CONSTITUTION TAKE HOME ASSIGNMENT

Submitted By Submitted To

Name - Yashaskar Shubham Dr. Shyamala Kandadai

Semester - II Faculty at Law, NUSRL

Section - A

Roll No. - 664

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A CASE ANALYSIS ON AJAY GOSWAMI V. UNION OF INDIA1

Case Summary

Petitioner Ajay Goswami filed a writ of petition to the Supreme Court of India, urging the Court
to support his proposals to protect minors from sexually exploitative materials in the press. He
proposed the government to issue a guideline to all newspapers regarding sexually prurient
materials that may not be suitable for minors, and that if newspapers contain such materials, their
existence must be boldly warned on the front page. In the alternative, the petitioner suggested
creating an expert committee to suggest ways and means for regulating the access of minors to
sexually exploitative materials.

The Court dismissed the petition for failure “to establish the need and requirement to curtail the
freedom of speech and expression.”

FACTS

Petitioner Ajay Goswami filed a writ of petition to the Supreme Court of India, seeking the Court
to consider and accept his proposals on regulating publication of sexually exploitative materials
by the press that can be harmful to minors. Goswami argued that the government must strike a
fair balance between the freedom of press and the right to educate and protect children.

1
(2007) 1 SCC 143
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According to him, “the nature and extent of the material having sexual contents should not be
exposed to the minors indiscriminately and without regard to the age of minor.” He supported his
position by offering a number of newspapers that allegedly contained sexually explicit messages.
For example, he noted a 2005 edition of Time of India newspaper that contained an article titled
“Porn In potter VI.” Goswami was of the opinion that while minors generally may not have any
inclination to read the newspaper, after reading the article at issue “their mind would
certainly wonder to an area which the author might not have even conceived.”

Goswami further argued that the right to live under Article 21 of the Constitution has been
interpreted to include the right to education, and by necessity, “it shall also mean right to proper
education which may be decided by the parents, teachers and other experts and newspapers
cannot be allowed to disturb that by their indeterminately access of the offending article to the
minors regardless of their age.”

In his petition, Goswami proposed the following measures: “(1) Guidelines in detail may be
issued to all the newspapers regarding the matter which may not be suitable for the reading of
minors or which may require parents or teachers discretion; (2) Newspapers should have self-
regulatory system to access the publication in view of those guidelines; (3) In case the
newspapers publishe any material which is categorized in the guidelines the newspaper be
packed in some different form and should convey in bold in front of newspapers of the existence
of such material; and (4) This would give discretion to the parents to instruct the news vendor
whether to deliver such newspaper or not.” In the alternative, he suggested the government to
establish an expert committee to suggest ways and means of regulating the access of minors to
sexually prurient materials.
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JUDGEMENT

It held that there are already existing regulatory measures in the country to prevent the press from
publishing obscene materials; they include the Press Council Act of 1978 and Section 2922 of the
Indian Penal Code. The Court also found that a publication alleged to contain an obscene material
should be assessed as a whole and the material should be separately examined to determine
whether it is grossly obscene and likely to deprave and corrupt. Lastly, the Court objected to
imposition of “a blanket ban on the publication of certain photographs and news items” because it
will lead to “a situation where the newspaper will be publishing material which caters only to
children.”

The Court dismissed the petition for failure “to establish the need and requirement to curtail the
freedom of speech and expression.”

DECISION OVERVIEW

Justice Lakshmanan delivered the opinion of the Supreme Court.

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(1) For the purposes of sub-section (2), a book, pamphlet, paper, writing, drawing, painting, representation, figure
or any other object, shall be deemed to be obscene if it is lascivious or appeals to the pruri-ent interest or if its effect,
or (where it comprises two or more distinct items) the effect of any one of its items, is, if taken as a whole, such as
to tend to deprave and corrupt person, who are likely, having regard to all relevant circumstances, to read, see or
hear the matter contained or embodied in it.]
[(2) ] Whoever—
(a) sells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation, or for purposes of sale, hire,
distribution, public exhibition or circulation, makes, produces or has in his possession any obscene book, pamphlet,
paper, drawing, painting, representation or figure or any other obscene object whatsoever, or
(b) imports, exports or conveys any obscene object for any of the purposes aforesaid, or knowing or having reason to
believe that such object will be sold, let to hire, distributed or publicly exhibited or in any manner put into
circulation, or
(c) takes part in or receives profits from any business in the course of which he knows or has reason to believe that
any such obscene objects are for any of the purposes aforesaid, made, produced, purchased, kept, imported,
exported, conveyed, publicly exhibited or in any manner put into circulation, or
(d) advertises or makes known by any means whatsoever that any person is engaged or is ready to engage in any act
which is an offence under this section, or that any such obscene object can be procured from or through any person,
or
(e) offers or attempts to do any act which is an offence under this section, shall be punished [on first conviction with
im-prisonment of either description for a term which may extend to two years, and with fine which may extend to
two thousand rupees, and, in the event of a second or subsequent conviction, with imprisonment of either description
for a term which may extend to five years, and also with fine which may extend to five thousand rupees].
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In considering the petitioner’s proposals, the Court first addressed the existing regulatory
measures in the country relevant to the press and the protection of minors from obscene
materials. It noted the Press Council Act of 1978, which established a regulatory body “to ensure
on the part of newspapers, news agencies and journalists, the maintenance of high standards of
public taste and foster a due sense of both the rights and responsibilities of citizenship.” Under
Section 143, the Council is empowered to receive complaints concerning materials published by
the press, and when it is necessary and in the interest of public, to require newspapers to publish
in a manner that the Council deems fit.

The Court also noted Section 292 of the Indian Penal code, which prohibits the sale, public
distribution and exhibition of any obscene material defined as one that is “lascivious or appeals
to the prurient interest or if its effect, or (where it comprises two or more distinct items) the
effect of any one of its items, is, if taken as a whole, such as to tend to deprave and corrupt
person, who are likely, having regard to all relevant circumstances, to read, see or hear the matter
contained or embodied in it.”

Furthermore, the Court acknowledged that the country’s social interest ordinarily “demands the
free propagation and interchange of views but circumstances may arise when the social interest
in public order may require a reasonable subordination of the social interest in free speech and
expression to the needs of our social interest in public order.” As such, the Court recognized that

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S. 14. Power to censure.—
(1) Where, on receipt of a complaint made to it or otherwise, the Council has reason to believe that a newspaper or
news agency has offended against the standards of journalistic ethics or public taste or that an editor or a working
journalist has committed any professional misconduct, the Council may, after giving the newspaper, or news agency,
the editor or journalist concerned an opportunity of being heard, hold an inquiry in such manner as may be provided
by regulations made under this Act and, if it is satisfied that it is necessary so to do, it may, for reasons to be
recorded in writing, warn, admonish or censure the newspaper, the news agency, the editor or the journalist or
disapprove the conduct of the editor or the journalist, as the case may be: Provided that the Council may not take
cognizance of a complaint if in the opinion of the Chairman, there is no sufficient ground for holding an inquiry.
(2) If the Council is of the opinion that it is necessary or expedient in the public interest so to do, it may require any
newspaper to publish therein in such manner as the Council thinks fit, any particulars relating to any inquiry under
this section against a newspaper or news agency, an editor or a journalist working therein, including the name of
such newspaper, news agency, editor or journalist.
(3) Nothing in sub-section (1) shall be deemed to empower the Council to hold an inquiry into any matter in respect
of which any proceeding is pending in a court of law.
(4) The decision of the Council under sub-section (1), or sub-section (2), as the case may be, shall be final and shall
not be questioned in any court of law.
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protecting public order in light of the constitutional right to freedom of expression requires the
existence of a fair balance and that any imposition on speech must be “reasonable.”

As to the suppression of the press in publishing absence materials, the Supreme Court addressed
India’s contemporary standards and took into account the U.S. case law on this issue. In Reno v.
the American Civil Liberties Union4, the U.S. Supreme Court struck down two provisions of the
Communications Decency Act of 1996, which criminalized online transmission of “obscene or
indecent” messages to any recipient under 18 years of age. In part, the Court reasoned that
protecting children from harmful materials does not justify an unnecessarily broad suppression of
speech addressed to adults. Accordingly, the Supreme Court of India found it necessary that
“publication must be judged as a whole and the impugned should also separately be examined so
as to judge whether the impugned passages are so grossly obscene and are likely to deprave and
corrupt.”

The Court also enumerated broad principles to determine obscene speech that can validly be
restricted under Article 19 of the Constitution. It noted that the term “obscenity” is most often
used in the legal context to describe expressions that offend the prevalent sexual morality.
However, a reference to sex or nudity by itself cannot considered to be obscene.

In addition, the Court was of the opinion that “imposition of a blanket ban on the publication of
certain photographs and news items, etc. will lead to a situation where the newspaper will be
publishing material which caters only to children and adolescents and the adults will be deprived
of reading their share of their entertainment which can be permissible under the normal norms of
decency in any society.” Lastly, the Court noted that the newspapers questioned by the petitioner
for allegedly publishing sexually exploitative materials did not have any intention of catering to
the prurient interest or harming minors and that certain regulatory measures are in place to
ensure no objectionable material gets published. Based on the foregoing analysis, the Court
dismissed Goswami’s petition for failure “to establish the need and requirement to curtail the
freedom of speech and expression.”

4
521 U.S. 844 (1997)