Law on Obscenity in India

What is Obscenity?

The concept of obscenity differs from country to country depending on the moral standards of contemporary society.

The Encyclopedia definition of Obscenity states, 'By English law it is an indictable misdemeanor to show an obscene exhibition or to publish any obscene matter, whether it be writing or by pictures, effigy or otherwise.' The precise meaning of "obscene" is, however, decidedly ambiguous. It has been defined as something offensive to modesty or decency, or expressing or suggesting unchaste or lustful ideas or being impure, indecent or lewd".

In the United States, Pennsylvania Consolidated statutes in s. 5903. defines "obscene" as
Any material or performance, if:

A. the average person applying contemporary community standards would find that the subject matter taken as a whole appeals to the prurient interest;

B. the subject matter depicts or describes in a patently offensive way, sexual conduct of a type described in this section; and

C. the subject matter, taken as a whole, lacks serious literary, artistic, political, educational or scientific value.

Statutory Provisions in India

The law relating to obscenity is inter alia laid down in Sec.292 of the Indian Penal Code which came about by Act 36 of 1969.

Sec.292 reads as follows:

Sale, etc., of obscene books, etc.-[(A)] For the purposes of sub-section (B) book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object, 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 effects 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.]
[(C) Whoever-sells, lets to hire ,distributes, publicly exhibits or in any manner puts into circulation or for purposes of sale, hire, distribution public exhibition of circulation, makes produces, or has in

(a) Possession any obscene book, pamphlet, paper, drawing painting, representation or figure or any other obscene objects whatsoever, or

(b) Imports, exports or conveys any obscene objects for any of the purposes, aforesaid, on knowing or having reason to believe that such objects will be sold let to hire, distributed or publicly exhibited or in any manner put into circulation or;

(c) takes part in or receives profit from any business in the course of which he knows or has reasons to believe that such an object are for any of the purposes aforesaid, made produced, purchased , kept, imported, exported, convey, publicly excited, or in any manner put into circulation, or

(d) advertises or makes known by any means whatsoever that any person is engaged or is ready to engage in any act which is an offence under this section, or that any such obscene object can be procured from or through any person, or

(e) Offers or attempts to do any act which is an offence under this section, shall be punished [on first conviction with imprisonment of either description for a term which may extend to two years, and with fine which may extend to two thousand rupees, and, in the event of a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and also with fine which may extend to five thousand rupees.]
[Exception.- this section does not extend to any

(I) book, pamphlet, paper, writing, drawing, painting, representation of figure-
(i) The publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, writing, drawing, painting, representation or figure is in the interest of science, literature, art or learning or other objects of general concern, or
(ii) which is kept or used bona fide for religious purpose;

(II) any representation sculptured, engraved, painted or otherwise represented on or in-

(i) any ancient monument within the meaning of the Ancient Monuments and Archaeological Sites and Remains Act,1958(24 of 58), or

(ii) any temple, or any car used for the conveyance of idols, or kept or used for any religious purpose.]

International obligation

The Constitution of India guarantees everyone the right to freedom of expression. India is also a party to the International Covenant on Civil and Political Rights and therefore bound to respect the right to freedom of expression guaranteed by Article 19 thereof, which states:

A. Everyone shall have the right to hold opinions without interference.

B. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds regardless of frontiers, either orally, in writing or in print, in form of art, or through any other media of his choice.
The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities .It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary

(a) For respect of the rights or reputation of others;

(b) For the protection of national security or of public order, or of public health or morals.

Both national and international courts have recognized that freedom of expression is essential to respect for human rights and the maintenance and progress of a democratic society. For example, the European Court of Human Rights has stated:

Freedom of expression constitutes one of the essential foundations of [a democratic] society, one of the basic conditions for its progress and for the development of every man.... [I]t is applicable not only to 'information' or 'ideas' that are favorably received or regarded as inoffensive or as a matter of indifference, but also to those which offend, shock or disturb the State or any other sector of the population. Such are the demands of pluralism, tolerance and broadmindedness without which there is no 'democratic society'.


Indian Case Law

Ranjit D. Udeshi Vs. The State of Maharashtra AIR 1965 SC 881
· Section 292 of Indian Penal Code was held not ultra vires of the Constitution
· Hicklin Test was relied on. Any such material which has the capacity to deprave and corrupt those who are susceptible to such immoral influences was held to be obscene
· The court said that only some paragraphs were obscene therefore should be removed…( Where as law in the United States lays down that for material to held obscene it should be seen in the context of the entire document and in isolation.

Shri Chandrakant Kalyandas Kakodkar Vs. The State of Maharashtra & Others 1970 (AIR) SC 1390
· Courts held that after enactment of the Constitution we must follow the test laid down under article 19(2) and not Hicklin Test laid down in 1868.
· It was also held that the obscene paragraphs should not be read in isolation but in the context of the entire text.
· Influence of the obscene material on the adolescents should not be the only test as standards of the contemporary society are fast changing..both adolescents and adults have access to every kind of material (This shows a shift in jurisprudence regarding obscenity towards Millers )

Samresh Bose &Another Vs. Amal Mitra & Another 1986 (AIR) S 967’
· Mere reference to female form or figure or suggestion to sex to any class of readers including adolescents would not itself is obscene.
· Not obscene if does not have the capacity to disgust or deprave
· Only obscene if has capacity to disgust or deprave those open to such influences.

Thus we see that the test of 'contemporary community standards has still not taken firm ground in India though some oblique reference is made in Kakodkar's case. Primarily the courts keep going back to Hicklin Test i.e 'corrupt and deprave those open to such influences'. But Courts in India are trying to read the expression 'corrupt and deprave' narrowly and strictly.

REMARKS:

Friends do you believe law enacted by Guras (Britishers) is still relevant or do you want it to be liberalised or tightened !!!