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Obscenity (Citizens, Society and the Media)

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Curator: Sarvjeet Singh, Project Manager & Research Fellow, Centre for Communication Governance at National Law University, Delhi

Contributors: Rishika Sahgal, B.A., LL.B. (Hons.),Student, National Law University, Delhi, Divya Srinivasan, B.A., LL.B. (Hons.), Student, National Law University, Delhi and Manish, Research Fellow, Centre for Communication Governance at National Law University, Delhi

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Primary Sources

Legislative Material

Article 19(2) of the Constitution of India, 1950

This provision of the Indian Constitution includes “decency and morality” as grounds under which restrictions may be imposed on the freedom of speech and expression.

Sections 292–294 of the Indian Penal Code

These sections make the sale, exhibition and circulation of obscene books and objects, and the performance of obscene acts or songs in public places. “Obscenity” is defined as being lascivious or appealing to the pruri­ent interest or having the effect of tending to deprave and corrupt the reader or viewer.

Section 3(c) of the Dramatic Performances Act, 1876

This section empowers the State Government to prohibit the public performance of any play or drama that is in its opinion likely to deprave and corrupt persons present at the performance.

Section 20 of the Indian Post Office Act, 1898

This section prohibits the transmission by post of any indecent or obscene article, or any postal article having thereon any words or marks of, inter alia, an indecent, obscene or grossly offensive character.

Section 67 of the Information Technology Act, 2000

This section prohibits the transmission or publication of obscene material in the electronic form.

Sections 2–4 of the Indecent Representation of Women (Prohibition) Act, 1986

These sections prohibit advertisements, and publication or distribution of books and other material, containing indecent representation of women.“Indecent representation of women” is defined as any depiction of the body of a woman or any part thereof, in such a way as to have the effect of, inter alia, being indecent or likely to deprave, corrupt or injure the public morality or morals.

Section 95 of the Code of Criminal Procedure, 1973

This section authorises the State Government to seize copies of books and newspapers containing matter, the publication of which is punishable, inter alia, under sections 292 and 293 of the IPC.

Relevant Case Law

RanjitUdeshi v. State of Maharashtra, AIR 1965 SC 881 (Supreme Court of India)[Open Access]

The appellant, a bookseller, was convicted under s. 292, Indian Penal Code  for selling an unexpurgated edition of “Lady Chatterley’s Lover”. In his appeal to the Supreme Court he contended that the section was void because it violated the freedom of speech and expression guaranteed by Art. 19(1)(a) of the Constitution of India. Dismissing the appeal, the court held that the section embodied a reasonable restriction upon the freedom of speech and expression under Article 19(2) as it sought to promote public decency and morality. It upheld the application of the Hicklin test to determine what constituted obscene content.

ChandrakantKakodkar v. State of Maharashtra, (1969) 2 SCC 687  (Supreme Court of India)[Open Access]

The appellant, the author of a short story, along with the printerand publisher thereof, were convicted under section 292 of the Indian Penal Code. Setting aside theconviction, the Court held that it wasnecessary to take“an overall view of theentire work and to determine whether the obscene passagesare so likely to deprave and corrupt those whose minds areopen to such influences and in whose hands the book islikely to fall; and in doing so the influence of the book onthe social morality of our contemporary society cannot beoverlooked.

Samaresh Bose v. AmalMitra, (1985) 4 SCC 289  (Supreme Court of India)[Open Access]

In this case, the Court distinguished mere “vulgarity” from obscenity, holding that vulgar writings were not necessarily obscene. The Court observed, “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.

Bobby Art International v. Om Pal Singh Hoon, (1996) 4 SCC 1 (Supreme Court of India)[Open Access]

The case involved a challenge to the “A” certificate issued to the appellant’s film on basis of opinion by a Tribunal. The Court observed that a film would not be certified for public exhibition if, in the opinion of the certifying authority, it was against decency contemplated in Article 19(2). The Courtheld that in this case, the guidelines issued to the certifying authority were complied while granting “A” certificate and declined to interfere with its release, observing that the relevancy of the social theme would have to be taken into consideration while considering matter of certification of a film.

Directorate General of Doordarshan v. AnandPatwardhan, (2006) 8 SCC 433  (Supreme Court of India)

The case involved the refusal of Doordarshan to screen the respondent’s film on the ground that parts of it were obscene under sections 292 and 293 of the Indian Penal Code. Dismissing the appeal, the Court observed that the sections were unacceptably vague and held that the film was well within the limits prescribed by the Constitution and did not appeal to the prurient interests in an average person. Further, applying contemporary community standards while taking the work as a whole, the Court held that the film was not patently offensive and would not deprave and corrupt any average Indian citizen’s mind.

Ajay Goswami v. Union of India, (2007) 1 SCC 143  (Supreme Court of India)[Open Access]

The petitioner sought a direction from the Court for censorship of allegedly obscene material and news being printed in newspapers, on the ground that it would deprave and corrupt children who read the newspapers. Dismissing the petition, the court held that there could be no suppression of freedom of speech and expression in protecting children from harmful materials and that in judging whether a particular work is obscene, the test should be that of ordinary adult man of common sense and prudence, not that of a hypersensitive man or a child. The relevance of the Hicklin test in the information age was questioned.

S. Khushboo v. Kanniammal, (2010) 5 SCC 600  (Supreme Court of India)[Open Access]

The petitioner was sought to be prosecuted for certain statements made by her about pre-marital sex, on the ground that they were obscene, offensive and defamatory. Quashing the prosecution, the Court held that the threshold for placing reasonable restrictions on the freedom of speech and expression was very high and there should be a presumption in favour of the accused in such cases. The Court further observed that notions of social morality being inherently subjective, the criminal law could not be used as a means to unduly interfere with thedomain of personal autonomy or cause a chilling effect on free speech.

AveekSarkar v. State of West Bengal, Unreported, 2014 (Supreme Court of India)[Open Access]

The appellant, the editor of a newspaper, was sought to be prosecuted for publishing a nude photograph in the context of an anti-racism campaign. Quashing the prosecution, the Court held that nudity per se would not be obscene and pictures would have to be examined in the context in which they were published. Applying the test of community standards, the Court also observed that the photograph in question could not be suggested to deprave minds or be designed to excite sexual passion in persons who are likely to look at it. The Court questioned the relevance of the Hicklin test, noting that it had been superseded in other jurisdictions.

Handyside v. United Kingdom, Application No. 5493/72 (European Court of Human Rights) [Open Access]

The petitioner sought to challenge his prosecution for circulating obscene material as interfering with his rights to free speech under Article 10 of the European Convention on Human Rights. Applying the doctrine of margin of appreciation, the Court declined to intervene, stating that the interference was justified by a legitimate aim to protect the community.

R. v. Hicklin, (1868) 3 QB 360 (U.K. Queen’s Bench)[Open Access]

In this landmark case, the Court laid down the test for obscenity as “whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such influences, and into whose hands a publication of this sort may fall”.

Roth v. United States, (1957) 354 US 476 (US Supreme Court)[Open Access]

The petitioner was convicted under 18 USC §1461, which makes punishable the mailing of material that is “obscene, lewd, lascivious, or filthy . . . or other publication of an indecent character”. He challenged the conviction as well as the Constitutionality of the legislation. Dismissing the appeals, the Court held that obscenity did not fall within the area of constitutionally protected freedom of speech or press. Rejecting the Hicklin test, the court laid down the standard for judging obscene material as, “whether, to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest”.

Miller v. California, (1973) 413 US 15 (US Supreme Court)[Open Access]

The petitioner challenged his conviction for obscenity under a California statute. Upholding and advancing the test laid down in Roth, the Court held that for a work to be obscene so as to not receive Constitutional protection, it would have to fulfil three-fold requirements: (a) the Roth test of contemporary community standards, “(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Theory

David A.J. Richards, Free Speech and Obscenity Law: Toward a Moral Theory of the First Amendment, 123 University of Pennsylvania Law Review 45 (1974-1975) [Paid Database]

Written in the backdrop of the Miller v. California decision (above), this article examines obscenity jurisprudence in the United States in the context of the First Amendment to the US Constitution, located within a larger discussion on law and morality.

Albert B. Gerber, A Suggested Solution to the Riddle of Obscenity, 112(6) University of Pennsylvania Law Review 834 (1964) [Paid Database]

This article traces the evolution of the legal tests of obscenity from the Hicklin Test to the Average Man Test. It discusses the evolution of the tests in the context of relevant American cases.

Paul Kearns, The Judicial Nemesis: Artistic Freedom and the European Court of Human Rights, 1 Irish Law Journal 56 (2012) [Open Access]

This article examines the protection of artistic freedom by the European Court of Human Rights, and illustrates that it has been inadequate. The author suggests that the Court, in providing concession to the ‘margin of appreciation’ doctrine, tends to override artistic liberty in favour of the national enforcement of morality in contracting states.

Ronald Dworkin, Lord Devlin and the Enforcement of Morals, 75 Yale Law Journal 986 (1966) [Open Access]

Written in the backdrop of the Hart–Devlin debates in England, this article critiques Lord Devlin’s arguments in respect of using public morality as a ground for criminalising private conduct, with particular reference to homosexuality and pornography.

A.W.B. Simpson, Obscenity and the law, 1(2) Law and Philosophy 239 (1982) [Paid Database]

This article provides an overview of the law relating to obscenity in the United Kingdom. The author discusses the philosophical justifications for regulating obscene matter, with particular reference to pornography and film censorship.

Daniel Linz et al, Discrepancies between the Legal Code and Community Standards for Sex and Violence: AnEmpirical Challenge to Traditional Assumptions in Obscenity Law,29(1) Law & Society Review127 (1995) [Open Access]

Joseph E. Scott et al, Obscenity and the Law: Is it Possible for a Jury to Apply Contemporary CommunityStandards in Determining Obscenity, 14(2) Law and Human Behavior 139 (1990) [Paid Database]

Through separate empirical surveys,these two articlesexamine how community standards are misrepresented to further agendas or otherwise. The authors show that different regions and different classes of individuals have different views of what constitutes pornography or obscenity, and suggest that the law is bound to fail when it uses community standards to define obscenity.

Weston La Barre,Obscenity: An Anthropological Appraisal, Law and Contemporary Problems, 20(4) Obscenity and the Arts 533 (Autumn,1955)

Arnold H. Loewy, Obscenity, Pornography and First Amendment Theory, 2(2) William and Mary Bill of Rights Journal 471 (1993) [Open Access]

This article examines the rationale for the outlawing of dissemination of sexually explicit material, and the extent to which such outlawing can be implemented consistent with sound First Amendment theory. It concludes that obscenity should be regarded as speech, and should be punishable only if there is exploitation of participants.

Andrew Koppelman, Does Obscenity cause moral harm? 105 Columbia Law Review 1635 (2005) [Open Access]

This article argues that causation of moral harm cannot be the basis for a workable legal test for obscenity, because it is too vague, and its application is too contestable to be a rule of law. It concludes that obscenity law is an unsuitable solution for the problem it seeks to address (prevention of moral harm), and should thus be abandoned.

Commentary

Indian Material

Law Commission of India, 109th Report on Obscene and Indecent Advertisements and Displays (1985) [Open Access]

The Report discusses the English and Indian law on obscenity in the context of reforming the law relating to obscene and indecent advertisements in India. It recommends amendments to the Indian Penal Code to strengthen the law and suggests that indecency be criminalised in the same manner as obscenity.

A.G. Noorani, Police and Porn, 30(22) Economic and Political Weekly 1227 (1995) [Paid Database]

The author criticises demands made by the police to permit them to confiscate obscene material without having to first register an offence, and suggests that a better alternative would be for the “concerned government departments to expedite action on police reports rather than make policemen judges of pornography”.

Charu Gupta, “Dirty” Hindi Literature: Contests around Obscenity in Late Colonial North India, 20 South Asia Research 89 (2000) [Open Access]

The paper focuses on “obscenity and sexually coded representations in Hindi literature and advertisements of late colonial north India”, with special emphasis on Uttar Pradesh, then known as the United Provinces. It examines the impact of print and new literary sensibilities, and analyses “the ‘moral panic’ that gripped a section of the British and Hindu middle classes in this period”, and its influence on the colonial understanding of the subject.

Vallishree Chandra &GayathriRamachandran, The Right to Pornography in India: An analysis in light of Individual Liberty and Public Morality, 4 NUJS Law Review 323 (2011) [Open Access]

This article tries to ascertain whether there are certain identifiable standards of obscenity which could be applied to an analysis of a right to pornography. Substantively, however, this article undertakes an exercise in achieving a balance between arguments of public morality and individual liberty and also to address the larger question of whether legalisation of pornography is a viable alternative in the present Indian society.

Anees Backer, Rejecting “Moral harm” as a ground under Obscenity law, 8 Nalsar Student Law Review 100 (2013) [Open Access]

This paper argues for the rejection of moral harm, which forms the basis of Indian obscenity law, as a ground for declaring materials as obscene. The author describes the statutory provisions on obscenity in India and traces the judicial interpretation of the subject, showing why the law in its present form poses a problem. The paper analyses Indian cases on obscenity and emphasises the unsuitability of prohibition as a strategy in respect of obscene speech.

International and Comparative Material

James Peterson, Behind the curtain of privacy: How obscenity law inhibits the expression of ideas about sex and gender, 1998 Wisconsin Law Review 625 (1998) [Paid Database]

This article argues that the current American regulations relating to obscene material are flawed as it rests on the premise (drawing from the Miller case) that obscene materials do not express ideas. Moreover it also discusses the theoretical problems of regulating material deemed to be “obscene”.

Joel Feinburg, Obscene Words and the Law, 2(2) Law and Philosophy 139 (1983) [Paid Database]

This article questions the possibility of the criminal law having any legitimate concern with obscene language, and suggests that obscene language can be criminalized only when it is used as a means of harassment. The author reviews American law on the point and concludes that “obscene language on the public media is not properly subject to governmental regulation, whether by criminal law or otherwise”.

Patrick Egan, Virtual Community Standards: Should Obscenity law recognize the contemporary community standard of cyberspace?, 30 Suffolk University Law Review 117 (1996-97) [Paid Database]

This article explores whether courts should instruct the trier of fact to apply a virtual community standard to obscenity prosecutions involving pornography on the Internet. It provides an overview of obscenity law and explores the historical development of the community standard test. Finally, it evaluates the application of a virtual community standard test for obscenity transmitted through computer networks and advocates its use in trials where the pornographer’s only contact with the legal forum is through Cyberspace.

John M. Finnis, Reason and Passion: The Constitutional Dialectic of Free Speech and Obscenity, 116 University of Pennsylvania Law Review 222 (1967) [Open Access]

This article identifies two judicial schools of thought in the United States Supreme Court regarding the constitutional definition of speech, and its interplay with obscenity. It argues that both these schools fallaciously assume that obscenity involves the expression of ideas, and that obscene expression falls outside the protection of the First Amendment.

William T. Goldberg, Two nations, One web: Comparative Legal approaches to Pornographic Obscenity by the United States and the United Kingdom, 90 Bostom University Law Review 2121 (2010) [Open Access]

This Note examines the underlying issues in U.S. obscenity law such as the application of community standards, yet primarily focuses on the impact of the internet on modern obscenity law in the United States and the United Kingdom. It examines the changes made in the UK obscenity law in 2009 and concludes that US and UK obscenity laws were very similar until this amendment. It attempts to reconcile the tensions in U.S. law with the changes in U.K. law. The discussion focuses on the divergence in the laws and the consequence, if any, such divergence could, or should, have on American obscenity law.

Article 19, Obscenity Laws and Freedom of Expression: A Southern African Perspective, Paper no. 12 (January 2000) [Open Access]

This study is a critique of obscenity laws in southern Africa, based on the laws in place in Lesotho, Malawi and Zambia, as measured against constitutional guarantees of freedom of expression. This study exposes the gap between the standards laid down in national constitutions and international law on the one hand, and obscenity laws on the other, using jurisprudence from countries in the region and other common law countries around the world. This analysis is followed by a set of general recommendations concerning the appropriate balance to be struck between the fundamental right to freedom of expression and legitimate societal interests, such as the need to prevent crime and to protect vulnerable groups, such as children, from harm and exploitation.

Jaewan Moon, Obscenity Laws in a Paternalistic country: The Korean Experience, 2 Washington University Global Studies Law Review 353 (2003) [Open Access]

This Article examines the development of obscenity laws, the rationale behind governmental regulation of sexual expression in the light of freedom of speech, and the cultural context for these regulations in Korea compared to those of the United States. Finally, this Article addresses the impact that the Internet will have on sexual expression.

Leslie Green, Obscenity without Borders, in F Tanguay-Renaud and J Stribopolous (eds), Rethinking Criminal Law Theory ( 2012) [Open Access]

This article identifies particular features of obscenity in a digital environment, such as accessibility, affordability and variety, and explores how far some influential views about their significance hold good. It analyses the community standards regarding obscenity in various countries, such as the US, the UK and Canada.

Rebecca Ong, Policing Obscenity in Hong Kong, 4(2) Journal of International Commercial Law and Technology (2009) [Open Access]

The paper briefly considers the law on obscenity in the United Kingdom, and in the United States. It then discusses and evaluates the law relating to obscenity in Hong Kong in the light of the recent publication and distribution of materials which could be argued to fall within the realm of obscenity. Finally, it considers whether the law on obscenity would ever be able to fit into an “acceptable community standard”.

Bibliography

D.D. Basu, Commentary on the Constitution of India, 8th edn., pp. 2462–2494 (Wadhwa Nagpur, 2007).

Udai Raj Rai, Fundamental Rights and their Enforcement, pp. 101–111 (PHI Learning Pvt. Ltd., 2011)

H.L.A. Hart, Law, Liberty and Morality(Oxford University Press, 1963)

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