MANU/SC/0080/1964

Equivalent Citation: AIR1965SC 881, 1965(67)BLJR506, 1965C riLJ8, 1966MhLJ257, 1966MPLJ273, [1965]1SC R65

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 178 of 1962
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.
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 Chatterley's 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
M. 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;
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."

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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 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

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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

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 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 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.

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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 ?
1 0 . 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 rea 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 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- availability 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

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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 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

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 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.
1 6 . 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.
1 7 . 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

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angels. Thomas Hardy himself put in his last two novels situations which "were
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.
2 0 . 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 subjectam 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

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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.
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

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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 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

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 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 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

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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.
2 9 . 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.

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