रविवार, 30 नवंबर 2008

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.

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