Navigating The Jurisprudence Of Obscenity Laws In And Around India: An Examination Of Legal Interpretations
Sudhanshu Tewari
23 Oct 2023 1:58 PM IST
In a recent ruling by the Bombay High Court, dated October 12, 2023, it was held that provocative dance performances and suggestive gestures by women do not constitute "obscene" or "immoral" acts. This decision came almost a year after the Delhi High Court's order, dated November 30, 2022, which restrained social media platforms from circulating an explicit video involving a judicial officer. In a related incident, popular actor Ranveer Singh faced questioning by the Mumbai Police due to sharing images from a seemingly nude photoshoot for a New York-based magazine. These cases raise a common concern: the subjective perception of obscenity.
This article delves into the intricate legal landscape surrounding obscenity laws in and around India, offering an analysis of the term "obscene" in a legal context, exploring various judicial tests, and addressing its connection to the freedom of speech and expression guaranteed by the Indian Constitution.
Deciphering the Notion of "Obscene":
The Indian Penal Code of 1860, (hereinafter “I.P.C”) a comprehensive legal framework, surprisingly does not provide a definition for the term "obscene." After I.P.C, if we turn to the General Clauses Act, 1897, which we usually do in India when we don’t find meanings of specific terms in the parent legislation, one will find that it also does not provide any meaning to the term. This lacuna has led to varied interpretations. The absence of a concrete definition raises the question of what precisely constitutes obscenity in a legal context. Professors Lockhart and McClure grumbled, "No one seems to know what obscenity is. Many writers have discussed the obscene, but few can agree upon its essential nature."
Webster's Third New International Dictionary defines obscenity as "what is repulsive by reason of malignance, hypocrisy, cynicism, irresponsibility, gross disregard of moral or ethical principles." The Oxford Dictionary defines it as "offensive or disgusting by accepted standards of morality and decency." These definitions underscore the intrinsic link between obscenity and morality.
The concept of obscenity is inherently context-dependent and culture-specific, varying from one society to another and evolving with changing social norms and scientific knowledge. As moral standards are subjective, defining obscenity with precision is a daunting task. What is considered a piece of literature in Germany may be obscene in France, and what is considered in both countries as not harmful to public order and morals may be obscene in India.
Courts around the world have grappled with this challenge, leading to the formulation of various tests to determine whether an act can be deemed obscene.
The England Perspective:
Obscenity laws in England have evolved over time, free from the constraints of a written constitution. For the first time, in the case of R. v Curl in 1727, it was laid down that obscenity pertains to a common law offence in England. Thereafter, the "Hicklin Test," laid down in Rv Hicklin in 1868, has been a key reference point for English courts for decades wherein, Lord Cockburn J. while laydown the aforesaid test observed:
"I think the test of obscenity is this, whether the tendency of the matter charged as obscenity is to deprave or corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall.”
The test focuses on whether material has the potential to deprave or corrupt those whose minds are susceptible to immoral influences. However, the Hicklin Test's inherent flaw lies in its reliance on individual susceptibility, making it challenging to apply consistently.
In 1959, the test was codified in the Obscene Publication Act, introducing the requirement to assess material "as a whole." This change allowed judges to evaluate obscenity on a case-by-case basis, considering all relevant circumstances. The application of obscenity laws in England faced scrutiny in the 2012 case of Rv Peacock when a London jury rejected the assertion that homosexual pornography was inherently depraving.
The American Perspective:
The United States initially adopted the Hicklin Test, but it evolved in the mid-20th century. It was in Butlerv. Michigan in 1957 that SCOTUS first rejected the "most susceptible person" criterion of the Hicklin Test. Then in Rothv. United States, in 1957, the Court abolished the test altogether and finally the Court replaced it with the "Miller Test" in the case of Millerv. California.
This test relies on three criteria: (a) whether the work, taken as a whole, appeals to the prurient interest according to contemporary community standards, (b) whether it depicts or describes sexual conduct in a patently offensive way as defined by state law, and (c) whether it lacks serious literary, artistic, political, or scientific value.
This test provides more clarity and shifts the focus to community standards, thereby acknowledging the dynamic nature of morality.
The Indian Perspective:
Obscenity laws in India trace their roots to colonial-era legislation and international agreements. Sections 292 and 293 of the I.P.C., dealing with the sale of obscene materials, were amended to comply with the InternationalConvention for Suppression of the Circulation of and Trafficking in Obscene Publicationsof 1923.
While these sections do not provide a distinct definition of "obscene," the severity of punishment varies according to the effect on the listener or viewer.
The Constitution of India and Law of Obscenity:
The Indian Constitution, under Article 19(1)(a), guarantees freedom of thought and expression, subject to reasonable restrictions, including public morality and decency. As stated above, obscenity and morality go hand in hand; the gamut of the law of obscenity stands pivoted on this exception carved out by Article 19(2) of the Constitution.
In Ranjit D. Udeshiv. State of Maharashtra, the constitutionality of Section 292 IPC was challenged. Upholding the vires of Section 292 and referring to Article 19(1)(a), the Supreme Court observed that this cherished freedom of speech is intended to improve political or social conditions or enhance human understanding, and it is the cornerstone of our democracy. This freedom, however, is subject to reasonable limitations that may be deemed appropriate in the interest of society at large, with public morality and decency being one such constraint.
In Aveek Sarkar v. State of West Bengal, the Supreme Court referred to some of the English, U.S. and Canadian judgments, and finally, it rejected the Hicklin test for determining obscenity and upheld the "Community Standards Test" as laid down by the SCOTUS.
In a landscape where moral standards are subjective and ever evolving, a precise definition of "obscenity" remains a challenge. While a challenging task, given the subjective nature of the term, reference can be made to landmark cases and international legal standards. This would provide a much-needed framework for a modern interpretation of obscenity in India, one that respects the delicate balance between freedom of expression and societal values.
The author is a student at Dr. Ram Manohar Lohiya National Law University. Views are personal.
