Source: Bombay High Court 

Why in News? 

A bench of Justice Shyam C. Chandak and Justice A.S. Gadkari held that mere presence of the Petitioners at the relevant place and time, as ‘customers’, when the two women were dancing allegedly in obscene manner, is not sufficient to attract the said offence.       

• The Bombay High Court held this in the case of Nirav Raval v. State of Maharashtra. 

What is the Background of Nirav Raval v. The State of Maharashtra Case? 

• The informant was on surveillance duty to inform about the objectionable activities taking place in bar and restaurants.  
• The informant informed that two women were dancing in an obscene manner. 
• The police officer reached there and confirmed the situation wherein they saw two women were dancing in an obscene manner and customers gave Indian Currency notes to waiter and told him to blow the said notes on the dancing women and thus, they were aiding and abetting them to do the dance. 
• The petitioners were thus accused of offences under Section 294, Section 114 r/w Section 34 of the Indian Penal Code, 1860 (IPC) and Section 3, 8(1)(2)(3)(4) of Maharashtra Prohibition of Obscene Dance in Hotels, Restaurants and Bar Rooms and Protection of Dignity of Women (working therein) Act, 2016. 

What were the Court’s Observations? 

• The High Court held that in the present facts the waiter could not be examined by the Investigating Officer as he had already left. 
• There is no material to show that, when the customers gave the Indian Currency notes to the waiter, the Petitioners were amongst said customers and they only gave currency notes to the waiter with a specific instruction to blow it on the dancing women. 
• Also, no other specific overt act could be attributed to the petitioners in order to attract offences alleged here. 
• Therefore, mere presence of the Petitioners at the relevant place and time, as ‘customers’, when the two women were dancing allegedly in obscene manner, is not sufficient to attract the said offence. 

What is Obscenity under Indian Penal Code, 1860? 

• Section 294 provides for obscene acts and songs. 
• It provides whoever to the annoyance of others 
  • does any obscene act in any public place, or 
  • sings, recites or utters any obscene song, ballad or words, in or near any public place, 
  • Shall be punished with imprisonment of either description for a term which may extend to three months or with fine or with both. 
• This Section is contained in Section 294 of Bhartiya Nyaya Sanhita, 2023. 

How was Obscenity Interpreted by Courts in India? 

• Ranjit D. Udeshi v. State of Maharashtra (1965) 
  • This case related to the prosecution of the persons were found selling an allegedly obscene book, Lady Chatterley’s Lover by DH Lawrence. 
  • The Supreme Court for the time interpreted the word obscene and relied on the test in the famous R v. Hicklin (1868) case. 
  • The Hicklin test tends to examine if the impugned matter tends to “deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall.”  
  • Under the Hicklin test a work should be viewed as a whole, but the obscene matter should also be separately considered to see if it violates the test. 
    •  Where art and obscenity coexist, “art must so preponderate as to throw the obscenity into a shadow or the obscenity so trivial and insignificant that it can have no effect and may be overlooked.” 
  • The Supreme Court in this case held that the text of Lady Chatterley’s lover was obscene under the Hicklin test. 
• Director General, Directorate General v. Anand Patwardhan (2006) 
  • The Court in this case was dealt with the issue if the documentary “Father, son and Holy war’ should be benned on the ground of being obscene. 
  • The Court held that the judge should place himself in the position of a 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 judge should thereafter apply his judicial mind dispassionately to decide whether the book in question can be said to be obscene by an objective assessment of the book as a whole and also of the passages complained of as obscene separately.   
• Aveek Sarkar & Anr v. State of West Bengal And Anr (2014) 
  • The Court in this case held that the test to be applied is “community standard test” instead of the “Hicklin test”. 
  • The Court held that 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 Court held that the obscenity has to be judged from the point of view of an average person applying the contemporary community standards. 
  • It was held that only those sex-related materials which have a tendency of “exciting lustful thoughts” can be held to be obscene. 

How is Obscenity Interpreted in Other Countries? 

• United Kingdom 
  • The test followed in U.K. is the Hicklin test which has been discussed earlier. 
• United States 
  • In USA the test was laid down in the case of Roth v. United States (1957) where the Court provided the basic guidelines as follows: 
    • whether " the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest 
    • whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and 
    • whether the work, taken as a whole, lacks serious literary, artistic political, or scientific value. 

What are the Statutory Provisions related to Obscenity in India? 

• The Indecent Representation of Women (Prohibition) Act, 1986 
  • This law was enacted to outlaw the indecent, improper and scandalous depiction of women through any kind of publication. 
  • Under Section 2(c) of the Act, it not only elucidates what all comprises of the term indecent representation of women; it also prohibits and punishes publication of any kind whereby women are portrayed in an indecent way or they are indecently represented. This is done not only in books, circulars, posters etc but also in any kind of advertisements 
• Cable Television Networks (Regulation) Act, 1995 
  • This Act tends to control the telecast of those programs which can cause an outrage in our society by offending the already set standards and outlines a punishment with imprisonment and fine. 
  • Rule 6(1)(o) of the Cable Television Networks Rules, 1994, which is read with Section 5 of this Act, restricts the carrying out of programs that seem 9 unfit for “unrestricted public exhibition”, which is specified under Section 5-A. 
• Cinematograph Act, 1952 
  • This Act specifies provisions for regulation and certification for showcase of cinematograph films.  
  • s. Section 4 of the Act read with Section 5-A of Cable Television Networks Act details the provisions for examination and certification of  cinematograph films by the Board of Film Certification (CFBC).  
• The Young Persons (Harmful Publication) Act, 1956 
  • This Act restricts the publication of such matter which might corrupt or adulterate a child or a young person’ mind or incite them into committing crimes of violence, cruelty, etc. 
  • A punishment with imprisonment and fine is prescribed to anyone who does anything that is in contravention to the provisions of the said Act. 
• The Information Technology Act, 2000 
  • This Act prohibits both publication and transmission of those materials which are of lascivious nature or have an appeal of lewd interests if they are in electronic forms. 
  • Any publication or transmission that has an effect which leads to degradation or corruption of those who have read, seen or heard the said matter that is embodied or contained in it, is an offence punishable with imprisonment and fine. 

What are the Case Laws on Obscenity under Section 294 of Indian Penal Code, 1860?  

• Lalit S/o Nandlal Bais v. State of Maharashtra (2023) 
  • The Bombay Court held that for an offence to be made out under Section 294 of IPC: 
    • An act must have been done in public place 
    • The said act must be obscene 
    • The same must cause annoyance to others 
  • The Bombay High Court held that the women dancing provocatively in skimpy clothes or making gestures that the police officials consider obscene cannot be termed per se obscene acts which could cause annoyance to any member of the public. 
• Manish Parshottam Rughwani And Ors v. State of Maharashtra (2024) 
  • The Coordinate bench of Bombay High Court held that the petitioners were only present in the bar at the relevant time. 
  • There was no specific overt act attributed to them and hence the petitioners were held to be not liable for the offence. 
• Rushabh M. Mehta and Anr v. State of Maharashtra (2020) 
  • The Bombay High Court held that for attracting offence under Section 294 of IPC, a person against whom the offence is alleged is said to have indulged in any obscene act at a public place.   
• N.S. Madhangopal and Another v. K. Lalitha (2022) 
  • The Supreme Court held that mere abusive, humiliating or defamatory words by itself cannot attract an offence under Section 294(b) of IPC but there must be further proof to establish that it was to the annoyance of others, which is lacking in the case.