What may spark a controversy, hurt feelings, or create a conflict in a country as populous as ours, with diverse cultures and traditions, is unforeseeable. Living in the twenty-first century, in an era of evolving ideas and cultures, a person's unique gesture to present himself or his work can make someone or the entire society uncomfortable. What is obscure for one person may not be the same for another.
This difference in thinking makes it difficult to determine what is truly obscene and what is not. Recently, a photoshoot for a magazine by Bollywood actor Ranveer Singh captured national attention and sparked debate about whether his actions constituted obscenity under Indian law.
Obscene is derived from the Latin term Obscenus, which means 'offensive.' Obscene is defined by the Oxford dictionary as "offensive or disgusting by accepted standards of morality and decency" appears to be simple,However, as we all know, the law does not believe dictionary words. For lawyers, determining the meaning of the word obscene is difficult; it is difficult to establish obscenity criteria. As the terms used to define obscenity, such as Lascivious, Prurient, Deprave, and Corrupt, are not clearly defined, the judiciary is free to interpret them. Obscene content includes literature, art, gestures, movies, and video scenes that violate community standards.
DOES FUNDAMENTAL RIGHTS COVER OBSCENITY?
The freedom of speech and expression is a complex system entwined with liberties and rights. It tops the position in the liberty hierarchy, providing support and protection to all other liberties. It has been referred to as a "basic human right," "natural right," and like. The preamble to India's constitution resolves to guarantee citizens' liberty of thought, expression, and belief. Article 19(1)(a) of India's constitution guarantees citizens freedom of speech and expression, from which the media derives its right to "freedom of press."
However, because this right is not absolute, it is subject to certain limitations, the parameters of which are defined by the Constitution itself. These restrictions are referred to as "reasonable restrictions," and they are outlined in clauses 2–6 of Article 19 of the Indian Constitution.
Article 19(2) allows for legislative constraints on the right to free expression in the interest of decency and morality. Such a logical restraint is justified by the belief that “A society is bound to decay without maintaining high standard of decency and moral”
TEST OF OBSCENITY
As a society, we are expected to adhere to certain norms. There is a very fine line between what is acceptable and what is beyond the bounds of decency. The Supreme Court adopted the 1868 Hicklin Test-derived by the British- and defined the parameters of what is obscene in Ranjit Udeshi v. the State of Maharashtra (1964), the first major case dealing with obscenity law in India.
Ranjit Udeshi was a bookseller who sold an "unexpurgated edition" of DH Lawrence's Lady Chatterley's Lover. Udeshi had challenged Section 292. However, the Supreme Court denied his petition, upheld the book's ban, and applied the Hicklin test. "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," the Supreme Court stated.
The Hicklin test assessed obscenity by the standard of an individual who was open to immoral influences and likely to get corrupted, and depraved. By this test, the material in question was looked at in isolation, or vacuum—whether it is obscene or not—as opposed to considering the entire context in which the material is being projected.
The scope of obscenity has been significantly reduced by the judiciary over the years. In the Aveek Sarkar v. the State of West Bengal(2014) the Supreme Court did not apply the British Hicklin test and used the American Roth test instead. As per this test, obscenity was to be evaluated from an average person’s perspective, applying prevailing community standards. The contemporary community standards test takes into account the changing values in society and how something which could be considered obscene ten years back would not be considered obscene today.
ANTI-OBSCENITY LAWS IN INDIA
Obscenity laws in India are inspired by the Victorian era; they are numerous, but it is difficult to distinguish between what is obscene and what is not. These laws attempt to limit freedoms that impede decency and morality. All of the laws are discussed further below.
Sections 292 and 293 of the Indian Penal Code, 1860, prohibit the publication and sale of obscene books, pamphlets, and other representations that are deemed to be 'lascivious or appeals to the prurient interests,' which can include obscene advertisements.
Section 292 Exception: A work of art is not to be treated as objectionable. It exempts any representation, no matter how obscene, if it is associated with any idol, temple, or religious object.
Section 294: Singing, reciting, or uttering obscene songs, ballads, or words in public to the annoyance of others.
Following the heinous gang rape and murder of victim Jyoti Singh, commonly referred to as the Nirbhaya case, Section 354D was added to the IPC via the Criminal Amendment Act (2013). It includes monitoring a woman's internet history, such as their email or any other form of communication. As a result, gathering pictures of girls from their social media profiles would fall under the purview of this section. On conviction, the offender would face a three-year prison sentence as well as a fine.
Section 509 addresses words, gestures, or acts committed with the intent to offend a woman's modesty. Outraging a woman's modesty is a section that is frequently used in conjunction with other sections of the IPC involving sexual assault.
The publication of sexual content on a social media site is punishable under Section 67(A) of the Information Technology (Amendment) Act, 2008.
First offense: five years in prison and a ten lakh rupee fine. Repeat offense: seven years in prison and a ten lakh rupee fine.
Section 67(B) of the amendment is a watershed moment in India's anti-child pornography movement; it makes it clear that not only publication, viewing, but also possession of such pornographic content is punishable.
First offense: five years in prison and ten lakh rupee fine.
Repeat Offense: Seven years in prison and a fine of rupees ten lakh.
The Indecent Representation of Women (Prohibition Act) of 1986 criminalizes "the illustration in any other manner of the figure of women; her from or any other part thereof in such a way as to have the effect of being indecent, or outrageous to, or denigrating women, or is likely to deprive, corrupt, or injure the public virtue or morals."
First offense: up to two years in prison and a 2,000 fine.
Repeat Offense: Imprisonment for up to five years and a fine ranging from 10,000 to 100,000.
YOUNG PERSON’S (HARMFUL PUBLICATIONS)ACT,1956 Harmful publications is described as any book, magazine, pamphlet leaflet, newspaper or other similar publications which contain stories told with the aid of the pictures or without the aid of the pictures or completely with pictures any of the stories which portray wholly or majorly.
CASES RELATED TO OBSCENITY
Aveek Sarkar v. State of West Bengal in this case a German Magazine published a photograph of Boris Becker, a renowned tennis player, posing nude with his fiancée Barbara Feltus, an actress covering her breasts with his hand.
The picture was taken by Feltus’ father. After this, a complaint was filed against the newspaper under Section 292 of IPC. But the Supreme Court of India ruled that the half-nude image of Boris Becker with his fiancée was not obscene, after applying the community standard test, and the reason is that the image is not obscene because it did not excite sexual passion or to deprave or corrupt minds of people.
Samaresh Bose vs Amal Mitra [1986 AIR 967] the famous author Samaresh Bose was accused of writing and promoting obscene text via novels that were published in the Sarodia Desh (Bengali journal). The matter in question was his novel ‘Prajapati’. In this case, the Supreme Court held that in such cases, a judge should objectively assess the matter as a whole and also the matter complained of as obscene separately. It was decided that in order to reach a judgment, the opinion of the writer was to be read and understood, so as to assess the literary and artistic value of the work. The judge should also think from the standpoint of the reader, and the age group he or she may belong to, in order to assess the influence the work may have on the society. The Supreme Court assessed the whole novel and stated that a novel cannot be classified obscene simply because it contains slang and unconventional words or if the novel mentions or discuss sexual intercourse or describes the female body as a feeling of narration or thought. It was held that just because the novel had vulgar language does not mean it amounted to obscenity. The judgement differentiated vulgarity and obscenity for the first time.
Maqbool Fida Husian V. Raj Kumar Pandey 2008 CRI.L.J.4107 Delhi High Court—
where M.F Husian came under fire for some of his paintings including the one titled 'Bharat Mata'—the Delhi High Court in 2008 said the interpretation of 'obscenity' in the criminal context must be balanced against one's constitutional right to free speech and expression."A painter has his own perspective of looking at things and it cannot be the basis of initiating criminal proceedings against him," the 74-page judgment read. "In India, new puritanism is being carried out in the name of cultural purity and a host of ignorant people are vandalizing art and pushing us towards a pre-renaissance era," the high court had observed while dismissing the plea.
Obscenity is a complicated topic that involves morality and decency which differs from society to society. The law is still criticized for being nebulous and unclear. Obscenity is interpreted differently today based on social norms because of its ambiguous definition. If the provisions of Article 19 are not properly understood and interpreted, they may cause unneeded societal upheaval. This cannot be justified. As a result, it is crucial to take all relevant factors into account when making a decision that will support the development of social morality. All literary, artistic, and other creations do not incite hatred in people. In order to lessen the tension in our society, it is occasionally necessary to educate the population in a subtle and gentle way.
- The Daily Guardian- https://thedailyguardian.com/the-law-of-obscenity-in-india/
This article is written by Shruti Sanjay Korgaonkar of Hover Law College, Mumbai.