Legal Contours Of Artistic Nudity

The reference in the aforementioned case is to the FIR lodged against the famous actor Ranveer Singh for posing and publishing his nude photo shoot pictures on various social media portals. The FIR has been lodged under Sections 292, 293 and 509 of the Indian Penal Code, 1860 (hereinafter referred to as "IPC") and Section 67A of the Information Technology Act, 2000 (hereinafter referred to as "IT Act").

This incident thus brings to the fore the much-debated question of artistic freedom vis-a-vis the fundamental right of freedom of speech and expression. Furthermore, it also makes the artists wonder when their artistic expressions might become an invitation for penal liabilities. This article thus delves into the Indian cultural history pertaining to nudity, the contours established by law, and the evolving concepts of obscenity, morality and decency.

Indian Cultural And Religious History:

Be it religious or cultural history, the Indian society has not remained untouched by naked human forms. In fact, to a large extent, the concept finds its manifestation in religious and cultural practices with much reverence. On the religious front, the relinquishment of clothes has been considered symbolic of renunciation of all worldly attachments. As regards our culture, nude paintings and art forms have been appreciated from times immemorial i.e. from the era of Khajuraho and Kangra paintings to the current day of modern art. In fact, the same has been recognized by the courts as 'an artist's emotional connection to his perceptual reality ' and by the Government- a part of the rich Indian culture.[ii]

As can be surmised from the abovementioned cases, nudity or a naked human body has never been a mark of obscenity in itself. A closer look at the law applicable to the same shall bring greater clarity on this aspect.

Legal Contours:

Article 19 of the Constitution ensures to all citizens the freedom of speech and expression subject to reasonable restrictions of sovereignty and integrity of India, security of the State, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. A manifestation of these reasonable restrictions of 'decency and morality' can be found in the Sections 292 and 293 of the IPC and Section 67A of the IT Act.

As per Section 292 of the IPC:

"(2)Whoever—
(a) sells, lets to hire, distributes, publicity 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 ...shall be punished..."

Furthermore, Section 292(1) clarifies that "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 persons who are likely, having regard to at relevant circumstances, to read, see or hear the matter contained or embodied in it." (bold supplied)

In the light of these provisions, two questions that one is compelled to address in the case under study are:

• 1)Whether the representation can be considered as obscene i.e. a violation of the constitutional parameters of decency and morality?
• 2)Whether the representation can be considered in isolation from its circumstances and context?

Addressing the first issue, the IPC does not provide any definition for obscenity. In such a scenario, the courts have over time evolved certain tests to evaluate obscenity in such representations. The first of such tests was laid down in the case of Regina v. Hicklin (1868). [iii]In this case, Cockburn, C.J. laid down the test of obscenity in the following words "I think the test of obscenity is this, 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." The aforementioned test was called the Hicklin Test. This test was followed by the Indian Courts[iv] up until 2014, post which the same was replaced with the Community Standards Test as laid down in the case of Roth v. United States (1957).

In the case of Aveek Sarkar & Anr v. State Of West Bengal And Anr (2014)[v], the Apex Court described the concept of 'obscenity' as- a representation that shall arouse the feeling of or reveal an overt sexual desire. The Court held that the picture should be suggestive of a depraved mind and designed to excite sexual passion in the persons likely to see it. The same shall be determined by examining the particular posture and the background in which the person is depicted. The Court, in this matter, went on to hold that obscenity is to be judged from the point of view of an average person by applying the contemporary community standards instead of the Hicklin Test.[vi]

Thus, a marked shift in the approach of the courts has been seen over the years. The artistic work is now to be examined from the point of view of an average reasonable person and not of one who is open to such influences. In addition to this parameter, it is for the judges to satisfy themselves beyond reasonable doubt regarding the tendency of the given representation to insight lustful desires in the minds of such reasonable persons.

Coming to the second issue, in the past, as per the Hicklin test, a publication had to be judged for obscenity based on the isolated passages of work considered out of context. However, a more progressive approach was adopted while including the provision in the IPC. As per Section 292 of the Code, the representation is required to be seen 'as a whole.'

In the case of Bobby Art International & Ors. v. Om Pal Singh Hoon (1996) [vii], the Hon'ble Supreme Court while dealing with obscenity in the context of the film called Bandit Queen pointed out that the so-called objectionable scenes in the film have to be considered in the context of the message that the film was seeking to transmit in respect of social menace of torture and violence against a helpless female child which transformed her into a dreaded dacoit.

Thus, an isolated reading of the alleged obscenity, in the absence of the whole context, would amount to a wanton violation of the letter of the law.

Having examined these two questions, we must now look at the factual matrix of the instant case. Notably, the given article contains an interview of the Bollywood Actor accompanied by a photo shoot. A few of these pictures comprise the actor posing naked, yet with enough care to not expose his genitals. Whereas, in some other pictures he can be seen posing in a manner so as to partially expose his posterior. The actor can be seen posing in isolation, with no objects in the background and with just a carpet on the floor. In the interview, the artist has talked about his journey as an actor. A comparison has been drawn by him between the nakedness of his physical self (as depicted in the pictures) and his emotional self (as depicted in the movies), especially in the light of the profession that he hails from. He has talked about how exposing his naked physical self seemed like a much simpler task to him than baring his soul day in and day out for some of the characters played by him as an actor. In this article, he has also discussed his understanding of life, his zest to perform, his idea of self-expression through his clothes and mannerisms, and his understanding of the mortality of the human body.

In the light of all these facts and the legal precedents, neither the postures nor the depictions come across as an attempt to arouse the prurient interests of the masses. Rather, as a reader, the pictures can at the most be perceived as a medium of self-expression by the actor and an attempt to put forth an artistic representation of himself. The fact that the same has been found abhorrent or distasteful by some cannot be a sufficient argument to make the matter fall within the four corners of obscenity. Moreover, looking at the pictures in isolation from the interview would be a violation of the explicit provision of the Code.

Nonetheless, it shall now be for the court to examine whether the given matter would be held as one of obscenity in the light of the community standards test and its judicial wisdom.

Furthermore, to establish an artists' guilt under Section 509 IPC an essential ingredient of mens rea must be fulfilled whereby an intention to insult the modesty of women must be proved by the prosecution beyond reasonable doubt. In the instant matter such an intention seems absolutely missing as the pictures seem nothing more than an expression of the actor's creative expression of his own self. Nor can the material be perceived as 'sexually explicit' as is the requirement of Section 67A of the IT Act.

Obscenity, Morality And Decency In The Changing Times:

The concept of obscenity under the IPC has its roots in the Obscene Publications Act, 1925. Section 292 IPC was introduced to give effect to Article 1 of the International Convention for Suppression of or Traffic in Obscene Publications signed by India in 1923 at Geneva. Time and again artists have been brought under the scanner of this Section, costing them both time and mental peace. The Section has often been misused to attack the artists' constitutional freedom under Article 19 of the Constitution. One suggestion by the experts in this regard has been that for any case to be registered under this provision a prior sanction of some executing authority must be mandated. This step would help sieve out some frivolous cases right at the inception.

Another aspect that requires due attention is the judicial interpretation of 'morality and decency.' How morality and decency were perceived by the masses a hundred years back would be quite different from the current times. Morality is a variable of both – time and geography. Additionally, with newer art forms coming up, progressing globalisation and art becoming a tool of social change, the interpretation of morality and decency must also evolve according to the changing times. Today, rather than arousing desire, contemporary nudes seem to want to break the taboos, especially those surrounding the body and defy the traditional morals that still govern society. [viii]It is thus for the Courts to adopt a more liberal approach while construing these concepts to preserve artistic freedom under Article 19 of the Constitution, to ensure that the medium of Art can be used to usher in a positive change in the societal outlook and to increase awareness about aspects drowned out in the noise of traditional morality.

The author is an Advocate based in Delhi. Views are personal