OBSCENITY: AN INTRODUCTION
Obscenity exists in every nook and corner of society. Even in the historic times, there was difficulty to regulate the obscenity as it has various forms and it is an ever-changing and complex concept. It took centuries to find that obscenity cannot be confined into a single definition. Even today, due to the enormous technological development there is a difficulty prevailing in regulating obscenity laws.
After a careful perusal of Section 292 of the Indian Penal Code (IPC), we can get a rough idea of obscenity as an act, utterance or an item, when it tends to deprive the minds of people in a lascivious or prurient way when they read, see or hear the matter contained in. Obscenity is a term that has a wider scope and cannot be confined to a single definition. Obscenity is dynamic and it changes with factors like time, culture, society and, values. For example: What was considered to be obscene before 20 years may not be considered obscene now. Dance bars were banned in 2005 as it exhibited obscenity and it was against public morals. But in the year 2019, the Supreme Court declared the ban as unconstitutional and inserted regulations to run dance bars.
The standard of determining obscenity lies within the public morals of contemporary society. What is to be seen is whether the act has a dominant theme of corrupting minds in an immoral way.
Obscenity may be in the form of texts, songs, pictures, paintings or, pamphlets. However, it has exceptions (i.e.) if an item is for public interest such as art, science, literature then those items are exempted from the expression “obscene”.
HOW DOES OBSCENITY DIFFER FROM VULGARITY?
Obscenity tends to trigger the minds of the persons whose mind is open to immoral influences. Whereas in vulgarity, there is no such triggering and it creates a feeling of disgust and revulsion but not deprivation.
ESSENTIAL ELEMENT FOR AN ACT TO BE OBSCENE:
1) The act must be done in a public place. In case it was done in a private place, it is no offense. To name a place as a public place, that place must be given free access to the public without any restriction otherwise that place won’t be held within the meaning of public place.
2) The act must have annoyed to other people. If the act didn’t cause any annoyance then it is no longer an offense. Mere objection/hate towards an act doesn’t constitute annoyance. The annoyance caused should be proved (i.e.) this act/utterance/song annoyed me in such and such ways. To get annoyed is a mental state, so in cases it is difficult to provide positive evidence. In those situations what is to be inferred is whether the act was in such a way to deprave the minds of the persons lasciviously.
TESTS TO DETERMINE OBSCENITY
A test to determine obscenity was first laid down in the case Regina Vs Hicklin by the Queen’s Bench. This test is popularly known as the Hicklin test. To find out obscenity using the Hicklin test, the matter claimed to be obscene should be isolated from the whole act and the isolated item is of such nature that it tends to deprive the minds of the persons who are open to immoral influences. If the isolated item has an immoral influence on most susceptible readers such as children or weak-minded people, then the matter claimed is said to be obscene.
This test was laid down in the case Samuel Roth v United States. By this test, a matter is considered to be obscene when the matter contained as a whole tends to arouse prurient interest to an “average person” by applying contemporary community standards.
In India, the Hicklin test was first applied in the case of Ranjit D Udeshi v State of Maharashtra. The judgement of this case received severe criticisms as it limits the freedom of speech and expression mentioned under Article 19 of the Indian Constitution.
The act which is to be claimed as obscene should not be seen in isolation. The whole act should be considered while determining a particular act to be obscene.
Finally, In the case of Aveeksarkar v State of West Bengal the court struck down the Hicklin test and held, “It is not Hicklin or Roth test. The test to determine obscenity would be community standard test.” The court found the Hicklin test is in contravention to IPC because the Hicklin test suggests isolating the obscene act from the whole act. In which the IPC directs to take the whole act to consider an act obscene. Further, the court held that the “question of obscenity must be seen in the context in which the photograph appears and message it wants to convey”. The court held this judgement keeping the mind of contemporary national standards not to the group of sensitive persons.
Community standards test is more compatible with Indian laws because Indian laws don’t define a proper definition for obscenity as obscenity changes with time. In community standard tests, the judges decide the act based on the knowledge and norms of the community which they come from, and also, they decide based on whether an average person would find the particular matter arouses his prurient interest.
PROVISIONS RELATING TO OBSCENITY IN INDIA
The Indian Penal Code (IPC) is not only a tool to punish the people who offend the law but also to maintain and uphold public morality and decency. There are two main conduits of law regarding the context of obscenity. One is the Indian Penal Code is itself and the other is Information Technology act, 2000. The former mainly deals with obscenity relating to distribution and circulation of obscene books and magazines i.e. mainly relating to the print media and the latter deals with the transmission and publishing obscene content in electronic form.
The main provisions in IPC which deal with obscenity are section 292, 293, and 294.
Section 292 categorizes writing, painting, or drawing or any object to be obscene
- If it is lascivious or appeals to the prurient interest
- If it tends to the interest of the corrupt and depraved, on whose possession, the content will be used egregiously.
There are exceptions to the above section where the representation or publication is justified for the public good or in the interest of science, literature, art, or kept for religious purposes. Sculpture, painting which are ancient monuments of cultural significance and which are subject to the Archaeological Sites and Remains Act, 1958.
Section 294 of the Indian Penal Code provides for punishments for obscene acts and songs performed in a public space to the annoyance of others. As discussed previously, the prerequisite of annoyance which should be caused at least to a single person is necessary for an act to come under the ambit of obscenity.
Moving on to obscenity which is transmitted through electronic form, as discussed above this comes under the Information Technology Act, 2000. This Act is subject to many controversies and discussions as this is a dynamic concept which needs to change to the changing environmental norms and requirements.
Section 67 of the IT Act deals with punishment or transmitting obscene material in electric form. The punishment on first conviction with imprisonment of either description for a term which may extend to three years and with fine which may extend to five lakh rupees and in the event of second conviction imprisonment extending to five years and also with a fine of up to ten lakh rupees.
Section 67A of the Information Technology Amendment Act is concerned with Punishment for publishing or transmitting of material containing sexually explicit acts. Offences related to obscenity transmitted through the electric medium can only be tried under the IT Act and not under the section of the IPC. This is because of the overriding effect of the IT Act over the IPC. While the Indian Penal code, 1860 makes the sale of obscene material through traditional print an offence, once that offence has nexus with the electronic record, the accused can only be tried via the IT Act, 2001 and once no conviction is made under the above act the accused cannot be again tried under the IPC.
According to Section 75(2) of the IT Act shall apply to an offence or contravention committed outside India by any person if the act or conduct constituting the offence involves a computer, computer system or computer network located in India.
POSITION OF INTERMEDIARIES
The role of the intermediaries in mediating and moderating the content is seen as pivotal in maintaining online decency and safety to its users. Intermediary to any particular electronic record, means any person who on behalf of another person receives, stores or transmits that record or provides any service to that record.
Section 79 of the IT Act exempts intermediaries from liability for any third-party information, data, or communication hosted or made available by them. This section is a ‘safe harbour’ provision that grants immunity to intermediaries from liability of the third parties. This is only available to those who play the mere role of facilitator and do not engage in the creation or modification of the content it hosts. Before this amended Act came into effect, the exemptions to the intermediaries were applicable only for the provisions of the Act. After the amendment, blanket protection was provided to the intermediaries. In a major case where Google could not get any protection as the defamation case was made before the amendment where the exemption was extended only for the provisions under the act.
Section 79(3) of the IT Act conveys that the intermediary should take down the offensive or obscene content after receiving actual knowledge of its existence. The Court clarified in the case of Shreya Singhal vs Union of India actual knowledge to be interpreted as a court order or on being notified by the government or appropriate agency and not to exercise its discretion. The Ministry of Electronics and Information Technology’s Information Technology (Intermediaries guidelines) Rules, 2011 lays down guidelines for the intermediaries to adhere to, to avail the safe harbour exemptions. Section 3(4) of the act provides that the intermediary, after receiving or obtaining actual knowledge from the affected person in writing or through an e-mail, the intermediary should act within thirty hours. These internet companies were not happy with the above rule as they felt that thirty-six hours was an insufficient time to examine the content and bring down the same if it is found violating. So, the government made it compulsory for the intermediary to respond or to acknowledge the complaint within thirty-six hours.
Also, section 3(11) of the IT act also states that every intermediary shall have a Grievance Officer and his contact details shall be published so that the victim or the affected shall notify him about the computer access or resource made available by the intermediary.
Other special provisions to obscenity and indecency can be found in:
- Drugs Magic Remedies (Objectionable Advertisement) Act
- Young Persons (Harmful Publication) Act,1955
- Section 20 of the Indian Post Office Act,1898 and Section 11 of the Customs Act,1962
- Section 4 and Section 5A Cinematograph Act, 1952
- Section 3 and 4 of Indecent Representation of Women (Prohibition)Act,1986
- Section 11 of POCSO Act, 2012 and Section 2(n) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act,2013.
CRITICISM AND OBJECTION RAISED REGARDING THE CURRENT POSITION OF THE ACT
The obscenity law in recent times has come under scrutiny and criticism from experts and jurists who demand a need to change these laws to the present political milieu.
One is the idea of obscenity in Indian law, it is agreed and accepted that there can’t be a fixed definition to obscenity as it changes with time and cultural and geographical topography. But the vagueness has left the test of obscenity to the discretion of the judge. The concept of obscenity is subjective. It may differ from one judge to another.
The lack of clarity with obscenity is also seen in the IT Act, 2000. After Section 66A was struck down by the Supreme Court, political parties and police use Section 67 as a route to harass those who go against them. In the report, Guava and Genitals by Point of View, a non-governmental organisation, found that cases filed under Section 67 of the IT Act grew steadily from 105 to 749 from 2008 to 2015. It also reveals that from 2002 to 2015, section 66 was the highest used section. Further reading the report it also finds a pattern of adverse misuse of the section.
This section is also seen as increasingly used against those who speak out against politicians. More often this content was not found obscene. In one instance, the police filed a case on one Ajay Hatewar for offences of defamation and under Section 67 of the IT Act for posting an old picture of Maharashtra CM Devendra Fadnavis with his family enjoying their vacation on a yacht, with an intent to ‘defame’ the CM. In another instance, a Chhattisgarh journalist was arrested for criticising the police and demanding a law protecting reporters in the region, which has long been a ground of Maoist insurgency. He was charged under Section 67 of the IT Act for allegedly circulating “insulting message”. This Section is used to file complaints of online defamation or cyber defamation, which does not come under the purview of section 67. It is seen as a tool for the political elite to suppress those dissents with their policies and ideologies. Experts have been warning that section 67 would become the new section 66A if the clarity is not brought to obscenity in electronic form.
The research also points out that, when an intimate video is circulated without the consent of the woman, how the media reports this as an obscenity related offence and not a breach of consent and privacy of the woman, which is an issue of a serious magnitude.
The clarity in the definition of obscenity both in IPC and the IT Act will go a long way in maintaining and upholding the people’s rights and flow of creativity which may not be barred due to fear of being bullied by legal suits by any political party or any person for this matter.
Instead, the judge relying on his values and idea of obscenity and ruling on the aesthetic merit of novels and TV shows, it would be much more helpful and bring deeper insights into the content if the opinion and thoughts of experts from the particular field are taken into consideration. The expert’s opinion may not bind the judge’s decision nor influence but it might add another perspective to the view and it can also provide the original creator the opportunity as to why the judge deviated from the expert opinion and to compare his thoughts with the same. Expert’s testimony may also be used to determine the nature of contemporary community standards.
Regarding the IT Act, the vagueness coupled with misuse of the act by some parties to tarnish and bully those who object makes the whole situation worrisome. The Supreme Court took a huge and progressive step in upholding the fundamental rights by striking down Section 66A which was considered vague and prone to misuse. Now, the courts should take a closer look at Section 67 and resolve the issues immediately regarding the nebulous act. There must be further clarity and awareness to uphold the rights conferred upon the citizen by the constitution.
 State of Maharashtra v. Joyce Zee Alias Temiko, (1973) I.L.R. 1299
 Narendra H Khurana v. Commissioner of Police, (2004) Cri. L.J. 3393
 Nicholson v. Glasspool, (1959) 123 J.P. 229
 Regina v. Hicklin, L.R. 3 Q.B. 360 (1868)
 Samuel Roth v. United States, 354 U.S. 476 (1957)
 Ranjit D Udeshi v. State of Maharashtra, (1965) A.I.R. 881.
 Bobby Art International v. Om Pal Sing Hoon and Others, (1996) 4 S.C.C.1
 Aveeksarkar v. State of West Bengal, (2014) 4 S.C.C.257
 The Information Technology Act, Sec.81 (2000).
 Sharat Babu Digumatri v. Government of NCT of Delhi, (2017) 2 S.C.C. 18.
 The Information Technology Act, Sec. 2(1)(w) (2000).
 Google India Pt. Ltd v. Vishaka Industries, A.I.R 2020 S.C. 350.
 Shreya Singhal v. Union of India, (2015) 5 S.C.C. 1.
 Information Technology (Intermediaries guidelines) Rules, Sec.3(4) (2011)
 N.S Nappinai, A Gross Misuse of the IT Act by Mumbai Police, The Wire (Jul.14,2015),https://thewire.in/law/mumbai-polices-gross-misuse-of-the-it-act.
Anindita Sanyal, Chhattisgarh journalist arrested for WhatsApp Post Accuses cop of Torture, NDTV (Mar. 23, 2016) ,https://www.ndtv.com/india-news/chhattisgarh-journalist-arrested-for-sharing-whatsapp-message-on-cop-1289971.
 Supra note.15