The Law Relating to Obscenity

Under IPC
The fundamental object and purpose of
criminal law is not only to protect and to
conserve the safety and security of
primary personal rights of individuals,
such as right to life, right to body, right to
property, right to habitation., etc., but
also to protect and guard public morals
and public decency and to conserve the
moral welfare of the State. Thus, it is the
duty of the State to guard the citizens
against attacks which may be
insidious and punish an individual for
obscene publications which tend to
corrupt morals. The importance of the
protection of such rights can be visualized
from the resolution passed by the
International Convention for the
Suppression and Circulation of, and
Traffic in, obscene publications at Geneva
as long as 1923. India signed the
Convention on 12th September 1923.

What does obscenity mean?

With regard to the meaning and
definition of obscenity, it is difficult to
give any precise and particular definition
in view of cultural, religious and social
diversity in the society. Oxford dictionary
defines ‘obscene’ as (of the portrayal or
description of sexual matters) offensive
or disgusting by accepted standards of
morality and decency. It is derived from
the French word ‘obscene’ or Latin
‘obscene’. However, the definition of
obscenity is subject to cultures of every
country.

Evolution of Obscenity Law

As early as 4th century, Roman Catholic
Church had taken the first move by
banning few heretical works. In 1542
Pope Paul III established the Sacred
Congregation of the Roman Inquisition
which was vested with the task of
suppression of heretical and immoral
books. Immoral works also were
suppressed in Protestant countries such
as England, where, prior to the 18th
century, restrictions were applied almost
exclusively to antireligious or seditious
acts or publications, rather than to
obscene material in the modern sense.
The invention of the printing press sowed
the seed of modern obscenity law. There
was a wide and easy distribution of
sexually explicit material. By the 17th
century, such books and prints had
become widely available throughout
Europe; governments and church
authorities responded by arresting and
prosecuting publishers and distributors.
The first person to be convicted on a
charge of obscenity in England was
bookseller Edmund Curll way back in the
1720s. He had published a new edition of
Venus in the Cloister; or, The Nun in Her
Smock, a mildly pornographic work. His
sentence (a fine and one hour in the
pillory) was due to the fact that there was
no specific law on the subject matter.
Thereafter obscenity was recognized as
an indictable misdemeanour under
common law.

Sale of Obscene Books, etc.

Sections 292, 293 and 294 of IPC have
been enacted with the ulterior motive to
protect and safeguard the public moral
by making the sale, etc., of obscene
literature and publications in general,
and to young persons in particular, a
cognizable offence.
“Clause (1) to section 292 states that the
publication of a book, pamphlet, paper,
writing, drawing, painting,
representation, figure, etc., will be
deemed obscene, if,-
i. It is lascivious (expressing or causing
sexual desire); or
ii. Appeals to the prurient interest
(excessive interest in sexual matters);
iii. If its effect, or the effect of any one of
the items, tends to deprave and corrupt
persons, who are likely to read, see or
hear the matter contained in such
materials.
Clause (2) to section 292 holds a person
liable to punishment if he-
a. Sells, lets to hire, distributes, publicly
exhibits or puts into circulation, etc., any
obscene material,or
b. Imports or exports or conveys any
obscene objects for any of the purpose
aforesaid;
c. Takes part in or receives profits from
business in the course of which he
knows or has reason to believe that any
such obscene objects were made for any
of the aforesaid purposes
d. Advertises or makes known by any
means whatsoever that any person is
engaged in, or is ready to be engaged in
any act which is an offence under this
section
e. Offers or attempts to do any act which
is an offence under this section”[4]
Section 293 punishes sales, etc., of
obscene objects to young persons
below the age of 20 years.
The offence is cognizable, bailable, non-
compoundable and triable by any
Magistrate. On the other hand, section
294 deals with obscene acts and songs.
The offence u/s 294 is cognizable,
bailable, non-compoundable and triable
by any Magistrate. In order to constitute
an offence u/s 294 following ingredients
are to be fulfilled:-
• The accused
1.did some act;
 2. sang, recited or uttered any song
or bailed;
• Such an act was obscene;
• The act was performed in a public
place; and
• It caused annoyance to others.
Illustration 1
An Israeli couple after being married the
Hindu way at Pushkar, Rajasthan was
arrested u/s 294 of IPC for kissing in
public. A fortnight later, a magistrate
slapped a fine of Rs. 500/- on the couple
for committing an act of indecency. .
Illustration 2
A woman tourist from Finland was
booked u/s 294, IPC on the charge of
skinny dipping in the Pushkar Lake and
streaking on the streets up her hotel.

Position in England
The earliest decision of House of Lords on
obscenity was in the case of R v
Hicklin wherein the test of literary
morality was laid down. The test is
whether the matter in question tends to
deprave and corrupt those whose minds
are open to immoral influences and into
whose hands the publication may fall.
The Obscene Publications Act, 1857
which was revised in 1959 and further
broadened in 1977 to include
pornographic films is the major
legislation in force on the subject.
Constitutional validity of
Section 292
The constitutional validity of section 292
was challenged in Ranjit Udeshi v State
of. Maharashtra 1965) 1 SCR 65.
The facts of the case are that Ranjit D
Udeshi one of the four partners, was the
owner of Happy Book Stall. All the four
partners were prosecuted for selling Lady
Chatterley’s Lover, a book by D. H.
Lawrence under section 292. Udeshi
contented that section 292 was infringing
his fundamental right of freedom of
speech and expression guaranteed under
article 19(1)(a) of the Constitution. It was
held that article 19(1)(a) of the
Constitution is subject to the restrictions
enlisted under article 19(2). One of the
grounds is public morality and decency.
Section 292 dealing with obscene
materials falls within this exception
thereby addressing the issue of public
decency and morality. Therefore, section
292 is constitutional.

Case Law on Obscenity

In Bobby Art International v Om Pal
Singh Hoon, AIR 1996 SC 1846.
the issue that came up for consideration
was whether the film Bandit Queen can
be banned on the ground of obscenity.
The child named ‘Phoolan Devi’ was
made to marry a man of her father’s age.
She was stripped naked and paraded and
made to fetch water from the village well
under the gaze of the villagers, but no
one came to rescue. To avenge herself
upon her prosecutors, she joined a
daicot’s gang, humiliated and killed
twenty Thakurs of the village. The apex
court while allowing the appeal against
the judgment of Delhi High court banning
the film on the ground of indecency for
the public exhibition held that a film that
carries the message that social evil is evil
cannot be made impermissible and
banned for public exhibition for the
same. The scene of nudity and rape as ell
the use of expletives were in aid of the
theme and intended not to arouse
prurient or lascivious thought but
revulsion against the perpetrators and
pity for the victim.
In K.P. Mohammad’s case, the court held
that performance of Cabaret dance
devoid of nudity and obscenity according
to Indian social standards in hotels and
restaurants is not liable to be banned or
prevented.
In Ranjit Udeshi v State of
Maharashtra (1962), the Supreme Court
of India had adopted the Hicklin test. But
in 2014 the Apex Court had explicitly
rejected the Hicklin test in the
prosecution of the tennis star Boris
Becker. The Hon’ble Court had adopted
the modern community standards test.
The ratio was obscenity is to be
determined by contemporaneous social
mores. Mere nudity does not by itself
amount to obscenity. The law should
change in accordance with social value.
The US Supreme Court has laid down
Miller test in order to determine
obscenity. The Miller test for obscenity
includes the following criteria:
(1) whether ‘the average person,
applying contemporary community
standards’ would find that the work,
‘taken as a whole,’ appeals to ‘prurient
interest’
(2) whether the work depicts or
describes, in a patently offensive way,
sexual conduct specifically defined by the
applicable state law, and
(3) whether the work, ‘taken as a whole,’
lacks serious literary, artistic, political, or
scientific value.