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

28 Pages Posted: 23 Sep 2015 Last revised: 4 Dec 2020

See all articles by Aqa Raza

Aqa Raza

Jindal Global Law School | O.P. Jindal Global University, Haryana, India

Date Written: June 12, 2015

Abstract

The ‘basic law of the land’ confers to its citizens the most basic inalienable right in the form of ‘freedom of speech and expression’ by which a human being conveys his feelings, thoughts, views, opinions and sentiments, etc. to others. The Founding Fathers of the Indian Constitution attached great importance to the freedom of speech and expression. The right conferred by Article 19(1) (a) is not absolute. Not only the human nature but it is the demand of the society in order to be a civilized society that the State should impose certain reasonable restrictions on this particular guaranteed Constitutional right and that restriction has been provided under Article 19(2). One of the limitations imposed on this fundamental right is ‘decency' and 'morality’. The principle behind the restriction is that public mind should not be corrupted. The concept of ‘obscenity’ is not same everywhere. What is obscene at one place may not be obscene at the other. In India, the test laid down by Cockburn, C.J. in R. v. Hicklin (1868) had been the test for a very long time Since Ranjit D. Udeshi Case (1965) to determine obscenity. In Hicklin’s Case it was laid down that ‘the test of obscenity is whether the tendency of the matter charged as obscene is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands the a publication of this sort may fall. It is quiet certain that it would suggest to minds, of the young either sex, or even to persons of more advanced years, thoughts as a most impure and libidinous character. Whereas, in Samaresh Bose v. Amal Mitra (1986) the Court draw a line between obscenity and vulgarity and observed that “what arouses a feeling of disgust and revulsion and also boredom but does not have the effect of depraving, debasing and corrupting the morals of any reader of the novel is vulgarity.”

For the sake of convenience this work has been divided into five parts. Part I covers the introductory outline of the paper. Part II deals with the concept of obscenity. Part III deals with the test of obscenity by Statute. Part IV covers the Indian judicial approach towards obscenity including the judicial approach in the United Kingdom and the United States of America. Part V concludes.

Keywords: Obscenity, Freedom of Speech and Expression, Fundamental Right, Vulgarity, Hicklin Test, Community Standard Test, Reasonable Restrictions

Suggested Citation

Raza, Aqa, 'Mass Media' versus 'Obscenity': The Judicial Contribution (June 12, 2015). Available at SSRN: https://ssrn.com/abstract=2661201 or http://dx.doi.org/10.2139/ssrn.2661201

Aqa Raza (Contact Author)

Jindal Global Law School | O.P. Jindal Global University, Haryana, India ( email )

Sonipat Narela Road, Near Jagdishpur Village
Sonipat, Haryana 131001
India

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