This article has been written by Aditi Ananya from Chanakya National Law University

Table of Contents

Introduction

Any content that violates someone’s morality is referred to as obscenity in legal terminology. This might involve engaging in vulgar, lewd, or indecent behaviour. Although it applies to much more than only pornography, obscenity is frequently used in relation to it. The word “pornography” comes from the Greek “porne,” which means harlot, and “graphy,” which means writing. The courts have determined that it might be difficult to define exactly what constitutes obscenity since it depends on the moral standards of the individual. The phrase is frequently used to describe sensual material seen in movies, novels, and publications as well as naked dance.

The word “obscenity” generally refers to the transgression of widely accepted moral standards in statements, depictions, or behaviours that are available to the general public. It is typically connected to topics that have graphic sexual content. Therefore, laws that punish obscenity aim to limit free speech while shielding people from the damaging effects of pornographic media.

Given the multiplicity of social, religious, and cultural perspectives in the community, it is challenging to define obscenity precisely and specifically. “Obscene” is defined by the Oxford Dictionary as (of the representation or description of sexual issues) repulsive or revolting by conventional moral and decency standards. It comes from the Latin word “obscēnus” or the French term “obscène.” Every nation’s concept of obscenity, however, varies depending on its culture.

Furthermore, it is difficult to define what constitutes obscenity, making it difficult for attorneys to decide what constitutes an obscene act. Due to the lack of a clear definition for phrases like “lascivious,” “prurient,” “deprave,” and “corrupt,” which allow the judges to interpret them anyway they see fit.

Anything that is vulgar, disgusting, or filthy, or that offends someone’s modesty or decency, is referred to as obscenity in India. The concepts of morality and decency are related to and interpreted in connection to obscenity in Indian law. The definition of decency is “avoidance of vulgar language and gestures.” Nonetheless, expressing decency goes beyond sexual morality to ensure that the acts are compliant with civil society norms. The established standards for upholding morality and civility in both public and private spheres are known as decency. Under common law, indecent exposure and publication are also considered criminal crimes.

Although phrases like “vulgar” and “indecent” are sometimes used interchangeably with “obscene,” they are not the same. A “vulgar” object is defined by Merriam-Webster as “offensive in language” or “lewdly or profanely indecent.” However, “obscene” is described as “abhorrent to morality or virtue, designed to incite lust or depravity,” “disgusting to the senses,” and “so excessive as to be offensive.”

It is believed that whereas obscenity is more likely to corrupt or contaminate minds who are susceptible to such immoral influence, vulgarity is supposed to elicit feelings of disgust, aversion, and detestation in people without depraving or lowering their moral character. Therefore, a vulgar composition is not always the same as an obscene one. For instance, even though a book or other work on sexology contains sexual imagery and discusses sex, it cannot be considered obscene because it is meant to advise married individuals.

Related Legislations and Provisions

The IPC’s Sections 292, 293, and 294 were passed with the ulterior motive of upholding public morality by making it illegal to sell pornographic books and publications to minors in particular and to the general public.

According to clause (1) of section 292, the publication of a book, pamphlet, paper, writing, drawing, painting, representation, figure, etc., will be considered obscene if any of the following conditions are met: it must be lascivious (expressing or causing sexual desire); it must appeal to the prurient interest (excessive interest in sexual matters); or it must have the effect of depraving or corrupting people who are likely to read, see, or hear the content contained in such materials.

A person is subject to punishment under clause (2) of section 292 if they: Engage in or receive profits from business activities in which he knows or has reason to believe that any such obscene objects were made for any of the aforementioned purposes; Sell, lets to hire, distribute, publicly exhibit or puts into circulation, etc.; or Import or export or convey any obscene objects; promotes or discloses, in any way, that someone is participating in, or about to participate in, any activity that would be considered a violation of this section; offers or makes an effort to commit any conduct that is prohibited by this section.

Sales of pornographic items, etc., to minors under the age of 20 are prohibited by Section 293. The offence is cognizable, bailable, non-compoundable and triable by any Magistrate.

However, offensive music and performances are covered under Section 294. This section’s offences are cognizable, bailable, non-compoundable, and subject to a magistrate’s tribunal. The following requirements must be met for an act to be considered unlawful under section 294: the accused must have performed an act; sang, recited, or spoke any song or poem; the act must have been obscene; it must have been done in a public setting; and it must have annoyed other people.

Women are frequently represented in extremely offensive, lewd, and filthy ways. They are reduced to nothing more than objects of desire, which causes them to be victimised by society and, as a result, to be corrupted in the eyes of onlookers or other people. In order to prohibit the inappropriate, scandalous, and indecent portrayal of women in publications, writings, paintings, ads, and other media, the Indecent Representation of Women (Prohibition) Act, 1986 was thought to be necessary. The act punishes the coarse representation of women, which means “the illustration in any other manner of the figure of women; her from or any other part thereof in such way as to have the effect of being indecent, or outrageous to, or denigrating women, or is likely to deprive, corrupt or injure the public virtue or morals. In addition to explaining what is meant by “indecent representation of women,” Section 2(c) of the Act forbids and penalises publications of any sort that feature women shown indecently or in an indecent manner. This is done in all forms of advertising, not just in books, circulars, posters, etc.

Penalties

For a first offence, there is a two thousand fine and a maximum two-year sentence.
For a repeat offence, there is a ten thousand to one lakh fine and a five-year maximum sentence in jail.

The Cable Television Networks (Regulation) Act of 1995 aims to regulate the broadcast of shows that violate established standards and have the potential to incite social unrest, imposing penalties such as fines and imprisonment. Programmes that are inappropriate for “unrestricted public exhibition,” as defined by Section 5-A, are restricted from airing under Rule 6(1)(o) of the Cable Television Networks Rules, 1994, which is read with Section 5 of this Act.

The regulations and certification requirements for the exhibition of cinematograph films are outlined in the Cinematograph Act of 1952. The Act’s Section 4 lays out the guidelines for film examination, while Section 5-A deals with the matter of film certification. The provisions for the Board of Film Certification’s (CFBC) assessment and certification of cinematograph films are outlined in Section 4 read with Section 5-A of the Cable Television Networks Act.

The Young Persons (Harmful Publication) Act of 1956 prohibits the publication of any material that might adulterate or corrupt the mind of a child or young person, or encourage them to conduct violent or cruel actions. It is illegal for anybody to promote or divulge through any channel that damaging publications are available for purchase from or through any individual. Publications that include stories conveyed with or without the use of pictures, as well as stories that entirely or mostly depict anything, are classified as harmful. These include books, magazines, pamphlets, newspapers, and other publications of a similar nature. The following are possible forms of punishment under this act: fines, imprisonment for up to six months, or both.

The Information Technology Act of 2000 forbids the electronic dissemination and publication of any items that are obscene in character or have the potential to offend. Any publication or transmission that has the potential to degrade or corrupt anyone who have read, seen, or heard the stated material is illegal and is punishable by both jail time and a fine.

The Information Technology (Amendment) Act of 2008 included Section 67(A) and Section 67(B). Section 67(A) stipulates that posting sexual information on social media platforms is illegal and will result in penalties which are as follows –

• First Offence: Ten lakh rupees in fines and five years in prison.

• Repeat offenders face a seven-year sentence and a 10-lakh rupee fine.

Child pornography is prohibited by Section 67(B), which states that possessing or publishing such material is illegal as well as publishing it. Penalties under this are as follows –

• First Offence: Ten lakh rupees in fines and five years in prison.

• Repeat offenders face a seven-year sentence and a 10-lakh rupee fine.

The government of India founded the Advertising Standards Council of India (ASCI) in 1985 to regulate the broadcast of commercials on television. ASCI was established to self-regulate ads in order to safeguard consumer interests. The primary goal of the Act is to promote ethical advertising in an effort to restore public confidence in the medium. Making sure that the commercials don’t offend people in accordance with widely recognised norms of appropriateness and public decency is one of the core tenets of this self-regulating code such that they don’t include anything obscene, vulgar, or disgusting that might offend people in a serious or broad way.

The State Human Rights Commission and the National Human Rights Commission are authorised to investigate the preservation of women’s dignity in advertising. Human rights are defined as the rights to life, liberty, equality, and dignity of the person as guaranteed by the Constitution, as well as those inherent in the International Covenants and upheld by Indian courts, under Section 2(d) of the NHRC Act.

The purpose of POCSO was to shield minors under the age of eighteen from crimes including sexual assault, harassment, and pornography. According to the Protection of Children from Sexual Offences Act, 2012 (POCSO), it is illegal to sext a juvenile or transmit them pornographic material in the form of images, videos, or other media. The definition and parameters of sexual harassment are outlined in Section 11 of the POSCO. The POCSO Act’s Sections 13, 14, and 15 outline the penalties for utilising minors in pornographic material. Use of adolescent or adolescents for pornographic purposes is prohibited by Section 14 and carries a fine and a maximum five-year jail sentence. Furthermore, it is illegal under Section 15 to store pornographic materials featuring children with the purpose to distribute them. A crime under this section carries a maximum three-year jail sentence, a fine, or both.

RELEVANT CASE LAWS

Section 292’s constitutionality was contested in Ranjit Udeshi v. State of Maharashtra 1965 (1) SCR 65. According to the case’s facts, Happy Book Stall’s owner was one of the four partners, Ranjit D. Udeshi. Section 292 of the law was used to prosecute all four partners for selling D. H. Lawrence’s novel Lady Chatterley’s Lover. Udeshi believed that section 292 violated his basic right to freedom of speech and expression, which is protected by the Constitution’s article 19(1)(a). It was decided that the limitations specified in article 19(2) apply to Article 19(1)(a) of the Constitution. Decency and public morality are among the justifications. This exemption includes Section 292 on obscene materials, which addresses the question of public decency and morals. Section 292 is therefore constitutional.

When judging whether or not something shown in a movie is obscene, it’s important to take into account the context in which it’s being shown; the context should never be ignored. Relying on the aforementioned notion, the Supreme Court held in the Bobby Art International & Ors. v. Ompal Singh Hoon (1996) 4 SCC 1 case, which addressed the issue of obscenity in relation to the movie Bandit Queen, that the sequences depicted could not be seen as stand-alone scenes. The Honourable Court ruled that the allegedly offensive parts of the movie must be seen within the framework of the entire work and the social commentary it aims to provide.

The Delhi High Court stated in the case of Maqbool Fida Husain vs. Raj Kumar Pandey 2008 CRI LJ 4107 that the definition of “obscenity” in the criminal context must be weighed against one’s constitutional right to free speech and expression. M.F. Husain faced criticism for several of his paintings, including the one titled “Bharat Mata”. “A painter has his own perspective of looking at things and it cannot be the basis of initiating criminal proceedings against him,” the judgement of 74 pages stated. In response to the question of whether or not a painting showing “Bharat Mata” in a naked state might be considered obscene, the Court stated that “nudity or sex alone cannot be said to be obscene”. The high court dismissed the motion, observing that “new puritanism is being carried out in India in the name of cultural purity and a host of ignorant people are vandalising art and pushing us towards a pre-renaissance era.”

In the case of Aveek Sarkar v. State of West Bengal (2014) 4 SCC 257, a German magazine included a picture of famous tennis player Boris Becker standing in the nude with his fiancée, actress Barbara Feltus, who was covering her breasts with his hand. The father of Feltus took the photo. Following this, a Section 292 of the IPC complaint was made against the journal. However, after using the community standard test, the Indian Supreme Court decided that the half-naked photo of Boris Becker with his fiancée was not obscene. This is because the photo did not arouse sexual desire or corrupt or deprave people’s minds.

Since Section 81 of the IT Act expressly specifies that it supersedes the IPC, any offence relating to obscenity in electronic form may be prosecuted under the IT Act rather than the IPC. However, depending on the specific facts and circumstances of the case, sections from the IT Act and the IPC may be applicable, as was the case in the Avnish Bajaj v. the State (NCT of Delhi) 2008 Indlaw DEL 763 case. The case concerned Ravi Raj, an IIT Kharagpur student, who listed an explicit MMS video clip for sale under the false name alice-elec on baazee.com. Although baazee.com has a filter in place to prevent the uploading of inappropriate information, the listing with the description “Item 27877408 – DPS Girls having fun!!! full video + Baazee points” nevertheless happened.

Samaresh Bose vs Amal Mitra [1986 AIR 967] – Prominent writer Samaresh Bose faced allegations of penning and endorsing lewd literature through books that appeared in Sarodia Desh, a Bengali publication. The subject at hand was his book “Prajapati.” The Supreme Court ruled in this instance that a judge in similar situations should impartially evaluate both the subject of the complaint as a whole and the specific subject that was deemed offensive. It was determined that reading and comprehending the writer’s viewpoint was necessary to evaluate the work’s literary and artistic merits. When evaluating the potential impact of the work on society, the judge ought to consider the reader’s perspective, as well as the age range to which the reader may belong. After considering the entire book, the Supreme Court ruled that a book cannot be deemed obscene just because it uses slang or unusual language, discusses or references sexual activity, or characterises the female body as a sensation expressed via thinking or narrative. It was decided that the novel did not necessarily amount to obscenity merely because it included coarse language. For the first time, vulgarity and obscenity were distinguished in the ruling.

CONCLUSION

Obscenity is a complex subject with varying social norms on morality and decency. The law continues to be criticised for its ambiguity and vagueness. Because of its imprecise definition, obscenity is now seen in varied ways depending on societal conventions. Article 19’s provisions might unnecessarily upend society if they are not correctly understood and applied. There is no justification for this. Consequently, it is important to consider all pertinent aspects when arriving at a conclusion that would facilitate the advancement of social morality. Not a single work of literature, art, or other creation inspires hatred in humans. Sometimes it is vital to gently and subtly educate the populace in order to reduce the tension in our society.