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The “Lady” Again: The Persecution, and Prosecution, of Lady Chatterley’s Lover in India
Abhinav Sekhri*
I. Introduction
By early December of 1959, the sale of a novel by D. H. Lawrence in its unexpurgated form, called Lady Chatterley’s Lover, had created such a buzz across Bombay that the Police Department had decided to “scrutinize” the book and, presumably after reading it, had decided to “put it to a test before the Court of Law.”[1] To get the ball rolling, the police decided to lay a trap, orchestrated by the Vigilance Branch of the Criminal Investigation Department (CID). “Bogus customers, with marked money”[2] were sent to South Bombay’s Causeway Book Stall and Happy Book Stall on Saturday, December 12, 1959. They had been instructed to seek and purchase copies of an unexpurgated edition of Chatterley published by Pocket Books Inc. in the United States in July 1959, which was reportedly stocked by these booksellers.[3]
Once these buyers struck the deal, “the said Book Stalls were raided and the copies of the said novels, along with some other magazine, were taken charge of.”[4] The salesman and the proprietor of the Causeway Book Stall, and the proprietor of the Happy Book Stall, were all arrested for sale of the novel. The proprietor of Pocket Books Distributing Co. was also arrested for importing and distributing the novel to dealers.[5] Why? Because the Chief Police Prosecutor had opined that “the novel in question contains several highly obscene passages” which were “obscene within the meaning of Section 292 I.P.C.”[6] This view was earlier taken by the Postmaster General of New York who, on April 30, 1959, had imposed restrictions on mailing copies of the novel through the United States Mail on the grounds of it being obscene.[7]
The investigation following these police purges of immorality by raiding book stalls led to a few more arrests and ended with seven persons being sent for trial in April 1960 before the Court of the Additional Chief Presidency Magistrate, sitting in the Esplanade Courts of Bombay.[8] This list included four partners of Happy Book Stall (including one Ranjit D. Udeshi), the proprietor and salesman of Causeway Book Stall, and lastly the proprietor of Pocket Books.[9] A year later, the Court of Mr. Nasrullah, Additional Chief Presidency Magistrate, passed its judgment in Case No. 5/P of 1960 titled State of Maharashtra v. Gokuldas Shamji & Others[10] against four of the seven accused persons,[11] finding them guilty for having possessed and sold copies of Chatterley on December 12, 1959, a book which was obscene under the law.[12]
The trials and tribulations of Chatterley in courts across the world are a feature of discussions in law and literature. Its prosecution in India’s courts has, so far, only attracted attention[13] on account of the Indian Supreme Court’s peculiar 1964 judgment in Ranjit D. Udeshi v. State of Maharashtra,[14] which upheld the constitutional validity of the obscenity offence and the view that Chatterley was, indeed, obscene.[15]
Beyond the conclusions of the Supreme Court, there is precious little known about the prosecution of Happy Book Stall’s proprietors as well as the book’s ban by the government, which technically came after their arrests.[16] This paper is a modest attempt to fill some of these gaps. By accessing archival material primarily relating to Chatterley, I look at how the state machinery operated to censor obscene literature in late-1950s India.
The workings of Bombay Police have already been teased above. This represented one manner of control, by enforcing criminal law at the level of the state government. The archive vividly demonstrates the power vested in the hands of police and judges by the law criminalizing obscenity. Prosecution meant that the initial censorship was done by police officers and the final word rested with the bench. Presumably given the fanfare that Chatterley had generated even by 1959, the judges expressed remarkably detailed views about the book in all rounds of the litigation. The verdicts demonstrate how the power of the law was such that even material of literary merit could be guillotined if it nevertheless offended the sensibilities of those wielding power.
Operating parallelly in New Delhi was the federal government, which represented a different arm of state power that could prohibit imports and the outright sale of books if the federal government declared them to be “obscene.” In respect of the latter, the archive reveals that there was no clear process or system in place to make decisions. In its absence, the levers of power were not being exercised by petty bureaucrats enforcing their morals upon an unsuspecting public, but rather by those occupying the highest echelons of power. Detailed notes being passed about the books a society reads reflects a startling level of social control by government, no matter what the end goal.
This paper is structured into two broad sections, looking at the aforesaid two aspects of the state machinery which worked in tandem to deprive the Indian public of a chance to read the unexpurgated edition of Chatterley. The first section sheds light upon the federal government’s decision to ban the book’s imports. It charts out the legal regime in question and turns to how the wheels of government turned to ultimately ban Chatterley. The second section returns to criminalization of obscenity and the prosecution of Chatterley launched in Bombay in April 1960. The Chief Public Prosecutor had focused on certain passages of the book for launching the prosecution. What about the courts? The judgments condemning Chatterley merit a close read, for they show strikingly dissonant approaches not only to the factual question of the book’s obscenity, but also to the legal test by which questions of obscenity were to be judged.
With respect to the federal government’s persecution of Chatterley, my primary aim is historical, and critique is limited only to inconsistencies in reasoning. However, with respect to the prosecution of the Bombay booksellers for stocking Chatterley, I argue that the litigation offers a useful tool to demonstrate the problems with the offense in India, which had retained the colonial legal formulation. Indian law gave scant regard to the opinions of any person other than, first, the government which had powers to forfeit what it saw as offensive, and then a judge—not jury—who decided where to draw the lines on the constitutionally protected freedom of speech where it came up against decency and morality.
The diversity of reasons explaining just what was offensive about Chatterley vividly demonstrates the arbitrariness at the heart of the exercise in applying an obscenity law which conferred near total discretion upon the authorities. Such problems had been keenly felt in England itself and had led to amendments in the law a few years prior to the English courts’ tryst with Chatterley.In India, similar amendments came after courts had deemed the book obscene, leaving us to wonder what might have been.
II. The Government’s Response to Chatterley
On October 24, 1959, the following exchange took place between R. N. Misra and D. F. Anand, two officials in the Directorate of Inspection in the Department of Customs and Central Excise:
Ref. Telephone conversation this morning. I am forwarding two copies of the above book in its cardinal edition . . . . The book is available at several bookshops—specially the pavement shops—in Connaught Circus and is coming in from Suppliers in Bombay. It has been noticed in Delhi in within the last day or two.[17]
We should consult the Ministry of Home Affairs urgently as to whether this book is to be treated as “obscene” unless, of course, there are some old orders already on the point.[18]
The book, of course, was the unexpurgated edition of Chatterley. After the District Court for the Southern District of New York had concluded in Grove Press that the book was not obscene and could be sold through the U.S. Mail,[19] copies of the book published by Pocket Books Inc. had seemingly made their way to India; first to Bombay, and soon after the streets of New Delhi, from where two copies found their way into the offices of the Directorate of Inspection, Customs and Central Excise in the Ministry of Finance.[20]
Preventing the circulation of obscene material, presumably to safeguard decency and morality, was a common legal tool across most jurisdictions. Similar to the United States federal law prohibiting transmission of obscene material through the mail,[21] the Indian Post Office Act 1898[22] also gave powers to cull any obscene literature from circulating by post.[23] In respect of imports, the Sea Customs Act 1878 provided the legal basis to prohibit imports of material notified as obscene by executive orders.[24]
It was these orders under the Sea Customs Act which Messrs. Misra and Anand were referring to in their correspondence. The hunch that there would be prior executive orders banning the import of Chatterley proved accurate. Rummaging through their files, officials in the Ministry of Home Affairs recovered a letter dated August 26, 1943, issued by the Central Board of Revenue in response to a query raised by the Central Book Depot of Allahabad seeking clarifications about restrictions on import of three titles: The Menace of Fascism and The Theory and Practice of Socialism by John Strachey, and the unexpurgated edition of Chatterley.[25]
There were no restrictions on importing the Strachey books, but the Allahabad Book Depot was informed that Chatterley was “regarded as an obscene publication” and its import was prohibited under Section 18(c) of the Sea Customs Act.[26] The 1943 letter was clear evidence of an official view that Chatterley was obscene. But this was only a letter, and the orders or notifications placing it on a restricted list were not found.[27]
Things could have rested there; the bureaucrats, content with having found a previous order, could have sent notices to the ports and set in motion the government machinery to prosecute importers. S. D. Mehra, Deputy Secretary in the Customs Department, had other ideas, and on November 6, 1959, he filed an official note in effect calling for a review:
It is possible that in 1943, the Board were guided by the consideration that since publication of the book in its unexpurgated form was banned in almost all countries of the world, it was not necessary for them to examine whether a different view could possibly be taken in India. Now that a judicial pronouncement has been made in favour of the book in the U.S.A. and the book is freely available for export from that country, it is necessary to examine the matter as a fresh issue in the light of these factors.[28]
It is telling that what mattered in Mehra’s assessment was not the fact that since 1943 India had adopted a constitution safeguarding the fundamental freedom of speech and expression which may require a re-examination of decisions made prior in time, either on the book’s merits or because of the process. Rather, it was the international reception of the book which prompted the call for a fresh examination, which was sought from the Ministry of Home Affairs.
After dismissing S. D. Mehra’s note as being based on presumptions and irrelevant considerations, the Under Secretary Gajinder Singh was nevertheless of the opinion that the matter should be further lobbied to the Ministry of Law for an opinion and asked that the matter “be treated as urgent as copies of the book are already on sale in the country.”[29] While doing so, Singh highlighted portions dealing with sexual intimacy in the margin of his note,[30] and did not hesitate in offering his own opinions:
[E]ven if the book were not clearly obscene as to come within the scope of section 18(c) of the Sea Customs Act, 1878, it would appear to be “grossly indecent” as to come within the orbit of clause (vi) of Notification No. 77-Cus. dated the 22nd September, 1956 issued by the Ministry of Finance (RD) under the Sea Customs Act.[31]
The 1956 notification referred to by Gajinder Singh was in pursuance of broad powers vested with the federal government under Section 19 of the Sea Customs Act. Where Section 18 worked to prohibit the import of specific articles, Section 19 conferred sweeping preventive power to scuttle the import of materials “likely” to have a range of deleterious effects as specified in a notification.[32] This power delegated to the federal government was exercised by the 1956 notification to prevent and prohibit imports of materials which were “grossly indecent, or are scurrilous, or obscene or intended for blackmail.”[33] In effect, the notification conferred tremendous powers upon the port authorities on the ground to examine any material. What Singh’s note suggests is that this power in the hands of port authorities could be guided from the center to achieve specific goals.
The Law Ministry had not responded by the time the Bombay Police had carried out its raid on the Causeway Book Stall and Happy Book Stall on December 12, 1959. The events received press coverage and were being monitored by the federal government as well, presumably because a judicial finding that the book was obscene would obviate the need for government action on that score. Regular follow-ups were being sought from the Bombay Government as to the fate of its prosecution, the urgency being underscored by sending telegrams as opposed to regular post.[34]
The file in the Law Ministry was at the desk of one D. B. Kulkarni, the Deputy Law Adviser in the Department of Legal Affairs. He was not a stranger to this censorship exercise; a few months ago, Kulkarni had been part of the discussions on whether copies of Vladimir Nabokov’s Lolita ought to have been banned from circulation or not.[35] Kulkarni issued a six-page memo on March 18, 1960.[36] The file does not contain the query sent to him, but it appears that after the initial purchase of the book by Customs Inspectors in October 1959, some steps had been taken to prevent its further circulation, with the Bombay Customs House detaining five thousand copies that had been imported in Bombay.[37]
Kulkarni had examined the Pocket Books version purchased from Delhi’s streets which carried the verdict in Grove Press, Inc. v. Christenberry passed by the U.S. District Court for the Southern District of New York[38] as an appendix. In offering his opinion he appears to have examined not just this verdict, but also the legal position in England and the United States on criminalizing obscenity.[39] The shift from the famous judgment in R. v. Hicklin [40] made by the U.S. Supreme Court in Roth v. United States [41] was highlighted, and it appears that he found the Roth formulation of the law acceptable and tested the book’s contents on its anvil:
It is true that we are not concerned whether the community would approve of Constance Chatterley’s morals. The tests of obscenity are not whether the book or passages from it are in bad taste or shock or offend the sensibilities of an individual. But it seems to me that the dominant theme of the novel taken as a whole appeals to the prurient interest, having regard to contemporary community standards. Surely, the information regarding the details of the sexual acts is not needed or appropriate to enable the members of society to cope with the exigency of their period.[42]
Kulkarni also relied upon the book’s recent censure by the Supreme Court of Japan[43] on the grounds that “the details of the sexual act given therein” would not be “in consonance with our heritage, traditions, and the prevailing standards of our community, at any rate.”[44] He refused to place reliance upon the views of Judge Bryan of the U.S. District Court because “his opinion has been confirmed neither by the court of appeal nor by the Supreme Court of the United States.”[45]
It was Kulkarni’s considered opinion, for the above reasons, that the book was obscene, and that the federal government should take steps to punish the importer and issue instructions for prosecuting persons sharing the book through posts, besides it being open for the state governments to launch criminal prosecutions for the obscenity offense.[46]
There was no notification or circular in place which determined the process by which the federal government made its decisions on declaring books as obscene under the Sea Customs Act. It was a convention for the views of the Home Ministry—the wing of government exercising police powers—to be sought. Since the Law Ministry had in turn been asked to give an opinion in this case, the matter could not rest with Kulkarni’s note or its approval by the Secretary in the Law Ministry. The ultimate answer, much like with Lolita, had to come from the Minister and since the Law Minister was away at the time it meant the Prime Minister had the final word.[47]
When the file reached Deputy Law Minister, R. M. Hajarnavis, on April 7, 1960 he issued a detailed memorandum expressing “considerable hesitation” in agreeing with views that the unexpurgated edition of Chatterley should be prohibited from circulation.[48] It was a curious memo as Hajarnavis did not rate the book and its use of provocative language highly at all.[49] His problem was that his opinion, or for that matter the Deputy Legal Adviser’s, should not be enough to impose a ban on circulating the work.[50] The mere frank expression of sex could not be seen as obscene in a country where temple architecture was strewn with highly suggestive works.[51]
The Hajarnavis memo pointed to the recent amendments in English law on obscenity pursuant to the Jenkins Committee and suggested that something had to be done in India as well and that the nascent Law Commission should examine the question. In respect of the Ministry’s processes, he was of the view that rather than sending the file from person to person without any defined process laid out, a committee of experts ought to be instituted which can offer its opinion given the subjectivity of opinions about the merit of any work.[52]
These were arguments about what the law should be, not what the law was. As things stood, there was little doubt in his mind about the ultimate outcome, but Hajarnavis appears to have wanted to have no truck with the censorship of Chatterley. He thus suggested that a status quo be maintained till the Bombay trial ended, where “there is a high probability of the case ending in conviction under the present law.”[53] The constitutional protection of free speech and expression, however, did not find any mention in his memo.
The Prime Minister was having none of it and cleared the file the next day. “I am clear that this book ‘Lady Chatterley’s Lover ’ should be banned”[54] was as unequivocal a statement as it could get. While he agreed with the generic suggestions for having an advisory committee or amendment, Nehru had “no doubt in [his] mind that so far as this book is concerned, it should be banned. In case our order is challenged in a court of law, the matter can be faced.”[55]
A two-sentence verdict condemning the book was quite at odds with how the Prime Minister had treated the issue of whether Lolita ought to be banned less than a year ago.[56] A thousand copies of the book had been detained with the collector of customs in early 1959 and the federal government was considering whether it was obscene to curtail its circulation.
In Lolita ’s case,the Finance Minister had pithily observed: “I do not know what book can be called obscene if this cannot be. It is sex perversion.”[57] The Home Ministry, as per convention, was asked to give its views, which lobbed the file to the Prime Minister (no Law Ministry intervention though). On that occasion, Nehru made time from his busy schedule to read the book because the matter “raised a question of principle”[58] and his secretariat issued a page long memorandum stepping back from a ban (while simultaneously endorsing an indirect one),[59] which began thus:
Generally speaking, I do not like the censoring of books unless this is considered essential in a particular case. It is always very difficult to find a proper authority who can censor books. To ask the police to do so or the Customs authorities does not seem to me right. It is an unfair burden cast upon them for which they have had no training. . . . [A] book which is a serious book, even though it deals with an unsavoury subject, stands on a different footing.[60]
Did the Prime Minister make time to read Chatterley, or did its reputation precede it? Why was it not seen as a serious book by him, even as most others had found it dealt with some serious topics? What made it so objectionable to justify a departure from the general position which he had sketched so unflinchingly? We will never know.
From picking up copies of the book from the streets of New Delhi on October 24, 1959, it took less than six months for the Indian federal government to finish reconsidering whether Chatterley remained beyond the pale. Appropriate orders were issued on April 20, 1960, prohibiting “the book or any translation, reprint or other document containing substantial productions or extracts of the objectionable portion of the matter” from entry into India.[61] Not once did the Constitution of India and its protection of free speech and expression actively figure in these ad hoc deliberations of the government.
That, however, was not the end of the matter. The federal government refrained from actively enforcing the ban or proceeding against the importers till the trial of booksellers in Bombay had concluded and continued to closely monitor the proceedings.[62] The lack of outward communication even prompted a parliamentary question some months later[63] once Penguin Books won its trial at the Old Bailey. It formed the first formal acceptance by Nehru’s government that it banned Chatterley from circulation.[64]
It was only after conclusion of the trial and dismissal of the first appeal by the Bombay High Court that a formal letter was sent from the center to all states.[65] The validation of their decision by the courts clearly mattered to the government. The next section shows that while the courts may have agreed with the final word deeming Chatterley obscene, there was hardly any synergy of reasoning between the three courts through the prosecution, let alone between the courts and the government.
III. Chatterley Goes to Court
The Bombay Police had a busy 1959 when it came to banning promiscuous books. In the first part of the year, expensive hard-bound editions of Lolita made it to Bombay Port, having been imported by the Jaico Publishing House. These were detained by the customs authorities, who as per practice involved the local police to decide whether the book ought to be banned as obscene.[66] The Police Commissioner concluded that the book could not be treated as obscene literature.[67] Come December 1959, the Commissioner’s Office was again in the thick of things, adopting means more commonly used to trap corrupt public servants while taking bribes to catch the booksellers selling copies of the unexpurgated version of Chatterley.[68]
The booksellers and the importer were sent up for trial and charged for committing crimes under Section 292 of the Indian Penal Code of 1860, which punished possession and sale of any obscene material.[69] It resembled the English law as under the Obscene Publications Act 1857[70] with some amendments in 1925 made pursuant to the 1923 International Convention on Suppression of Circulation and Traffic of Obscene Publications.[71] The dominant approach for Indian courts in deciding what was obscene for Section 292 of the IPC was to adopt the formulation devised in Hicklin [72] (which was at the heart of the 1857 English statute). Material could be called obscene by looking merely at selective passages to determine whether it had a “tendency” to “deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall.”[73]
For some time, Hicklin had been criticized as following an extremely restrictive approach by, first, allowing censors to look at snippets without considering the entirety of material to decide whether it was obscene, and second, by deciding material was obscene even if it had a mere tendency to titillate the young and impressionable in society.[74]
As a result, by the 1950s, jurisdictions had begun to move away from the Hicklin formulation. In 1957, the United States Supreme Court struck a different note in Roth by holding that the material had to be considered in its entirety, that a mere tendency to corrupt morals was insufficient to rule that material was obscene, and finally, that such questions had to be decided by considering the impact on a reasonable reader and not the young and impressionable.[75] In July 1959—a few months before the arrests in Bombay—English law was amended to shift from the Hicklin formulation and expand available defenses, especially where literature was alleged as obscene.[76]
Writing in the American context, Charles Rembar had noted that the chances of Chatterley being permitted for circulation under the Hicklin formulation were practically impossible; it was only because of Roth and some earlier state-level decisions that there was a chance for a favorable order in respect of the book.[77] Similarly, it was the 1959 amendments to the obscenity law which made Penguin Books bullish enough to risk prosecution for publishing Chatterley.[78] Its legal strategy played heavily upon the shifts brought about in the law, bringing in a mountain of evidence to convince a jury that the book was of significant literary merit and thus could not be prosecuted as obscene in spite of the sexually explicit content.[79]
By 1959, dissonant notes had been struck by the courts in India and at least one court had expressed an opinion that it was “high time” that the law was changed.[80] The federal government files on banning Chatterley showed us that even the Indian government was no longer happy with the Hicklin formulation; the bureaucrats followed the Roth approach, and the ministers referred to the English amendments.[81] Penguin Books’ victory on November 2, 1960 in the Old Bailey trial on Chatterley prompted a spirited debate over the verdict and the desirability of the older legal position in a flurry of letters to the Editor of the Times of India.[82] A former M.P. in the colonial government called upon the Indian government to bring Indian law in conformity with the amended English position.[83] However, no steps had been taken to amend the law by the time the proprietors of Happy Book Stall were brought to trial. Thus, the old, arguably outdated legal provision in the Penal Code, as interpreted under the 1868 Hicklin formulation, governed the fate of the Chatterley trial in India brought before the Bombay Courts.
A. The Trial
While the booksellers had been charged in April, the trial only picked up pace at the turn of the year. In January, the prosecution closed its case. It appears that it had flagged thirty-five passages in the novel to deem it “obscene”—in line with the Hicklin approach—but also contended that none of the literary merit of the novel would be lost by expunging these passages.[84] Presumably in a bid to undercut the literary merit argument, the prosecution contended that Lawrence, “though a well-known author, was not one of the six best of the present century.”[85]
The defense led its evidence in February,[86] calling upon the reputed author Dr. Mulk Raj Anand and reputed filmmaker K. A. Abbas to testify.[87] The defense witnesses, as expected, paid glowing tributes to the merit of the book. Dr. Mulk Raj Anand had already come out in support of the book’s value publicly,[88] and testified that Chatterley was of “outstanding literary value” and a “masterpiece of world literature.”[89] If the passages flagged as obscene were taken out, he testified that it would render the book meaningless.[90] Newspapers reported that the judge clarified that their evidence could aid the accused “to place on record an evaluation of the literary merit of the book and the relevance of the ‘objected’ passages to its theme”[91] but no evidence could be tendered on the “question of the book’s obscenity. That would be a matter entirely for the court’s consideration and decision.”[92]
This declaration reported in the press appears peculiar. The trial was conducted before a judge sitting without a jury. In the absence of a jury, it fell to the bench to apply the law to the facts, and the law as we discussed was the Hicklin approach. But when there were no clauses which made the literary merit of a book directly relevant to determine its obscenity, and when Hicklin did not require looking at the material in its entirety, why did the judge admit evidence as to the merit of the book as well as the relevance of the objected passages to its theme? Could it be that the judge was, at some level, deviating from the Hicklin test?
Reading the lengthy and erudite judgment of the Magistrate, that is the sense one gets. Laying out the legal position, he noted that “the Hicklin test has been much maligned in legal discussions as being unsatisfactory, vague, and unscientific.”[93] He approvingly referred to the jury instructions by Justice Stable in the Philanderers case,[94] as well as recent Indian decisions which had diluted the harshness of the Hicklin formulation somewhat.[95] However, no reference was made to Roth or any other American decisions.
On his reading, then, this was the test to determine obscenity:
Thus, in considering the obscenity or otherwise of a publication, one has to see whether the tendency of the matter, taking the publication as to whole, is to deprave and corrupt the morals of those into whose hand the publication is likely to fall including the young and adolescent. The expressions “depraved and corrupt” have to be considered with regard to the reactions of an average man in society, neither the intellectual nor the ignoramus. Further, it is relevant to keep in mind that the ideas of obscenity differ from age to age, from region to region, and from society to society; and in judging obscenity one of the important considerations should be not to encroach on the freedom of expression unless exercised in such a way as to present a danger to society . . . .[96]
This formulation is by no means a ringing endorsement of the Hicklin test. Even though the American decisions were not referred to, the Magistrate’s formulation was quite close to how the U.S. Supreme Court had laid down the test to determine obscenity in Roth.
With the issue of the obscene passages thus relegated to the background, the Magistrate took to discussing the overall theme of the book to determine the issue of its alleged obscenity. The judgment contained a lengthy, book review style summary of Chatterley, noting its themes with reasonable fairness.[97] It was not the obscene passages which were the problem for Judge Nasrullah but one of the themes in the book. He read Chatterley as promoting sex outside of marriage, encouraging persons living unhappily in matrimony to go in search of that “perfect or specialised sex” as shown to exist between Constance and Mellors.[98] This theory would “strike at the very roots of the institution of marriage”[99] and was in “direct conflict with the ideals of Indian womanhood which are based on devotion, love and sacrifice.”[100] The book suggested that every woman in an unhappy marriage
has the moral right and justification to go in search of that type of sex wherever it could be had. . . . In this portrayal of woman in marriage, accompanied by a sanction to her to seek a brand of sex, outside marriage if need be, under the guise that it is essential for the preservation of mankind and the resurrection of a dying civilisation, lies the danger of all accepted moral standards in marriage being corrupted, depraved and destroyed.[101]
Having decided that the book’s theme itself was obscene, the Magistrate turned to the issue of the allegedly obscene passages next and delivered an equivocal finding in this regard. The Magistrate evidently held Lawrence in high regard, noting that he was a “master of descriptive prose” and made “the reader feel that he is an eye-witness to the sexual acts.”[102] He referred to sources such as Lawrence’s letters to turn to the writer’s intention behind employing the “coarse” language—again, a peculiar choice since the intention of a writer had long been held as irrelevant to decide the material’s obscenity—and returned a hesitant finding that Lawrence may have used expressions “which cannot be said to be strictly necessary from the literary and artistic point of view, particularly, for a great writer like himself.”[103]
Again, the book was not obscene because it used coarse language. Rather, for the Magistrate, the book was obscene because of its theme, which encouraged women to commit adultery and “seek [their] particular kind of sex wherever it could be had” as this would have a “devastating effect on all our accepted moral and ethical values concerning the institution of marriage, with all its traditions, loyalties, attachments and sacrifices.”[104] This theme, “embellished by several descriptions of sexual situations repeatedly given” was “not suitable for the average person in society, particularly the young and adolescent” in whose hands it was likely to reach being moderately priced and available at a “modest little book stall at Colaba Causeway, Bombay.”[105]
There was press coverage and discussion of the Magistrate’s verdict in Chatterley,[106] and a part of it condemned the judgment on grounds of applying the strict Hicklin test to censor the book. A close reading of the judgment suggests that this was unfair condemnation, as his judgment was no straightforward invocation of the tendency test in Hicklin. It was not to protect wayward souls or impressionable youths that the Magistrate censored Chatterley, but because he found the theme itself to be objectionable. The verdict was far from a ringing endorsement of the prosecution case, and the equivocation is further evident in his imposing only a “token fine” without any prison sentence upon the booksellers.[107]
B. The High Court
It did not take long for the convictions to be challenged before the Bombay High Court.[108] On February 6, 1962, a Division Bench of Justices Patel and Chandrachud delivered its verdict, dismissing the petitions and affirming the convictions.[109] However, in doing so, they took a very different view of the law. Writing for the bench, Justice Patel disagreed with the approaches of Justice Stable in the Philanderers case, as well as that of the U.S. Supreme Court in Roth, and held that the Hicklin test was the law in India for determining questions of obscenity.[110] According to him, “the view that has generally prevailed in this country is that even a single passage may render the book obscene.”[111] The reader of such a passage had to be seen as a reasonable person, but at the same time courts had to be cognizant of the effect of a publication upon the minds of the young and impressionable.
After formulating the law thus, Justice Patel found passages flagged by the prosecution obviously problematic, thinking about the impact these would have on the mind of an ordinary reader. In his view, after reading these passages “a man of ordinary understanding and knowing ordinary English according to the present-day standards in this country would be inclined to believe that the author advocates every woman finding a man like Mellors to satisfy her sex craving and an employee or a guest justifiably indulging in sex relation under the roof of the husband. If this is so it is clearly repugnant to public morals.”[112] It is fair to conclude that the High Court’s analysis was not as refined as the Magistrate, but they shared a common concern for how Chatterley might impact the Indian woman.
By this point, it was common knowledge that the American and English courts had ruled in favor of permitting the book’s circulation. It compelled the Bombay High Court to justify its position in contrast with these foreign verdicts. Judge Bryan’s verdict in Grove Press had been upheld by the Circuit Court,[113] but the Bombay High Court distinguished it on account of different community standards and quoted approvingly from the separate opinion which expressed reservations about the controversial passages.[114] The acquittal of Penguin Books in the Old Bailey trial was easier to distinguish since the jury did not offer any reasons behind its verdict.[115]
C. The Supreme Court
An argument in support of a liberalized take on the obscenity tests which seems to have been taken at the Bombay High Court was to rely upon the Constitution of India to suggest that it had changed the field. It was rejected summarily in Justice Patel’s judgment, which observed that “the impact of the Constitution does not make any essential difference to the meaning which has so far been given to the word ‘obscenity.’ ”[116]
The lawyers for Ranjit Udeshi decided to bring the constitutional issue front and center as they appealed against the High Court’s verdict before the Supreme Court of India.[117] Reflecting the importance of the issue, the Supreme Court had agreed to hear the appeal and a Constitution Bench of Five Justices was assembled for this purpose.[118]
How did Udeshi’s lawyers pitch the case?[119] They did not assail the validity of the penal provision per se. Instead, the contention was that the obscenity offense as applied using the Hicklin test was unconstitutional and a different formulation was required to bring it in consonance with the constitutional standard.[120] The issue was well-stated in a newspaper article: “is an entire community to be denied access to art and literature simply because there is a tendency towards depravity not in such art and literature but in a certain minority of persons?”[121] An alternate formulation would safeguard works with any literary merit and thus protect society against a majoritarian approach which excluded material basis community standards or protection of the impressionable.[122]
The difficulty in identifying the correct standard for obscenity did not escape the Court. The need was to lay down a general standard for trial courts to apply with a measure of consistency but the “varied facets” and “individualistic appeals” of art made this exercise rather onerous.[123] To have a book like Chatterley as the test case for developing the law was fitting considering how it had been part of similar journeys across the world.
Fitting as it was, it may have been far from ideal for those hoping to usher in a more progressive legal standard. In a lecture he delivered after the judgment, Justice Hidayatullah—author of the Supreme Court’s judgment—recounted that copies of the book were supplied to the five justices in sealed covers and that while he had read it as a young man and now found the book a bore, “to some of my colleagues, who had not read the book, it came as a bomb. The impact was terrific. Their attitude was definitely hostile.”[124]
If this recollection was accurate, it makes sense that the Supreme Court’s judgment did not herald any progressive shifts in the law on obscenity. Justice Hidayatullah authored an opinion which reaffirmed the Hicklin test as the appropriate test for India. In his reading of Hicklin, the test asked a judge to take:
An overall view of the obscene matter in the setting of the whole work [but at the same time] 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 our contemporary society and particularly the influence of the book etc. on it must not be overlooked.[125]
Justice Hidayatullah then added a distinctly nationalist flavor to his application of the test:
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 is 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. . . . 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.[126]
The Indian formulation seemed to have the following limbs:
- to determine the obscenity of any material a court could look at the allegedly obscene passages and was not required to look at the entire material;
- the passages in question had to be “so gross” that it was likely to deprave and corrupt those whose minds were open to influences of this sort and in whose hands the material was likely to fall;
- the interests of society were a relevant consideration in this regard, including determining what impact works of English literature may have on regional Indian languages.
This formulation retained the majoritarian and protectionist impulses of Hicklin, if not intensifying them further.[127] It was difficult to imagine courts consistently applying this test which, amongst other things, required them to consider how literature might impact other writers in regional languages. A far more likely outcome was an inconsistent approach where the books society may be deemed obscene by the choices of a majority, and the whims and fancies of police officers and judges.
This is precisely what happened to Chatterley in the Supreme Court. Both courts below had been troubled by the theme of adultery and how the book might promote licentious behavior in India’s women. None of these issues were raised by the Supreme Court in its judgment authored by Justice Hidayatullah. Unlike the other four judges who were supposedly mortified by the unexpurgated Chatterley, Hidayatullah professed a liking for D. H. Lawrence and had read the unexpurgated edition of the book as a young man.[128]
Perhaps this explains why the Justice was quite nonplussed at its salacious passages and themes and did not simply point to these as rendering the book obscene. Instead, he engaged in a lengthy, and arguably irrelevant, discussion about the professed intentions and ideas of Lawrence in writing the book.[129] Justice Hidayatullah concluded that “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 even though Chatterley had literary merit, there was no “social gain” as its serious themes were better developed in other works by the same author.[130] One can only imagine how other judges were expected to exercise their discretion in a similar fashion.
IV. Post-Script
In the two years that Ranjit Udeshi’s petition took to be dismissed by the Supreme Court, a Bill had been tabled in Parliament to amend Section 292 of the Penal Code in line with the Obscene Publications Act of 1959 passed in the U.K. The Bill was referred to Committees,[131] and it was not until 1969 that the Bill was debated and passed into law and Sections 292 and 293 of the Penal Code were amended.[132] The amendments did not carry all the proposed changes, but did explicitly strike at two key components of the appellate courts’ reasoning in Udeshi: the entirety of material had to now be considered, and evidence as to the obscenity of a work was now admissible.[133]
Even though the law had been amended, courts continued to follow the second prong of the Hicklin test which had also been wholeheartedly embraced by Justice Hidayatullah in Udeshi, i.e., that the tendency of material to deprave and corrupt the vulnerable in society had to be the anvil to decide its obscenity. It would take almost a full fifty years for the Indian Supreme Court to take a step away from this “tendency” test,[134] only to adopt what was the by now outmoded formulation of Roth instead.[135] Whether courts have demonstrated any consistency over the past decade in applying this relatively liberal formulation is debatable; the Supreme Court recently reversed judgments where the Magistrate Court and High Court had upheld obscenity prosecutions, as the courts had in effect applied the Hicklin approach.[136]
That takes care of the first prong of state power being used to censor obscene works. With respect to the second prong of the federal government exercising power, the Sea Customs Act was repealed and replaced by the Customs Act of 1962 and the latter retained the power to circumscribe imports of obscene publications. The suggestions made during the discussions around banning Chatterley to introduce a commission received further endorsement during the amendments of the obscenity offense[137] but not much is known about whether a commission was instituted. Instead, by all accounts, the power appears to be exercised in a manner remarkably like how it was at the time when Chatterley was pulled from the shelves—a curious mix of old, outdated orders[138] coupled with reactionary decisions not requiring any reasoning which either enforce a ban outright or induce one through threats of prosecution.[139]
Sixty years may have gone by, but it is difficult to contend with any certainty whether provocative works of art or literature caught in the eye of a storm will be treated any differently than Chatterley by the squeamish Indian state machinery.
* Advocate, Delhi High Court. I would like to thank the National Archives of India for enabling research of important archives remotely through its online portal and without a paywall for researchers. I would also like to thank the Editorial Board for their comments, suggestions, and revisions. Lastly, I would like to thank Ms. Nishtha Jindal for her valuable research assistance.
[1] Office of the Commissioner of Police, Greater Bombay, Letter to Home Department, Government of Bombay, Feb. 4, 1960, in Government of India, Ministry of Home Affairs, Political-I Section, File 41/14/59-Poll(I), at 53-54, National Archives of India.
[2] Id. para. 3.
[3] Id.
[4] Id.
[5] Id. paras. 4 & 5.
[6] Id. para. 4. At that time, section 292 of the Indian Penal Code of 1860 read:
Whoever —
- 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
- 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 . . .
shall be punished with imprisonment for either description for a term which may extend to three months, or with fine, or with both.
[7] Id. para. 7. At this point, it appears that the Bombay Police was unaware about the challenge to the Postmaster General’s decision.
[8] Office of the Commissioner of Police, Greater Bombay, Letter, Mar. 26, 1960, in Government of India, Ministry of Home Affairs, Political-I Section, File 41/14/59-Poll(I), at 59-60, National Archives of India; Office of the Commissioner of Police, Greater Bombay, Letter to Home Department, Government of Maharashtra, June 22, 1960, in Government of India, Ministry of Home Affairs, Political-I Section, File 41/14/59-Poll(I), at 66, National Archives of India.
[9] Office of the Additional Inspector-General & Commissioner of Police, Greater Bombay, Letter to Home Department, Government of Maharashtra, June 22, 1960, in Government of India, Ministry of Home Affairs, Political-I Section, File 41/14/59-Poll(I), at 66, National Archives of India.
[10] Court of the Addl. Chief Presidency Magistrate, III Court Esplanade Bombay, Judgment in Case No. 5/P of 1961 titled State of Maharashtra v. Gokuldas Shamji Jerajani & Others, May 30, 1961, in Government of India, Ministry of Home Affairs, Political-I Section, File 41/14/59-Poll(I), at 79-87, National Archives of India.
[11] Id. I could not find any explanation for why the remaining accused persons were not sent for trial. One possible explanation is that they may have pleaded guilty to the charge and been let off with a fine.
[12] Id. at 87.
[13] See, e.g., Vishnu D. Sharma & F. Wooldridge, The Law Relating to Obscene Publications in India, 22 Int’l. & Comp. L.Q. 632 (1973); K. M. Sharma, Obscenity and the Law: The Indian Experience through the American Looking Glass, 8 Hous. L. Rev. 625 (1969); Gautam Bhatia, Offend, Shock, or Disturb 105 (2016).
[14] (1965) 1 S.C.R. 65 (Supreme Court of India, Five Justices’ Bench).
[15] Id.
[16] Government of India, Ministry of Finance (Depart of Revenue), Letter to All Collectors of Customs et al., Apr. 20, 1960, in Government of India, Ministry of Home Affairs, Political-I Section, File 41/14/59-Poll(I), at 61, National Archives of India.
[17] R. N. Misra, Note, Oct. 24, 1959, in Government of India, Ministry of Home Affairs, Political-I Section, File 41/14/59-Poll(I), at 1, National Archives of India.
[18] D. F. Anand, Note, Oct. 24, 1959, in Government of India, Ministry of Home Affairs, Political-I Section, File 41/14/59-Poll(I), at 1, National Archives of India.
[19] 175 F. Supp. 488 (S.D.N.Y. 1959).
[20] See Misra, supra note 17.
[21] 18 U.S.C. § 1461.
[22] Act 6 of 1898.
[23] Indian Post Office Act 1898, § 20.
[24] Sea Customs Act 1878, § 18.
[25] Central Board of Revenue, Letter to Central Book Depot, Allahabad, Aug. 26, 1943, in Government of India, Ministry of Home Affairs, Political-I Section, File 41/14/59-Poll(I), at 37, National Archives of India.
[26] Id.
[27] S. D. Mehra, Note, Oct. 27, 1959, in Government of India, Ministry of Home Affairs, Political-I Section, File 41/14/59-Poll(I), at 2-3, National Archives of India.
[28] S. D. Mehra, Note, Nov. 6, 1959, in Government of India, Ministry of Home Affairs, Political-I Section, File 41/14/59-Poll(I), at 4, National Archives of India.
[29] Gajinder Singh, Note, Nov. 14, 1959, in Government of India, Ministry of Home Affairs, Political-I Section, File 41/14/59-Poll(I), at 4, National Archives of India.
[30] Id. (Pages 131-55, 152-56, 198-207, 243-47, 255-61, 266-69, 288, 330-31, and 353-54 were highlighted by Gajinder Singh.)
[31] Id. para 3.
[32] Sea Customs Act 1878, § 19.
[33] Government of India, Ministry of Finance (Department of Revenue), Notification, Sept. 22, 1956, in Government of India, Ministry of Home Affairs, Political-I Section, File 41/14/59-Poll(I), at 38, National Archives of India.
[34] Letter to Home Department, Government of Bombay, Feb. 17, 1960, in Government of India, Ministry of Home Affairs, Political-I Section, File 41/14/59-Poll(I), at 49, National Archives of India.
[35] Government of India, Ministry of Home Affairs, Political-I Section, File 41/3/59, National Archives of India. Kulkarni was asked to give his opinion on whether any action could be taken specifically to prevent sales and circulation of cheap paperbacks and translated versions of Lolita even after the federal government had decided that the book itself was not obscene. He concluded that it would not be possible to take such action. Memorandum by D. B. Kulkarni, Nov. 17, 1959, in Government of India, Ministry of Home Affairs, Political-I Section, File 41/3/59-Poll(I), at 16, National Archives of India.
[36] Memorandum by D. B. Kulkarni, Mar. 18, 1960, in Government of India, Ministry of Home Affairs, Political-I Section, File 41/14/59-Poll(I), at 11, National Archives of India.
[37] Id. para. 9.
[38] 175 F. Supp. at 488.
[39] See Kulkarni, supra note 36, paras. 5 & 6.
[40] (1868) 3 Q.B. 360.
[41] 354 U.S. 476 (1957).
[42] See Kulkarni, supra note 36, para. 7.
[43] Id. para. 8. The judgment appears to be reported as Judgment in Case No. 1953 (A) 1713 (https://perma.cc/JN49-CYF3).
[44] See Kulkarni, supra note 36, para. 8.
[45] Id.
[46] Id. para. 9.
[47] Ashoke Kumar Sen, a feted Bengali lawyer, was the Minister at the time. The fact of his absence is stated in the Hajarnavis memo but no reasons are given. See R. M. Hajarnavis, Note, Apr. 7 1960, in Government of India, Ministry of Home Affairs, Political-I Section, File 41/14/59-Poll(I), at 17, National Archives of India.
[48] Id.
[49] Id. para. 7 (“Assuming the theme to be portrayal of passionate love and joy which man and woman find in each other’s body, leading to sexual embraces and which finally culminates in a lifelong attachment, my reaction as an order reader to the use of words is that they do not add to the artistic merit but they possibility repel. They almost satisfy Lawrence’s own definition of obscene literature ‘dirt for dirt’s sake.’”).
[50] Id. para. 8.
[51] Id. Curiously enough, just a few months prior to the Chatterley issue, a Magistrate in Delhi had convicted publishers of a pamphlet which contained images of famous temple architecture depicting sexual poses. While it was sought to be raised in Parliament, the Parliamentary Question was ultimately not posed. See Government of India, Ministry of Home Affairs, Political-I Section, File 8/22/59-Poll(I), National Archives of India.
[52] See Hajarnavis, supra note 47, paras. 2-4 (“I venture to suggest, however, that we in the Ministry of Law when asked whether an article is obscene libel, can collect and explain the provisions of law but evaluation of the artistic merit of a book ought to be entrusted to a Committee of persons who form a cross-section of educated society.”).
[53] Id. para. 8.
[54] J. L. Nehru, Note, Apr. 8, 1960, in Government of India, Ministry of Home Affairs, Political-I Section, File 41/14/59-Poll(I), at 19, National Archives of India. Nehru’s opinion was part of a collection of his published works but has not been the subject of much scrutiny barring book reviews of the published works. See A. G. Noorani, Nehru’s Contradictions, Frontline, July 8, 2015 (https://perma.cc/4NSU-KDLC).
[55] Id.
[56] Prime Minister’s Secretariat, Memorandum, June 6, 1959, in Government of India, Ministry of Home Affairs, Political-I Section, File 41/3/59, at 10, National Archives of India. Nehru’s contribution to this decision-making process has not been the subject of much discussion either. For a positive take on his intervention, see Shubhneet Kaushik, When Jawaharlal Nehru Read Lolita to Decide Whether an Obscene Book Should Be Allowed in India, Scroll, June 4, 2022 (https://perma.cc/2QWS-P7FP).
[57] Morarji Desai, Note, May 18, 1959, in Government of India, Ministry of Home Affairs, Political-I Section, File 41/3/59-Poll(I), at 8, National Archives of India.
[58] See id. (“As the matter referred to in this file raised a question of principle, I did not wish to give any opinion till I had read the book. It has not been easy to find time to do so, but I have at last read it.”).
[59] See id. Nehru’s view was that while Lolita may not be obscene under law, it was not a kind of book to be promoted. Steps were taken by his federal government to implement this mandate by issuing regulatory guidance to discourage further imports. When cheap copies of the book flooded the markets in 1960, it prompted an irate Home Minister to direct an inquiry for this failure to faithfully implement the Prime Minister’s directives. See B. N. Datar, Note, Aug. 21, 1961, in Government of India, Ministry of Home Affairs, Political-I Section, File 41/27/61-Poll(I), at 2-6, National Archives of India.
[60] See Desai, supra note 57, para. 2.
[61] See Government of India, Ministry of Finance (Department of Revenue), supra note 16.
[62] Gajinder Singh, Note, Apr. 21, 1960, in Government of India, Ministry of Home Affairs, Political-I Section, File 41/14/59-Poll(I), at 21, National Archives of India; Government of Maharashtra, Letter to Ministry of Home Affairs, Government of India, June 30, 1960, in Government of India, Ministry of Home Affairs, Political-I Section, File 41/14/59-Poll(I), at 65, National Archives of India; Home Secretary, Government of Maharashtra, Telegram to Home Secretary, Government of Maharashtra, Bombay, Nov. 17, 1960, in Government of India, Ministry of Home Affairs, Political-I Section, File 41/14/59-Poll(I), at 69, National Archives of India; Home Department, Government of Maharashtra, Letter to Ministry of Home Affairs, Government of India, Jan. 21, 1961, in Government of India, Ministry of Home Affairs, Political-I Section, File 41/14/59-Poll(I), at 72, National Archives of India.
[63] Lok Sabha Debates, Twelfth Session, 3754 (Dec. 2, 1960).
[64] Id.; Ban to Stay: Lady Chatterley’s Lover, The Times of India, Nov. 30, 1960, at 11 (reporting on the Response to the Parliamentary Question). Reporting of the government’s call to ban the book prompted editorials condemning the haphazard process by which these decisions were made. See Obscenity?, The Times of India, Dec. 5, 1960, at 6.
[65] Ministry of Home Affairs, Government of India, Letter to All State Governments (except Maharashtra) and Union Territories, Mar. 3, 1962, in Government of India, Ministry of Home Affairs, Political-I Section, File 41/14/59-Poll(I), at 102, National Archives of India.
[66] D. P. Anand, Note, May 16, 1959, in Government of India, Ministry of Home Affairs, Political-I Section, File 41/3/59, at 6-7, National Archives of India.
[67] Id. para. 3.
[68] See Office of the Commissioner of Police, Greater Bombay, supra note 1.
[69] See supra note 6 (quoting the provision in full).
[70] 20 & 21 Vict. c. 83.
[71] Amendments were enacted by way of Act 7 of 1925.
[72] For a discussion on the law till the 1960s, see Sharma & Wooldridge, supra note 13; Sharma, supra note 13.
[73] (1868) 3 Q.B. 360.
[74] Sharma & Wooldridge, supra note 13, at 636.
[75] 354 U.S. at 476.
[76] Obscene Publications Act 1959.
[77] Charles Rembar, End of Obscenity: The Trials of Lady Chatterley, Tropic of Cancer and Fanny Hill 45-58 [1968].
[78] Thomas Grant, Jeremy Hutchinson’s Case Histories 123 (2016).
[79] Id.
[80] In re B. Chandrasekaran, (1957) 2 M.L.J. 559 (Madras High Court, Single Judge Bench) (“It is high time that Sections 292 and 293 of the Indian Penal Code are amended in terms of this “well thought out” Obscene Publications Bill”) (referring to the Bill which ultimately amended the law in England in 1959).
[81] See Kulkarni, supra note 36; Sen, supra note 47.
[82] See Letter dated Nov. 9, 1960 from M. S. Tanksalwalla, The Times of India, Nov. 11, 1960, at 6 (in support of the verdict); Letter dated Nov. 14, 1960 from P. K. Pandit, The Times of India, Nov. 17, 1960, at 8 (aghast at the verdict); Letter dated Nov. 16, 1960 from Dr. I. E .J. David, The Times of India, Nov. 21, 1960, at 6 (replying to Tanksalwalla’s letter); Letter dated Nov. 19, 1960 from Naresh R. Dalal, The Times of India, Nov. 23, 1960, at 6 (replying to Pandit’s letter); Letter dated Nov. 19, 1960 from Diwan Chaman Lall, M.P., The Times of India, Nov. 24, 1960, at 8 (Member of Parliament replying to Pandit’s letter and calling for the government to amend the law); Letter dated Nov. 24, 1960 from C. L. R. Sastri, The Times of India, Nov. 29, 1960, at 8 (in support of the verdict); Letter dated Dec. 12, 1960 from Y. R. Divekar, The Times of India, Dec. 21, 1960, at 6.
[83] Letter dated Nov. 19, 1960 from Diwan Chaman Lall, M.P., The Times of India, Nov. 24, 1960, at 8.
[84] Bookstall Owners Face Trial: Sale of Banned Novel, The Times of India, Jan. 5, 1961, at 8.
[85] Id.
[86] Literary Merit of Banned Book: Evidence Given in Case, The Times of India, Feb. 11, 1961, at 8 [hereinafter Literary Merit of Banned Book].
[87] K. A. Abbas was a celebrated Indian artist predominantly known for his contributions to Indian cinema. He is better known in Indian legal history for having been a petitioner challenging film censorship in India, which led to a lengthy Supreme Court judgment (K. A. Abbas v. Union of India, (1971) 2 S.C.R. 446) which was written by the same Judge who authored the Chatterley verdict. It is perhaps fitting that he had a role to play in the prosecution of Chatterley.
[88] Dr. Mulk Raj Anand was a celebrated Indian writer, perhaps best known at the time for his works Coolie and Untouchable. During the trial he had also written a letter to the Editor of the Times of India defending the book. Letter dated Nov. 30, 1960, from Mulk Raj Anand, The Times of India, Dec. 5, 1960, at 6.
[89] Literary Merit of Banned Book, supra note 86.
[90] Id.
[91] Id.
[92] Id.
[93] See Court of the Addl. Chief Presidency Magistrate, III Court Esplanade Bombay, supra note 10, para. 5
[94] Id. paras. 5-6 (citing R. v. Martin Secker and Warburg, Ltd., (1954) 2 All E.R. 683).
[95] Id. para. 7.
[96] Id. para. 8.
[97] Id. para. 9.
[98] Id. para. 15.
[99] Id. para. 16.
[100] Id.
[101] Id.
[102] Id. para. 18.
[103] Id.
[104] Id. para. 22.
[105] Id.
[106] “Lady Chatterley’s Lover” Obscene, Says Magistrate: Bookstall Owners Fined, The Times of India, May 31, 1961, at 5; The “Lady” Again, The Times of India, June 1, 1961, at 8 [hereinafter The “Lady” Again] (critiquing the judgment as being based on the test in Hicklin); Letter dated May 31, 1961, from Upendra Baxi, The Times of India, June 5, 1961, at 8.
[107] See Court of the Addl. Chief Presidency Magistrate, III Court Esplanade Bombay, supra note 10, para. 24.
[108] Ranjit D. Udeshi v. State of Maharashtra, A.I.R. 1962 Bom. 268 (Bombay High Court, Two Justices’ Bench). Things become peculiar here, because the counsel representing the petitioner was Rajni Patel, a prominent barrister of the time who would have commanded significant fees which proprietors of a small book stall may have been unable to pay. It is possible that the litigation was being bankrolled by other persons, perhaps the importers or the printers. It could well be Jaico Publishing House, which had also written strong letters of protest to the government once word got out of the banning orders. However, no material to support this inference could be found. See “Lady Chatterley’s Lover” Is Obscene, Says High Court, The Times of India, Feb. 7, 1962, at 8; M/s Jaico Publishing House, Letter to Minister of Law, Government of India, Jan. 12, 1961, in Government of India, Ministry of Home Affairs, Political-I Section, File 41/3/59, at 73, National Archives of India.
[109] See Udeshi, A.I.R. 1962 Bom. at 268.
[110] Id. paras. 5 & 7.
[111] Id. para. 7.
[112] Id. para. 15.
[113] Grove Press, Inc. v. Christenberry, 276 F.2d 433 (2d Cir. 1960).
[114] See Udeshi, A.I.R. 1962 Bom. at 268, para. 18.
[115] Id. paras. 18 & 19.
[116] Id. para 11.
[117] See Udeshi, (1965) 1 S.C.R. at 65. Filing petitions before the Supreme Court was expensive. Engaging noteworthy counsel—this time R. K. Garg—to argue the case before the bench even more so. which again prompts the suspicion that there was financial help afforded to the litigants by other persons interested in the outcome.
[118] Art. 145(3), Constitution of India, 1950.
[119] I focus on the obscenity issue. A separate argument specifically aimed to protect the bookseller was also made, arguing that knowledge or intention that the book was obscene was required to prosecute persons stocking or selling such items. This was also rejected by the Supreme Court which approved of strict liability instead.
[120] See Udeshi, (1965) 1 S.C.R. at 68-69.
[121] See The “Lady” Again, supra note 106, at 8.
[122] See Udeshi, (1965) 1 S.C.R. at 69. It was similar to the formulation advocated by Charles Rembar.
[123] Id. at 74.
[124] M. Hidayatullah, Thoughts on Obscenity, 2 So. Ill. U. L.J. 283 (1977).
[125] See Udeshi, (1965) 1 S.C.R. at 76.
[126] Id.
[127] The majoritarianism also affected the court’s treatment of the constitutional issue. It reasoned that the restriction was not to safeguard interests of decency or morality, but public decency, even as the word ‘public’ was absent from the constitution itself. See Bhatia, supra note 13, at 105.
[128] Hidayatullah, supra note 124.
[129] See Udeshi, (1965) 1 S.C.R. at 77-80. A wonderful critique of the decision and the prevailing legal position by a future leading advocate, Ashok H. Desai, was published soon after in The Times of India. See Ashok H. Desai, Obscenity and the Law, The Times of India, Sept. 20, 1964, at 6-7.
[130] Udeshi, (1965) 1 S.C.R. at 81.
[131] Bill No. 17 of 1963 published in Gazette of India, Extraordinary, Apr. 19, 1963, at 365. This Bill was reintroduced in 1967, and referred to a Select Committee, which published its Report in 1969. Lok Sabha Secretariat, Indian Penal Code (Amendment) Bill 1967 (Report of the Select Committee), May 1, 1969.
[132] Act No. 36 of 1969.
[133] The amendments drastically changed the structure of the offense. A new sub-clause (1) was inserted which stated the test of obscenity as follows:
For the purposes of sub-section (2), a book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object, shall be deemed to be obscene if it is lascivious or appeals to the prurient interest or if its effect, or (where it comprises two or more distinct items), the effect of any 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.
The existing exception was replaced and a new clause was inserted:
Exception—This section does not extend to—
- Any book, pamphlet, paper, writing, drawing, painting, representation or figure—
- 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 . . . .
[134] Aveek Sarkar v. State of West Bengal, (2014) 4 S.C.C. 257 (Supreme Court of India, Two Justices’ Bench).
[135] Bhatia, supra note 13.
[136] See Apoorva Arora v. State (Gov’t of N.C.T. of Delhi), 2024 INSC 223 (Supreme Court of India, Two Justices’ Bench).
[137] Select Committee Report (1969).
[138] See, e.g., Gajanan Visheshwar Birjur v. Union of India & Others, (1994) 5 S.C.C. 550 (Supreme Court of India, Two Justices’ Bench).
[139] A good example being the withdrawal of Wendy Doniger’s The Hindus which was never officially banned but the publishers pulped copies after being informed of the likelihood of prosecution for offending religious sentiments. See Alison Flood, Penguin’s Withdrawal of The Hindus Causes International Outcry, The Guardian, Feb. 13, 2014 (https://perma.cc/6EN4-AG4M).
Suggested Citation: Abhinav Sekhri, The “Lady” Again: The Persecution, and Prosecution, of Lady Chatterley’s Lover in India, 1 Mod. Crim. L. Rev. 215 (2025).