This article has been written by Mayank Raj Maurya, from Lloyd Law College and Ria Verma, a student at Symbiosis Law School, NOIDA.

Introduction 

We are living in the 20th century, in the era of developing thoughts and new culture, with the people having new and old traditions with their different culture and sentiments, that makes us a member of society. A unique gesture of a person to present himself or his work makes someone or the whole society uncomfortable. But is the gesture really violating someone’s sentiments or it’s just a unique or new thought to express himself or his work? This difference in thinking makes the word obscenity obscure, so it is too difficult to know what really Obscene and what is not.

India has over 450 million monthly active internet users and has become the country with the second most number of internet users in the world. It has led to a subsequent rise in crimes such as cyber-bullying, circulation of obscene content, blackmailing, etc. 

The word obscene came from a Latin term Obscenus which means ‘offensive’ especially modesty. The Oxford dictionary defines obscene as “offensive or disgusting by accepted standards of morality and decency”, looks like a simple word with a simple meaning. But as we know law does not work with a dictionary or not with some simple meanings. The meaning of the word obscene not as easy to settle on for lawyers, it is a challenge to set up criteria of obscenity. Because the terms which are used to define obscenity like- Lascivious, Prurient, Deprave and Corrupt have not been clearly defined, leaving room for interpretation by the judiciary. Literature, art, gesture, movie or any scene in videos also come under obscene content if they violate contemporary community standards.

Tests of obscenity

The Oxford dictionary defines obscene as ‘offensive or disgusting by accepted standards of morality and decency.’ 

Indian society has always taken a conservative approach towards the purity of women. It is considered an important point in preserving the reputation of the family.  There are mainly three tests to check the content or any art or gesture is really obscene or not.

Miller test

Miller test is a famous test applied by the United States of America, it is named after the U.S Supreme Court decision in Miller v. California (1973) (see here). This test faced challenges with online obscenity cases. In this case, Melvin Miller mailed five distrustful brochures to the manager of the restaurant which contained conspicuous images and drawing of men and women engaged in different sexual activities. After the manager read the mail, he filed the case of Obscenity against Mr. Miller and he was prosecuted for violating the California Law. There are three parts of 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 specially defined by the applicable state law.
• The work, taken as a whole, short of serious literary, artistic, political or scientific value.

The work is considered obscene only if all three conditions are satisfied. The first two points of this test are for the standards of the community, and the last point is held to a person of the United State as a whole.

Hicklin test

This test is a legal test for obscenity came from the English case Regina v. Hicklin (1868) (see here). The case totally based on the interpretation of the word “obscene”. This test is very liberal, in this test The Henry Scott, who resold copies of anti-catholic pamphlets entitled “The Confessional Unmasked”, showing the defilement of the Romish Priesthood, the iniquity of the confessional and the questions put to females confession. When the pamphlets were ordered destroyed as obscene, Benjamin Hicklin, the bureaucrat in charge of such orders as recorder, revoked the order of extermination. Hicklin held that Scott’s purpose had not been to corrupt public morals but the expose the major issues related to the Catholic Church; so Scott’s intention was innocent. Lord Chief Alexadar Cockburn, writing for the court of Queen’s bench, a broad definition of obscenity, based on ascertaining “whether the tendency of the matter is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall”.  

In the landmark judgment of Ranjit Udeshi v. the State of Maharashtra (1964) the Supreme Court adopted the Victorian-era Hicklin test. The test assessed obscenity by the standard of an individual who was open to immoral influences and would likely to be corrupted or depraved by the material in question. A wide range of material could be ‘obscene’ using this test.

The scope of obscenity has been significantly reduced by the judiciary over the years. In the Aveek Sarkar v. the State of West Bengal (2014) the Supreme Court did not apply the British Hicklin test and used the American Roth test instead. As per this test, obscenity was to be evaluated from an average person’s perspective, applying prevailing community standards. The contemporary community standards test takes into account the changing values in society and how something which could be considered obscene ten years back would not be considered obscene today.

The Hicklin test was toppled in United State v. One Book Called Ulysses (see here), in 1933, which was taken from an English case which a district judge permitted to allow James Joyce’s “Ulysses” to be sold in America. Judge John M. Woosley focused on the Literary value of the entire work and its effects on a person with average sex instincts. At that time, the word obscene defined as tending to stir the sex impulsion or to lead to sexually impure and salacious thoughts. The government of the U.S appealed Woolesy’s decision, but the U.S Court upheld his finding that Ulysses book did not come under obscene material.

Community standards test

This test applied in India. The Community Standards Test says that the art or any gesture or content is obscene only if the dominant theme taken as a whole is opposed to contemporary community standards.

Anti-Obscenity Laws in India

There are many laws in India to tackle with Obscenity some laws were too old from colonial times, with roots in the Victorian era, but even after all these laws, it is too hard to differentiate what is obscene or what is not. All the laws discussed below:

The Indian Penal Code 1860

Section 292 (see here) and 293 of IPC (see here) prohibit publication and sale of obscene books, pamphlets, inter alia representation which shall be deemed to be ‘lascivious or appeals to the prurient interests’, which can include obscene advertisements.

Section 294 (see here) prohibits obscene acts and songs. Whoever, to the annoyance of others:

• Does any obscene act in any public premises, or
• Signs, recites or utters any obscene song, vulgar words, in or near any public place.

shall be punished with the confinement of either description for a term which may extend to three months, or with fine, or with both.

Any offense related to obscenity in electronic form can be tried under the IT Act and not under the IPC as Section 81 of the IT Act clearly states its overriding effect. But as per the facts and circumstances of the case, provisions of both the IT Act as well as IPC could be attracted, as done in the case of Avnish Bajaj v. the State (NCT of Delhi), 2008. 

Section 354D was added to the IPC via the Criminal Law Amendment Act, 2013 after the heinous gang rape and murder of victim Jyoti Singh, commonly referred to as the Nirbhaya case. It includes an individual’s monitoring a woman’s internet history like their email or any other form of communication. Therefore, collecting pictures of girls from their social media profiles would come under the ambit of this section. The offender would be punished for three years and would also have to pay a fine upon conviction.

Section 463 defines forgery, wherein any individual who makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury would be said to have committed the offense of forgery. Section 465 provides punishment for forgery, which is imprisonment of up to two years or fine, or both. Further, Section 471 talks about the usage of forged documents or electronic records as genuine and imposes the same penalty on forging such a document. Digitally altering a picture would fall within the purview of making false electronic records.

Section 509 deals with words, gestures, or acts committed with the intention to insult the modesty of a woman. Outraging of the modesty of a woman is a section that is frequently used along with other sections of IPC involving sexual assault. Messages passing inappropriate comments upon the body or physique of the girls whose images were circulated in the group would come under the purview of this section. The punishment provided under this section is imprisonment up to one year, or fine, or both.

The Indecent Representation of Women (Prohibition Act), 1986

The act punishes the coarse representation of women, which means “the illustration in any other manner of the figure of women; her from or any other part thereof in such way as to have the effect of being indecent, or outrageous to, or denigrating women, or is likely to deprive, corrupt or injure the public virtue or morals.

Punishment 

• First Offence : Imprisonment upto two years and a fine of two thousand.
• Repeat Offence : Imprisonment upto five years and fine of ten thousand to one lakh.

Information Technology (Amendment) Act, 2008

Section 67(A) (see here) makes it clear that a publication of sexual content on a social media site will lead to a punishment.

Punishment

• First Offence: Five years with a fine of rupees ten lakh.
• Repeat Offence: Seven years with a fine of rupees ten lakh.

Section 67(B) (see here) of the amendment is the turning point of the children movement in India which is against child pornography this law makes it clear that not only publication, viewing but also possession of such pornographic content is punishable.

Punishment

• First Offence: Five years with a fine of rupees ten lakh.
• Repeat Offence: Seven years with a fine of rupees ten lakh.

Young Person’s (Harmful Publications) Acts, 1956

If any person advertises or makes known by any means whatsoever that harmful publications can be procured from or through any person, shall be punishable.

Punishment

• Imprisonment which may extend to 6 months or fine or with both.

National Human Rights Commission

NHRC, doing with the State Human Rights Commission, has the power to look into the protecting dignity of women in advertisements.

Section 2(d) of NHRC Act (see here) states that human right means the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and applying by courts in India.

Exploitation of minors

Sexting a minor or sending them obscene content in the form of pictures, videos, films etc is an offense under the Protection of Children from Sexual Offences Act, 2012 (POCSO).

Section 11 of POSCO defines and lays down the extent of sexual harassment. Sections 13,14 and 15 of the POCSO Act state the punishment for using children for pornographic purposes. Under Section 14, the use of a child or children for pornographic purposes is punishable with imprisonment up to five years along with a fine. Further, under Section 15 storage of pornographic material involving a child with the intention of distributing it is punishable by imprisonment of up to three years or with a fine or both.

POCSO was enacted with the objective of protecting children under 18 years against offenses such as sexual assault, sexual harassment, and pornography.

Can consent be used as a defense 

Sharing indecent pictures in a group on WhatsApp can cause the sender to be prosecuted under Section 67 as well as Section 67A of the IT Act. As per Section 354A of the IPC showing pornography to an individual can be considered sexual harassment. 

Even if the consent of the receiver is taken, sharing nude pictures is illegal. It cannot be used as a defense by the sender. If an individual harasses another individual by constantly sending them inappropriate pictures of themselves or requests for sexual favors, the sender could be held liable for sexual harassment and punished with imprisonment of up to 3 years, a fine, or both. 

Chapter III of POCSO deals with the use of children for pornographic purposes.

Section 2(da) defines sexual harassment as any visual depiction of sexually explicit conduct involving a child which includes a photograph, video, digital or computer-generated image indistinguishable from an actual child and image created, adapted, or modified, but appear to depict a child. Therefore, having mere possession of nude images of minors is an offense in itself.

Section 67B of the IT Act states that if a person transmits or publishes content that depicts children in a sexual act or conduct, then that person will be punished by imprisonment for a period which may extend to five years and with a fine which may extend to ten lakh rupees. In case of a repeat offense, the person will be punished with imprisonment which may extend to seven years, and also with a fine which may extend to ten lakh rupees.

The above provisions of the POCSO Act, as well as the IT Act, are gender-neutral, that is, irrespective of gender, the penalty would be imposed. 

Related case laws

Suhas Katti v. the State of Tamil Nadu (2004), was the first landmark case in Indian history pertaining to cybercrimes. The case was filed by a divorced woman against a man who used to send her unwanted explicit photos and messages. He was keenly interested in marrying her. He regularly sends her vulgar and obscene messages and photos through a false email account made with the intention of harassing the victim. The victim filed a complaint and the police subsequently investigated the matter and arrested him. It was later found that the man was a family member of the woman and started harassing her after she denied his proposal to marry him. The accused was found guilty under Section 469, 509 of IPC as well as Section 67 of the IT Act. The accused was compelled to pay a fine and was held up at central imprisonment.

In Chandrakant Kalyandas Kakodkar v. Province of Maharashtra (1970), the Court held that although the term obscenity is used several times, there is no exact meaning of the word given in the statutes. Obscenity restricts or punishes the individual mailing, granting, distributing, and sharing obscene content and must understand the grave nature of the offense and give a verdict accordingly. 

In the case of Ajay Goswami v. the UOI (2006), the Supreme Court proposed a new test known as the responsible reader test wherein a reader should exercise due care and caution in this era of technology. 

There are many case laws related to obscenity in India. Like many other concepts and conventions, the meaning of obscenity changes from case to case. Some famous example and recent examples of Obscenity mentioned below:

• Milind Soman, a youth icon, actor and model, recently posted a picture of himself on his Twitter handle in which he is running nude on the Goa beach in the state to mark his birthday with a Caption – Happy Birthday to me, 55 and running. He was arrested by the Goa Police under section 294 of IPC for promoting the obscene act in a public place and also section 67 of Information and Technology act for publication of obscene content on the social media but according to him, he was promoting his fitness. (see here)
• Recently, the Goa Police had arrested actor and model Poonam Pandey and her Husband for allegedly trespassing on government property and shooting an objectionable video at a dam in South Goa.
• In 2018, there was a case relating to obscenity AIB Roast Obscenity case, in which, many Bollywood celebrities like Ranveer Singh, Arjun Kapoor, Deepika Padukone and famous director Karan Johar and many others were accused in an obscenity case.

Some famous Landmark Judgment related to Obscenity are mentioned below:

• Aveek Sarkar v. State of West Bengal (see here) in this case a German Magazine published a photograph of Boris Becker, a renowned tennis player, posing nude with his fiancée Barbara Feltus, an actress covering her breasts with his hand. The picture was taken by Feltus’ father. The article that contained this image was republished in the Indian newspapers and magazine. After this, a complaint was filed against the newspaper under Section 292 of IPC. But the Supreme Court of India ruled that the half-nude image of Boris Becker with his fiancée was not obscene, after applying the community standard test, and the reason is that the image is not obscene because it did not excite sexual passion or to deprave or corrupt minds of people.
• Ranjeet D. Udeshi v. State of Maharashtra 1964 (see here) In this case, Ranjeet D. Udeshi is one of the owners of the bookstall. At that time, there was a book named Lady Chatterley’s Lover (see here) which was banned because the book had some obscene content and he found some copies of the book. He was guilty under Section 292 of IPC, in his appeal in the highest Court he contended that: (1) the section was void because it violated the freedom of speech and expression guaranteed under Article 19(1)(a) of the constitution of India. (2) even if the section was lawful, the book was not obscene content. (3) it must be pointed out by the plaintiff that he sold the book with the motive to corrupt the buyer and that he knew that the book was not obscene.
• Bobby Art International v. Omphal Singh Hoon 1994 (see here)

Conclusion

The word obscenity is from one of those words whose meanings are vague or not clear in our Indian Law. What is obscene content or not totally depends upon the lawyers and the judges and how they interpret the word obscene. It is true that the definition of word obscenity would change from time to time. What is obscene in the present day should not be treated as obscene in the future. We know laws have to change from time to time but there is a need for a proper definition of obscenity. It is too important to mention in the present time the appropriate degree of obscenity in movies, web shows, arts, images or pictures, literature, has not yet been defined in our country.

In our country, where multiple religions and cultures exist, there is bound to conflict among them. When these types of issues relating to someone’s culture or religion are touched and the artists express their ideas or views over these types of sensitive issues, they should not be intercepted merely because these are serious issues and they might hurt the sentiment of certain groups or communities. All the works relating to art, literature, etc. do not generate hatred among the people. Sometimes it is necessary to educate the people in a manner which is subtle and gentle to reduce the tension in our society.

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