# AJAY GOSWAMI v. UNION OF INDIA AND ORS

- **Citation:** [2006] Supp. 10 S.C.R. 770
- **Court:** Supreme Court of India
- **Decided:** 2006-12-12
- **Bench:** Dr. Ar. Lakshmanan, Tarun Chatterjee
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ajay-goswami-v-union-of-india-and-ors-21349
- **Pages:** 37

## Headnote

Constitution of India, 1950: Articles 19(J)(a) and 21.
Newspapers-Freedom of speech and expression-Scope, ambit and
C limitation of-Sexually explicit ma.terial-Exposure of minors to-A writ
petition was filed seeking protection to ensure that minors were not exposed
to sexually exploitative materials; whether or not the same is obscene or is
within the law-:'.Prayer made for issue of guidelines to all the newspapers
regarding the matter which may not be suitable for the reading of minors or
D which may require parents' or teachers' discretion-Direction to appoint a
committee to suggest ways and means for regulating the access of minors to
adult oriented sexual, titillating or prurient material was also soughtMaintainability-Held: 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 are already existingE Leading newspapers have an internal regulatory system to ensure that no
objectionable photographs or matters get published-Moreover. it would· be
inappropriate to deprive the adult population of the entertainment which is
well within the acceptable levels of decency on the ground that it may not
be appropriate for the children-Writ petition dismissed-Press Council Act,
F
1978, Ss .. 13 & 14-Penal Code, 1860, S. 292-Jndecent Representation of
Women Act, 1986, Ss. 4 & 6.
G
H
Words & Phrases:
"Obscenif)'''-Meaning of-Explained
The petitioner filed a writ petition seeking protection from this Court
to ensure that minors were not exposed to sexually exploitative materials,
whether or not the same is obscene or is within the law. The petitioner made
the following prayers:-
770
AJAYGOSWAMlv. U.0.1.
771
(a) Guidelines in detail may be issued to all the newspapers regarding A
the matter which may not be suitable for the reading of minors or which may
require parents' or teachers' discretion.
(b) Newspapers should have self regulatory system to access the
publication in view of those guidelines.
(c) The nature and extent of the material having sexual contents should
not be exposed to the minors indiscriminately and without regard to the age
of minors. The discretion in this regard should vest with parents, guardians,
teachers or experts on sex education.
B
(d) A committee be appointed to suggest ways and means for regulating C
the access of minors to adult oriented sexual, titillating or prurient material.
Dismissing the petition, the Court
HELD: 1.1. The prayer No. 1 cannot at all be countenanced inasmuch
as sufficient protection in the form of legislations, rules, regulations and D
norms have already been laid down under the Press Council Act, 1978, Penal
Code, 1860 etc. [793-E)
1.2. Prayer No. 2 equally is vague and no case has been made out for
constituting an Expert Committee. (793-F)
Director General, Directorate General of Doordarshan v. Anand
Patwardhan, JT (2006) 8 SC 255, relied on.
Lakshmikant Pandey v. Union of India, [1984) 2 SCC 244,
Unnikrishnan, J.P. v. State of Andhra Pradesh, [1993) 1 SCC 645,His Holiness
Kesavananda Bharati Sripadagalvaru v. State of Kera/a, (1973) 4 SCC 225, F
Brown v. Board of Education, 347 US 483 (1954), MC. Mehtav. State ofT.N.,
[1996) 6 SCC 756, Comptroller & Auditor General of India v. K.S.
Jaganathan, [1986) 2 SCC 679, Vineet Narain v. UO.J., [1998) 1 SCC 226,
Vishaka v.State of Rajasthan, [1997] 6 SCC 241, Union of India v. Association
for Democratic Reforms, (2002) 5 SCC 294, Shri Chandrakant Kalyandas G
Kakodkar v. State of Maharashtra, (1962) 2 SCC 687, Samaresh Bose v. Amal
Mitra, [1985] 4 SCC 289, Alfred E. Butler v. State of Michigan, I Led 2d 412,
Networking of Rivers: In Re: (2004) 11SCC360 and Common Cause v. Union
of India, [2003) 8 SCC 250, referred to.
2. In view of the availability of sufficient safeguards in terms of various H
772
SUPREME COURT REPORTS (2006] SUPP. IO S.C.R.
A legislations, norms and rules and regulations to protect the society in gen

## Text

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A
AJAY GOSWAMI
v.
UNION OF INDIA AND ORS.
DECEMBER 12, 2006
B
[DR. AR. LAKSHMANAN AND TARUN CHATTERJEE, JJ.]
Constitution of India, 1950: Articles 19(J)(a) and 21.
Newspapers-Freedom of speech and expression-Scope, ambit and
C limitation of-Sexually explicit ma.terial-Exposure of minors to-A writ
petition was filed seeking protection to ensure that minors were not exposed
to sexually exploitative materials; whether or not the same is obscene or is
within the law-:'.Prayer made for issue of guidelines to all the newspapers
regarding the matter which may not be suitable for the reading of minors or
D which may require parents' or teachers' discretion-Direction to appoint a
committee to suggest ways and means for regulating the access of minors to
adult oriented sexual, titillating or prurient material was also soughtMaintainability-Held: 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 are already existingE Leading newspapers have an internal regulatory system to ensure that no
objectionable photographs or matters get published-Moreover. it would· be
inappropriate to deprive the adult population of the entertainment which is
well within the acceptable levels of decency on the ground that it may not
be appropriate for the children-Writ petition dismissed-Press Council Act,
F
1978, Ss .. 13 & 14-Penal Code, 1860, S. 292-Jndecent Representation of
Women Act, 1986, Ss. 4 & 6.
G
H
Words & Phrases:
"Obscenif)'''-Meaning of-Explained
The petitioner filed a writ petition seeking protection from this Court
to ensure that minors were not exposed to sexually exploitative materials,
whether or not the same is obscene or is within the law. The petitioner made
the following prayers:-
770
AJAYGOSWAMlv. U.0.1.
771
(a) Guidelines in detail may be issued to all the newspapers regarding A
the matter which may not be suitable for the reading of minors or which may
require parents' or teachers' discretion.
(b) Newspapers should have self regulatory system to access the
publication in view of those guidelines.
(c) The nature and extent of the material having sexual contents should
not be exposed to the minors indiscriminately and without regard to the age
of minors. The discretion in this regard should vest with parents, guardians,
teachers or experts on sex education.
B
(d) A committee be appointed to suggest ways and means for regulating C
the access of minors to adult oriented sexual, titillating or prurient material.
Dismissing the petition, the Court
HELD: 1.1. The prayer No. 1 cannot at all be countenanced inasmuch
as sufficient protection in the form of legislations, rules, regulations and D
norms have already been laid down under the Press Council Act, 1978, Penal
Code, 1860 etc. [793-E)
1.2. Prayer No. 2 equally is vague and no case has been made out for
constituting an Expert Committee. (793-F)
Director General, Directorate General of Doordarshan v. Anand
Patwardhan, JT (2006) 8 SC 255, relied on.
Lakshmikant Pandey v. Union of India, [1984) 2 SCC 244,
Unnikrishnan, J.P. v. State of Andhra Pradesh, [1993) 1 SCC 645,His Holiness
Kesavananda Bharati Sripadagalvaru v. State of Kera/a, (1973) 4 SCC 225, F
Brown v. Board of Education, 347 US 483 (1954), MC. Mehtav. State ofT.N.,
[1996) 6 SCC 756, Comptroller & Auditor General of India v. K.S.
Jaganathan, [1986) 2 SCC 679, Vineet Narain v. UO.J., [1998) 1 SCC 226,
Vishaka v.State of Rajasthan, [1997] 6 SCC 241, Union of India v. Association
for Democratic Reforms, (2002) 5 SCC 294, Shri Chandrakant Kalyandas G
Kakodkar v. State of Maharashtra, (1962) 2 SCC 687, Samaresh Bose v. Amal
Mitra, [1985] 4 SCC 289, Alfred E. Butler v. State of Michigan, I Led 2d 412,
Networking of Rivers: In Re: (2004) 11SCC360 and Common Cause v. Union
of India, [2003) 8 SCC 250, referred to.
2. In view of the availability of sufficient safeguards in terms of various H
772
SUPREME COURT REPORTS (2006] SUPP. IO S.C.R.
A legislations, norms and rules and regulations to protect the society in general
and children in particular from obscene and prurient contents, the writ at
the instance of the petitioner is not maintainable. [796-B, CJ
Virendra v. State of Punjab, AIR (1967) SC 896, referred to.
B
3.1. In judging whether a particular work is obscene, regard must be
had to contemporary mores and national standards. While this Court held
Lady Chatterley's Lover to be obscene, in England the jury acquitted the
publishers finding that the publication did not fall foul of the obscenity test
This was heralded as a turning point in the fight for literary freedom in U.K.
Perhaps "community mores and standards" played a part in this Court's
C taking a different view from the English jury. The test has become somewhat
outdated in the context of the internet age which has broken down traditional
barriers and made publications from across the globe available with the click
of a mouse. [801-G; 802-A)
D
Director General, Directorate General of Doordarshan v. Anand
Patwardhan, JT (2006) 8 SC 255 and Shri Chandrakant Kalyandas
Kakodkar v. State of Maharashtra, [1962) 2 SCC 687, relied on.
Samaresh Bose v. Amal Mitra, (1985) 4 SCC 289, Alfred E. Butler v.
State of Michigan I Led2d 412, Janet Reno v. American Civil liberties Union,
E 138 Led 2d 874 and United States v. Playboy Entertainment Group, Inc., 146
Led 2d 865, referred to.
3.2. It is necessary that the publication must be judged as a whole and
the impugned passages should also be separately examined so as to judge
whether the impugned passages are so grossly obscene and are likely to
F deprave and corrupt [802-B)
Ranjit D. Udeshi v. State of Maharashtra, AIR 1965 SC and Samaresh
Base v. Amal Mitra, [1985) 4 SCC 289, referred to.
4. Section 14 of the Press Council Act, 1978 empowers the Press
G Council only to warn, admonish or ensure newspapers or news agencies and
that it has no jurisdiction over the electronic media and that the Press Council
enjoys only the authority of declaratory adjudication with its power limited to
giving directions to the answering respondents arraigned before it to publish
particulars relating to its enquiry and adjudication. It, however, has no further
H authority to ensure that its directions are complied with and its observations
1"
AJAY GOSWAMI v. U.0.1.
773
implemented by the erring parties. Lack of punitive powers with the Press A
Council of India has tied its hands in exercising control over the erring
publications. (803-C, D, E)
5. The present scenario provides for a regulatory framework under
which punishment is prescribed for flouting the standards set by the Press
Council of India by newspapers/print media. Further, respondents Nos. 3 and B
4 have a self-regulatory mechanism in place and they have to strictly adhere
to the standards set by the Press Council Act, 1978. According to them, the
advertisement, news articles and photographs are scrutinized by the
advertising department and in the event the advertising department is in doubt,
the assistance of the legal department is resorted to. It is also their case that C
the said departments are manned by qualified persons who are well acquainted
with the Norms and Guidelines issued by the Press Council. It was also
submitted that respondent No. 4, as among others, consistently rejected the
publication of liquor and sexually exploitative advertisements, which may
offend the sensibilities of families and in contravention it was further submitted
that respondent No. 4, keeping in mind, the special educational needs of school D
going children publishes a supplement called "HT Next School Times" every
Monday and respondent No. 4 does not send any supplement to schools other
than "Ht Next School Times" along with the main paper. Further, respondent
No. 4 publishes "HT Next" which is a newspaper positioned mainly for the
youth. This paper too keeps in mind the special needs of the youth of today. E
The market segment of the respondent's paper wishes to cater and caters to
sections of society interested in business and is keen on gathering information
on all fronts of life. It was further submitted that the newspaper intends to
give a holistic perspective of the world to an individual It was submitted that
the respondent's paper has consistently over the last few decades had a large
circulation and consistent increase in its circulation each year has not been F
due to publishing of its supplement "HT City". (803-H; 804-A-E)
6. In view of the foregoing legal propositions, the picture in dispute had
been published by the respondents with the intent to inform readers of the
current entertainment news from around the world and India. The
respondents' newspaper seeks to provide a wholesome reading experience G
offering current affairs, sports, politics as well as entertainment news to keep
its readers abreast of all the latest happenings in the world. The pictures
. that have been published should not be viewed in isolation rather they have to
be read with the news reports next to them. In the event, that a particular
news items or picture offends any person he may avail of the remedies H
774
SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R..
A available to them under the present legal framework. Any steps to impose a
blanket ban on publishing of such photographs would amount to prejudging
the matter. (804-E, F, GI
Fraser v. Evans, (1969) I QB 549, referred to.
B
7.1. The definition of obscenity differs from culture to culture, between
communities within a single culture and also between individuals within.those
communities. Many cultures have produced laws to define what is considered
to be obscene and censorship is often used to try to suppress or control
materials that are obscene under these definitions. (805-A]
C
7.2. The term obscenity is most often used in a legal context to describe
expressions (words, images, actions) that offend the prevalent sexual morality.
On the other hand the Constitution of India guarantees the right of freedom
to speech and expression to every citizen. This right will encompass an
individual to take on any issue. However, this right is not absolute, if such
D speech and exprP.ssion are immensely gross and badly violate the standards
of morality of a society. Therefore, any expression is subject to a reasonable
restriction. Freedom of expression has contributed much to the development
and well being of our free society. (805-B, CJ
8. The right conferred by the Constitution has triggered various issues.
E One of the most controversial issues is balancing the need to protect society
against the potential harm that may flow from obscene material and the need
to ensure respect for freedom of expression and to preserve a free flow of
information and idea. [805-C, DJ
9. Be that as it may, the respondents are leading newspapers in India
F and they have to respect the freedom of speech and expression as is guaranteed
by our constitution and in fact reaches out to its readers in a responsible and
decent manner. Any steps to ban publishing of certain news pieces or pictures
would fetter the independence of free press which is one of the hallmarks of
our democratic setup. It is clearly established that the present petition is liable
G to be dismissed as the petitioner has failed to estabfish the need and
requirement to curtail the freedom of speech and expression. The Times of
India and Hindustan Times are leading newspapers in Delhi having substantial
subscribers from all sections. It is not their intention to publish photographs
which cater to the prurient interest. They have an internal regulatory system
to ensure that no objectionable photographs or matters get published.
H Respondents Nos. 3 & 4 are conscious of their responsibility towards cbildren
....
AJAYGOSWAMiv. U.0.1.
775
but at the same time it would be inappropriate to deprive the adult population A
of the entertainment which is well within tbe acceptable levels of decency on
the ground that it may not be appropriate for the children. An imposition of a
blanket ban on the publication of certain photographs and news items etc.
will lead to a situation where the newspaper will be publishing material which
caters only to children and adolescents and the adults will be deprived of
reading their share of their entertainment which can be permissible under B
the normal norms of decency in any society. (805-E-H; 806-A]
10.1. A culture of'responsible reading' should be inculcated among the
readers of news article. No news item should be viewed or read in isolation.
It is necessary that the publication must be judged as a whole and news items, C
advertisements or passages should not be read without the accompanying
message that is purported to be conveyed to the public. Also the members of
the public and readers should not look for meanings in a picture or written
article, which is not conceived to be conveyed through the picture or the news
item. (806-B, CJ
10.2. Therefore, in the present matter, the petitioner has failed to
establish his case clearly. The petitioner only states that the pictures and the
news items that are published by respondents Nos. 3 and 4 'leave much for
the thoughts of minors'. (806-D, E)
D
United States v. Playboy Entertainment Group, Inc. 146 Led 2d 865, E
referred to.
11. Fertile imagination of anybody especially of minors should not be a
matter that should be agitated in the Court of law. In addition,_ it is also held
that news is not limited to Times of India and Hindustan Times. Any
hypersensitive person can subscribe to many other newspapers of his choice,
which might not be against the standards of morality of the concerned person.
F
12. The writ petition is, therefore, dismissed but, however, it is observed
that the request made by the Press Council of India to amend the Section
should be seriously looked into by the Government of India and appropriate G
amendments be made in public interest. (806-G]
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No. 384 of2005.
(Under Article 32 of the Constitution of India.)
H
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SUPREME COURT REPORTS [2006] SUPP. IO S.C.R.
A
Satyendra Kumar and Diwakar Singh for the Petitioner and Ajay GoswamiPetitioner-In-Person.
Harish Chandra, Kiran Bhardwaj, G. Prakash and V.K. Verma with him for
U.O.I.
B
P.H. Parekh, D.P. Mohanty, S. Goel and Rukmini Bobde (P.H. Parekh &
c
D
Co.) for Press Council.
Sanjay Kumar for Respondent No.5.
A.K. Seth, Vineet Seth and Dr. K.C. Aggarwal for Respondent No.6.
Gopal Jain, R.N. Karanjawala, Ruby Singh Ahuja, Simran Brar and Manik
Karanjawala for Respodent No.4.
Vimal Chandra S. Dave, K.V. Mohan, Subramonium Prasad and Dr. Kailash
Chand for the Respondents.
The Judgment of the Court was delivered by
DR. AR. LAKSHMANAN, J. The Petitioner is a lawyer by profession.
Respondent No. I is Union of India, respondent No.2 is a statutory body,
respondent Nos. 3 & 4 are the leading national daily newspapers and
E respondent No.5 & 6 are news agencies.
The present petition involves a substantial question of law and public
importance on the fundamental right of the citizens, regarding the freedom of
speech and expression as enshrined under Article 19(l)(a) of the Constitution
of India.
The petitioner's grievance is that the freedom of speech and
F expression enjoyed by the newspaper industry is not keeping balance with
the protection of children from harmful and disturbing materials. Article
19(1)(a) guarantees freedom of speech and expression of individual as well as
press. It acknowledges that the press is free to express its ideas but on the
same hand, individual also has right to their own space and right not to be
G exposed against their will to other's expressions of ideas and actions.
By way of this petition, 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
H the Child, 1989 and Universal Declaration of Human Rights, to protect the
AJAY GOSWAMI v. U.0.1. [LAKSHMANA~, J.]
777
vulnerable minors from abuse, exploitation and harmful effects of such A
expression.
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 may include:-
(a)
an acceptance of other people's rights to express and receive
certain ideas and actions; and
B
(b) accepting that other people have the right not to be exposed
against their will to one's expression of ideas and actions.
The reciprocal tolerance is further necessary considering the growing
tendency among youngsters and minors in indulging in X-rated jokes, SMS C
and MMS.
We heard Mr. Ajay Goswami, petitioner-in-person and Mr. Harish
Chandra, learned senior counsel, Mr. P.H. Parekh, Mr. San jay Kumar, Mr. A.K.
Seth, Mr. Gopal Jain, Mr. Vimal Chandra, Mr. S. Dave, learned counsel appearing
for the respondents and the entire documents placed before us.
D
The Lawyer Petitioner who appeared in person submitted that he filed
this petition to seek protection from this Court to ensure that minors are not
exposed to sexually exploitative materials, whether or not the same is obscene
or is within the law. The real objective is that the nature and extent of the
material having sexual contents should not be exposed to the minors E
indiscriminately and without regard to the age of minor. The discretion in this
regard should vest with parents, guardians, teachers or experts on sex
education.
The petitioner is not in any way seeking restrain on the freedom of
press or any censorship prior to the publication of article or other material. F
The petitioner is only seeking for the regulation at the receiving end and not
at the source. Whatever is obscene is not protected by any law and there
are numerous avenues for the redressal of grievance for the publication of
any obscene material. However, all sex oriented material are not. always
obscene or even indecent or immoral. The effect of words or written material G
should always judged from the standards of reasonable strong minded, firm
and courageous man i.e. an average adult human being. No attempt has been
made till date to define any yardstick for the minors whose tender minds are
open for being polluted and are like plain state on which any painting can
be drawn.
H
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SUPREME COURT REPORTS (2006) SUPP: 10 S.C.R.
A
l. ls the material in newspaper really harmful for the minors?
These articles etc. may not be obscene within the four corners of law
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. He invited our attention to some of the clippings
B annexed along with the petition. These clipping are only examples and such
examples not only confine to newspapers mentioned herein but is of general
nature. The double meaning jokes cannot in any way leave healthy impact
on the tender minds of the teenagers. The photographs certainly are part of
news from around the world and India. However, the tone and tenor of the
C article as a whole and the way some of the photographs are published and
described may not be. in the interest of the minors. The photographs annexed
at page 24 of the paper book and the caption below them such as "the center
of attention", "double jeopardy" "butt of course" leave much for the thoughts
of minors. If the minor is of an age where he/she cannot understand the
meaning, he/she would like to know from others and if the minor has come
D to. an age where he/she is able to understand this would certainly energize
his grey cells in the brain and would titillate him/her. What kind of culture
and message the article titled "moan for more" or "get that zing bag into your
sex life" convey. Is it really necessary for a child to read at a very early stage
the concept of masturbation, ejaculation, penetration etc. as is normally
E discussed by so called sex experts in columns of newspapers. At what age
should we start telling our children where to have sex and how to break their
monotony. News item on MMS clipping is certainly not obscene but do we
really need to show the nude photographs with only small black stripes on
the private parts to our children without even bothering of its effect. In Times
of India dated 1.8.2005 an article titled "Porn In potter VI" was published,
F copy of which is annexed with the petition. The author has tried to read and
suggest sexual messages in these lines. Children who were reading the book
might not have any such inclination. However, after reading newspaper their
mind would certainly wander to an area which the author might not have even
conceived.
G
No doubt, we are not living an era of Gandhari but certainly we have
culture and respect for elders and some decorum and decency towards children.
Undoubtedly, such kind of stuff is available freely on internet, movies; ·
televisions etc. but are the families and the community environment really
ready to accept it in toto or are they passive receiver of the same without any
H control or check. Are these articles really making our children morally healthy?
AJAY GOSWAMI v. U.0.1. [LAKSHMANAN, J.]
779
Moral values should not be allowed to be sacrificed in the guise of social A
change or cultural assimilation.
2. Whether the minors have got any independent right enforceable
under Article 32 of the Constitution?
The right of the minor flows from Article 19(1)(a), Article 21 read with B
Article 39(t) of the Constitution of India and United Nation Convention on
the Rights of the Child. In a recent judgment delivered by this court in the
matter of Director General, Directorate General of Doordarshan & Ors. v.
Anand Patwardhan & Anr., (C.A.No. 613 of 2005), to which one of us was
a member, Dr. Justice AR. Lakshmanan, observed as under:
" .. one of the most controversial issue is balancing the need to protect
society against the potential hann that may flow from obscene material,
and the need to ensure respect for freedom of expression and to
preserve a free flow of infonnation and idea."
It was further observed by this Court :
" ..... The Indian Penal Code on obscenity grew out of the English Law,
which made court the guardian of public morals. It is important that
where bodies exercise discretion, which may interfere in the enjoyment
of constitutional rights, that discretion must be subject to adequate
law."
" ....... The judge should thereafter 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."
It was observed by this Court in the matter of Lakshmikant Pandey v.
Union of India, [1984] 2 SCC 244 as follows:
c
D
E
F
"It is obvious that in a civilized society the importance of child welfare
cannot be over-emphasized, because the welfare of the entire
community, its growth and development, depend on the health and G
well-being of its children. Children are a "supremely important national
asset" and the future well being of the nation depends on how its
children grow and develop. The great poet Milton put it admirably
when he said: "Child shows the man as morning shows the day" and
the Study Team on Social Welfare said much to the same effect when H
A
B
c
·n
E
F
G
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SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.
it observed that "the physical and mental health of the nation is
detennined largely by the manner in which it is shaped in the early
stages". The child is a soul with a being, a nature and capacities of
its own, who must be helped to find them, to grow into their maturity,
into fullness of physical and vital energy and the utmost breadth,
depth and height of its emotional, intellectual and spiritual being;
otherwise there cannot be a healthy growth of the nation. Now
obviously children need special protection because of their tender age
and physique mental immaturity and incapacity to look-after
themselves. That is why there is a growing realisation in every part
of the globe that children must be brought up in an atmosphere of
love and affection and under the tender care and attention of parents
so that they may be able to attain full emotional, intellectual and
spiritual stability and maturity and acquire self-confidence and selfrespect and a balanced view oflife with full appreciation and realisation
of the role which they have to play in the nation building process
without which the nation cannot develop and attain real prosperity
because a large segment of the society would then be left out of the
developmental process. In India this consciousness is reflected in the
provisions enacted in the Constitution. Clause (3) of Article 15 enables
the State to make special provisions inter alia for children and Article
24 provides that no child below the age of fourteen years shall be
employed to work in any factory or mine or engaged in any other
hazardous employment. Clauses (e) and (f) of Article 39 provide that
the State shall direct its policy towards securing inter a/ia that the
tender age of children is not abused, that citizens are not forced by
economic necessity to enter avocations unsuited to their age and
strength and that children are given facility to develop in a healthy
manner and in conditions of freedom and dignity and that childhood
and· youth are protected against exploitation and against moral and
material abandonment. These constitutional provisions reflect the great
anxiety of the constitution makers to protect and safeguard the interest
and welfare of children in the country. The Government of India has
also in pursuance of these constitutional provisions evolved a National
Policy for the Welfare of Children. This Policy starts with a goaloriented perambulatory introduction:
The nation's children are a supremely important asset. Their nurture
and solicitude are our responsibility. Children's programme should
H
find a prominent part in our national plans for the development of
•'
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AJAY GOSWAMI v. U.0.1. [LAKSHMANAN, J. ]
781
human resources, so that our children grow up to become robust A
citizens, physically fit, mentally alert and morally healthy, endowed
with the skills and motivations needed by society. Equal opportunities
for development to all children during the period of growth should be
our aim, for this would serve our larger purpose of reducing inequality
and ensuring social justice.
B
The National Policy sets out the measures which the Government
of India proposes to adopt towards attainment of the objectives set
out in the perambulatory introduction and they include measures
designed to protect children against neglect, cruelty and exploitation
and to strengthen family ties "so that full potentialities of growth of C
children are realised within the normal family neighbourhood and
community environment... ... "
Further this Court in Unnikrishnan, J.P & Ors. v. State of Andhra Pradesh
& Ors., [ 1993] 1 SCC 645 upheld the right to education for children of age of
14 as fundamental right. In para 165, this Court observed as follows:
D
"It is thus well established by the decisions of this Court that the
provisions of Parts III and IV are supplementary and complementary
to each other and that Fundamental Rights are but a means to achieve
the goal indicated in Part-IV. It is also held that the fundamental
Rights must be construed in the light of the Directive Principles. It is E
from the above stand-point that Question No. l has to be approached".
This judgment to that extent was not overruled even by larger Bench.
This Court in the case of Unnikrishnan (supra) relied upon numerous
judgments.
In His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kera/a
& Anr., [ 1973] 4 SCC 225, this court observed as follows:
F
" ..... The fundamental rights and the directive principles constitute the
'conscience' of our Constitution .... To ignore Part IV is to ignore the
sustenance provided for in the Constitution, the hopes held out to the G
Nation and the very ideals on which our Constitution is buil....there
is no anti-thesis between the fundamental rights and the directive
principles. One supplements the other.
" ..... Both Parts III and IV ..... have to be balanced and harmonized,
then alone the dignity of the individual can be achieved .... "They H
782
SUPREME COURT REPORTS (2006) SUPP. 10 S.C.R.
A
(fundamental rights and directive principles) were meant to supplement
each other.
B
c
D
E
F
G
H
Mathew, J. while adopting the same approach remarked: (SCC pp.
875-76, para 1700)
The object of the people in establishing the Constitution was to
promote justice, social and economic, liberty and equality. The modus
operandi to achieve these objectives is set out in Part III and IV of
the Constitution. Both parts III and IV enumerate certain moral rights.
Each of these parts represent in the main the statements in one sense
of certain aspirations whose fulfillment was regarded as essential to
the kind of society which the Constitution- makers wanted to build.
Many of the articles, whether in Part III or IV, represents moral rights
which they have recognized as inherent in every human being in this
country. The tasks of protecting and realizing these rights is imposed
upon all organs of the state, namely, legislative, executive and judicial.
What then is the importance to be attached to the fact that the
provisions of Part III are enforceable in a court and the provisions in
Part IV are not? Is it that the rights reflected in the provisions of Part
III are somehow superior to the moral claims and aspirations reflected
in the provisions of Part IV or not? I think not. Free and compulsory
education under Article 25, Freedom from starvation is as important
as right to life. Nor are the provisions in Part III absolute in the sense
that the rights represented by them can always be given full
implementation .... "
This Court also cited observation in Brown v. Board of Education, 347
US 483 (1954) wherein "it was emphasized in the following words:
" .... Today, education is perhaps the most important function of State
and a local government... It is required in the performance of our most
basic responsibilities, even service in the armed forces. It is the very
foundation of good citizenship. Today, it is the principal instrument
in awakening the child to cultural values, in preparing him for later
professional training, and in helping him to adjust normally to his
environment. In these days, it is doubtful any child may reasonably
be expected to succeed in life if he is denied the opportunity of •.
education."
This Court in the case of M.C. Mehta v. State ofT.N. and Ors., [1996]
AJAY GOSWAMI v. U.0.1. [LAKSHMANAN, J.]
783
6 sec 756 observed that:
"Of the aforesaid provisions, the one finding place in Article 24 has
been a fundamental right ever since 28th January, 1950. Article 45 too
has been raised to high pedestal by Unni Krishnan, which was decided
A
on 4th February, 1993. Though other articles are part of directive
principles, they are fundamental in the governance of our country and B
it is the duty of all the organs of the State (a la Article 37) to apply
these principles. Judiciary, being also one of the three principal organs
of the State, has to keep the same in mind when called upon to decide
matters of great public importance. Abolition of child labour is definitely
a matter of great public concern and significance.
C
It would be apposite to apprise ourselves also about our
commitment to world. community. For the case at hand it would be
enough to note that India has accepted the convention on the Rights
of the Child, which was concluded by the UN General Assembly on
20th November, 1989. This Convention affirms that children's right. D
require special protection and it aims, not only to provide such
protection, but also to ensure the continuous improvement in the
situation of children all over the world, as well as their development
and education in conditions of peace and security. Thus, the
Convention not only protects the child's civil and political right, but
also extends protection to child's economic, social, cultural and E
humanitarian rights."
3. Maintainability of Petition
In view of the above facts and circumstances and legal proposition, Mr.
Ajay Goswami, the petitioner-in-person submitted that:
F
(0
Newspapers are publishing sex oriented material which may not
be obscene otherwise but still caters to prurient interest of the
minor.
(ii)
Minors have got fundamental right under Article 19(l)(a), Article G
21 read with Article 39(t) of the Constitution and United Nation
Convention on the Rights of the Child. As freedom of speech
and expression also includes the expressions of the minors which
need care as the minor due to their tender age and mental
immaturity are not capable of deciding themselves as to what is
H
784
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SUPREME COURT REPORTS [2006) SUPP. 10 S.C.R.
in the interest of their growth.morally & culturally, so that they
can assume their responsibility within the community.
(iii) The right also flows from Article 21 as the right to live shall also
includes right to education as pronounced in the judgments of
this Court. By necessary corollary, it shall also mean right to
proper education which may be decided by the parents, teachers
and other experts and newspapers cannot be allowed to disturb
that by their indeterminately access of the offending article to
the minors regardless of their age.
(iv) The State which has the duty to protect the minors by appropriate
C
legislation or executive orders has failed in its duty. The Press
Council oflndia which was constituted for preserving the freedom
of press and maintaining and improving the standards of
newspapers and news agency is a powerless body. No guidelines
have been framed for the minors and adolescents in particular,
D
E
F
which can be enforced in Court of law. The Council itself feel
t!le necessity of some strong and effective measure to correct
it.
(v) The citizens of this country can only pray to this Court to
prevent injustice being done to them. This Court under Article
32 read with Article 142 can issue guidelines to ensure the
growth of the children in a healthy and moral atmosphere which
is exploited by the newspapers.
Mr. Ajay Goswami relied on two judgments of this Court.
In
Comptroller & Auditor General of India & Anr. v. KS. Jagnathan, [1986] 2
SCC 679, this Court held as under:
" .... .In order to prevent injustice resulting to the concerned parties,
the Court may itself pass an order to give directions which the
government or the public authority should have passed or given had
it properly and lawfully exercised its discretion."
G
Similarly in Vineet Narain & Ors. v. UO.I., (1998) 1 SCC 226, this Gourt
H
held as under:
" ...... There are ample powers conferred by Article 32 read with Article
142 to make orders which have the effect of law by virtue of Article
141 and there is mandate to all authorities to act in aid of the orders
' ,
AJAY.GOSWAMI v. U.0.1. [LAKSHMANAN, J. ]
785
of this Court as provided in Article 144 of the Constitution. In a A
catena of decisions· of this Court, this power has been recognized and
exercised, if need be, by issuing necessary directions to fill the vacuum
till such time the legislature steps in to cover the gap or the executive
discharges its role ....... "
"Where there is inaction by the legislature it is the duty of B
executive to fill the vacuum and where there is inaction even by
executive for whatever reasons judiciary must step in."
Concluding his arguments, Mr. Ajay Goswamy, petitioner-in-person made
the following proposals:
(i)
Guidelines in detail may be issued to all the newspapers regarding
the matter which may not be suitable for the reading of minors
or which may require parents or teachers discretion.
(ii) Newspapers should have self regulatory system to access the
c
publication in view of those guidelines.
D
(iii) In case the newspapers publishe any material which is categorized
in the guidelines the newspaper be packed in some different
form and should convey in bold in front of newspapers of the
existence of such material.
(iv) This would give discretion to the parents to instruct the news E
vendor whether to deliver such newspaper or not.
OR
In the alternative, he suggested a Committee be appointed to suggest
ways and means for regulating the access of minors to adult oriented sexual, F
titilliating or prurient material.
Mr. Harish Chandra, learned senior counsel appearing for Union of
India - respondent No. I in reply to the arguments of the petitioner submitted
that publishing as well as circulating of obscene and nude/semi-nude
photographs of women already constitutes a penal offence under the G
provisions of the Indecent Representation of Women (Prohibition) Act, 1986,
administered by the Department of Women & Child Development, Ministry of
Human Resources Development. Relevant Sections 3 & 4 of the Indecent
Representation of Women (Prohibition) Act, 1986 are reproduced hereunder
for ready reference:
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786
SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.
A
"3. Prohibition of advertisements containing indecent representation
of woman:-
No person shall publish, or cause to be published or
arrange or take part in the publication or exhibition or, any advertisement
which contains indecent representation of women in any form.
B
c
D
E
F
4.
Prohibition of publication or sending by post of books,
pamphlets etc, containing indecent representation of women -
No person shall produce or cause to be produced, sell, let to
hire, distribute or circulate or send by post any book, pamphlet,
paper, slide, film, writing drawing, painting, photographs,.
representation or figure of women in any form, provided that
nothing in this section shall apply to:
(a)
any book, pamphlet, paper, slide, film, writing, drawing,
painting, photograph, representation or figure:-
(i)
the publication of which is proved to be justified as being
for the public good on the ground that such book, pamphlet,
paper, slide, film, writing, drawing, painting, photograph,
representation or figure is in the interest of science, literature,
art or learning or other object of general concern; o~
.:
(ii)
which is kept or used bona fide for religious purposes;
(b) any representation sculptured, engraved, painted or otherwise
represented on or in -
(i)
any ancient monument within the meaning of the Ancient
Monument and Archaeological Sites and Remains Act, 1958
(24of1958)
(ii)
any temple, or on any car used for the conveyance of idols,
or kept or used for any religious purposes;
(c)
any film in respect of which the provisions of Part II of the
Cinematograph Act, 1952 (37of1952), will be applicable."
G
Section 6 of the Indecent Representation of Women (Prohibition) Act,
1986 provides the penalty for committing such offences in contravention of
Sections 3 & 4 of the said Act. Section 6 reads as follows:
"6. Penalty- Any person who contravenes the provisions of Sections
3 & 4 shall be punishable on first conviction with imprisonment of
It
either description for a term which may extend to two years, and with
·-
AJAY GOSWAMI v. U.0.1.