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