Expression of sexual agency or obscenity? A rekindled debate with FIRs against Milind Soman and Poonam Pandey - The Daily Guardian
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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.

Rasveen Kaur Kapoor

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INTRODUCTION
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.

THE REKINDLED DEBATE
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 LAWS IN INDIA

“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.

TESTS FOR OBSCENITY
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.

ROTH TEST
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.

CONCLUSION
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.

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AN ASSOCIATION OF CORPORATE BODIES CAN ESTABLISH A CAPTIVE POWER PLANT PRIMARILY FOR THEIR OWN USE UNDER THE ELECTRICITY ACT: SUPREME COURT

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The Supreme Court in the case Chhattisgarh State Power Distribution Company Ltd. vs Chhattisgarh State Electricity Regulatory Commission observed that a captive power plant primarily for their own use can be established by an association of corporate bodies.

The requirement would be that the consumption of SBIPL and SBMPL together should not be less than 51% of the power generated. Admittedly, the joint consumption by SBIPL and SBMPL is more than 51% and under the provisions of the said Act, the use of electricity by it would be for captive use only even an association of corporate bodies can establish a power plant. Since SBMPL holds 27.6% of the ownership, the requirement of not less than 26% of shares is fulfilled by SBMPL as SBMPL holds 27.6% equity shares in SBPIL.

The fourth proviso to sub­section (2) of Section 42 of the said Act would also reveal that surcharge would not be leviable in case open access is provided to a person who has established a captive generating plant for carrying the electricity to the destination of his own use and under Section 9 of the said Act, could be an individual or a body corporate or association or body of individuals, whether incorporated or not, it is clear that the person will get benefit even an association of corporate bodies can establish a captive power plant it has been seen. The definition of “person” is wide enough to include any company or body corporate or association or body of individuals, whether incorporated or not, or artificial juridical person it should be primarily for the use of the members of such co­operative society or association is the requirement, the Bench observed while referring to the provisions of the Electricity Act.

The BPIL, the respondent contended and supported the impugned judgment that no permission is required from the Commission for supply of electricity for its own use. Thereafter the appellant Company contended that unless SBPIL consumes 51% of the aggregate electricity generated by it, it will not be entitled to get the benefit under Section 9 of the said Act, in an appeal filled before the Apex Court.

An appeal was dismissed by the Appellate Tribunal for Electricity filed by the Company further The Commission held that SBPIL was entitled to supply electricity to its sister concern SBMPL and the same would qualify to be treating as own consumption and within the ambit of Section 9 read with Section 2(8) of the Electricity Act, 2003 and Rule 3 of the Electricity Rules, 2005 SBPIL submitted a petition for providing open access and wheeling of power through the transmission system of the Chhattisgarh State Power Distribution Company Ltd (Company) for captive use by SBMPL to the Chhattisgarh State Electricity Regulatory Commission, the commission. A Captive Generation Plant is established by SBPIL, and is a sister concern of SBPIL Shri Bajrang Power and I spat Ltd and Shri Bajrang Metallics and Power Ltd, SBMPL.

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Where the crime was committed the remission or premature release policy of the state has to be considered: Supreme Court

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The Supreme Court in the case Radheshyam Bhagwandas Shah, Lala Vakil vs State of Gujarat observed that where the crime was committed has to be considered in the remission or pre­mature release in terms of the policy which is applicable in the State.

While allowing the writ petition the court observed and contended that Once the crime was committed in the State of Gujarat, after the trial been concluded and judgment of conviction came to be passed, all further proceedings have to be 6 considered including remission or pre­mature release in terms of the policy which is applicable in the State of Gujarat where the crime was committed and not the State where the trial stands transferred and concluded for exceptional reasons under the orders of this Court, as the case may be. The court further stated that under Section 432(7) CrPC the appropriate Government can be either the Central or the State Government but there cannot be a concurrent jurisdiction of two State Governments.

the appropriate Government in the ordinary course would be the State of Gujarat. But the case was transferred in exceptional circumstances by this Court for limited purpose for trial and disposal to the neighboring State i.e., the State of Maharashtra by an order dated 06.08.2004. ordinarily, the trial was to be concluded in the same State and in terms of Section 432(7) CrPC as the crime in the instant case was admittedly committed in the State of Gujarat, observed by the Apex Court.

he application for pre­mature release has to be filed in the State of Maharashtra and not in the State of Gujarat, as prayed by the petitioner by judgment impugned dated 17.07.2009 As His petition filed in the High Court of Gujarat was dismissed taking note of Section 432(7) CrPC on the premise that since the trial has been concluded in the State of Maharashtra. Thereafter He had filed his petition for pre­mature release under Sections 433 and 433A of the Code of Criminal Procedure, 1973 stating that he had undergone more than 15 years 4 months of custody.

The bench comprising of Justice Ajay Rastogi and the justice Vikram Nath observed and noted that under Section 432(7) CrPC can be either the Central or the State Government but there cannot be a concurrent jurisdiction of two State Governments of the appropriate Government.

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Adopt roster based reservation for preferential candidates as followed by JIPMER: Supreme Court directs all AIIMS institutes

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The Supreme Court in the case Students Association AIIMS Bhopal And Or’s. v. AllMS and Or’s observed and directed all AIIMS Institutes to adopt roster-based reservation followed by Jawaharlal Institute of Postgraduate Medical Education and Research, Pondicherry (JIPMER) as a plea was filled in the Court seeking direction to AIIMS to have a defined criteria for arriving at seat matrix for institutional preference candidates in INI-CET examination.

the order of the Apex Court in the case AIIMS Students’ Union v. AIIMS And Or’s, would not be applicable if It emphasized that if the roster-based system is implemented the actual roster points for AIIMS would be different from JIPMER as the same would depend on the percentage of seats decided to be allocated to the preferential candidates but It stated that the reservation would be similar to the one adopted by JIPMER AIIMS New Delhi was willing to provide a roster-point based reservation for its institutional preference candidates, by way of an affidavit 20th January 2022 the Bench was apprised that pursuant to a meeting held on 28th June 2020 as prescribed the relevancy:

It shall not be too wide with the one for the general category candidate, that the margin of difference between the qualifying marks for the Institute’s candidate.

The one who has secured marks at the common entrance PG test less than the one secured by any other candidate belonging to reserved category enjoying constitutional protection such as SC, ST etc. cannot be the AIMS graduate the last student to qualify for admission.

appearing on behalf of AIIMS, Advocate, Mr. Dushyant Parashar, New Delhi was asked to get instructions from AIIMS, Bhubaneswar and Jodhpur so that the Court can pass appropriate orders on the next date of hearing. As that apart from AIIMS, Bhubaneswar and AIIMS, Jodhpur, all other AIIMS before the Apex Court has agreed to implement the roster-based reservation system followed by JIPMER Puducherry for their institutional preference candidates, the Court was informed at the last date of hearing.

the petition had been filed seeking direction to AIIMS to disclose how the seats for institutional preference candidates are to be allotted in the view of the same the petitioners claim that in the INI-CET examination conducted in July, 2021, only 4 seats (1.87%) in AIIMS, New Delhi were allotted to institutional preference candidates. Rivetingly, the petitioners note that no seats were allocated to any other AIIMS for admission of institutional preference candidates.

the Bench comprising of Justice L. Nageswara Rao and the justice A.S. Bopanna observed and noted that to record in the order that the roaster system would be applicable from this year. Mr. Parashar informed it that since new software is to be put in place for counselling, it might cause some delay. The bench further stated that the court will order it to apply this year but in case of delay AIMS can come later.

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‘The crime committed has to be considered in the remission or premature policy of the state’

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The Supreme Court in the case Radheshyam Bhagwandas Shah, Lala Vakil vs State of Gujarat observed that where the crime was committed has to be considered in the remission which is applicable in the State and the pre­mature release in terms of the policy

The Court noted while hearing the writ petition that in terms of the policy which is applicable in the State of Gujarat where the crime was committed and not the State where the trial stands transferred and concluded for exceptional reasons under the orders of this Court once the crime was committed in the State of Gujarat, after the trial been concluded and judgment of conviction came to be passed, all further proceedings have to be 6 considered including remission or pre­mature release, as the case may be, in the instance case. under Section 432(7) CrPC, there cannot be a concurrent jurisdiction of two State Governments, can be either the Central or the State Government of the appropriate government.

in terms of Section 432(7) CrPC, the trial was to be concluded in the same State and ordinarily in the State of Gujrat the crime in the instant case was admittedly committed. by an order 06.08.2004., the case was transferred in exceptional circumstances by this Court for limited purpose for trial and disposal to the neighbouring State i.e., the State of Maharashtra, observed by the bench of Apex Court.

As mentioned by the petitioner in the plea that by judgment impugned dated 17.07.2019., the application for pre­mature release has to be filed in the State of Maharashtra and not in the State of Gujarat and His petition filed in the High Court of Gujarat was dismissed taking note of Section 432(7) CrPC on the premise that since the trial has been concluded in the State of Maharashtra. under Sections 433 and 433A of the Code of Criminal Procedure, 1973, the petition was filled by the petitioner for premature release further the petitioner stated that that he had undergone under the custody of more than 15 years 4 months.

Section 302, 376(2) (e) (g) and reading it with Section 149 IPC, Shah was found guilty for the offence, the offence committed by him in the State of Gujrat.

The bench comprising of Justice Ajay Rastogi and the justice Vikram Nath observed that under Section 432(7) CrPC can be either the Central or the State Government but there cannot be a concurrent jurisdiction of two State Governments of that appropriate government.

The bench comprising of Justice Ajay Rastogi and the justice Vikram Nath observed that under Section 432(7) CrPC can be either the Central or the State Government but there cannot be a concurrent jurisdiction of two State Governments of that appropriate government.

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Seeking reduction of qualifying the percentile for admission in ayurveda course: A plea in Supreme Court

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The Supreme Court in the Case Amit Kumar v UOI & Or’s observed in Ayurveda course in view of large number of vacancies and for seeking reduction of qualifying percentile for admission, an ayurveda aspirant who appeared in NEET 2021 has approached the Court.

the court had observed that lowering the minimum marks and reducing the percentile for admission to first year BDS Course would not amount to lowing the standards of Education and further the Court directed to lower the percentile mark by 10 percentiles for admission in first year of BDS Course for academic year 2020-2021, with regards to substantive the contentions made by the petitioner by referring the judgement passed in the case in Harshit Agarwal & Or’s v Union of India.

the percentile may also be reduced for Ayurveda programme enabling the Petitioner to take admissions then If percentile is being reduced/considered for reduction for BDS course was further stated by the petitioner in the plea, while referring to an order dated 04.29.2022. Thereafter the top Court had asked Centre to consider lowering the percentile for BDS Courses.

Seeking the Centre’s response in a plea by filing a counter affidavit, noted by the Top Court specifying the above-mentioned information:

after deducting the admission granted for MBBS Courses (BDS Courses), the total number of Candidates.

in All India Quota and State Quota, the totals number of vacant seats.

in government colleges on one hand & private/deemed colleges on the other hand, the number of seats which are remaining.

the petition was filed through AOR Neeraj Shekhar and for the petitioner Advocate Shivam Singh appeared.

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Bank case rejected by Supreme Court against farmer

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The Supreme Court in the case Bank of Maharashtra & Or’s v Mohanlal Patidar observed an order given by the High Courts of directing the bank the OTS proposal given by a farmer who had availed a loan from the bank, the court further pulled up the Bank of Maharashtra for challenging the order.

The Bank shall complete remaining formalities and provide all consequential benefits flowing therefrom to the petitioners, the court further stated that it is needless to emphasize The OTS proposal given by the petitioners in both the cases shall be accepted by the Bank and ‘sanction letters’ be issued forthwith, the court allowed the petitioner plea.

The petitioner not only promptly challenged the said order, it is noteworthy that petitioner never acceded to the unilateral decision dated 25th August 2021 and even otherwise the letter dated 25th August 2021 is held to be illegal by us, clause-7 of policy cannot take away the fruits of OTS benefits, within two months from the date of issuance of order dated 22th September 2021, the petitioner filled the instant petition and further the court directed we are unable to give stamp of approval to the impugned orders and action of the Bank, observed by the bench comprising of Justice Sujoy Paul and the justice Dwarka Dhish Bansal while setting aside the impugned orders of the bank.

In an order dated 03.09.2021 it was stated and it showed that the petitioner was required to pay minimum 10% of the OTS amount within stipulated time and that he had deposited Rs.35,00,000/- out of Rs.36,50,000/- within the stipulated time, it was argued before the court by the counsel.

As full and final settlement of the dues, he will be required to deposit Rs.50.50 lakhs as he was informed by the Asset Recovery Branch of the Bank.

Whole law comes into place when a matter of farmers come as the down payment were also accepted and it was further stated by the bench in an oral remark You don’t file cases against the ones who loot 1000s of crores.

The respondent had obtained a loan and intended to pay it in terms of a One Time Settlement which was quantified as Rs 3650000/-. in furtherance thereof the respondent had deposited Rs 35,00,000 with the bank, in the above-mentioned matter.

The bank had miserably failed to accept the same and on the contrary, decided to enhance the compromise amount to Rs.50.50 lakhs unilaterally which was contrary to the OTS scheme, contended by the counsel further the counsel stated that the bank had miserably failed to accept the same and on the contrary, decided to enhance the compromise amount to Rs.50.50 lakhs unilaterally which was contrary to the OTS scheme.

The bench comprising of Justice DY Chandrachud and the justice Surya Kant observed and remarked while dismissing the plea assailing Madhya Pradesh High Court’s order dated 02.21.2022 Such a litigation in Supreme Court will spoil the families of farmers financially, Go after bigger fish.

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