Obscenity Laws in India: Meaning, Punishment & Cases

Obscenity is a contentious subject that often tests the boundaries between freedom of expression and societal morality. In India, obscenity laws play a crucial role in maintaining public order, protecting individuals from offensive content, and upholding societal values. This article delves into the concept of obscenity, explores how it is identified, examines the relevant sections of the Indian Penal Code (IPC) and various laws, and discusses recent instances of obscenity in India. 

As India has recently seen a significant rise in obscene acts. First, let's dig into some of the notable ones, we all are aware of are:

• Bollywood actor Ranveer Singh broke the internet with his bold nude photoshoot for the New York-based Paper magazine; police booked him under Sections 292, 293 and 509 of the IPC and Section 67A of the IT Act.

• The Goa Police booked Milind Soman in November 2021 for uploading a photograph of himself running nude on a beach in the state.

What is Obscenity, and where to draw the line between obscenity and freedom?

Obscenity can be defined as explicit or offensive content that has the potential to corrupt or morally degrade individuals. However, determining what is obscene and what is not is subjective and varies across cultures and societies. In India, obscenity is generally identified based on community standards, prevailing societal norms, and the impact of the content on the public at large. The intent behind creating and disseminating the content also plays a significant role in classifying it as obscene.

Laws governing Obscenity in India

If we talk about Anti-Obscenity laws in India, the following are the relevant provisions of the Indian Penal Code and IT Act.

• Section 292 IPC specifically deals with the sale, distribution, and public exhibition of obscene material. It makes it a punishable offence to sell, rent, distribute, or publicly exhibit any material that is lascivious or appeals to prurient interests. 

• Section 293 IPC prohibits the sale, etc. of obscene objects to young persons.

It is important to note that 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 IPC addresses obscene acts or songs performed in public places.

Apart from the IPC, other laws in India also address obscenity-related offences. The Information Technology Act, 2000, contains some relevant provisions as well to safeguard interests of citizens against the publication or transmission of obscene material through electronic means such as :

1. Section 67: This section deals with the punishment for publishing or transmitting obscene material electronically. It makes it an offense to publish or transmit any material containing sexually explicit content or material that is lascivious or appeals to prurient interests. The provision includes both text-based content as well as visual representations.

2. Section 67A: This section addresses the punishment for publishing or transmitting sexually explicit material in electronic form. It specifically targets material that is sexually explicit and invasive of a person's privacy.

3. Section 67B: This section pertains to the punishment for publishing or transmitting material depicting children in sexually explicit acts electronically. It is aimed at curbing child pornography and protecting children from exploitation.

The Cinematograph Act, 1952 empowers the Central Board of Film Certification to regulate and certify films to ensure they do not contain obscene or offensive content.

Recent Cases of Obscenity

Several high-profile cases involving obscenity have garnered public attention in India in recent years.

• One such case involved actress Urfi Javed, who faced serious criticism on social media for wearing a bold outfit during a television show. Recently, a BJP leader said that social media influencer Urfi Javed was taking obscenity to the streets of Mumbai and urged the Maharashtra government to take cognizance of it. While the incident sparked a debate on obscenity and dress codes, it also highlighted the power of social media in shaping public opinion and influencing discourse.

• The Delhi Metro obscenity case brought the issue of obscenity into the public eye. A couple was allegedly caught engaging in explicit behaviour on a metro train, which led to their arrest. The incident sparked discussions about public decency, privacy, and the role of law enforcement agencies in maintaining order.

• XXX v. State of Kerala, 2023- Recently Kerala High Court passed a judgement on a matter in which the petitioner, a 33-year-old woman posted a video on several social media platforms with her two minor children (boy aged 14 and girl aged 8 years) painting on her semi-nude upper body carrying the hashtag ‘Body Art and Politics’.

The audience considered the same to be an obscene and vulgar act, posting the same for the world to watch, after which the police registered a criminal case against her. The court aims to strike a balanced approach by considering morality and freedom in this judgment while invoking principles of bodily autonomy. In such cases, courts usually consider the community standard tests.

"Nudity should not be tied to sex. The mere sight of the naked upper body of the woman should not be deemed to be sexual by default," Kerala HC observed.

“The male body is displayed in the form of six-pack abs, biceps etc. We often find men walking around without wearing shirts. But these acts are never considered to be obscene or indecent. When the half-nude body of a man is conceived as normal and not sexualized, a female body is not treated in the same way. Some people are so used to considering a woman's naked body as an overly sexualized one or just an object of desire.

The autonomy of the male body is seldom questioned, while women's body agency and autonomy are under constant threat in a patriarchal structure. The women are bullied, discriminated against, isolated, and prosecuted for making choices about their bodies and lives.” Kerala HC stated.

In the realm of media and criminal law, concerns about obscenity are often intertwined with other legal concepts such as defamation and sedition. Defamation involves the publication of false statements that harm the reputation of an individual or entity. Sedition refers to any act or speech that incites violence or promotes public disorder. While these concepts may overlap in certain cases, they are distinct from obscenity and require separate legal analysis.

Landmark Cases on Obscenity Laws

1. In 2014, the judiciary used the Hicklin test to determine if something is obscene.
   • The Hicklin Test was established in English Law after Regina vs Hicklin's case (1868). 
   • According to it, a work can be considered obscene if any portion of it is found to “deprave and corrupt those whose minds are open to such influences”.
   • In the case of Ranjit D. Udeshi v. State of Maharashtra (1964): Ranjit Udeshi, a partner in a bookstall in Bombay, was prosecuted under Section 292 of the Penal Code for selling and possessing copies of D.H. Lawrence's Lady Chatterley's Lover, considered obscene under Indian obscenity law. He was convicted and fined 20 rupees or one week's simple imprisonment. In this case, Hidayatullah, J. introduced three modifications to the Hicklin test: 

a) Sex and nudity in art and literature alone cannot be evidence of obscenity

b) The work must be evaluated as a whole, considering both obscene and non-obscene parts

c) Publication for the public good can be a defence against the charge of obscenity

2. In the case of Samaresh Bose v. Amal Mitra (1985): The Court decided whether the Bengali novel Prajapati is obscene. The trial court deemed it obscene due to sexual encounters and vulgar language. However, the Supreme Court noted that the concept of obscenity varies based on readers and moral standards. Each judge's subjective assessment may differ. The Court clarified that vulgarity and obscenity are distinct and should not be confused.

3. In the case of Kamla Kant Singh vs Bennett Coleman (1987): The Supreme Court of India examined whether Kamla Kant Singh and Bennett Coleman could be held liable for publishing obscene material. The Court balanced freedom of speech with protecting public morality, concluding that although the material contained explicit sexual content, it did not meet the threshold of obscenity as per contemporary community standards. 

4. Aveek Sarkar v. State of West Bengal, (2014): The top Court applied the "contemporary community standards test," which states that the evaluation of "obscenity" should consider the present community standards reflecting the sensitivities and tolerance levels of an average, rational person.

Conclusion

Obscenity laws in India are vital for maintaining public order and safeguarding societal values. However, their application must be carefully balanced with the principles of freedom of expression and the evolving moral landscape. As society progresses and cultural norms evolve, it is essential to revisit and refine these laws to ensure they reflect the aspirations and sensitivities of a diverse nation. Moreover, it is important to differentiate between obscenity and legitimate artistic expression or public discourse. The laws should be applied judiciously, considering factors such as artistic intent, context, and the impact on the public. Striking the right balance requires a comprehensive understanding of the societal dynamics and a willingness to adapt the legal framework to changing times.