Wednesday, July 22, 2009


There is perhaps no better test than the efficiency of the judicial system to test the excellence of the government. Since judiciary is the custodian of the rights of the citizens, any maladministration would result in jeopardy of civil liberties. As Bryce has put it succinctly; “if the lamp of justice goes out in darkness, how great is that darkness.” Drawing from herein, one cannot neglect the role of a witness in the administration of justice in a country. Justice Wadhwa in Swaransingh v. State of Punjab (AIR 2000 SC 2017) termed the witnesses to be the basis of both direct and circumstantial evidences which form the edifice of any criminal investigation. Simply put, witnesses therefore become the eyes and ears of the Court and thus their protection becomes paramount to the judicial decision being rendered.

Interestingly, hostile witnesses form a glaring reality of the criminal justice system at present. And it is to be noted that the issue is not a new one. There are everyday instances of witness retracting from their statements recorded by the police, thereby changing the outcome of a rather important judicial decision. However, with the landmark judgements of Best Bakery and Jessica Lal being delivered by the Apex Court, the case of hostile witnesses seems to have captured the limelight.

At the outset, it is to be noted that the statements made by the witnesses to the police officials are not admissible in the Court of Law by virtue of the safeguards provided by the Code of Criminal Procedure, 1973. Thus, the statements made by a witness required to be restated in the court and any event of retraction from the earlier made statements results in the witnesses turning hostile. And this is turning out to be a great menace posing a hurdle in the path of administration of justice. The reasons for the witnesses turning can be myriad. The most commonplace among them is the intimidation and manipulation the witnesses are subjected to. All of this results into a mockery of the Rule of Law.

It is also to be noted that the undue delay in the disposal of a case also furthers the cause of the witnesses turning hostile. As a step to get rid of the constant harassment faced due to the repeated summoning, the witnesses decide to turn hostile. The same has been acknowledged by the National Police Commission Report as early as 1980.But clearly, not enough action has been taken in this regard to remedy the situation. Even the Malimath Committee report (2003) acknowledged the fact of treating the witnesses with respect as they are the edifice of the justice system but unfortunately, there seems to be no formal law in place to take care of the concerns expressed.

First and foremost, what needs to be understood and appreciated in this regard is the fact that witnesses, especially the hostile ones, are a special category of victims. Therefore, the enactment of any formal legislation needs to ensure that a witness is treated as a potential and possible victim in order to facilitate the framing of the laws which are tailored to their needs. Also, the fact that there exists absolutely no protection rendered to the defence witnesses needs to be taken into consideration. Interestingly, the Constitution of India provides for a right to remain silent to the accused under the provisions of Article 20 (3) whereas the same is not extended in case of the witnesses. Hence, such a hostile attitude towards the witnesses also contributes to the further hostility exhibited by them.

In a consultation paper released by the Law Commission in 2004, the need of the hour, i.e a formal witness protection programme was recognised. In the course of framing a formal legislation in this regard, it needs to be taken into consideration that both the evidence of the witness and the witness himself requires protection. It is the second aspect which requires a careful consideration and is thus open to debates and deliberations. In the opinion of the researcher, witness anonymity is perhaps the first step to ensure such protection. Drawing from the US model and Witness Protection Act, 1970, the government should also try and relocate those witnesses and give them a new identity, thereby minimising the risk of the witnesses being victimised. Further, it is also to be noted that the laws enacted in this regard should call for a balance between the rights and duties of the witnesses. Whereas it is a right of the witness to be protected against harassment, it is also onerous upon the witness to testify before the court as and when required.

It is high time that the law makers shed a lackadaisical way of work and realise the urgent need of the protection of the witness. It is also to be ensured that the faith of the citizens as well as the witnesses in the criminal justice system is restored. The need of the hour is not only providing protection to witnesses from turning hostile but also granting a criminal sanction against the ones who turn hostile. The Supreme Court has emphasised over and again, through a plethora of judgements about that fact that such legislative measures have become imminent and inevitable in the present order of the day. This in itself point towards the imperative need of such legislations. Witness protection measures are vital for the furtherance of justice and in this regard the consultation paper submitted by the Law Commission regarding the Witness Identity and Witness Protection Programme is indeed a welcome step. However, a mere policy directive is not sufficient and it is the participation of the populace who strengthen the forces of democracy which will make the administrative attempt successful. Finally, to sum up, witness protection programmes have been a long over due but that too shall remain in a state of inactivity till the investigative agencies are made independent and free from any political colour. Till then, hostile witnesses will continue to be an epidemic and an endemic in India.
Shayonee Dasgupta, Director SACJ 2009-10


One may find that the scope and ambit of corporate sanctions is growing. One may also relate the issue of corporate criminal liability to the Satyam fiasco. However, I intend to clarify that in the case of Satyam the attempt is to identify and punish the individuals who have committed wrongs, and any form of sanction for Satyam as a company itself is not intended, which is why the issue becomes one of white-collar crime, that is, crime by individuals who are employed in respectable jobs in society, by misusing the resources offered to them by their jobs, and not about crimes by a company.
I shall discuss in greater detail on another topic, which surfaced last year before the Supreme Court, that is, the issue of crimes committed during times of riots. It is interesting to note that the Supreme Court has recently decided a case titled Harendra Sarkar v. State of Assam, which is a case on murder committed during the time of the Babri Masjid riots in 1992. A Division Bench of the Supreme Court, comprising Justices S. B. Sinha and H.S. Bedi disagreed in its conclusions on the case as a result of which, it has been referred to a larger bench for adjudication on all the issues raised by it. All the issues framed were regarding the appreciation of evidence- whether delay in lodging an FIR vitiates the investigative process itself, whether medical evidence is to be given higher weight than ocular or eyewitness’ evidence, whether the entire statement of a witness is to be disbelieved if some parts of it are found to be inconsistent or unreliable were raised. A certain relaxation was permitted in the rigours of the principles of evidence by Justice Bedi. Justice Sinha stated that the principles of appreciation cannot be relaxed even in time of riots. He opined that the relaxation of the principles of evidence could be done only on the presumption that the investigation was not of the standard that it would have otherwise been in a normal situation and because that was not the case.
At the outset, it may be noted that the conclusion of the entire case revolved on this general principle of appreciation, based on which the evaluation of individual issues would be done. Therefore, if at all there was any disagreement, a reference framed on this issue of law could have been made to a larger bench, which could have decided on these issues and then referred the matter back to the bench for adjudication accordingly. However, adjudication of all the issues by the smaller bench, with a reference to the larger bench to decide all the issues again shall result in wastage of time as it requires repetition of all the arguments that were raised before the smaller bench earlier, in a case relating to the facts of an event already seventeen years old. Secondly, the relaxation of appreciation itself is not a general rule as the Court has with itself the discretion, as per the Evidence Act, to be satisfied after taking all the matters before it into consideration, that certain facts have been proved. Thus, the Court has some level of discretion to appreciate the facts of every case in light of the circumstances of that case itself. Further, in interpreting any case, the Court may make certain presumptions of fact, as per the situation of that case. This would apply to a case of riots as well. The present case was one of a crime committed by a member of the majority against the religious minority during communal riots. In interpreting the present case it was clearly observed that the investigation had started even before the lodging of the FIR, something which should not ordinarily be done as per the law. Though this was an irregularity, the fact was used to conclude that since the investigation had commenced swiftly, an inference that the investigation was shoddy or biased cannot be raised. This amounts to negation of the possibility of one illegality by proving another illegality. It is clearly possible for the investigation to have started earlier and to have still been shoddy, if not biased. Thirdly, the case has used an incorrect interpretation of the meaning of presumption. To presume something implies to consider it proved, unless and until it is disproved. In the instant case, a relaxation of the rules was done to only recognise the possibility that the investigation may not have been up to the mark in all respects, but not to consider it proved for the time being that the investigation had indeed not been up to the mark. Therefore, in my opinion, relaxation of the principles of appreciation did not require one to presume the condition that the investigation was tainted.
For the above reasons, I support the judgment of Justice Bedi, affirming the conviction of the accused. In any case, I think if there was a disagreement, the case could have been referred to a larger Bench as restricted to the broader issue which formed the subject of disagreement, and not all its subcomponents, on the ground that it would result in wastage of resources and delay of justice.
Abhyudaya Agarwal, Director SACJ, 2009-10

Amended Cr.P.C Bill- A National Debate

The eight Bills passed by Lok Sabha on December 23 without a debate in 17 minutes flat included a radically revamped Criminal Procedure Code, which divests the police of the usual arrest powers in all cases where the maximum possible sentence is seven years or less. The new Criminal Procedure Code, which divests police of arrest powers in cases where maximum sentence is upto seven years, becomes law with President Pratibha Patil finally giving her assent this month. The presidential assent, which came nearly three weeks after the bill was sent to her after getting it passed from Parliament, has now paved the way for the government to notify it. This amendment is expected to improve the human rights record of India and greatly reduce the corruption and extortion in police stations. This will also reduce false complaints and will stop people using police for settling personal and political scores and vendettas.
Instead of putting the accused behind the bars in cases including attempt to commit culpable homicide (Section 308 IPC); voluntarily causing grievous hurt (Section 325); cheating (Section 420); outraging a woman’s modesty (Section 354); death caused by negligence (Section 304A); and assaulting the President (Section 124) - the police will now have to issue a ‘notice of appearance’ to the individual concerned who will be expected to ‘cooperate’ with the investigation. Only if the accused fails to respond to the ‘notice of appearance’ can the police have recourse to arrest- by which time the accused would get as far as possible out of the reach of the arms of the law.
The Bill incorporates the recommendations of the Law Commission, the Justice Malimath Committee report and guidelines issued by the Supreme Court from time to time to prevent overcrowding of jails with undertrials. The amended Section 41 of the Cr.PC. says: “No person concerned in a non-cognisable offence or against whom a complaint has been made or credible information has been received or reasonable suspicion exists of his having so concerned shall be arrested except under a warrant or order of a magistrate.” However, arrest can be made without a warrant, after recording the reasons in writing, if the police officer is satisfied that it is necessary for proper probe, or to prevent the person from committing any further offence or making any inducement, threat or promise to anyone acquainted with the facts of the case. The amended law says a police officer who is making an arrest will have to bear his identification badge or tag. Besides, a memorandum of arrest shall be prepared, witnessed and countersigned. The person arrested shall be told that he has the right to inform a relative or friend. It mandates the State government to establish police control rooms at the district and State levels and display on noticeboards kept outside the control rooms the names and addresses of the persons arrested, and the names and designations of the police officers who made the arrests. The law provides for payment of compensation to victims for illegal arrest and police harassment.
However, the Supreme Court Bar Association is opposed to the amendments made in the Cr.P.C giving discretionary powers to police not to arrest a person who is involved in an offence having maximum sentence of seven years. There is widespread belief among lawyers that these amendments would give a free hand to frauds, unscrupulous elements, extortionists, those demanding dowry and other offenders without any fear of being arrested, leaving law-abiding citizens at the mercy of anti-social elements, police and politicians with criminal track records.
Allaying those concerns, home minister P Chidambaram wrote to all CMs explaining why it was necessary to bring such changes in the Cr.P.C. Referring to Section 41 of the Act, Chidambaram said in his letter, "This provision was severely criticised as capable of being misused and, in fact, was being misused." He advised CMs to refer to reports of the Law Commission and the Malimath Committee and also the judgment of the Supreme Court in D K Basu case which laid down guidelines for effecting arrest. Advising CMs to see the amendments in the light of those suggestions and guidelines, Chidambaram, however, assured them that the government was ready to revisit the provisions, if it became necessary, in the next session of Parliament. Moreover, the amended bill will also help ease the huge logjam of pending cases in the courts and the stifling congestion in jails and prisons. It should significantly reduce prison populations and costs.
Tissya Mandal, member SACJ 2009-10

Thursday, January 15, 2009

Capital Punishment

‘Capital punishment’, referred to as the death penalty, is the judicially ordered execution of a prisoner as a punishment for a serious crime often called a capital offense or a capital crime. Thus, capital punishment is the lawful infliction of death as a punishment and has been used for a wide variety of offences.

India is among the 76 countries where capital punishment is legal. Death penalty is given only in the “rarest of the rare cases” by the Indian judiciary and only where the collective conscience of the community is so shocked that it does not think on humanitarian grounds for the “offender.” Our Courts have over the years evolved elaborate procedures as to how the to define ‘rarest of the rare cases’.

There are seven sections in the Indian Penal Code under which death sentence can be awarded to an accused - Section 121 (waging war against the state), Section 132 (abetting mutiny actually committed), Section 194 (giving or fabricating false evidence upon which an innocent person suffers death), Section 302 (murder which maybe punished with death or life imprisonment), Section 305 (abetment of suicide of a minor or insane, or intoxicated person), Section 396 (dacoity accompanied with murder) and Section 307 (attempt to murder by a person under sentence of imprisonment for life if hurt is caused).

Besides the penal code, there are many other laws like Explosive Substances Act, Narcotics Drugs and Psychotropic Substances Act, Prevention of Terrorism Act, which provide for imposition of capital punishment. Yet the standard of ‘rarest of rare’ has been upheld and death penalty cannot be awarded irrationally, arbitrarily. Section 354(3) of the Code of Criminal Procedure makes it obligatory for the trial court to give special reasons for awarding the extreme punishment of death.

Those in favour of abolishing the death penalty argue against death penalty on religious and moral grounds. The underlying logic behind these arguments being that – the life of a human being is his or her inalienable human right and is hence non negotiable. The importance of this argument lies in the fact that even if it is shown that the death penalty does achieve a greater goal; individual human right cannot be sacrificed at the altar of societal good.

There are a number of arguments that oppose the death penalty. One of the most important is the possibility that genuinely innocent people will be executed and that there is no possible way of compensating them for this miscarriage of justice.  Another significant danger is that the person convicted of the murder may have actually killed the victim and may even admit having done so but does not agree that the killing was murder. Often the only people who know what really happened are the accused and the deceased.  A second reason, that is often overlooked, is the hell the innocent family and friends of criminals must also go through in the time leading up to and during the execution and which will often cause them serious trauma for years afterwards. It is often very difficult for people to come to terms with the fact that their loved one could be guilty of a serious crime and no doubt even more difficult to come to terms with their death in this form. However strongly you may support capital punishment, two wrongs do not make one right. One cannot and should not deny the suffering of the victim's family in a murder case but the suffering of the murderer's family is surely equally valid.

Besides capital punishment is said to affect only the poor, lower caste, ignorant and underprivileged of our society. Hence this uncivilised irrationality must not be allowed in any democratic state.

It must be remembered that criminals are real people too who have life and with it the capacity to feel pain, fear and the loss of their loved ones, and all the other emotions that the rest of us are capable of feeling.  It is easier to put this thought on one side when discussing the most awful multiple murderers but less so when discussing, say, an 18-year-old girl convicted of drug trafficking.  (Singapore hanged two girls for this crime in 1995 who were both only 18 at the time of their offences and China shot an 18 year old girl for the same offence in 1998.)

The death penalty is the bluntest of "blunt instruments," it removes the individual's humanity and with it any chance of rehabilitation and their giving something back to society.  Moreover  the chances of deterring hardened criminals like rapists, murders, and drug barons by a few executions in a year is slim.

On the other hand it is argued that  the death penalty is a guaranteed method to eliminate a relapse of criminal behavior. As many speak, criminals should be punished accordingly to their crimes, as reinstated "an eye for eye."The “eye for an eye” version of the retributive theory today stands discredited. Even those who do not believe that capital punishment works as a deterrent may still support this practice as a way of just retribution. Punishment in this view is not a matter of injuring people because it is useful to us but of dealing with them in the way they deserve to be dealt with. And considering the elaborate, often long drawn-out procedure preceding the death penalty, there is not much likelihood of executing an innocent person.
Capital punishment permanently removes the worst criminals from society and should prove much cheaper and safer for the rest of us than long term or permanent incarceration. Money is not an inexhaustible commodity and the state may very well better spend our (limited) resources on the old, the young and the sick rather than the long term imprisonment of murderers, rapists, etc. Though this may seem rather harsh, it is in fact a very realistic and genuine concern that we rarely address out of fear of sounding inhuman.

Execution is a very real punishment rather than some form of "rehabilitative" treatment; the criminal is made to suffer in proportion to the offence. Although whether there is a place in a modern society for the old fashioned principal of "lex talens" (an eye for an eye), is a matter of personal opinion. Does the death penalty deter? It is hard to prove one way or the other because in most countries the number of people actually executed per year (as compared to those sentenced to death) is usually a very small proportion.  It would, however, seem that in those countries (e.g. Singapore), which almost always carry out death sentences, there is generally far less serious crime. This tends to indicate that the death penalty is a deterrent, but only where execution is an absolute certainty.

It should be remembered that legally established circumstances and not merely indignation of the court can form the basis of conviction and the more serious the crime, the greater should be the care taken to scrutinize the evidence lest suspicion takes the place of proof.

An analysis of one of the most recent cases, Dhananjoy Chaterjee v. State of West Bengal, where the court held on to the guilty verdict passed by the Calcutta High Court and upheld the death sentence will help us to understand the law to certain extent. The facts of the case in a nutshell would be, the appellant was one of the security guards to guard the building Anand Apartments. Hetal Parekh a young 18-year-old school-going girl was raped and murdered on March 5, 1990. Prior to this the deceased had often complained that the appellant used to make passes at her and had even proposed to her to go out for a movie with him. The mother of the deceased had complained to her husband and he later spoke with the agency employing him. The agency employing the appellant changed the guard of Anand Apartments. The mother of the deceased had gone to a temple and in her absence the appellant who was seen by one of the guards on duty taking the lift and stating that he needed to go apartment 3-A to repair the telephone.

On the date of occurrence in the evening when mother of the victim reached her house and rang the bell repeatedly and there was no reply and consequently the lock was broken open and found that the deceased was lying on the floor, her skirt and blouse had been pulled up and her private parts and breasts were visible and there were patches of blood near her head as well on the floor as well as on her hand and vagina.

The doctor after examining her, found her dead. The appellant was not traceable and neither reported to his duty. Certain buttons and wrist watch was recovered and the appellant was arrested. The court while upheld the death sentence passed by the trial court and ratified by the High Court.

In the words of Justice Anand:

The sordid episode of the security guard, whose sacred duty was to ensure the protection and welfare of the inhabitants of the flats in the apartment, should have subjected the deceased, a resident of one of the flats, to gratify his lust and murder her in retaliation for his transfer on her complaint, makes the crime even more heinous. Keeping in view the medical evidence and the state in which the body of the deceased was found, it is obvious that a most heinous type of barbaric rape and murder was committed on a helpless and defenseless school-going girl of 18 years. If the security guards behave in this manner then who will guard the guards? The faith of the society by such a barbaric act of the guard gets totally shaken and its cry for justice becomes loud and clear. The offence was not only inhuman and barbaric but it was a totally ruthless crime of rape followed by cold-blooded murder and an affront to the human dignity of the society. The savage nature of the crime has shocked our judicial conscience.

We agree that a real and abiding concern for the dignity of human life is required to be kept in mind by the courts while considering the confirmation of the sentence of death but a cold blooded preplanned brutal murder, without any provocation, after committing rape on an innocent and defenseless young girl of 18 years, by the security guard certainly makes this case a “rarest of the rare” cases which calls for no punishment other than the capital punishment and we accordingly confirm the sentence of death imposed upon the appellant for the offence under Section 302 IPC.

 Shabdita Gupta, member SACJ, 2007-08

Friday, December 26, 2008

Victims' Rights in India

A criminal wrong is differentiated from a civil wrong based on the reason that it is a wrong against the entire society and not merely one or more individuals against whom it has been perpetrated. It is based on this notion that the State has taken upon itself to investigate into the commission of the offence through its own machinery, and then prosecute and punish the offender. While every accused has a right to fair trial, and those who are convicted are to be served justice not merely by punishing them, but by restoring them to a normal position in society, which is done by sending them to correctional homes where different kinds of psychological help and vocational training is imparted to them. In this debate, the issue of victims’ rights seems to have been consigned to the backburner and forgotten. It is in this context that I am writing here.

Statutory provisions in the Indian criminal law in favour of the victims are few, but the judiciary has helped extending the scope of existing provisions to victims. One such provision is in relation to compensation to the victims. Sec. 357 of the Criminal Procedure Code states that the Court if an offender is given a sentence of which fine forms a part, then a certain portion of such fine or all of it may be applied in restoring any loss of property that the victim may have suffered. The fine can also be channelled for compensation in cases where the Court believes that such compensation could have been recoverable by suing the accused in a civil court. Even if a sentence of which fine does not form a part is given, the Court may order the accused to pay compensation for any loss or injury that may have been caused to the victim by his act. However, where the loss caused is significant and the offender is unable to pay the same, there is no provision in the existing law by which the State may be made to compensate the victim. There is also no provision for compensation during the pendency of the trial. However, in an exceptional circumstance where the accused was charged of rape, the Supreme Court had directed him to provide compensation to the victim during the pendency of the trial itself, while his offence had not even been proved, to provide relief to the victim. However, this was a rare occasion and cannot be taken to be the law of the land in all cases of rape.(Bodhisattwa Gautam v. Subhra Chakraborty) In a recent amendment to the Criminal Procedure Code which is still in the Bill stage, a victim compensation package is envisaged, which shall create a corpus from which compensation will be paid by the State to the victim. Such a corpus had been recommended by the Supreme Court in the to be established in respect of victims of sexual assault. (Delhi Domestic Working Women’s Forum )The amendment has already been passed in the Rajya Sabha, and awaits Lok Sabha approval and subsequent Presidential assent to come into force.

Kinds of Questions that may be put to female and child victims
In a trial for the offence of rape, during cross examination no question as to the general immoral character of the victim can be put to her. (Sec.146, Indian Evidence Act) This prevents unnecessary ordeal by way of innuendoes and other methods of character assassination from the lawyer of the accused. Further, the new Amendment Bill to the Criminal Procedure Code, envisages that the trial of witnesses is to be completed within two months from the date of commencement of examination of witnesses. This would go a long way in preventing protracted and gruelling examination of witnesses. It also requires the hearing of those cases by woman judges (to the extent possible) and interrogation of rape victims by the investigating agencies in the presence of their parents or social worker of the locality.
Methods of Examination
The new amendment Bill has expressly recognised utilisation of audio-visual recording of the statement of witnesses, and for the possibility of trial of cases through video-conferencing. The Supreme Court has given similar directions to the trial courts in cases involving child victims, such as in camera trial. It permitted taking evidence of the child victims by video-conferencing or the possibility of using a screen or similar arrangements whereby the victims do not see body or face of accused so as to enable them to give testimony without fear, and also so that they are not intimidated by the presence of the perpetrator of the crime. During cross examination, questions which relate directly to incident should be given in writing which may then be put to the victim or witnesses in a language which is clear and is not embarrassing. (Sakshi v. Union of India)
Abhyudaya Agarwal, member, SACJ 2007-08

Friday, December 19, 2008

Terrorism and Law: The need of the hour

In the wake of the recent Mumbai terror attacks, the government has announced to take strict and bold actions to combat the menace of terrorism. One of the measures taken has been tabling the National Investigation Agency Bill and the Unlawful Activities Prevention (Amendment) Bill, which will ensure a stricter legal regime.
The National Investigation Agency will be a central body, having overriding powers to identify terror instances and investigate them, taking them over from state agencies. It will be empowered to independently commence investigation into cases dealing with inter-state crimes with possible international linkages e.g. circulation of fake Indian currency notes, organised crime and drugs trafficking, apart from terror activities. It will take up cases depending on the enormity and necessity of the crimes and has proposed a special court for trying such cases.
One of the amendments sought to be brought in the Unlawful Activities Prevention Act, 2004 is longer detention, upto 180 days of a terror suspect without bail and denial of bail to a foreigner accused of terrorism. It also expands the definition of "terrorist act" to include abetment, raising funds for terror activities, organising terror camps and recruiting persons for carrying out terrorist activities.

The government also proposes to update the National Security Act, 1980 to include the definition of terrorist and bring any other required amendment.
Read more on the issue here .

Debosmita Nandy, Director, SACJ 2007-08, NUJS

Law of Obscenity in India

Section 292 of the Indian Penal Code broadly describes obscene material as that which is lascivious or appeals to the prurient interest or if its effect, or (where it comprises two or more distinct items) the effects of any one of its items, is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it. At the same time it makes exceptions for any material, the publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, writing, drawing, painting, representation or figure is in the interest of science, literature, art or learning or other objects of general concern.

The section says that even if the effect of some materials is to deprave or corrupt those who would access to it, if it's circulation is justified for 'public good' then it shall not be an offence within the meaning of the section. Is it possible theoretically or practically for some material to 'deprave and corrupt' and serve the public good at the same time?

The section seems to make an exception for any representation that is in the interest of science, literature, art or learning or other objects of general concern. Interestingly, this exception has done little to remedy the situation. This provision of law has been used to penalize authors and filmmakers for writing or showing what is obscene.

Similarly, the exception seeks to cover any representation on temples, cars used to carry religious idols, any religious object or any ancient monument. This exception probably seeks to protect all the ancient monuments which have erotic imagery sculpted in stone and are hailed as great works of art and are revenue earning tourist destinations.

At the same time, this section seeks to make an exception for religious purposes ( as distinguished from ancient monuments , for example, depiction of sexuality on temples, cars being used for carrying idol, and object used for religious purposes.). By virtue of this exception, the section seeks to respect the constitutional mandate of secularism and freedom of religion. The fundamental right to preach, profess and practice one's religion is reemphasized by the creation of this exception. One is led to wonder whether the 'freedom of religion' is in anyway more 'fundamental' a fundamental right than freedom of expression guaranteed under Article 19 of the Constitution. While others may argue that such rights are subject to reasonable restrictions, it may be contented that the law on obscenity is hardly reasonable as it seeks to define and regulate that which is completely subjective and therefore is little more than yet another farcical instrument employed by orthodox fundamentalists to fulfill the self-conferred responsibility of purging the society of depravation. The law on obscenity in India was essentially enacted to prevent the publication of some books that would contain graphic description of sexual encounters. It is little more than content regulation. What then is the purpose of the exception clause that says anything in the interest of 'art' is beyond the purview of the law prohibiting obscenity? A case in point is 'Lady Chatterley's Lover', a novel by D. H. Lawrence. The publication of the book caused a scandal due to it's explicit sex scenes, including previously banned four-letter words, and perhaps particularly because the lovers were a working-class male and an aristocratic female. In 1964, bookseller Ranjit Udeshi in Bombay was prosecuted under Sec. 292 of the Indian Penal Code for selling an unexpurgated copy of the book.
On appeal [1], before a three-judge bench of the Supreme Court of India, , Chief Justice Hidayatullah declared the law on the subject of when a book can be regarded as obscene and established tests of obscenity such as the Hicklin test.
The Court held that :
"When everything said in its favour we find that 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 the test we have indicated above."
As Oscar Wilde puts it "There is no such thing as a moral or immoral book. Books are well written, or badly written. That is all." This is one among many instances where literary merit has been strangled by ambiguous standards of morality.

The difference between erotica and obscene depiction of sexuality or pornography cannot be defined and any attempt to do so is futile. It is a matter of personal opinion and liberty. The law on obscenity is therefore completely obsolete.

[1] Ranjit D. Udeshi v. State of Maharashtra AIR 1968 SC 881, Interestingly , this book has also faced prosecution for obscenity in England .R v Penguin Books Ltd [1961] Crim LR.

Ushashi Khan, Member SACJ 2007-08, NUJS