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Concept of obscenity

8. Apart from submitting that the orders passed by all the Courts are absolutely perverse and deserve to be lancinated, it is submitted by Mr. Subramanium, learned senior counsel that to appreciate the question framed by this Court, despite his reservation on the legal score as regards its phraseology, the meaning of the term “obscenity” has to be appositely understood. He has referred to the Black’s Law Dictionary that defines obscenity as follows:-

“Obscene, adj. (16c) - Extremely offensive under contemporary community standards of morality and decency; grossly repugnant to the generally accepted notions of what is appropriate. Under the Supreme Court's three-part test, material is legally obscene - and therefore not protected under the First Amendment - if, taken as a whole, the material (1) appeals to the prurient interest in sex, as determined by the average person applying contemporary community standards; (2) portrays sexual conduct, as specifically defined by the applicable state law, in a patently offensive way; and (3) lacks serious literary, artistic, political, or scientific value. Miller v. Callifornia, 413 U.S. 15, 93 S.Ct. 2607 (1973).
“We hold that obscenity is not within the area of constitutionally protected speech or press.”
20. In Memoirs v. Masachusetts11, while explaining the term ‘obscenity’, the Court referred to the Roth (supra) and stated thus:-
“3. We defined obscenity in Roth in the following terms:
“[W]hether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.” Under this definition, as elaborated in subsequent cases, three elements must coalesce: it must be established that
(a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is

11 383 U.S. 413 (1966) patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.” After so stating, the U.S. Supreme Court proceeded to consider whether the book in question could be stated to be truly without social importance. Thus, there was no departure from the redeeming social importance test, but it also introduced “contemporary community standards” test.

25. Under a National Constitution, fundamental First Amendment limitations on the powers of the States do not vary from community to community, but this does not mean that there are, or should or can be, fixed, uniform national standards of precisely what appeals to the 'prurient interest' or is 'patently offensive.' These are essentially questions of fact, and our Nation is simply too big and too diverse for this Court to reasonably expect that such standards could be articulated for all 50 States in a single formulation, even assuming the prerequisite consensus exists. When triers of fact are asked to decide whether 'the average person, applying contemporary community standards' would consider certain materials 'prurient,' it would be unrealistic to require that the answer be based on some abstract formulation. The adversary system, with lay jurors as the usual ultimate factfinders in criminal prosecutions, has historically permitted triers of fact to draw on the standards of their community, guided always by limiting instructions on the law. To require a State to structure obscenity proceedings around evidence of a national 'community standard' would be an exercise in futility.”