Rai University Vs. State of Chhattisgarh & Ors.

CASE NO.:
Special Leave Petition (civil)  10506 of 2005

PETITIONER:
Rai University                       

RESPONDENT:
State of Chhattisgarh & Ors.

DATE OF JUDGMENT: 07/09/2005

BENCH:
CJI R.C. Lahoti,G. P. Mathur & P.K. Balasubramanyan

JUDGMENT:
JUDGMENT
With

Writ Petition (Civil) No.267 of 2005,

With

IAs No.11-12, 8, 9, 14, 15, 16, 17, 18, 19 and 22 of 2005
In
Writ Petition (Civil) No.19 of 2004

And
Special Leave Petition (Civil) No.16520 of 2005.

G.P. MATHUR, J.

Special Leave Petition (Civil) No. 10506 of 2005

1.    This Special Leave Petition has been preferred against the judgment
and order dated 26.4.2005 of High Court of Chhattisgarh by which Writ
Petition No.1506 of 2005 filed by the petitioner, Rai University, was
dismissed. 

2.    The provisions of The Chhattisgarh Niji Kshetra Vishwavidyalaya
(Sthapana Aur Viniyaman) Adhiniyam, 2002 (for short "the Act") were
challenged by Prof. Yashpal by filing a writ petition under Article 32 of the
Constitution in this Court.   The writ petition was allowed by this Court on
11.2.2005 and the judgment delivered is reported in JT 2005 (2) SC 165
(Prof. Yashpal & Anr. v. State of Chhattisgarh & Ors.).   Paragraphs 45 and
46 of the reports, which have a bearing on the controversy in hand, are
reproduced hereinbelow :
"45.    As a consequence of the discussion made and the
findings recorded that the provisions of Sections 5 and 6 of the
Act are ultra vires and the Gazette Notifications notifying the
Universities are liable to be quashed, all such Universities shall
cease to exist.   Shri Amarendra Sharan, learned Additional
Solicitor General has submitted that the UGC had conducted an
inquiry and it was found that most of the Universities were non-
existent, but the report was not placed before the Court as the
complete exercise had not been done.   Learned counsel for the
Universities have seriously disputed this fact and have
submitted that the Universities are functioning.   We have not
gone into this question as it is purely factual.  In order to protect
the interest of the students who may be actually studying in the
institutions established by such private Universities, it is
directed that the State Government may take appropriate
measures to have such institutions affiliated to the already
existing State Universities in Chhattisgarh.   We are issuing this
direction keeping in mind the interest of the students and also
Sections 33 and 34 of the Act, which contemplate dissolution of
the sponsoring body and liquidation of a University whereunder
responsibility has to be assumed by the State Government.   It
is, however, made clear that the benefit of affiliation of an
institution shall be extended only if it fulfills the requisite
norms and standards laid down for such purpose and not to
every kind of institution.   Regarding technical, medical or
dental colleges, etc. affiliation may be accorded if they have
been established after fulfilling the prescribed criteria laid down
by the All India Council of Technical Education, Medical
Council of India, Dental Council of India or any other statutory
authority and with their approval or sanction as prescribed by
law.  

46.    In view of the discussions made above, Writ Petition (C)
No.19 of 2004 (Prof. Yashpal & Ors. v. State of Chhattisgarh &
Ors.) and Writ Petition (C) No.565 of 2003 (Gopalji Agarwal
Vs. Union of India & Ors.) are allowed and provisions of
Section 5 and 6 of the Chhattisgarh Niji Kshetra
Vishwavidyalaya (Sthapana Aur Viniyaman) Adhiniyam, 2002
are declared  to be ultra vires and are struck down.   As a
consequence of such declaration, all notifications issued by the
State Government in the Gazette in the purported exercise of
power under Section 5 of the aforesaid Act notifying the
Universities (including respondent nos.3 to 94) are quashed and
such Universities shall cease to exist.  If any institutions have
been established by such Universities, steps may be taken for
their affiliation to already existing State Universities in
accordance with the direction contained in paragraph 45 above.  
Parties would be at liberty to approach the High Court if any
dispute arises in implementation of this direction. All Writ
Petitions, Civil Appeals and Transferred Cases filed by the
private Universities are dismissed."


4.    Thereafter, the State of Chhattisgarh made Statute No.27(A) in
accordance with the provisions of Section 36 of the Chhattisgarh
Vishwavidyalaya Adhiniyam 1973.   Clause (5) of Statute 27(A) of the
Statute reads as under :
"Notwithstanding anything contained in the Statutes,
Ordinances and Regulations made by any of the Existing State
University (ESU) under the provisions of the Chhattisgarh
Vishwavidyalaya Adhiniyam 1973 (No.22 of 1973), an Interim
Institution will be admitted to the privileges of the ESU on the
basis of the territorial jurisdiction of ESU for affiliation, as
specified in Second Schedule of the above said Act on
application of the Sponsoring Body of the Interim Institution
and the same shall be withdrawn thereof in the manner in the
paras mentioned hereinafter."

5.    Rai University, which had been established under the provisions of
the Act,  filed the writ petition before the Chhattisgarh High Court
challenging the provisions of Statute 27(A)(5) on the grounds, inter alia, that
the said University had established 19 study centres in various places in the
country like Pathankot, Delhi, Pune, Bangalore, Kochi, Mumbai, etc. and in
view of the aforesaid Statute, which lays emphasis on the territorial
jurisdiction of the university, the said study centres cannot get the advantage
of affiliation to a university in Chhattisgarh.  The writ petition was dismissed
by the order dated 26.4.2005 which is under challenge in the present special
leave petition. 

6.    Learned counsel for the petitioner has submitted that in paragraphs 45
and 46 of the judgment rendered in the case of Prof. Yashpal (supra), this
Court had protected the interest of the students who were studying in the
institutions established by the private universities and as large number of
students were studying in various study centres of Rai University, which are
outside the State of Chhattisgarh, they cannot get affiliation to a State
university in Chhattisgarh.  The submission is that all the study centres of
erstwhile private university should get the facility of affiliation to a State
university in Chhattisgarh.

7.    In our opinion, the contention raised cannot be accepted.   Sub-section
(1) of Section 7 of Chhattisgarh Vishwavidyalaya Adhiniyam, 1973 reads as
under :
"7(1)    Save as otherwise provided in this Act, the powers
conferred on the University by or under this Act shall not
extend beyond the limits of the territorial jurisdiction specified
in the Second Schedule from time to time.

Provided that the State Government may authorize the
University to associate or to admit to any of its privileges
colleges situated within the state outside the aforesaid limits in
accordance with the provisions of this Act and the Statutes
made thereunder.

Provided further that where the University provides for
instruction through correspondence nothing contained in this
section shall be construed to debar the University from
admitting to such course of instructions students residing
outside the aforesaid limits.

Provided also that for imparting Oriental Sanskrit
education any Sanskrit College imparting Oriental Sanskrit
education in Madhya Pradesh shall be affiliated either to Pt.
Ravishankar Shukla University, Raipur or any other University
which the State Government may notify."


8.    The Second Schedule to the Act gives the territorial jurisdiction of Pt.
Ravishankar Shukla Vishwavidyalaya, Raipur, and Guru Ghasidas
Vishwavidyalaya, Bilaspur, which are the two State universities functioning
in Chhattisgarh.    The territorial jurisdiction of these universities is confined
to districts which are within the State of Chhattisgarh.  In view of this clear
provision of the Adhiniyam, no statute can be made which may permit
affiliation of any institution or college to a State university in Chhattisgarh if
the said institution or college is situate outside the State of Chhattisgarh. 
The validity of the impugned statute, therefore, cannot be assailed on the
ground urged by learned counsel for the petitioner. 

9.    Learned counsel for the petitioner has submitted that if the study
centres make an application seeking affiliation to a university which has
territorial jurisdiction over the place where the study centre is situate, the
same may not be granted in view of the direction given by this Court in
paragraph 45 of the judgment which has been reproduced above and in this
connection he has referred to the following sentence occurring therein :

"In order to protect the interest of the students who may be
actually studying in the institutions established by such private
Universities, it is directed that the State Government may take
appropriate measures to have such institutions affiliated to the
already existing State Universities in Chhattisgarh."

10.    At the time of hearing of the writ petition filed by Prof. Yashpal, it
was not brought to the notice of the Court that the private universities had
established large number of study centres at various places all over the
country.  We, therefore, consider it proper to clarify that while making the
aforesaid observation, it was not meant that affiliation must necessarily be
sought only with an already existing State university in Chhattisgarh.  The
institutions of the erstwhile private universities, if otherwise eligible, may
apply and seek affiliation with any other university which has jurisdiction
over the area where the institution is functioning and is empowered under
the relevant Rules and Regulations and other provisions of law applicable to
the said university to grant affiliation.  The decision on the application may
be taken expeditiously in the interest of student community and there should
be no prolonged uncertainty about their future.   

11.    It may also be mentioned here that Prof. P.C. Upadhyay, Chairman of
Chhattisgarh Niji Kshetra Vishwavidyalaya Regulatory Commission had
sent a letter on 23rd March, 2005 to the sponsoring body of an erstwhile
university, wherein the following decision of the Government of
Chhattisgarh was communicated :


"As you are the Chairman of the Sponsoring Body of one of the
Universities mentioned above, it is our duty to inform you, that
in case you are running any off campus/study centre in or
around Delhi in the NCR, you may immediately approach the
Guru Gobind Singh Indraprastha University, Delhi for granting
affiliation, to such off campus/study centre, so as to ensure that
the students are no longer subjected to avoidable anxiety and
uncertainty.  

Further, please note that for completion of any formalities by
UGC, AICTE, etc. you must start action likewise.

Also, for other off campuses or study centres outside
Chhattisgarh for grant of affiliation, you may approach the
University of the State where they are located, in the light of the
Supreme Court judgment as well as the statement of the HRD
Minister.  In case of any difficulties, please send us the
communication for taking up the matter with UGC and related
bodies."

    The study centres of erstwhile Rai University which are outside the
State of Chhattisgarh may take appropriate steps for their affiliation in the
light of the clarification made above and the letter dated 23rd March, 2005 of
the Chairman of Chhattisgarh Niji Kshetra Vishwavidyalaya Regulatory
Commission.

12.    We, therefore, find no merit in this special leave petition, which is
hereby dismissed.    All the IAs moved in this petition are also dismissed.


Special Leave Petition (Civil) No. 16520 of 2005

Erstwhile Mewar University                ... Petitioner
        Versus
State of Chhattisgarh & Ors.                ... Respondents

    This special leave petition has been filed challenging the judgment
and order dated 22.7.2005 of the High Court of Chhattisgarh by which Writ
Petition No.2954 of 2005 filed by erstwhile Mewar University has been 
dismissed.    The petitioner has challenged the vires of clause 5 of Statute
No.27(A) enacted by the State of Chhattisgarh in accordance with the
provisions of Section 36 of the Chhattisgarh Vishwavidyalaya Adhiniyam
1973.  
    For the reasons given in Special Leave Petition (Civil) No.10506 of
2005, this special leave petition is dismissed.   All the IAs moved in this
petition are also dismissed.
WRIT PETITION (CIVIL) NO.19 OF 2004

Prof. Yashpal & Anr.                        Petitioners
    Versus
State of Chhattisgarh & Ors.                 Respondents
I.A. Nos.11-12 of 2005
    These applications have been moved seeking clarification of the
direction contained in paragraphs 45 and 46 of the judgment and for giving
appropriate directions in order to protect the students studying in study
centres established outside the State of Chhattisgarh. The necessary
clarification has been given in Special Leave Petition (Civil) No.10506 of
2005 and no further clarification is required.   The IAs are disposed of
accordingly.

I.A. No.8 of 2005
    The prayer made in this application is that the State Government may
be directed to take appropriate steps to notify certain institutions as
universities keeping in view the fact that such institutions have already been
inspected by the UGC.   Since the Act itself has been declared to be ultra
vires and a direction has been issued by this Court in Writ Petition (Civil)
No.19 of 2004 that all universities shall cease to exist, the prayer made in
this application cannot be granted.  It is accordingly rejected. 

I.A. No.14 of 2005
    This application has been moved by erstwhile Mewar University,
which was a private university.  The applicant claims that it is running two
institutes; one in Ghaziabad (State of U.P.) and the other at Chittorgarh
(State of Rajasthan).  The principal prayer made is that a direction be issued
to the State Government of Chhattisgarh to ensure the affiliation of the
students, who are studying in the aforesaid institutes.   Having regard to the
fact that the institutes are located outside the State of Chhattisgarh, no such
direction can be issued to the State of Chhattisgarh.  It is open to the
institutes, if otherwise eligible, to seek affiliation with any other university
which has jurisdiction and is empowered under the relevant Rules and
Regulations and other provisions of law applicable to the said university to
grant affiliation.  If the applicant feels aggrieved by the decision taken by the
University or any other authority, it is open to it to challenge the same before
the appropriate forum in accordance with law. The application is accordingly
rejected.

I.A. No.22 of 2005
    This application has been moved by 11 students who claim to be
studying in Ghaziabad and Chittorgarh institutes of erstwhile Mewar
Univeristy.  The prayer made is that a direction be issued to affiliate the
institutes to a university in the State of Chhattisgarh.   For the reasons
already given in Special Leave Petition (Civil) No.10506 of 2005, such a
prayer cannot be granted. 

In the alternative, a prayer has been  made that a direction be issued to
affiliate the institutes with Chaudhary Charan Singh University, Meerut
and/or U.P. Technical University, Lucknow or Mohan Lal Sukhadia
University, Udaipur.  The applicants were not party to the writ petition.  It is
for the institutes to make appropriate application to the concerned university
which has jurisdiction and is empowered under the relevant Rules and
Regulations and other provisions of law applicable to the said university to
grant affiliation.  The application is accordingly rejected.

I.A. No.15 of 2005
    This application has been moved by erstwhile Jaipuria University
(Respondent No.42 to the writ petition) praying that AICTE and UP
Technical University be directed to grant one time approval and affiliation 
for the 22 students who have been pursuing a full time regular course of
study of the prescribed syllabus for MBA, meeting the standards set down
by the AICTE and have also appeared in the 1st year examination conducted
by the U.P. Technical University.   Learned counsel has submitted that
Jaipuria University is running an institute for imparting MBA degree in
Noida, which is affiliated to U.P. Technical University and 60 students are
studying there.   The notification establishing the Jaipuria University was
issued on 6.9.2003 and thereafter 22 students were admitted for MBA course
in the said university.  After the decision in the case of Prof. Yashpal
(supra), the university ceased to exist.   As a result, the said 22 students are
facing problem regarding continuance of their M.B.A. course.   The record
shows that an application was given to the Vice-Chancellor, U.P. Technical
University seeking affiliation regarding those 22 students.  However, vide
letter dated 19.6.2005 of the Registrar of U.P. Technical University, it was
informed that the affiliation was not found justifiable by the Chancellor of
the university.  In our opinion, the relief sought cannot be granted in an
application moved in an already decided writ petition on entirely new facts
pleaded for the first time.  The application is accordingly rejected.

I.A. No.18 of 2005
    This application has been moved by a student who claims to have
been studying in the Mumbai Campus of the erstwhile Rai University and
the prayer made is that a direction be given to either affiliate the Off Campus
to Chhattisgarh University or to Mumbai University or to any other
university in Maharashtra.   For the reasons given in Special Leave Petition
(Civil) No.10506 of 2005, it is not possible to grant the first prayer regarding
affiliation with a University in Chhattisgarh. 

Learned counsel has submitted that there are two enactments, namely,
Maharashtra Educational Institutions (Transfer of Management) Act, 1971
and Maharashtra Educational Institutions (Management) Act, 1976, which
empower the State Government to appoint Administrator over an
educational institution and having regard to the fact that Rai University has
ceased to exist, some direction should be issued to the Government of
Maharashtra to protect the interest of the students.   In our opinion, it will
not be proper for us to issue any direction as prayed for by the learned
counsel for the applicant as the State of Maharashtra was not a party to the
writ petition.   It is always open to the applicant or any other student to
approach the State Government for appropriate relief.   The application is
accordingly rejected.  

I.A. No.19 of 2005
    This application has been moved by certain students of erstwhile
ICFAI University (respondent no.73 to the writ petition), who claim to have
been studying in a five-year law course.  The first prayer made in the
application is that a clarification may be issued that the direction contained
in paragraphs 45 and 46 of the judgment would apply to all the existing
students who are studying in the Off Campus law school of erstwhile ICFAI
University at Hyderabad. For the reasons given in Special Leave Petition
(Civil) No.10506 of 2005, such a prayer cannot be granted.

In the alternative, learned counsel has submitted that the law school of
erstwhile ICFAI University may be affiliated to any university in Andhra
Pradesh.  It is not possible to issue such a direction as the State of Andhra
Pradesh or any university in the said State were not even a party to the writ
petition.   It is always open to the law school to move an appropriate
application seeking affiliation to a University which has jurisdiction and is
empowered under the relevant Rules and Regulations and other provisions
of law applicable to the said university.  The application is accordingly
dismissed. 

I.A. Nos. 9, 16 and 17 of 2005

    In view of the orders passed in the aforesaid IAs, no order needs to be
passed in these IAs.   The same are accordingly disposed of.

Civil Writ Petition No.267 of 2005
Divya Tiwari & Ors.                         ... Petitioners
    Versus
State of Chhattisgarh & Ors.                    ... Respondents


    This petition under Article 32 of the Constitution of India has been
filed by three petitioners who claim to be students of an Off Campus of an
erstwhile private university known as SRI University, which is situate in
Akbarpur, District Ambedkar Nagar in the State of U.P.   The prayer made
in the writ petition is that a writ of mandamus be issued directing the
University and the Off Campus to hold their examination.  

    In view of the decision in the case of Prof. Yashpal (supra), the
University has ceased to exist and the Off Campus being outside the State of
Chhattisgarh, no relief can be granted.   The writ petition is accordingly
dismissed.

Satish Jaggi Vs. State of Chhattisgarh & Ors

CASE NO.:
Appeal (crl.)  241 of 2007

PETITIONER:
Satish Jaggi

RESPONDENT:
State of Chhattisgarh & Ors

DATE OF JUDGMENT: 22/02/2007

BENCH:
Dr. ARIJIT PASAYAT & R.V. RAVEENDRAN

JUDGMENT:
J U D G M E N T
(Arising Out of S.L.P (Crl.) No. 6154 of 2006)



Dr. ARIJIT PASAYAT, J.



    Leave granted.


Challenge in this appeal is to the order passed by a
learned Single Judge of the Chhattisgarh High Court
dismissing the transfer petition filed under Section 407 of the
Code of Criminal Procedure, 1973 (for short 'the Code') for
transferring of Sessions Trial no.329/2005 (State through CBI
v. Amit Jogi and 30 others), pending in the Court of Sessions
Judge, Raipur, Chhattisgarh to some other Court. The transfer
was sought for primarily on the ground that the Sessions
Judge before whom the trial was pending is the elder brother
of a sitting MLA who is very close to the father of respondent
no.3, one of the main accused persons. It was alleged that the
father of respondent no. 3 was the previous Chief Minister of
the state and that he and the brother of the Learned Sessions
Judge belong to the same political party. It was further stated
that the said MLA was very close to the father of respondent
no.3 who was earlier the Chief Minister of the State. 
Therefore, according to the appellant, he was under a bona
fide and genuine apprehension that he will not get justice if
the trial is conducted and concluded by the present Sessions
Judge.  It was also stated that the major part of the trial was
conducted by the third Additional Sessions Judge, Raipur. By
order dated 21.6.2006 the case was transferred to the Court of
the Session Judge, Raipur (Shri R. S. Sharma) who examined
four prosecution witnesses and 21 defence witnesses. At that
stage, Shri R. S. Sharma was transferred as Sessions Judge,
Janigir- Champa and Shri Sanman Singh was posted in his
place as the Sessions Judge. Therefore, prayer was made to
transfer to the Court of Sessions Judge, Janigir-Champa,
where the previous Sessions Judge was posted so that he
could conclude the trial by camping at Raipur for that
purpose.  The High Court held that assurance of fair trial is
imperative for the dispensing of justice and the primary
consideration for the Court is to consider whether a motion of
transfer is made out and the High Court is not required to lay
stress on hypersensitivity or relative convenience of a party. 
The High Court felt that the grounds set forth by the appellant
seeking transfer cannot be considered to be sufficient to direct
transfer. Merely because the brother of the trial Judge was a
sitting MLA, that cannot be a ground to prima facie come to a
conclusion that there would be pressure through either by the
brother or father of the accused who was supposed to be close
to his brother.  It was further noted that the trial is at a final
stage and about 150 prosecution witnesses and all the defence
witnesses have been examined and what remains to be done is
to hear the arguments and pass the judgment.  Therefore, the
prayer was rejected.

Learned counsel for the appellant submitted that
ultimately administration of justice rests on many principles
and one of the fundamental principles is that justice should
not only be done but it should be seen to be done.  The
present case is not one where a mere allegation is made. 
There is no dispute that the brother of the present Sessions
Judge is a sitting MLA belonging to a particular party of which
respondent no.3's father was earlier the leader and the Chief
Minister.

Mr. K.K. Venugopal,  learned senior advocate, appearing
for some of the respondents submitted that if the allegation is
accepted it would be doubting the impartiality of the present
Sessions Judge.  There is no material to show that the Judge
has any bias or any partisan attitude. The fortuitous
circumstances that his brother is an MLA cannot be a factor to
doubt the judicial discipline of the Sessions Judge.

The law with regard to transfer of cases is well settled.
This Court in the matter of Gurcharan Dass Chadha v. State
of Rajasthan (AIR 1966 SC 1418) held that a case is
transferred if there is a reasonable apprehension on the part of
a party to a case that justice will not be done. This Court said
that a petitioner is not required to demonstrate that justice
will inevitably fail.  He is entitled to a transfer if he shows
circumstances from which it can be inferred that he entertains
an apprehension and that it is reasonable in the
circumstances alleged.  This Court further held that it is one
of the principles of the administration of justice that justice
should not be done but it should be seen to be done. The court
has further to see whether the apprehension is reasonable or
not.  This Court also said that to judge the reasonableness of
the apprehension, the state of the mind of the person who
entertains the apprehension is no doubt relevant but that is
not all.  The apprehension must not only be entertained, but
must appear to the court to be a reasonable apprehension.

It was further held by this Court in Mrs. Maneka Sanjay
Gandhi and Anr. V. Miss Rani Jethmalani (AIR 1979 SC 468)
that assurance of a fair trial is the first imperative of the
dispensation of justice and the central criterion for the court
to consider when a motion for transfer is made is not the
hypersensitivity or relative convenience of a party or
availability of legal services or any like grievance.  Something
more substantial, more compelling, more imperiling, from the
point of view of public justice and its attendant environment,
is necessitous if the court is to exercise its power of transfer. 
This is the cardinal principle although the circumstances may
be myriad and vary from case to case.  This Court, in the facts
and circumstances of the case, said that the grounds for the
transfer have to be tested on this touchstone bearing in mind
the rule that normally the complainant has the right to choose
any Court having jurisdiction and the accused cannot dictate
where the case against him should be tried.  It further said
that even so, the process of justice should not harass the
parties and from that angle the court may weigh the
circumstances.


In Abdul Nazar Madani v. State of Tamil Nadu (AIR 2000
SC 2293) this Court stated that the purpose of the criminal
trial is to dispense fair and impartial justice uninfluenced by
extraneous considerations. When it is shown that public
confidence in the fairness of a trial would be seriously
undermined, any party can seek the transfer of a case within
the State under Section 407 and anywhere in the country
under Section 406 of the Code.  The apprehension of not
getting a fair and impartial inquiry or trial is required to be
reasonable and not imaginary based upon conjectures and
surmises. If it appears that the dispensation of criminal justice
is not possible impartially and objectively and without any
bias, before any Court or even at any place, the appropriate
Court may transfer the case to another Court where it feels
that holding of fair and proper trial is conducive. No universal
or hard and fast rules can be prescribed for deciding a transfer
petition which has always to be decided on the basis of the
facts of each case. Convenience of the parties including the
witnesses to be produced at the trial is also a relevant
consideration for deciding the transfer petition. The
convenience of the parties does not necessarily mean the
convenience of the petitioners alone who approached the court
on misconceived notions of apprehension. Convenience for the
purposes of transfer means the convenience of the
prosecution, other accused, if any, the witnesses and the
larger interest of the society.
 In G.X. Francis v. Banke Bihari Singh (AIR 1958 SC 309)
this Court felt that where public confidence in the fairness of
the trial is likely to be seriously undermined under the
circumstances of the case, transfer petition could be allowed.
On finding that "there is uniformity of testimony from both
sides about the nature of surcharged communal tension in
that area," the Court found that the local atmosphere was not
conducive to a fair and impartial trial which was a good
ground for transfer. The court rejected the contention of the
petitioner therein regarding the wild allegations made to the
effect that no court in the State of M.P. would be unbiased or
impartial for dispensing justice. In the peculiar facts and
circumstances of the case, the trial was transferred to an
adjoining court. The mere existence of a surcharged
atmosphere without there being proof of inability for holding
fair and impartial trial cannot be made a ground for transfer of
a case. Alleged communally surcharged atmosphere has to be
considered in the light of the accusations made and the nature
of the crime committed by the accused seeking transfer of his
case. It will be unsafe to hold that as and when accusations
are made regarding the existence of a surcharged communal
atmosphere, the case should be transferred from the area
where existence of such surcharged atmosphere is alleged.


The position was also examined in Pal Singh and Anr. V.
Central Bureau of Investigation and Ors. (2005 (12) SCC 329).
In that case, considering the fact that large number of
witnesses had been examined and few more witnesses were
left to be examined, this Court set aside the order of the High
Court transferring the case from one Sessions Court to
another.  The High Court was, therefore, held to be not
justified in entertaining the petition for transfer. 

In this case, one thing which has to be kept in view is
that the Sessions Judge himself has not indicated his
disinclination to hear the matter. That is probably because he
believes that the mere fact that his brother is known to some
political heavyweight cannot stand in his way of discharging
judicial function impartially without fear and favour.  These
are the hallmarks of judicial system.  A judicial officer in
whatever capacity he may be functioning has to act with the
belief that he is not to be guided by any factor other than to
ensure that he shall render a free and fair decision which
according to his conscience is the right one on the basis of
materials placed before him.  There can be no exceptions to
this imperative, but at the same time there should not be any
scope given to any person to go away with the feeling that the
Judge was biased, however unfounded the impression may be.
The qualities desired of a Judge can be simply stated: "that if
he be a good one and that he be thought to be so". Such
credentials are not easily acquired. The Judge needs to have
"the strength to put an end to injustice" and "the faculties that
are demanded of the historian and the philosopher and the
prophet". A few paragraphs from the book "Judges" by David
Pannick which are often quoted need to be set out here:
"The Judge has burdensome responsibilities to
discharge. He has power over the lives and
livelihood of all those litigants who enter his
court.His decisions may well affect the
interests of individuals and groups who are not
present or represented in court. If he is not
careful, the judge may precipitate a civil war.
Or he may accelerate a revolution.He may
accidentally cause a peaceful but fundamental
change in the political complexion of the
country.

    xx        xx        xx        xx

Judges today face tribulations, as well as
trials, not contemplated by their
predecessors.Parliament has recognized the
pressures of the job by providing that before
the Lord Chancellor recommends anyone to
the Queen for appointment to the Circuit
Bench, the Lord Chancellor 'shall take steps to
satisfy himself that the person's health is
satisfactory'.. This seems essential in the
light of the reminiscences of Lord Roskill as to
the mental strain which the job can
impose.Lord Roskill added that, in his
experience, 'the workload is intolerable: seven
days a week, 14 hours a day'

    xx        xx        xx        xx

    He (judge) is a symbol of that strange
mixture of reality and illusion, democracy and
privilege, humbug and decency , the subtle
network of compromises, by which the nation
keeps itself in its familiar shape". (See Brij
Mohan Lal v. Union of India and Ors. (2002 (5)
SCC 1)

We are sure that the present Sessions Judge would have
acted in the true sense of a judicial officer. But nevertheless to
ensure that justice is not only done, but also seen to be done
and the peculiar facts of the case, we feel that it will be
appropriate if the High Court transfers the case to some other
Sessions Court in Raipur itself. We make it clear that the
transfer shall not be construed as casting any aspersion on
the Learned Sessions Judge. The Trial Court before whom the
trial is to continue should ensure that the trial is completed by
the end of May, 2007. Needless to say, the parties shall co-
operate in the completion of the trial within the said time.

The appeal is accordingly disposed of.

PARVEEN MEHTA Vs. INDERJIT MEHTA

CASE NO.:
Appeal (civil) 3930  of  2002



PETITIONER:
PARVEEN MEHTA

    Vs.

RESPONDENT:
INDERJIT MEHTA

DATE OF JUDGMENT:    11/07/2002

BENCH:
D.P. MOHAPATRA, BRIJESH KUMAR.




JUDGMENT:



D.P.MOHAPATRA,J.


        Leave granted.

        What is the meaning and import of the
expression 'cruelty' as a matrimonial offence is the core
question on the determination of which depends the result
and the fate of this case.

The appellant is the wife of the respondent.  They
were married according to Hindu rites and customs  on 6th
December, 1985.     The marriage was preceded by
negotiation between the two families, ring exchange
ceremony, etc.    A meeting between the boy and the girl was
also arranged at Yamuna Nagar in the State of Haryana.
After marriage the spouses stayed together at Panipat
where the respondent was posted as a Judicial Officer.
They lived together till 28th April, 1986 when they parted
company never to stay together again.  It is the case of the
respondent that right from the first day of the marriage he
sensed something abnormal with his wife; he was unable
to consummate the marriage as there was no cooperation
from the side of the wife for sexual intercourse.  Despite
several attempts cohabitation was not possible for lack of
cooperation on the part of the wife.  It is the further case of
the respondent that when he first met his wife when some
members of the two families met he had noticed that she
was looking  very frail and weak. When he wanted to know
the reason for such state of her health her father and other
relations told him that she had been undergoing a strict
diet control and had been making efforts to reduce her
w.eight

  On questioning his wife immediately after the
marriage the respondent could ascertain that she was
suffering from some ailment and she was under the
treatment of Vaid Amar Nath Sastry of Chandigarh. On
10th December, 1985 the respondent took his wife to see
Mr.Sastry at Chandigarh who informed him that father of
the girl was his close friend and he was already seized of
the problems of her health.  He gave some medicines to be
taken by her.  Thereafter they returned to Yamuna Nagar
where parents of the respondent were living. Subsequently,
the respondent took the appellant to Panipat where he was
posted and they started living there and continued with
the medicines.    In February, 1986 the appellant agreed to
be examined by    Dr.B.M.Nagpal of Civil Hospital, Panipat.
The doctor advised a thorough check up and diagnosis.
However, this was not possible since the appellant  did not
cooperate and ultimately gave out because she was not
interested in taking any medical treatment.

        The respondent further alleged that the state of
health of the appellant continued to deteriorate; she
continued to lose weight; she suffered from asthmatic
attacks; on account of her ailment her behavior became
quarrelsome; and  on trifle matters she threatened to leave
the matrimonial home.  It was further contended that
during her stay at Panipat when Surinder Singh Rao and
Virender Jain, friends of the respondent  visited his place,
the appellant refused to prepare tea and started
misbehaving with him in presence of the outsiders thereby
causing embarrassment to him.  Ultimately on 28th April,
1986 her brother and brother's wife came to Panipat and
took the appellant with them.    It was the further case of
the respondent that when the appellant was with her
parents several attempts were made by him offering to give
her the best possible medical treatment so that the
condition of her health may improve and both of them
could lead a happy married life.  All such attempts failed.
The offer of medical treatment was rejected and even
nature of the ailment suffered by her was not disclosed to
the respondent.

On one occasion when Shri S.K. Jain, a senior officer
of the Judicial Service, then the Legal Remembrancer of
Haryana and who later became a Judge of the High Court
was discussing the matter with the parties with a view to
bring about a settlement the appellant caught hold of the
shirt collar of the respondent and created an ugly and
embarrassing situation.     Again on 30th July 1986 the
appellant accompanied by a number of persons searched
for the respondent in the Court premises at Kaithal and
not finding him there forcibly entered his house and
threatened him.     A report about the incident was sent to
the superior officer of the respondent.     Alleging the
aforestated facts and circumstances the respondent filed
the petition in August, 1996 seeking dissolution of the
marriage on the grounds of cruelty and desertion.

    The appellant refuted the allegations made in the
petition.  She denied that her husband had been misled
regarding the state of her health before their marriage. She
alleged that the marriage was duly consummated and the
phera ceremony was performed; and that her husband had
been expressing full love and affection towards her. She
denied that she suffered from any serious ailment and had
been treated by Vaid Amar Nath Sastri. It was her case
that she had become pregnant from the wedlock but
unfortunately there was miscarriage.  It was the further
case of the appellant that the respondent and his parents
wanted to  pressurise    the appellant and her parents to
agree for a divorce by mutual consent.    On 21st June, 1987
when a meeting of relations of both sides took place at the
house of her mother's sister Smt.Parakash Kapur at
Yamuna Nagar the respondent  stated that the appellant
was too frail and weak; that she must be suffering from
some disease and therefore, he was not prepared to take
her back.  Thereafter several attempts were made by her
parents and other relations to persuade the respondent to
take the appellant to his house but such attempts were of
no avail on account of want of any response from the
respondent and his parents.

    On the pleadings of the parties, the Trial Court
framed the following issues :

"1)   Whether the respondent-wife has
deserted the petitioner, if so, its
effect? OPP

2)    Whether the respondent-wife is
guilty of cruelty, if so, its effect?
OPP

3)    Whether this petition is barred by
latches, in accordance with
Section 23(1a) and (d) of the Act?
OPP

4)    Relief."


Both the parties led evidence, both oral and
documentary, in support of their cases.     The Trial Court on
assessing the evidence on record, dismissed the petition
for divorce filed by the respondent.

The respondent filed an appeal, FAO No.42-M/99
before the High Court assailing the judgment of the Trial
Court.    The appeal was allowed by the learned Single
Judge by the judgment rendered on 1st June, 2000.  The
learned Single Judge granted the prayer of the    respondent
for dissolution of the marriage on the ground of cruelty
and further held that as the marriage took place about 14
years ago and there was no child out of the wedlock it
would be in the interest of justice that the parties should
be separated from each other.  The operative portion of the
judgment is quoted hereunder :

"In view of the discussion as such the
only conclusion which can be arrived
at is that despite the fact that the
respondent is a good lady but has
created the aforesaid situation because
of her own act and conduct concerning
the non-disclosure of her state of
health and concealment by her above
acted as a mental and physical cruelty
to the appellant which entitles him to a
decree of divorce.  Therefore, the
findings of the learned District Judge
on issue Nos.1 to 3 are reversed.

    For the foregoing reasons, the
appeal is allowed, marriage between
the parties stands dissolved and a
decree of divorce on the grounds of
desertion and cruelty is hereby granted
in favour of the appellant (husband)
and against the respondent (wife).  In
the circumstances of the case, the
parties are left to bear their own costs.
However, it would be appropriate to
ask the husband not to remarry till
30.9.2000. Hence ordered accordingly."


    The wife, who is the appellant herein, filed an appeal
before the Division Bench,  Letters Patent Appeal No.1000
of 2000, assailing the judgment of the learned Single
Judge.    The Division Bench of the High Court by the
judgment rendered on 8th August, 2000  dismissed the
Letters Patent Appeal in limine.  The Division Bench held:
"Even otherwise, in the facts and circumstances of the
case in hand, in our view, it cannot be said that the
husband has tried to take advantage of any wrong on his
part.  Rather, he did make the best possible effort to
explore the possibility of detecting the deficiency or
disease, if any, and for treatment of poor health of his wife.
But, all in vain. We find no merit in the Letters Patent
Appeal.     It is, therefore, dismissed in limine."   The said
judgment is under challenge in this appeal.

Shri Ujjagar Singh, learned senior counsel appearing
for the appellant contended that in the context of facts and
circumstances of the case the High Court has erred in
granting the prayer for divorce by the respondent on the
sole ground of cruelty.     He further contended that even
assuming that the spouses did not enjoy normal sexual
relationship with each other on account of frail health of
the appellant and there were heated exchanges between
the parties followed by     the appellant catching hold of shirt
collar of the husband, that is not sufficient to establish a
case of cruelty for the purpose of Section 13(1)(ia) of the
Act.  Shri Singh also contended that if the ground of
cruelty fails then the further ground stated in favour of the
decree of divorce that the marriage has irretrievably broken
down will be of no avail to the respondent.

Shri Sudhir Chandra, learned senior counsel
appearing for the respondent strenuously contended that
in the facts and circumstances of the case the High Court
rightly recorded the finding of cruelty by the appellant
towards the respondent.     Elucidating the point Shri Sudhir
Chandra submitted that the respondent was kept in the
dark about the poor state of health of the appellant at the
time of the marriage negotiations despite the query made
by him about the reason for her frail and weak health.
After marriage when the respondent was prepared to
provide the best possible medical treatment to improve her
health neither the appellant nor her parents extended their
cooperation in the matter.  Further, the erratic and
impulsive behavior of the wife caused serious
embarrassment to the respondent before his friends and
colleagues.  The cumulative effect of all the aforesaid facts
and circumstances of the case, according to Shri Sudhir
Chandra, give rise to reasonable apprehension in the mind
of the respondent that it is not safe to continue
matrimonial relationship with the appellant. Thus a case of
cruelty for the purpose of Section 13(1)(ia) was made out. It
was the further contention of Shri Sudhir Chandra that
the respondent remarried in December, 2000, two years
after the judgment of the Single Judge and nearly four
months after the judgment of the Division Bench was
rendered.  In the facts and circumstances of the case,
urged Shri Sudhir Chandra, this is not a fit case for this
Court to interfere with the judgment and decree passed by
the High Court in exercise of its jurisdiction under Article
136 of the Constitution of India.

As noted earlier, the learned Single Judge granted
the respondent's prayer for dissolution of the marriage on
the ground of 'cruelty'.   Therefore, the question arises
whether in the facts and circumstances of the case a case
for divorce under Section 13(1)(ia) of the Hindu Marriage
Act,1955 (for short 'the Act') has been made out.  The
answer to this question depends on determination of the
question formulated earlier.  In Section 13(1) it is laid
down that :

"Divorce.- (1) Any marriage
solemnized, whether before or after the
commencement of this Act, may, on a
petition presented by either the
husband or the wife, be dissolved by a
decree of divorce on the ground that
the other party

xxx            xxx        xxx

(ia)    has, after the solemnization of
the marriage, treated the petitioner
with cruelty;"


Under the statutory provision cruelty includes both
physical and mental cruelty.  The legal conception of
cruelty and the kind of degree of cruelty necessary to
amount to a matrimonial offence has not been defined
under the Act. Probably, the Legislature has advisedly
refrained from making any attempt at giving a
comprehensive definition of the expression that may cover
all cases, realising the danger in making such attempt.
The accepted legal meaning in England as also in India of
this expression, which is rather difficult to define, had
been 'conduct of such character as to have caused danger
to life, limb or health (bodily or mental), or as to give rise to
a reasonable apprehension of such danger' (Russel v.
Russel [(1897) AC 395 and Mulla Hindu Law, 17th Edition,
Volume II page 87].  The provision in clause (ia) of Section
13(1), which was introduced by the Marriage Laws
(Amendment) Act 68 of 1976,    simply states that 'treated
the petitioner with cruelty'.  The object, it would seem, was
to give a definition exclusive or inclusive, which will amply
meet every particular act or conduct and not fail in some
circumstances. By the amendment the Legislature must,
therefore, be understood to have left to the courts to
determine on the facts and circumstances of each case
whether the conduct amounts to cruelty. This is just as
well since actions of men are so diverse and infinite that it
is almost impossible to expect a general definition which
could be exhaustive and not fail in some cases.     It seems
permissible, therefore, to enter a caveat against any
judicial attempt in that direction (Mulla Hindu Law, 17th
Eidition, Volume II, page 87).

    This Court in the case of Dastane vs. Dastane, AIR
1975 SC 1534, examined the matrimonial ground of
cruelty as it was stated in the old Section 10(1)(b) and
observed that any inquiry  covered by that provision had to
be whether the conduct charged as cruelty is of such a
character as to cause in the mind of the petitioner a
reasonable apprehension     that it will be harmful or
injurious to live with the respondent.     It was further
observed that it was not necessary, as under the English
law that the cruelty must be of such a character as to
cause danger to life, limb or health, or as to give rise to a
reasonable apprehension of such a danger though, of
course, harm or injury to health, reputation, the working
character or the like would be an important consideration
in determining whether the conduct of the respondent
amounts to cruelty or not.  In essence what must be taken
as fairly settled position is that though the clause does not
in terms say so it is abundantly clear that the application
of the rule must depend on the circumstances of each
case; that 'cruelty' contemplated is conduct of such type
that the petitioner cannot reasonably be expected to live
with the respondent. The treatment accorded to the
petitioner must be such as to  cause an apprehension in
the mind of the petitioner that cohabitation will be so
harmful or injurious that she or he cannot reasonably be
expected to live with the respondent having regard to the
circumstances of each case, keeping always in view the
character and condition of the parties, their status
environments and social values, as also the customs and
traditions governing them.

In the case of Savitri Pandey vs. Prem Chandra
Pandey, (2002) 2 SCC 73, this Court construing the
question of 'cruelty' as a ground of divorce under Section
13(1)(ia) of the Act made the following observations :

"Treating the petitioner with cruelty is
a ground for divorce under Section
13(1)(i-a) of the Act.    Cruelty has not
been defined under the Act but in
relation to matrimonial matters it is
contemplated as a conduct of such
type which endangers the living of the
petitioner with the respondent.     Cruelty
consists of acts which are dangerous to
life, limb or health.  Cruelty for the
purpose of the Act means where one
spouse has so treated the other and
manifested such feelings towards her
or him as to have inflicted bodily
injury, or to have caused reasonable
apprehension of bodily injury, suffering
or to have injured health.  Cruelty may
be physical or mental.    Mental cruelty
is the conduct of other spouse which
causes mental suffering or fear to the
matrimonial life of the other. "Cruelty",
therefore, postulates a treatment of the
petitioner with such cruelty as to cause
a reasonable apprehension in his or
her mind that it would be harmful or
injurious for the petitioner to live with
the other party.  Cruelty, however, has
to be distinguished from the ordinary
wear and tear of family life.  It cannot
be decided on the basis of the
sensitivity of the petitioner and has to
be adjudged on the basis of the course
of conduct which would, in general, be
dangerous for a spouse to live with the
other.    In the instant case both the
trial court as well as the High Court
have found on facts that the wife had
failed to prove the allegations of cruelty
attributed to the respondent.
Concurrent findings of fact arrived at
by the courts cannot be disturbed by
this Court in exercise of powers under
Article 136 of the Constitution of India.
Otherwise also the averments made in
the petition and the evidence led in
support thereof clearly show that the
allegations, even if held to have been
proved, would only show the sensitivity
of the appellant with respect to the
conduct of the respondent which
cannot be termed more than ordinary
wear and tear of the family life."


This Court, construing the question of mentral
cruelty under Section 13(1)(ia) of the Act, in the case of
G.V.N.Kameswara Rao vs. G.Jabilli, (2002) 2 SCC 296,
observed :

"The court has to come to a conclusion
whether the acts committed by the
counter-petitioner amount to cruelty,
and it is to be assessed having regard
to the status of the parties in social
life, their customs, traditions and other
similar circumstances.    Having regard
to the sanctity and importance of
marriages in a community life, the
court should consider whether the
conduct of the counter-petitioner is
such that it has become intolerable for
the petitioner to suffer any longer and
to live together is impossible, and then
only the court can find that there is
cruelty on the part of the counter-
petitioner.  This is to be judged not
from a solitary incident, but on an
overall consideration of all relevant
circumstances."


Quoting with approval the following passage from the
judgment in V.Bhagat vs. D.Bhagat, (1994) 1 SCC 337,
this Court observed  therein:
"Mental cruelty in Section 13(1)(i-a)
can broadly be defined as that conduct
which inflicts upon the other party
such mental pain and suffering as
would make it not possible for that
party to live with the other.  In other
words, mental cruelty must be of such
a nature that the parties cannot
reasonably be expected to live together.
The situation must be such that the
wronged party cannot reasonably be
asked to put up with such conduct and
continue to live with the other party.    It
is not necessary to prove that the
mental cruelty is such as to cause
injury to the health of the petitioner.
While arriving at such conclusion,
regard must be had to the social
status, educational level of the parties,
the society they move in, the possibility
or otherwise of the parties ever living
together in case they are already living
apart and all other relevant facts and
circumstances which it is neither
possible nor desirable to set out
exhaustively.  What is cruelty in one
case may not amount to cruelty in
another case.  It is a matter to be
determined in each case having regard
to the facts and circumstances of that
case.  If it is a case of accusations and
allegations, regard must also be had to
the context in which they were made".


    Clause (ia) of sub-Section (1) of Section 13 of the Act
is comprehensive enough to include cases of physical as
also mental cruelty.  It was formerly thought that actual
physical harm or reasonable apprehension of it was the
prime ingredient of this matrimonial offence.  That doctrine
is now repudiated and the modern view has been that
mental cruelty can cause even more grievous injury and
create in the mind of the injured spouse reasonable
apprehension that it will be harmful or unsafe to live with
the other party.  The principle that cruelty may be inferred
from the whole facts and matrimonial relations of the
parties and interaction in their daily life disclosed by the
evidence is of greater cogency in cases falling under the
head of mental cruelty. Thus mental cruelty has to be
established from the facts (Mulla Hindu Law, 17th Edition,
Volume II, page 91).

    In the case in hand the foundation of the case of
'cruelty' as a matrimonial offence is based on the
allegations made by the husband that right from the day
one after marriage the wife was not prepared to cooperate
with him in having sexual intercourse on account of which
the marriage could not be consummated.    When the
husband offered to have the wife treated medically she
refused. As the condition of her health deteriorated she
became irritating and unreasonable in her behaviour
towards the husband.   She misbehaved with his friends
and relations.      She even abused him, scolded him and
caught hold of his shirt collar in presence of elderly
persons like Shri S.K.Jain.  This Court in the case of
Dr.N.G.Dastane Vs. Mrs.S.Dastane (supra), observed : "Sex
plays an important role in marital life and cannot be
separated from other factors which lend to matrimony a
sense of fruition and fulfillment".

Cruelty for the purpose of Section 13(1)(ia) is to be
taken as a behavior by one spouse towards the other
which causes reasonable apprehension in the mind of the
latter that it is not safe for him or her to continue  the
matrimonial relationship with the other.  Mental cruelty is
a state of mind and feeling with one of the spouses due to
the behavior or behavioral pattern by the other.  Unlike the
case of physical cruelty the mental cruelty is difficult to
establish by direct evidence.  It is necessarily a matter of
inference to be drawn from the facts and circumstances of
the case.  A feeling of anguish, disappointment and
frustration in one spouse caused by the conduct of the
other can only be appreciated on assessing the attending
facts and circumstances in which the two partners of
matrimonial life have been living.  The inference has to be
drawn    from the attending facts and circumstances taken
cumulatively. In case of mental cruelty it will not be a
correct approach to take an instance of     misbehavior in
isolation and then pose the question whether such
behaviour is sufficient by itself to cause mental cruelty.
The approach should be to take the cumulative effect of
the facts and circumstances emerging from the evidence
on record and then draw a fair inference whether the
petitioner in the divorce petition has been subjected to
mental cruelty due to conduct of the other.

Judged in the light of the principles discussed above
what we find is that right from the beginning the
matrimonial relationship between the parties was not
normal; the spouses stayed together at the matrimonial
home for a short period of about six months; the
respondent had been trying to persuade the appellant and
her parents to agree to go for proper medical treatment to
improve her health so that the parties may lead a normal
sexual life; all such attempts proved futile.  The appellant
even refused to subject herself to medical test as advised
by the doctor.    After 21st June, 1987 she stayed away from
the matrimonial home and the respondent was deprived of
her company.  In such circumstances, the respondent who
was enjoying normal health was likely to feel a sense of
anguish and frustration in being deprived of normal
cohabitation that every married person expects to enjoy
and also social embarrassment due to the behavior of the
appellant.  Further, the conduct of the appellant in
approaching the police complaining against her husband
and his parents and in not accepting the advice of the
superior judicial officer Mr.S.K.Jain and taking a false plea
in the case that she had conceived but unfortunately there
was miscarriage are bound to cause a sense of mental
depression in    the respondent.     The cumulative effect of all
these on the mind of the respondent, in our considered
view, amounts to mental cruelty caused due to the
stubborn attitude and inexplicably unreasonable conduct
of the appellant.

The learned Single Judge in his judgment has
discussed the evidence in detail and has based his findings
on such discussions.  In the Letters Patent Appeal  the
Division Bench on consideration of the facts and
circumstances of the case  agreed with the findings
recorded by the learned Single Judge.     In the context of
the facts and circumstances on record we are of the view
that the learned Single Judge rightly came to the
conclusion that the prayer of the respondent for
dissolution of the marriage on the ground of cruelty under
Section 13(1)(ia) of the Act was acceptable.  Therefore, the
Division Bench committed no error in upholding the
judgment of the learned Single Judge.

As noted earlier the parties were married on 6th
December,  1985. They stayed together for a short period
till 28th April 1986 when they parted company.    Despite
several attempts by relatives and well-wishers    no
conciliation between them was possible.     The petition for
the dissolution of the marriage     was filed in the year 1996.
In the meantime so many years have elapsed since the
spouses parted company.     In these circumstances it can be
reasonably inferred that the marriage between the parties
has broken down irretrievably without any fault on the
part of the respondent. Further the respondent has re-
married in the year 2000.  On this ground also the
decision of the High Court in favour of the respondent's
prayer for dissolution of the marriage should not be
disturbed.  Accordingly this appeal fails and is dismissed.
There will, however, be no order for costs

Freedom of speech and expression enjoyed by the newspaper industry is not keeping balance with the protection of children from harmful and disturbing materials.

CASE NO.:
Writ Petition (civil)  384 of 2005

PETITIONER:
Ajay Goswami

RESPONDENT:
Union of India & Ors

DATE OF JUDGMENT: 12/12/2006

BENCH:
Dr. AR. Lakshmanan & Tarun Chatterjee

JUDGMENT:
J U D G M E N T

Dr. AR. Lakshmanan, J.

The Petitioner is a lawyer by profession.  Respondent

No.1     is Union of India, respondent No.2 is a statutory body,

respondent Nos. 3 & 4 are the leading national daily

newspapers and respondent No.5 & 6 are news agencies.

The present petition involves a substantial question of

law and public importance on the fundamental right of the

citizens, regarding the freedom of speech and expression as

enshrined under Article 19(1)(a) of the Constitution of India. 

The petitioner's grievance is that the freedom of speech and

expression enjoyed by the newspaper industry is not keeping

balance with the protection of children from harmful and

disturbing materials.  Article 19(1)(a) guarantees freedom of

speech and expression of individual as well as press.  It

acknowledges that the press is free to express its ideas but on

the same hand, individual also has right to their own space

and right not to be exposed against their will to other's

expressions of ideas and actions.

By way of this petition, the petitioner requested the Court

to direct the authorities to strike a reasonable balance

between the fundamental right of freedom of speech and

expression enjoyed by the press and the duty of the

Government, being signatory of United Nations Convention on

the Rights of the Child, 1989 and Universal Declaration of

Human Rights, to protect the vulnerable minors from abuse,

exploitation and harmful effects of such expression.  The

petitioner requested the Court to direct the concerned

authorities to provide for classification or introduction of a

regulatory system for facilitating climate of reciprocal tolerance

which may include:-

(a)    an acceptance of other people's rights to express

and receive certain ideas and actions; and

(b)    accepting that other people have the right not to

be exposed against their will to one's expression

of ideas and actions. 

The reciprocal tolerance is further necessary considering

the growing tendency among youngsters and minors in

indulging in X-rated jokes, SMS and MMS.   

We heard Mr. Ajay Goswami, petitioner-in-person and

Mr. Harish Chandra, learned senior counsel, Mr. P.H. Parekh,

Mr. Sanjay Kumar, Mr. A.K. Seth, Mr. Gopal Jain, Mr. Vimal

Chandra, Mr. S. Dave, learned counsel appearing for the

respondents and the entire documents placed before us.

The Lawyer Petitioner who appeared in person submitted

that he filed this petition to seek protection from this Court to

ensure that minors are not exposed to sexually exploitative

materials, whether or not the same is obscene or is within the

law.  The real objective is that the nature and extent of the

material having sexual contents should not be exposed to the

minors indiscriminately and without regard to the age of

minor.  The discretion in this regard should vest with parents,

guardians, teachers or experts on sex education.

The petitioner is not in any way seeking restrain on the

freedom of press or any censorship prior to the publication of

article or other material.  The petitioner is only seeking for the

regulation at the receiving end and not at the source. 

Whatever is obscene is not protected by any law and there are

numerous avenues for the redressal of grievance for the

publication of any obscene material.  However, all sex oriented

material are not always obscene or even indecent or immoral. 

The effect of words or written material should always judged

from the standards of reasonable strong minded, firm and

courageous man i.e. an average adult human being.  No

attempt has been made till date to define any yardstick for the

minors whose tender minds are open for being polluted and

are like plain state on which any painting can be drawn.

1. Is the material in newspaper really harmful for the

minors?

These articles etc. may not be obscene within the four

corners of law but certainly have tendencies to deprave and

corrupt the minds of young and adolescent who by reasons of

their physical and mental immaturity needs special safeguards

and care.  He invited our attention to some of the clippings

annexed along with the petition.  These clipping are only

examples and such examples not only confine to newspapers

mentioned herein but is of general nature.  The double

meaning jokes cannot in any way leave healthy impact on the

tender minds of the teenagers.  The photographs certainly are

part of news from around the world and India.  However, the

tone and tenor of the article as a whole and the way some of

the photographs are published and described may not be in

the interest of the minors.  The photographs annexed at page

24 of the paper book and the caption below them such as "the

center of attention", "double jeopardy" "butt of course" leave

much for the thoughts of minors.  If the minor is of an age

where he/she cannot understand the meaning, he/she would

like to know from others and if the minor has come to an age

where he/she is able to understand this would certainly

energize his grey cells in the brain and would titillate him/her. 

What kind of culture and message the article titled "moan for

more" or "get that zing bag into your sex life" convey.  Is it

really necessary for a child to read at a very early stage the

concept of masturbation, ejaculation, penetration etc. as is

normally discussed by so called sex experts in columns of

newspapers.  At what age should we start telling our children

where to have sex and how to break their monotony.  News

item on MMS clipping is certainly not obscene but do we really

need to show the nude photographs with only small black

stripes on the private parts to our children without even

bothering of its effect.  In Times of India dated 1.8.2005 an

article titled "Porn In potter VI" was published, copy of which

is annexed with the petition.  The author has tried to read and

suggest sexual messages in these lines.  Children who were

reading the book might not have any such inclination. 

However, after reading newspaper their mind would certainly

wander to an area which the author might not have even

conceived.

No doubt, we are not living an era of Gandhari but

certainly we have culture and respect for elders and some

decorum and decency towards children.  Undoubtedly, such

kind of stuff is available freely on internet, movies; televisions

etc. but are the families and the community environment

really ready to accept it in toto or are they passive receiver of

the same without any control or check.  Are these articles

really making our children morally healthy?

Moral values should not be allowed to be sacrificed in the

guise of social change or cultural assimilation.

2.    Whether the minors have got any independent right

enforceable under Article 32 of the Constitution?

The right of the minor flows from Article 19(1)(a), Article 21

read with Article 39(f) of the Constitution of India and United

Nation Convention on the Rights of the Child.  In a recent

judgment delivered by this court in the matter of Director

General, Directorate General of Doordarshan & Ors. Vs.

Anand Patwardhan & Anr. (C.A.No. 613 of 2005), to which

one of us was a member, Dr. Justice AR. Lakshmanan,

observed as under:

"..one of the most controversial issue 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 idea."

 

It was further observed by this Court :

".The Indian Penal Code on obscenity grew out of the

English Law, which made court the guardian of public

morals. It is important that where bodies exercise discretion,

which may interfere in the enjoyment of constitutional

rights, that discretion must be subject to adequate law."

"The judge should thereafter place himself in the

position of a reader of every age group in whose hands the

book is likely to fall and should try to appreciate what kind

of possible influence the book is likely to have in the minds

of the readers."

  

It was observed by this Court in the matter of

Lakshmikant Pandey vs. Union of India,  (1984) 2 

SCC 244 as follows:

"It is obvious that in a civilized society the importance of child

welfare cannot be over-emphasized, because the welfare of

the entire community, its growth and development, depend on

the health and well-being of its children. Children are a

"supremely important national asset" and the future well

being of the nation depends on how its children grow and

develop. The great poet Milton put it admirably when he said:

"Child shows the man as morning shows the day" and the

Study Team on Social Welfare said much to the same effect

when it observed that "the physical and mental health of the

nation is determined largely by the manner in which it is

shaped in the early stages". The child is a soul with a being, a

nature and capacities of its own, who must be helped to find

them, to grow into their maturity, into fulness of physical and

vital energy and the utmost breadth, depth and height of its

emotional, intellectual and spiritual being; otherwise there

cannot be a healthy growth of the nation. Now obviously

children need special protection because of their tender age

and physique mental immaturity and incapacity to look-after

themselves. That is why there is a growing realisation in

every part of the globe that children must be brought up in an

atmosphere of love and affection and under the tender care

and attention of parents so that they may be able to attain full

emotional, intellectual and spiritual stability and maturity and

acquire self-confidence and self-respect and a balanced view

of life with full appreciation and realisation of the role which

they have to play in the nation building process without which

the nation cannot develop and attain real prosperity because

a large segment of the society would then be left out of the

developmental process. In India this consciousness is reflected

in the provisions enacted in the Constitution. Clause (3) of

Article 15 enables the State to make special provisions inter

alia for children and Article 24 provides that no child below

the age of fourteen years shall be employed to work in any

factory or mine or engaged in any other hazardous

employment. Clauses (e) and (f) of Article 39 provide that the

State shall direct its policy towards securing inter alia that the

tender age of children is not abused, that citizens are not

forced by economic necessity to enter avocations unsuited to

their age and strength and that children are given facility to

develop in a healthy manner and in conditions of freedom and

dignity and that childhood and youth are protected against

exploitation and against moral and material abandonment.

These constitutional provisions reflect the great anxiety of the

constitution makers to protect and safeguard the interest and

welfare of children in the country. The Government of India

has also in pursuance of these constitutional provisions

evolved a National Policy for the Welfare of Children. This

Policy starts with a goal-oriented perambulatory introduction:

The nation's children are a supremely important asset.

Their nurture and solicitude are our responsibility. Children's

programme should find a prominent part in our national plans

for the development of human resources, so that our children

grow up to become robust citizens, physically fit, mentally

alert and morally healthy, endowed with the skills and

motivations needed by society. Equal opportunities for

development to all children during the period of growth should

be our aim, for this would serve our larger purpose of reducing

inequality and ensuring social justice.

The National Policy sets out the measures which the

Government of India proposes to adopt towards attainment of

the objectives set out in the perambulatory introduction and

they include measures designed to protect children against

neglect, cruelty and exploitation and to strengthen family ties

"so that full potentialities of growth of children are realised

within the normal family neighbourhood and community

environment.."

Further this Court in Unnikrishnan, J.P & Ors vs. State

of Andhra Pradesh & Ors. , (1993) 1 SCC 645 upheld the

right to education for children of age of 14 as fundamental

right.  In para 165, this Court observed as follows:

"It is thus well established by the decisions of this Court that

the provisions of Parts III and IV are supplementary and

complementary to each other and that Fundamental Rights

are but a means to achieve the goal indicated in Part-IV. It is

also held that the fundamental Rights must be construed in

the light of the Directive Principles. It is from the above stand-

point that Question No. 1 has to be approached".

This judgment to that extent was not overruled even by

larger Bench.  This Court in the case of Unnikrishnan (supra)

relied upon numerous judgments.

In His Holiness Kesavananda Bharati

Sripadagalvaru vs. State of Kerala & Another, (1973) 4

SCC 225, this court observed as follows:

"..The fundamental rights and the directive principles

constitute the 'conscience' of our Constitution.To ignore Part

IV is to ignore the sustenance provided for in the Constitution,

the hopes held out to the Nation and the very ideals on which

our Constitution is builthere is no anti-thesis between the

fundamental rights and the directive principles. One

supplements the other.

..Both Parts III and IV have to be balanced and

harmonized.then alone the dignity of the individual can be

achieved..They (fundamental rights and directive principles)

were meant to supplement each other.

Mathew,J. while adopting the same approach

remarked: (SCC pp. 875-76, para 1700)

The object of the people in establishing the Constitution

was to promote justice, social and economic, liberty and

equality. The modus operandi to achieve these objectives is

set out in Part III and IV of the Constitution. Both parts III and

IV enumerate certain moral rights. Each of these parts

represent in the main the statements in one sense of certain

aspirations whose fulfillment was regarded as essential to the

kind of society which the Constitution- makers wanted to

build. Many of the articles, whether in Part III or IV, represents

moral rights which they have recognized as inherent in every

human being in this country. The tasks of protecting and

realizing these rights is imposed upon all organs of the state,

namely, legislative, executive and judicial. What then is the

importance to be attached to the fact that the provisions of

Part III are enforceable in a court and the provisions in Part IV

are not? Is it that the rights reflected in the provisions of Part

III are somehow superior to the moral claims and aspirations

reflected in the provisions of Part IV or not? I think not. Free

and compulsory education under Article 25, Freedom from

starvation is as important as right to life. Nor are the

provisions in Part III absolute in the sense that the rights

represented by them can always be given full

implementation.."

This Court also cited observation in Brown vs. Board of

Education  347 US 483 (1954) wherein it was emphasized in

the following words:

".Today, education is perhaps the most important

function of State and a local government.It is required in

the performance of our most basic responsibilities, even

service in the armed forces.  It is the very foundation of good

citizenship.  Today, it is the principal instrument in

awakening the child to cultural values, in preparing him for

later professional training, and in helping him to adjust

normally to his environment.  In these days, it is doubtful

any child may reasonably be expected to succeed in life if he

is denied the opportunity of education."

This Court in the case of M.C. Mehta vs. State of

T.N. and Ors. ,  (1996) 6 SCC 756 observed that:

"Of the aforesaid provisions, the one finding place in Article 24

has been a fundamental right ever since 28th January, 1950.

Article 45 too has been raised to high pedestal by Unni

krishnan, which was decided on 4th February, 1993. Though

other articles are part of directive principles, they are

fundamental in the governance of our country and it is the

duty of all the organs of the State (a la Article 37) to apply

these principles. Judiciary, being also one of the three

principal organs of the State, has to keep the same in mind

when called upon to decide matters of great public

importance. Abolition of child labour is definitely a matter of

great public concern and significance.

It would be apposite to apprise ourselves also about our

commitment to world community. For the case at hand it

would be enough to note that India has accepted the

convention on the Rights of the Child, which was concluded by

the UN General Assembly on 20th November, 1989. This

Convention affirms that children's right require special

protection and it aims, not only to provide such protection, but

also to ensure the continuous improvement in the situation of

children all over the world, as well as their development and

education in conditions of peace and security. Thus, the

Convention not only protects the child's civil and political right,

but also extends protection to child's economic, social, cultural

and humanitarian rights."

3.  Maintainability of Petition

In view of the above facts and circumstances and legal

proposition, Mr. Ajay Goswami, the petitioner-in-person

submitted that:

i)    Newspapers are publishing sex oriented

material which may not be obscene otherwise

but still caters to prurient interest of the minor.

ii)    Minors have got fundamental right under

Article 19(1)(a), Article 21 read with Article 39(f)

of the Constitution and United Nation

Convention on the Rights of the 

Child.  As freedom of speech and expression

also includes the expressions of the minors

which need care as the minor due to their

tender age and mental immaturity are not

capable of deciding themselves as to what is in

the interest of their growth morally &

culturally, so that they can assume their

responsibility within the community.

iii)    The right also flows from Article 21 as the right

to live shall also includes right to education as

pronounced in the judgments of this Court.  By

necessary corollary, it shall also mean right to

proper education which may be decided by the

parents, teachers and other experts and

newspapers cannot be allowed to disturb that

by their indeterminately access of the offending

article to the minors regardless of their age.

iv)    The State which has the duty to protect the

minors by appropriate legislation or executive

orders has failed in its duty.  The Press Council

of India which was constituted for preserving

the freedom of press and maintaining and

improving the standards of newspapers and

news agency is a powerless body.  No guidelines

have been framed for the minors and

adolescents in particular, which can be

enforced in Court of law.  The Council itself feel

the necessity of some strong and effective

measure to correct it.

v)    The citizens of this country can only pray to

this Court to prevent injustice being done to

them.  This Court under Article 32 read with

Article 142 can issue guidelines to ensure the

growth of the children in a healthy and moral

atmosphere which is exploited by the

newspapers. 

Mr. Ajay Goswami relied on two judgments of this Court.  In 

Comptroller & Auditor General of India & anr. Vs. K.S.

Jagnathan, (1986) 2 SCC 679, this Court held as under:

".In order to prevent injustice resulting to the concerned

parties, the Court may itself pass an order to give directions

which the government or the public authority should have

passed or given had it properly and lawfully exercised its

discretion."

Similarly in Vineet Narain & Ors. Vs. U.O.I. (1998) 1

SCC 226, this Court held as under:

"There are ample powers conferred by Article

32 read with Article 142 to make orders which have the

effect of law by virtue of Article 141 and there is mandate to

all authorities to act in aid of the orders of this Court as

provided in Article 144 of the Constitution. In a catena of

decisions of this Court, this power has been recognized and

exercised, if need be, by issuing necessary directions to fill

the vacuum till such time the legislature steps in to cover

the gap or the executive discharges its role."

"Where there is inaction by the legislature it is the

duty of executive to fill the vacuum and where there is

inaction even by executive for whatever reasons judiciary

must step in."

Concluding his arguments, Mr. Ajay Goswamy,

petitioner-in-person made the following proposals:

i)    Guidelines in detail may be issued to all the

newspapers regarding the matter which may not

be suitable for the reading of minors or which

may require parents or teachers discretion.

ii)    Newspapers should have self regulatory system to

access the publication in view of those guidelines.

iii)    In case the newspapers publishe any material

which is categorized in the guidelines the

newspaper be packed in some different form and

should convey in bold in front of newspapers of

the existence of such material.

iv)    This would give discretion to the parents to

instruct the news vendor whether to deliver such

newspaper or not.

OR

    In the alternative, he suggested a Committee be

appointed to suggest ways and means for regulating the

access of minors to adult oriented sexual, titilliating or

prurient material.  

Mr. Harish Chandra, learned senior counsel appearing

for Union of India - respondent No.1 in reply to the arguments

of the petitioner submitted that publishing as well as

circulating of obscene and nude/semi-nude photographs of

women already constitutes a penal offence under the

provisions of the Indecent Representation of Women

(Prohibition) Act, 1986, administered by the Department of

Women & Child Development, Ministry of Human Resources

Development.  Relevant Sections 3 & 4 of the Indecent

Representation of Women (Prohibition) Act, 1986 are

reproduced hereunder for ready reference:

"3.  Prohibition of advertisements containing indecent

representation of woman:-  No person shall publish, or

cause to be published or arrange or take part in the

publication or exhibition or, any advertisement which

contains indecent representation of women in any

form.

4.    Prohibition of publication or sending by post of

books, pamphlets etc. containing indecent

representation of women  No person shall

produce or cause to be produced, sell, let to hire,

distribute or circulate or send by post any book,

pamphlet, paper, slide, film, writing drawing,

painting, photographs, representation or figure of

women in any form, provided that nothing in this

section shall apply to:

(a)    any book, pamphlet, paper, slide, film,

writing, drawing, painting, photograph,

representation 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, slide,

film, writing, drawing, painting,

photograph, representation or

figure is in the interest of science,

literature, art or learning or other

object of general concern; or

(ii)    which is kept or used bona fide for

religious purposes;

(b)    any representation sculptured, engraved,

painted or otherwise represented on or in -             

(i)    any ancient monument within the

meaning of the Ancient Monument

and Archaeological Sites and

Remains Act, 1958 (24 of 1958)

(ii)    any temple, or on any car used for

the conveyance of idols, or kept or

used for any religious purposes;

(c)    any film in respect of which the provisions

of Part II of the Cinematograph Act, 1952

(37 of 1952), will be applicable."

Section 6 of the Indecent Representation of Women

(Prohibition) Act, 1986 provides the penalty for committing

such offences in contravention of Sections 3 & 4 of the said

Act.  Section 6 reads as follows:

"6. Penalty- Any person who contravenes the

provisions of Sections 3 & 4 shall be punishable on

first conviction with imprisonment of either description

for a term which may extend to two years, and with

fine which may extend to two thousand rupees, and in

the event of a second or subsequent conviction with

imprisonment for a term of not less than six months

but which may extend to five years and also with a fine

not less than ten thousand rupees but which may

extend to one lac rupees."

It was further submitted that sale, letting, hiring,

distributing, exhibiting, circulating of obscene books and

objects of young persons under the age of twenty years also

constitutes a penal offence under Sections 292 and 293 of the

Indian Penal Code and is punishable on first conviction with

imprisonment of either description for a term which may

extend to two thousand rupees and in the event of a second or

subsequent conviction, with imprisonment of either

description for a term which may extend to seven years, and

also with fine which may extend to five thousand rupees.

Concluding his submissions, he submitted that there are

laws in existence which prohibit publishing, circulating and

selling obscene books and objects to young persons and it is

the responsibility of the "Press" to adhere to and comply with

these laws and not to abuse the freedom of speech and

expression (freedom of press) guaranteed under Article 19(1)(a)

of the Constitution of India.

Mr. P.H. Parekh, learned counsel appearing for

respondent No.2-Press Council of India, submitted that the

Press Council enjoys only limited authority, with its power

limited to giving directions, censure etc. to the parties

arraigned before it, to publish particulars relating to its

enquiry and adjudication etc.  The powers of the Council in so

far its authority over the press is concerned are enumerated

under Section 14 of the Press Council Act, 1978.  However, it

has no further authority to ensure that its directions are

complied with and its observations implemented by the erring

parties.  Lack of punitive powers with Press Council has tied

its hands in exercising control over the erring publications. 

    Learned counsel further submitted that despite various

requests to the Central Government from the year 1999 to

amend the Press Council Act, 1978, the same has not been

amended.  Recently, on 1.6.2006, under clause 18(d), an

advertisement policy was issued by the Directorate of Audio

Visual Publicity under the Central Government Advertisement

Policy stating that the newspapers will be suspended from

empanelment by DG, DAVP with immediate effect if it indulged

in unethical practices or anti-national activities as found by

the Press Council of India.   

    Learned counsel further submitted that as the issue

which arise in the present petition requires urgent action, it

will be appropriate that this Court may formulate certain

guidelines as suggested by the Press Council vide its letter

dated 6.1.2002 for amendment by way of incorporation of two

provisions viz., Section 14(2)(a) and Section 14(2)(b) in the

Press Council Act, 1978 till the law made by the legislature

amending the Press Council Act, 1978 as per the various

judgments passed by this Court which are as follows:

1.    Vishaka & Ors. Vs. State of Rajasthan & Ors. (1997)

6 SCC 241

2.    Vineet Narain & Ors. Vs. U.O.I. & Ors., (1998) 1 SCC

226

3.    Union of India vs. Association for Democratic

Reforms and Anr. (2002) 5 SCC 294.

Learned counsel submitted that this Court may consider

to issue appropriate guidelines. 

Learned counsel appearing for respondent no. 3 (Times of

India) contented that legislations, rules and regulations

already exists within the Indian legal framework to check

publication of obscene materials and articles.  Section 292 of

the Indian Penal Code prohibits and punishes selling, hiring,

exhibition, circulation, possession, importation, exportation of

obscene material.

Sections 3 and 4 of the Indecent Representation of

Women Act also imposes a prohibition on the publication or

sending by post of books, pamphlets etc, selling, hiring,

distributing and circulating any material that contains

indecent representation of women in any form. Section 6 of the

said Act, also provides for punishment in the case of non-

compliance to sections 3 and 4 of the Act.

Further he submitted that the Press Council of India is

constituted duly under the Constitution of India for regulating

the functions and activities of the Press. Sections 13 (2) (c), 14

(1) and 14 (2) of the Press Council of India Act empowers the

Press Council to impose serious checks on the Newspaper,

News Agency, an editor or a journalist who flouts the norms as

formulated by the Press Council and is against societal norms

of decency.

Learned Counsel also submitted that the Indian

Constitution under Article 19 (1) (a) guarantees every citizen

the right to freedom of speech and expression and respondent

being a leading Newspaper has the right to express its views

and various news of National and International relevance in its

edition and any kind of unreasonable restriction on this right

will amount to the violation of the right guaranteed by the

Indian Constitution.  Learned Counsel referred to a recent

judgment of this Court, Director General of Doordarshan

and Ors. v. Anand Patwardhan (Supra), it was observed that

the basic test for obscenity would be:

"(a) whether the average person applying contemporary

community standards would find that the work, taken as

a whole appeal to the prurient interest

(b) whether the work depicts or describes, in a patently

offensive way, sexual conduct specifically, defined by the

applicable state law,

(c) whether the work taken as a whole, lacks serious

literary, artistic, political or scientific value."

In Shri Chandrakant Kalyandas Kakodkar v. The State of

Maharashtra and Others, (1962 (2) SCC 687), this Court

observed that:

"12. The concept of obscenity would differ from country to

country depending on the standards of morals of

contemporary society. What is considered as a piece of

literature in France may be obscene in England and what is

considered in both countries as not harmful to public order

and morals may be obscene in our country. But to insist that

the standard should always be for the writer to see that the

adolescent ought not to be brought into contact with sex or

that if they read any references to sex in what is written

whether that is the dominant theme or not they would be

affected, would be to require authors to write books only for

the adolescent and not for the adults."

Learned counsel referred to the case of Samaresh Bose and

Another v. Amal Mitra and Another, (1985) 4 SCC 289, this

court observed that:

       "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 charged as obscene must also be

considered by itself and separately to find out whether it is so

gross and its obscenity 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."

Learned counsel also referred to American jurisprudence

and stated that even nudity per se is not obscenity. In 50 Am

Jur 2 d, para 22 at page 23, "Articles and pictures in a

newspaper must meet the Miller's test's Constitutional standard

of obscenity in order for the publisher or distributor to be

prosecuted for obscenity. Nudity alone is not enough to make a

material legally obscene"

In Alfred E Butler v. State of Michigan, 1 Led 2d 412,

the U.S. Supreme Court has held that: "The state insists that,

by thus quarantining the general reading public against books

not too rugged for grown men and women in order to shield

juvenile innocence, it is exercising its power to promote the

general welfare. Surely, this is to burn the house to roast the

pig."

Further the learned counsel submitted that, the Times of

India, respondent no.3, is one of the leading newspapers and

its popularity only stands to show that the pictures published

in it are not objectionable and also that respondent while

publishing any news article has any intention to cater to the

prurient interest of anybody. Also the respondent no.3 has an

internal regulatory system to ensure that no objectionable

photograph or matter gets published.

Mr. Gopal Jain, learned counsel appearing for Hindustan

Times respondent no.4, practically adopted the arguments put

forth by respondent no.3. In addition, respondent no.4 drew

our attention to the Guidelines under the "Norms of

Journalistic Conduct" which lays down guidelines for

newspapers /journalists to maintain standards with regard to

obscenity and vulgarity.

Norm 17 reads as follows:

"Obscenity and vulgarity to be eschewed

i)    Newspapers/journalists shall not publish anything

which is obscene, vulgar or offensive to public good

taste.

ii)    Newspapers shall not display advertisements which

are vulgar or which, through depiction of a woman in

nude or lewd posture, provoke lecherous attention of

males as if she herself was a commercial commodity

for sale.

iii)    Whether a picture is obscene or not, is to be judged in

relation to three tests: namely

a)    Is it vulgar and indecent?

b)    Is it a piece of mere pornography?

c)    Is its publication meant merely to make money by

titillating the sex feelings of adolescents and among

whom it is intended to circulate?  In other words,

does it constitute an unwholesome exploitation for

commercial gain.

Other relevant considerations are whether the

picture is relevant to the subject matter of the

magazine.  That is to say, whether its publication

serves any preponderating social or public purpose,

in relation to art, painting, medicine, research or

reform of sex.

iv)    The globalisation and liberalization does not give

licence to the media to misuse freedom of the Press

and to lower the values of the society.  The media

performs a distinct role and public purpose which

require it to rise above commercial consideration

guiding other industries and businesses.  So far as

that role is concerned, one of the duties of the media is

to preserve and promote our cultural heritage and

social values.

v)    Columns such as 'Very Personal' in a newspaper

replying to personal queries of the readers must not

become grossly offensive presentations, which either

outrage public decency or corrupt public moral."

Learned Counsel contented that, the test of judging

should be that of an ordinary man of common sense and

prudence and not an "out of the ordinary hypersensitive man".

In the case of K.A.Abbas , Hidayatullah, C.J. opined: "If the

depraved begins to see in these things more than what an

average person would, in much the same way, as it is wrongly

said, a Frenchman sees a woman's legs in everything, it cannot

be helped."

Learned counsel further explained the procedure followed

by Hindustan Times before the publication of any

advertisement, "Advertisements are scrutinized by the

advertising department and in the event the advertising

department is in doubt, the assistance of the legal department

is resorted to. The departments are manned by qualified

persons who are well acquainted with the Norms and

Guidelines issued by the Press Council."

Further the learned counsel submitted that, keeping in

mind special educational needs of the school-going students a

supplement called "HT Next- School Times" is published by

Hindustan Times. The respondent does not send any other

supplement other than this to educational institutions along

with the main paper. Thus, it was stated that respondent

realizes its responsibility towards children and at the same

time it would be inappropriate to deprive the adult population

of the entertainment which is well within the acceptable levels

on the ground that it may not be appropriate for the children.

In conclusion, it was urged that any step to ban

publishing of certain news-pieces or pictures would fetter the

independence of free-press.

Learned Counsel appearing for respondent no.5 and

Learned Counsel Dr. Kailash Chand appearing for respondent

no.6, submitted that the relief sought by the petitioner does

not relate to them and accordingly they are not giving any

reply.      

    We have given our careful consideration to the entire

material placed before us and the rival submissions made by

learned counsel appearing for the respective parties.

Maintainability of Writ Petition:

    Before proceeding further, we feel better to reproduce the

prayers made in the writ petition which read as follows:

"1)  Issue writ in the nature of writ of mandamus/order or

direction to the respondent Nos. 1 & 2 for laying down

rules/regulations to ensure that minor is not exposed to

sexually explicit material whether or not the same is obscene

or is within the law without express consent of the parents,

guardians or the experts on sex education.

2)  Respondent Nos. 1 & 2 be directed to constitute an expert

committee to look into the problem of unwanted exposure to

the minor through press and to lay down appropriate rules

and regulations for the same."

    The maintainability of the writ petition was also raised as

a preliminary issue by learned counsel appearing for some of

the respondents and, in particular, respondent Nos. 3 and 4. 

Learned counsel for respondent No.3 pointed out that there

can be no mandamus for legislation and in support of the said

submission, he relied on the judgment of this Court in

Networking of Rivers: In Re: (2004 (11) SCC 360) wherein this

Court held .

"It is not open to this Court to issue any direction to

Parliament to legislate but the Attorney General submits that

the Government will consider this aspect and, if so advised,

will bring an appropriate legislation."

He also cited Common Cause vs. Union of India & Ors, 2003

(8) SCC 250.  This Court held:

"From the facts placed before us it cannot be said that the

Government is not alive to the problem or is desirous of

ignoring the will of Parliament.  When the legislature itself

had vested the power in the Central Government to notify

the date from which the Act would come into force, then the

Central Government is entitled to take into consideration

various facts including the facts set out above while

considering whether the Act should be brought into force or

not.  No mandamus can be issued to the Central

Government to issue the notification contemplated under

Section 1 (3) of the Act to bring the Act into force, keeping in

view the facts brought on record and the consistent view of

this Court.

    We have already noticed the prayer in the present writ

petition.  In our view, the prayer No.1 cannot at all be

countenanced inasmuch as sufficient protection in the form of

legislations, rules, regulations and norms have already been

laid down under the Press Council Act, 1978, I.P.C. etc.

Prayer No.2 equally is vague and no case has been made

out for constituting an Expert Committee.

LEGISLATIONS AGAINST OBSCENITY:

Section 13 of the Press Council Act, 1978 specifies the objects

and functions of the council.

Section 13(2) (c) states:

"to ensure on the part of newspapers, news agencies and

journalists, the maintenance of high standards of public

taste and foster a due sense of both the rights and

responsibilities of citizenship;

Section 14(1) states:

"Where, on receipt of a complaint made to it or otherwise,

the Council has reason to believe that a newspaper or news

agency has offended against the standards of journalistic

ethics or public taste or that an editor or working journalist

has committed any professional misconduct, the Council

may, after giving the newspaper, or news agency, the editor

or journalist concerned an opportunity of being heard, hold

an inquiry in such manner as may be provided by

regulations made under this Act and, if it is satisfied that it

is necessary so to do, it may, for reasons to be recorded in

writing, warn, admonish or censure the newspaper, the news

agency, the editor or the journalist or disapprove the

conduct of the editor or the journalist, as the case may be :

Provided that the Council may not take cognizance of a

complaint if in the opinion of the Chairman, there is no

sufficient ground for holding an inquiry.

Section 14(2) states:-

"If the Council is of the opinion that it is necessary or expedient in

public interest so to do, it may require any newspaper to publish

therein in such manner as the Council thinks fit, any particulars

relating to any inquiry under this section against a newspaper or

news agency, an editor or a journalist working therein, including

the name of such newspaper, news agency, editor or journalist.

Section 292 of the Indian Penal Code reads:-

"Sale, etc., of obscene books, etc._ (1) 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 lascivious or appeals to the

prurient 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 or hear the matter contained or

embodied in it].

[(2)] 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

into 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

(e)    offers or attempts to do any act which is an offence

under this section,

shall be punished on first conviction with imprisonment of

either description for a term which may extend to two years,

and with fine which may extend to two thousand rupees,

and, in the event of a second or subsequent conviction, with

imprisonment of either description for a term which may

extend to five years, and also with fine which may extend to

five thousand rupees.

[Exception- This section does not extend to-

(a) any book, pamphlet, paper, writing, drawing,

painting, representation or figure-

(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, representation

or figure is in the interest of science, literature, art of

learning or other objects of general concern, or

       

(ii) which is kept or used bona fide for religious purposes;

(b) any representation sculptured, engraved, painted or

otherwise represented on or in-

(i) any ancient monument within the meaning of the Ancient

Monuments and Archaeological Sites and Remains Act, 1958

(24 of 1958), or

(ii) any temple, or on any car used for the conveyance of

idols, or kept or used for any religious purpose.]"

Sections 4 and 6 of the Indecent Representation of Women

Act, 1986 are also in existence.

In view of the availability of sufficient safeguards in terms of

various legislations, norms and rules and regulations to

protect the society in general and children, in particular, from

obscene and prurient contents, we are of the opinion that the

writ at the instance of the petitioner is not maintainable.

    Article 19(1)(a) deals with freedom of speech and

expression.  In the matter of Virendra vs. State of Punjab &

Another, [AIR 1957 SC 896] this Court held:

"It is certainly a serious encroachment on the valuable and

cherished right to freedom of speech and expression if a

newspaper is prevented from publishing its own views or the

views of its correspondents relating to or concerning what

may be the burning topic of the day.

Our social interest ordinarily demands the free propagation

and interchange of views but circumstances may arise when

the social interest in public order may require a reasonable

subordination of the social interest in free speech and

expression to the needs of our social interest in public order.

Our Constitution recognises this necessity and has attempted

to strike a balance between the two social interests. It permits

the imposition of reasonable restrictions on the freedom of

speech and expression in the interest of public order and on

the freedom of carrying on trade or business in the interest of

the general public.

Therefore, the crucial question must always be : Are the

restrictions imposed on the exercise of the rights under Arts.

19(1)(a) and 19(1)(g) reasonable in view of all the surrounding

circumstances ? In other words are the restrictions reasonably

necessary in the interest of public order under Art. 19(2) or in

the interest of the general public under Art. 19(6) ?"

Test of obscenity:

    This Court has time and again dealt with the issue of

obscenity and laid down law after considering the right of

freedom and expression enshrined in Article 19(1)(a) of the

Constitution of India, its purport and intent, and laid down

the broad principles to determine/judge obscenity. 

In a recent judgment Director General, Directorate

General of Doordarshan & Ors. Vs. Anand Patwardhan &

Anr.   reported in JT 2006(8) SC 255 (Dr. AR. Lakshmanan

and L.S. Panta, JJ) This Court has referred to the Hicklin test

laid down in 1868-3 QB 360 and observed:

"(a) whether the average person applying contemporary

community standards would find that the work, taken as a

whole appeal to the prurient interest

(b) whether the work depicts or describes, in a patently

offensive way, sexual conduct specifically, defined by the

applicable state law,

(c) whether the work taken as a whole, lacks serious literary,

artistic, political or scientific value."

In Shri Chandrakant Kalyandas Kakodkar vs. The State

of Maharashtra and Others, 1969 (2) SCC 687. This Court

has held:

"In early English writings authors wrote only with unmarried

girls in view but society has changed since then to allow

litterateurs and artists to give expression to their ideas,

emotions and objectives with full freedom except that is

should not fall within the definition of 'obscene' having 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's case (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 thought

aroused in their minds. The charge of obscenity must,

therefore, be judged from this aspect"

    In Samaresh Bose & Anr. Vs. Amal Mitra & Anr.

(Supra),  this Court held as under:

"In England, as we have earlier noticed, the decision on the

question of obscenity rests with the jury who on the basis of

the summing up of the legal principles governing such action

by the learned Judge decides whether any particular novel,

story or writing is obscene or not. In India, however, the

responsibility of the decision rests essentially on the Court. As

laid down in both the decisions of this Court earlier referred

to, "the question whether a particular article or story or book is

obscene or not does not altogether depend on oral evidence,

because it is the duty of the Court to ascertain whether the

book or story or any passage or passages therein offend the

provisions of Section 292 I.P.C." 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 charged as

obscene must also be considered by itself and separately to

find out whether it is so gross and its obscenity 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 the author and from the view point of

the author the judge should try to understand what is it that

the author seeks to convey and whether what the author

conveys has any literary and artistic value. The Judge should

thereafter place himself in the position of a reader of every age

group in whose hands the book is likely to fall and should try

to appreciate what kind of possible influence the book is likely

to have in the minds of the readers. A Judge should thereafter

apply his judicial mind dispassionately to decide whether the

book in question can be said to be obscene within the meaning

of Section 292 I.P.C. by an objective assessment of the book

as a whole and also of the passages complained of as

obscene separately. In appropriate cases, the Court, for

eliminating any subjective element or personal preference

which may remain hidden in the sub-conscious mind and may

unconsciously affect a proper objective assessment, may draw

upon the evidence on record and also consider the views

expressed by reputed or recognised authors of literature on

such questions if there be any for his own consideration and

satisfaction to enable the Court to discharge the duty of

making a proper assessment".

Per se nudity is not obscenity:

    The American Courts, from time to time, have dealt with

the issues of obscenity and laid down parameters to test

obscenity.  It was further submitted that while determining

whether a picture is obscene or not it is essential to first

determine as to quality and nature of material published and

the category of readers.

    In 50 Am Jur 2 d, para 22 at page 23 reads as under:

"Articles and pictures in a newspaper must meet the Miller

test's constitutional standard of obscenity in order for the

publisher or distributor to be prosecuted for obscenity. 

Nudity alone is not enough to make material legally obscene.

    The possession in the home of obscene newspaper is

constitutionally protected, except where the such materials

constitute child poronography."

Contemporary Society:

It was also submitted that in order to shield minors and

children the State should not forget that the same content

might not be offensive to the sensibilities of adult men and

women.  The incidence of shielding the minors should not be

that the adult population is restricted to read and see what is

fit for children.

In Alfred E Butler vs. State of Michigan, 1 Led 2d

412, U.S. Supreme Court held as under:

"The State insists that, by thus quarantining the

general reading public against books not too rugged for

grown men and women in order to shield juvenile innocence,

it is exercising its power to promote the general welfare. 

Surely, this is to burn the house to roast the pig."

There should be no suppression of speech and

expression in protecting children from harmful materials : In

Janet Reno vs. American Civil Liberties Union, 138 Led 2d

874, it has been held that:

"The Federal Government's interest in protecting

children from harmful materials does not justify an

unnecessarily broad suppression of speech addressed to

adults, in violation of the Federal Constitution's First

Amendment; the Government may not reduce the adult

population to only what is fit for children, and thus the mere

fact that a statutory regulation of speech was enacted for the

important purpose of protecting children from exposure to

sexually explicit material does not foreclose inquiry into the

statute's validity under the First Amendment, such inquiry

embodies an overarching commitment to make sure that

Congress has designed its statute to accomplish its purpose

without imposing an unnecessarily great restriction on

speech."

In 146 Led 2d 865, United States v Playboy Entertainment

Group, Inc., it has been held that:

"In order for the Stateto justify prohibition of a

particular expression of opinion, it must be able to show that

its action was caused by something more than a mere desire

to avoid the discomfort and unpleasantness that always

accompany an unpopular viewpoint.What the Constitution

says is that these judgments are for the individual to make,

not for the government of decree, even with the mandate or

approval of a majority. Technology expands the capacity to

choose; and it denies the potential of this revolution if we

assume the Government is best positioned to make these

choices for us."

Literary merit and "prepondering social purpose"

Where art and obscenity are mixed, what must be seen is

whether the artistic, literary or social merit of the work in

question outweighs its "obscene" content. This view was

accepted by this Court in Ranjit D. Udeshi v. State of

Maharashtra. AIR 1965 SC  case:

"Where there is propagation of ideas, opinions and

information of public interest or profit the approach to the

problem may become different because then the interest of

society may tilt the 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

immodest, are not considered to be obscene but the same

illustrations and photographs collected in book form without

the medical text would certainly be considered to be obscene.

Where art and obscenity are mixed, the element of art

must be so prepondering as to overshadow the obscenity or

make it so trivial/inconsequential that it can be ignored;

Obscenity without a preponderating social purpose or profit

cannot have the constitutional protection of free speech"

Contemporary Standards

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.

Judging the work as a whole

It is necessary that publication must be judged as a whole and

the impugned should also separately be examined so as to

judge whether the impugned passages are so grossly obscene

and are likely to deprave and corrupt.

Opinion of literary/artistic experts

In Ranjit Udeshi (Supra) this Court held that the delicate task

of deciding what is artistic and what is obscene has to be

performed by courts and as a last resort by the Supreme Court

and therefore, the evidence of men of literature or others on

the question of obscenity is not relevant.

However, in Samresh Bose v. Amal Mitra (Supra) this Court

observed:

"In appropriate cases, the court, for eliminating any subjective

element or personal preference which may remain hidden in

the subconscious mind and may unconsciously affect a proper

objective assessment, may draw upon the evidence on record

and also consider the views expressed by reputed or

recognized authors of literature on such questions as if there

by any of his own consideration and satisfaction to enable the

court to discharge the duty of making a proper assessment."

Clear and Present Danger

In S.Ragarajan v. P. Jagjivam Ram, while interpreting

Article 19(2), this Court borrowed from the American test of

clear and present danger and observed:

"the commitment to freedom demands that it cannot be

suppressed unless the situations created by allowing the

freedom are pressing and the community interest is

endangered. The anticipated danger should not be remote,

conjectural or far-fetched. It should have a proximate and

direct nexus with the expression. The expression of thought

should be intrinsically dangerous to the public interest. In

other words, the expression should be inseparably like the

equivalent of a 'spark in a power keg'."

Test of Ordinary Man

The test for judging a work should be that of an ordinary man

of common sense and prudence and not an "out of the

ordinary or hypersensitive man." As Hidayatullah, C.J.

remarked in K.A. Abbas:

"If the depraved begins to see in these things more than what

an average person would, in much the same way, as it is

wrongly said, a Frenchman sees a woman's legs in

everything, it cannot be helped."

An additional affidavit was filed on behalf of the Press

Council of India on 7.8.2006.  Inviting our attention to the

said affidavit, Mr. P.H. Parekh submitted that Section 14 of

the Press Council Act, 1978 empowers the Press Council only

to warn, admonish or censure newspapers or news agencies

and that it has no jurisdiction over the electronic media and

that the Press Council enjoys only the authority of declaratory

adjudication with its power limited to giving directions to the

answering respondents arraigned before it to publish

particulars relating to its enquiry and adjudication.  It,

however, has no further authority to ensure that its directions

are complied with and its observations implemented by the

erring parties.  Lack of punitive powers with the Press Council

of India has tied its hands in exercising control over the erring

publications.

Mr. P.H. Parekh further submitted that prompted by the

continued flouting of its observation/directions by some of the

Press of the country, the Press Council has recommended to

the Government between 1999-2003 to amend the provisions

of Section 14(1) of the Press Council Act, 1978 to arm the

Council with the authority to recommend to the Government

de-recognition of newspapers for Government advertisement or

withdrawal of the accreditation granted to a journalist which

facilitates performance of his function and also entitles him to

claim concession in railways etc. or to recommend de-

recognition of a newspaper for the period deemed appropriate

for the proposals made.  The Press Council of India is yet to

receive any response from the Government.  The counsel has

also filed the copies of the letters written by Justice

K.Jayachandra Reddy dated 17.12.2002 and 06.12.2003

issued by the Press Council to the Government of India for

extending punitive powers and the amendments proposed by

the Council have been annexed to the main writ petition.  In

our opinion, the present scenario provides for a regulatory

framework under which punishment is prescribed for flouting

the standards set by the Press Council of India by

newspapers/print media.  Further, respondent Nos. 3 & 4

have a self-regulatory mechanism in place and they have to

strictly adhere to the standards set by the Press Council Act,

1978.  According to them, the advertisement, news articles

and photographs are scrutinized by the advertising

department and in the event the advertising department is in

doubt, the assistance of the legal department is resorted to.  It

is also their case that the said departments are manned by

qualified persons who are well acquainted with the Norms and

Guidelines issued by the press Council.  It was also submitted

that respondent No.4, as among others, consistently rejected

the publication of liquor and sexually exploitative 

advertisements, which may offend the sensibilities of families

and in contravention it was further submitted that respondent

No.4, keeping in mind, special educational needs of school

going children publishes a supplement called "HT Next School

Times" every Monday and the respondent does not send any

supplement to schools other than "HT Next School Times"

along with the main paper.  Further, the respondent publishes

"HT Next" which is a newspaper positioned mainly for the

youth.  This paper too keeps in mind the special needs of the

youth of today.  The market segment that the respondent's

paper wishes to cater and caters to sections of society

interested in business and is keen on gathering information on

all fronts of life.  It was further submitted that the newspaper

intends to give a holistic perspective of the world to an

individual.  It was submitted that the respondent's paper has

consistently over the last few decades had a large circulation

and consistent increase in its circulation each year has not

been due to publishing of its supplement "HT City".   

    In view of the foregoing legal propositions the pictures in

dispute had been published by the respondents with the

intent to inform readers of the current entertainment news

from around the world and India.  The respondent's

newspaper seeks to provide a wholesome reading experience

offering current affairs, sports, politics as well as

entertainment news to keep its readers abreast of all the latest

happenings in the world.  The pictures that have been

published should not be viewed in isolation rather they have to

be read with the news reports next to them.  In the event, that

a particular news items or picture offends any person they

may avail of the remedies available to them under the present

legal framework.  Any steps to impose a blanket ban on

publishing of such photographs, in our opinion, would amount

to prejudging the matter as has been held in the matter of

Fraser vs. Evans, 1969 (1) QB 549.

The definition of obscenity differs from culture to culture,

between communities within a single culture, and also

between individuals within those communities. Many cultures

have produced laws to define what is considered to be

obscene, and censorship is often used to try to suppress or

control materials that are obscene under these definitions.

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 of freedom to speech

and expression to every citizen. This right will encompass an

individuals take on any issue.However, this right is not

absolute, if such speech and expression is immensely gross

and will badly violate the standards of morality of a society. 

Therefore, any expression is subject to reasonable restriction.

Freedom of expression has contributed much to the

development and well-being of our free society.

This right conferred by the Constitution has triggered

various issues. One of the most controversial issues is

balancing the need to protect society against the potential

harm that may flow from obscene material, and the need to

ensure respect for freedom of expression and to preserve a free

flow of information and idea.

    Be that as it may, the respondents are leading

newspapers in India they have to respect the freedom of

speech and expression as is guaranteed by our constitution

and in fact reaches out to its readers any responsible and

decent manner.  In our view, any steps to ban publishing of

certain news pieces or pictures would fetter the independence

of free press which is one of the hallmarks of our democratic

setup.  In our opinion, the submissions and the propositions

of law made by the respective counsel for the respondents

clearly established that the present petition is liable to be

dismissed as the petitioner has failed to establish the need

and requirement to curtail the freedom of speech and

expression.  The Times of India and Hindustan Times are

leading newspapers in Delhi having substantial subscribers

from all sections.  It has been made clear by learned counsel

appearing for the leading newspapers that it is not their

intention to publish photographs which cater to the prurient

interest.  As already stated, they have an internal regulatory

system to ensure no objectionable photographs or matters gets

published.  We are able to see that respondent Nos. 3 & 4 are

conscious of their responsibility towards children but at the

same time it would be inappropriate to deprive the adult

population of the entertainment which is well within the

acceptable levels of decency on the ground that it may not be

appropriate for the children.  An imposition of a blanket ban

on the publication of certain photographs and news items etc.

will lead to a situation where the newspaper will be publishing

material which caters only to children and adolescents and the

adults will be deprived of reading their share of their

entertainment which can be permissible under the normal

norms of decency in any society.

We are also of the view that a culture of 'responsible

reading' should be inculcated among the readers of any news

article. No news item should be viewed or read in isolation. It

is necessary that 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 members of the public and

readers should not look for meanings in a picture or written

article, which is not conceived to be conveyed through the

picture or the news item.

We observe that, as decided by the American Supreme

Court in United States v. Playboy Entertainment Group,

Inc, 146 L ed 2d 865, that, "in order for the Stateto justify

prohibition of a particular expression of opinion, it must be able

to show that its action 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 has failed to

establish his case clearly. The petitioner only states that the

pictures and the news items that are published by the

respondents 3 and 4 'leave much for the thoughts of minors'.

Therefore, we believe that fertile imagination of anybody

especially of minors should not be a matter that should be

agitated in the court of law. In addition we also hold that news

is not limited to Times of India and Hindustan Times. Any

hypersensitive person can subscribe to many other Newspaper

of their choice, which might not be against the standards of

morality of the concerned person.

     We, therefore, dismiss the writ petition but however

observed that the request made by the Press Council of India

to amend the Section should be seriously looked into by the

Government of India and appropriate amendments be made in

public interest.  No costs.