Expression of sexual agency or obscenity? A rekindled debate with FIRs against Milind Soman and Poonam Pandey

The exercise of the rights carries with it special duties and responsibilities. It may, therefore, be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals.

In general parlance, any form of personal “agency,” is alluded for being an individual’s ability to act in a way to accomplish his or hers objectives. To have agency in any of your pursuits, is to have the capacity to behave or act in a way that will bring you the outcome or results that you desire. When we talk about “Sexual Agency,” we may refer to an intricate group of rights, knowledge, skills, personal authority and/or abilities.

Philosophically, any freedom that is limited is no longer a freedom. It has become a privilege levelled out of authoritarian limitations. Article 19(2) of the Indian Constitution sanctions legislative abridgement to the right to freedom of speech and expression in the interests of decency or morality. The word “decency” in Article 19(2) is often interpreted parallel with “morality” that shapes the compendious term, “morality“. Furthermore, the expression “indecency” is by all accounts effectively interchangeable with “obscenity”.

The issue of obscenity and the legitimacy of legal controls on sexually explicit material, both print and audio-visual, has been an inexorably wide running and furious discussion. Obscene acts in a public place are punishable in India but with evolving social values, what constitutes ‘obscene’ under the law must also be subjectively amended. As it would be possibly expected, in an area which involves a subtle balancing of the public interest in free speech with the public interest in the moral fabric of society, there are extensively varied views, not only as to what action should be taken in the case of obscene literature or motion pictures but also as to whether or not a particular book, picture or pamphlet is actually obscene. When it comes to fundamental rights of an individual, which are sacrosanct, particularly the right to free speech and expression, which constitutes to be the very foundation of a democratic setup, acting in a video or film, which may be perceived by some as obscene, yet some others
may perceive it as artistic, and hence it cannot be a ground to jail a person.

Freedom of speech and expression is a right to be exercised responsibly i.e. one must know the limits with in which it can be exercised. Freedom of expression is a fundamental human right being recognized internationally, both in itself and due to the role it plays in guaranteeing other rights. Article 19 to the International Covenant on Civil and Political Rights states that: Everyone shall have the right to hold opinions without interference.

Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals.

Recently, Goa police has registered a case against actor-model Milind Soman and Poonam Pandey for having allegedly promoting obscenity in public place. Actor-model Poonam Pandey was arrested by the Goa Police for allegedly trespassing on a government property and shooting an “objectionable” video at a dam in Canacona town of South Goa. The locals of Cancona objected the shoot, stating that it was a misuse of the location and lodged an FIR against the actor under section 294 of IPC (obscene act in a public place). Notably, the discussion was supplemented with Milind Soman posting a classic nude picture on Instagram, with the caption, “55 & running”. Soman celebrated his 55th birthday by running full monty and capturing his freedom through an Instagram post at a Goa beach. The case was registered by a political outfit, Goa Suraksha Manch (GSM), under IPC section 294 (obscene act in a public place) and section 67 of the Information and Technology Act. GSM asserted that the picture projected Goa in an objectionale manner and promotes obscenity in public space.

Both the incidents acted as a primordium to the discussion concerning sexual expression and the consti tutional guarantees of freedom of expression. It is not surprising that these two high – profile cases of “obscenity” saw the netizens’ fury in the same week. India has had a colourful history of prosecuting people for obscene conduct , obscene content , and even obscene language. From novels like Lady Chatterley’s Lover and paintings like ‘Bharat Mata’ to biopics like Bandit Queen and comedy content on AIB (a youtube channel), there have been allegations of obscenity against all kinds of art and popular culture.


“Obscenity is a function of culture, a function in mathematical sense, I mean, its value changing with that of the variables on which it depends”.

AP Sabine The words ‘obscene’ and ‘obscenity’ are not defined clearly in the IPC. The Oxford dictionary defines obscene as ‘offensive or disgusting by accepted standards of morality and decency’. Sections 292, 293 and 294 of the IPC provide for crimes relating to obscenity. Section 292 of IPC only states that if any material taken as a whole, is lascivious or appeals to prurient interest and tends to deprave and corrupts the persons who read, see or hear the matter contained will come under the ambit of obscenity. Further, Section 294 of IPC punishes a person for committing an obscene act in public. The Information and Technology Act also gives provisions to prohibit obscene content in electronic form. Section 67 of IT Act gives punishment for publishing obscene material in electronic form. It is to be noted that any obscenity in electronic form can only be tried under the IT Act and not under IPC. This only shows that the right to freedom of speech and expression is not absolute. Article 19 of the Constituti on of India, which guarantees the right also provides for reasonable restrictions on various grounds, including that of decency and morality. This means that free speech has to be balanced against the contemporary community standards of morality when it comes to penalising obscene acts or content.

The meaning of the term ‘obscene’ came up for consideration before the Supreme Court of India in Shri Chandrakant Kalyandas Kakodkar v. State of Maharashtra. Indian courts have often settled the debate between morality and freedom in favour of artistic freedom, such as in the M F Hussain judgment of 2008 and the Perumal Murugan judgment of 2016. In the latter, the Supreme Court held that “art is often provocative and is not meant for everyone”— material cannot be labelled as obscene simply because it is unpalatable to one section of society. Nudity, or the state of being naked, is not enough to constitute obscenity. It has been established over the years by various High Court and Supreme Court judgements. Nudity in art and painting has long been neglected as part of obscenity. . It must respect our guaranteed right to freedom of expression.

Hicklin Test In 1965, the landmark judgment of the Supreme Court, Ranjit D. Udeshi v. State of Maharashtra adopted the Victorian-era Hicklin test. The Hicklin’s test was laid down in English law in the case of Regina v. Hicklin. On Application of Hicklin’s test, a publication can be judged for obscenity based on the isolated part of the work considered out of the context. While applying Hicklin’s test the work is taken out of the whole context of the work and then it is seen that if that work is creating any apparent influence on most susceptible readers, such as children or weak-minded adults.

In Aveek Sarkar vs State Of West Bengal, the Supreme Court did away with the British Hicklin test and adopted the American Roth test, instead. In 1957, a new test was developed by US courts to judge obscenity in case of Roth v. United States, In this case it was held that only those sex-related materials which had the tendency of exciting lustful thoughts were found to be obscene and the same has to be judged from the point of view of an average person by applying contemporary community standards. This test was sharper and narrower than the Hicklin’s test as it does not isolate the alleged content but limits itself to the dominant theme of the whole material and checks whether, if taken as a whole, it has any redeeming social value or not. The law hasn’t been equipped enough to define obscenity. In India, the Supreme Court in the instant case has held that ‘the question of obscenity must be seen in the context in which the photograph appears and the message it wants to convey’. Leaving obscenity without a de finition, however, seems reasonable, since the flexible nature of the terms makes it difficult to attribute any single objective meaning to the term, but the issue arises when there is a misinterpretation. It is not open to judges to pick one part of a judicially developed test, established through years of gradual and incremental precedent, and preclude another part that is inconvenient or is badly arranged to the end that they wish to reach. On the off chance if a judge wishes to depart from a test, than it is incumbent upon him to state the old test, provide his new version, and give reasons for doing so. This is how the Court approached in replacing Hicklin with Roth in Aveek Sarkar, and how a Court is normally supposed to act.

As explained, only material with the legal definition of obscenity can and should be constrained by administrative action. Such action must be supported by the interest of the state in public morality Yet the Supreme Court has held that the State interest in morality does not allow it to smother the advocacy of immoral ideas, the presentation of which cannot be characterized as “prurient,” a decision probably justified as a safeguard upon the rights of free speech. But, in regard to naive sections of the populace, especially children a program of limited censorship, is completely in order.

The bail order in Pandey’s case rightly mentioned, “A professional shoot towards the making of a video or a film, in my considered opinion cannot be outright termed as obscene or immoral merely because some members of the public say so, or there is public outcry about the same. Films and videos are covered under the right to expression, which is a fundamental right granted by our Constitution.” It is critical to take note of that when such portrayal is in pursuance of art, it is an exception. Making of films obviously is an artistic endeavour and even if it was otherwise, determination of the same would be a matter of trial. One cannot, given the facts and circumstances, come to a conclusion that all nudity is obscene.

India’s flawed prudence when it comes to nudity needs to be addressed. The quantum of nudity to be tagged obscene, the public appropriateness standards, and the benchmarks to decide what is lascivious or what is not, is fundamentally subjective akin to the social diversity of the sapiens. It has to be examined in a factspecific manner. A man running all monty on a beach to promote physical fitness may be applauded in metropolitan cities regards his sexual agency, but a woman expressing her sexuality is reprimanded. In terms of the Indian social protocol, nudity is still subjected to taboo, being linked to immorality, indecency, and prurient values. Nevertheless, we as a progressive society do need to respect the changes that the present-day demands, and need to rethink upon the moot question to synonymize all sorts of nudity with obscenity. The laws must be reformed to uphold the civil liberties jurisprudence in a manner which would be in consonance with the evolving social mores and expanding the scope of sp eech and expression in the Indian society.