MANU/SC/0080/1964

Equivalent Citation: AIR1965SC881, 1965(67)BLJR506, 1965CriLJ8, 1966MhLJ257,

1966MPLJ273(SC), [1965]1SCR65
IN THE SUPREME COURT OF INDIA
Decided On: 19.08.1964
Appellants:Ranjit D. Udeshi
Vs.
Respondent:State of Maharashtra
Hon'ble Judges/Coram:
P.B. Gajendragadkar, C.J., K.N. Wanchoo, M. Hidayatullah, N. Rajagopala Ayyangar and J.C.
Shah, JJ.
Subject: Media and Communication
Subject: Criminal
Acts/Rules/Orders:
Constitution of India - Article 19(1)(A), Constitution of India - Article 19(2); Indian Penal Code
1860, (IPC) - Section 292
Citing Reference:


6

Case Notes:
The case questioned whether Section 292 of the Indian Penal Code, 1806 was ultra
vires - In the particular instance, the appellant, who had sold a copy of the
unexpurgated edition of Lady Chatterleys Lover was convicted under Section 292 of
the Indian Penal Code - It was held that Section 292 of the Code embodied a
reasonable restriction upon the freedom of speech and expression guaranteed by
Article 19 of the Constitution of India and did not fall outside the limits of restriction
permitted by Clause (2) of the Article 19 of the Constitution - Further, the Section
sought no more than the promotion of public decency and morality which were the
words of that clause.
JUDGMENT
Hidayatullah J.
1. The appellant is one of four partners of a firm which owns a book-stall in Bombay. He was
prosecuted along with the other partners under s. 292, Indian Penal Code. All the facts
necessary for out purpose appear from the simple charge with two counts which was framed
against them. It reads :
"That you caused Nos. 1, 2, 3, 4 on or about the 12th day of December, 1959 at
Bombay being the partners of a book-stall named Happy Book Stall were found in
possession for the purpose of sale copies of an obscene book called Lady
Chatterley's Lover (unexpurgated edition) which inter alia contained, obscene
matter as detailed separately and attached herewith and thereby committed an
offence punishable u/s 292 of the I.P. Code;
Mentioned

2014-04-01 (Page 1 of 10 ) www.manupatra.com University of Oxford - Bodleian Law Library
AND
That you Gokuldas Shamji on or about the 12th day of December 1959 at Bombay
did sell to Bogus Customer Ali Raza Sayeed Hasan a copy of an obscene book called
Lady Chatterley's Lover (unexpurgated edition) which inter alia contained obscene
matter as detailed separately and attached herewith and thereby committed an
offence punishable u/s 292 of the I.P. Code."
2. The first count applied to the appellant who was accused No. 2 in the case. The Additional
Chief Presidency Magistrate, III Court, Esplanade, Bombay, convicted all the partners on the
first count and fined each of them Rs. 20 with one week's simple imprisonment in default.
Gokuldas Shamji was additionally convicted on the second count and was sentenced to a further
fine of Rs. 20 or like imprisonment in default. The Magistrate held that the offending book was
obscene for purposes of the section. The present appellant filed a revision in the High Court of
Bombay. The decision of the High Court was against him. He has now appealed to this Court by
special leave and has raised the issue of freedom of speech and expression guarantied by the
nineteenth Article. Before the High Court he had questioned the finding of the Magistrate
regarding the novel.
3. It is convenient to set out s. 292 of the Indian Penal Code at this stage :
"292. Sale of obscene books etc. : 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 with imprisonment for either description for a term which may
extend to three months, or with fine, or with both.
Exception. - This section does not extend to any book, pamphlet, writing, drawing
or painting kept or used bona fide for religious purposes or any representation
sculptured, engraved, painted or otherwise represented on or in any temple, or on
any car used for the conveyance of idols, or kept or used for any religious purpose."
4. To prove the requirements of the section the prosecution examined two witnesses. One was
the test purchaser named in the charge and the other an Inspector of the Vigilance
2014-04-01 (Page 2 of 10 ) www.manupatra.com University of Oxford - Bodleian Law Library
Department. these witnesses proved possession and sale of the book which facts are not
denied. The Inspector in his testimony also offered his reasons for considering the book to be
obscene. On behalf of the accused Mr. Mulkraj Anand, a writer and art critic gave evidence and
in a detailed analysis of the novel, he sought to establish that in spite of its apparent indicate
theme and the candidness of its delineation and diction, the novel was a work of considerable
literary merit and a classic and not obscene. The question does not altogether depend on oral
evidence because the offending novel and the portions which are the subject of the charge must
be judged by the court in the light of s. 292, India Penal Code, and the provisions of the
Constitution. This raises two broad and independent issues of law - the validity of s. 292, Indian
Penal code, and the proper interpretation of the section and its application to the offending
novel.
5. Mr. Garg who argued the case with ability, raised these two issues. He bases his argument
on three legal grounds which briefly are :
(i) that s. 292 of the Indian Penal code is void as being an impermissible and vague
restriction on the freedom of speech and expression guaranteed by Art. 19(1)(a)
and is not saved by clause (2) of the same article;
(ii) that even if s. 292, Indian Penal Code, be valid, the book is not obscene if the
section is properly construed and the book as a whole is considered; and
(iii) that the possession or sale to be punishable under the section must be with the
intention to corrupt the public in general and the purchasers in particular.
6. On the subject of obscenity his general submission is that a work of art is not necessarily
obscene if it treats with sex even with nudity and he submits that a work of art or a book of
literary merit should not be destroyed if the interest of society requires that it be preserved. He
submits that it should be viewed as a whole, and its artistic or literary merits should be weighed
against the so-called obscenity, the context in which the obscenity occurs and the purpose it
seeks or serve. If on a fair consideration of these opposite aspects, he submits, the interest of
society prevails, than the work of art or the book must be preserved, for then the obscenity is
overborne. In no case, he submits, can stray passage or passages serve to stamp an adverse
verdict on the book. He submits that the standard should not be that of an immature teenager
or a person who is abnormal but of one who is normal, that is to say, with a mens sana in
corporis sana. He also contends that the test adopted in the High Court and the Court below
from Queen v. Hicklin (1868) L.R. 3 Q.B. 360 is out of date and needs to be modified and he
commends for our acceptance the views expressed recently by the courts in England and the
United States.
7. Article 19 of the Constitution which is the main plank to support these arguments reads :
"19(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 . . . public order, decency or morality . . . ."
8. No doubt this article guarantees complete freedom of speech and expression but it also
makes an exception in favour of existing laws which impose restrictions on the exercise of the
right in the interests of public decency or morality. The section of the Penal Code in dispute was
2014-04-01 (Page 3 of 10 ) www.manupatra.com University of Oxford - Bodleian Law Library
introduced by the Obscene Publications Act (7 of 1925) to give effect to Article I of the
International Convention for the suppression of or traffic in obscene publications signed by India
in 1923 at Geneva. It does not go beyond obscenity which falls directly within the words "public
decency and morality" of the second clause of the article. The word, as the dictionaries tell us,
denotes the quality of being obscene which means offensive to modesty or decency; lewd, filthy
and repulsive. It cannot be denied that it is an important interest of society to suppress
obscenity. There is, of course, some difference between obscenity and pornography in that the
latter denotes writings, pictures etc. intended to arouse sexual desire while the former may
include writings etc. not intended to do so but which have that tendency. Both, of course,
offend against public decency and morals but pornography is obscenity in a more aggravated
form. Mr. Garg seeks to limit action to cases of intentional lewdness which he describes as "dirt
for dirt's sake" and which has now received the appellation of hard-core pornography by which
term is meant libidinous writings of high erotic effect unredeemed by anything literary or
artistic and intended to arouse sexual feelings.
9. 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. The word
obscenity is really not vague because it is a word which is well-understood even if persons differ
in their attitude to what is obscene and what is not. Lawrence thought James Joyce's Ulysses to
be an obscene book deserving suppression but it was legalised and he considered Jane Eyre to
be pornographic but very few people will agree with him. The former he thought so because it
dealt with excretory functions and the latter because it dealt with sex repression. (See Sex,
Literature and Censorship pp. 26, 201). Condemnation of obscenity depends as much upon the
mores of the people as upon the individual. It is always a question of degree or as the lawyers
are accustomed to say, of where the line is to be drawn. It is, however, clear that obscenity by
itself has extremely "poor value in the propagation of ideas, opinions and informations of public
interest or profit." When there is propagation of ideas, opinions and informations of public
interest or profit, the approach to the problem may become different because then the interest
of society may tilt the scale 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. Section 292, Indian Penal
Code deals with obscenity in this sense and cannot thus be said to be invalid in view of the
second clause of Art. 19. The next question is when can an object be said to be obscene ?
10. Before dealing with that problem we wish to dispose of Mr. Garg's third argument that the
prosecution must prove that the person who sells or keeps for sale any obscene object knows
that it is obscene, before he can be adjudged guilty. We do not accept this argument. The first
sub-section of s. 292 (unlike some others which open with the words "whoever knowingly or
negligently etc.") does not make knowledge of obscenity an ingredient of the offence. The
prosecution need not prove something which the law does not burden it with. If knowledge
were made a part of the guilty act (acts reus), and the law required the prosecution to prove it,
it would place an almost impenetrable defence in the hands of offenders. Something much less
than actual knowledge must therefore suffice. It is argued that the number of books these days
is so large and their contents so varied that the question whether there is mens era or not must
be based on definite knowledge of the existence of obscenity. We can only interpret the law as
we find it and if any exception is to be made it is for Parliament to enact a law. As we have
pointed out, the difficulty of obtaining legal evidence of the offender's knowledge of the
obscenity of the book etc., has made the liability strict. Under our law absence of such
knowledge, may be taken in mitigation but it does not take the case out of the sub-section.
11. Next to consider is the second part of the guilty act (actus reus), namely, the selling or
2014-04-01 (Page 4 of 10 ) www.manupatra.com University of Oxford - Bodleian Law Library
keeping for sale of an object which is found to be obscene. Here, of course, the ordinary guilty
intention (mens rea) will be required before the offence can be said to be complete. The
offender must have actually sold or kept for sale, the offending article. The circumstances of the
case will then determine the criminal intent and it will be a matter of a proper inference from
them. The argument that the prosecution must give positive evidence to establish a guilty
intention involves a supposition that mens rea must always be established by the prosecution
through positive evidence. In criminal prosecution mens rea must necessarily be proved by
circumstantial evidence alone unless the accused confesses. The sub-section makes sale and
possession for sale one of the elements of the offence. As sale has taken place and the
appellant is a book-seller the necessary inference is readily drawn at least in this case.
Difficulties may, however, arise in cases close to the border. To escape liability the appellant
can prove his lack of knowledge unless the circumstances are such that he must be held guilty
for the acts of another. The court will presume that he is guilty if the book is sold on his behalf
and is later found to be obscene unless he can establish that the sale was without his
knowledge or consent. The law against obscenity has always imposed a strict responsibility.
When Wilkes printed a dozen copies of his Essay on Woman for private circulation, the printer
took an extra copy for himself. That copy was purchased from the printer and it brought Wilkes
to grief before Lord Mansfield. The gist of the offence was taken to be publication-circulation
and Wilkes was presumed to have circulated it. Of course, Wilkes published numerous other
obscene and libellous writings in different ways and when Madame Pampadour asked him :
"How far does the liberty of the Press extend in England ?" he gave the characteristic answer :
"I do not know. I am trying to find out !" (See 52 Harv. L. Rev. 40)
12. The problem of scienter (knowingly doing an act) has caused anxious thought in the United
States under the Comstock law 19 U.S.C. 1461 (1958) which deals with the non-mailability of
obscene matter. We were cited Manual Enterprises Inc. v. J. Edward Day 370 U.S. 478 : 8 L.
ed. 2nd 639 but there was so little concurrence in the Court that it has often been said, and
perhaps rightly, that the case has little opinion value. The same is perhaps true of the latest
case Nico Jacobellis v. State of Ohio (decided on June 22, 1964) of which a copy of the
judgment was produced for our perusal.
13. It may, however, be pointed out that one may have to consider a plea that the publication
was for public good. This bears on the question whether the book etc. can in those
circumstances be regarded as obscene. It is necessary to bear in mind that this may raise nice
points of the claims of society to suppress obscenity and the claims of society to allow free
speech. No such plea has been raised in this case but we mention it to draw attention to the
fact that this may lead to different results in different cases. When Savage published his
Progress of a Divine, and was prosecuted for it, his plea was that he had "introduced obscene
ideas with a view to exposing them to detestation, and of amending the age by showing the
depravity of wickedness" and the plea was accepted (See Dr. Johnson's Life of Savage in his
Lives of the Poets). In Hicklin's case (1868) L.R. 3 Q.B. 360 Blackburn J. did not accept a
similar plea in respect of the pamphlet before him observing that it would "justify the
publication of anything however indecent, however obscene, and however mischievous." We are
not called upon to decide this issue in this case but we have found it necessary to mention it
because ideas having social importance will prima facie be protected unless obscenity is so
gross and decided that the interest of the public dictates the other way. We shall now consider
what is meant by the word "obscene" in s. 292, Indian Penal Code.
14. The Indian Penal Code borrowed the word from the English Statute. As the word "obscene"
has been interpreted by English Courts something may be said of that interpretation first. The
Common law offence of obscenity was established in England three hundred years ago when Sir
Charles Sedley exposed his person to the public gaze on the balcony of a tavern. Obscenity in
books, however, was punishable only before the spiritual courts because it was so held down to
1708 in which year Queen v. Read 11 Mod 205 Q.B. was decided, In 1727 in the case against
one Curl it was ruled for the first time that it was a Common Law offence 2 Stra. 789 K.B.. In
1857 Lord Campbell enacted the first legislative measure against obscene books etc. and his
successor in the office of Chief Justice interpreted his statute (20 & 21 Vict. C. 83) in Hicklin's
case (1868) L.R. 3 Q.B. 360. The section of the English Act is long (they were so in those days),
but it used the word "obscene" provided for search, seizure and destruction of obscene books
2014-04-01 (Page 5 of 10 ) www.manupatra.com University of Oxford - Bodleian Law Library
etc. and made their sale, possession for sale, distribution etc. a misdemeanour. The section
may thus be regarded as substantially in pari materia with s. 292, Indian Penal Code, in spite of
some differences in language. In Hicklin's case (1868) L.R. 3 Q.B. 360 the Queen's Bench was
called upon to consider a pamphlet, the nature of which can be gathered from the title and the
colophon which read; "The Confession Unmasked, showing the depravity of Romish priesthood,
the iniquity of the confessional, and the questions put to females in confession." It was bilingual
with Latin and English texts on opposite pages and the latter half of the pamphlet according to
the report was "grossly obscene, as relating to impure and filthy acts, words or ideas".
Cockburn, C.J. laid down the test of obscenity in these words :
". . . . . I think the test of obscenity is this, whether the tendency of the matter
charged as obscenity is to deprave and corrupt those whose minds are open to such
immoral influences, and into whose hands a publication of this sort may fall . . . . it
is quite certain that it would suggest to the minds of the young of either sex, or
even to persons of more advanced years, thoughts of a most impure and libidinous
character."
15. This test has been uniformly applied in India.
16. The important question is whether this test of obscenity squares with the freedom of speech
and expression guaranteed under our Constitution, or it needs to be modified and, if so, in what
respects. The first of these questions invites the Court to reach a decision on a constitutional
issue of a most far-reaching character and we must beware that we may not lean too far away
from the guaranteed freedom. The laying down of the true test is not rendered any easier
because art has such varied facets and such individualistic appeals that in the same object the
insensitive sees only obscenity because his attention is arrested, not by the general or artistic
appeal or message which he cannot comprehend, but by what he can see, and the intellectual
sees beauty and art but nothing gross. The Indian Penal Code does not define the word
"obscene" and this delicate task of how to distinguish between that which is artistic and that
which is obscene has to be performed by courts, and in the last resort by us. The test which we
evolve must obviously be of a general character but it 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. None has so far attempted a
definition of obscenity because the meaning can be laid bare without attempting a definition by
describing what must be looked for. It may, however, be said at once that treating with sex and
nudity in art and literature cannot be regarded as evidence of obscenity without something
more. It is not necessary that the angles and saints of Michaelangelo should be made to wear
breeches before they can be viewed. If the rigid test of treating with sex as the minimum
ingredient were accepted hardly any writer of fiction today would escape the fate Lawrence had
in his days. Half the book-shops would close and the other half would deal in nothing but moral
and religious books which Lord Campbell boasted was the effect of his Act.
17. The question is now narrowed to what is obscenity as distinguished from a permissible
treating with sex ? Mr. Garg relies on some passages from the opinions expressed in the
Supreme Court of the United States in Samuel Roth v. U. S. A. (354 U.S. 476; 1 L ed. 2d. 1498
(1957)) and from the charge to the jury by Stable J. in Regina v. Martin Secker and Warburg
Ltd. [1954] 1 W.L.R. 738 and invites us to adopt the test of "hard-core pornography" for the
interpretation of the word "obscene" in the Indian Penal Code. He points out that the latest
statute in England now makes exceptions leading to the same result. He has also referred to
some books and literary and artistic publications which have not been considered objectionable.
18. It may be admitted that the world has certainly moved far away from the times when
Pamela, Moll Flanders, Mrs. Warren's Profession, and even Mill on the Floss were considered
immodest. Today all these and authors from Aristophanes to Zola are widely read and in most
of them one hardly notices obscenity. If our attitude to art versus obscenity had not undergone
a radical change, books like Caldwell's God's Little Acre and Andre Gide's If It Die would not
have survived the strict test. The English novel has come out of the drawing room and it is a far
cry from the days when Thomas Hardy described the seduction of Tess by speaking of her
guardian angels. Thomas Hardy himself put in his last two novels situations which "were
2014-04-01 (Page 6 of 10 ) www.manupatra.com University of Oxford - Bodleian Law Library
strongly disapproved of under the conventions of the age", but they were extremely mild
compared with books today. The world is now able to tolerate much more than formerly, having
become indurated by literature of different sorts. The attitude is not yet settled. Curiously,
varying results are noticeable in respect of the same book and in the United States the same
book is held to be obscene in one State but not in another [See A Suggested Solution to the
Riddle of Obscenity (1964), 112 Penn. L. Rev. 834.
19. But even if we agree thus far, the question remains still whether the Hicklin test is to be
discarded ? We do not think that it should be discarded. It makes the court the judge of
obscenity in relation to an impugned book etc. and lays emphasis on the potentiality of the
impugned object to deprave and corrupt by immoral influences. It will always remain a question
to decide in each case and it does not compel an adverse decision in all cases. Mr. Garg,
however, urges that the test must be modified in two respects. He wants us to say that a book
is not necessarily obscene because there is a word here or a word there, or a passage here and
a passage there which may be offensive to particularly sensitive persons. He says that the
overall effect of the book should be the test and secondly, that the book should only be
condemned if it has no redeeming merit at all, for then it is "dirt for dirt's sake", or as Mr.
Justice Frankfurter put it in his inimitable way "dirt for money's sake." His contention is that
judged of in this light the impugned novel passes the Hicklin test if it is reasonably modified.
20. Mr. Garg is not right in saying that the Hicklin case (1868) L.R. 3 Q.B. 360 emphasised the
importance of a few words or a stray passage. The words of the Chief Justice were that "the
matter charged" must have "a tendency to deprave and corrupt". The observation does not
suggest that even a stray word or an insignificant passage would suffice. Any observation to
that effect in the ruling must be read secundum subjectum materiam, that is to say, applicable
to the pamphlet there considered. Nor is it necessary to compare one book with another to find
the extent of permissible action. It is useful to bear in mind the words of Lord Goddard, Chief
Justice in the Reiter case. (1954) 2 Q.B. 16
"The character of other books is a collateral issue, the exploration of which would be
endless and futile. If the books produced by the prosecution are indecent or
obscene, their quality in that respect cannot be made any better by examining
other books ..."
21. The Court must, therefore, apply itself to consider each work at a time. This should not, of
course, be done in the spirit of the lady who charged Dr. Johnson with putting improper words
in his Dictionary and was rebuked by him : "Madam, you must have been looking for them." To
adopt such an attitude towards art and literature would make the courts a board of censors. 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 so decided that it is likely to deprave and corrupt those
whose minds are open to influences of this sort and into whose hands the book is likely to fall.
In this connection the interests of out contemporary society and particularly the influence of the
book etc. on it must not overlooked. A number of considerations may here enter which it is not
necessary to enumerate, but we must draw attention to one fact. Today our national and
regional languages are strengthening themselves by new literary standards after a deadening
period under the impact of English. Emulation by our writers of an obscene book under the
aegis of this Court's determination likely to pervert our entire literature because obscenity pays
and true art finds little popular support. Only an obscurant will deny the need for such caution.
This consideration marches with all law and precedent on this subject and so considered we can
only say that where obscenity and art are mixed, art must so preponderate as to throw the
obscenity into a shadow or the obscenity so trivial and insignificant that it can have no effect
and may be overlooked. In other words, treating with sex in a manner offensive to public
decency and morality (and these are the words of our Fundamental Law), judged of by our
national standards and considered likely to pander to lascivious, prurient or sexually precocious
minds, must determine the result. We need not attempt to bowdlerize all literature and thus rob
speech and expression of freedom. A balance should be maintained between freedom of speech
and expression and public decency and morality but when the letter is substantially
transgressed the former must give way.
2014-04-01 (Page 7 of 10 ) www.manupatra.com University of Oxford - Bodleian Law Library
22. We may now refer to Roth's case 354 U.S. 476 : 1 L. ed. 2d. 1498 (1957) to which a
reference has been made. Mr. Justice Brennan, who delivered the majority opinion in that case
observed that if obscenity is to be judged of by the effect of an isolated passage or two upon
particularly susceptible persons, it might well encompass material legitimately treating with sex
and might become unduly restrictive and so the offending books must be considered in it
entirety. Chief Justice Warren on the other hand made "Substantial tendency to corrupt by
arousing lustful desires" as the test. Mr. Justice Harlan regarded as the test that must "tend to
sexually impure thoughts". In our opinion, the test to adopt in our country (regard being had to
our community mores) is that obscenity without a preponderating social purpose or profit
cannot have the constitutional protection of free speech and expression, and obscenity is
treating with sex in a manner appealing to the carnal sides of human nature, or having that
tendency. Such a treating with sex it offensive to modesty and decency but the extent of such
appeal in a particular book etc. are matters for consideration in each individual case.
23. It now remains to consider the book Lady Chatterley's Lover. The story is simple. A baronet,
wounded in the war is paralysed from the waist downwards. He married Constance (Lady
Chatterley) a little before he joined up and they had a very brief honeymoon. Sensing the
sexual frustration of his wife and their failure to have an heir he leaves his wife free to associate
with other men. She first experiences with one Michaelis and later with a game-keeper Mellors
in charge of the grounds. The first lover was selfish sexually, the other was something of an
artist. He explains to Constance the entire mystery of eroticism and they put it into practice.
There are over a dozen descriptions of their sexual intimacies. The game-keeper's speech and
vocabulary were not genteel. He knew no Latin which could be used to appease the censors and
the human pudenda and other erogenous parts are freely discussed by him and also named by
the author in the descriptions. The sexual congress each time is described with great
candidness and in prose as tense as it is intense and of which Lawrence was always a
consummate master. The rest of the story is a mundane one. There is some criticism of the
modern machine civilization and its enervating effects and the production of sexually inefficient
men and women and this, according to Lawrence, is the cause of maladjustment of sexes and
their unhappiness.
24. Lawrence had a dual purpose in writing the book. The first was to shock the genteel society
of the country of his birth which had hounded him and the second was to portray his ideal of
sexual relations which was never absent from any of his books. His life was a long battle with
censor-morons, as he called them. Even before he became an author he was in clash with
conventions. He had a very repressive mother who could not reconcile herself to the thought
that her son had written the White Peacock. His sisters were extremely prim and correct. In his
letters he said that he would not like them to read Lady Chatterley's Lover. His school teacher
would not let him use the word 'stallion' in an essay and his first love Jessie could not read
aloud Ibsen as she considered him immodest. This was a bad beginning for a hyper-sensitive
man of "wild and untamed masculinity." Then came the publishers and last of all censors. From
1910 the publishers asked him to prune and prune his writings and he wrote and rewrote his
novels to satisfy them. Aldous Huxley tells us that Lady Chatterley's Lover was written three
times [Essays (Dent)]. Aldington in his Portrait of a Genius has seen in this a desire to avoid
being pornographic but the fact is that Lawrence hated to be bowdlerized. His first publisher
Heinemann refused his Sons and Lovers and he went over to Duckworths. They refused his
Rainbow and he went to Secker. They brought out his Lost girl and it won a prize but after the
Rainbow he was a banned author whose name could not be mentioned in genteel society. He
became bitter and decided to produce a "taboo-shattering bomb". At the same time he started
writing in defence of his fight for sexual liberation in English writing. This was Lawrence's first
reason for writing the book under out review.
25. Lawrence viewed sex with indifference and also with passion. He was indifferent to it
because he saw in it nothing to hide and he saw it with passion because to him it was the only
"motivating power of life" and the culmination of all human strength and happiness. His thesis
in his own words was - "I want men and women to be able to think of sex fully, completely,
honestly and cleanly" and not to make of it "a dirty little secret". The taboo on sex in art and
literature which was more strict thirty-five years ago, seemed to him to corrode domestic and
social life and his definite view was that a candid discussion of sex through art was the only
2014-04-01 (Page 8 of 10 ) www.manupatra.com University of Oxford - Bodleian Law Library
catharsis for purifying and relieving the congested emotions. This is the view he expounded
through his writings and sex is never absent from his novels, his poems and his critical writings.
As he was inclined freely to use words which Swift had used before him and many more, he
never considered his writings obscene. He used them in this book with profusion and they occur
in conversation between Mellors and Constance and in the descriptions of the sexual congresses
and the erotic love play. The realism is staggering and outpaces the French Realists. But he
says of himself :
"I am abused most of all for using the so called 'obscene words'. Nobody quite
knows what the word 'obscene' itself means, or what it is intended to mean; but
gradually all the old words that belong to the body below the navel, have come to
be judged obscene." (introduction to Pansies).
That was the second motivating factor in the book.
One cannot doubt the sincerity of Lawrence's belief and his missionary zeal.
Boccaccio seemed fresh and wholesome to him and Dante was obscene. He
prepared a theme which would lend itself to treating with sex on the most erotic
plane and one from which the genteel society would get the greatest shock and
introduced a game-keeper in whose mouth he could put all the taboo words and
then he wrote of sex, of the sex organs and sex actions with brutal candidness.
With the magic of words he made the characters live and what might even have
passed for allegory and symbolism became extreme realism. He went too far. While
trying to edit the book so that it could be published in England he could not excise
the prurient parts. He admitted defeat and wrote to Seckers that he "got colour-
blind and did not know any more what was supposed to be proper and what not."
Perhaps he got colour-blind when he wrote it. He wanted to shock genteel society, a
society which had cast him out and banned him. He wrote a book which in his own
words was "a revolution - a bit of a bomb". No doubt he wrote a flowering book with
pistil and stamens standing but it was to quote his on words again "a phallic novel,
a shocking novel". He admitted it was too good for the public. He was a courageous
writer but his zeal was misplaced because it was born of hate and his novel was
"too phallic for the gross public."
26. This is where the law comes in. The law seeks to protect not those who can protect
themselves but those whose prurient minds take delight and secret sexual pleasure from erotic
writings. No doubt this is treating with sex by an artist and hence there is some poetry even in
the ugliness of sex. But as Judge Hand said obscenity is a function of many variables. If by a
series of descriptions of sexual encounters described in language which cannot be more candid,
some social good might result to us there would be room for considering the book. But there is
no other attraction in the book. As J.B. Priestly said, "Very foolishly he tried to philosophize
upon instead of merely describing these orgiastic impulses : he is the poet of a world in rut, and
and lately he has become its prophet, with unfortunate results in his fiction." [The English
Novel. p. 142 (Nelson)]. The expurgated copy is available but the people who would buy the
unexpurgated copy do not care for it. Perhaps the reason is as was summed up by Middleton
Murray :
"Regarded objectively, it is a wearisome and oppressive book; the work of a weary
and hopeless man. It is remarkable, indeed notorious for its deliberate use or
unprintable words."
"The whole book really consists of detailed descriptions of their sexual fulfilment.
They are not offensive, sometimes very beautiful, but on the whole strangely
wearisome. The sexual atmosphere is suffocating. Beyond this sexual atmosphere
there is nothing, nothing." [Son of woman (Jonathan Cape)].
27. No doubt Murray says that in a very little while and on repeated readings the mind becomes
accustomed to them but he says that the value of the book then diminishes and it leaves no
permanent impression. The poetry and music which Lawrence attempted to put into sex
2014-04-01 (Page 9 of 10 ) www.manupatra.com University of Oxford - Bodleian Law Library
apparently cannot sustain it long and without them the book is nothing. The promptings of the
unconscious particularly in the region of sex is suggested as the message in the book. But it is
not easy for the ordinary reader to find it. The Machine Age and its impact on social life which is
its secondary theme does not interest the reader for whose protection, as we said, the law has
been framed.
28. We have dealt with the question at some length because this is the first case before this
court invoking the constitutional guarantee against the operation of the law regarding obscenity
and the book is one from an author of repute and the center of many controversies. The book is
probably an unfolding of his philosophy of life and of the urges of the unconscious but these are
unfolded in his other books also and have been fully set out in his Psychoanalysis and the
Unconscious and finally in the Fantasia of the Unconscious. There is no loss to society if there
was a message in the book. The divagations with sex are not a legitimate embroidery but they
are the only attractions to the common man. When everything said in its favour we find the in
treating with sex the impugned portions viewed separately and also in the setting of the whole
book pass the permissible limits judged of from our community standards and as there is no
social gain to us which can be said to preponderate, we must hold the book to satisfy type test
we have indicated above.
29. In the conclusion we are of the opinion that the High Court was right in dismissing the
revision petition. The appeal fails and is dismissed.
30. Appeal dismissed.

Manupatra Information Solutions Pvt. Ltd.
2014-04-01 (Page 10 of 10 ) www.manupatra.com University of Oxford - Bodleian Law Library