Introduction

We are living in the 21st century, in the era of developing thoughts and new cultures, with the people having new and old traditions which makes us a member of society. Someone or the entire society may feel uneasy when someone presents themselves or their job in an unusual way. But does the action offend someone or is it merely a novel or original way for the author to express themselves or their work? Because of these divergent points of view, the term “obscenity” is ambiguous, making it difficult to distinguish between what is and is not offensive. The Latin word obscene, which means “offensive,” especially when modest, is where the word “obscene” originates. Obscene, which according to the Oxford dictionary is “offensive or unpleasant by accepted standards of morality and decency,” seems to be a straightforward word with a straightforward definition.

Tests of obscenity

According to established moral and decency norms, the Oxford Dictionary defines obscene as “offensive or repulsive.” There are mainly three tests to check the content or whether any art or gesture is obscene or not.

Miller test

As a result of the Miller v. California ruling by the US Supreme Court, the United States of America uses the renowned Miller test (1973). Due to online obscenity cases, this test had difficulties. In this instance, Melvin Miller sent five suspicious brochures to the restaurant’s manager via mail. In one instance, Melvin Miller sent the restaurant’s management five suspicious flyers that prominently featured pictures of men and women engaging in various sex acts.

There are three parts to the Miller test. They are:

• The average person, enforcing the contemporary community standards, would find that work, taken as a whole, appeals to the prurient interest.
• Whether the work depicts or describes, in a patently offensive way, sexual conduct is specially defined by the applicable state law.
• The work, taken as a whole, is short of serious literary, artistic, political, or scientific value.

Hicklin test

This test is a legal test for obscenity that came from the English case Regina v. Hicklin (1868). The case was based on the interpretation of the word “obscene”. Henry Scott resold copies of anti-Catholic leaflets in this test, which is quite lenient. Hicklin held that Scott’s purpose had not been to corrupt public morals but they expose the major issues related to the Catholic Church, so Scott’s intention was innocent. The Supreme Court used the Victorian-era Hicklin test in its famous decision in Ranjit Udeshi v. the State of Maharashtra (1964). The test assessed obscenity by the standard of an individual who was open to immoral influences and would likely be corrupted or depraved by the material in question.

Community standards test

This test was applied in India. According to the Community Standards Test, a gesture or piece of content is only offensive if the overall dominating theme is anti-modern.

The Indian Penal Code 1860

Section 292 Sale of pornographic materials, etc.

1. For sub-section (2), a book, pamphlet, paper, writing, drawing, painting representation, figure, or any other object, shall be deemed to be obscene if it is lascivious or appeals to be so, if its effect, or the effect of any one of its items, is particularly repulsive, is if taken as a whole, such that it tends to corrupt and deprave whoever:
2. sells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation, or for purposes of sale, hire, distribution, public exhibition or circulation, makes, reduces, or has possessed any pornographic literature, pamphlets, papers, artwork, drawings, paintings, representations, or figures, or any other pornographic material; or
3. imports, exports or conveys any obscene object for any of the purposes aforesaid, or knowing or having reason to believe that such object will be sold, let to hire, distributed, shown in public, or otherwise put into circulation, or
4. takes part in or receives profits from any business in the course of which he knows or has reason to believe that any such obscene objects are, for any made, produced, bought, kept, transferred, displayed publicly, or otherwise put into circulation for the aforementioned purposes, or
5. advertises or makes known by any means whatsoever that any person is engaged or is ready to engage in any act which is an offense under this section, or that any such offensive item can be obtained from or through any individual, or
6. offers or attempts to do any act which is an offense under this section, shall be punished on first conviction with imprisonment of either description for a term which may extend to two years, and with fine which may extend to two thousand rupees, with imprisonment of either description for a time that may last up to five years.

Section 293 Sale, etc., of obscene objects to a young person.

Anyone who sells, rents, distributes, exposes, or circulates any of the pornographic items mentioned in the last section to anyone under the age of twenty, or who offers or attempts to restrict the sale and publication of pornographic books, pamphlets, and other materials that are considered to be “lascivious” will be punished on first conviction by imprisonment of either description for a term that may not exceed three years and by a fine that may not exceed two thousand rupees; on second or subsequent conviction, by imprisonment of either description for a term that may not exceed two years and by a fine that may not exceed two thousand rupees.

Section 294 Obscene acts and songs.

Whoever, to the annoyance of others:

1. does any obscene act in any public place, or
2. sings, recites, or utters any obscene song, ballad, or words, in or near any public place, shall be punished with imprisonment of either description for a term which may increase to three months, pay a fine, or pay both.
3. The terrible gang rape and murder of victim Jyoti Singh, often known as the Nirbhaya case, prompted the addition of Section 354D to the IPC by the Criminal Law Amendment Act of 2013. It includes keeping an eye on a woman’s online activities, such as her email or other correspondence. Consequently, gathering images of women from their social media profiles would fall within the purview of this section. If found guilty, the offender would be sentenced to three years in prison and pay a fine.

Obscenity in India

Model and actor Milind Soman was booked by the Goa Police for obscenity, days after he posted a photograph of himself running nude on a beach in the state. He is not the only famous person having issues with the Goa Police this week for “obscenity” – actor Poonam Pandey and her husband were detained for a contentious photo shoot, a clip of which went viral online.

What about freedom of expression?

Freedom of speech and expression is not unqualifiedly guaranteed. Article 19 of the Constitution of India, which guarantees the right also provides for reasonable restrictions on various grounds, including that decency and morality. This means that free speech must be assessed against the moral standards of the contemporary community when it comes to prosecuting obscene conduct or content.

As Section 81 of the IT Act expressly provides, any offense involving obscenity in electronic form may be tried under that law rather than the IPC.

Information Technology (Amendment) Act, 2008

Section 67(A) Punishment for publishing or transmitting material containing the sexually explicit act, etc., in electronic form. -Whoever publishes or causes to be published in the electronic form any material which contains sexually explicit act or conduct shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with a fine which may extend to ten lakh rupees and in the event of second or subsequent conviction with either type of prison time that may last up to seven years as well as a fine that may amount to ten lakh rupees.

Can consent be used as a defense? 

Sharing pornographic images in a WhatsApp group may subject the sender to legal action under Section 67 and Section 67A of the IT Act. By Section 354A of the IPC, showing someone pornography is a form of sexual harassment. Nude photos cannot be shared, even with the recipient’s approval. The sender is not permitted to raise it in opposition.

Related case laws

Suhas Katti v. State of Tamil Nadu

It was the first significant case involving cybercrime in Indian history. A divorced woman who used to receive unwelcome sexually graphic images and communications from a man filed the lawsuit. He was keenly interested in marrying her. Through a fake email address set up to annoy the victim, he frequently sent her offensive messages and pictures. The police investigated the incident after the victim reported it and made guilty an arrest. It was later discovered that the man was a relative of the woman and began harassing her after she turned down his marriage proposal. The culprit was found under Sections 67 of the IT Act as well as Sections 469 and 509 of the IPC. The perpetrator was imprisoned in the main prison and given a fine payment requirement.

What do obscenity laws say about Ranveer Singh, who was arrested for uploading nude photos?

The Mumbai Police have filed a case against Bollywood actor Ranveer Singh under the pertinent sections of the Indian Penal Code in the wake of the continuing controversy surrounding the actor’s uploading of nude photos on his Instagram account (IPC). The actor had recently modeled for a nude photo shoot for the Paper magazine

Sections 292, and 294 of the IPC, as well as sections 509 and 67(A) of the Information Technology (IT) Act, have all been used to charge Ranveer Singh with obscenity. Young individuals wanting to get into the sector are being urged by him to follow similar paths to success and wealth.

What does Indian law say about obscenity?

According to Section 294 of the Indian Penal Code, it is unlawful to engage in or utter anything defamatory in public (IPC). For an obscenity to be considered a crime under the IPC, it must “annoy others.” For breaking this law, the maximum punishment is three months in jail. Under Section 292, indecent literature is subject to similar penalties. The section specifically outlaws the sale, display, and distribution of “obscene” content and spells out the consequences for breaking it.

Anyone who sells or wants to sell, permits to hire, distributes, shows, or circulates any such offensive object to a person under the age of 20 would be subject to punishment, according to the law’s Section 293 (Sale, etc., of Obscene Objects to Young Persons). A fine of up to two thousand rupees and a term of imprisonment of either kind that may last up to three years; for a subsequent offense, a term of imprisonment of either kind that may last up to seven years and a fine of up to five thousand rupees.

By using words, gestures, objects, or making noises or actions with the goal that they are heard, seen, or perceived by a woman, by Section 509, a woman’s privacy may be purposefully infringed (word, gesture, or act intended to insult the modesty of a woman). A year in jail, a fine, or both are possible penalties for violators. The laws governing obscenity have altered as a result of the growth of the Internet and social media. The Information Technology Act’s Section 67 may be used to bring legal action against anyone who sends or uploads objectionable content online. However, the phrases “obscene” and “obscenity” are not specifically defined in Indian law.

Conclusion

One of the words in our Indian laws with ambiguous or unclear connotations is ‘obscenity’. Obscenity’s definition does shift from time to time. What is offensive today may not be considered offensive in the future. The proper level of obscenity in movies, web series, the arts, visuals, and literature has not yet been established in our nation, which makes it too vital to address at this time. The conflict between the various cultures and religions that make up our nation is inevitable. Because these are significant issues that could damage the feelings of particular individuals or communities; artists should not be prevented from expressing their opinions when they touch on these types of issues connected to someone’s culture or religion. All literary, artistic, and other creations do not incite hatred in people.

References

1. What does it mean when someone is obscene?, https://www.merriam-webster.com/dictionary/obscene
2. Ranjit D. Udeshi v. State of Maharashtra, 1965 AIR 881, 1965 SCR (1) 65.
3. Suhas Katti v. State of Tamil Nadu, C No. 4680 of 2004.

This article is written by Kanika Arora, from Delhi Metropolitan Education (Affiliated to GGSIPU).