MOKGORO J
definition of obscenity, based upon effect of passages upon most susceptible persons 56, holding
that such test “might well encompass material legitimately treating with sex.” However, the Court
held that obscenity as a category of speech was not deserving of constitutional protection since it
is “utterly without redeeming social importance”.57 The test for pornography was set down as
“whether to the average person, applying contemporary community standards, the dominant theme
of the material taken as a whole appeals to the prurient interest”.58
However, the Court was
careful to note that:
[S]ex and obscenity are not synonymous . . . The portrayal of sex, e.g., in art, literature, and
scientific works, is not itself sufficient reason to deny material the constitutional protection of
freedom of speech and press. . . . [I]t is therefore vital that the standards for judging obscenity
safeguard the protection of freedom of speech and press for material which does not treat sex
in a manner appealing to prurient interest.” 59
[39]
The Roth test proved difficult to apply, and a period of considerable uncertainty followed,
during which the Supreme Court adopted a practice of per curiam reversal of convictions for the
sale or distribution of materials that at least five members of the court, applying various tests,
judged not to be obscene.60 In Miller v California, the Court laid down what has become the
56
The test laid down in Regina v Hicklin (1868) L.R. 3 Q.B. 360, 371 had been widely adopted by American courts.
The Hicklin test was adopted also by the Indian High Court. In Ranjit D. Udeshi v Maharashtra, 1 S.C.R. 65,
(1965) A.S.C. 881, the Court applied the Hicklin test to uphold the conviction of the accused for possession of
a copy of D.H. Lawrence’s Lady Chatterley’s Lover for purpose of sale. The court held that application of the
Hicklin test appropriately effectuated the limitation of freedom of speech contemplated by the words “decency
or morality” in article 19(2) of the Indian Constitution. Hidayatullah J. noted that the protagonist gamekeeper’s
vocabulary was not “genteel”: “[h]e knew no Latin which could be used to appease the censors.” Id. 78. Moreover,
the work’s sociological message, he held, “does not interest the reader for whose protection . . . the [obscenity]
law has been framed.” Id. 80.
57
Roth, 354 U.S. at 484.
58
Roth, 354 U.S. at 489.
59
Roth, 354 U.S. at 487-88.
60
See, e.g., Walker v Ohio, 398 U.S. 434 (1970).
21
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