LAW OF OBSCENITY IN INDIA

         An interesting fact which amuses many with respect to obscenity law in India is the absence of its definition in the Indian Penal Code. The Indian Penal code comprises of section 292,293 and 294 which deal with strict laws relating to the obscenity. Section 292 of the Code comprises of the contents with regards to the sale of books, pamphlet, paper, writing drawing, painting, representation, figure or any other object which shall be deemed to be obscene if it is lascivious or appeals to the prurient interest or its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embedded in it. This section also guarantees exception to

1.          publication which is proved to be justified as being for the public good and is in the interest of science,literature,art or learning or other objects of general concern
2.         Which is kept or used for bonafide purposes
3.         Ancient monument within the meaning of Archeological Sites and Remains Act 1958(24 of 1958)
4.         Any temple or car used for the conveyance of idols, or kept or used for religious purposes.

      If we were to look into the dictionary meaning of obscenity it clearly defines obscenity as the portrayal or description of sexual matters offensive or disgusting by accepted standards of morality and decency. However, it has been observed that the definition of obscenity has kept on changing and emerging over the period of time. What was considered to be obscene in the earlier years has completely come into the ambits of acceptability in the current trend of society. With consistent advancement in society and its changing views the definition and adaptability of what amounts to obscenity shall keep on remodeling. Section 292 along with 293 were amended Act No 36 of 1969 where the laws were made more stringent and deterrent with respect to the laws of obscenity in India

A standard test which has been followed across the globe to test obscenity is the Hicklen’s test . This was laid down in Regina v/s Hecklin in United Kingdom way back in 1868 and it was held as follows

                   " The test of obscenity is whether the tendency of the matter charged as obscene is to deprave and corrupt whose minds are open to such immoral influences and into whose hands a publication of this sort may fall”.

      Hicklen’s test was followed in Ranjit Udeshi v State of Maharashtra AIR  1965 SC 881 where an important contention was made by the counsel of the accused that Section 292 is void as being an impermissible and vague restriction on the freedom of speech and expression guaranteed under Art. 19 .1(a) and is not saved by clause 2 of the same article.  However the Hon’ble Supreme Court held that this section was introduced by the Obscene publication Act (7 of 1925) to give effect to Article 1 of the international convention of the suppression of or traffic in obscene publications signed by India in 1923 at Geneva. The Hon’ Supreme Court further held that obscenity which is offensive to modesty and decency cannot be protected on the ground of constitutional guarantee of freedom of speech and expression under Article 19(1) (a) .

        In K.A Abbas v/s Union of India the Supreme Court has laid the following guiding principles to be applied by censors when they have to deal with a film which is said to be objectionable on the ground of indecency or immorality:

• ·        Treating with sex and nudity in art and literature cannot be regarded as evidence of obscenity without something more.
• ·        Comparison of one book with another to find the extent of permissible action is not necessary.
• ·        The delicate task of deciding what is artistic and what is obscene has to be performed by courts and in the last resort, by the Supreme Court and so, oral evidence of men of literature or others on the question of obscenity is not relevant.
• ·        An overall view of the obscene matter in the setting of the whole work would of course be necessary but the obscene matter must be considered by itself and separately to find out whether it is so gross and its obscenity is so decided that it is likely to deprave or corrupt those whose minds are open to influence of this sort and into whose hands the book is likely to fall.
• ·        The interests of contemporary society and particularly the influence of the book etc., on it must not be overlooked.
• ·        Where obscenity and art are mixed, art must be so preponderating as to throw obscenity into shadow or render the obscenity so trivial and insignificant that it can have no effect and can be overlooked.
• ·        Treating with sex in a manner offensive to public decency or morality which are the words of our (1) [1965] 1 S. C. R. 65 Fundamental Law judged by our national standards and considered likely to render to lascivious, prurient or sexually precocious minds must determine the result.
• ·        When there is propagation of ideas, opinions and informations or public interests or profits, the interests of society may tilt the scales in favour of free speech and expression. Thus books on medical science with intimate illustrations and photographs though in a sense immodest, are not to be considered obscene, but the same illustrations and photographs collected in a book from without the medical text would certainly be considered to be obscene.
• ·        Obscenity without a preponderating social purpose or profit cannot have the constitutional protection of free speech or expression. Obscenity is treating with sex in a manner appealing to the carnal side of human nature or having that tendency. Such a treating with sex is offensive to modesty and, decency.
• ·        Knowledge is not a part of the guilty act. The offender's knowledge of the obscenity of the book is not required under the law and it is a case of strict liability." Application of these principles does not seek to whittle down the fundamental right of free speech and expression beyond the limits permissible under our Constitution for however high or cherished that right it does not go to pervert or harm society and the line has to be drawn somewhere.  

          In  Samresh Bose  & Ors v/s Amal Mitra and Ors it was contented whether reference to kissing, description of the body parts of female  characters in books suggesting sex by themselves have any effect of depraving and debasing, and encouraging lasciviousness  among readers of any age . The Supreme Court held that vulgar writing is not necessarily obscene.   

 

               “Vulgarity arouses a feeling of disgust and revulsion and also boredom but does not have the effect of depraving, debasing and corrupting the morals of any reader of the novel, whereas obscenity has a tendency to deprave and corrupt those minds that are open to such immoral influences.

         The Supreme Court in Aveek Sarkar V/s State of West Bengal held that Hicklen test is not the correct test to be applied to determine ‘what is obscenity’. We have therefore to apply the “community standard test” rather than ‘Hicklen test “to determine ‘what is obscenity’. A picture of a nude/semi-nude woman, as such, cannot per se be called obscene unless it has the tendency to arouse feeling or revealing an overt sexual desire. The picture should be suggestive of deprave mind and designed to excite sexual passion in persons who are likely to see it, which will depend on the particular posture and the background in which the nude/semi-nude woman is depicted. Only those sex-related materials which have a tendency of “exciting lustful thoughts” can be held to be obscene, but the obscenity has to be judged from the point of view of an average person, by applying contemporary community standards.

     The Supreme Court in the same case also made reliance to Bobby International & Ors v/s Om Pal Singh Hoon (1996) 4 SCC 1 where the Supreme Court held that the scenes in the movie Bandit Queen were depicted not to titillate the lust of the cinemagoers but to arouse in them sympathy for the victim and disgust for the perpetrators.

  Punishment under section 292: On first conviction with imprisonment of either description for a term which may extend to 2 years and with fine which may extend to 2000 rs, and, in the event of subsequent conviction ,with imprisonment of either description for a  term which may extend to five years or with fine which may extend to 5000 rs.The offence under section 292 is cognizable, bailable , non compoundable and triable by any Magistrate.

     Similarly,Section 293 provides for the selling, letting for hire, distribution or circulation of any obscene object to a person under the age of 20 years to be punished on the first conviction with imprisonment of either description for a term which may extend to three years, or fine which may extend to 2000 rs and on subsequent conviction with imprisonment of either description of a term which may extend to seven years or with fine which may extend to 5000 rs.

    Section 294 provides for punishment for doing an obscene act or singing, reciting or uttering an obscene song at public place which causes annoyance to others. The offence of eve teasing is covered under section 294 but a punishment upto only 3 months is considered in the case of eve teasing. The offence under section 294 is cognizable,bailable ,non compoundable and triable by Magistrate .

Contributed by,

Maitreyi Raghuraman