20. In the United Kingdom, way back in 1868, the Court laid down the Hicklin test in Regina v. Hicklin (1868 L.R. 2 Q.B. 360), and held as follows:
The test of obscenity is whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall.
21. Hicklin test postulated that a publication has to be judged for obscenity based on isolated passages of a work considered out of context and judged by their apparent influence on most susceptible readers, such as children or weak-minded adults. United States, however, made a marked departure. of late, it felt that the Hicklin test is not correct test to apply to judge what is obscenity. In Roth v. United States 354 U.S. 476 (1957), the Supreme Court of United States directly dealt with the issue of obscenity as an exception to freedom of speech and expression. The Court held that the rejection of “obscenity” was implicit in the First Amendment. Noticing that sex and obscenity were held not to be synonymous with each other, the Court held that only those sex-related materials which had the tendency of “exciting lustful thoughts” were found to be obscene and the same has to be judged from the point of view of an average person by applying contemporary community standards.
22. In Canada also, the majority held in Brodie v. The Queen (1962 SCR 681) that D.H. Lawrence’s novel “Lady Chatterley’s Lover” was not obscene within the meaning of the Canadian Code of Criminal Procedure.
23. The Supreme Court of Canada in Regina v. Butler (1992) 1 SCR 452, held that the dominant test is the “community standards problems test”. The Court held that explicit sex that is not violent and neither degrading nor dehumanizing is generally tolerated in the Canadian society and will not qualify as the undue exploitation of sex unless it employs children in its production. The Court held, in order for the work or material to qualify as ‘obscene’, the exploitation of sex must not only be a dominant characteristic, but such exploitation must be “undue”. Earlier in Towne Cinema Theatres Ltd. v. The Queen (1985) 1 SCR 494, the Canadian Court applied the community standard test and not Hicklin test.
Source: AVEEK SARKAR AND ANOTHER Vs. STATE OF WEST BENGAL AND OTHERS
