To Speak Or Not To Speak: Understanding TheThin Line Between Free Speech And Obscenity

At the present moment it is important to understand that how India's obscenity laws have been applied over the period of time, especially in the age of social media. It is pertinent to note that obscenity is regulated by a number of laws in India, especially when it comes to govern digital or electronic media. The sale, display, or transmission of pornographic material, even in electronic form, is covered under Section 294 of the Bhartiya Nyaya Sanhita. Content which is lascivious, appeals to prurient interests, or has the potential to deprave and corrupt individuals who are exposed to it are considered as an obscene content. A fine of up to Rs 5,000 for first-time offenders and up to two years in prison are the possible penalties for acting in contrary to this provision. Additionally, Section 296 of the Bhartiya Nyaya Sanhita penalizes those who conduct in an obscene act in a public place or recites and utters obscene songs or words in a public place. Apart from that the publication or transmission of an obscene content on online platform falls under the ambit of Section 67 of the Information Technology Act, 2000. The wordings of Section 67 of the IT Act are identical to that of Section 294 of BNS. However, the punishment is more severe under the former.

However, the question which now arises is this that what is the standard of deciding whether an act falls under the ambit of obscenity or not? For centuries the Courts in India have applied the Hicklin Test laid down in the 19^th century by Chief Justice Alexander Cockburn for deciding upon the cases of obscenity.[i] The Hicklin Test states that for deciding upon obscenity one needs to look whether the alleged content that is accused of being offensive has the potential to corrupt and deprave people whose minds are susceptible to such immoral influences and into whose hands a publication of this kind may fall. If it is so then there lies a huge probability probable that the content could evoke thoughts of a highly libidinous and impure nature in the minds of both young and aged people.[ii] It is quite unfortunate that even a century later, in the case of Ranjit D. Udeshi v. State of Maharashtra,[iii] the Indian Supreme Court upheld and applied Hicklin Test, which had come to represent morality throughout the Victorian era. It wasn't until 2014 that the Apex Court recognized their grave blunder and, in the case of Aveek Sarkar v. State of West Bengal,[iv] abandoned the centuries-old Hicklin test in favour of the community standard test to adjudicate upon whether the putative content is obscene or not. Nevertheless, the American Supreme Court's community standard test is not perfect and has certain blemishes. It is because the test is highly subjective in nature as it becomes quite challenging to determine the threshold standards of a particular community. Hence it can be said that rather than applying the Community Standard Test, the Indian Supreme Court should have imported concepts from Canada and South Africa, wherein the courts have classified pornographic/obscene content into three categories. The first are those that exhibits violent or explicit sex. The second is the nonviolent explicit sex that exposes participants to harsh and demeaning treatment. Whereas the third category comprises of the nonviolent, explicit sex that is neither dehumanizing nor degrading. It is thus reasonable to forbid the first two types of content, and doing so is permitted under the constitution. It is because the primary goal of censoring such content is to save the community from damage, and not to uphold the principles of public morality. However, the third category is constitutionally protected and is thus immune from the swords of censorship.[v]

It is pertinent to note that in regard to matters of sexuality, Indian society is still very much puritanical. In addition to it there also exists a common propensity among the people to label any sexually explicit content as obscene, regardless of its context or intent. The fear is also reflected in our obscenity laws, which show a paternalistic concern for the moral decay and depravity of those who consume allegedly obscene content, even when adults actively consume it. Judicial impulse, with little consideration for how it comports with empirical reality, is also responsible for the moral damage presumptions that underlie the current legal regime on obscenity.

It is interesting to note that two of the greatest Urdu writers of the Twentieth Century, Sadat Hasan Manto and Ismat Chughtai, were arrested and put on trial for the charges of obscenity. The same happened because, in their short stories, both Chughtai and Manto constantly questioned the boundaries of social acceptance by candidly and openly discussing tabooed subjects like sexuality and women's roles in the home and society, which agitated some readers. It is noteworthy that the short story which was responsible for Chughtai's trial can be interpreted as a more comprehensive critique of the widespread sexual repression that was prevalent in the society at the time. Hence if analyse the trials of Manto and Chughtai then we can say should that the law against obscenity is mostly applied as a tool for the purpose of cultural control. As Lawyer Gautam Bhatia rightly points out that under the guise of moral perversion and corruption, the present law sets limits on what may and cannot be stated, as well as what subjects and ideas are appropriate for public discourse. It is therefore an effort to define and then enforce standards of decency and conduct that one segment of a community believes in and then forces on the other members of the society.[vi] Regretfully, our Parliament missed the golden opportunity to rectify the Victorian wrong and include the exact same obscenity clause in the Bhartiya Nyaya Sanhita which was existent in the Indian Penal Code.

As a result, the role of the courts becomes more important than ever before. As previously said, the Anglo-American Doctrine is based upon the idea of public morality. In contrast, the courts in South Africa and Canada have employed harm-based doctrine in deciding upon the legality of an alleged obscene act. It is pertinent to note that it is the Anglo-American approach which serves as the primary source of inspiration for India's law on obscenity prevention. However, there will always exist a problem of subjectivity if we employ the Anglo-American Doctrine. Additionally, it not only renders our obscenity law ambiguous, but it also subordinates citizens' fundamental rights to public morality. Therefore, the authors believe that the Indian Supreme Court should abandon the Anglo-American paradigm. Instead, the Apex Court needs to follow the Canadian-South African model, which interprets injury in terms of defending long-standing fundamental principles like equality and dignity. Herein the alleged content may be prohibited and its creator be put on trial only if its content leads to any kind of subordination. It is important that the boundaries of obscenity are carefully drawn while taking into account socioeconomic realities and prevailing community standards. The laws should not be designed to regulate consenting adult expression, but rather to penalize the exploitation of marginalized and subjugation of constitutional ideas. Accordingly, the authors believe that by applying the harm-based test, the principle of anti-subordination, and the interpretation of morality under Article 19 as constitutional morality, we can make sure that the law on obscenity is not employed by the government and its agencies to create and enforce standards of behaviour and civility, but rather to censor speech, which goes against the letters and spirit of our constitution.