Artistic Freedom Versus Law of Obscenity.

In a huge boost to ‘Freedom of Speech and Expression and Artistic Liberty’, the Hon’ble High Court of Madras in Perumal Murugan v. Government of Tamil Nadu, 2016 SCC OnLine Mad 5960, has held :

    • All writings, unpalatable to one section of the society, cannot be labelled as obscene, vulgar, prurient and immoral.
    • “Art is often provocative and is not meant for everyone, nor does it compel the whole society to see it. The choice is left with the viewer,” the court observed in its order. “Merely because a group feel agitated about it cannot give them a license to vent their views in a hostile manner, and the State cannot plead its inability to handle the problem of a hostile audience.”   
    • The Court relied upon earlier decisions in the cases of Phantom Films Pvt. Ltd. vs. The Central Board of Film Certification, 2016 SCC OnLine Bom 3862 and M.F. Hussain v. Rajkumar Pandey 2008 SCC OnLine Del 562  and  held that the ‘contemporary community standard test’ should involve standard prudence and not sensitivity, and the freedom of speech of an artist (under Article 19 of the Constitution) must be protected.
    • With this, the HC quashed the criminal proceedings against the writer, and “resurrected him” to be able to write again. The court also held that “if you do not like a book, throw it away. There is no compulsion to read a book. yet, the right to write is unhindered”


A Note for Students : 

Matters such as these have given rise to a number of questions :

  • How to decide whether a particular art work (book, poem, painting, movie etc) is obscene, or is it a work of ‘Art’ ?
  • What are the ‘Standards’ or ‘Benchmarks’ to be kept in mind while deciding that question ?
  • Should the yardstick be : ‘Community Standards’, keeping in view the contemporary social conditions, mores, values and sensibilities ?  or a more ‘Paternalistic Approach’ (See : Hicklin’s test) seeking to protect the more vulnerable ?
  • While examining this question : Whether the offending work is to be read as a whole, or different parts can be read shorn out of context to examine their ‘depraving effect’, so to speak ?
  • At what point exactly, the work acquires an artistic quality and ceases to be obscene or appealing to prurient interests ?
  • Whether the ‘literary or artistic merit’ of a work is too subjective a test to be examined judicially ?
  • Whether the work in question also needs to have a redeeming public interest or message in order to steer clear of charges of obscenity, or ‘Art for Art’s sake’ should be the consideration ? 
  • When a movie is cleared by the Censor Board, is that decision conclusive on the matter, or an independant judicial review can still be embarked upon ? and if yes, what is the weight to be attached to the findings of a Statutory Body such as the Censors ?;
  • How to harmonise the Individual Freedom of Speech and Expression with Law Against Obscenity ? and finally, the interplay between Law and Morality. 

These are the issues that students of Law should ponder on. Recommended readings on this subject are : Ranjit D. Udeshi (1964),Bobby Art International, Etc vs Om Pal Singh Hoon & Ors (1996)Aveek Sarkar v. State of West Bengal (2014).  We shall be writing more on this in the coming days, so stay tuned-in.

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