The unexpurgated edition of Lady Chatterley’s Lover by D H Lawrence might well hold the distinction of having spurred reforms around obscenity laws around the globe. In India, it was the subject of the Supreme Court’s first judgment on whether obscenity came within the contours of the “decency or morality” restriction to the fundamental freedom of speech.
My concern here is not the Supreme Court’s 1964 judgment in Ranjit D Udeshi v State of Maharashtra, or the finer points in the 1969 amendments to Section 292 of the now-repealed IPC (retained in Section 294 of the BNS). Rather, it is the story of the “prosecution” of Lady Chatterley’s Lover in India that features bogus purchasers to trap booksellers, literature-review styled judicial orders and decisive interventions by PM Jawaharlal Nehru himself.
With a note dated October 24, 1959, R N Misra forwarded two copies of the unexpurgated editions “available at several bookshops…in Connaught Circus” to a colleague at the Directorate of Inspection, Customs. The colleague replied that their department should “urgently” consult the Ministry of Home Affairs (MHA), a part of conventions on placing import bans on books or pamphlets.
The Customs ban
There was a ban in place already since 1943, but the Customs Department still referred the matter to the Home Ministry. Not because of monumental changes in Indian law during the interregnum, but because courts in the US had ruled in favour of Chatterley since. The Constitution found no mention in the dismissive notes by the MHA Under Secretary either who, with extreme reluctance, passed the file on to the Law Ministry on November 17, 1959.
It landed on the desk of Deputy Law Adviser D B Kulkarni, who issued a six-page memo on March 18, 1960, concluding that the book was obscene, a view “in consonance with our heritage, traditions, and the prevailing standards of our community”. The note was approved by the Law Secretary and the file reached Deputy Minister R M Hajarnavis who, in a memo dated April 7, struck a dissenting note. He referred to Khajurao, UK law and Penguin Books’ victory in its trial for publishing Chatterley in November 1959, but not the Constitution. Since the Law Minister was away, he sent the papers to PM Nehru.
This was Nehru’s second high-stakes intervention in a year to decide the fate of a controversial novel for Indian readers, the first being Vladimir Nabokov’s Lolita. Nehru’s two-paragraph memo dated April 8, 1960, says, “I am clear that this book Lady Chatterley’s Lover should be banned. In case our order is challenged in a court of law, the matter can be faced.” He was probably aware that a court would soon decide whether the unexpurgated Chatterley was obscene.
The criminal case
On December 12, 1959, bogus customers with marked money were sent by Bombay Police CID to ‘Causeway Book Stall’ and ‘Happy Book Stall’ with instructions to purchase copies of the unexpurgated Chatterley. Once buyers struck the deal, the police stormed the shops and seized the novels. Those on the spot, and the distributor, were arrested. After the raid, seven persons were sent for trial in April 1960. At some point, the seven shrunk to four. The prosecution simply exhibited 35 passages flagged as obscene as evidence, while the defence sought to demonstrate the book’s literary merit by calling upon celebrity witnesses like screenwriter K A Abbas and author Mulk Raj Anand. On May 31, 1961, the court pronounced the four accused guilty.
The judgment was far from a ringing endorsement of the antiquated Hicklin test, which the prosecution built its case upon, under which merely flagging certain passages as having a “tendency” to corrupt the vulnerable in society could spell doom for a book. Rather, what was obscene was the overall theme of Chatterley, which venerated adultery and struck “at the very roots of the institution of marriage”, and was in “direct conflict with the ideals of Indian womanhood, which are based on devotion, love and sacrifice”. Its impact on society would be devastating, and to think that this book was there at a “modest little book stall at Colaba Causeway” simply would not do.
Though the Magistrate imposed a token fine of Rs 20 on the convicts, they filed a revision plea before the Bombay HC. On February 6, 1962, a Division Bench dismissed the plea, taking a very different view of the law. It doubled down on the Hicklin formulation, using it to distinguish Indian law from the progressive verdicts recently delivered in the US, where bans on Chatterley had been lifted. While this meant that the HC was satisfied with obscene passages and did not deal much with the book’s theme to conclude that it was obscene, it did join the issue with the Magistrate about how the unexpurgated Chatterley might impact Indian women.
The Supreme Court’s 1964 judgment in Udeshi’s appeal, one of the convicted proprietors of Happy Book Stall, was perhaps the only time that the constitutional issues posed by Chatterley’s censorship appear at the forefront in this story. By assailing the constitutional validity of Section 292 IPC, the case reached the Supreme Court’s Constitution Bench. Udeshi contended that while the penal provision may be a valid restriction on the freedom of speech, its application using the Hicklin approach took it outside the scope of permissible limits upon speech. Justice Hidayatullah disagreed and one may read scholarly works to grasp the legal nuances of his interesting verdict.
Parting thoughts
Writing about Penguin’s trial for publishing the unexpurgated Chatterley, Thomas Grant shows how small details made a difference. That Penguin itself courted prosecution was crucial. Unlike cases where booksellers were successfully prosecuted before magistrates, its case was tried by a jury of 12 ordinary people who had to be convinced that the book was without literary merit. One cannot help but draw a parallel with the Indian experience, which is a tale about vesting censorship powers in the hands of a few. Everyone deciding that Chatterley remains off the shelves did so by making arbitrary value judgments on behalf of ordinary readers and gave differing and remarkably parochial reasons to support their views. Perhaps, consulting the ordinary reader or purveyor of such works might have provided surer insight of whether the law was pursuing a legitimate goal, or whether, in the words of Dickens, the law was being “an ass”.
Abhinav Sekhri is a lawyer practising in Delhi. The article is based on research done for a paper available on SSRN
