Obscenity

What is ‘Obscenity’?

The word, obscenity denotes the quality of being obscene which means offensive to modesty or decency; lewd, filthy and repulsive. Obscenity in layman’s term would signify the breach of present moral codes in words, representations of actions that are easily approachable or available to the public large. It is is understood as a term that describes things that are disgusting or offensive to an individual in a sexual manner where they aim to incite lust in a person. The impression of obscenity would vary from country to country depending on the values of principles of present-day society. Courts often rely on contemporary social norms and public morality when determining whether an act is obscene.

Obscenity is a wider term, and one should not confuse it with indecency and vulgarity, it is as such, what is obscene is vulgar but what is vulgar may not be obscene. Vulgarity refers to language or actions that provoke disgust or revulsion, but it does not necessarily degrade an individual's moral standing. Indecency too refers to a less serious breach of public morality whereas Obscenity is a more serious offence intended to corrupt or deprave the minds of individuals susceptible to immoral influence.

The key difference between the layman and legal understanding is that while the layman's definition is rooted in moral context-specific perceptions, the legal definition is context-specific and lays emphasis on its implications on societal morality.

Official Definition of ‘Obscenity’

Obscenity as defined in Legislations

Bharatiya Nyaya Sanhita (BNS)

Section 294 (1) of BNS, 2023 (similar to Section 292 (1) of the old IPC), defines obscenity and provides that any content shall be deemed to be obscene if it is lascivious or appeals to the prurient interest, or if its effect tends to deprave and corrupt persons likely to read, see or hear the content.

This section prohibits the sale or publication of any obscene   pamphlet,   book,   paper,   painting,   and   other   such   materials. It states:

“.....A book, pamphlet,  paper, writing, drawing, painting, representation, figure, or any other object, including the display of any content in electronic form, shall be deemed to be obscene if it is lascivious or appeals to the prurient interest or if its effect, or (where it comprises two or more distinct items) the effect of any one of its items, is, if taken as a whole, 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 embodied in it.”  

Legal Provisions related to Obscenity

Bharatiya Nyaya Sanhita (BNS) 2023

Section 295 of BNS (similar to Section 293 of old IPC) criminalises the sale or distribution of obscene objects to anyone who is under the age of 20, or an attempt to do so. Although it is a bailable offence, the maximum punishment for the first conviction is three years of imprisonment and a fine up to Rs 2,000, and for the second conviction seven years with a fine up to Rs 5,000. Section 296 of BNS (similar to Section 294 of old IPC) prohibits obscene acts and songs in public spaces. The maximum punishment for the person convicted under this charge is three ­month imprisonment or a fine upto Rs. 1000, or with both.

Information Technology Act, 2000

Section 67 of the Information Technology (IT) Act makes it an offence to publish or transmit obscene content in electronic form. It punishes first-time offenders with up to three years in prison and a fine of up to five lakh rupees and repeat offenders with up to five years in prison and a fine of up to ten lakh rupees. Further, Section 67A of the Information Technology (IT) Act makes it an offence to publish or transmit or cause to be publish or transmit in the electronic form any material which contains sexually explicit act or conduct with imprisonment of up to five years and a fine of up to ten lakhs on first conviction, and imprisonment of up to seven years and a fine of up to ten lakhs upon any subsequent conviction.

The difference between Section 292 of the IPC and Section 67 of the IT Act is that while the latter criminalizes the transmission of obscene content by electronic means, the former criminalizes the dissemination of obscene content through conventional print media, such as through writings, drawings, books or pamphlets.

Indecent Representation of Women (Prohibition) Act, 1986

Section 2(c) of the Indecent Representation of Women (Prohibition) Act, 1986, defines indecent representation of women to mean "the depiction in any manner of the figure of a woman, her form or body or any part thereof in such a way as to have the effect of being indecent, or derogatory to, or denigrating, women, or is likely to deprave, corrupt or injure the public morality or morals."

The act states that no person shall publish or cause to publish or cause to be published or arrange to take part in the publication or exhibition of any advertisement which contains indecent representation of women in any form. ‘In the act, advertisement’ includes any notice, circular, label, wrapper or other document and also includes any visible representation made by means of any light, sound, smoke or gas

The Young Persons (Harmful Publication) Act, 1956

Section 3 of the Young Persons (Harmful Publication) Act, 1956 restricts 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 .

Section 2 defines “harmful publication” to mean any book, magazine, pamphlet, leaflet, newspaper, or other like publication which consists of stories told with the aid of pictures or without the aid of pictures or wholly in pictures, being stories portraying wholly or mainly- Incidents of repulsive or horrible nature; in such a way that the publication as a whole tend to corrupt a young person into whose hands it might fall, whether by inciting or encouraging him to commit offences or acts of violence or cruelty or in any other manner whatsoever;

Indian Post Office Act, 1898

Section 20 Indian Post Office Act, 1898 prohibits transmission of material which is of indecent, obscene, seditious, scurrilous, threatening or grossly offensive character.

The Customs Act, 1962

Section 11(3)(b) of Customs Act, 1962 gives power to prohibit importation and exportation of goods for the purpose of maintenance of public order and standards of decency and morality.

Trademark Act, 1999

Section 9(2)(c) of the Trade Marks Act, 1999 prohibits registration of any mark if it comprises or contains scandalous or obscene matter.

Broadcasting Regulations

The Cable Television Networks (Regulation) Act, 1995 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 Cable Television Networks (Regulation) Act, 1995, restricts the carrying out of programs that seem unfit for “unrestricted public exhibition”, which is specified under Section 5-A .

The Cinematograph Act, 1952 specifies the provisions for regulation and certification for showcase of cinematograph films. Section 4 of the Act states the rules for examination of films while Section 5-A address the issue of certification of films. Section 4 of the Act read with Section 5-A of Cable Television Networks Act details the provisions for examination and certification of 10 cinematograph films by the Board of Film Certification (CFBC).

Advertising Regulations

The Code for Self-Regulation of Advertising Content in India ensures that advertisements are not offensive to generally accepted standards of public decency. Chapter II of the self regulation provides that 'Advertisements should contain nothing indecent, vulgar, especially in the depiction of women, or nothing repulsive which is likely, in the light of generally prevailing standards of decency and propriety, to cause grave and widespread offence'.

Obscenity as defined in official government reports

Law Commission Report

The Tenth law commission in its 109th Law Commission Report (1985) titled Obscene and Indecent Advertisements and Displays: Sections 292-293 of the IPC focuses on understanding the present law in India, offering a comparative analysis with the law in England, shedding light upon changes needed in section 292 of the IPC, and highlighting the need to insert section 293A.

Obscenity as defined in Case laws

Judicial Tests to determine Obscenity

Hicklin's Test (1868)

In R v. Hicklin, Alexander Cockburn, C.J. laid down an authoritative definition and an authoritative test for obscenity under English Law. The Chief justice wrote that the test for obscenity is this, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall.The test laid down by the Queen’s Bench had six constituent elements:

• Tendency to deprave and corrupt: The matter published had to have the tendency to deprave and corrupt, or to suggest to readers thoughts of most impure and libidinous character. However, the meaning of these terms was not clear as to what it suggests.
• Not the reasonable person: The Court while deciding the question of obscenity was to judge the matter from the standpoint of a reasonable person, especially those whose minds are open to such immoral influences. As per Cockburn, C.J. reasonable person may include children or elder person i.e. person of more advanced years.
• Presumed intent: While deciding the question of obscenity, purity of motive is no excuse for publication of indecent matter, neither the court had to look into the tacit or altruistic intent of the author. The question of obscenity was to be judged merely upon the selection of words by the author.
• Irrelevance of contemporary books: The published work had to be judged on its own merits and it was not permissible for the court to look at other books which were in circulation at that time.
• Accessibility: Circumstances of the publication in question becomes a relevant consideration and the court was to look into the accessibility of the publication. Thus, a medical treatise with illustration necessary for information of students or practitioners may not be treated as obscene, because it was intended to reach only to the limited audience though it might be indictable if exhibited in a shop window for every passer-by to see.
• Work as a whole irrelevant: As per this test it was not the whole work or the theme which was to be looked into while deciding the question of obscenity, rather the presence of a single isolated paragraph may make the whole work obscene.

Ranjit D. Udeshi v. State of Maharashtra (1964)

In Ranjit D. Udeshi v. State of Maharashtra, the Hicklin's test was modified as regards its application in India. Hidayatullah, J., writing the judgement for the Court, made three modifications in the Hicklin test:

• The mere inclusion of sexuality and nudity in art and literature does not by itself amount to indecency. Further evidence is necessary to substantiate obscenity, as mention of sexuality alone is insufficient to undermine moral values.
• The evaluation of a piece of work should include its entirety, taking into consideration the presence of any vulgar language or explicit passages. It is essential to examine whether the non-offensive sections of the work possess more significance, thereby diminishing the impact of any obscenity, or if the obscenity itself is so inconsequential that it can be disregarded.
• Another differentiator from the test was the introduction of a defense to counter the accusation of obscenity, specifically in cases where the publication in question served a greater societal purpose.

These changes were incorporated in Section 292 by way of an amendment in 1969.

K.A. Abbas v. Union of India and Anr (1970)

In K.A. Abbas v. Union of India and Anr, the Supreme Court underlined the need to delineate a differentiation between artistic and non-artistic forms of expression when evaluating obscenity. It observed that "the censors need to take into account the value of art while making their decision. The artistic appeal or presentation of an episode robs it of its vulgarity and harm and also what may be socially good and useful and what may not."

Samresh Bose v Amal Mitra (1985)

In Samaresh Bose v. Amal Mitra the Supreme Court emphasized the distinction between vulgarity and obscenity, asserting that the mere presence of sexual content or unconventional language does not automatically render a literary work obscene. The Court underscored the importance of assessing the overall literary merit and the author's intention behind the portrayal of characters and events.

Bobby Art International & Ors. v. Ompal Singh Hoon (1996)

In Bobby Art International & Ors. v. Ompal Singh Hoon the Supreme Court of India, drew a distinction between drew a distinction between nudity and obscenity. It held that film scenes depicting frontal nudity were justified within the film's narrative context, aiming to elicit empathy and revulsion rather than titillation.

Contemporary Community Standard Test (1974)

The Supreme Court of the United States (SCOTUS) laid down the community standard test in the case of Marvin Miller v. State of California to determine whether something is obscene or not from the standpoint of the local community in which the trial takes place. According tot he Judgement, the basic guidelines for the trier of fact must be:

• 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.

Aveek Sarkar vs State of West Bengal (2014)

In Aveek Sarkar vs State of West Bengal the Supreme Court espoused a slightly modified test for obscenity called the ‘community standards test,’ stating that ‘those sex-related materials which have a tendency of ‘exciting lustful thoughts’ can be held to be obscene’ with the caveat that ‘the obscenity has to be judged from the point of view of an average person, by applying contemporary community standards.’

Harm based test

In R v. Butler, the Supreme Court of Canada was adjudicating the constitutionality of the obscenity provisions of the Criminal Code. The Court indeed found those provisions to be a justifiable infringement on the freedom of expression and did articulate a reconstituted test by recating the community standard test as a type of harm test. Justice Sopinka assumed that if the decision that material was harmful and subject to restriction did not depend on community standards, then it would be based on “the individual tastes of judges.” Justice Sopinka considered that the purpose of the obscenity provision was to prevent harm rather than to police conservative morality.

In recent years, the Supreme Court has ruled that it is constitutional morality, and not personal morality, that should inform criminalisation. This is the only way to ensure that the standard of criminalisation is not solely based on whether the conduct in question offends one’s personal morality.

International Experience

• One of the most prominent differences from the UK and the US law on Obsceity is that these laws take the knowledge of the seller into consideration when determining whether the person is liable for obscenity or not. Another deviation is that the US and UK laws do not criminalize the private possession of obscene material, however, the Indian law criminalizes private possession too.

• The United Kingdom has also enacted the Obscene Publications Act, of 1964, which aims to strengthen the law for preventing the publication for gain of obscene matter and the publication of things intended for the production of obscene matter. Section 2(5) Obscene Publications Act states that A person shall not be convicted of an offense against this section if he proves that he had not examined the article in respect of which he is charged and had no reasonable cause to suspect that it was such that his publication of it would make him liable to be convicted of an offense against this section. This provision emphasizes that a person should not be held liable for obscenity if they do not know the content of the publication.

Research that engages with obscenity

Law and the Obscene Image: Reading Aveek Sarkar v. State of West Bengal

This research paper by Latika Vashist investigates the encounter of Law with aesthetics. Grounding the analysis in psychoanalytic reading of law, the author argues that the legal interpretation of an erotic image is marred by interpretive violence in the contemporary judicial discourse, which not only erases the image (by fixating a legally permissible meaning on it) but eliminates any possibility of foregrounding the erotic subject in Law. Erotic justice in so-called progressive cases is determined by confining the image in permissible emotional categories (in this case, heterosexual, marital love). This paper by analyzing a recent Supreme Court decision attempts to show how the focus on the explanatory text obliterates the aesthetic dimension of the image which may be saying more than what Law can presently understand. This erasure constitutes a simultaneous erasure of the feminine in Law.

Rejecting "Moral Harm" as a ground under Obscenity Law

This Research Paper by Anees Baker argues for the rejection of moral harm, which forms the bedrock of obscenity law, as a ground for declaring materials as obscene.. This approach is promoted as better acknowledging human subjectivity, accounting for the subtle utility of sexually explicit material, and as being more conducive to a revolution in contemporary artistic enterprise.