New Delhi: What is common between Saadat Hasan Manto, Ismat Chughtai, Uorfi Javed and Milind Soman? They all have, at some point, faced allegations of obscenity under Indian laws.
Article 19(1)(a) of the Constitution guarantees the right to freedom of speech and expression. However, Article 19(2) lists down eight ‘reasonable restrictions’ on this right. One such restriction is ‘decency or morality’. And there are several laws that embody this restriction.
The laws were in focus again earlier this week because of a judgment passed by the Kerala High Court discharging a women’s rights activist in a Protection of Children from Sexual Offences (POCSO) case involving her two children. The case dates back to 2020, when the 33-year-old activist was slammed for being “obscene and vulgar” after she posted videos on her social media accounts showing her two minor children painting on her bare torso.
In its judgment, the high court observed that “nudity and obscenity are not always synonymous”. It then asserted that painting on the naked upper body of a person, whether a man or a woman, cannot be stated to be a sexually explicit act. This was, especially, because of the fact that in this case, a message that accompanied the video clearly mentioned that body painting was done as an “artistic form of protest against sexualised portrayal of the naked upper body of a woman”.
What do Indian laws say on obscenity and how do courts decide what is obscene and what isn’t? ThePrint explains.
What does the law say
Under the Indian Penal Code, three provisions — sections 292, 293 and 294 — deal with obscenity.
Section 292 talks about sale, hire, distribution, public exhibition, or circulation of any “obscene book, pamphlet, paper, drawing, painting, representation or figure or any other obscene object”. It also criminalises import, export or conveyance of any obscene object, having reasons to believe that such an object will be sold, hired, distributed, publicly exhibited or circulated.
The first conviction under this provision carries a punishment of a jail term of up to two years, along with a Rs 2,000 fine. Any subsequent convictions carry a jail term of up to five years, along with a Rs 5,000 fine.
Section 293 of IPC talks about the sale, distribution, exhibition or circulation of any obscene object to a person under 20 years of age. It provides for a punishment of an up to three-year-long imprisonment and a Rs 2,000 fine for the first conviction. For all the subsequent convictions, the penalty increases to a seven-year imprisonment, along with a Rs 5,000 fine.
Section 294 punishes anybody who “does any obscene act in any public place” or sings, recites or utters any obscene song, ballad or words in or near a public place. The punishment for such acts is a maximum of three months in jail or fine or both.
Additionally, Section 67 of the Information Technology Act provides for punishment for “publishing or transmitting obscene material in electronic form”. It criminalises publication or transmission of any material “which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons” who read or hear the material.
The punishment is up to 3 years in jail along with a Rs 5 lakh fine, for the first conviction. Any subsequent convictions could land you in jail for five years, along with a fine of Rs 10 lakh.
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Lady Chatterley’s Lover
In 1964, the Supreme Court had upheld the ban on D.H. Lawrence’s Lady Chatterley’s Lover, in a case against four owners of a book stall in Bombay (now, Mumbai) for selling copies of the novel which was alleged to be obscene. The SC upheld the ban on the book, while clarifying that “sex and nudity in art and literature cannot be regarded as evidence of obscenity without something more”.
In doing so, the court adopted the Victorian-era Hicklin test, which led to obscenity being judged by the standard of someone who was open to immoral influences and was likely to be corrupted or depraved by the material in question. The test focused on individual or isolated aspects of an entire work that could be deemed obscene, as well as its impact on “vulnerable” sections of society, However, this approach included a wide range of material under the category of ‘obscene’.
In 1969, subclause (1) was added to Section 292, to say that any object shall be deemed to be obscene if it is “lascivious or appeals to the prurient interest”. It would also be considered obscene if the item would have such an effect “as to tend to deprave and corrupt persons” who are likely to read, see or hear the matter contained in the allegedly obscene object.
In another judgment passed in 1985, the SC differentiated between obscenity and vulgarity. The case before the court pertained to allegations of obscenity against Samaresh Bose, a well-known writer of Bengali novels and stories, for his book Prajapati. The SC, however, did not consider the passages of the book obscene, explaining that vulgar writing is not necessarily obscene.
It explained, “Vulgarity arouses a feeling of disgust and revulsion and also boredom but does not have the effect of depraving, debasing and corrupting the morals of any reader of the novel, whereas obscenity has the tendency to deprave and corrupt those whose minds are open to such immoral influences.”
What’s obscene
Up until 2014, courts in India were relying on the ‘Hicklin test’ to decide what is obscene and what isn’t.
This test originated back to the 1860s in the United Kingdom, and focused on individual or isolated aspects of an entire work that could be deemed obscene. The test judged obscenity by their apparent influence on the most susceptible or vulnerable readers.
However, in a 2014 judgment, the top court ruled that a photograph of tennis player Boris Becker and his fiancée, in the nude, is not “obscene” under Section 292 of the IPC. The photo had appeared on the cover of the now-defunct Sportsworld magazine, along with an article on battling racism in Germany.
In doing so, the apex court moved away from the Hicklin test, and instead applied the “community standards test”. The court explained that “only those sex-related materials which have a tendency of ‘exciting lustful thoughts’ can be held to be obscene”.
It asserted that obscenity “has to be judged from the point of view of an average person, by applying contemporary community standards”. It asserted that a picture of a nude/semi-nude woman by itself could not be called obscene, unless it had the tendency to arouse the feeling of an overt sexual desire.
Applying this in the context of Becker’s photo, the court asserted that it will have to examine the question of obscenity in the context in which the photograph appears and the message it wants to convey. It then concluded that the picture is not obscene because the message it “wants to convey is that the color of skin matters little and love champions over colour”.
“Picture promotes a love affair, leading to a marriage, between a white-skinned man and a black skinned woman,” it added.
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What’s not considered obscene
Section 292 clarifies that the section does not apply to any book, pamphlet, paper, writing, drawing, painting, representation or figure which can be justified to be in public good. This can be on the grounds that such a book or painting is in the interest of science, literature, art or learning or other objects of general concern. The provision also does not apply to any book or writing or painting which is kept or used bona fide for religious purposes.
In 2018, the Kerala high court refused to categorise a magazine cover with a woman breastfeeding her baby as obscene, noting that “shocking one’s morals” is an “elusive concept”, and that “one man’s vulgarity is another man’s lyric”.
Milind Soman and Madhu Sapre also had to face an obscenity trial for their 1995 Tuff shoe advertisement which showed the two models caressing each other while a python was wrapped around them and the shoes covering the bare essentials. The two models were booked in August 1995 by the social service branch of the Mumbai Police. They were acquitted by a Mumbai court in 2009.
However, in 2020, Soman once again found himself facing an obscenity case under sections 294 of IPC and 67 of the IT Act. The Goa police registered a case against him after he posted a picture of himself running nude on a beach in the state to mark his 55th birthday.
(Edited by Anumeha Saxena)
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