MANU/SC/0053/1970

Equivalent Citation: AIR1971SC 481, 1972C riLJ103, 1972-LW(C rl)103, (1970)2SC C 780, [1971]2SC R446

IN THE SUPREME COURT OF INDIA

Writ Petition No. 491 of 1969
Decided On: 24.09.1970
Appellants: K.A. Abbas
Vs.
Respondent:The Union of India (UOI) and Ors.
Hon'ble Judges/Coram:
M. Hidayatullah, C.J., A.N. Ray, C.A. Vaidialingam, G.K. Mitter and J.M. Shelat, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: R.K. Garg, D.P. Singh, S.C. Agrawala, R.K. Jain and
V.J. Francis, Advs
For Respondents/Defendant: Niren De,, Attorney-General, Jagdish Swarup,, Solicitor-
General, J.M. Mukhi, R.N. Sachthey, and B.D. Sharma, Advs.
Case Note:
Constitution - Censorship - Violation of Fundamental right - Article 19 (1) (a)
and (2) of Constitution of India, 1950 - Section 5 of Part II of Cinematograph
Act, 1952 - Petitioner applied to Board of Film Censors for a 'U' certificate for
unrestricted exhibition of film - Further, Regional Officer informed Petitioner
that Examining Committee and Board had provisionally came to conclusion
that film was not suitable for unrestricted public exhibition but was suitable
for exhibition restricted to adults - Hence, this Petition - Whether, pre-
censorship by itself offended freedom of speech and expression and whether
films needed censorship - Censorship of films, their classification according to
age groups and their suitability for unrestricted exhibition with or without
excisions was regarded as a valid exercise of power in interests of public
morality, decency, etc. - Social interest of people would override individual
freedom - Censorship imposed on making and exhibition of films was in
interests of society - There were general principles regarding films as a whole
and specific instances of what might be considered as offending public
interests as disclosed in clause that follows enunciation of freedoms in Article
19 (1) (a) of Constitution - Cinematograph was powerful medium and its
appeal was different - However there were general principles regarding films
as a whole and specific instances of what might be considered as offending
public interests as disclosed in clause that follows enunciation of freedoms in
Article 19 (1) (a) of Constitution - Constitution had to be read first and
Section next as latter could neither take away nor add to what Constitution
had said on subject - Word 'reasonable' was not to be found in Section 5-B of
Act but it could not mean that restrictions could be unreasonable - Moreover
application of these principles did not seek to whittle down fundamental right
of free speech and expression beyond limits permissible under Constitution -
Task of censor was extremely delicate and his duties could not be subject of
an exhaustive set of commands established by prior ratiocination - Therefore
censors needed to be included whole of law and regulations under it would

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have always to be considered - Thus censorship did not offend right to speech
and expression - Petition allowed.
Ratio Decidendi
"Censorship of art is to be made for the interest of social and moral justice."
JUDGMENT
M. Hidayatullah, C.J.
1. This petition seeks a declaration against the Union of India and the Chairman Central
Board of Film Censors, that the provisions of Part II of the Cinematograph Act 1952
together with the rules prescribed by the Central Government, February 6, 1960, in the
purported exercise of its powers under Section 5B of the Act are unconstitutional and
void. As a consequence the petitioner asks for a writ of mandamus or any other
appropriate writ, direction or order quashing the direction contained in a letter
(Annexure X) dated July 3, 1969 for deletion of certain shots from a documentary film
entitled 'A Tale of Four Cities', produced by him for unrestricted public exhibition.
2 . The petitioner is a journalist, playwright and writer of short stories. He is also a
producer and director of cinematograph films. He was a member of the Enquiry
Committee on Film Censorship (1968) and is a member of the Children's Film
Committee. He has produced and/or directed many films some of which have been well-
received here and abroad and even won awards and prizes.
3 . The petitioner produced in 1968 a documentary film in 2 reels (running time 16
minutes) called a Tale of Four Cities. In this film he purported to contrast the luxurious
life of the rich in the four cities of Calcutta, Bombay, Madras and Delhi, with the squalor
and poverty of the poor, particularly those whose hands and labour help to build
beautiful cities, factories and other industrial complexes. The film is in black and white
and is silent except for a song which the labourers sing while doing work and some
background music and sounds for stage effect. The film, in motion sequences or still
shots, shows contrasting scenes of palatial buildings, hotels and factories-evidence of
the prosperity of a few, and shanties, huts and slums-evidence of poverty of the
masses. These scenes alternate and in between are other scenes showing sweating
labourers working to build the former and those showing the squalid private life of
these labourers. Some shots mix people riding in lush motor cars with rickshaw and
handcart pullers of Calcutta and Madras. In one scene a fat and prosperous customer is
shown riding a rickshaw which a decrepit man pulls, sweating and panting hard. In a
contrasting scene the same rickshaw puller is shown sitting in the rickshaw, pulled by
his former customer. This scene is the epitomisation of the theme of the film and on
view are the statutes of the leaders of Indian Freedom Movement looking impotently
from their high pedestal's in front of palatial buildings, on the poverty of the masses.
On the boulevards the rich drive past in limousines while the poor pull rickshaws or
handcarts or stumble along.
4. There is included also a scanning shot of a very short duration, much blurred by the
movement of the photographer's camera, in which the red light district of Bombay is
shown with the inmates of the brothels waiting at the doors or windows. Some of them
wear abbreviated skirts showing bare legs up to the knees and sometimes a short way
above them. This scene was perhaps shot from a moving car because the picture is
unsteady on the screen and under exposed. Sometimes the inmates, becoming aware of

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the photographer, quickly withdraw themselves. The whole scene barely lasts a minute.
Then we see one of the inmates shutting a window and afterwards we see the hands of
a woman holding some currency notes and a male hand plucking away most of them
leaving only a very few in the hands of the female. The two actors are not shown. The
suggestion in the first scene is that a customer is being entertained behind closed
shutters and in the next sequence that the amount received is being shared between the
pimp and the prostitute, the former taking almost the whole of the money. The
sequence continues and for the first time the woman who shut the window is again
seen. She sits at the dressing table, combs her hair, glances at two love-birds in a cage
and looks around the room as if it were a cage. Then she goes behind a screen and
emerges in other clothes and prepares for bed. She sleeps and dreams of her life before
she took the present path. The film then passes on to its previous theme of contrasts
mentioned above, often repeating the earlier shots in juxtaposition as stills. There is
nothing else in the film to be noticed either by us or by the public for which it is
intended.
5 . The petitioner applied to the Board of Film Censors for a 'U' certificate for
unrestricted exhibition of the film. He received a letter (December 30, 1969) by which
the Regional Officer informed him that the Examining Committee and the Board had
provisionally come to the conclusion that the film was not suitable for unrestricted
public exhibition but was suitable for exhibition restricted to adults. He was given a
chance to make representations against the tentative decision within 14 days. Later he
was informed that the Revising Committee had reached the same conclusion. He
represented by letter (February 18, 1969) explaining the purpose of the films as
exposing the exploitation of man (or woman) by man and the contrast between the very
rich few and the very poor masses. He claimed that there was no obscenity in the film.
He was informed by a letter (February 26, 1969) that the Board did not see any reason
to alter its decision and the petitioner could appeal within 30 days to the Central
Government. The petitioner appealed the very next day. On July 3, 1969, the Central
Government decided to give a 'U' certificate provided the following cuts were made in
the film :
"Shorten the scene of woman in the red light district, deleting specially the shot
showing the closing of the window by the lady, the suggestive shots of bare
knees and the passing of the currency notes." Dir. IC(iii)(b)(c); IV".
The mystery of the code numbers at the end was explained by a letter on July 23, 1969
to mean this :
I. It is not desirable that a film shall be certified as suitable for public
exhibition, either unrestricted or restricted to adults which
C(iii)(b) deals with the relations between the sexes in such a manner as to
depict immoral traffic in women and soliciting, prostitution or procuration.
IV. It is undesirable that a certificate for unrestricted public exhibition shall be
granted in respect of a film depicting a story, or containing incidents unsuitable
for young persons.
The petitioner then filed this petition claiming that his fundamental right of free speech
and expression was denied by the order of the Central Government. He claimed a 'U'
certificate for the film as of right.
6. Before the hearing commenced the film was specially screened, for us. The lawyers

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of both sides (including the Attorney General) and the petitioner were also present. The
case was then set down for hearing. The Solicitor General (who had not viewed the
film) appeared at the hearing. We found it difficult to question him about the film and at
our suggestion the Attorney General appeared but stated that Government had decided
to grant a 'U' certificate to the film without the cuts previously ordered.
7 . The petitioner then asked to be allowed to amend the petition so as to be able to
challenge pre-censorship itself as offensive to freedom of speech and expression and
alternatively the provisions of the Act and the rules, orders and directions under the Act,
as vague, arbitrary and indefinite. We allowed the application for amendment, for the
petitioner was right in contending that a person who invests his capital in promoting or
producing film must have clear guidance in advance in the matter of censorship of films
even if the law of pre-censorship be not violative of the fundamental right.
8. When the matter came up for hearing the petitioner raised four points : (a) that pre-
censorship itself cannot be tolerated under the freedom of speech and expression, (b)
that even if it were a legitimate restraint on the freedom, it must be exercised on very
definite principles which leave no room for arbitrary action, (c) that there must be a
reasonable time-limit fixed for the decision of the authorities censoring the film, and (d)
that the appeal should lie to a court or to an independent tribunal and not the Central
Government.
9. The Solicitor-General conceded (c) and (d) and stated that Government would set on
foot legislation to effectuate them at the earliest possible opportunity. Since the
petitioner felt satisfied with-this assurance we did not go into the matter. But we must
place on record that the respondents exhibited charts showing the time taken in the
censorship of films during the last one year or so and we were satisfied that except in
very rare cases the time taken could not be said to be unreasonable. We express our
satisfaction that the Central Government will cease to perform curial functions through
one of its Secretaries in this sensitive field involving the fundamental right of speech
and expression. Experts sitting as a Tribunal and deciding matters quasi-judicially
inspire more confidence than a Secretary and therefore it is better that the appeal
should lie to a court or tribunal.
10. This brings us to the remaining two questions. We take up first for consideration :
whether pre-censorship by itself offends the freedom of speech and expression. Article
19(1)(a) and (2) of the Constitution contain the guarantee of the right and the restraints
that may be put upon that right by a law to be made by Parliament. They may be read
here :
19. Protection of certain rights regarding freedom of speech, etc.
(1) All citizens shall have the right-
(a) to freedom of speech and expression;
(2) Nothing in Sub-clause (a) of Clause (1) shall affect the operation of
any existing law, or prevent the State from making any law, in so far as
such law imposes reasonable restrictions on the exercise of the right
conferred by the said sub-clause in the interests of the sovereignty and
integrity of India, the security of the State, friendly relations with
foreign States, public order, decency or morality, or in relation to
contempt of court, defamation or incitement to an offence.

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The argument is that the freedom is absolute and pre censorship is not permissible
under the Constitution. It is submitted that pre censorship is inconsistent with the right
guaranteed. Now it is clear that some restraint is contemplated by the second clause
and in the matter of censorship only two ways are open to Parliament to impose
restrictions. One is to lay down in advance the standards for the observance of film
producers and then to test each film produced against those standards by a preview of
the film. The other is to let the producer observe those standards and make the
infraction an offence and punish a producer who does not keep within the standards.
The petitioner claims that the former offends the guaranteed freedom but reluctantly
concedes the latter and relies upon the minority view expressed in the United States
Supreme Court from time to time. The petitioner reinforces this argument by contending
that there are other forms of speech and expression besides the films and none of them
is subject to any prior restraint in the form of pre censorship and claims equality of
treatment with such other forms. He claims that there is no justification for a differential
treatment. He contends next that even the standards laid down are unconstitutional for
many reasons which we shall state in proper place.
11. This is the first case in which the censorship of films in general and pre censorship
in particular have been challenged in this Court and before we say anything about the
arguments, it is necessary to set down a few facts relating to censorship of films and
how it works in India. The Government of India appointed a Committee on March 28,
1968 to enquire into the working of the existing procedures for certification of
cinematograph films for public exhibition in India and allied matters, under the
Chairmanship of Mr. G.D. Khosla, former Chief Justice of the Punjab High Court. The
report of the Committee has since been published and contains a valuable summary of
the law of censorship not only in India but also in foreign countries. It is hardly helpful
to the determination of this case to go into this history but it may be mentioned here
that it is the opinion of experts on the subject that Indian film censorship since our
independence has become one of strictest in the world : See Film Censors and the Law
by Neville March Hunnings p. 227 and Filmrecht : ein Handbuch of Berthold and von
Hartleib (1957) p. 215 quoted by Hunnings. In 1966 Mr. Raj Bahadur (who succeeded
Mrs. Indira Gandhi as Minister for Information and Broadcasting) said that Government
would 'continue a liberal censorship' and was considering certain expert opinion on the
subject. He also suggested to the film industry that it should formulate a code which
would be the best from all standards so that Government may be guided by it in
formulating directives to the censors'; See Journal of Film Industry, February 25, 1966
also quoted by Hunnings at page 18 of his book. This suggestion came to nothing for
obvious reasons. Film industry in India is not even oligopolistic in character and it is
useless to expect it to classify films according to their suitability, as is done in the
United States by the Motion Picture Association of America (MPAA) founded in October
1968. There the film industry is controlled by eight major producers and private control
of film-making is possible with the assistance of the National Association of Theatre
Owners and Film Importers and Distributors of America. Having no such organisation
for private censorship or even a private body like the British Board of Film Censors in
England the task must be done by Government if censorship is at all to be imposed.
Films began to be exhibited in India at the turn of the last century and film censorship
took birth in 1918 when the Cinematograph Act, 1918 (2 of 1918) was passed. Two
matters alone were then dealt with : (a) the licensing of cinema houses, and (b) the
certifying of films for public exhibition. The censors had a wide discretion and no
standards for their action were indicated. Boards of Film Censors came into existence in
the three Presidency towns and Rangoon. The Bombay Board drew up some institutions
for Inspectors of Films and it copied the 43 rules formulated by T.P. O'Connor in
England. These are more or less continued even today.

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12. We do not wish to trace here the history of the development of film censorship in
India. That task has been admirably performed by the Khosla Committee. Legislation in
the shape of amendments of the Act of 1918 and a Production Code were the highlights
of the progress. In 1952 a fresh consolidating Act was passed and it is Act 37 of 1952
(amended in 1959 by Act 3 of 1959) and that is the present statutory provision on the
subject. It established a Board of Film Censors and provided for Advisory Panels at
Regional centers. Every person desiring to exhibit any film has to apply for a certificate
and the Board after examining the film or having the film examined deals with it by :
(a) sanctioning the film for unrestricted public exhibition;
(b) sanctioning the film for public exhibition restricted to adults;
(c) directing such excisions and modifications as it thinks fit, before sanctioning
the film for unrestricted public exhibition or for public exhibition restricted to
adults, as the case may be; or
(d) refusing to sanction the film for public exhibition.
The film producer is allowed to represent his views before action under (b) (c) and (d)
is taken. The sanction under (a) is by granting a 'U' certificate and under (b) by an 'A'
certificate and the certificates are valid for ten years.
13. The Act then lays down the principles for guidance and for appeals in Sections 5B
and 5C respectively. These sections may be read here :
5B. Principles for guidance in certifying films.
(1) A film shall not be certified for public exhibition if, in the opinion of the
authority competent to grant the certificate, the film or any part of it is against
the interests of the security of the State, friendly relations with foreign States,
public order, decency or morality, or involves defamation or contempt of court
or is likely to incite the commission of any offence.
(2) Subject to the provisions contained in Sub-section (1), the Central
Government may issue such directions as it may think fit setting out the
principles which shall guide the authority competent to grant certificates under
this Act in sanctioning films for public exhibition.
5C. Appeals.
Any person applying for a certificate in respect of a film who is aggrieved by
any order of the Board-
(a) refusing to grant a certificate; or
(b) granting only an "A" certificate; or
(c) directing the applicant to carry out any excisions or modifications;
may, within thirty days from the date of such order, appeal to the Central
Government, and the Central Government may, after such inquiry into the
matter as it considers necessary and after giving the appellant an opportunity
for representing his views in the matter, make such order in relation thereto as
it thinks fit.

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By Section 6, the Central Government has reserved a general revising power which may
be exercised during the pendency of a film before the Board and even after it is
certified. Under the latter part of this power the Central Government may cancel a
certificate already granted or change the 'U' certificate into an 'A' certificate or may
suspend for 2 months the exhibition of any film.
14. The above is the general scheme of the legislation on the subject omitting allied
matters in which we are not interested in this case. It will be noticed that Section 5B(1)
really reproduces Clause (2) of Article 19 as it was before its amendment by the First
Amendment. This fact has led to an argument which we shall notice presently. The
second sub-section of Section 5B enables the Central Government to state the principles
to guide the censoring authority, by issuing directions. In furtherance of this power the
Central Government has given directions to the Board of Film Censors. They are divided
into General Principles three in number, followed by directions for their application in
what are called 'ruled'. The part dealing with the application of the principles is divided
into four sections and each section contains matters which may not be the subject of
portrayal in films. We may quote the General Principles here :
1. No picture shall be certified for public exhibition which will lower the moral
standards of those who see it.
Hence, the sympathy of the audience shall not be thrown on the side of crime,
wrong-doing, evil or sin.
2 . Standards of life, having regard to the standards of the country and the
people to which the story relates, shall not be so portrayed as to deprave the
morality of the audience.
3 . The prevailing laws shall not be so ridiculed as to create sympathy for
violation of such laws.
The application of the General Principles is indicated in the four sections of the rules
that follow so that a uniform standard may be applied by the different regional panels
and Boards. The first section deals with films which are considered unsuitable for public
exhibition. This section is divided into Clauses A to F. Clause A deals with the
delineation of crime, B with that of vice or immorality, C with that of relations between
sexes, D with the exhibition of human form, E with the bringing into contempt of armed
forces, or the public authorities entrusted with the administration of law and order and
F with the protection of the susceptibilities of foreign nations and religious
communities, with fomenting social unrest or discontent to such an extent as to incite
people to crime and promoting disorder, violence, a breach of the law or disaffection or
resistance to Government.
15. Clauses E and F are further explained by stating what is unsuitable and what is
objectionable in relation to the topics under those clauses.
16. Section II then enumerates subjects which may be objectionable in a context in
which either they amount to indecency, immorality, illegality or incitement to commit a
breach of the law.
Section III then provides :
It is not proposed that certification of a film should be refused altogether, or
that it should be certified as suitable for adult audiences only, where the

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 deletion of a part or parts, will render it suitable for unrestricted public
exhibition or for exhibition restricted to adults, and such deletion is made,
unless the film is such as to deprave the majority of the audience and even
excisions will not cure the defects.
1 7 . Section IV deals with the protection of young persons and enjoins refusal of a
certificate for unrestricted public exhibition in respect of a film depicting a story or
containing incidents unsuitable for young persons. Emphasis in this connection is laid in
particular upon-
(i) anything which may strike terror in a young person, e.g., scenes depicting
ghosts, brutality, mutilations, torture, cruelty, etc.;
(ii) anything tending to disrupt domestic harmony or the confidence of a child
in its parents, e.g. scenes depicting parents quarrelling violently, or one of
them striking the other, or one or both of them behaving immorally;
(iii) anything tending to make a person of tender years insensitive to cruelty to
others or to animals.
18. In dealing with crime under Section I Clause A, the glorification or extenuation of
crime, depicting the modus operandi of criminals, enlisting admiration or sympathy for
criminals, holding up to contempt the forces of law against crime etc. are indicated as
making the film unsuitable for exhibition. In Clause B similar directions are given with
regard to vice and immoral acts and vicious and immoral persons. In Clause C the
unsuitability arises from lowering the sacredness of the institution of marriage and
depicting rape, seduction and criminal assaults on women, immoral traffic in women,
soliciting prostitution or procuration, illicit sexual relations, excessively passionate love
scenes, indelicate sexual situations and scenes suggestive of immorality. In Clause D
the exhibition of human form in nakedness or indecorously or suggestively dressed and
indecorous and sensuous postures are condemned. In Section II are mentioned
confinements, details of surgical operations, venereal diseases and loathsome diseases
like leprosy and sores, suicide or genocide, female under clothing, indecorous dancing,
importunation of women, cruelty to children, torture of adults, brutal fighting, gruesome
murders or scenes of strangulation, executions, mutilations and bleeding, cruelty to
animals, drunkenness or drinking not essential to the theme of the story, traffic and use
of drugs, class hatred, horrors of war, horror as a predominant element, scenes likely to
afford information to the enemy in time of war, exploitation of tragic incidents of war,
blackmail associated with immorality, intimate biological studies, crippled limbs or
malformations, gross travesties of administration of justice and defamation of any living
person.
19. We have covered almost the entire range of instructions. It will be noticed that the
control is both thematic and episodic. If the theme offends the rules and either with or
without excision of the offending parts, the film remains still offensive, the certificate is
refused. If the excisions can remove its offensiveness, the film is granted a certificate.
Certifiable films are classified according to their suitability for adults or young people.
This is the essential working of Censorship of motion pictures in our country.
20. The first question is whether the films need censorship at all ? Pre-censorship is but
an aspect of censorship and bears the same relationship in quality to the material as
censorship after the motion picture has had a run. The only difference is one of the
stage at which the State interposes its regulations between the individual and his
freedom. Beyond this there is no vital difference. That censorship is prevalent all the

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world over in some form or other and pre-censorship also plays a part where motion
pictures are involved, shows the desirability of censorship in this field. The Khosla
Committee has given a description generally of the regulations for censorship (including
pre-censorship) obtaining in other countries and Running's book deals with these topics
in detail separately for each country. The method changes, the rules are different and
censorship is more strict in some places than in others, but censorship is universal.
Indeed the petitioner himself pronounced strongly in favour of it in a paper entitled
'Creative Expression written by him. This is what he said :
But even if we believe that a novelist or a painter or a musician should be free
to write, paint and compose music without the interference of the State
machinery, I doubt if anyone will advocate the same freedom to be extended to
the commercial exploitation of a powerful medium of expression and
entertainment like the cinema. One can imagine the results if an unbridled
commercial cinema is allowed to cater to the lowest common denominator of
popular taste, specially in a country which, after two centuries of political and
cultural domination, is still suffering from a confusion and debasement of
cultural values.
Freedom of expression cannot, and should not, be interpreted as a licence for
the cinemagnates to make money by pandering to, and thereby propagating,
shoddy and vulgar taste.
2 1 . Further it has been almost universally recognised that the treatment of motion
pictures must be different from that of other forms of art and expression. This arises
from the instant appeal of the motion picture, its versatility, realism (often surrealism),
and its coordination of the visual and aural senses. The art of the cameraman, with trick
photography, vistavision and three dimensional representation thrown in, has made the
cinema picture more true to life than even the theatre or indeed any other form of
representative article. The motion picture is able to stir up emotions more deeply than
any other product of article. Its effect particularly on children and adolescents is very
great since their immaturity makes them more willingly suspend their disbelief than
mature men and women. They also remember the action in the picture and try to
emulate or imitate what they have seen. Therefore, classification of films into two
categories of 'U' films and 'A' films is a reasonable classification. It is also for this
reason that motion picture must be regarded differently from other forms of speech and
expression. A person reading a book or other writing or hearing a speech or viewing a
painting or sculpture is not so deeply stirred as by seeing a motion picture. Therefore
the treatment of the latter on a different footing is also a valid classification.
22. The petitioner pressed for acceptance of the minority views expressed from time to
time in the Supreme Court of the United States and it is, therefore, necessary to say a
few words about censorship of motion pictures in America and the impact of the First
Amendment guaranteeing freedom of speech and expression in that country. The
leading cases in the United States are really very few but they are followed in a very
large number of per curiam decisions in which, while concurring with the earlier opinion
of the Court, there is sometimes a restatement with a difference. As early as 1914 in
Mutual Film Corporation. v. Industrial Commission of Ohio (1915) 236 U.S. 230. Mr.
Justice Mc Kenna, speaking for the full Court, said that legislative power is not
delegated unlawfully when a board of censors is set up to examine and censor, as a
condition precedent to exhibition, motion picture films, to be publicly exhibited and
displayed, with a view to passing and approving only such of them as are in the
judgment of the board, moral, educational or amusing and forbidding those that are

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not. Speaking of the criteria stated in general words, it was said that general terms get
"precision from the sense and experience of men and become certain and useful guides
in reasoning and conduct". The first notice of change came in 1925 in Gitlow v. New
York (1925) 268 U.S. 652., when it was said that censorship had to pass the scrutiny of
the First Amendment through the Fourteenth Amendment before speech and expression
could be Abridged by State laws. To this, was added in 1919 the test of 'clear and
present danger' propounded by Justice Holmes as the only basis for curtailing the
freedom of speech and expression, see Shenck v. U.S. (1919) 249 U.S. 47. and Justice
Brandeis in Whitney v. California (1927) 274 U.S. 357. laid down three components of
the test :
(a) There must be a clear and present danger that speech would produce a
substantial evil that the State has power to prevent. This is not to say that it is
enough if there is 'fear', there must be reasonable grounds to fear that serious
evil would result from the exercise of speech and expression.
(b) There must be a 'present' or 'imminent' danger and for this there must be
reasonable grounds to hold this opinion and that no reasonable opportunity was
available to avert the consequences; and
(c) The substantive evil to be prevented must be 'serious' before there can be a
prohibition on freedom of speech and expression for the police power of the
State could not be exercised to take away the guarantee to avert a relatively
trivial harm to society.
23. In 1931 in Near v. Minnesota (1931) 283 U.S. 697 immunity of press from pre-
censorship was denied but pre-censorship (as it is termed previous restraint) was not to
be unlimited. A major purpose of the First Amendment was to prevent prior restraint.
The protection was not unlimited but put on the state the burden of showing that the
limitation challenged in the case was exceptional.
24. In 1941 the Court handed down in Chaplinsky v. New Hampshire (1941) 315 U.S.
567. the opinion that free speech was not absolute at all times and in all circumstances,
that there existed certain "well-defined and narrowly limited classes of speech, the
prevention and punishment of which had never been thought to raise any Constitutional
problem".
25. This state of affairs continued also in respect of motion pictures and the regulation
of their public exhibition. Real attention was focussed on censorship after 1951. The
effect of World War II on American society was the real cause because peoples notions
of right and wrong from a social point of view drastically altered. Added to this were the
inroads made by Justices Douglas and Black in Dennis v. U.S. (1951) 341 U.S. 494. in
the previously accepted propositions which according to them made the First
Amendment no more than an admonition to Congress. In Beauharnais v. Illinois (1952)
343 U.S. 250. Justice Douglas claimed for the freedom of speech, a preferred position
because the provision was in absolute terms, an opinion which has since not been
shared by the majority of the Court.
26. In 1951 there came the leading decision Burstyn v. Wilson (1951) 343 U.S. 495.
This case firmly established that motion pictures were within the protection of the First
Amendment through the Fourteenth. While recognising that there was no absolute
freedom to exhibit every motion picture of every kind at all times and places, and that
Constitutional protection even against a prior restraint was not absolutely unlimited,
limitation was said to be only in exceptional cases. It however laid down that

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censorship on free speech and expression was ordinarily to be condemned but the
precise rules governing other methods of expression were not necessarily applicable.
27. The application of the 14th Amendment has now enabled the Court to interfere in
all cases of state restrictions where censorship fails to follow due process. The result
has led to a serious conflict in the accepted legal opinion. The Supreme Court has had
to deal with numerous cases in which censorship was questioned.
28. The divergence of opinion in recent years has been very deep. Censorship of press,
art and literature is on the verge of extinction except in the ever shrinking area of
obscenity. In the field of censorship of the motion picture there has been a tendency to
apply the 'void for vagueness' doctrine evolved under the due process clause. Thus
regulations containing such words as 'obscene', 'indecent', 'immoral', 'prejudicial to the
best interests of people', 'tending to corrupt morals', 'harmful' were considered vague
criteria. In Kingsley International Pictures Corporation. v. Regents (1959) 360 U.S. 684.
where the film Lady Chatterley's Lover was in question, certain opinions were
expressed. These opinions formed the basis of the arguments on behalf of the
petitioner. Justice Black considered that the court was the worst of Board Censors
because they possessed no special expertise. Justice Frankfurter was of the opinion that
'legislation must not be so vague, the language so loose, as to leave to those who have
to apply it too wide a discretion for sweeping within its condemnation what was
permissible expression as well as what society might permissibly prohibit, always
remembering that the widest scope for freedom was to be given to the adventurous and
imaginative exercise of human spirit . . .". 'Justice Douglas considered prior restraint as
unconstitutional. According to him if a movie violated a valid law, the exhibitor could be
prosecuted.
29. The only test that seemed to prevail was that of obscenity as propounded in Roth v.
United States (1957) 354 U.S. 476. In that three tests were laid down :
(a) that the dominant theme taken as a whole appeals to prurient interests
according to the contemporary standards of the average man;
(b) that the motion picture is not saved by any re deeming social value; and
(c) that it is patently offensive because it is opposed to contemporary
standards.
The Hicklin test in Regina v. Hicklin L.R. [1868] 3 Q.B. 360. was not accepted.
3 0 . Side by side procedural safeguards were also considered. The leading case is
Freedmen v. Mary land (1965) 380 U.S. 51. where the court listed the following
requirements for a valid film statute :
1. The burden of proving that the film is obscene rests on the censor.
2. Final restraint (denial of licence) may only occur after judicial determination
of the obscenity of the material.
3 . The censor will either issue the license or go into court himself for a
restraining order.
4 . There must be only a 'brief period' between the censor's first consideration
of film and final judicial determination. (As summarized by Martin Shapiro
Freedom of Speech; The Supreme Court and Judicial Review).

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These were further strengthened recently in Teitel Film Corporation v. Cusak 1968 390
U.S. 139. (a per curiam decision) by saying that a non-criminal process which required
the prior submission of a film to a censor avoided Constitutional infirmity only if
censorship took place under procedural safeguards. The censorship system should,
therefore, have a time-limit. The censor must either pass the film or 30 to court to
restrain the showing of the film and the court also must give a prompt decision. A delay
of 50-57 days was considered too much. The statute in question there had meticulously
laid down the time for each stage of examination but had not fixed any time limit for
prompt judicial determination and this proved fatal.
3 1 . The fight against censorship was finally lost in the Times Film Corporation v.
Chicago (1961) 365 U.S. 43. but only by the slender majority of one Chief Justice
Warren and Justices Black, Douglas and Brennan dissented. The views of these Judges
were pressed upon us. Chief Justice Warren thought that there ought to be first an
exhibition of an allegedly 'obscene film' because Government could not forbid the
exhibition of a film in advance. Thus prior restraint was said to be impermissible.
Justice Douglas went further and said that censorship of movies was unconstitutional.
Justice Clark on the other hand, speaking for the majority, said :
.... It has never been held that liberty of speech is absolute. Nor has it been
suggested that all previous restraints on speech are invalid.
It is not for this Court to limit the State in its selection of the remedy it deems
most effective to cope with such a problem, absent, of course, a showing of
unreasonable strictures on individual liberty resulting from its application in
particular circumstances.
The argument that exhibition of moving pictures ought in the first instance to be free
and only a criminal prosecution should be the mode of restraint when found offensive
was rejected. The pre censorship involved was held to be no ground for striking down a
law of censorship. The minority was of the opinion that a person producing a film must
know what he was to do or not to do. For, if he were not sure he might avoid even the
permissible.
32. In Interstate Circuit Inc. v. Dallas (1968) 390 U.S. 676. certain expression were
considered vague including 'crime delinquency 'sexual promiscuity' 'not suitable for
young persons'. According to the court the statute must state narrowly drawn,
reasonably definite, standards for the Board to follow. Justice Harlan, however,
observed that the courts had not found any more precise expressions and more could
not be demanded from the legislature than could be said by the Court. However
precision of regulation was to be the touchstone of censorship and while admitting that
censorship was admissible, it was said that too wide a discretion should not be left to
the censors.
33. Meanwhile in Jacobellis v. Ohio (1964) 378 U.S. 184. it was held that laws could
legitimately aim specifically at preventing distribution of objectionable material to
children and thus it approved of the system of age-classification. The Interstate Circuit
Inc. v. Dallas (1968) 390 U.S. 676. and Ginsberg v. New York (1968) 390 U.S. 629 sat
the seal on validity of age classification as Constitutionally valid.
34. There are two cases which seem to lie outside the main-stream. Recently in Stanley
v. Georgia (1969) 394 U.S. 557. the Court seems to have gone back on the Roth case
(supra) and held that the right to receive information and ideas, regardless of their
social worth, is also fundamental to society. Another exception can only be understood

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on the basis of the recognition of the needs of a permissive society. Thus Mishkin v.
New York (1966) 383 U.S. 502. removes the test of the average person by saying that if
the material is designed for a deviant sexual group, the material can only be censored if
taken as a whole, it appeals to the prurient interest in sex of the members of that
group. This is known as the selective-audience obscenity test and even children are a
special class. See Ginsberg v. New York (1968) 390 U.S. 629. On the whole, however,
there is in this last case a return to the Hicklin test in that obscenity is considered even
from isolated passages.
35. To summarize. The attitude of the Supreme Court of the United States is not as
uniform as one could wish. It may be taken as settled that motion picture is considered
a form of expression and entitled to protection of First Amendment. The view that it is
only commercial and business and, therefore, not entitled to the protection as was said
in Mutual Film Corpn. (1915) 236 U.S. 230. is not now accepted. It is also settled that
freedom of speech and expression admits of extremely narrow restraints in cases of
clear and present danger, but included in the restraints are prior as well as subsequent
restraints. The censorship should be based on precise statement of what may not be
subject matter of film-making and this should allow full liberty to the growth of art and
literature. Age-classification is permissible and suitability for special audiences is not to
depend on whether the average man would have considered the film suitable.
Procedural safeguards as laid down in the Freedman case (1965) 380 U.S. 51. must also
be observed. The film can only be censored if it offends in the manner set out in Roth's
case.
36. The petitioner put before us all these dicta for our acceptance and added to them
the rejection of censorship, particularly prior censorship by Chief Justice Warren and
Justices Black and Douglas. He pointed out that in England too the censorship of the
theatre has been abolished by the Theatres Act 1968 (1968 C. 54) and submitted that
this is the trend in advanced countries. He also brought to our notice the provisions of
the Obscene Publications Act, 1959 7 & 8 Eliz. 2 C. 66, where the test of obscenity is
stated thus :
1. Test of obscenity.
(1) For the purposes of this Act an article shall be deemed to be
obscene if its effect or (where the article comprises two or more
distinct items) the effect of any one of its items is, if taken as a whole,
such as to tend to deprave and corrupt persons who are likely, having
regard to all relevant circumstances, to read, see or hear the matter
contained of embodied in it.
and the defence of public good is stated thus :
4. Defence of public good.
(1) A person shall not be convicted of an offence against section two of
this Act, and an order for forfeiture shall not be made under the
foregoing section, if it is proved that publication of the article in
question is justified as being for the public good on the ground that it
is in the interests of science, literature, art or learning, or of other
objects of general concern.
(2) It is hereby declared that the opinion of experts as to the literary,
artistic, scientific or other merits of an article may be admitted in any

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 proceedings under this Act either to establish or to negative the said
ground.
He contended that we must follow the above provisions.
37. We may now consider the English practice. In England there was little freedom of
speech to start with. The Common Law made no provision for it. The two Constitutional
documents-the Petition of Right (1628) and the Bill of Rights (1689)- do not mention it.
By the time of Queen Elizabeth I presses were controlled through licences and although
they were granted, no book could be issued without the sanction of Government. The
Star Chamber tried several cases of censorship and it even continued in the days of
Cromwell. Milton was the first to attack censorship in his Areopagitica and that had
profound effect on the freedom of speech. We find quotations from his writings in the
opinions of Chief Justice Warren and Justice Dougles. Freedom of speech came to be
recognised by slow stages and it was Blackstone who wrote in his Commentaries (Book
IV p. 1517)-
The liberty of the Press is indeed essential to the nature of a free State, but this
consists in laying no previous restraints upon publications.
But censorship of theatres continued and no theatre could be licensed or a play
performed without the sanction of the Lord Chamberlain. By the Theatres Act 1843 the
Lord Chamberlain was given statutory control over the theatres. He could forbid the
production of a play for the preservation of good manners, decorum or the public
peace. There was ordinarily no censorship of the press in England. When cinematograph
came into being the Cinematograph Act 1909 was passed to control cinemas. It has now
been amended by the Cinematograph Act of 1952. Restrictions were placed on the
exhibition of films to children (Section 4) and on the admission of children to certain
types of film. Today censorship of films is through the British Board of Film Censors
which is an independent body not subject to control by the State. An elaborate inquiry
is already on foot to consider whether state control is needed or not. Censorship of
films is run on the lines set by T.P. O'Connor in 1918. These directions, as we said
earlier, have had a great influence upon our laws and our directions issued by the
Central Government, follow closely the 43 points of T.P. O'Connor. It is wrong to
imagine that there is no censorship in England. The Khosla Committee (p. 32) has given
examples of the cuts ordered and also a list of films which were found unsuitable. The
Board has never worked to a Code although the directions are followed. By 1950 three
general principles were evolved. They are :
1 . Was the story, incident or dialogue likely to impair the moral standards of
the public by extenuating vice or crime or depreciating moral standards ?
2. Was it likely to give offence to reasonably minded cinema audiences ?
3. What effect would it have on the minds of children ?
38. We have digressed into the practice of the United States and the United Kingdom
because analogies from these two countries were mainly relied upon by the petitioner
and they serve as a very appropriate back-ground from which to begin discussion on
the question of censorship and the extent to which it may be carried.
39. To begin with our fundamental law allows freedom of speech and expression to be
restricted as Clause (2) itself shows. It was observed in Ranjit D. Udeshi v. State of
Maharashtra MANU/SC/0080/1964 : 1965CriLJ8 .

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 Speaking in terms of the Constitution it can hardly be claimed that obscenity
which is offensive to modesty or decency is within the Constitutional protection
given to free speech or expression, because the article dealing with the right
itself excludes it. That cherished right on which our democracy rests is meant
for the expression of free opinions to change political or social conditions or for
the advancement of human knowledge. This freedom is subject to reasonable
restrictions which may be thought necessary in the interest of the general
public and one such is the interest of public decency and morality. Section 292,
Indian Penal Code, manifestly embodies such a restriction because the law
against obscenity, of course, correctly understood and applied, seeks no more
than to promote public decency and morality.
We adhere to this statement and indeed it is applicable to the other spheres where
control is tolerated under our fundamental law. The argument that Section 5B of the
Cinematograph Act does not reproduce the full effect of the second clause of Article 19
need not detain us. It appears that the draftsman used a copy of the Constitution as it
was before the First Amendment and fell into the error of copying the obsolete clause.
That, however, does not make any difference. The Constitution has to be read first and
the section next. The latter can neither take away nor add to what the Constitution has
said on the subject. The word 'reasonable' is not to be found in Section 5B but it cannot
mean that the restrictions can be unreasonable. No only the sense of the matter but the
existence of the Constitutional provision in part materia must have due share and
reading the previsions of the Constitution we can approach the problem without having
to adopt a too liberal construction of Section 5B.
4 0 . It, therefore, follows that the American and the British precedents cannot be
decisive and certainly not the minority view expressed by some of the Judges of the
Supreme Court of the former. The American Constitution stated the guarantee in
absolute terms without any qualification. The Judges try to give full effect to the
guarantee by every argument they can validly use. But the strongest proponent of the
freedom (Justice Douglas) himself recognised in the Kingsley case that there must be a
vital difference in approach. This is what he said :
If we had a provision in our Constitution for 'reasonable' regulation of the press
such as India has included in hers, there would be room for argument that
censorship in the interests of morality would be permissible.
In spite of the absence of such a provision Judges in America have tried to read the
words 'reasonable restrictions' into the First Amendment and thus to make the rights it
grants subject to reasonable regulation. The American cases in their majority opinions,
therefore, clearly support a case of censorship.
41. It would appear from this that censorship of films, their classification according to
age groups and their suitability for unrestricted exhibition with or without excisions is
regarded as a valid exercise of power in the interests of public morality, decency etc.
This is not to be construed as necessarily offending the freedom of speech and
expression. This has, however, happened in the United States and therefore decisions,
as Justice Douglas said in his Tagore Law Lectures (1939), have the flavour of due
process rather than what was conceived as the purpose of the First Amendment. This is
because social interest of the people override individual freedom. Whether we regard
the state as the parens patriae or as guardian and promoter of general welfare, we have
to concede, that these restraints on liberty may be justified by their absolute necessity
and clear purpose. Social interests take in not only the interests of the community but

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also individual interests which cannot be ignored. A balance has therefore to be struck
between the rival claims by reconciling them. The larger interests of the community
require the formulation of policies and regulations to combat dishonesty, corruption,
gambling, vice and other things of immoral tendency and things which affect the
security of the State and the preservation of public order and tranquillity. As Ahrens
said the question calls for a good philosophical compass and strict logical methods.
4 2 . With this preliminary discussion we say that censorship in India (and pre
censorships is not different in quality) has full justification in the field of the exhibition
of cinema films. We need not generalize about other forms of speech and expression
here for each such fundamental right has a different content and importance. The
censorship imposed on the making and exhibition of films is in the interests of society.
If the regulations venture into something which goes beyond this legitimate opening to
restrictions, they can be questioned on the ground that a legitimate power is being
abused. We hold, therefore, that censorship of films including prior restraint is justified
under our Constitution.
43. This brings us to the next questions : How far can these restrictions go ? and how
are they to be imposed ? This leads to an examination of the provisions contained in
Section 5B(2). That provision authorises the Central government to issue such
directions as it may think fit setting out the principles which shall guide the authority
competent to grant certificates under the Act in sanctioning films for public exhibition.
4 4 . The first question raised before us is that the legislature has not indicated any
guidance to the Central Government. We do not think that this is a fair reading of the
section as a whole. The first sub-section states the principles and read with the second
clause of the nineteenth article it is quite clearly indicated that the topics of films or
their content should not offend certain matters there set down. The Central Government
in dealing with the problem of censorship will have to bear in mind those principles and
they will be the philosophical compass and the logical methods of Ahrens. Of course,
Parliament can adopt the directions and put them in schedule to the Act (and that may
still be done), it cannot be said that there is any delegation of legislative function. If
Parliament made a law giving power to close certain roads for certain vehicular traffic at
stated times to be determined by the Executive authorities and they made regulations in
the exercise of that power, it cannot for a moment be argued that this is insufficient to
take away the right of locomotion. Of course, everything may be done by legislation but
it is not necessary to do so if the policy underlying regulations is clearly indicated. The
Central Government's regulations are there for consideration in the light of the
guaranteed freedom and if they offend substantially against that freedom, they may be
struck down. But as they stand they cannot be challenged on the ground that any
recondite theory of law making or a critical approach to the separation of powers is
infringed. We are accordingly of the opinion that Section 5B(2) cannot be challenged on
this ground.
45. This brings us to the manner of the exercise of control and restriction by the
directions. Here the argument is that most of the regulations are vague and further that
they leave no scope for the exercise of creative genius in the field of Article This poses
the first question before us whether the 'void for vagueness' doctrine is applicable.
Reliance in this connection is placed on Municipal Committee Amritsar and Anr. v. The
State of Rajasthan A.I.R. 1960 S.C. 1100. In that case a Division Bench of this Court
lays down that an Indian Act cannot be declared invalid on the ground that it violates
the due process clause or that it is vague. Shah J, speaking for the Division Bench,
observes :

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 ...the rule that an Act of a competent legislature may be 'struck down' by the
courts on the ground of vagueness is alien to our Constitutional system. The
Legislature of the State of Punjab was competent to enact legislation in respect
of 'fairs', vide Entry 28 of List II of the 7th Schedule to the Constitution. A law
may be declared invalid by the superior courts in India if the legislature has no
power to enact the law or that the law violates any of the fundamental rights
guaranteed in Part III of the Constitution or is inconsistent with any
Constitutional provision, but not on the ground that it is vague.
The learned Judge refers to the practice of the Supreme Court of the United State in
Claude C. Caually v. General Construction Company (1926) 70 L. Ed. 332. where it was
observed :
A statute which either forbids or requires the doing of an act in terms so vague
that men of common intelligence must necessarily guess at its meaning and
differ as to its application violates the first essential of due process of law.
The learned Judge observes in relation to this as follows :
But the rule enunciated by the American Courts has no application under our
Constitutional set up. This rule is regarded as an essential of the 'due process
clause' incorporated in the American Constitution by the 5th and 14th
Amendments. The courts in India have no authority to declare a statute invalid
on the ground that it violates 'the due process of law'. Under our Constitution,
the test of due process of law cannot be applied to the statutes enacted by the
Parliament or the State Legislature.
Relying on the observations of Kama C.J. in A.K. Gopalan v. The State of Madras
MANU/SC/0012/1950 : 1950CriL J1383 . to the effect that a law cannot be declared void
because it is opposed to the spirit supposed to pervade the Constitution but not
expressed in words, the conclusion above set out is reiterated. The learned Judge,
however, adds that the words 'cattle fair' in act there considered, are sufficiently clear
and there is no vagueness.
46. These observations which are clearly obiter are apt to be too generally applied and
need to be explained. While it is true that the principles evolved by the Supreme Court
of the United States of America in the application of the Fourteenth Amendment were
eschewed in our Constitution and instead the limits of restrictions on each fundamental
right were indicated in the clauses that follow the first clause of the nineteenth article, it
cannot be said as an absolute principle that no law will be considered bad for sheer
vagueness. There is ample authority for the proposition that a law affecting fundamental
rights may be so considered. A very pertinent example is to be found in State of Madhya
Pradesh and Anr. v. Baldeo Prasad MANU/SC/0067/1960. where the Central Provinces
and Berar Goondas Act 1946 was declared void for uncertainty. The condition for the
application of Sections 4 and 4A was that the person sought to be proceeded against
must be a goonda but the definition of goonda in the Act indicated no tests for deciding
which person fell within the definition. The provisions were therefore held to be
uncertain and vague.
47. The real rule is that if a law is vague or appears to be so, the court must try to
construe it, as far as may be, and language permitting, the construction sought to be
placed on it, must be in accordance with the intention of the legislature. Thus if the law
is open to diverse construction, that construction which accords best with the intention
of the legislature and advances the purpose of legislation, is to be preferred. Where

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however the law admits of no such construction and the persons applying it are in a
boundless sea of uncertainty and the law prima facie takes away a guaranteed freedom,
the law must be held to offend the Constitution as was done in the case of the Goonda
Act. This is not application of the doctrine of due process. The invalidity arises from the
probability of the misuse of the law to the detriment of the individual. If possible, the
Court instead of striking down the law may itself draw the line of demarcation where
possible but this effort should be sparingly made and only in the clearest of cases.
48. Judging the directions from this angle, we find that there are general principles
regarding the films as a whole and specific instances of what may be considered as
offending the public interest as disclosed in the clause that follows the enunciation of
the freedoms in Article 19(1)(a). The general principles which are stated in the
directions seek to do no more than restate the permissible restrictions as stated in
Clause (2) of Article 19 and Section 5B(1) of the Act. They cannot be said to be vague
at all. Similarly, the principles in Section IV of the directions in relation to children and
young persons are quite specific and also salutary and no exception can be taken. It is
only the instances which are given in Section I Clauses A to D which need to be
considered. Read individually they give ample direction as to what may not be included.
It is argued on the basis of some American cases already noticed by us that these
expressions are vague. We do not agree. The words used are within the common
understanding of the average man. For example the word 'rape' indicate what the word
is, ordinarily, understood to mean. It is hardly to be expected or necessary that the
definition of rape in the Penal Code must be set down to further expose the meaning.
The same may be said about almost all the terms used in the directions and discussed
before us. We do not propose to deal with each topic for that is really a profitless
venture. Fundamental rights are to be judged in a broadway. It is not a question of
semantics but of the substance of the matter. It is significant that Justice Douglas who
is in favour of a very liberal and absolute application of the First Amendment in America
is of the view that 'sexual promiscuity' was not vague, while those in favour of prior
restraints thought that it was. We have referred earlier to the case. We are quite clear
that expressions like 'seduction', 'immoral traffic in women', 'soliciting, prostitution or
procuration', 'indelicate sexual situation' and 'scenes suggestive of immorality', 'traffic
and use of drugs', 'class hatred', blackmail associated with immorality' are within the
understanding of the average men and more so of persons who are likely to be the
panel for purposes of censorship. Any more definiteness is not only not expected but is
not possible. Indeed if we were required to draw up a list we would also follow the
same general pattern.
49. But what appears to us to be the real flaw in the scheme of the directions is a total
absence of any direction which would tend to preserve art and promote it. The artistic
appeal or presentation of an episode robs it of its vulgarity and harm and this appears
to be completely forgotten. Artistic as well as inartistic presentations are treated alike
and also what may be socially good and useful and what may not. In Ranjit D. Udeshi's
case MANU/SC/0080/1964 : 1965CriL J8 this court laid down certain principles on which
the obscenity of a book was to be considered with a view to deciding whether the book
should be allowed to circulate or withdrawn. Those principles apply mutatis mutandis to
films and also other areas besides obscenity. The Khosla Committee also adopted them
and recommended them for the guidance of the film censors. We may reproduce them
here as summarized by the Khosla Committee :
The Supreme Court laid down the following principles which must be carefully
studied and applied by our censors when they have to deal with a film said to
be objectionable on the ground of indecency or immorality :-

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 (1) Treating with sex and nudity in art and literature cannot be
regarded as evidence of obscenity without something more.
(2) Comparison of one book with another to find the extent of
permissible action is not necessary.
(3) The delicate task deciding what is artistic and what is obscene has
to be performed by courts and in the last resort, by the Supreme Court
and so, oral evidence of men of literature or others on the question of
obscenity is not relevant.
(4) An overall view of the obscene matter in the setting of the whole
work would of course be necessary but the obscene matter must be
considered by itself and separately to find out whether it is so gross
and its obscenity is so decided that it is likely to deprave or corrupt
those whose minds are open to influence of this sort and into whose
hands the book is likely to fall.
(5) The interests of contemporary society and particularly the influence
of the book etc., on it must not be overlooked.
(6) Where obscenity and art are mixed, art must be so preponderating
as to throw obscenity into shadow or render the obscenity so trivial and
insignificant that it can have no effect and can be overlooked.
(7) Treating with sex in a manner offensive to public decency or
morality which are the words of our Fundamental Law judged by our
national standards and considered likely to pender to lascivious,
prurient or sexually precocious minds must determine the result.
(8) When there is propagation of ideas, opinions and informations or
public interests or profits, the interests of society may tilt the scales in
favour of free speech and expression. Thus books on medical science
with intimate illustrations and photographs though in a sense
immodest, are not to be considered obscene, but the same illustrations
and photographs collected in a book from without the medical text
would certainly be considered to be obscene.
(9) Obscenity without a preponderating social purpose or profit cannot
have the Constitutional protection of free speech or expression.
Obscenity is treating with sex in a manner appealing to the carnal side
of human nature or having that tendency. Such a treating with sex is
offensive to modesty and decency.
(10) Knowledge is not a part of the guilty act. The offender's
knowledge of the obscenity of the book is not required under the law
and it is a case of strict liability.
Application of these principles does not seek to whittle down the fundamental right of
free speech and expression beyond the limits permissible under our Constitution for
however high or cherished that right it does not go to pervert or harm society and the
line has to be drawn somewhere. As was observed in the same case :
....The test which we evolve must obviously be of a general character but it

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 must admit of a just application from case to case by indicating a line of
demarcation not necessarily sharp but sufficiently distinct to distinguish
between that which is obscene and that which is not....
A similar line has to be drawn in the case of every topic in films considered unsuitable
for public exhibition or specially to children.
50. We may now illustrate our meaning how even the items mentioned in the directions
may figure in films subject either to their artistic merit or their social value over-
weighing their offending character. The task of the censor is extremely delicate and his
duties cannot be the subject of an exhaustive set of commands established by prior
ratiocination. But direction is necessary to him so that he does not sweep within the
terms of the directions vast areas of thought, speech and expression of artistic quality
and social purpose and interest. Our standards must be so framed that we are not
reduced to a level where the protection of the least capable and the most depraved
amongst us determines what the morally healthy cannot view or read. The standards
that we set for our censors must make a substantial allowance in favour of freedom thus
leaving a vast area for creative art to interpret life and society with some of its foibles
along with what is good, We must not look upon such human relationships as banned in
toto and for ever from human thought and must give scope for talent to put them before
society. The requirements of art and literature include within themselves a
comprehensive view of social life and not only in its ideal form and the line is to be
drawn where the average man moral man begins to feel embarrassed or disgusted at a
naked portrayal of life without the redeeming touch of art or genius or social value. If
the depraved begins to see in these things more 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. In our scheme of things ideas having redeeming social
or artistic value must also have importance and protection for their growth. Sex and
obscenity are not always synonymous and it is wrong to classify sex as essentially
obscene or even indecent or immoral. It should be our concern, however, to prevent the
use of sex designed to play a commercial role by making its own appeal. This draws in
the censors scissors. Thus audiences in India can be expected to view with equanimity
the story of Oedipus son of Latius who committed patricide and incest with his mother.
When the seer Tiresias exposed him, his sister Jocasta committed suicide by hanging
herself and Oedipus put out his own eyes. No one after viewing these episodes would
think that patricide or incest with one's own mother is permissible or suicide in such
circumstances or tearing out one's own eyes is a natural consequence. And yet if one
goes by the letter of the directions the film cannot be shown. Similarly, scenes
depicting leprosy as a theme in a story or in a documentary are not necessarily outside
the protection. If that were so Verrier Elwyn's Phulmat of the Hills or the same episode
in Henryson's Testament of Cresseid (from where Verrier Elwyn borrowed the idea)
would never see the light of the day. Again carnage and bloodshed may have historical
value and the depiction of such scenes as the sack of Delhi by Nadirshah may be
permissible, if handled delicately and as part of an artistic portrayal of the confrontation
with Mohammad Shah Rangila. If Nadir Shah made golgothas of skulls, must we leave
them out of the story because people must be made to view a historical theme without
true history ? Rape in all its nakedness may be objectionable but Voltaire's Candide
would be meaningless without Cunegonde's episode with the soldier and the story of
Lucrece could never be depicted on the screen.
51. Therefore it is not the elements of rape, leprosy, sexual immorality which should
attract the censor's scissors but how the theme is handled by the producer. It must,
however, be remembered that the cinematograph is a powerful medium and its appeal

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is different. The horrors of war as depicted in the famous etchings of Goya do not
horrify one so much as the same scenes rendered in colour and with sound and
movement, would do. We may view a documentary on the erotic tableaux from our
ancient temples with equanimity or read the Kamasutra but a documentary from them as
a practical sexual guide would be abhorrent.
52. We have said all this to show that the items mentioned in the directions are not by
themselves defective. We have adhered to the 43 points of T.P. O'Connor framed in
1918 and have made a comprehensive list of what may not be shown. Parliament has
left this task to the Central Government and, in our opinion, this could be done. But
Parliament has not legislated enough, nor has the Central Government filled in the gap.
Neither has separated the artistic and the sociably valuable from that which is
deliberately indecent, obscene, horrifying or corrupting. They have not indicated the
need of society and the freedom of the individual. They have thought more of the
depraved and less of the ordinary moral man. In their desire to keep films from the
abnormal, they have ...excluded the moral. They have attempted to bring down the
public motion picture to the level of home movies.
5 3 . It was for this purpose that this Court was at pains to point out in Ranjit D.
Udeshi's case MANU/SC/0080/1964 : 1965CriL J8 certain considerations for the guidance
of censorship of books. We think that those guides work as well here. Although we are
not inclined to hold that the directions are defective in so far as they go, we are of
opinion that directions to emphasize the importance of art to a value judgment by the
censors need to be included. Whether this is done by Parliament s or by the Central
Government it hardly matters. The whole of the law and the regulations under it will
have always to be considered and if the further tests laid down here are followed, the
system of censorship with the procedural safeguards accepted by the Solicitor General
will make censorship accord with our fundamental law.
54. We allow this petition as its purpose is more than served by the assurance of the
Solicitor General and what we have said, but in the circumstances we make no order
about costs.

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