Introduction

• The word obscene comes from the Latin word obscenus, which means foul, repulsive, or detestable.
• The Oxford dictionary defines obscene as offensive or disgusting by accepted standards of morality and decency.
• Obscenity can be considered as displeasing content that has the ability to morally degrade individuals.

Tests of Obscenity

• In the case of Regina v. Hicklin (1868), Justice Cockburn stated the Hicklin test of obscenity as:
  • Whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such influences, and into whose hands a publication of this sort may fall.
    • In simple words, a work can be considered as obscene if any part of it is proven to degrade individuals whose brains are open to such influences.
• In the case of Ranjit D Udeshi v. State of Maharashtra (1965), Justice Hidayatullah introduced three modifications to the Hicklin test:
  • Sex and nudity in art and literature alone cannot be evidence of obscenity.
  • The work must be evaluated as a whole, considering both obscene and non-obscene parts.
  • Publication for the public good can be a defence against the charge of obscenity.
• While applying the Contemporary community standards test, the Supreme Court abandoned the Hicklin test in the case of Aveek Sarkar v. State of West Bengal (2014).
  • This test states that the evaluation of obscenity should consider the present community standards reflecting the sensitivities and tolerance levels of an average, rational person.

Laws Governing Obscenity in India

Indian Penal Code, 1860 (IPC)

• Section 292: It prohibits the 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 293: It states that whoever sells, lets to hire, distributes, exhibits or circulates to any person under the age of twenty years shall be punished with imprisonment of either description for a term which may extend to three years, and with fine which may extend to two thousand rupees, and in case of second or subsequent conviction, with imprisonment of either description for a term which may extend to seven years, and also with fine which may extend to five thousand rupees.
• Section 294: It provides for the punishment of Obscene acts and songs. As per this Section, 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.

The Information Technology Act, 2000

• Section 67: Deals with the punishment for publishing or transmitting obscene material in electronic form.
  • Section 67A: Deals with the punishment for publishing or transmitting sexually explicit material in electronic form.
  • Section 67B: Deals with the punishment for publishing or transmitting of material depicting children in sexually explicit acts, etc., in electronic form.

The Indecent Representation of Women (Prohibition Act), 1986

• This Act prohibits and punishes indecent representation of women through advertisements or in publications, writings, paintings, figures, or in any other manner.
• Indecent Representation of Women has been defined as depiction of a women's form, body, or any part in such a manner which has the effect of being Indecent and derogatory towards women or denigrating them, and is likely to deprave, corrupt or injure the public morality or order.

The Cinematograph Act, 1952

• Under this Act, the Central Board of Film Certification has been empowered to regulate and certify films to ensure they do not contain obscene or offensive content.
• In 2023, the Cinematograph (Amendment) Bill, 2023 was passed for the purpose of amending the Cinematograph Act, 1952.

Freedom of Expression and Obscenity

• Obscenity often tests the boundaries between freedom of expression and societal morality.
• Article 19(1) (a) of the Constitution of India states that, all citizens shall have the right to freedom of speech and expression.
• The exercise of this right is subject to reasonable restrictions being imposed under Article 19(2) of the Constitution of India.
• In matters of penalizing Obscenity, Free speech has to be balanced with the contemporary community standards of morality.
• In the case of Kamla Kant Singh vs. Bennett Coleman (1987), the SC balanced freedom of speech with protecting public morality and concluded that although the material contained explicit sexual content, it did not meet the threshold of obscenity as per contemporary community standards.

Case Laws related to Obscenity

• Samaresh Bose v. Amal Mitra (1985):
  • In this case, the Supreme Court held that the concept of obscenity varies based on readers and moral standards.
  • The Court further held that vulgarity and obscenity are distinct and should not be confused.
• XXX v. State of Kerala (2023):
  • The Kerala High Court held that Nudity should not be tied to sex.
  • The Court held that mere sight of the naked upper body of the woman should not be deemed to be sexual by default and the depiction of the naked body of a woman cannot per se be termed to be obscene, indecent, or sexually explicit.

Conclusion

In India, Obscenity laws are crucial for maintaining public order and protecting societal values, but there should be balance between their application and principles of freedom of expression. The laws should be applied judiciously, as they are subject to society's progress, changing cultural norms, legitimate artistic expression.