MANU/SC/0080/1964Equivalent Citation: AIR1965SC881, [1965]1SCR65

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."
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

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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
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

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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

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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. 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

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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.
1 1 . 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 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.

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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 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

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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 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

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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 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

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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

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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 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 :

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 "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 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.

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