Context:
Model and actor Milind Soman was booked by the Goa Police on November 6 for obscenity, days after he posted a photograph of himself running nude on a beach in the state.
The obscenity Laws in India
- Under the Indian Penal Code (IPC), Sections 292, 293 and 294 deal with the offence of obscenity.
- Section 292 states that any content shall deem 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.
- Section 293 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 294 prohibits obscene acts and songs in public spaces.
- The maximum punishment for the person convicted under this charge is three-month jail and a fine.
- With the advent of the digital age, lawmakers made laws to criminalize obscene conduct on the internet as well.
- Sections 67A of the IT Act deal with material containing a sexually explicit act etc in electronic form.
- The punishment is five years and Rs 10 lakh (first conviction) or seven years and Rs 10 lakh (second conviction).
What about freedom of expression?
- The right to freedom of speech and expression is not absolute.
- Article 19 of the Constitution of India, which guarantees the right also provides for reasonable restrictions on various grounds, including that of decency and morality.
- This means that when penalizing obscene acts or content, free speech has to balance against the contemporary community standards of morality.
- Indian courts have often settled the debate between morality and freedom in favour of artistic freedom, such as in the M F Hussain judgment of 2008 and the Perumal Murugan judgment of 2016.
- In the latter case, the Supreme Court held that “art is often provocative and is not meant for everyone” and material cannot be labeled as obscene simply because it is unpalatable to one section of society.
Judiciary’s view
- In 2014, the judiciary used the Hicklin test to determine if something is obscene or not.
- The Hicklin Test was established in English Law after the case of Regina vs Hicklin (1868).
- According to it, any portion of a work found to “deprave and corrupt those whose minds are open to such influences” can be considered obscene.
- The test was most famously used by the Supreme Court to ban DH Lawrence’s Lady Chatterley’s Lover in the case of Ranjit D Udeshi vs State Of Maharashtra (1964).
- However, in 2014, the apex court did away with the Hicklin Test while hearing the case of Aveek Sarkar & Anr vs State Of West Bengal and Anr, which was regarding the publication of a semi-nude picture of Boris Becker and his fiancee.
- In its judgment, the court said “while judging as to whether a particular photograph, an article or book is obscene, regard must be had to the contemporary mores and national standards and not the standard of a group of susceptible or sensitive persons”.
- It added that the photograph must be “taken as a whole” and seen with the context of what it wants to convey.
FAQs about Obscenity Laws in India
Under the Indian Penal Code (IPC), Sections 292, 293, and 294 deal with the offence of obscenity. Section 292 defines what is considered obscene and prohibits the sale or publication of obscene materials. Section 293 criminalizes the sale or distribution of obscene objects to individuals under the age of 20. Section 294 prohibits obscene acts and songs in public spaces.
According to Section 292 of the IPC, 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.
For the first conviction under Section 293, the maximum punishment is three years of imprisonment and a fine up to Rs 2,000. For the second conviction, the punishment is seven years of imprisonment with a fine up to Rs 5,000. Section 294, which deals with obscene acts and songs in public spaces, carries a maximum punishment of three months in jail and a fine.
Sections 67A of the IT Act deal with material containing sexually explicit acts or content in electronic form. The punishment for the first conviction is five years of imprisonment and a fine of Rs 10 lakh, while for the second conviction, the punishment is seven years of imprisonment and a fine of Rs 10 lakh.
The right to freedom of speech and expression is not absolute in India. Article 19 of the Constitution of India guarantees this right but also provides for reasonable restrictions, including those related to decency and morality. Obscene acts or content may be penalized if they do not conform to contemporary community standards of morality.
Indian courts have often favored artistic freedom in cases involving obscenity. They have ruled that material cannot be deemed obscene simply because it is unpalatable to a certain section of society. Courts consider contemporary mores and national standards while judging whether something is obscene or not.
The Hicklin Test was established in English Law and was used to determine obscenity. According to this test, a work could be considered obscene if any portion of it had the potential to “deprave and corrupt” those exposed to it. Indian courts used this test in the past to ban certain works. However, the apex court later discarded the Hicklin Test and shifted to considering contemporary mores and national standards while judging obscenity cases.
Read also:- Important Notes of Cr.PC (Criminal Procedure Code) for Law -Judiciary-PCS-J
