28/02/2019 Obscenity & the Indian Law - The Cyber Blog India

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Obscenity & the Indian Law

Sahana Chaudhuri / October 25, 2018 /
Law (https://cyberblogindia.in/category/law/) /
Leave a Comment (https://cyberblogindia.in/obscenity-the-indian-law/#respond)

The best way to de ne obscenity is actually

to not de ne it. Not because it would be
lewd, overreaching or offensive in diktat but
because no one has actually done it.
Obscenity changes with time, values,
OBSCENITY & THE INDIAN LAW society, popular culture etc. The number of
things that have a direct impact on the
standards and level of obscenity are many and locking them into one line or a few lines
are not possible.  The legal provisions related to obscenity, however, are mainly given
under the Indian Penal Code, 1860 (herein referred to as  IPC)  and the Information
Technology Act, 2000 (herein referred to as IT Act) as far as India is concerned.

The concept of obscenity differs from nation to nation and it depends on the moral and
cultural values that have shaped that country. Indian society has always been very
conservative about girls and the purity of woman has always been considered essential
to sustain a family’s reputation.

The de nition of obscenity  still isn’t clear. It changes with time and depends on the
factual circumstances of the case. What was considered obscenity 30 years ago, might
not be considered so now. India has always adopted tests from other countries to

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determine the element of obscenity in its court cases. The tests have changed over time
according to its adaptiveness in the continuously evolving society.

In uence of Obscenity Laws in other Countries over

India
The test of obscenity has been laid by several countries based on certain moral
principles and decency codes of the particular country. Few of these tests have been
adopted by the Indian courts over time to determine obscenity.

England

The test to determine obscenity under English Law was rst laid down in R vs. Hicklin
(https://en.wikisource.org/wiki/Regina_v._Hicklin#Decision) case. The statutory
interpretation of the word obscene as given under the Obscene Publications Act, 1857
was the issue. According to the Queen’s Bench, all the materials depraving and
corrupting the minds open to immoral in uences was considered obscene, regardless of
its literary merit. Here, the intention was considered immaterial. If any portion of the
work or publication was considered obscene even if that portion was out of context, it
didn’t matter, the entire work could be outlawed.

The United States

In 1957, the US court developed a new test for obscenity in Roth vs. United States
(http://supreme.justia.com/us/354/476/case.html). It was decided that only those sex-
related materials which had the capability of generating prurient interest  or lustful
thoughts would fall under the category of obscene. This had to be judged from the point
of view of an average person following community standards, unlike the previous test
which focused only on the susceptible readers i.e. the vulnerable sections of the society
such as children or weak-minded adults.

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Here, it was also held that obscenity is not constitutionally protected speech or press.
The materials which cause normal healthy sexual desires will not come under the purview
of obscene, the interest shown has to be shameful interest in nudity, sex or excretion. The
Roth test is, therefore, sharper and narrower compared to the Hicklin test as it does not
cover all the materials that might corrupt but limits itself to the dominant theme of the
material and checks whether if taken as a whole has any redeeming social value or not.

In 1966, in  Memoirs v. Massachusetts,

(https://supreme.justia.com/cases/federal/us/383/413/) the US court expanded the
Roth test and stated that the last part of the de nition i.e. utterly without redeeming
social importance element had to be proved to classify something as obscene.

In 1973, the Miller test or the three-prong obscenity test was developed in Miller v.
California (https://caselaw. ndlaw.com/us-supreme-court/413/15.html). This test was
for determining what kind of speech and expression can be classi ed as obscene. The
test is based on 3 conditions and a piece of work would be considered obscene only if all
the conditions were satis ed. The rst two conditions are governed by the community
standard while the third prong is governed by what is reasonable to a person of the US
as a whole. The national reasonable standard acts as a check on the community
standard allowing protection for works that in a certain community might be obscene
but at the national level, it should have to redeem social value. This could create
con icting interest between communities as what is treated as obscene by one
community could have been treated differently by another.

Fixing national standards for what appeals to be prurient or offensive is not possible
practically. The concept of considering a speech obscene if it didn’t have some value
was so vague. Several questions arise here like the true connotations of value. On what
factors, will a speech be considered valuable or value-less by the court? Why would the
government and not the citizens have all the rights to decide? The law relating to
obscenity was unclear and writers were afraid of the ‘value’ factor and therefore, were
hesitant to publish their works to avoid litigation and punishments. So, the Miller test
not only led to the elimination of obscenity but also legitimate speech.

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 The Journey of Obscenity in India: Related Provisions
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& Case Laws

Legal Provisions

The words obscene and obscenity have not been de ned in the IPC. Section 292 of IPC in
simple terms state that if any material is taken as a whole is lascivious or appeals to
prurient interest and tends to deprave and corrupt the persons who read, see or hear
the matter contained will come under the purview of obscenity. Section 293 also bans
the selling of obscene objects to young persons and prescribes punishments for the
same.

The provisions of Section 292 are not applicable to works done in public interest such
as in cases of science, literature or religious purposes. Section 292 also con icts with
Article 19(2) of the constitution which is about the freedom of speech and expression,
however, the Constitution provides that the fundamental rights are subjected to
reasonable restrictions to prevent indecency in public.

The punishment for publishing of obscene material in electronic form is given under Sec
67 of IT Act. It is important to note that any offence related to obscenity in electronic
form can only be tried under the IT Act and not IPC as Section 81 of the IT Act clearly
states its overriding effect. But sometimes if there is a need, provisions of both the IT
Act as well as IPC are considered together, as done in the case of Avnish Bajaj v. State
(NCT of Delhi). Since the Internet is global and dynamic in nature, we have Section 75 of
the IT Act taking care of the issues related to electronic transmission of obscene
material from other jurisdictions as well.

Sec 2(c), Sec 3, Sec 4 of the Indecent Representation of Women Prohibition Act, 1986
also deal with the prohibition of such acts. The Cable Television Networks Regulation
Act, 1995 prohibits telecast of obscene acts on television. Section 4 and Sec 5A of the
Cinematograph Act, 1952 provides for the examination of lms before release. The
Young Persons Harmful Publication Act, 1956 prohibits publications which can corrupt
a child. Section 294 of the IPC punishes a person for committing obscene acts in public

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place and also for singing obscene songs. Similarly, Section 354 and Section 509 of IPC
are also applicable for punishing crimes against sexual harassment of women at the
workplace.

Case Laws

In 1965 judgement of Ranjit D. Udeshi v. State of Maharashtra

(https://indiankanoon.org/doc/1623275/), the SC had adopted the English Hicklin test
which had raised a few problems. The Sec 292 of IPC required any material to be taken
as a whole whereas the Hicklin test required the material content to be checked in
isolation. So there was a con ict of interest between the two. There were other
loopholes too because of which the courts started undermining the Hicklin test. The
conditions of the Hicklin test were liberalized and applied until the case of Aveek
Sarkar.

In the case of Aveek Sarkar v. State of West Bengal

(https://indiankanoon.org/doc/195958005/), the Supreme Court had said nude can’t be
considered obscene per se under the meaning of Sec. 292 unless it arouses a feeling of
sexual desire. In this particular case after 50 years of the application of the Hicklin test,
the court nally disapproved it and adopted the Roth test. The intention behind it was
to decide cases keeping in mind the contemporary national standards and not the group
of susceptible persons. But the problem is that the test does not contemplate
differential standards for different community and proceeds on a simple basis. Here,
only it is the nature of work that matters and whether such work is accepted by the
society at large or not. There was a lot of confusion as to what exactly constituted
obscenity. How can the court draw a different line of a threshold for historically
respectable gures in these cases? How do they decide the threshold? But at least
people accepted the fact that obscenity is an exception to freedom of speech.

In 2006, the Supreme Court in the case of Ajay Goswami v. UOI

(https://indiankanoon.org/doc/561137/) stated that the community based standard
test has become redundant now and proposed a new test called as responsible reader
test wherein a reader should be cautious in this era of technology. With respect to the
online form of obscenity, we have cases like Avnish Bajaj v. State, wherein the question
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was whether the website was responsible for the publication of the MMS or not. The
website which was just an intermediary was held responsible for the same in this case.
In another case,  M. Saravanan & Dr. L. Prakash v. State,
(https://indiankanoon.org/doc/1767685/) a doctor was punished under Section 67 IT
Act for online distribution of lewd photos and videos of a woman just for the purpose of
making money.

In 2015, the AIB group was also in the headlines (https://l.facebook.com/l.php?

u=http%3A%2F%2Fwww.mondaq.com%2Findia%2Fx%2F464412%2Fbroadcasting%2B lm
for its roast show AIB Knockout wherein there were multiple instances where a
celebrity was made fun of allegedly in a very rude and offensive manner. In view of this
incident, several complaints were led. The judgement is yet to come in this case but
this is going to be an important precedent in future as this case is going to de ne the
limits of freedom of speech and expression for TV shows involving celebrities and their
impact on the society.

Conclusion
Summarizing up, the words obscene and obscenity are not de ned under IPC. The courts
take the pain time and again to determine whether an act is obscene or not. The
determining factors like public decency, social morality and cultural variations keep
changing with time. Also to be kept in mind is that obscenity is not protected under the
freedom of speech and expression clause of the Constitution. So, the court has always
stressed the need to promote a culture of open dialogue until and unless it affects the
society at large. Besides all this, at an individual level, caution and being a little
responsible can prevent you  from falling prey to such problems. Prevention is always
better than cure!

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