REGULATING OBSCENITY:

INDIAN PENAL CODE 1860 AND BEYOND

Law of Crimes-I

Submitted by

SAHITYA SRIVASTAVA
Roll. No.-48 | Id no. 20174313 | Batch of 2017-22

Faculty of Law,

Jamia Millia Islamia, New Delhi

In

Nov, 2018

Under the guidance of

Dr. Saadiya

Assistant Professor

Jamia Millia Islamia, New Delhi

 CERTIFICATE

The project entitled “Regulating Obscenity: Indian Penal Code 1860 and
Beyond” submitted to the Jamia Millia Islamia, New Delhi for Law of Crimes-I
as part of Internal Assessment is based on my original work carried out under
the guidance of Dr. Saadiya from July, 2018 to Nov,2018. The Research work
has not been submitted elsewhere for award of any degree.
The material borrowed from other sources and incorporated in the research
paper has been duly acknowledged.
I understand that I myself would be held responsible and accountable for
plagiarism, if any, detected later on.

_____________________
Signature of the Candidate:
Date:15TH Nov, 2018
 Introduction

With the advancements in science-technology, digital growth; modern innovation and

easy transfer of information it has made things very easy to circulate and communicate
to the entire world. Nowadays news& information of mass importance viz. earthquakes
or landslides; environmental &political events etc. happening in any part of the world are
communicated to remaining parts of the world with the help of satellite transmissions. In
making this world a compact place and connecting everyone faster and easily the mass
media has played a very crucial role. Gone are the days when passing of news took
nights and fortnights now with just a click a news reaches almost all corners of the world
in seconds.

With the media gettingglobalized the content of the circulationis becoming much
vulnerable. As the audience of whole world at large is approached at once, it becomes
obvious that at times west oriented approach could hurt the sentiments of people of
orientalist countries and vice versa.

This phenomenon is quite common in occurrence with the content of artistic overview
and with the content solely for the purpose of entertainment. As it often inflicts the
sentiments of one or other factions of the society. Because usually the source of
entertainment for one is the source to survival or devotion to other. This may be just a
change of viewpoint to see the things but in contemporary times it holds much more firm
ground and importance.

As the late Justice Holmes of the US Supreme Court is reported to have said that a man
may amuse himself in private as he desires, but if he chooses to publish or circulate
what is a source of private amusement he does so at his peril1.

1
www.Indiatoday.com (last visited: 14-11-2018)
To avoid occurrence of such contradictions various measures are made and termed to
regulate content making it suitable for display to audience.

Obscenity is one of the following principles which moderates contents before being
displayed publically. This research work elaborately discusses the various legal and
social aspects of Obscenity and also talks about various difference of opinion which have
been rising at various times.
 Defining Obscenity

The word ‘obscene’ though has not clearly been defined anywhere in the Indian Penal
Code, it must be taken as meaning offensive to chastity or modesty, expressing or
personating to the mind or view something that delicacy, purity and decency forbid to be
expressed; anything expressing or suggesting unchaste and lustful ideas; things which
would be impure; indecent; lewd in normal course of nature.

Obscenity in common termscan be calledasmind pollution, a social problem which

has been affecting our society at large.It creates a harm which is irreparable to the
traditional moral fabric of society. It is not a specific harm to a private individual, as in
the case of defamation, another exception to first amendment protection2.

The word Obscenity can be defined as any photograph, figure, picture, write up,
video or a public act which corrupts the minds and appeals to the prurient interests
or which is not acceptable with social moral standards would be called obscene and
vulgar.3

Obscenity is the depiction of sexual conduct that appeals to the prurient interest, is
patently offensive, and lacks serious value.4

The word obscene in common parlance, denotes the thing that is offensive to modesty
or decency, lewd, filthy and repulsive. The term gives emphasis on the potentiality of
the impugned object to deprave and corrupt by immoral influences. The term gives
emphasis on the potentiality of the impugned object to deprave and corrupt by immoral
influences. However, sex and nudity are not always synonymous5.

2
New York Times Co. v. Sullivan, 376 U.S. 255 (1964).
3
https://www.ukessays.com/essays/media/obscenity-and-vulgarity-to-be-eschewed-media-essay.php (last
visited : 14-11-2018)
4
Miller v. California, 413 U.S. 15, 24 (1973)
5
KA Abbas vs. UOI AIR 1971 SC 481
The framers of the code, plausibly realizing that ‘obscenity’ depends on the standards of
the morals of the contemporary society, were desisted from confining it in precise terms.
The idea relating to immorality and indecency may change from time to time, place to
place. As A.P. Sabineputs it as “Obscenity is a function of culture - a function in the
mathematical sense, I mean, its value changing with that of the variables on which it
depends.”

Further, In the case of Ranjit D. Udeshi v State of Maharashtrain context of defining

the word “obscene” even the Supreme court stated that “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.”

Whereas,The Indian Penal Code 1860, also penalizes obscenity in the sections 292, 293
and 294the IPC. The sections were added to it in accordance with the resolution passed
by the International Convention for the Suppression & circulation of, & traffic in,
obscene publications signed at 12 September 1923.The sections are defined as:-

Section 292:-

Sale, etc., of obscene books, etc.

(1) For the purposes of sub-section (2), a book, pamphlet, paper, writing, drawing,
painting, representation, figure or any other object, shall be deemed to be obscene if it is
lascivious or appeals to the prurient interest or if its effect, or (where it comprises two or
more distinct items) the effect of any one of its items, is, if taken as a whole, such as to
tend to deprave and corrupt person, who are likely, having regard to all relevant
circumstances, to read, see or hear the matter contained or embodied in it.

(2) Whoever-
(a) sells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation,
or for purposes of sale, hire, distribution, public exhibition or circulation, makes,
produces or has in his possession any obscene book, pamphlet, paper, drawing, painting,
representation or figure or any other obscene object whatsoever, or

(b) imports, exports or conveys any obscene object for any of the purposes aforesaid, or
knowing or having reason to believe that such object will be sold, let to hire, distributed
or publicly exhibited or in any manner put into circulation, or

(c) takes part in or receives profits from any business in the course of which he knows or
has reason to believe that any such obscene objects are for any of the purposes aforesaid,
made, produced, purchased, kept, imported, exported, conveyed, publicly exhibited or in
any manner put into circulation, or

(d) advertises or makes known by any means whatsoever that any person is engaged or is
ready to engage in any act which is an offence under this section, or that any such
obscene object can be procured from or through any person, or

(e) Offers or attempts to do any act which is an offence under this section,

shall be punished on first conviction with imprisonment of either description for a term
which may extend to two years, and with fine which may extend to two thousand rupees,
and, in the event of a second or subsequent conviction, with imprisonment of either
description for a term which may extend to five years, and also with fine which may
extend to five thousand rupees.

Exception -This section does not extend to—

(a) Any book, pamphlet, paper, writing, drawing, painting, representation or figure—

(i) the publication of which is proved to be justified as being for the public good on the
ground that such book, pamphlet, paper, writing, drawing, painting, representation or
figure is in the interest of science, literature, art or learning or other objects of general
concern, or

(ii) Which is kept or used bona fide for religious purposes;

(b) Any representation sculptured, engraved, painted or otherwise represented on or in—

(i) Any ancient monument within the meaning of the Ancient Monuments and
Archaeological Sites and Remains Act, 1958 (24 of 1958), or

(ii) Any temple, or on any car used for the conveyance of idols, or kept or used for any
religious purpose.

Section 2936:-

Sale, etc., of obscene objects to young person.—Whoever sells, lets to hire, distributes,
exhibits or circulates to any person under the age of twenty years any such obscene
object as is referred to in the last preceding section, or offers or attempts so to do, shall
be punished 2[on first conviction with imprisonment of either description for a term
which may extend to three years, and with fine which may extend to two thousand
rupees, and, in the event of a second or subsequent conviction, with imprisonment of
either description for a term which may extend to seven years, and also with fine which
may extend to five thousand rupees.

Section 2947:-

Obscene acts and songs —whoever, to the annoyance of others—

(a) Does any obscene act in any public place, or

(b) Sings, recites or utters any obscene song, ballad or words, in or near any public place,
shall be punished with imprisonment of either description for a term which may extend
to three months, or with fine, or with both.

6
https://indiankanoon.org/doc/601866/
7
https://indiankanoon.org/doc/594493/
Sections Explained

Summing the whole idea it can be said that there are two things to be proved for
establishing an act under S. 292, namely, that is8:

(i) The matter is obscene; and

(ii) The accused has sold, distributed, imported, printed or exhibited it, or
attempted or offered to do so.

But a very delicate differentiation lies between if a content is vulgar or is a piece of an

artistic representation. Mere reference to sex cannot be considered obscene in the legal
sense without examining the context of the reference.

As a picture of a women in nude is not per se obscene but it becomes obscene when it
excites impure thoughts in the minds of ordinary persons of normal temperament.
Surrounding circumstances, in which such expressions or pictures are made, therefore,
become relevant.9As US Supreme Court Justice Potter Stewart in case of Jacob Ellis v.
Ohio10might have intended to mean while stating “I know it when I see it."

A nude picture having hardly anything aesthetic or artistic look or literary content,
published with the sole purpose of attracting readers who have a prurient mind qualifies
into the category of being obscene11 as it was decided in leading case of Aveek Sarkar v
State of West Bengal.

Whereas, when same is act is used to showcase a public message and not for any
publicity purposes thereby, addressing the quote of Henry Miller, “ Obscenity is a
cleansing process, whereas pornography only adds to the murk” asin a case where a
picture of a renowned German tennis player Boris Becker was standing close to his dark
skinned fiancée covering her breasts with his hands, followed by an article which

8
K I Vibhute, PSA Pillai’s Criminal Law; Lexis Nexis, (12th edition;2015)
9
SareenSaksena v Emperor AIR 1940 Cal 290
10
378 U.S. 184 (1964)
11
Vinay Mohan Sharma v Delhi Administration (2008) Cr. LJ1672 (Del), 146 (2008) DLT 14
conveyed a message to people against apartheid and that love triumphs over hatred, was
not termed as obscene.12

Same is the case with literature and printed material a book or other literature on
sexology that intends to give advice to married couple cannot be held obscene even
though it refers to sex and carries sexual pictures.13

In Samaresh Bose v. Amal Mitra14, the Supreme Court, holding a novel intended to
expose the evils prevailing in society with emphasis on sex and using slang and
unconventional language is not obscene.

In PromillaKapurv. Yash Bhasin,15the Delhi High Court examined the book entitled
Indian Call Girls. The court felt there was nothing wrong if a sociologist made a research
on the subject of call girls in order to know the reasons as to how and why girls enter this
profession.

Hence it can be safely concluded that where obscenity is intermingled with art to such an
extent that it delivers a social message or gives an idea of a dilapidated situation that too
so loud and clear that obscene act becomes trivial or insignificant and could be
overlooked cannot be termed as an obscene picture or literary material.

Constitutional Validity of Sec. 292

The validity of the section 292 of IPC has been questioned on the grounds that it was
violative of the right to freedom of speech and expression guaranteed under section 19 of
the constitution of India.
Discussing about it in the case of Ranjit D. Udeshi v State of Maharashtra16 where the
Hon’ble Supreme court held that that,
“ … 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

12
Aveek Sarkar v State of West Bengal (2014) 4SCC 257,(2014) 2SCALE 16.
13
Emperor v Harnam Das AIR 1947 Lah. 383
14
AIR 1963 SC 967, (1986) Cr LJ 24 (SC)
15
(1989) Cr. LJ 1241 (Del.)
16
AIR 1965 SC881, (1965) Cr LJ 8 (SC)
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, 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……..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 information of public interest or profit, the approach to the problem may become
different because then the interest of society may tilt the scale in favor 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, Indian Penal Code deals with
obscenity in this sense and cannot thus be said to be invalid in view of the second
clause of Art. 19.”

Section 293 of IPC provides for enhanced punishment when an obscene object is sold
distributed, circulated or exhibited to young persons below the age of 20 years. The
punishment provided for committing any of the acts provided in the section is simple or
rigorous imprisonment for a term upto three years with a fine upto two thousand rupees
on first conviction. In the event of subsequent conviction, the term of imprisonment may
be extended upto seven years and the amount of fine of seven thousand rupees.

The offence under this section is bailable and non-compoundable, and is triable by any
magistrate.
Section 294

In order for conviction under section 294of the IPC two things have to be proved,
namely:-

(i) The accused has done an obscene act in any public place or has sung recited
uttered any obscene songs or words in or near any public place and;

(ii) Has so caused annoyance to others.

In a leading case of Deepa vs. SI of police17 where Kerala HC was called upon to
adjudicate the matter whether the cabaret dance performed in hotels where the alleged
obscene act performed was by the female dancers who exposed there private parts and
danced to the annoyance of audience in a way that aroused lust. The court framed three
issues for judicial deliberation

i. Whether the scenes of occurrences (posh hotels) are public places

ii. Whether the acts alleged to have been performed are ‘obscene’ acts
iii. Whether these acts were capable of causing annoyance to others.

The court held that an enclosed area where a cabaret is performed cannot be said to be a
private place, merely by the reason that entry is restricted to persons purchasing priced
tickets & purchasing highly priced drinks and food.

It also ruled that the acts alleged against the artists amount to obscenity, as they are
capable of depraving and corrupting the minds which are open to such influences.

While answering to the third question the court refused to accept the contention that
persons who willingly come to witness the cabaret dance with the full knowledge of

17
(1986) Cr. LJ1120 (Ker.)
what is going to happen and even if annoyance is caused they cannot complaint. It held
that persons attending a cabaret show in a hotel or a restaurant can complaint by that
annoyance is caused by the obscenity of the performance.

However, the Bombay HC in State of Maharashtra v Miss Joyce18 in situations similar

to the Deepacase ruled that an enclosed area in a posh hotel where the cabaret is being
performed limiting entry to persons who purchase tickets is not a public place. It was
also quoted that a person with an average intellect with common knowledge is ought to
know that in cabaret he’ll be exposed to sexual and erotic gestures accompanied with
music by women.

In Sadhna v State19 the Delhi HC also ruled that an adult customer who goes to a hotel
where cabaret shows run look forward to be entertained by obscenity cannot complaint
annoyance.

In absence of any specific law dealing with eve-teasing and taking in cognizance that the
provisions under the Protection of women from sexual harassment at workplace act are
not adequate to curb Eve-teasing the Supreme court laid down directions in the case of
Deputy Inspector General Of Police V S Samuthiram20 so as to monitor incidents of
eve teasing:-

1) All the State Governments and Union Territories are directed to depute plain clothed
female police officers in the precincts of bus-stands and stops, railway stations, metro
stations, cinema theatres, shopping malls, parks, beaches, public service vehicles, places
of worship etc. so as to monitor and supervise incidents of eve-teasing.

2) There will be a further direction to the State Government and Union Territories to
install CCTV in strategic positions which itself would be a deterrent and if detected, the
offender could be caught.

18
(1973) ILR Bom. 1299
19
(1981) 19 DLT 210, (1982) ILR Delhi 339
20
AIR 2013 SC 14, (2013) 1 SCC 598
3) Persons in-charge of the educational institutions, places of worship, cinema theatres,
railway stations, bus-stands have to take steps as they deem fit to prevent eve-teasing,
within their precincts and, on a complaint being made, they must pass on the information
to the nearest police station or the Women’s Help Centre.

4) Where any incident of eve-teasing is committed in a public service vehicle either by

the passengers or the persons in charge of the vehicle, the crew of such vehicle shall, on
a complaint made by the aggrieved person, take such vehicle to the nearest police station
and give information to the police. Failure to do so should lead to cancellation of the
permit to ply.

5) State Governments and Union Territories are directed to establish Women’ Helpline
in various cities and towns, so as to curb eve-teasing within three months.

6) Suitable boards cautioning such act of eve-teasing be exhibited in all public places
including precincts of educational institutions, bus stands, railway stations, cinema
theatres, parks, beaches, public service vehicles, places of worship etc.

7) Responsibility is also on the passers-by and on noticing such incident, they should
also report the same to the nearest police station or to Women Helpline to save the
victims from such crimes.

8) The State Governments and Union Territories of India would take adequate and
effective measures by issuing suitable instructions to the concerned authorities including
the District Collectors and the District Superintendent of Police so as to take effective
and proper measures to curb such incidents of eve-teasing.
 22
R v Hicklin21: The test of obscenity

The concept of obscenity would differ from country to country depending on the
standards of morals of the contemporary society. So, when judging a particular book or
article as obscene one has to see whether a class in whose hands the book or literature is
falling suffer in their moral outlook or become depraved by reading it or might have an
impure or lecherous thought arising in their mind. The Supreme Court, tracing the origin
of s292 of the penal code in the British statute criminalizing obscenity by Lord Campbell
in 1857, quoted with approval the test of obscenity laid down by Cockburn CJ in R v.
Hicklin...

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…it is quite certain that it would suggest
to the minds of the young of either sex, or even to persons of more advanced years,
thoughts of a most impure and libidinous character. 23

On application of the Hicklin test, a publication can be judged for obscenity based on
isolated passages of a work considered out of context. Works can be judged by their
apparent influence on most susceptible readers, such as children or weak-minded adults.

The Test of obscenity as laid down by Cockburn CJ, has been uniformly applied by the
Apex court of India in its true spirit but it also has admitted difficulties in evolving it in
its purest sense. Supreme Court observed:

The lying down of the true test is not rendered any easier because art has such
varied facets and such individualistic appeals that in the same object the insensitive
sees only obscenity because his attention is arrested, not by the general artistic
appeal or message which he cannot comprehend, but by what he can see, and the
intellectual sees beauty and art but nothing gross….the test we evolve must
obviously be of a general character but it must admit of a just application from case

21
[1868] 3QB 360
22
Applies to Section 292 of IPC
23
Rajnit D Udeshi v State of Maharashtra AIR 1965 SC 881, (1965) Cr. LJ 8 (SC) para 14
to case by indicating a line of demarcation not necessarily sharp but sufficiently
distinct to distinguish between that what is obscene and that which is not.24

The test of obscenity in ultimate analysis is whether the tendency of the matter in
question is to deprave and corrupt those whose minds are open to immoral influence and
in whose hand a publication of that sort may fall.25

Further, it is the duty of the court to take an overall view of the entire work to determine
whether a particular work is obscene or not. In deciding if a book is obscene, the judge
may have to take into account the intention of the author, as happened in the case
Martin Secker v Warburg26 where the judge told jury that it will have to consider
whether the author was pursuing an honest purpose or whether that was all just a bit of
camouflage.

The question whether a particular work is obscene or not, is not a matter of oral evidence
of a writer and a critic. The offending novel and the portions, which are subject to the
charge of obscenity, must be judged by the court in the light of s292, IPC and the
provisions of the constitution.

Conclusion

Hence, it can be concluded from the aforementioned analysis that the issues of obscenity
remains to be a legal as well as a topic of moral concern. The problem is a highly
ambiguous one with its root so deep and meddled up that at times it becomes difficult
that where to start from for finding a solution to it. The judiciary though has been active
and working ceaselessly to define its borders and give it a clear demarcation but very
short has been covered till now and a lot more needs to be done in order to make the
thing be at ease and with a clear demarcation between the lines and the so that the
obscene acts may be regulated.

24
Rajnit D Udeshi v State of Maharashtra AIR 1965 SC 881, (1965) Cr. LJ 8 (SC) 16
25
Aveek Sarkar v State of West Bengal (2014) 4SCC 257, (2014) 2SCALE 16.Para 24
26
[1954] 2 All ER 683
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