CLATalogue Legal Reasoning Test Series Paper 3

CLATalogue Legal Reasoning Test Series Paper 3

Passage 1

Source: (https://indiankanoon.org/doc/113334597/)

Speaking in terms of the Constitution it can hardly be claimed that obscenity which is offensive to modesty or decency is within the constitutional protection given to free speech or expression, because the article dealing with the right itself excludes it. That cherished right on which our democracy rests is meant for the expression of free opinions to change political or social conditions or for the advancement of human knowledge. This freedom is subject to reasonable restrictions which may be thought necessary in the interest of the general public and one such is the interest of public decency and morality. Section 292 of the Indian Penal Code manifestly embodies such a restriction because the law against obscenity, of course, correctly understood and applied, seeks no more than to promote public decency and morality. The word obscenity is really not vague because it is a word which is well understood even if persons differ in their attitude to what is obscene and what is not. Condemnation of obscenity depends as much more upon​​ the people as upon the individual. It is always a question of degree or as the lawyers are accustomed to say, of where the line is to be drawn. It is, however, clear that obscenity by itself has extremely poor value in the propagation of ideas, opinions and information of public interest or profit. When there is propagation of ideas, opinions and photographs collected in book form without the medical text would may become different because then the interest of society may tilt the scales in favour of free speech and expression. It is thus that books on medical science with intimate illustrations and photographs, though in a sense immodest, are not considered to be obscene but the same illustrations and photographs collected in book form without the medical text would certainly be considered to be obscene. Section 292 of the Indian Penal Code deals with obscenity in this sense and cannot thus be said to be invalid in view of the second clause of Article 19. This is where the law comes in. The law seeks to protect not those who can protect themselves but those whose prurient minds take delight and secret sexual pleasure from erotic writings. No doubt this is treating with sex by an artist and hence there is some poetry even in the ugliness of sex. But as Judge Hand said obscenity is a function of many variables. If by a series of descriptions of sexual encounters described in language which cannot be more candid, some social good might result to us there would be room for considering the book. But there is no other attraction in the book. As, J.B. Priestley said, “Very foolishly he tried to philosophize upon instead of merely describing these orgiastic impulses: he is the poet of a world in rut, and lately he has become its prophet, with unfortunate results in his fiction.​​ The concept of obscenity is moulded to a very great extent by the social outlook of the people who are generally expected to read the book. It is beyond dispute that the concept of obscenity usually differs from country to country depending on the standards of morality of contemporary society in different countries.

Questions

  • An object is obscene or not shall be determined in reference to:

  • Indivisuals

  • General public

  • Government

  • Both a and b

Ans. b

  • Pictures of private parts of human body contained in a book explaining the functioning of a human body shall be considered obscene or not?

  • Yes, propagating idea of sex through pictures is considered as obscene

  • No, government has allowed such books

  • Yes, it is available in public and will ruin the mentality of public

  • No, the pictures are used to explain medical illustrations

Ans. d

  • Section 292 IPC and Article 19 are contrary to​​ each other. Decide

  • Yes

  • No

  • Partially​​ 

  • None of the above

Ans. b

  • What is the spirit of constitutional freedom of speech and expression guaranteed by Article 19?

  • Advancement of human knowledge

  • Promotion of equality

  • Discourage discrimination

  • Spread awareness

Ans. a

  • A book discussing teenage love story was published in New York with an intention to hit American reading market. An Indian student went to an exchange programme and brought with him 5 copies of the book and distributed it to his friends. The parents of one such friend sued the author of the book in Indian Court of Law for publishing obscene content. Decide

  • Author shall be punished as what is considered obscene at one place, shall be considered obscene at every other place

  • Author shall be punished he could foresee that his book will reach to Indian market

  • Author shall not be punished as the book was intended only for American market where the society does not consider the book as obscene

  • Author shall not be punished because Indian Courts do not have power to punish him

Ans. c

Rationale

  • ‘Condemnation of obscenity depends as much more upon the people as upon the individual’. This line clear suggests that an object is obscene or not shall be determined shall be determined by people as a whole and not individuals

  • ‘When there is propagation of ideas, opinions and photographs collected in book form without the medical text would may become different because then the interest of society may tilt the scales in favour of free speech and expression. It is thus that books on medical science with intimate illustrations and photographs, though in a sense immodest, are not considered to be obscene’. The books which use pictures of sexual organs for explaining medical procedures are not considered as obscene.

  • ‘Section 292 of the Indian Penal Code deals with obscenity in this sense and cannot thus be said to be invalid in view of the second clause of Article 19’. It clearly indicates that Section 292 IPC and Article 19 are given a harmonious construction.

  • ‘Cherished right on which our democracy rests is meant for the expression of free opinions to change political or social conditions or for the advancement of human knowledge’. This clearly suggests that the spirit behind constitutional freedom of speech and expression guaranteed by Article 19 is advancement of human knowledge

  • ‘The concept of obscenity is moulded to a very great extent by the social outlook of the people who are generally expected to read the book. It is beyond dispute that the concept of obscenity usually differs from country to country depending on the standards of morality of contemporary society in different countries.’ Whether a text is obscene or not shall be judged by the people who are generally expected to read the book. Thus the author shall not be liable.

Passage 2

Source: (https://indiankanoon.org/doc/113334597/)

Dealing in a commodity which is governed by a statute cannot be said to be inherently noxious and pernicious. A society​​ cannot condemn a business nor there​​ exist​​ a presumption in this behalf if such business is permitted to be carried out under statutory enactments made by the legislature competent​​ therefore. The legislature being the final arbiter as to the morality or otherwise of the civilised society has also to state as to business in which article(s) would be criminal in nature. The society will have no say in the matter. The society might have a say in the matter which could have been considered in a court of law only under common-law right and not when the rights and obligations flow out of statutes operating in the field. Health, safety and welfare of the general public may again be a matter for the legislature to define and prohibit or regulate by legislative enactments. Regulatory statutes are enacted in conformity with clause (6) of Article 19 of the Constitution to deal with those trades also which are inherently noxious and pernicious in nature; and furthermore, thereby sufficient measures are to be taken in relation to health, safety and welfare of the general public. The courts while interpreting a statute would not take recourse to such interpretation whereby a person can be said to have committed a crime although the same is not a crime in terms of the statutory enactment. Whether dealing in a commodity by a person constitutes a crime or not can only be the subject-matter of a statutory enactment.​​ There can be no doubt that privacy-dignity claims deserve to be examined with care and to be denied only when an​​ important countervailing interest is shown to be superior. If the Court does find that a claimed right is entitled to protection as a fundamental privacy right, a law infringing it must satisfy the compelling State interest test. Then the question would be whether a State interest is of such paramount importance as would justify an infringement of the right. Obviously, if the enforcement of morality were held to be a compelling as well as a permissible State interest, the characterization of a claimed right as a fundamental privacy right would be of far less significance. It needs to be borne in mind that there may be certain activities which the society perceives as immoral per se. It may include gambling (though that is also becoming a debatable issue now), prostitution etc. It is also to be noted that standards of morality in a society change with the passage of time. A particular activity, which was treated as immoral few decades ago may not be so now. Societal norms keep changing. Social change is of two types: continuous or evolutionary and discontinuous or revolutionary. The most common form of change is continuous. This day-to-day incremental change is a subtle, but dynamic, factor in social analysis.​​ A practice which may not be immoral by societal standards cannot be thrusted upon the society as immoral by the State with its own notion of morality and thereby exercise ‘social control’.

Questions

  • An act shall be considered as an offence or not shall be determined by?

  • Courts

  • Legislature

  • Both a and b

  • None of the above

Ans. b

  • What is the most common form of social change?

  • Changes every month

  • Changes every year

  • Changes every week

  • Changes every day

Ans. d

  • Which kind of trades should be set up in conformation with Article 19(6) of the constitution?

  • Social

  • Noxious

  • Profitable

  • Charitable

Ans. b

  • The right claimed is entitled to protection as a fundamental privacy right only if it passes State interest test. This implies:

  • Interest of State is paramount always

  • Individual interest is paramount always

  • If the individual interest does not affect the State interest at large then it should be granted.

  • Individual interest and State interest should always be on an equal footing

Ans. c

  • NGO for children moves to the court​​ condemning​​ the business of A​​ who makes toy guns on the ground that it is noxious to children’s mental health as it will encourage them in future to use actual guns and do criminal activities. The court on this application passes an order to close the manufacturing to toy gun at A’s factory. Decide

  • The court was right in its action as it was harmful for children’s future

  • The court was right in its action as it has the power to decide what all can be manufactured in the country

  • The court was not right in its action as NGO was not representing any particular child and its case was vague

  • The court was not right in its action as it is the responsibility of legislature to enact rules for manufacture and on the presumption of NGO court cannot pass such order.

Ans. d

Rationale

  • ‘The courts while interpreting a statute would not take recourse to such interpretation whereby a person can be said to have committed a crime although the same is not a crime in terms of the statutory enactment’. This line clearly suggests that court can only interpret the law made by the legislature and not create it independently.

  • ‘The most common form of change is continuous. This day-to-day incremental change is a subtle, but dynamic, factor in social analysis.’ It clearly suggests the most common change is which occurs continuously i.e. day to day.

  • ‘Regulatory statutes are enacted in conformity with clause (6) of Article 19 of the Constitution to deal with those trades also which are inherently noxious and pernicious in nature’. Trades of noxious and pernicious nature should be set up in conformation with Article 19(6) of the constitution.

  • ‘If the Court does find that a claimed right is entitled to protection as a fundamental privacy right, a law infringing it must satisfy the compelling State interest test. Then the question would be whether a State interest is of such paramount importance as would justify an infringement of the right. Obviously, if the enforcement of morality were held to be a compelling as well as a permissible State interest, the characterization of a claimed right as a fundamental privacy right would be of far less significance’. These lines implicate that individual interest shall only be entertained if the larger interest of the State is not affected by it.

  • ‘Dealing in a commodity which is governed by a statute cannot be said to be inherently noxious and pernicious. A society cannot condemn a business nor there exist a presumption in this behalf if such business is permitted to be carried out under statutory enactments made by the legislature competent therefore. The legislature being the final arbiter as to the morality or otherwise of the civilised society has also to state as to business in which article(s) would be criminal in nature. The society will have no say in the matter’. This clearly suggests that merely on the presumption that business is noxious court cannot shut it down. It shall be decided by the legislature.

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