2006 Supreme(SC) 1282

2006(9) Supreme 458
SUPREME COURT OF INDIA
(Under Art. 32 of the Constutution of India)
Dr. AR. Lakshmanan & Tarun Chatterjee, JJ.
Ajay Goswami - Petitioner
versus
Union of India & Ors. - Respondents
Writ Petition (civil) 384 of 2005
Decided on 12-12-2006
Counsel for the Parties :
For the Petitioner Satyendra Kumar and Diwakar Singh, Advocates and Ajay Goswami–Petitioner-In-Person.
For the U.O.I. : Harish Chandra, Sr. Advocate, Mrs. Kiran Bhardwaj, G. Prakash and V.K. Verma, Advocates.
For the Press Counsel : P.H. Parekh, D.P. Mohanty, S. Goel and Ms. Rukmini Bobde (for M/s. P.H. Parekh & Co.), Advocates.
For the Respondent No. 5 : Sanjay Kumar, Advocate.
For the Respondent No. 6 : A.K. Seth, Vineet Seth and Dr. K.C. Aggarwal, Advocates.
For the Respondent No. 4 : Gopal Jain, R.N. Karanjawala, Ms. Ruby Singh Ahuja, Ms. Simran Brar and Mrs. Manik Karanjawala, Advocates.
For the Respondents : Vimal Chandra S. Dave, K.V. Mohan, Subramonium Prasad and Dr. Kailash Chand, Advocates.

IMPORTANT POINTS
1. In view of sufficient protection in the form of legislations, rules, regulations and norms having already been laid down under the Press Council Act, 1978, I.P.C. etc., there is no need to issue any mandamus
2. Suggestions for amendment in Press Council Act, 1978 should be seriously looked into by the Government of India and appropriate amendments be made in public interest.

Headnote:(i) Constitution of India – Article 19(1)(a), Article 21 read with Article 39(f) and United Nation Convention on the Rights of the Child – The right of the minor flows from these provisions – Allegation that freedom of speech and expression enjoyed by the newspaper industry is not keeping balance with the protection of children from harmful and disturbing materials – Growing tendency among youngsters and minors in indulging in X-rated jokes, SMS and MMS – Such articles etc. in newspapers may not strictly be obscene legally, but certainly have tendencies to deprave and corrupt the minds of young and adolescent who by reasons of their physical and mental immaturity needs special safeguards and care – The judge should place himself in the position of a reader of every age group in whose hands the book is likely to fall and should try to appreciate what kind of possible influence the book is likely to have in the minds of the readers – Children’s’ nurture and solicitude are our responsibility. (Paras 2, 3, 4, 6, and 8 to 10)

       (ii) Constitution of India – Articles 32 r/w 142 – There are ample powers with the Supreme Court to make orders which have the effect of law by virtue of Article 141 – Where there is inaction by the legislature it is the duty of executive to fill the vacuum and where there is inaction even by executive for whatever reasons judiciary must step in (Para 18)

       (iii) Indecent Representation of Women (Prohibition) Act, 1986 – Section 3, 4 and 6, r/w Sections 292 and 293, IPC – publishing as well as circulating of obscene and nude/semi-nude photographs of women already constitutes a penal offence – It is the responsibility of the “Press” not to abuse the freedom of speech and expression (freedom of press) – provisions of IPC prohibit and punish selling, hiring, exhibition, circulation, possession, importation, exportation of obscene material – Petitioner’s prayer for issue of mandamus cannot at all be countenanced inasmuch as sufficient protection in the form of legislations, rules, regulations and norms have already been laid down under the Press Council Act, 1978, I.P.C. etc. (Para 20, 22, 27 and 44)

       (iv) Press Council Act, 1978 – Section 14 – Press Council has been given over member press but it has no authority to ensure that its directions are complied with and its observations implemented by the erring parties – Lack of punitive powers with Press Council has tied its hands in exercising control over the erring publications – amendment by way of incorporation of two provisions viz., Section 14(2)(a) and Section 14(2)(b) suggested – Should be seriously looked into by the Government of India and appropriate amendments be made in public interest. (Para 23, 25 and 72)

       (v) Constitution of India – Article 32 – In view of the availability of sufficient safeguards in terms of various legislations, norms and rules and regulations to protect the society in general and children, in particular, from obscene and prurient contents, the writ is not maintainable – In order for the State to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint – In the present matter, the petitioner has failed to establish his case clearly. (Para 46 and 71)

       (vi) Constitution of India – Articles 19(1)(a) and 19(1)(g) r/w Articles 19(2) and 19(6) – test of obscenity already laid down by Supreme Court – per se nudity is not obscene – Where art and obscenity are mixed, it must be seen whether the artistic, literary or social merit of the work in question outweighs its “obscene” content – The test for judging a work should be that of an ordinary man of common sense and prudence and not an “out of the ordinary or hypersensitive man” – Any steps to impose a blanket ban on publishing of such photographs which offend some persons would amount to prejudging the matter – A culture of ‘responsible reading’ should be inculcated. (Paras 48, 49, 50, 58, 64, 67 and 70)

       Facts of the case:

       (A)The petitioner requested the Court to direct the authorities to strike a reasonable balance between the fundamental right of freedom of speech and expression enjoyed by the press and the duty of the Government, being signatory of United Nations Convention on the Rights of the Child, 1989 and Universal Declaration of Human Rights, to protect the vulnerable minors from abuse, exploitation and harmful effects of such expression.

       (B)The petitioner requested the Court to direct the concerned authorities to provide for classification or introduction of a regulatory system for facilitating climate of reciprocal tolerance which is further necessary considering the growing tendency among youngsters and minors in indulging in X-rated jokes, SMS and MMS.

       (C)Findings of the Court: Moral values should not be allowed to be sacrificed in the guise of social change or cultural assimilation.

       (D)Prayer for issue of mandamus cannot at all be countenanced inasmuch as sufficient protection in the form of legislations, rules, regulations and norms have already been laid down under the Press Council Act, 1978, I.P.C. etc.

       (E)Suggestions for amendment in Press Council Act, 1978 should be seriously looked into by the Government of India and appropriate amendments be made in public interest.