Criminal law: Obscenity

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Every day we live through the interpretations of truth that have been created around us. These notions develop a congenital identity that makes us members of society. A certain moral conduct is maintained by the common sense found in the operation of community. Law is an agency that advocates this common sense through policy discourses. Indian culture has experienced significant transition over time. However, given the passage of various rulers and ages, the dominant conservative school of thinking still seems to have reigned over the people, the state and its institutions.

This strict conventional philosophy demarcates society and forces minorities (women, lower classes, backward castes, etc.) into disquiet. Legislations governing society protects collective consciousness and promotes discourses that ensures self-regulation in accordance with these community standards. These standards are based on such a traditional lexicon. Culture, practices, rituals and religion determine the norms of the society that form the laws of the land. It cultivates a feeling of right and wrong facade.

Anything thought to be lacking a sense of discipline and principle values is said to be immoral. Immoral if taken to the next level is called obscene. The word has a very vague definition but finds a place in the criminal laws of most of the nations across the globe.

Criminal Law is the body of law which describes wrongs that are criminal in nature. It defines the offence, regulates the detention, sentencing and prosecution of accused criminals and sets the sentences and treatment relevant to convicted offenders. When dealing with ‘obscenity’ the common question which arises is that “why is obscenity of a criminal nature?” Over the time, scholars have put forth the contention that ‘obscenity’ contains representation in a form that is likely to undermine the stability of a community. The offensive nature of the material is such that it corrupts and depraves its readers or viewers to such an extent that their criminal tendencies get aroused.

The ‘obscene’ content leaves an impression, influential enough to shake his entire emotional and psychological make-up. Obscenity attracts punishment because; from its very nature; it prepares a ground for ‘mens-rea’ required to constitute any criminal offence thereby jeopardizing the moral touch in a society.   The fundamental aim and purpose of criminal law is not only to protect and safeguard the safety and security of primary personal rights of individuals, such as the right to life, the right to body, the right to property, the right to property, etc., but also to protect and safeguard public morality and public respect and to preserve the moral well-being of the State.

Definition of obscenity

In both, language and law, the definition of obscenity is hazy. The Oxford dictionary defines the word obscene as, “offending against moral principles and accepted standards of morality and decency. In other words, in the eyes of an individual, anything is obscene if he/she condemns it strongly and finds it extremely offensive and immoral. It is also defined as an indecent activity directed to shock the moral sense of a reasonable prudent man by a disrespect of morality and respectability. Obscenity is a concept which changes with the passage of time. As the values, society and popular culture evolve, the definition of obscenity changes its meaning. The meaning of obscenity differs from nation to nation and from changes with change in circumstances. Therefore, India and many other nations have devised certain tests to check for obscenity.  

The word ‘obscene’ was introduced into the Indian Legal system by the British. Until the mid-nineteenth century, material which was sexually explicit was not subject to statutory prohibition. The federal Comstock Law of 1873 criminalized the sense of ‘obscene’ or ‘lewd’. The first test devised to check obscenity was the “Hicklin Test.” There lies a very narrow line of difference between the concepts of obscenity and indecency. While the former refers to something which is utterly objectionable according to prudent standards and strongly infringe the principles of morality and respectability, the latter refers to something which is not acceptable in the ordinary sense, but is also not totally grave as ‘obscene’.

Along with societal standards, obscenity changes from person to person. It is similar to the term “beauty”, which does not have a fixed definition but “lies in the eye of the beholder.” For instance, the writings of Sadad Hasan Manto were considered grave and obscene by the readers in the 20th century but now the readers are fine with it. This does not mean that the words in the writing have changed to become less obscene. It only implies that the framework of vision has changed. This is a clear example of how vague the term obscene is and how it can change with change in culture, thoughts, society and people.

Legal provisions

Under the Indian Law system, ‘obscenity’ is defined and applied under many different statutes.

  1. The Indian Penal Code
  2. Section 292 – Section 292 of the IPC deals with obscenity and states that a figure or object is considered to be obscene if it is lascivious or appeals to prurient interests such as the tendency to deprave and corrupt a person. In fact, the provision renders it a crime to sell, manufacture, produce, show, advertise, etc. In the case of Raj Kapoor v. Laxman, the Supreme Court stated that movie titles or pictures may also be called as ‘obscene’. The act is not only confined to books and associated readings.
  3.  Section 293 – Pursuant to section 293 of the Indian Penal Code, anyone who sells, permits to hire, distributes, displays or circulates to any individual under the age of twenty any such obscenity as alluded to in the last preceding sentence, or offers or attempts to do so, shall be punishable on first conviction with imprisonment of any form for a period of up to three years and with a fine which may extend to two thousand rupees and, in the event of a second or subsequent conviction, with imprisonment for a term which may extend to seven years, and also with a fine which may extend to five thousand rupees. The offence under section 293 of IPC is cognizable and is bailable. It can be tried in the court of any magistrate.  This was given a different angle of approach in the case of Sri Biraj Mandal v. The State of Assam, which involved the case of viewing of content classified as ‘obscene’ by underage individuals of 7 and 9 years respectively.
  4. Section 294 – Section 294 sets the penalty for acts of obscenity or words in public. The other sections of the Indian Penal Code dealing with obscenity are 292 and 293. The law does not clearly define what would constitute an act of obscenity, but it would only enter the domain of the State if it were to take place in a public place to the annoyance of others. Traditionally, the art of the Temple or the nakedness of sadhus is beyond the purview of this section. This article exempts ‘obscenity’ in private places from its purview and states that any such activity done is covered by a person’s ‘right to privacy’ and personal liberty. Obscenity and obscene have not been explicitly specified in the Indian penal code. Section 292 of the IPC only states that if any material taken as a whole is lascivious or appeals to prurient interest and tends to deprave and corrupt those who read, see or hear the matter in question; it will come within the ambit of obscenity. In addition, Section 294 of the IPC punishes an individual for committing obscenity in a public place. 
  5. The Information and Technology Act also calls for rules banning obscene content in electronic media. Section 67 of the IT Act provides for penalties for the publishing of obscene material in electronic media. It can be remembered that any obscenity in electronic form may only be prosecuted under the IT Act and not under the IPC, since section 81 of the IT Act relates to its overriding influence on certain rules.
  6. Sections 2(c), 3 & 4 of the Indecent Representation of Women Prohibition Act, 1986 also deals with the enforcement of these situations.
  7. The Cable Television Network Control Act, 1995 forbids the transmission of obscene content on television.
  8. In addition, Sections 4 and 5A of the Cinematographs Act provide that films should be reviewed before they are published.

Salient features

The following are the features, exclusive to obscenity:

  • that which  depraves and corrupts those whose minds are accessible to such immoral influence
  • That which provoke thoughts of the most impure and libidinous kind.
  • That which has a powerful propensity to degrade through arousing lustful impulses.
  • That which continues to give rise to morally impure feelings.
  • That which passes the permissive boundaries of our collective norms.

Since, ‘obscenity’ is a vague term; it does not have any fixed elements or features. Its features and definitions vary from person to person and from culture to culture. It is nearly impossible to enclose obscenity within one single definition. It was for this purpose that various tests were devised to identify obscenity for further punishment.

  1. Hicklin Test – The Hicklin test was laid down in English law in the case of Regina v. Hicklin. It is argued that a publication may be judged for obscenity on the basis of an isolated part of the work considered outside the context. When implementing Hicklin’s check, the work is taken out of the whole sense of the job, and it is then found that if the research has some obvious effect over the most susceptible audiences, such as Children and weak adults. 
  2. Roth Test – In 1957, a modern criterion was established by the U.S. courts to determine obscenity in the case of Roth v. United States. In this case, it was held that only certain sex-related materials which had the potential of enticing lustful thought were considered to be indecent and that the same could be evaluated from the point of view of the ordinary citizen by introducing contemporary cultural norms. This test was sharper and narrower than the Hicklin test, since it does not isolate the alleged content but limits itself to the dominant theme of the entire material and checks whether or not it has any redeeming social value if taken as a whole.

Landmark judgements

Like many other concepts and conventions, the meaning of obscenity changes from case to case. Some star judgments passed in this context are:

  1. Ranjit D. Udeshi v. state of Maharashtra
  2. The Supreme Court of India confirmed the allegations of obscenity filed against Lady Chatterley’s Lover and barred its release in India. The judges, however, suggested that the definition of obscenity would shift with the passing of time and that what may have been obscene at one point of time might not be viewed as obscene at a later date.
  3. Aveek Sarkar v. State of west Bengal
  4. The court concluded that decisions in such cases must be taken in the light of current national standards and not that of a group of sensitive persons.
  5. K.A. Abbas v. Union of India
  6. The Hon’ble Supreme Court upheld the pre-censorship of material as an exception to the right to freedom of speech and expression. The Court acknowledged, however, that the censors ought to take into consideration the meaning of art when making their judgments. The creative beauty or appearance of an episode robs them of its vulgarity and hurt, and also of what may be socially acceptable and valuable and what may not be.
  7. Bobby Art International v. Omphal Singh Hoon
  8. In deciding whether or not a item depicted in a film is obscene, it should be viewed in the sense of which that object is being represented and should not be removed from the background. Problem of obscenity in the sense of a film named the Queen of Bandit, ruled that the scenes portraying the film could not be a scene in isolation.
  9. Hon’ble court stated that the so-called offensive scenes in the film must be viewed in the sense of the film as a whole and in the meaning that the film tries to communicate to society.
  10. Maqbool Fida Husain v. Raj Kumar Pandey
  11. Delhi High Court, while dealing with the question of whether a nude painting depicting ‘Bharat Mata’ can be said to be obscene or not. The court responded negatively and proceeded to observe that “nudity or sex alone cannot be said to be obscene.

Critical analysis

In an evolving society that is changing with every passing day, it is wrong to have a fixed standard for identifying a crime that is based on the outlook and acceptance of society. Society is never going to accept murder or rape. But if a director attempts to represent the Phoolan Devi’s sufferings, culture may not have embraced it then, but criticizes the decision today. If a photographer wishes to send a message against domestic violence through the bruised bare back of a woman, the picture must be seen within the context of the message and not in isolation.

The Supreme Court, by eliminating the Hicklin test and retaining the more adaptive Group standards test, has done an excellent job. If society accepts the portrayal of sexual activity on the silver screen, it must not be brought down by the court for the sake of a few sensitive persons. If it is appropriate to society in general, it must also be approved by the judge. Materials may sometimes have content that is not acceptable to society, as frontal female nudity is not acceptable in India, but is acceptable in the United States of America and the United Kingdom. In these cases, we need to look at the bigger context, the meaning being transmitted via the otherwise obscene material. The idea would be positive and helpful to community.

The idea would be positive and helpful to community. People should have the freedom to send a message to society through images / films / paintings / writings that, if seen in isolation, would be considered obscene or lascivious. It’s important to see the full picture instead of squinting our eyes to certain sexually explicit scenes. The Court was justified in protecting the interests of the Creators in Aveek Sarkaar case.

Conclusion

The Indian Courts claimed that the definition of obscenity would shift with the passing of time, and that what may have been “obscene” at one point of time should not be treated as obscene at a later date. It is important to mention here that the appropriate degree of obscenity in cinemas, photos, paintings and literature has not yet been defined in India, and there is still much to think about. It has been claimed that sex and obscenity are not necessarily interchangeable, so it is incorrect to define it as inherently lewd or also pornographic or unethical.

Furthermore, it can not be said with any assurance that a novel, a film or a video is obscene simply because some slang and unconventional words have been used, or there is emphasis on sex and description of female bodies, or there are narratives of emotions. It is also important to remember that the finest drawings, sculptures, songs and dances in the country, the lustrous heritage of India, the Konaraks and the Khajurahos, the exalted epics, the lascivious in the fields, can be destroyed by statute, if prudes and prigs and State moralists lay down definitions for obscenity.

With regard to the material accessible on the online platform, it would be inappropriate to classify the characteristics of the site as offensive solely because the content portrays explicit imagery and derogatory language. Such sexual and vulgar content is no longer an unethical or unacknowledged social feature, but rather represents the current trend.

The petition on content regulation of online platforms was brought before the Supreme Court and a final decision on online content and whether there is any requirement for regulation is expected.   However, as of the date, the online platform is free to provide content, but a proper disclaimer would be a check in favor of the content provider showing efforts to restrict the content to an appropriate audience. 

Author: Tejasi Kulkarni from Symbiosis Law School, Hyderabad.

Editor: Anmol Mathur from Symbiosis Law School, NOIDA.

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