This article is written by Pranav Santvan.
Table of Contents
Introduction
The very existence of civilization depends upon its ability to heal itself from all those scars and diseases which have a tendency to destroy it internally. Only a society that has the habit of looking into a mirror each day can develop such ability and use it to its own benefit.
But societies never hold mirrors themselves, it is art that shows society a mirror, it is literature that takes birth within the society not just for the purpose of being read and recited but to give everyone a reality check. Is truth always obscene? Can imagination be captured in boundaries? Is the expression of feelings or ideologies by the way of art an offence? In this article, we shall be exploring that.
Law in India
In India, where the ‘Rule of The Law’ is a principle enshrined in the Constitution,nearly no possible sphere of life remains untouched by law and art and literature to remain no exceptions to this. The Indian Penal Code,1860 contains provisions for the regulation of sale and circulation of art and literature related material on the basis of obscenity that it might possess in its nature in Chapter XIV (Offences affecting decency and morals). Since the enactment of this law, many writers, authors, poets, painters, satirists and other artists related to performing arts have been subjected to the penal provisions of the code. Sections 292, 293 and 294 of the Indian Penal Code, 1860 are the major provisions that have remained in conflict with artistic and literary expression in society.
Section 292 states that the publication of a book, pamphlet, paper, writing, drawing, painting, representation, figure, etc., will be deemed obscene, if:
- It is lascivious (expressing or causing sexual desire); or
- Appeals to the prurient interest (excessive interest in sexual matters);
- If its effect, or the effect of any one of the items, tends to deprave and corrupt persons, who are likely to read, see or hear the matter contained in such materials.
This section not only defines what an obscene material is but also makes it’s sale, circulation, import-export and advertisement punishable. Profit-making through such material is also an act constituting an offence within the meaning of this section. Its collateral sections 293 and 294 penalise the sale or circulation of such material among youngsters (below 20 years of age) and obscene acts and songs or ballad in public places. Section 292, granting some sort of protection to the freedom of expression or rather what we can better term as artistic expression or creative expression, does not extend to:
(a) any book, pamphlet, paper, writing, drawing, painting, representation or figure:
(i) the publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, writing, drawing, painting, representation or figure is in the interest of science, literature, art or learning or other objects of general concern; or
(ii) which is kept or used bona fide for religious purposes.
(b) any representation sculptured, engraved, painted or otherwise represented on or in:
(i) any ancient monument within the meaning of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (24 of 1958), or
(ii) any temple, or on any car used for the conveyance of idols, or kept or used for any religious purpose.]
Tests Used
But what sort of artistic creation or literary work is reformative for society, intends public good or is capable of educating minds and not corrupting them? Initially, the Hicklin’s test was used by the courts for the purpose of obscenity determination which was laid down in the English case of Regina v Hicklin (1868) in which The court held that all material tending “to deprave and corrupt those whose minds are open to such immoral influences” was obscene, regardless of its artistic or literary merit. A Community Standard Test applying contemporary standards was also used for the purpose of these sections. Hicklin test was disregarded by the Supreme Court of India in the case of Aveek Sarkar v. State of West Bengal, (2014) 4 SCC 257 in which the intention behind the depiction of an almost nude photograph was given much weightage and the photograph was considered to not be obscene material. Therefore, the judgment came to the rescue of free-spirited artistic and literary expression. The Hicklin test was also disregarded by the US Supreme Court in Roth v. United States, (1st). This was not the first instance when the courts understood art that aimed at reforming social thinking.
Cases
Raja Ravi Varma, during the British regime, got into similar trouble because of his semi-nude paintings of mythological characters like Rambha and Urvashi which also got him charged at the Bombay High Court for hurting religious sentimentality and encouraging obscenity. But the case was not able to do any damage considering Varma ultimately won the case and still went on creating his art. Today, Raja Ravi Varma, in the field of painting is considered as one of the greatest visionaries who connected the Hindu mythological culture to the modern world through his artworks. Who can forget Sadat Hassan Manto’s stories?
Manto faced trial for obscenity in his writings in both India (then under British rule) and Pakistan, including three times in India before 1947 (for his literary work ‘Dhuan’, ‘Bu’ and ‘Kali Salwar’) and three times in Pakistan after 1947 (for works like ‘Khol Do’, ‘Thanda Gosht’ and ‘Upar Neeche Darmiyaan’) under Section 292 of the Indian Penal Code (by the British Government) and the Pakistan Penal Code in Pakistan’s early years. He was fined only in one case. These stories were mirrors of society. They expressed what happens around them. Some other such instances include Bobby Art International v. Om Pal Singh Hoon, 1996 4 SCC 1 (Bandit Queen movie case), MF Husain’s case and the case of Khushboo v Kanniammal.
Criticism of the law
All these instances communicate that artistic material and literature must be reviewed by the courts in a referral sense. The intention, purpose and relative circumstances and conditions must be kept in mind while deciding the question of obscenity. Everything which appears to be obscene at a mere glimpse does not have the capability of corrupting minds. Sometimes such creations help in preventing corruption of the mind by depicting reality and the ways through which society might be able to change those harsh realities resulting in a reformed and better society.
The Indian Penal Code, 1860 provides adequate grounds of protection to educational, scientific and welfare-oriented artworks and literature but many opinions are not accepted when expressed obscenely. Therefore, truth should be inserted under the mentioned exceptions of Section 292(2) of IPC as art/literature is the mirror of society and such mirrors should not break. Not only this, to sustain the freedom of expression promised under the Constitution of India, artists and their creations need to be protected from the criminalising effects of penal laws otherwise no new dissenting idea will ever be able to take society on a path of internal development.
The offence (s) under Section 292 of the Indian Penal Code shall be made non – cognizable and courts during prima facie review of the alleged artwork or literature should try to think in the context, circumstances and sense in which the original creator while creating would have thought.
Conclusion
Therefore, obscenity is evil in an upright society but the determination of obscenity in an intricate network of self-conflicting ideologies is a very difficult task. Generally, artists, authors, poets, painters, etc are convicted under obscenity based crimes just because they are the communicators of suppressed feelings of society. This is because all art forms strive to express and not to impress. It is high time that law, with some amendments and acceptance in attitude, must come to their rescue and preserve diversity which is an important constituent of our national fabric. Thus, art and culture reside in the foundation stones of civilisation and help it sustain through constantly going on social processes.
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