INTRODUCTION
We are living in the 20th century, in the era of developing thoughts and new culture, with the people having new and old traditions with their different culture and sentiments that makes us a member of society. A unique gesture of a person to present himself or his work makes someone or the whole society uncomfortable. But is the gesture really violating someone’s sentiments or it’s just a unique or new thought to express himself or his work? This difference in thinking makes the word obscenity obscure, so it is too difficult to know what really Obscene and what is not.
Obscenity is a global and complex issue because it involves other related issues like decency and morality which varies from society to society. What is immoral for one may not be so for others. With regard to the meaning and definition of obscenity, it is difficult to give any precise and particular definition in view of cultural, religious and social diversity in the society. It is true that the definition of word obscenity would change from time to time. What is obscene in the present day should not be treated as obscene in the future. Indian laws and Supreme Court as well could not articulate the meaning of obscenity. Indian Courts chosen to adopt the Hicklin test in starting but then it deviated to some other test with time to define obscenity. In this project I will try to figure out the different tests laid down by Supreme Court of India in catena of judgements to define obscenity. I will also try to find out what are the different statutory provisions that deals with the issue of obscenity. The research is based on doctrinal research methodology and collected material from different websites, books and journal.
EVOLUTION OF OBSCENITY LAW
As early as 4th century, Roman Catholic Church had taken the first move by banning few heretical works. In 1542 Pope Paul III established the Sacred Congregation of the Roman Inquisition which was vested with the task of suppression of heretical and immoral books. Immoral works also were suppressed in Protestant countries such as England, where, prior to the 18th century, restrictions were applied almost exclusively to anti-religious or seditious acts or publications, rather than to obscene material in the modern sense. The invention of the printing press sowed the seed of modern obscenity law. There was a wide and easy distribution of sexually explicit material. By the 17th century, such books and prints had become widely available throughout Europe; governments and church authorities responded by arresting and prosecuting publishers and distributors. The first person to be convicted on a charge of obscenity in England was bookseller Edmund Curll way back in the 1720s. He had published a new edition of Venus in the Cloister; or, The Nun in Her Smock, a mildly pornographic work. His sentence (a fine and one hour in the pillory) was due to the fact that there was no specific law on the subject matter. Thereafter obscenity was recognized as an indictable misdemeanour under common law.
DECENCY AND MORALITY: EXCEPTION TO FREEDOM OF SPEECH AND EXPRESSION
The freedom of speech and expression is regarded as the first condition of liberty. It occupies a preferred position in the hierarchy of liberties, giving succour and protection to all other liberties. It has been truly said that it is mother of all liberties. It has been described as a ‘basic human right’, ‘a natural right’ and the like. The preamble to the constitution of India resolves to secure for the citizens of India, liberty of thought, expression and belief. Article 19(1)(a) of the constitution of India gives citizen freedom of speech and expression from where media also derives its right of ‘freedom of press’ . But this right is not absolute meaning thereby that they are subject to certain limitations, the parameters of which have been defined by the Constitution itself. These limitations are usually known as “reasonable restrictions”, which are provided under clauses 2 to 6 of Article 19 of the Indian Constitution. These grounds are Sovereignty and integrity of the State, Security of the State, Friendly relations with foreign countries, Public order, Decency and morality, Contempt of court, Defamation and Incitement to an offence. The State can truncate the enjoyment of the freedoms provided in Article 19(1) through law. The exercise of the power of the State to curb freedoms through a law takes the form of executive action.
The media derives its rights from the right to freedom of speech and expression available to the citizen. Thus, the media has the same rights- no more no less than any individual to write publish, circulate or broadcast. The media enjoys no special immunity or elevated status compared to the citizen and is subject to the general laws of the land.
Decency and morality is one of the ground under Article 19(2) of the constitution of India on the basis of which reasonable restriction can be imposed to freedom of speech and expression. Such notions varies from country to country depending on the standards of morals of contemporary society.
The word obscene came from a Latin term Obscenus which means ‘offensive’ especially modesty. The Oxford dictionary defines obscene as “offensive or disgusting by accepted standards of morality and decency”, looks like a simple word with a simple meaning. But as we know law does not work with a dictionary or not with some simple meanings. The meaning of the word obscene not as easy to settle on for lawyers, it is a challenge to set up criteria of obscenity. Because the terms which are used to define obscenity like- Lascivious, Prurient, Deprave and Corrupt have not been clearly defined, leaving room for interpretation by the judiciary. Literature, art, gesture, movie or any scene in videos also come under obscene content if they violate contemporary community standards. The expression “decency” and “morality” must be given a wide meaning and not confined to sexual morality alone.
TESTS OF OBSCENITY
There is neither any strait-jacket formula to define obscenitynor any uniform test of obscenity. Each case should be judge on its own merit. To figure out whether a case passes obscenity test or not, Supreme Court has laid down a broad parameter. To check the content or any art or gesture is really obscene or not there are number of tests
Miller test- This test laid down by the judgement of US Supreme Court in the Case of Miller v. California (1973). In this case, Melvin Miller mailed five distrustful brochures to the manager of the restaurant which contained conspicuous images and drawing of men and women engaged in different sexual activities. After the manager read the mail, he filed the case of Obscenity against Mr. Miller and he was prosecuted for violating the California Law. There are three parts of the Miller test. They are:
• The average person, enforcing the contemporary community standards, would find that work, taken as a whole, appeals to the prurient interest.
• Whether the work depicts or describes, in a patently offensive way, sexual conduct specially defined by the applicable state law.
• Whether the work depicts or describes, in a patently offensive way, sexual conduct specially defined by the applicable state law.
The work is considered obscene only if all three conditions are satisfied. The first two prongs of the Miller test are held to the standards of the community, and the last prong is held to what is reasonable to a person of the United States as a whole. The national reasonable person standard of the third prong acts as a check on the community standard of the first two prongs, allowing protection for works that in a certain community might be considered obscene but on a national level might have redeeming value.
But this test is not much rational. Fixing national standards for what appeals to be prurient or offensive is not possible practically. The concept of considering a speech obscene if it didn’t have some value was so vague. Several questions arise here like the true connotations of value. On what factors, will a speech be considered valuable or value-less by the court? Why would the government and not the citizens have all the rights to decide? The law relating to obscenity was unclear and writers were afraid of the ‘value’ factor and therefore, were hesitant to publish their works to avoid litigation and punishments. So, the Miller test not only led to the elimination of obscenity but also legitimate speech.
Hicklen’s Test- This test is based upon the effect of a publication on the most vulnerable members of society, whether or not they are likely to read it. The test to determine obscenity under English Law was first laid down in R v Hicklin case. The statutory interpretation of the word obscene as given under the Obscene Publications Act, 1857 was the issue. According to the Queen’s Bench, all the materials depraving and corrupting the minds open to immoral influences was considered obscene, regardless of its literary merit. Here, the intention was considered immaterial. If any portion of the work or publication was considered obscene even if that portion was out of context, it didn’t matter, the entire work could be outlawed.
Although Hicklin’s test was buried in England with the enactment of the Obscene Publication Act, 1959, six years later, Supreme Court decide to go with it. The Supreme Court of India in case of Ranjit D. Udheshi held that Hicklin’s test should not be discarded on the ground that it makes the court judge of obscenity in relation to an impugned book and lays emphasis on the potentiality of the impugned object to deprave and corrupt by immoral influences. In this case Supreme Court confirmed the conviction of appellant and rejected the challenge to the constitutionality of section 292 IPC. The court held that section 292 IPC constituted reasonable restriction on the right of freedom of speech and expression under Article 19(2) in interest of morality and decency. The court relied on Hicklin’s test and further interpreted the word “obscene” to mean that, which is “offensive to modesty or decency; lewd, filthy and repulsive”.
The likely audience test- This test is departure the Hicklin’s test of obscenity. This test laid down the theory of “likely reader test” and replaced the theory of “most vulnerable person”. This test emphasis upon the fact that what may be considered is the impact on those who could be reasonably expected to gain access to the publication.
In the case of Chandarkant Kalyandas Supreme Court of India held that obscenity test must be based on target audience, not the person whose hands the book might stray into.
The Supreme Court of India in Samresh Bose v Amal Mitra departed from Hicklin’s test while laying down the test of obscenity. The Court held that while judging the test of obscenity the judge should place himself in the position of reader of every age group in whose hands the book is likely to fall and should try to appreciate what kind of possible influence the book is likely to have in the minds of the readers.
The aversion defence- Merely because a film portrayed communal riots and sexual violence was no reason to deny its exhibition. The aversion test laid down that the idea Authors and film makers sometimes depicts nudity not to arouse sexual desire but on the contrary to arouse horror and revulsion in the audience against the social evil being depicted. The Supreme Court of India applied the aversion test in Bandit Queen Case. In this case a rape scene was challenged on the ground of obscenity. The court rejected the challenged and held that the object of the scene of the frontal nudity was not intended to titillate the cinematographer’s lust but to arouse in him sympathy for the victim and the disgust for the perpetrators.
In the another case of Samresh Bose in which a Bengoli novel Prajapati was challenged on the ground of obscenity, the Supreme Court held that the book has not the effect of depraving or debasing the morals or encouraging lasciviousness of the readers, since the author’s intention was to expose certain ills that irk society and he had used his own technique, skills and choice of words to that end.
Judging the work as a whole- It is one of the test of obscenity in which publication or any movie scene should be seen as whole not in isolation. The offending passages should also separately be examined so as to judge whether the passage are grossly obscene as are likely to deprave and corrupt. The clause 3(i) of the guidelines issued under section 5-B, Cinematograph Act, 1952 says that the board of film certification shall ensure that the film is judged in its entirety from the point of view of the overall impact.
In the case of Anand Patwardhan Supreme Court of India to test the challenge of obscenity held that the correct approach to be taken is to look at the documentary film as a whole and not in its bits, as any message that is purported to be conveyed by way of film cannot be conveyed just by watching certain bits of films.
Opinion of literary/artistic experts- The task of deciding what is artistic and what is obscene has to be performed by courts and the evidence of men of literature or others on the question of obscenity is not relevant.
In the case of Chandrakant Kalyandas kakodkar the Supreme Court of India held that the verdict as to whether the book or article considered as a whole panders to the prurient and is obscene must be judge by the courts and ultimately by the Supreme Court.
Contemporary community standards test- This test applied in India. The Community Standards Test says that the art or any gesture or content is obscene only if the dominant theme taken as a whole is opposed to contemporary community standards. The contemporary community standards test takes into account the changing values in society. What was obscene a century or even a decade ago, need not be obscene now. In deciding obscenity contemporary mores and national standard should be considered.
In the case of S Khushboo v Kanniammal Supreme Court in deciding the case obscenity held that while the main stream view in the society may accept sexual relations only between marital partners, there is no statutory offence where unmarried consenting adults engage in sexual relationship. Court held that the pre-marital sex and live-in relationships are now no longer so uncommon in Indian society that any reference to them or call for social acceptance of such trends can be regarded as obscene or insulting to womanhood.
Also the mandate of Cinematograph Act, 1952 says that the objectives of film certification will be to ensure that the medium of film remains responsible and sensitive to the value and standard of the society. Clause 3(ii) says that the board of film certification shall also ensure that the film is examined in light of the period depicted in film and the contemporary standards of the country and the people to which the film relates, provided that the film does not deprave the morality of the audience.
Test of the ordinary man- This test says that to find out whether the art or publication is obscene or not, it should be seen from the eyes of ordinary man not from the eyes of hypersensitive man. In Ramesh v Union of India case Supreme Court of India held that the effect of words must be judged from the standards of reasonable, strong-minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view.
Anti-Obscenity Laws in India
There are many laws in India to tackle with Obscenity some laws were too old from colonial times, with roots in the Victorian era, but even after all these laws, it is too hard to differentiate what is obscene or what is not. These laws embody restriction on freedom of speech and expression in the interest of decency and morality. All the laws discussed below:
Indian Penal Code 1960- The fundamental object and purpose of criminal law is not only to protect and to conserve the safety and security of primary personal rights of individuals, such as right to life, right to body, right to property, right to habitation., etc., but also to protect and guard public morals and public decency and to conserve the moral welfare of the State. Thus, it is the duty of the State to guard the citizens against attacks which may be insidious and punish an individual for obscene publications which tend to corrupt morals. The importance of the protection of such rights can be visualized from the resolution passed by the International Convention for the Suppression and Circulation of, and Traffic in, obscene publications at Geneva as long as 1923. India signed the Convention on 12th September 1923.
Section 292 and 293 of IPC prohibit publication and sale of obscene books, pamphlets, inter alia representation which shall be deemed to be ‘lascivious or appeals to the prurient interests’, which can include obscene advertisements.
Section 294 prohibits obscene acts and songs. Whoever, to the annoyance of others:
• Does any obscene act in any public premises, or
• Signs, recites or utters any obscene song, vulgar words, in or near any public place.
shall be punished with the confinement of either description for a term which may extend to three months, or with fine, or with both.
In Ranjit D. Udeshi case constitutionality of section 292 Indian Penal Code was challenged. The Supreme Court out rightly rejected the challenge and held that section 292 constituted a reasonable restriction on the right to freedom of speech and expression under Article 19(2) in the interest of decency and morality.
The Indecent Representation of Women (Prohibition Act), 1986- The act punishes the coarse representation of women, which means “the illustration in any other manner of the figure of women; her from or any other part thereof in such way as to have the effect of being indecent, or outrageous to, or denigrating women, or is likely to deprive, corrupt or injure the public virtue or morals.
Punishment
• First Offence: Imprisonment up to two years and a fine of two thousand.
• Repeat Offence: Imprisonment up to five years and fine of ten thousand to one lakh.
In exercise of the powers conferred by Sec.10 of the Indecent representation of Women (Prohibition) Act, 1986 (60 of 1986), the Central Government makes the Indecent Representation of Women (Prohibition) Rules, 1987.
Information Technology (Amendment) Act, 2008 – Section 67(A) makes it clear that a publication of sexual content on a social media site will lead to a punishment. It contains the issue of online obscenity. Under the Act, storing or private viewing of obscene material is legal as it does not specifically restrict it. On the other hand, transmitting or publishing the obscene material is illegal. Before 2008, section 67 was the only provision of the Information Technology Act which prohibited the publication of obscene information including child pornography and obscenity. Section 67A of the IT Act, 2000 specifically restricts the publication of sexually explicit or obscene material and section 67B of the Act specifically prohibits child pornography. This section only criminalizes the publication and transmission of sexually explicit or obscene material in an electronic form but viewing, downloading, possession etc. is not an offence as per the provisions of the Act.
Punishment
• First Offence: Five years with a fine of rupees ten lakh.
• Repeat Offence: Seven years with a fine of rupees ten lakh.
Section 67(B) of the amendment is the turning point of the children movement in India which is against child pornography this law makes it clear that not only publication, viewing but also possession of such pornographic content is punishable.
Punishment
• First Offence: Five years with a fine of rupees ten lakh.
• Repeat Offence: Seven years with a fine of rupees ten lakh.
State of Tamil Nadu v. Suhas Kutti is a first case of conviction under section 67 of IT Act, 2000 in India. In this case, some defamatory, obscene and annoying messages were posted about the victim on a yahoo messaging group due to which the victim started receiving annoying calls. She filed a FIR and accused was found guilty under sections 469, 509 of the Indian Penal Code 1860 and section 67 of Information Technology Act.
Young Person’s (Harmful Publications) Acts, 1956- If any person advertises or makes known by any means whatsoever that harmful publications can be procured from or through any person, shall be punishable.
Punishment
• Imprisonment which may extend to 6 months or fine or with both.
National Human Rights Commission- NHRC, doing with the State Human Rights Commission, has the power to look into the protecting dignity of women in advertisements.
Section 2(d) of NHRC Act states that human right means the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and applying by courts in India.
The Post Office Act, 1898- This act prohibits the transmission, by post, of any material on the ground of decency and morality.
Cable Television Network (Regulation) Act, 1955- This act prohibits the telecast of programmes on cable television which is against the decency and morality. It prohibits the carriage of Programme that are not suitable for “unrestricted public exhibition”. Cinematograph Act, 1952- This act prohibits the certification of film by the censor board for the public exhibition if the film or any part of the film is against the interest of morality and decency. The Cinematograph Act of 1952 puts into place a rigorous method of certifying films for public consumption- commercial films displayed in cinema halls and other public viewings. It is also responsible for the existence of the Central Board of Film Certification (CBFC). The Union government has certain guidelines in place that determine the certifications and edits or cuts given by the CBFC. There are four categories of classification— 1.) Unrestricted viewing (U); 2.) Unrestricted, but with parental guidance for children below the age of 12 (U/A); 3) restricted to adults (A); and 4.) Restricted to a class or a profession (S)
Ministry of Information and Broadcasting issued a notification seeking amendments in the existing Cinematograph Act of 1952. The draft Cinematograph (Amendment) Bill 2021, which has been put out for public comments, has a provision that allows the Government to order re-certification of a film already certified by the CBFC. The changes allegedly will give the Union government more power over film certifications, essentially taking away the autonomy of the CBFC. The amendment proposition goes against a Supreme Court decision in 2000 that reduced the Union government‘s power in media censorship, wherein the court ruled that the government cannot weigh in on cases which have already been reviewed and classified by the CBFC. The Protection of Children from Sexual Offences Act, 2012- The Protection of Children from Sexual Offences Act (POCSO Act) 2012 was established in order to protect the children against offences like sexual harassment, sexual abuse, and pornography. The POCSO Act 2012 also makes it the legal duty of a person to report the sexual abuse.The case of Kamlesh Vaswani v. Union of India is presently pending in the Indian Supreme Court. The Apex Court has directed State to file a detailed affidavit and posed a question whether the Department of Telecom (DOT hereinafter) or any other department of Indian Government is competent to issue directions to Internet Service Providers Association of India (ISPAI hereinafter) to call off sites showing pornography.