LAW OF OBSCENITY
This article is written by El-Varith Fahad.AP, 3year llb student of Markaz Law College at Knowledge City, Calicut, Kerala. This article briefly gives an outline of Law of Obscenity.
The fundamental object of criminal law is not only to protect the rights of people from being curtailed as much as guard their right such as right to life, right to body, right to property and so on, but also to protect the public policies such as public moral, public decency and etc, with a view to ensuring the welfare of society that is the paramount purpose of criminal law. According to a state, it is the duty of it that to ensure whether these rights are violated in any way, especially through the obscene publications. It is absolutely different to give a particular definition of obscene in view of culture, religious and communities, simply because it is subject to change as per the approach of each society. The Oxford dictionary defines the term obscene as Offensive or disgusting by accepted standards of morality and decency. The term Obscene is originated from French word which means ‘offensive’.
What Obscene means?
As per aforesaid statement, it is hard to find out a particular definition for obscene. Obscenity is an offensive word, expression or behavior which would pave the way to public immoral. The oxford dictionary defines obscene as offensive or disgusting by accepted standards of morality and decency. For example, for a book, pamphlet, paper, writing, drawing, painting or any other object to be under the purview of obscene, as per section 292 of Indian penal code, 1860, it must be lascivious or prurient or have the effect of depraving or corrupting someone. But these aforesaid terms are clearly defined nowhere in Indian Penal Code. Therefore it is difficult for lawyers to settle on this.
History of origin of obscenity
If we turn the records of historical event, easily be convinced that, in ancient times, sexual explicitness in drama, poem, story, and novel was generally visualized as they considered as natural as well as positive part of their daily life. They never considered it as obscene. Thus neither the ancient Greek nor the roman had any concept of obscenity. At the same time, in early 4th Centuary, Roman Catholic Church had initiated in order to wipeout and eradicate the immoral books. They banned a plethora of heretical works in the wake of this. For the same purpose, in the year of 1542 Pope Paul III established ‘The Sacred congregation of Roman Inquisition’ with a view to suppressing the immoral works and books. As usual, in those days these kinds of works and books were banned and suppressed not so as to lead the community to immoral. The first person to be convicted on a charge of obscenity in England was Edmund Carll, a book seller who published a new edition of ‘Venus in the Cloister Or The Nan in Her Smock’, a pornographic magazine. It was considered as modern historian as being among the most sexually explicit books available in Britain at that time. In order to determine whether an act is obscene or not, some tests were introduced such as Hicklin test, Miller test, Community standard test and so on.
Obscenity in IPC
As mentioned above, the fundamental purpose of criminal law is not only to protect the legal rights of person, but also to protect the public moral as well as the public decency. According to obscenities, those are generally concerned with prohibiting filthy or disgusting words or pictures those mostly cause to affect the public order and its decency. Indian penal code contains provisions with regard to sale and circulation of art and literature related material on the basis of obscenity. By virtue of sections 292 to 294 of Indian penal code, deal with the different spheres of obscenity. As per section 292 of Indian penal code, it deals with the prohibition of publication of book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object which likely to affect the public morality, in one way or another. Publications through the aforementioned means will be deemed to obscene in the eyes of law, if it is lascivious or appeals to the prurient interest or if its effect or the effect of any one of the items, tends to deprave and corrupt persons who are likely to read, see, hear the matter contained in such materials. Whoever engages with its sale, circulation, imports-exports, receiving profits from any business related to it, advertisement or even an attempt to do an aforesaid act, will be entitled to punishment with imprisonment and also along with fine.
A, wrote and sent B, an hotel manager, a letter by post which containing filthy and vulgar words and some pornographic photos. A has committed obscene and he shall be entitled to punishment under Indian Penal Code.
On the other hand, this section does not extend to-
(1) any book, pamphlet, paper, writing, drawing, painting, representation or figure-
(a) 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
(b) which is kept or used bone fide for religious purposes.
(2) any representation sculptured, engraved, painted, or otherwise represented on or in-
(a) any ancient monument within the meaning of the Ancient Monuments and Archaeological sites and Remains Act, 1958
(b) any temple, or any car used for the conveyance of idols, or kept or used for any religious purpose.
By virtue of section 294 of Indian Penal Code, 1860, prohibits obscene acts or songs at public place. Whoever does any obscene acts or sings, recites any obscene songs or word, he shall be punished with imprisonment which may extend to three months, or with fine, or with both.
This test is originated from the landmark case Regine v. Hicklin. This is a legal test in order to check whether an act or word falls under the purview of obscene or not. This test is totally based on the interpretation of obscene. The fact of this case is that the Henry Scott who sold some copies of anti-Catholic pamphlet entitled ‘The Confessional Unmask’ showing the defilement of Romish priest hood, the secret of confessional and the questions mostly asked by women in course of confessional. In the wake of this, Many Objections from diffrent walks of life, raised with a view to taking action against him. In this case, Hickilin held that the intention of Scott was innocence and it was only to disclose what un ethic matters happening in Catholic church. The case was brought to the consideration of the court of Queen’s Bench. Later it was held that the intention was immaterial if the all materials tending to deprave and corrupt those whose minds are open to such immoral influence, was obscene, and if any portion of work was deemed obscene, the entire work would be treated as obscene.
By and large, Hicklin test permitted for conviction of supplier of obscene irrespective of the intention of the author, if the publication had a tendency to arouse the lustful thoughts in the mind of reader while reading. Even a portion of the work was deemed obscene, the entire work too would be treated as obscene.
Community Standards Test
According to this test, it is a legal test which is much more acceptable in Indian context. Unlike the Hicklin test, this test is applied only on the base of interest of the whole society, not only for some sensitive individuals. As per this test, the acts, or gestures, or contents are deemed obscene only if the prevailing topic in total is in violation of existing community standards. India mostly adopts this test to be followed as the earlier Hicklin test contravenes the provisions of Indian penal code, 1860. In the Aveek Sarkar case, the court adopted the ‘Community Standards test’ in place of Hicklin Test as it is more or less contrary to some provisions of IPC. Therefore, In this case, the court didn’t focus on the on some sensitive individuals, but mainly looked into the impact on the community as whole.
The sum and substance, if the society supports the portrayal of a questionable thing, the court can’t repeal it only for individuals mind-set. The court should act in accordance with mind set of the community as whole. As long as it does not against the whole community standards, it can’t be considered as obscene on the base of the Community Standards Test.
This test is considered as primary legal test with a view to deciding whether the expression constitutes obscenity. This type of test is famous test applied by united states of America. This test is originated from a landmark case Miller v. California. In this case, the Miller sent five distrustful brochures to the manager of restaurant which containing some pornographic images and drawing of a man and woman engaged in sexual activities. As soon as the manager of restaurant got it, he filed a case against him and he was prosecuted for the violation of California law. The test of Miller will be applied, if the following three conditions are satisfied;
1]. Whether the average person, applying contemporary community standards, would find the work appeals on the whole to prurient interests.
2]. Describes sexual conduct in a patently offensive way;
3]. And lacks any serious literary, artistic, political or scientific value.
Constitutional validity of section 292
There is likely to arise out of a question that whether the provisions with regard to obscene can infringe the right of speech and expression guaranteed under article 19 (1) (a) of constitution of India. As a citizen, he is entitled to get the fundamental rights which guaranteed by the State. In other words, it is duty vested on the state to ensure the legal as well as fundamental rights of the people. But one thing to be noted that, every right is not absolute, it is subject to certain restrictions as per the law. For the first time, the question relating to the constitutional validity of provisions of IPC, was challenged in the case of Ranjit Udeshi v. State of Maharashtra. This case challenged the constitutional validity of section 292 of Indian Penal Code, 1860 as it violated the fundamental rights of speech and expression. The fact of this case is that Ranjith Udeshi, one of the four partners, was the owner of the Happy Book Stall. They, four partners were prosecuted for selling copies of an allegedly obscene book namely ‘Lady Chatterley’s Lovers’ written by D.H Lowerance, which containing some sexual intimacies which became the impugned text to be decided for under obscenity.
In this case, Ranjit Udeshi, argued that this is absolutely infringement of the fundamental right of speech and expression guaranteed under article 19 (1) (a) of the constitution. The court upheld that the rights guaranteed under constitutions are not absolute and will be subject to certain restrictions. The rights of speech and expression guaranteed under article 19 (1) (a) are restricted by virtue of article 19 (2). By virtue of article 19 (2) of the constitution, the state can impose reasonable restrictions to the right to freedom of speech and expression, on the following grounds;
- In the interest of sovergnity and integrity of India.
- In the interest of the security of the state.
- In the interest of the friendly relation with foreign country.
- In the interest of public order, decency, or morality.
- In relation to contempt of court.
- Incitement to an offence.
Even the right to freedom of speech is indispensable right according to a democratic country, like India. But that freedom should be exercised only through prescribed manner so as not to affect the public order, decency or morality in the community. That’s why, provisions of IPC relating to law of obscenity should not pave the way to the infringement of fundamental rights of a person guaranteed under Indian Constitution, in any way.
Information Technology Act, 2008
By virtue of sections 67, 67A, 67B of the information technology act, deal with the publications and punishment of the obscene materials in electric forms. Unlike the old times, excessive inventions of electronic platforms, especially in this modern era, paves the way for the publications of obscene materials in a large amound. The aforementioned sections making clear that publication of any material highlighting sexual explicit acts or conducts, in electrical form, should be deemed as obscene and subject to the punishment with imprisonment and also with fine. As per section 67A of the act, whoever publishes in the electric form, any material containing sexual acts or conducts, shall be punished with imprisonment which may extend to five year and also with fine which may extend to 10 lakhs rupees and in the event of second conviction with imprisonment which may extend to seven years and also with fine which may extend to 10 lakhs. Section 67B deals with a law which prohibiting the child pornography. This section states that, whoever publishes any material obscene in the electronic form, which depicts children engaged in sexual acts or conducts, shall be punished with imprisonment and also with fine. Sections 13 to 15 of the same act, ensures the protection of children from sexual offenses, POCSO.
Regime v. Hicklin
The fact of this case is that, Henry Scott sold copies of anti- catholic pamphlet entitled ‘The confessional Unmask’ highlighting hidden facts happening behind the curtain of confessional of Catholic church. In this case, Hicklin stated that the intention of Henry Scott was innocence. However, the case was brought to the consideration of the court of the Queen’s Bench. The court held that, the intention is immaterial if the all materials tending to deprave and corrupt those whose minds are open to such immoral influence.
By and large, Hicklin test permitted for conviction of supplier of obscene irrespective of the intention of the author, if the publication had mere a tendency to arouse the lustful thought in the mind of reader while reading. Even a portion of the work was deemed obscene, the entire work too would be treated as obscene.
Ranjit D. Udeshi v. State of Maharashtra
Till 2014, both supreme court and High court adopted the Hicklin test. However, in 2014 courts adopted the Community Standards Test in place of Hicklin test in Aveek Sarkar case. The fact of this case, Ranjit D. Udeshi, one of the partners of a firm namely Happy Book Stall. They were prosecuted for selling copies of allegedly book namely ‘Lady Chatterley’s Lover’ by D.H Lowerence, which contained some sexual intimices caused awaking the lustful thought of the reader. Ranjith argued that it is the violation of right to freedom of speech and expression guaranteed under 19 (1) (a) of the constitution. The court held that this right is not absolute and subject to some restrictions as per article 19 (2) of the constitution, as it against the public decency and morality.
Sumeresh Bose v. Amal Mitra
Sumaresh bose, a famous Bengal writer, was accused of writing and promoting an allegedly obscene novel entitled ‘Prajapathi’ which published in ‘ Sarodaya Desh, a Bengal journal. His work was accused of being corrupting the mind-set of the readers. While the case was firstly presented before the trial court of Calcutta and further appealed to the High court. The judgments of both courts were same and against the appellant, that as the novel Prajapathi containing the vulgar writing and discussing the sexual activity, it is obscene.
But in this case, Honorable supreme court’s decision was entirely different and it was held that the novel Prajapathi is not obscene as vulgar writing needs not necessarily be obscene. Supreme court further held that the judge must read the book in question and try to understand the view of the , writer. In a nut shell, any writing can’t be treated as obscene simply because it contains the vulgarity or discussion of sexual intercourse.
The ultimate purpose of the criminal law is to ensure the protection of the legal right of a person from being violated, as well as to protect the public decency and morality. The publication of any material obscene highlighting sexually explicit acts or conducts, should be punished as per provisions of Indian penal code, 1860, as it affects the minds of the reader. In Indian context, the community standards test is much more acceptable than any other tests to be determined the obscene. Till the year of 2014, both supreme court and High court followed the Hicklin test. However, in the year 2014, the honorable Supreme court in Aveek Sarkar v. State of West Bengal rejected the Hicklin Test by adopting Community Standards Test. At the present Indian context, mere a nude or semi-nude photographs will not be treated as obscene, unless it had the tendency to arouse the lustful thoughts of an overt sexual desire. If it so! It too comes under the purview of law of obscenity.
Indian Penal Code By M.P. Tandon
Indian Penal Code By S.N Misra
1986 AIR 967, 1985 SCR Supl. (3) 17
1965 AIR 881, 1965 SCR (1) 65
2005 (2) CHN 694
Author: FAHAD Ap,
Markaz law college, At Knowledge city