:-
H
926 
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SUPREME COURT REPORTS 
[2015) 7 S.C.R. 
"In deciding the question of obscenity of any book, story 
or article the court whose responsibility it is to adjudge 
the question may, if the court considers it necessary, rely 
to an extent on evidence and views of leading literary 
personage, if available, for its own appreciation and 
assessment and for satisfaction of its own conscience. 
The decision of the court must necessarily be on an 
objective assessment of the book or story or article as a 
whole and with particular reference to the passages 
complained of in the book, story or article. The court must 
take an overall view of the matter complained of as 
obscene in the setting of the whole work, but the matter 
charg~d as obscene must also be considered by itself 
and separately to find out whether it is so gross and its 
obsce,nity so pronounced that it is likely to deprave and 
corrupt those whose minds are open to influence of this 
sort and into whose hands the book is likely to fall. Though 
· the court must consider the question objectively with an 
open mind, yet in the matter of objective assessment the 
subjective attitude of the Judge hearing the matter is likely 
to influence, even though unconsciously, his mind and his 
decision on the question. A Judge with a puritan and 
prudish outlook may on the basis of an objective 
assessment of any book or story or article, consider the 
same to be obscene. It is possible that another Judge
with a different kind of outlook may not consider the same 
book to be obscene on his objective assessment of the 
very same book. The concept of obscenity is moulded to 
a very great extent by the social outlook of the people who 
are generally expected to read the book. It is beyond 
dispute that the concept of obscenity usually differs from 
country to country depending on the standards of morality 
of contemporary society in different countries. In our 
opinion, in judging the question of obscenity, the Judge in 
the first place should try to place himself in the position of
DEVI DAS RAMACHANDRA TULJAPURKAR v. 
927 
STATE OF MAHARASHTRA [DIPAK MISRA, J,] 
the author and from the viewpoint of the author the Judge A 
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 B 
appreciate what kind of possible influence. the book is 
likely to have in the minds of the readers." 
1 
Thereafter, the Court proceeded to analyse the story of 
the novel and noted thus:-
C 
"lfwe 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, o 
-
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 E 
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 novel we do not think that it 
can be said with any assurance that the novel is obscene F 
merely because slang and unconventional words have
been used in the book in which there have been emphasis 
on sex and description of female bodies and'there are 
the narrations offeelings, thoughts and actions in vulgar 
language. Some portions of the book may appear to be G 
vulgar and readers of cultured and refined taste may feel 
shocked and disgusted. Equally in some portions, the 
words used and description given may not appear to be 
in proper taste. In some places there may have been an H 
'"
928 
SUPREME COURT REPORTS 
[2015] 7 S.C.R. 
A 
exhibition of bad taste leaving it to the readers of 
experience and maturity to draw the necessary inference 
but certainly not sufficient to bring home to the adolescents 
any suggestion which is depraving or lascivious.'' 
B 
50. The aforesaid analysis shows that the court has to 
take an overall view of the matter; that there has to be an 
objective assessment and the Judge must in the first place 
put himself in the position of the author and, thereafter, in the 
position of reader of every class and must eliminate the 
C subjective element or personal preference; a novel cannot be 
called obscene usually because of slang and unconventional 
words in it; the court has to see that the writing is of such that it 
cannot bring home to the adolescences any suggestion which 
is depraving or lascivious and that the concept of obscenity 
D usually differs from country to country depending on the 
standards of morality of contemporary society in different 
countries. 
51. In Director General, Directorate General of 
E Doordarshan and others v. Anand Patwardhan and 
another61, the respondent had produced film titled Father, Son 
and Holy War and had submitted the same to the Doordarshan 
for telecast, but the Doordarshan refused to telecast. the 
documentary film despite handing over a copy of U-matic 
F certificate. He preferred a writ petition before the Bombay High 
Court against the refusal by Doordarshan to telecast the
documentary film which was disposed by the Division Bench 
by directing Doordarshan to take a decision on the application 
within a period of six weeks. A Selection Committee was 
G constituted and it declined the prayer of the applicant on the 
foundation that it depicted the rise of Hindu fundamentalism 
and male chauvinism without giving any solution how it could 
be checked and it portrayed violence and hatred. The decision 
H " (2006) a sec 433
DEVI DAS RAMACHANDRA TULJAPURKAR v. 
929 
STATE OF MAHARASHTRA[DIPAK MISRA, J.] 
of Select Committee was communicated to the respondent A 
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 B 
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 C 
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 D 
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. lnAjayGoswamiv. Unionoflndiaandothers52the E 
petitioner agitated that the grievance of freedom of speech 
and expression enjoyed by the newspaper industry is not 
keeping balance with the protection of children from harmful 
and disturbing material. The
further prayer made was to F 
command the authorities to strike a reasonable balance 
between the fundamental right of freedom of speech and 
exp~ession enjoyed by the press and the duties of the 
Government, being signatory of the United Nations Convention 
on the Rights of Child, 1989 and Universal Declaration of G 
Human Rights, to protect the vulnerable minor from abuse, 
exploitation and harmful effects of such expression. The further 
prayer was the authorities concerned should provide for 
02 c2001) 1 sec 143 
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SUPREME COURT REPORTS 
[2015] 7 S.C.R. 
A classification or introduction of a regulatory system for 
facilitating climate of reciprocal tolerance which should include 
an acceptance of other people's rights to express and receive 
certain ideas and actions; and accepting that other people 
have the right not to be exposed against their will to one's 
B expression of ideas and actions. The first question that the 
court posed "is the material in newspaper really harmful for 
the minors". In that context, the court observed that the moral 
value should not be allowed to be sacrificed in the guise of 
social change or cultural assimilation. The court then posed 
C whether the minors have got any independent right enforceable 
under Article 32 of the Constitution. In the course of discussion, 
the court referred to earlier authorities pronounced by this court, 
referred to Section 13 (2) of the Press Council Act 1978, 
0 Section 292 of the IPC and Section 4 and 6 of the Indecent 
Representation of Women (Prohibition) Act, 1986 (for short 
'the 1986 Act') and thereafter proceeded to deal with test of 
obscenity and in that context observed as follows:-
E 
F 
G 
"67. In judging as to whether a particular work is obscene, 
regard must be had to contemporary mores and national 
standards. While the Supreme Court in India held Lady 
Chatterley's Lover to be obscene, in England the jury 
acquitted the publishers finding that the publication did 
not fall foul of the obscenity
test. This was heralded as a 
turning point in the fight for literary freedom in UK. Perhaps 
"community mores and standards" played a part in the 
Indian Supreme Court taking a different view from the 
English jury. The test has become somewhat outdated in 
the context 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 
H Samresh Bose (supra) and also a passage from K.A. Abbas
DEVI DAS RAMACHANDRA TULJAPURKAR v. 
931 
STATE OF MAHARASHTRA[DIPAK MISRA, J.] 
(supra) and eventually held that:-
A 
"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 B 
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 C 
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 o 
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 freedom of expression and to 
preserve a free flow of information and ideas." 
E 
Andagain:-
"79. We are also of the view that a culture of "responsible 
leading" should be inculcated among the readers of any F 
news article. No news item should be viewed or read in 
isolation. It is necessary that a publication must be judged 
as a whole and news items, advertisements or passages 
should not be read without the accompanying message 
that is purported to
be conveyed to the public. Also the G 
members of the public and readers should not look for 
meanings in a picture or written article, which are not 
conceived to be conveyed through the picture or the news 
item. 
H 
80. We observe that, as decided by the U.S. Supreme
932 
SUPREME COURT REPORTS 
[2015] 7 S.C.R. 
A 
Court in United States v. Playboy Entertainment Group, 
lnc.53 that, 
"in order for the State ... to justify prohibition of a particular 
expression of opinion, it must be able to show that its action 
B 
was caused by something more than a mere desire to 
avoid the discomfort and unpleasantness that always 
accompany an unpopular viewpoint". 
Therefore, in our view, in the present matter, the petitioner 
c 
has failed to establish his case clearly. The petitioner only 
states that the pictures and the news items that are 
published by Respondents 3 and 4 "leave much for the 
thoughts of minors"." 
D 
The aforesaid decision, as it appears to us, lays down 
the guarantee given under the Constitution on the one hand 
pertaining to right to freedom of speech and expression to 
every citizen and the right of an individual expressing his views 
on any issue and simultaneously the observance of the right is 
E not absolute if such speech and expression is immensely gross 
and will badly violate standards of morality of a society and 
hence, any expression is subject to reasonable restriction. 
53. At this juncture, we may refer to the pronouncement in 
F Bobby Art International v. Om Pal Singh Hoon and 
Others54, popularly known as "Bandit Queen case", because 
the film dealt with the life of Phoolan Devi and it was based on 
a true story. The appellant had approached this Court assailing 
the order passed by the Division Bench of
the High Court of 
G Delhi in Letters Patent Appeal affirming the judgment of the 
learned Single Judge, who had quashed the certificate granted 
to the film and directed the Censor Board to consider the grant 
of 'A' Certificate after certain excisions and modifications in 
03 529 us 803 : 120 set 1878 : 146 L Ed 2d 865 c20ooi 
H .. (1996) 4 sec 1
DEVI DAS RAMACHANDRA TULJAPURKAR v. 
933 
STATE OF MAHARASHTRA[DIPAK MISRA, J.] 
accordance with the order that has been passed by the Court. A 
The Court referred in extenso to the authorities in K.A. Abbas 
(supra), Raj Kapoor(supra), Samresh Bose (supra), State 
of Bihar v. Shai/aba/a Devi55, 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 B 
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 C 
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 D 
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 the 
scene. The object of doing so was not to titillate the E 
cinemagoer's lust but to arouse in him sympathy for the 
victim and disgust for the perpetrators. The revulsion that 
the Tribunal referred to was not at Phoolan Devi's nudity 
but at the sadism and
heartlessness of those who had F 
stripped her naked to rob her of every shred of dignity. 
Nakedness does not always arouse the baser instinct. The 
reference by the Tribunal to the film "Schindler's List" was 
apt. There is a scene in it of rows of naked men and 
women, shown frontally, being led into the gas chambers G 
of a Nazi concentration camp. Not only are they about to 
die but they have been stripped in their last moments of 
the basic dignity of human beings. Tears are a likely 
55 AIR 1952 SC 329 
H
934 
SUPREME COURT REPORTS 
[2015] 7 S.C.R. 
A 
reaction; pity, horror and a fellow-feeling of shame are 
certain, except in the pervert who might be aroused. 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 
B 
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." 
C 
The decision rendered in the said case requires to be 
appropriately appreciated. It is seemly to notice that the Court 
has gone by the true live incidents, the sincerity in depiction by 
the film maker, the necessity for such depiction and the 
emotions that are likely to be invoked. Emphasis was on the 
D central theme of suffering. It has also taken note of the fact that 
sex had not been glorified in the film. It has also been observed 
that a few swearwords, the like of which can be heard everyday 
in every city, town and village street, would not tempt any adult 
to use them because they are used in this film. 
E 
54. In this context, the learned senior counsel has 
commended us to a two-Judge Bench decision in Ramesh s/ 
o Chhote Lal Dalal v. Union of India and others56 wherein 
the Court declined to interfere to issue a writ in the nature of 
F prohibition or any other order restraining Doordarshan and the 
producer Govind Nihlani from
telecasting or screening the serial 
titled "Tamas". The Court referred to the view of Vivian Bose, 
J. as he then was in the Nagpur High Court in the case of 
Bhagwati Charan Shukla v. Provincial Government57 and 
G K.A. Abbas (supra), Raj Kapoor(supra) and observed thus:-
" ........ the potency of the motion picture is as much for good 
'"(1988) 1 sec 668 
H 
57 AIR 1947 Nag 1
DEVI DAS RAMACHANDRA TULJAPURKAR v. 
935 
STATE OF MAHARASHTRA[DIPAK MISRA, J.] 
as for evil. If some scenes of violence, some nuances of A 
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 B 
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 C 
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 0 
conflicts. The attempt of the author in this film is to draw a 
les~on 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 amity and the need for them to rise above E 
religious barriers and treat one another with kindness, 
sympathy and affection. It is possible only for a motion 
picture to convey such a message in depth and if it is able 
to do this, it will be an achievement of great social value." 
F 
(Emphasis
supplied) 
55. In Gandhi Smaraka Samithi, v. Kanuri Jagadish 
Prasac/'6, the appellant filed a complaint against the publication 
of a novel titled "Kamotsav", written by accused no.3 therein, 
published in a weekly, namely, Andhra Jyothi. The novel G 
showed two characters in nude one over the other in a 
bathroom. The allegation was that the characters of the novel 
would undermine the social values and the cultural heritage of 
58 [(1993) 2 APLJ 91 (SN)] 
H
936 
SUPREME COURT REPORTS 
[2015) 7 S.C.R. 
A the society and the moral values of the individuals. The accused 
faced trial under Section 292 and 293 IPC as well as under 
Section 6 and 7 of the 1986Act, but it ended in an acquittal. In 
the appeal preferred by the complainant assailing the judgment 
of acquittal, the learned Single Judge referred to the meaning 
B of "obscene", dwelt upon the theme projected by the author 
relating to the present day society and how members of the 
high class society behave and how they indulge in free sex 
and how they are addicted to drunkenness. The Court observed 
C that the object of the writer is only to create some fear in the 
minds of the readers. The Court opined that the portions 
appearing on the pages, which was found objectionable by 
the learned counsel for the appellants, if analysed in the context 
of the theme of the novel, in the strict sense, may not answer 
0 the definition of obscene. The Court in that context proceeded 
to observe:-
E 
F 
G 
H 
"5 ....... In order that an article should be obscene, it must 
have the tendency to corrupt the morals of those in whose 
hands the article may fall. The idea as to what is deemed 
as obscene of course varies from age to age and from 
region to region depending upon particular social 
conditions prevailing. Anything calculated to inflame the 
passions is 'obscene'. Anything distinctly calculated to 
incite a reader to indulge in acts of indecency or immorality 
is obscene. A
book may be obscene although it contains 
a single obscene passage. A picture of a woman in the 
nude is not per se obscene. For the purpose of deciding 
whether a picture is obscene or not, one has to consider 
to a great extent the surrounding circumstances, 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."
DEVIDAS RAMACHANDRA TULJAPURKAR v. 
937 
STATE OF MAHARASHTRA[DIPAK MISRA, J.) 
56. The High Court referred to its decision in Promilla A 
kapur v. Yash Pal Bhasin59 , 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 B 
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 C 
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 D 
research on the subject of call girls in order to know the 
reasons as to why and how the young girls fall in this 
profession of call girls and what society could do in order 
to eradicate or at least minimize the possibility of young 
budding girls joining this flesh trade. As a whole the book E 
appears to be a serious study done on the subject of call 
girls. Mere fact that some sort of vulgar language has been 
used in some portions of the book in describing the sexual 
intercourse would not, in the overall setting of the book, F 
be deemed to be obscene. If some portions of the book 
are taken in isolation,
those portions may have the effect 
of giving lustful thoughts to some young adolescent minds 
butfor that reason alone it would not be in the interests of 
justice to declare this book as obscene." 
G 
The High Court also referred to an earlier decision of the 
said Court in B.K. Adarsh v. Union oflndia6°, wherein it was 
511 1989 Cr.L.J. 1241 
00 AIR 1990AP 100 
H
938 
SUPREME COURT REPORTS 
[2015) 7 S.C.R. 
A observed that decency or indecency of a particular picture, 
sequence or scene cannot depend upon the nature of the 
subject matter, but the question is one of the manner of handling 
of the subject-matter and sociological or ethical interest or 
message which the film conveys to the reasonable man, and 
B that the approach of the Court would be from the perspective 
of social pathological phenomenon with a critical doctor 
keeping the balance between the felt necessities of the time 
and social consciousness of a progressive society eliminating 
the evils and propagating for the cultural evolution literary taste 
C and pursuit of happiness in social relations, national integration 
and solidarity of the nation and the effect of the film thereon. In 
the said case, it was also obs~rved that the sense of decency 
or indecency have to be kept in view in adjudging whether the 
0 motion picture would stand to the test of satisfying a reasonable 
man in the society that it would not deprave or debase or corrupt 
his moral standards or induce lewdness, lasciviousness or 
lustful thoughts. 
57. In S. Khushboo v. Kanniammal and another" the 
E appellant, a well known actress had approached this court 
seeking quashment of the criminal proceeding registered 
against her for offences punishable under Sections 499, 500, 
509 IPC and Sections 4 and 6 of the 1986Act. The controversy 
F arose as India Today, a fortnightly magazine, had
conducted a 
-survey on the subject of sexual habits of people residing in the 
bigger cities of India. One of the issues discussed as part of 
the said survey was increasing incidence of pre-marital sex. 
As a part of this exercise the magazine had gathered and 
G 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 
H •• c2010) s sec eoo
DEVIDAS RAMACHANDRA TULJAPURKAR v. 
939 
STATE OF MAHARASHTRA [DIPAK MISRA, J.] 
relationships and called for the societal acceptance of the A 
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 B 
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 Thanthiwherein the 
appellant had purportedly defended her views. However, soon C 
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 0 
publication of the statements in India Today and Dhina Thanthi 
drew criticism from some quarters and several persons and 
organizations filed criminal complaints against the appellant. 
The appellant approached the High Court for quashment of 
the criminal proceeding but as the High Court declined to E 
interfere, this court was moved in a special leave petition. The 
court perused the complaints which revealed that most of the 
allegations pertained to offences such as defamation, 
obscenity, indecent
representation of women and incitement 
among others. While dealing with the section 292 IPC, the court F 
heldthus:-
"24. Coming to the substance of the complaints, we fail to 
see how the appellant's remarks amount to "obscenity" in 
the context of Section 292 IPC. sub-section (1) of Section G 
292 states that the publication of a book, pamphlet, paper, 
writing, drawing, painting, representation, figure, etc. will 
be deemed obscene, if-
• It is lascivious (i.e. expressing or causing sexual desire); H
940 
SUPREME COURT REPORTS 
[2015] 7 S.C.R. 
A 
or 
B 
c 
D 
•Appeals to the prurient interest (i.e. excessive interest in 
sexual matters); or 
• If its effect, or the effect of any one of the items, tends to 
deprave and corrupt persons, who are likely to read, see, 
or hear the matter contained in such materials. 
In the past, authors as well as publishers of artistic and 
literary works have been put to trial and punished under 
this section." 
Thereafter, the court referred to the authorities in Ranjit 
D. Udeshi (supra) and Samresh Bose (surpa) and 
proceeded to observe:-
"45. Even though the constitutional freedom of speech and 
expression is not absolute and can be subjected to 
reasonable restrictions on grounds such as "decency and 
morality" among others, we must lay stress on the need to 
E 
tolerate unpopular views in the sociocultural space. The 
Framers of our Constitution recognised the importance 
of safeguarding this right since the free flow of opinions 
and ideas is essential to sustain the collective life of the 
citizenry. While an informed citizenry is a precondition for 
F 
meaningful governance in the political sense, we must also 
promote a culture of open dialogue when it comes to 
societal attitudes. 
46. Admittedly, the appellant's remarks did provoke a 
G 
controversy since the acceptance of premarital sex and 
live-in relationships is viewed by some as an attack on 
the centrali.ty of marriage. While there can be no doubt 
that in India,
marriage is an important social institution, 
we must also keep our minds open to the fact that there 
H 
are certain individuals or groups who do not hold the same
DEVI DAS RAMACHANDRA TULJAPURKAR v. 
941 
STATE OF MAHARASHTRA [DIPAK MISRA, J.] 
view. To be sure, there are some indigenous groups within A 
our country wherein sexual relations outside the marital 
setting are accepted as a normal occurrence. Even in the 
societal mainstream, there are a significant number of 
people who see nothing wrong in engaging in premarital 
sex. Notions of social morality are inherently subjective B 
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 C 
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 D 
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 
E 
50. Thus, dissemination of news and views for popular 
consumption is permissible under our constitutional 
scheme. The different views are allowed to be expressed 
by the proponents and opponents. A culture of responsible F 
reading is to be inculcated amongst the prudent readers. 
Morality and criminality are far from being coextensive. 
An expression of opinion in favour of
non-dogmatic and 
non-conventional morality has to be tolerated as the same 
cannot be a ground to penalise the author." 
G 
The aforesaid authority, thus, emphasises on tha need for 
tolerance of unpopular views in the socio-cultural space. It also 
takes note of the fact that notions of social morality are 
inherently subjective; and morality and criminality are not co-
H
942 
SUPREME COURT REPORTS 
[2015) 7 S.C.R. 
A extensive. It is apt to note here that in the said case, the Court 
has also held that by the statement of the appellant therein no 
offence was committed. The Court recognised that free flow 
of notions and ideas is essential to sustain the collective lives 
B 
of the citizenry. 
58. Recently in Aveek Sarkar and another v. State of 
West Bengal and others62, the Court was dealing with the 
fact situation where Boris Becker, a world renowned tennis 
player, had posed nude with his dark-skinned fiancee by name 
C Barbara Feltus, a film actress. Both of them spoke freely about 
their engagement, their lives and future plans. The article 
projected Boris Becker as a strident protester of the pernicious 
practice of "Apartheid" and the purpose of the photograph was 
also to signify that love champions over hatred. The article was 
D published in the German magazine by name "Stem". "Sports 
World'', a widely circulated magazine had reproduced the 
photograph and the article as cover story. "Anandabazar 
Patrika", a newspaper having wide circulation in Kolkata, also 
published in the second page of the newspaper the photograph 
E as it appeared in Sports World. A lawyer claiming to be a 
regular reader of Sports World as well as Anandabazar Patrika 
filed a complaint under Section 292 of IPC against the 
appellants therein, the Editor, the Publisher and Printer of the 
F newspaper and also against the Editor of Sports World, former
Captain of Indian Cricket Team, Late Mansoor Ali Khan 
Pataudi. The learned Magistrate took cognizance and issued 
summons under Section 292, IPC and also under Section 4 of 
the 1986 Act. The appellants approached the High Court for 
G quashing the criminal 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-
H ., c2014) 4 sec 2s1
DEVIDAS RAMACHANDRA TULJAPURKAR v. 
943 
STATE OF MAHARASHTRA[DIPAK MISRA, J.] 
moral attitude of the community and the prevalent norms of A 
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 B 
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, C 
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 0 
in Hicklin (supra) the majority view in Brody v. R63, and the 
pronouncement i11 R. v. Butler6' and opined thus:-
"23. We are also of the view that Hicklin test65 is not the 
correct test to be applied to determine ''what is obscenity". 
Section 292 of the Penal Code, of course, uses the E 
expression "lascivious and prurient interests" or its effect. 
Later, it has also been indicated in the said section of the 
applicability of the effect and the necessity of taking the 
items as a whole and on that foundation where such
items F 
would tend to deprave and corrupt persons who are likely, 
having regard to all the relevant circumstances, to read, 
see or hear the matter contained or embodied in it. We 
have, therefore, to apply the "community standard test" 
rather than the "Hicklin test" to determine what is G 
"obscenity". A bare reading of sub-section (1) of Section 
292, makes clear that a picture or article shall be deemed 
63 1962 SCR 681 (Can SC) 
6' (1992) 1 SCR 452 (Can SC) 
65 (1868) LR 3 QB 360 
H
944 
SUPREME COURT REPORTS 
[2015] 7 S.C.R. 
A 
to be obscene 
B 
c 
D 
E 
(xlvi) if it is lascivious; 
(ii) it appeals to the prurient interest; and 
(iii) it tends to deprave and corrupt persons who are likely 
to read, see or hear the matter, alleged to be obscene. 
Once the matter is found to be obscene, the question may 
arise as to whether the impugned matter falls within any 
of the exceptions contained in the section. A picture of a. 
nude/semi-nude woman, as such, cannot per se be called 
obscene unless it has the tendency to arouse the feeling 
of or revealing an overt sexual desire. The picture should 
be suggestive of deprave mind and designed to excite 
sexual passion in persons who are likely to see it, which 
will depend on the particular posture and the background 
in which the nude/semi-nude woman is depicted. Only 
those sex-related materials which have a tendency of 
"exciting lustful thoughts" can be held to be obscene, but 
the obscenity has to be judged from the point of view of 
an average person, by applying contemporary community 
standards." 
The Court also referred to Bobby Art International 
F (supra), Ajay Goswami (supra) and held that applying the 
community tolerance test, the photograph was not suggestive 
of deprave minds and designed to excite sexual passion in 
persons who are likely to look at them and see them. The Court 
further proceeded to state that the photograph has no tendency 
G to deprave or corrupt the minds of the people
because the 
said picture has to be viewed in the background in which it 
was shown and the message it has to convey to the public and 
the world at large. The Court observed that Boris Becker himself 
H in the article published in the German magazine, spoke of the
DEVI DAS RAMACHANDRA TULJAPURKAR v. 
945 
STATE OF MAHARASHTRA[DIPAK MISRA, J.] 
racial discrimination prevalent in Germany and the article A 
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 B 
colour. The picture promotes love affair, leading to a 
marriage, between a white-skinned man and a 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 C 
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 D 
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 E 
community standards test" and rules that the factum of 
obscenity has to be judged from the point of view of an average 
person. 
59. Very recently, in Shreya Singhal v. Union of/ndia66 , 
F 
a two-Judge Bench of this Court, while dealing with the concept 
of obscenity, has held that:-
"45. This Court in Ranjit Udeshi (supra) took a rather 
restrictive
view of what would pass muster as not beirig G 
obscene. The Court followed the test laid down in the old 
English judgment in Hicklin's case which was whether the 
tendency of the matter charged as obscene is to deprave 
66 2015 (4) SCALE 1 
H
946 
A 
B 
c 
D 
SUPREME COURT REPORTS 
[2015] 7 S.C.R. 
and corrupt those whose minds are open to such immoral 
influences and into who hands a publication of this sort 
may fall. Great strides have been made since this decision 
in UK, United States, as well as in our country. Thus, in 
Director General of Doordarshan v. Anand Patwardhan67 , 
this Court notice the law in the United States and said that 
a material may be regarded as obscene if the average 
person applying contemporary community standards would 
find that the subject matter taken as a whole appeals to 
the prurient interest and that taken as a whole it otherwise 
lacks serious literary artistic, political, educational or 
scientific value (see para 31). 
46. In a recent judgment of this Court, Aveek Sarkar 
(supra), this Court referred to English, U.S. and Candadian 
judgments and moved away from the Hicklin test and 
applied the contemporary community standard test." 
From the development of law in this country, it is clear as 
day that the prevalent test in praesenti is the conte[llporary 
E community standards test. 
60. We have referred to the concept of obscenity as has 
been put forth by the learned senior counsel for the appellant, 
the prevalent test in United Kingdom, United States of America 
F and the test formulated by the European Courts. We have 
extensively dealt with the test adopted in this country. On the 
studied scrutiny and analysis of the judgments. there can be 
no shadow of doubt
that this Court has laid down various 
guidelines from time to time and accepted the contemporary 
G community standards test as the parameter and also observed 
that the contemporary community standards test would vary 
from time to time, for the perception, views, ideas and ideais 
can never remain static. They have to move with time and 
H •1 (2006) s sec 433
DEVIDAS RAMACHANDRA TULJAPURKAR v. 
947 
STATE OF MAHARASHTRA [DIPAK MISRA, J.] 
development of culture. Be it noted, it has become more liberal A 
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, B 
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 C 
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 0 
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 E 
and it has to be appreciated on the foundation of modern 
perception, regard being had to the criterion that develops the 
literature. There can neither be stagnation of ideas nor there
can be staticity of ideals. The innovative minds can conceive 
of many a thing and project them in different ways. As far as F 
comparables test is concerned, the Court may sometimes have 
referred to various books on literature of the foreign authors 
and expressed the view that certain writings are not obscene, 
but that is not the applicable test. It may at best reflect what the 
community accepts. 
G 
Right to Freedom of Speech and Expression under 
the Constitution 
61. Having stated about the test that is ·applicable to H
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A determine obscenity we are required to dwell upon the right to 
freedom of speech and expression. The words, freedom of 
speech and expression find place in the association words 
"liberty of thought, expression, belief, faith and worship", which 
form a part of the Preamble of the Constitution. Preamble has 
B its own sanctity and the said concepts have been enshrined in 
the Preamble. 
62. First, we shall deal with the approach of this Court 
pertaining to freedom of speech and expression. Article 19(1) 
C (a) and 19(2) of the Constitution are reproduced below: 
D 
E 
F 
"19. Protection of certain rights regarding freedom of 
speech etc. - (1 )All citizens shall have the right-
(a) to freedom of speech and expression; 
(2) Nothing in sub clause (a) to clause (1) shall affect the 
operation of any existing law, or prevent the State from 
making any law, insofar as such law imposes reasonable 
restrictions on the exercise of the right conferred by the 
said sub clause in the interests of the sovereignty and 
integrity of India, the security of the State, friendly relations 
with foreign States, public order, decency or morality or in 
relation to contempt of court, defamation or incitement to 
an offence." 
63. Learned senior counsel for the appellant has drawn 
inspiration from the ConstituentAssembly Debates especially 
G the amendment that was introduced by Prof. K.T. Shah. He 
has reproduced the following excerpts from the
Constituent 
Assembly Debates:-
" ...... my purpose in bringing forward this amendment is to 
H 
point out that, if all the freedoms enumerated in this article
DEVI DAS RAMACHANDRA TULJAPURKAR v. 
949 
STATE OF MAHARASHTRA[DIPAK MISRA, J.] 
are to be in accordance with only the provisions of this A 
article, or are to be guaranteed subject to the provisions 
of this article only, then they would amount more to a 
negation of freedom than the promise or assurance of 
freedom, because in everyone of these clauses the 
exceptions are much more emphasised than the positive B 
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 C 
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 D 
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, ifyouemphasiseonlythis 
article. If you say merely subject to the provisions of this E 
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 
F 
in one sub-clause of the
article. The exceptions are all 
separately mentioned in separate sub-clauses. And their 
scope is so widened that I do not know what cannot be 
included as exception to these freedoms rather than the 
rule. In fact, the freedoms guaranteed or assured by this G 
article become so elusive that are would find it necessary 
to have a microscope to discover where these freedoms 
are, whenever it suits the State or the authorities running it 
to deny them. I would, therefore, repeat that you should H
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A 
bring in the provisions of the whole Constitution, including 
its preamble, and including all other articles and chapters 
where the spirit of the Constitution should be more easily 
and fully gathered than merely in this article, which, in my 
B 
judgment, runs counter to the spirit of the Constitution .... 
I also suggest that it would not be enough to enumerate 
these freedoms, and say the citizen shall have them. I 
would like to add the words also that by this Constitution 
these freedoms are guaranteed. That is to say, any 
C 
exception which is made, unless justified by the spirit of 
the Constitution, the Constitution as a whole and every 
part of it included, would be a violation of the freedoms 
guaranteed hereby. 
D 
(December 1, 1948)" 
64. It is true thatArticle 19(1)(a) has to be interpreted in a 
manner by which the fundamental right to "freedom of speech 
and expression" is nourished. Elaborating the concept, it is 
E urged by Mr. Subramanium that when two interpretations of 
Article 19(1 ){a), one a traditional or restrictive approach and 
the other a modern/liberal approach are possible, the latter 
should be adopted, for by adopting the said approach, the 
fundamental right to freedom of speech and expression is 
F guarded and any attempt to overreach the same is kept in 
check. 
65. Now, we shall refer to the Preamble as it uses the 
words "liberty of thought and expression" In Kesavanada 
G Bharti v. State
of Kera/a and Others68, emphasis has been 
laid on the preamble of the Constitution and its objectives. Sikri, 
C.J. in Kesavanada Bharti (supra) observed thus:-· 
"15. I need hardly observe that I am not interpreting an 
H .. (1973) 4 sec 225
DEVIDAS RAMACHANDRA TULJAPURKAR v. 
951 
STATE OF MAHARASHTRA[DIPAK MISRA, J.] 
ordinary statute, but a Constitution which apart from setting A 
up a machiner1 for Government, has a noble and grand 
vision. The vision was put in words in the preamble and 
. carried out in part by conferring fundamental rights on the 
people. The vision was directed to be further carried out 
by the applicatio;i qf directive principles." 
66. Shelat and Grover JJs in their judgment in the said 
case ruled:-
B 
"506. The Constitution-makers gave to the Preamble the c 
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 D 
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 E 
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. 
F 
513. The history of the drafting and the ultimate adoption 
of the Preamble shows-
G 
(1)
that it did not "walk before the Constitution" as is said 
about the Preamble to the United States Constitution; 
(2) that it was adopted last as a part of the Constitution; 
H
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A 
(3) that the principles embodied in it were taken mainly 
from the Objectives Resolution; 
B 
(4) the Drafting Committee felt, it should incorporate in it 
"the essential features of the new State"; 
(5) that it embodied the fundamental concept of 
sovereignty being in the people." 
67. Interpreting Article 19( 1 )(a) of the Constitution, the test 
is always to see the said Article in aid of the Preambular 
C objectives which form a part of the basic structure of the 
Constitution. Article 19(1 )(a) is intrinsically linked with the 
Preambular objectives and it is the duty of the Court to 
progressively realise the values of the Constitution. In Maneka 
0 Gandhi v. Union of lndia69 , it has been held:-
E 
F 
G 
"5 ........ It is indeed difficultto see on what principle we can 
refuse to give its plain natural meaning to the expression 
"personal liberty'' as used in Article 21 and read it in a 
narrow and restricted sense so as to exclude those 
attributes of personal liberty which are specifically dealt 
with in Article 19. We do not think that this would be a 
correct way of interpreting the provisions of the 
Constitution conferring fundamental rights. The attempt of 
the Court should be to expand the reach and ambit of the 
fundamental rights rather than attenuate their meaning and 
content by a process of judicial construction. The 
wavelength for comprehending the scope and ambit of 
the fundamental rights has been set by
this Court in R. C. 
Coopercase70 and our approach in the interpretation of 
the fundamental rights must now be in tune with this 
wavelength. We may point out even at the cost of repetition 
•• < 1978) 1 sec 248 
H 
10 (1970) 2 sec 298
DEVI DAS RAMACHANDRA TULJAPURKAR v. 
953 
STATE OF MAHARASHTRA[DIPAK MISRA, J.] 
that this Court has said in so many terms in RC. Cooper A 
case that each freedom has different dimensions and 
there may be overlapping between different fundamental 
rights and therefore it is not a valid argument to say that 
the expression "personal liberty" in Article 21 must be so 
interpreted as to avoid overlapping between that article B 
and Article 19(1). The expression "personal liberty" in 
Article 21 is of the widest amplitude and it covers a variety 
of rights which go to constitute the personal liberty of man 
and some of them have .... " 
Krishna Iyer, J. in his concurring opinion has observed 
thus:-
"96. A thorny problem debated recurrently at the bar, turning 
c 
on Article 19, demands some juristic response although D 
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 E 
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 Kera/a F 
Education Bilf1 and then on to All-India Bank Employees' 
Association72 , next to Sakal
Papers73 , crowning in Cooper 
and followed by Bennett Coleman74 and Shambhu Nath 
Sarkar5 • Be that as it may, the law is now settled, as I 
apprehend it, that no article in Part Ill is an island but part G 
11 1959 SCR 995 
' 
72 1962 3 SCR 269 
73 (1962) 3 SCR 842 
14 (1973) 2 SCR 757 
1• (1973) 1 sec 856 
H
954 
A 
B 
c 
D 
E 
F 
G 
H 
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SUPREME COURT REPORTS 
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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 rights in an organic 
constitution, which make man human have a synthesis. 
The proposition is indubitable that Article 21 does not, in 
a given situation, exclude Article 19 if both rights are 
breached. 
97. We may switch to Article 19 very briefly and travel along 
another street for a while. Is freedom of extra-territorial 
travel to assure which is the primary office of an Indian 
passport, a facet of the freedom of speech and 
expression, of profession or vocation under Article 19? 
My total consensus with Shri Justice Bhagwati jettisons 
from this judgment the profusion of precedents and the 
mosaic of many points and confines me to some 
fundamentals confusion on which, with all the clarity on 
details, may mar the conclusion. It is a salutary thought 
that the summit Court should not interpret constitutional 
rights enshrined in Part Ill to choke its life-breath or chill its 
elan vital by processes of legalism, overruling the enduring 
values burning in the bosoms of those who won our 
independence and drew up our founding document. We 
must also remember that when this Court lays down the 
law, not ad hoc tunes but essential notes, not temporary 
tumult but transcendental truth, must
guide the judicial 
process in translating into authoritative notation and mood 
music of the Constitution." 
Beg, J. has stated that:-
"202. Articles dealing with different fundamental rights 
contained in Part Ill of the Constitution do not represent 
entirely separate streams of rights which do not mingle at 
many points. They are all parts of an integrated scheme
DEVI DAS RAMACHANDRA TULJAPURKAR v. 
955 
STATE OF MAHARASHTRA[DIPAK MISRA, J.) 
in the Constitution Their waters must mix to constitute that A 
grand flow of unimpeded and impartial Justice (social, 
economic and political), Freedom (not Only of thought, 
expression, belief, faith and worship, but also of 
association, movement, vocation or occupation as well 
as of acquisition and possession of reasonable property), B 
of Equality (of status and of opportunity, which imply 
absence of unreasonable or unfair discrimination between 
individuals, groups, and classes) and of Fraternity 
(assuring dignity of the individual and the unity of the 
nation), which our Constitution visualizes. Isolation of C 
various aspects of human freedom, for purposes of their 
protection, is neither realistic nor beneficial but would 
defeat the very objects of such protection." 
68. In Maneka Gandhi (supra), while interpreting Article D 
19(1 )(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 E 
Article 19(2). 
69. In Gajanan VisheshwarBirjurv. Union oflndia76 , 
this Court was dealing with the order of confiscation of books 
containing the Marxist literature. The Court referring to the F 
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 G 
observed that thought control is alien to our constitutional 
scheme and referred to the observations of Robert Jackson, 
J. in American Communications Association v. Douds77 
76 (1994) 5 sec 550 
77 339 us 382 
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A with reference to the US Constitution wherein it was stated 
thatthought control is a copyright of totalitarianism, and it was 
unacceptable. The Court finally stated that it is not the function 
of our Government to keep the citizen from falling into error; it 
is the function of the citizen to keep the Government from falling 
B into error . 
• ·1 
~ 
70. More important and relevantly lucid are observations 
in Sahara India Real Estate Corpn. Ltd. v. SEBf8, where 
while dealing with the freedom of speech, the Constitution 
C Bench held:-
D 
E 
F 
G 
"Freedom of expression is one of the most cherished 
values of a free democratic society. It is indispensable to 
the operation of a democratic society whose basic 
postulate is that the Government shall be based on the 
consent of the governed. But, such a consent implies not 
only that the consent shall be free but also that it shall be 
·grounded on adequate information, discussion and aided 
by the widest possible dissemination of information and 
opinions from diverse and antagonistic sources. Freedom 
of expression which includes freedom of the press has a 
capacious content and is not restricted to expression of 
thoughts and ideas which are accepted and acceptable 
. but also to those which offend or shock any section of the 
population. It also includes the right to receive information 
and ideas of all kinds from different sources. In essence, 
the freedom of expression
embodies the right to know. 
However, under our Constitution no right in Part Ill is 
absolute. Freedom of expression is not an absolute value 
under our Constitution; It must not be forgotten that no single 
value, no matter exalted, can bear the full burden of 
upholding a democratic system of government. Underlying 
our constitutional system are a number of important values, 
H " c2012) 10 sec so3
DEVI DAS RAMACHANDRA TULJAPURKAR v. 
957 
STATE OF MAHARASHTRA[DIPAK MISRA, J.] 
all of which help to guarantee our liberties, but in ways A 
which sometimes conflict. Under our Constitution, 
probably, no values are absolute. All important values, 
therefore, must be qualified and balanced against other 
important, and often competing, values. This process of 
definition, qualification and balancing is as much required 
B 
with respect to the value of freedom of expression as it is 
for other values." 
71. In State of Karnataka v. Associated Management 
of English Medium Primary & Secondary Schools79 , while C 
dealing with the freedom under Article 19(1 )(a), the Constitution 
Bench opined:-
"36. The word "freedom" in Article 19 of the Constitution 
means absence Jf control by the State and Article 19( 1) D 
provides that the State will not impose controls on the 
citizen in the matters mentioned in sub-clauses (a), (b), 
(c), (d), (e) and (g) of Article 19(1) exceptthose specified 
in clauses (2) to (6) of Article 19 of the Constitution. In all 
matters specified in clause (1) of Article 19, the citizen E 
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: 
F 
" ... 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 G 
our fellow creatures, so long as what we do does not harm 
them, even though they should think our conduct foolish, 
perverse, or wrong." 
1• (2014 > g sec 485 
H