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Key takeaways

  • The first prominent case on obscenity that still stands to this day as a reference point on the topic is, Ranjit D Udeshi vs State of Maharashtra [1965 AIR 881].
  • It was against the publication of D.H Lawrence’s book ‘Lady Chatterley’s Lover’.
  • ‘Hicklin’s test’ was the test used to determine whether certain content was obscene or not.
  • The IT Act 2000 is the primary law in India dealing with cybercrime and e-commerce.

Introduction

In a diverse nation like ours, with different cultures and traditions what may or may not spark controversies, hurt someone’s sentiments, or may even lead to conflict, is not predictable. Recently, a photoshoot that Bollywood actor Ranveer Singh gave for a magazine took over the limelight in national news and put a start to conversations on how his act amounts to obscenity under the Indian legal system. Undoubtedly, India has had a long history of filing cases of obscenity against actors, models, and even books, at various points in time. Opinions regarding changes to be brought about in laws surrounding obscenity have also been in discussion. It has not always been easy to mark accurate distinctions between constitutional morality and public morality. This article tries to look into some of the prominent cases and legislations regarding obscenity, and how the ambit of the term has evolved through the years.

Prominent Cases Laws on Obscenity

Living in society requires its members to follow certain norms. The line between what lies outside of the limits of social decency and what is considered acceptable is a very thin one. At different times, the judiciary has had to decide upon controversies and such judgements have brought about changes in the concepts of sexuality and morality. The first prominent case on obscenity that still stands to this day as a reference point on the topic is, Ranjit D Udeshi vs State of Maharashtra [1965 AIR 881], which was against the publication of D.H Lawrence’s book ‘Lady Chatterley’s Lover’.

The book had faced similar charges of obscenity and was also banned for some time in countries like the USA, UK, Japan, Canada, and Australia. In India too, in the year 1965, the Magistrate’s Court found the book to be obscene and the partners of a bookstall in Bombay were prosecuted for selling the book. They went for an appeal to the High Court, and since the judgement was again unfavourable, they moved the Supreme Court. It was during these proceedings that the apex court raised validity over the ‘Hicklin’s test’ which basically is, "whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such influences, and into whose hands a publication of this sort may fall." This test was laid down in the English case Regina v Hicklin [1868 LR 3 QB 360]. Following this test, the Court found that the elements of obscenity that the book allegedly had, were only trivial enough to be overlooked. However, the test necessarily had to be made modifications according to diligence, in the Indian context.

Another similar instance was Samaresh Bose vs Amal Mitra [1986 AIR 967] in which the famous author Samaresh Bose was accused of writing and promoting obscene text via novels that were published in the Sarodiya 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 judgement, 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.

In Sada Nand And Ors. vs State (Delhi Administration) [1986 (2) Crimes 474] it was held that the audience of allegedly obscene content too is a matter to be considered in such cases. The social outlook of people who are generally expected to receive such content was also important. It should also be noted that the Hicklin's test was not used in this case as it was considered too redundant and conservative.

Later in 2014, in Aveek Sarkar & Anr. vs State Of West Bengal And Anr. (2014) [4 SCC 257] in which a German magazine called ‘STERN’ had published photos of world-renowned tennis player Boris Becker and his girlfriend posing nude. This was originally published in the year 1993, and was reproduced in India in 2014 by Anandabazar Patrika, a newspaper in Kolkata. It was argued by the respondents that these photos could corrupt the youth of the nation, was against the dignity of womanhood, and also against the traditions and values of the Indian society. However, the Court was of the stand that a nude photo of a woman cannot be considered obscene unless it had intentions to sexually arouse its viewers.

Celebrities too have faced allegations of crossing the limits of decency in several instances. Aamir Khan’s poster showing him almost fully nude, for his 2014 film ‘PK’ was charged with a civil case, and was indicted to be “vulgar and obscene”. Vidya Balan too had to face charges for certain scenes in her 2011 movie ‘The Dirty Picture'. Akshay Kapoor, Shilpa Shetty, Milind Soman, and many more have been arraigned with obscenity charges in the past years.

Legislations governing charges of obscenity

There are certain legislations passed over the years that lay out criteria to decide what is to be considered obscene or indecent and what is not. Few of them are the following.

  • Indecent Representation of Women (Prohibition) Act, 1986: This Act was passed in the context of increased cases of the derogatory depiction of women in India. It was introduced as a Bill in the Rajya Sabha by Margaret Alva. According to this Act, indecent representation of women is defined as “the depiction in any manner of the figure of a woman; her form or body or any part thereof in such way as to have the effect of being indecent, or derogatory to, or denigrating women, or is likely to deprive, corrupt or injure the public morality or morals.” The Act also prohibits indecent representation of women through advertisements or in publications, writings, paintings, figures, or in any other manner. Any person who contravenes the provisions of the Act is punishable with imprisonment for a term which may extend to two years. With an increase in issues of objectification and derogatory representation of women in various manners, a need was felt to amend the existing provisions to include other media other than print, and remove ambiguity. As a result, few changes were drawn upon the Act by the National Commission for Women in 2009, and the Indecent Representation of Women (Prohibition) Bill, 2012 was introduced in the Rajya Sabha in December 2012. However, the bill has not yet been passed.
  • Cable Television Networks (Regulation) Act, 1995: This Act came into being in the year 1994, by an Ordinance brought about by the President. A bill on the same was presented and passed by both houses of Parliament. This Act regulated content telecasted and put a check on programmes that can potentially offend any sections of the society, or do not adhere to standards of morality and decency. It also set forth the criteria of punishment to be followed in case of violation of these standards.
  • The Young Persons (Harmful Publication) Act, 1956: This Act was enacted by the Parliament in order to restrict the publication of any material that may incite a child or adolescent towards committing a crime, or may corrupt, or adulterate their mind. This included any books, magazines, pamphlets, leaflets, or newspapers, with or without graphic content. It also prescribed punishment or fine to be imposed, on committing any such act.
  • The Information Technology Act, 2000: This Act was passed by the Parliament and is the primary law in India dealing with cybercrime and e-commerce. By an Amendment brought about in it in the year 2008, the Act now includes provisions addressing pornography, child porn, sending of offensive messages, publishing others' private images, etc. Publishing any material of lascivious nature or having appeal to lewd interests is also punishable with imprisonment, fine, or both, by this Act.

Conclusion

Debates regarding expression and morality and their standards and limitations have a long history in our society. The laws governing such acts are still criticised for being largely vague and ambiguous. However, case laws that have developed throughout the years have provided the judiciary with ample material as to what needs to be considered obscene and what need not. The right to Freedom of Speech and Expression is a fundamental right guaranteed under Article 19 of our Constitution. Its provisions, if not understood and interpreted rightly, can lead to unnecessary provocations in society. This is not justifiable. Therefore, it is important to consider a lot of factors such as the context, nature, motive, etc. in order to arrive at well-founded judgements that contribute to the evolution of social morality.


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