This article has been authored by Anindita Deb, of Symbiosis Law School, NOIDA. This article aims to carry out an in-depth analysis of the provisions which are covered under Section 294 of the Indian Penal Code, 1860. 

Introduction

Obscenity is a global and complex issue because it is linked to other issues such as decency and morality, which differ from society to society. What is immoral for one person may not be immoral for another. In terms of the meaning and definition of obscenity, it is difficult to provide a precise and specific definition given the society’s cultural, religious, and social diversity. It is true that the definition of obscenity varies from time to time. What is obscene today should not be considered obscene in the future. Indian laws, as well as the Supreme Court, have been unable to precisely define obscenity.

However, the Indian legal system has various provisions that deal with obscenity and punish acts of obscenity. Section 294 of the Indian Penal Code, 1860 (IPC) is one such provision. It punishes performance of obscene acts, songs, ballads, or words. According to the Section, anyone who, in the absolute annoyance of others or the general public, commits an obscene act in any public place, or particularly commits to doing things like reciting, singing, or uttering an obscene song, ballad, or words, near or within any public place, shall be punished with imprisonment for a term that can extend to 3 months, or with a certain amount of fine, or with both. 

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The objective of this article is to analyse the provisions contained within Section 294 of IPC and what are the issues and controversies surrounding these provisions. 

A brief history of obscenity under Section 294 IPC

The law dates back to colonial times and has roots in the Victorian era. Section 294 of the IPC, along with Sections 292 and 293, deals with obscenity. The term ‘obscenity,’ or what constitutes ‘obscene,’ is not defined in the IPC. In fact, Section 292 did not exist in its current form when the Code was written in 1860. It was inserted in 1925, so it is colonial, but with roots in the Victorian sense of puritanical existence, where the British were all suited and booted and thus not very comfortable with showing skin. There were preconceived notions of what was ‘moral’ and ‘acceptable.’ 

We are aware of the trials of Saadat Hasan Manto, the great Urdu writer who was tried for obscenity no less than six times – three times in British India prior to 1947 (for his works Dhuan, Bu, and Kali Shalwar) under Section 292 of the IPC, and an equal number of times in Pakistan after independence (for Khol Do, Thanda Gosht and Upar Neeche Darmiyaan). He was only fined once, but in our system, the process itself becomes the punishment, and some of these trials left him completely exhausted.

What can be considered “obscene”

The Oxford dictionary defines obscene as “offensive or disgusting by accepted moral and decency standards.” However, the definition of ‘obscene’ is not as simple for lawyers to unanimously agree on. Section 292 of the IPC states that an obscene book or object must be lascivious or prurient, or have the effect of depraving or corrupting someone. The terms ‘lascivious,’ ‘prurient,’ ‘depraved,’ and ‘corrupt’ have not been clearly defined, leaving room for judicial interpretation.

For their part, the courts have developed tests to determine whether something is ‘obscene.’

Tests of obscenity 

Indian society has always been conservative when it comes to women’s purity. It is regarded as a critical point in preserving the family’s reputation. There are three main tests to determine whether the content of any art or gesture is truly obscene or not.

Miller test

The Miller test is a frequently applied test in the United States; it is named after the United States Supreme Court’s decision in Miller v. California in 1973. Due to online obscenity cases, this test had some challenges. Melvin Miller sent the restaurant’s manager five brochures, each containing notable images and drawings of men and women who were involved in various sexual activities. The manager filed an Obscenity case against Mr Miller after reading the mail, and he was prosecuted for violating California law. The Miller test is divided into 3 parts, which are as follows:

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

The work is only considered obscene if all three conditions are met. The first two points of this test pertain to community standards, while the final point pertains to an individual in the United States as a whole.

Hicklin test

This legal test for obscenity is based on the case Regina v. Hicklin (1868). The entire case was predicated on the interpretation of the word “obscene.” This is a very liberal test. Henry Scott resold anti-Catholic pamphlets titled “The Confessional Unmasked,” depicting the tainting of the Roman Priesthood, the unrighteousness of the confessional, and the questions raised on female confessions. Benjamin Hicklin, the bureaucrat in charge of such orders as recorder, revoked the order when the pamphlets were ordered to be destroyed because they were obscene. Scott’s intention, according to Hicklin, was to reveal significant issues concerning the Catholic Church, not to corrupt public morals; thus, Scott’s intention was innocent.

In the court decision of Ranjit Udeshi v. the State of Maharashtra (1964), the Supreme Court applied the Victorian-era Hicklin test. The obscenity was assessed using the standard of a person who was sensitive to immoral influences and was likely to be manipulated by the material under consideration. A wide range of material could be deemed ‘obscene’ using this test.

The judiciary has significantly reduced the scope of obscenity over the years. The Supreme Court used the American Roth test rather than the British Hicklin test in Aveek Sarkar v. the State of West Bengal (2014). Obscenity was to be evaluated from the perspective of the average person, using current community guidelines. The modern community standards test considers changing values in society and how something that was considered obscene ten years ago would not be considered obscene today.

The Hicklin test was overturned in 1933 in the United States v. One Book Called Ulysses, which was based on an English case in which a district judge allowed James Joyce’s “Ulysses” to be sold in America. Judge John M. Woosley focused on the work’s literary value and its effects on a person with average sexual instincts. At the time, the term obscene was defined as having the potential to arouse sexual desire or lead to sexually impure and salacious thoughts. The US government appealed Woolsey’s decision, but the US Supreme Court upheld his finding that Ulysses’ book did not contain obscene material.

Community standards test 

This test is often applied in India. According to the Community Standards Test, art, gestures, or content are only considered obscene if the dominant theme as a whole is in violation of current standards prevailing in the community.

Section 294 IPC in detail

Essential ingredients 

The following points can be identified as the essentials of Section 294:

  • Performing any obscene act in a public place, or 
  • Anyone sings, recite or utters any obscene song, ballad or words in or near any public place
  • An annoyance is caused to a particular person or people in general by such an act.

A person cannot be punished under this Section if all the above-mentioned essentials are not fulfilled. If even one of the factors is missing, the act or song will not qualify as obscene. 

Punishment 

Anyone found guilty of obscene acts or songs under Section 294 of the IPC faces imprisonment for a term that can last up to three months, a monetary fine, or both.

Nature of Section 294 IPC

Bailable offence

Bailable offences are offences that can be granted bail in their entirety; it is purely a matter of right, and the arrested person is released after bail is granted. It can be given by a police officer who is in the custody of the accused in the course of law. Section 294 of the Indian Penal Code provides for bail. When compared to non-bailable offences, bailable offences are comparatively less serious.

Cognizable offence

A cognizable offence is one in which a police officer may, under or in accordance with the law, arrest without a warrant, whereas a non-cognizable offence is one in which the police officer responsible for that case will have no authority to arrest the person involved without a warrant. They are regarded as less serious than cognizable offences, which include cases in which the Police are given the authority to arrest someone without a warrant. The violation of Section 294 of the Indian Penal Code is a cognizable offence.

Non-compoundable offence

Compoundable offences are those that can be compromised, i.e. the complainant can agree to withdraw the charges levied against the accused, whereas non-compoundable offences are those that cannot be compromised. Section 294 is non-compoundable in nature. 

How to file or defend a case under Section 294 IPC

To file a case under Section 294 of the Indian Penal Code, follow these steps: A written complaint by a lawyer can be the first point of contact for starting or registering an FIR in any Police Station where the complainant has clear permission to provide details about the incident and for it to be registered.

If the accused wishes to defend himself or herself against the accusations levelled against him or her under Section 294 of the Indian Penal Code, he or she can hire a capable lawyer who understands the entire process of the circumstances so laid out in this particular case and for the defence of any case which depends on the circumstances that are emphasised in this case, with the clear purpose of reducing or exempting the punishment levelled against the accused.

Obscenity v. Freedom of Speech and Expression : a constant conflict

The right to free expression enshrined in Article 19 is not absolute, which means it is subject to certain limitations, the parameters of which have been defined by the Constitution itself. These restrictions are commonly referred to as “reasonable restrictions,” and they are outlined in clauses 2–6 of Article 19 of the Indian Constitution. Sovereignty and integrity of the state, security of the state, friendly relations with foreign countries, public order, decency and morality, contempt of court, defamation, and incitement to an offence are among the grounds. The State may, by law, limit the enjoyment of the freedoms enshrined in Article 19(1). The use of the State’s power to limit freedoms through legislation is known as executive action. 

One of the grounds under Article 19(2) of India’s Constitution based on which reasonable restrictions on freedom of speech and expression can be imposed is decency and morality. Such concepts differ from country to country, depending on the standards of morality of contemporary society. 

The laws relating to obscenity have always been an issue of debate and deliberation for the Indian judiciary. Indian courts have frequently resolved the debate between morality and freedom in favour of artistic freedom, as in the M F Hussain case in 2008 and the Perumal Murugan decision in 2016. The Supreme Court ruled in the latter case that “art is often provocative and is not meant for everyone”—material cannot be labelled as obscene simply because it is unpalatable to one segment of society. The constitutionality of Section 292 was challenged in the Ranjit Udeshi case and the Court, by applying the Hicklin test, did find that the text of the novel “Lady Chatterley’s Lover” was indeed obscene and its sale was prohibited under Section 292. As far as it went regarding the question of the unconstitutionality of the Section, the Court justified it as falling within the purview of reasonable restrictions under Article 19(2) of the Constitution. 

Celebrities booked under Section 294 IPC : a case study

Twinkle Khanna called out for “obscene” acts during ramp walk

Akshay and Twinkle made headlines in 2009 when they were accused of obscene behaviour. The actor stood in front of his wife Twinkle, who was sitting in the front row, and asked her to unbutton his jeans when he was walking the ramp. While this appeared to be a harmless joke, a social activist claimed it was obscene and filed a complaint against the celebrity couple.

Milind Soman booked for naked beach run

The famous model-actor was booked under Section 294 when he posted a picture of himself on Instagram running naked on the beach on his 55th birthday. This offended a large number of internet users and subsequently, an FIR was also filed against him under various other relevant sections of the IPC and the Information Technology Act, 2000. 

Poonam Pandey arrested for ‘obscene’ shoot

Just a day after the arrest of Milind Soman, Poonam and her husband Sam Bombay made headlines for being arrested by the Goa police. Poonam and Sam had been accused of making an obscene video in Goa, according to the FIR. The couple was arrested on November 5 and later released on bail. Sections 292 (taking obscene photos), 293 (circulating obscene photos on social media), 294 (for the obscene act), and 447 (trespass) of the Indian Penal Code, as well as Sections 4 and 6 of the Indecent Representation of Women (Prohibition) Act, 1986 and Section 67A of the IT Act, were applied for charging Poonam and Sam.

Karan Johar booked for his role as “roastmaster” 

In 2014, 14 artists, including Karan Johar including several A-list Bollywood stars, took part in a roast show, the video of which went viral. A lawsuit was filed against all of the celebrities who were in attendance at the show. Roastmaster Karan Johar was chastised for the show’s ‘obscene’ content and was subsequently booked under Section 294. 

Shilpa Shetty and the Richar Gere kiss

Recently on 25th January 2022, Shilpa Shetty was finally cleared of the charges levelled against her under Section 294 for being kissed by Hollywood star Richard Gere at an AIDS awareness event held in Delhi about 15 years ago. Footage showed the Hollywood star kissing Ms Shetty on the cheek. The charges were only recently dismissed as “groundless,” with the Court stating that she was the victim of an unwanted advance. The kiss sparked protests from radical Hindu groups at the time, who saw it as an insult to Indian values.

Case laws : observations made by courts that provided some clarity into the provisions of Section 294 IPC

In the case of Pawan Kumar v State of Haryana (1966) it was stated that the courts should be aware of changing moral perspectives and concepts in order to understand the impact of Section 294 on today’s society and its standards, as well as changing views of obscenity.

The Karnataka High Court, in the case of Patel H.M. Malle Gowda vs The State Of Mysore (1972) clarified that because annoyance, an important component of the offence under this Section, is commonly associated with mental state, it is difficult to establish it as a fact through positive evidence. It can almost always be deduced from proven facts.

The Bombay High Court held in Narendra H. Khurana v. Commr. of Police (2003) that cabaret dances where inappropriate and obscene acts are performed do not attract the provisions of Section 294 IPC unless evidence of “annoyance to others” is provided. It is unclear how the contested act could annoy those who do not watch it or affect public order. It’s like saying that watching a Hindi film with a dance sequence in which the dancers are provocatively dressed will disrupt public order. It also stated that a cabaret where a person enters after buying a ticket, cannot constitute a “public place” under the Section. 

It was established in the case of Saraswathi v State of TN (2002) that the main component of the offence under Section 294(b) of the I.P.C. is uttering words in a public place that annoys others.

Conclusion 

India is still a country whose population is very conservative regarding what is obscene and what is not. In some cases, even so much as showing a lot of skin can be considered ‘obscene’. The term obscenity is derived from one of those words whose meanings are ambiguous or unclear in Indian law. What constitutes obscene content is entirely determined by the lawyers and judges and how they interpret the term ‘obscene’. It is true that the definition of obscenity varies from time to time. What is obscene today should not be considered obscene in the future. We understand that laws must be changed from time to time, but there is a need for an accurate definition of obscenity. It is too important to mention that in our country, the appropriate level of obscenity in movies, web shows, arts, images or pictures, and literature has not yet been defined.

References

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