The essence of freedom of expression is the ability to think and speak freely and to obtain information from others through publication and public discourse without fear of retribution, restriction or repression by the government. It is through free speech that people could come together to achieve political influence, strengthen their morals and help others to become moral and enlightened citizens.
The concept of obscenity varies from nation to nation. It depends on the cultural values and moral standards that have shaped the country’s history and society. Obscenity is usually analysed against the background of sexual behaviour. The Indian Obscenity Act is defined in Chapter 14 of the Indian Penal Code from sections 292 to 294.
Obscenity is a global and complex issue as it includes other related issues, such as decency and morality, that vary from society to society. What is immoral for one may not be immoral for others. Concerning the meaning and definition of obscenity, it is not easy to give any precise and concrete definition due to cultural, religious and social diversity in society. The description of the word obscenity would indeed change from time to time. What is obscene in the present may not be considered obscene in the future.
In this article, you will read about the limitations of statutory obscenity laws, the judicial efforts to overcome these limitations, and how they are relevant to our present day.
- The Development of the Law of Obscenity
- Meaning of the Word “Obscene”
- Statutory Provisions to Highlight the Indian Anti-Obscenity Scenario
- Obscenity Tests
- The Constitutional Validity of Section 292 of the Indian Penal Code, 1860
- “Morality” and Its Consequences
The Development of the Law of Obscenity
In the 4th century, the Roman Catholic Church took the first step by banning several heretical works. In 1542 Pope Paul III founded the Sacred Congregation of the Roman Inquisition, which was charged with the task of suppressing heretical and immoral books. Immoral works were also suppressed in Protestant countries such as England, where before the 18th century, restrictions applied almost exclusively to anti-religious or seditious acts or publications rather than obscene material in the modern sense.
The invention of the printing press sowed the seeds of the modern obscenity law. As a result, there was a wide and easy distribution of sexually explicit material. By the 17th century, such books and prints had become widely available throughout Europe. Governments and church authorities responded by arresting and prosecuting publishers and distributors.
The first person to be convicted of obscenity in England was the bookseller Edmund Curll in the 1720s. He published a new edition of Venus in the Cloister: or, the Nun in her Smock, a mildly pornographic work. His punishment (a fine and one hour in the pillory) was because there was no special law on the matter. After that, obscenity was recognised as an indictable offence at common law.
Meaning of the Word “Obscene”
The word “obscenity” is derived from the word “obscaena” or “obscaenus”, which means behind the scenes in Latin. The meaning is such because potentially offensive content, such as sex, was shown behind the scenes in Latin drama.
Obscenity can be defined as a statement or act that offends the moral standards of society. The Oxford dictionary defines obscene as “offensive or disgusting according to accepted standards of morality and decency.” It can be in the form of a video, picture, article, picture or writing by acceptable social and ethical standards.
But as we know, the law does not work with the dictionary or not with some simple meanings. The meaning of the word obscene is not easy for lawyers, and it is a problem to set the criteria for obscenity. Because the terms used to define obscenity, such as Lewd, Prurient, Depraved and Corrupt, have not been clearly defined, leaving room for interpretation by the judiciary. Literature, art, gestures, film, or any scene in videos also fall under obscene content if they violate current community standards.
In Aveek Sarkar vs State of West Bengal, the Supreme Court held that “the question of obscenity must be seen in the context in which the photograph appears and the message it seeks to convey. The court further stated that the proper test to determine obscenity would be the “Community Standards Test” and not the Hicklin test (explained below).
Applying the “community tolerance test”, the court held that decisions in such cases must be made about current national standards and not those of a vulnerable group. If society accepts the depiction of sexual activities on the silver screen, the court cannot cancel it for the sake of a few sensitive people. The court must accept it if it is acceptable to society in general.
Statutory Provisions to Highlight the Indian Anti-Obscenity Scenario
There are many laws to deal with obscenity in India. Some laws were too old from the colonial times with roots in the Victorian era, but even after all these laws, it is too difficult to distinguish what is obscene and what is not. These laws embody restrictions on freedom of speech and expression in the interests of decency and morality. All laws are mentioned below:
The Indian statutes which deal with obscenity are:
The Indian Penal Code of 1860
The basic object and purpose of criminal law are not only to protect and preserve the safety and security of the primary personal rights of individuals like the right to life, right to the body, property right, and right to housing. It is also the duty of the state to protect citizens from attacks that may be malicious and to punish individuals for obscene publications that corrupt morals.
The Indian Penal Code does not define the word ‘obscene‘, and the courts have to perform this delicate task of distinguishing between what is artistic and what is obscene.
Section 292 and section 293 of the IPC prohibit the publication and sale of obscene books, and pamphlets, among other representations deemed to be “lewd or appealing to lascivious (feeling or revealing an overt sexual interest or desire) interests“, which may include obscene advertisements.
Section 294 prohibits obscene acts and songs. Anyone to harass others: any obscene act in any public spaces or signing, reciting or uttering any obscene song or vulgar words in or near any public place shall be punishable with the confinement of either description for a term which may extend to three months, or with fine, or with both.
Any offence related to obscenity in electronic form is triable under the IT Act and not under the IPC, as section 81 of the IT Act provides its overriding effect. But depending on the facts and circumstances of the case, the provisions of both the IT Act and the IPC could be attracted, as was the case in Avnish Bajaj vs State (NCT of Delhi), 2008.
The Indecent Representation of Women (Prohibition Act) of 1986
The law punishes the indecent depiction of a woman, meaning “any depiction of a woman’s figure; her form or body or any part thereof in such a manner as to render indecent, derogatory or dishonourable to women, or is likely to prepare, disturb or injure public morality or morals”.
It states that no person shall publish or cause to be published any advertisement that contains an indecent representation of women. “Advertising in act” includes any notice, circular, label, wrapper or other document and also includes any visible display made using any light, sound, smoke or gas.
Anyone who violates the provisions of the said Act shall be punished on:
- First offence: Imprisonment for up to two years and a fine of up to two thousand rupees.
- Second or repeat conviction: Imprisonment for not less than six months and may extend to 5 years, and a fine of ten thousand rupees which may extend to one lakh rupees.
The Information Technology (Amendment) Act of 2008
Section 67A clearly states that whoever publishes or transmits any material which contains sexually explicit acts or behaviour shall be punished on first conviction to imprisonment up to the terms of 5 years and a fine of 10 lakhs rupees, and on the repeated conviction with the imprisonment of 7 years and the fine of 10 lakh rupees.
Before 2008, section 67 was the only provision of the Information Technology Act that prohibited the publication of obscene information, including child pornography and obscenity. Section 67A of the IT Act 2000 specifically restricts the publication of sexually explicit or obscene material. And section 67B of the Act specifically prohibits child pornography. Section 67B of IT Act only criminalises the posting and transmission of sexually explicit or obscene material in electronic form, but viewing, downloading, possession etc., is not an offence under the provisions of the Act.
There is no straitjacket formula to define obscenity and no uniform test for obscenity. Each case should be considered separately. The Supreme Court has set a broad parameter to determine whether a case passes the test of obscenity or not. There are several tests to check if the content, art or gesture is obscene or not. Let us learn about a few such tests below:
The US Supreme Court established this test in Miller vs California (1973). In this case, Melvin Miller sent the restaurant manager five suspicious brochures that contained striking pictures and drawings of men and women engaged in various sexual activities. After the manager read the mail, he filed an obscenity case against Mr Miller and he was prosecuted for violating California law. Miller’s test has three parts. They are:
- The average person enforcing current community standards would find that the work as a whole appeals to cautious interest.
- Whether the work depicts or describes in an overtly offensive manner sexual conduct specifically defined by applicable state law.
- Whether the work, when taken as a whole, lacks academic, artistic, political, or scientific values.
But this test is not very rational. Establishing national standards for what appears to be sensitive or offensive is not practically possible. The concept of treating speech as obscene if it had no value was so vague. Several questions arise here as to the true connotations of value. Based on what factors will a court find speech valuable or worthless? Why should the government and not the citizens have all the right to decide? The law regarding obscenity was unclear, and writers were afraid of the “value” factor and therefore hesitated to publish their works to avoid lawsuits and punishments. Thus, the Miller test resulted not only in eliminating obscenity but also in legitimate speech.
This test is based on the impact of a publication on the most vulnerable members of society, regardless of whether or not they are likely to read it. The test to determine obscenity under English law was first set out in the case of R vs Hicklin. At issue was the statutory interpretation of the word ‘obscene’ under the Obscene Publications Act 1857. According to the Queen’s Bench, all material that devastates and corrupts minds open to immoral influences was considered obscene, regardless of its literary value. Here, the intention was considered immaterial. If any part of a work or publication was considered obscene, even if that part was out of context, it didn’t matter, and the whole work could be outlawed.
Although the Hicklin test was buried in England with the passing of the Obscene Publications Act in 1959, six years later, the Supreme Court of England decided to agree with it.
Ranjit D. Udeshi vs State of Maharashtra (1964) was one of India’s first obscenity cases. In its judgment, the SC banned the sale and publication of unexpurgated copies of DH Lawrence’s Lady Chatterley’s Lover. The SC found the bookseller (appellant) guilty of the crime of selling obscene books as defined in section 292(1) of the Implementing Regulations.
In this case, the Supreme Court upheld the conviction of the appellant and rejected the challenge to the constitutionality of section 292 IPC. The court held that section 292 IPC constituted a reasonable restriction on the right to freedom of speech and expression under Article 19(2) in the interest of morality and decency. Relying on the Hicklin test, the court further interpreted the word “obscene” to mean that it “offends modesty or decency; lewd, dirty and repulsive.
Likely Audience Test
This test is a departure from the Hicklin obscenity test. This test established the “probable reader test” theory and replaced the “most vulnerable person” theory. This test emphasises the fact that the impact on those who can reasonably be expected to gain access to the publication can be considered.
In the case of Chandrakant Kalyandas, the Supreme Court of India held that the test of obscenity must be based on the intended audience and not on the person into whose hands the book might fall.
The Supreme Court of India in Samaresh Bose vs Amal Mitra (1985) departed from the Hicklin test in laying down the obscenity test. The court held that in assessing the obscenity test, the judge should put himself in the position of a reader of each age group into whose hands the book is likely to fall and should try to appreciate what kind of possible effect the book is likely to have on the readers’ minds.
Just because a film depicted riots and sexual violence was no reason to deny its exposure. The aversion test established the idea that authors and filmmakers sometimes depict nudity not to arouse sexual desire but rather to arouse in the audience horror and revulsion (disgust) at the depicted social evil. The Supreme Court of India applied the aversion test in the Bandit Queen case. In this case, the rape scene was challenged on the grounds of obscenity. The court rejected the challenged and decided that the goal of the scene of frontal nudity was not to excite the cameraman’s lust but to arouse his sympathy for the victim and disgust for the perpetrators.
In another case of Samaresh Bose, in which a Bengali novel, Prajapati, was challenged on the ground of obscenity, the Supreme Court held that the book did not have the effect of corrupting or degrading morals or encouraging lasciviousness among the readers, as the author intended to expose certain ills irritating the society and for to this end he used his technique, skill and choice of words.
Judging the Work as a Whole
It is one of the tests of obscenity in which a publication or any film scene should be seen as a whole and not in isolation. Offensive passages should also be examined separately to judge whether the passages are grossly obscene and likely to corrupt the minds of young individuals. Clause 3(i) of the guidelines issued under section 5B of the Cinematography Act, 1952 says that the Board of Film Certification must ensure that the film is judged as a whole in terms of overall impact.
In the case of Anand Patwardhan, the Supreme Court of India, which had to test the challenge of obscenity, decided that the correct approach is to look at a documentary film as a whole and not in its parts, as any message to be conveyed in the manner of the film cannot be conveyed simply by watching certain parts of movies.
Opinion of Literary/Artistic Experts
The task of deciding what is artistic and what is obscene must be done by the courts, and the evidence of literary or other persons on the question of obscenity is not relevant.
In the Chandrakant Kalyandas Kakodkar case, the Supreme Court of India held that the verdict on whether a book or an article as a whole panders to lewdness and is obscene must be decided by the courts and ultimately by the Supreme Court.
Current Community Norms Test
This test is used in India. The community standards test says that art or any gesture or content is obscene only if the dominant theme as a whole is contrary to current community standards. The current community standards test takes into account changing values in society. What was obscene a century or even ten years ago may not be obscene now. Current customs and national standards must be taken into account when deciding on obscenity.
In S Khushboo vs Kanniammal, the Supreme Court, while deciding the obscenity of the case, held that while mainstream society may accept sexual relations only between married partners, there is no statutory offence where unmarried consenting adults engage in sexual relations. The court ruled that premarital sex and live-in relationships are no longer so uncommon in Indian society that any reference to them or calls for social acceptance of such trends can be considered obscene or offensive to womanhood.
Also, the mandate of the Cinematography Act of 1952 says that film certification shall aim to ensure that the medium of film remains responsible and sensitive to the value and standards of society. Clause 3(ii) says that the board of film certification shall also ensure that the film is judged concerning the period depicted in the film and the contemporary standards of the country and people affected by the film, provided that the film does not corrupt the morals of the audience.
The Common Man Test
This test states that to determine whether art or publication is obscene or not, it should be seen through the eyes of the common man and not through the eyes of a hypersensitive person. In Ramesh vs Union of India, the Indian Supreme Court held that the effect of words must be judged by the standards of men of reason, strength, firmness and courage, and not of those of weak and wavering minds, or of those who sense danger in every hostile point of view.
The Constitutional Validity of Section 292 of the Indian Penal Code, 1860
The constitutional validity of section 292 was challenged in Ranjit Udeshi vs State of Maharashtra 1965 1SCR 65. The facts of the case are that Ranjit D Udeshi, one of the four partners, was the owner of Happy Book Stall. All four partners were prosecuted under section 292 of IPC for selling “Lady Chatterley’s Lover”, a novel by D.H Lawrence.
Udeshi found that section 292 violates his fundamental right to freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution. It was decided that Article 19, paragraph 1, letter (a) of the Constitution is subject to the restrictions listed in Article 19, paragraph 2. One of the reasons is public morality and decency. Section 292, dealing with obscene materials, which addresses the issue of public decency and morality, falls within this exception. Therefore, section 292 is constitutional.
“Morality” and Its Consequences
Two arenas of obscenity laws are used in India.
First, there is the constant harassment of young couples by the police, who often extort money by threatening obscenity laws. The issue of police work in public spaces is also multi-layered. While most young couples are targeted, interfaith, intercaste and queer couples are more likely to be vulnerable when cornered by the police. The issue of public space is also a class issue, and the fact of who can afford private spaces (of their apartments or established hotels) must be taken into account.
Second, most obscenity cases that are filed are against media, art, and literature. From the known instances of M.F. Hussain and Perumal Murugan, there are also cases filed against smaller publishers. Since the adoption of the Community Standards test, the court system has largely dismissed obscenity charges. However, the process remains a punishment, and these charges often create an atmosphere where art creators must always be cautious and fearful.
The common thread that runs through both arenas is the question of morality and its weaponisation. Vigilance, especially by religious groups and political parties, ensures deep repression of sexuality and all discourses surrounding it.
This repression creates a deeply conservative and hypocritical society that often obsesses over ideas around sex and sexuality behind closed doors but is afraid to discuss them in public.
India is one of the world’s largest consumers of pornography, ranking 3rd, well ahead of most western countries. Unsurprisingly, most other countries high on the list are conservative, such as Pakistan and Poland.
A distaste for “obscene” topics in the public space leads to a lack of sex education in India. Discussions about consent and pleasure do not exist, and India has learned to shy away from discussing these things to preserve a sense of cultural morality. It has far-reaching and devastating consequences.
In addition to being ambiguous and arbitrary, India’s obscenity laws have real implications for India’s scientific character, social openness, and artistic freedom. There must be room for reform in how the police, institutions and politicians deal with issues of sexuality in public.
“Freedom of expression extends not only to information or ideas which are favourably received or regarded as harmless or indifferent but also to those which offend, shock or alarm the State or any section of the population.” — Handyside vs the United Kingdom.
In his book “Offend, Shock or Disturb: Free Speech Under the Indian Constitution” lawyer Gautam Bhatia rightly argued that the most important aspect of constitutional morality is the right to equality. The author further argued in his book that if we look into the Indian Constitution, we will find that many Articles ensure equality in Indian society (Articles 14-18). A combined reading of all the Articles thus leads to the creation of the principle of anti-subordination: a concept that would end all kinds of discrimination existing in society. The same can be applied to sexual content. If the content of the material leads to any form of subjugation, then the material is not constitutionally protected.
For example, in the case of pornographic films, scholars such as MacKinnon and Andrea Dworkin have rightly argued that the creation of social reality of dominance and subordination in pornographic films does not merely portray subordination but subjugates women. The content should not be seen as a representation of reality but as reality itself. Therefore, such content needs to be regulated.
In our country, where there are multiple religions and cultures, there are bound to be conflicts between them. When these types of issues related to one’s culture or religion are touched upon, and artists express their thoughts or opinions on these types of sensitive issues, they should not be held back just because they are serious issues and might hurt the sentiments of certain groups or communities. All works related to art, literature, etc., do not create hatred among people. Sometimes it is necessary to educate people in a way that is subtle and gentle to reduce the tension in our society.