This article is written by Harmanjot Kaur Kang and the article is edited by Khushi Sharma (Trainee Associate, Blog iPleaders).
Table of Contents
Provisions under the Indian Penal Code
With the recent controversy about the Myntra logo, the burning issue of the clear definition of obscenity came into the picture. It was claimed that it is similar to the female body part of two legs far apart displaying the public region.
Section 292 of the Indian Penal Code defines ‘obscenity’. The section reads the following lines:
According to subsection (2), a book, leaflet, paper, composing, drawing, painting, portrayal, figure or some other item will be viewed as revolting in the event that it is lewd. This as such implies that it requests to the scurrilous interest. The impact of its substance, or (expecting there are more than one particular thing) any of them, tends, whenever taken in general, to debase and ruin the individuals who might peruse, see, or hear it, under every single important situation. Whoever would do the following activities would be held liable under the Indian Penal Code for the offence of obscenity.
(a) Possessing the vulgar item and its display
For the motivation behind the deal, enlist, appropriation, public presentation or dissemination, makes, creates or currently possesses any revolting book, leaflet, paper, drawing, painting, portrayal or figure or some other vulgar item at all, or
(b) Import or Export
In case if there are imports, trades or passes on any foul item for any of the reasons aforementioned, or knowing or having the motivation to accept that such article will be offered, let to recruit, dispersed or openly displayed or in any way put into dissemination, he would be liable for offence.
(c) Gets the benefit arising out of the transaction
In case anyone participates in or gets benefits from any business over the span of which he knows or has the motivation to accept that any such indecent articles are for any of the reasons aforementioned, made, created, bought, kept, imported, traded, passed on, freely showed or in any way put into the flow, he would be liable.
(d) Promotes demonstration of the profane item
In case anyone promotes or spreads the word about using any and all means at all that any individual is locked in or is prepared to participate in any demonstration which is an offence under this segment, or that any such profane item can be obtained from or through any individual, he would be liable.
What would be the punishment for obscenity under Indian Penal Code?
In case of the first conviction
In case of the first conviction with imprisonment of one or the other depiction for a term which might reach out to two years.
Additionally, entitled with a fine which might stretch out to 2,000 rupees.
In case of the second conviction
In case of a second ensuing or conviction, with the detainment of one or the other portrayal for a term which might reach out to five years.
Furthermore, the accused can be made liable for a fine that might stretch out to 5,000 rupees.
Exception
This segment doesn’t stretch out to—
(a) Use for Scientific Purpose or Workmanship:
In the case where any book, leaflet, paper, composing, drawing, painting, representation or figure—(I) the distribution of which is ended up being supported as being for the public great on the ground that such book, flyer, paper, composing, drawing, painting, portrayal or figure is in light of a legitimate concern for science, writing, workmanship or learning or different objects of general concern, or (ii) which is kept or utilized real for strict purposes;
(b) Any Ancient Monument or Archaeological Findings:
In case there is any portrayal moulded, engraved, painted or in any case addressed on or in—(I) any antiquated landmark inside the significance of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (24 of 1958), or (ii) any sanctuary, or on any vehicle utilized for the transport of icons, or kept or utilized for any strict purpose.]]
However, on a deeper analysis, we observe that the Section only defines the term selling, circulating and distributing such goods which are classified as indecent. However, the definition of the term ‘obscene’ is not defined anywhere in the Act. This shows that the Act is not exhaustive in itself. It is open to interpretation based on social factors. However, here the question arises about the changing nature of people’s opinions with time.
Why was the Myntra Logo criticised worldwide?
In the Myntra case, the logo representing the legs apart was called obscene. However, when it comes to the selection criteria for the UNESCO list and the Section 262 controversy, there is a deep silence. Is it such that the implicit provision of ‘privity of contract’ under the Indian Contracts Act should be read in a broader sense so that, if it would be beneficial to India, the thing would be implicitly agreed with a shy smile?
Difference between the terms: ‘indecency’, ‘grotesque’, ‘profanity’ and ‘obscene’?
In the US case, ACLU v. Reno, the constitutionality of a statute employing the word ‘indecent’ without further definition was found to be so “unconstitutionally vague … as to violate the First Amendment”:
In this statute, “indecent” is an undefined term with no guidelines at all about its parameters. An entirely different federal crime gives an entirely different definition to indecent [18 USC para. 1461 says, “The term ‘indecent’ as used in this section includes a character who is likely to incite arson, murder, or assassination.”]. Although not directly applicable, this example illustrates the vague nature of the term and the need for a clear definition, especially in a statute that violates protected speech.
Who discovered it first?
The exact date of the definition is unknown till date. However, the irony lies in the fact that before the production of cloth by early man, the early man also used to wander around naked at every place. So, even though these people were not wearing anything, they won’t be punished by anyone for obscenity.
Similarly, in the present-day scenario, we see that there are certain tribal areas that wear the leaves of local trees. Such people are not classified as indecent.
Why was the issue unnoticed for such a long period of time?
We see that it was only after the Gupta age that the concept of nudity was removed from various architecture and sculptures. However, here also we see the exception wherein the Khajuraho Temple of Madhya Pradesh has erotic pictures carved on it. Similarly, in Jainism, the image of Lord Mahavira in the Digambar sect is shown as a naked body who is sitting and meditating.
Provisions under International Convention
There is no international convention that determines ‘nudity and obscenity as the areas to be defined in clear terms. Similarly, we see that the governing principles are determined according to the culture of a place. We see that even in the Hollywood songs such as Call You Mine, Ready for It there is a certain degree of nudity. However, these songs are acceptable in the European and American nations.
Similarly, in the Indian subarea, we see that the south Indians are more liberal with relation to clubbing and going to bars. However, in North India going to clubs and bars would be linked to brash behaviour, izzat, piyaakar and certain similar terms.
What is the position in various countries?
The following keystones present a broad overview of the provisions. These can be seen in the following subheads:
In Japan
In Japan, the term ‘ecchi su’ is defined to express something indecent and unscrupulous. This even includes the areas such as ‘Manga’comic where the areas such as sexually pervert scenes are covered only be the rays of sunlight, water particles while bathing or leaves in case the comic character is in an open area.
In the USA
In USA a special test is run, which is known as Millers Test. Here the distribution of anything to anyone less than 16 years of age is an offence. The jurisprudence was established under the cases of Miller v. California, Smith v. United States, and Pope v. Illinois. It has to qualify three steps, these are as follows:
- When applied to contemporary adult community standards, whether or not the matter appeals to prurient interests (namely, an erotic, lascivious, unhealthy, degrading, shameful, or morbid interest in nudity, sex, or excretion);
- According to contemporary adult community standards, whether the subject matter depicts or describes sexual conduct in an offensive fashion (i.e., ultimate sexual acts, normal or perverted, actual or simulated, masturbation, excretory functions, lewd exhibition of the genitals, or sadomasochistic sexual abuse); and
- If a reasonable person finds the matter to be lacking in serious literary, artistic, political, or scientific value.
In Canada
The Canadian Criminal Code defines obscene material as follows:
For the purposes of this Act, any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, horror, cruelty and violence, shall be deemed to be obscene.
In England
In the case of R vs Hicklin, the test of ‘literary morality’ was laid down. It was held that the law in England is more related to morality and ethics. In England, pornographic films are included as a major part constituting the legislation. In the landmark judgement of Towne Cinema Theatres Ltd. v. The Queen (1985), the Canadian court established the need to use the ‘Community standard test’ not the Hicklin test in order to determine obscenity.
In South Korea
In South Korean law, displaying of male genitals in public would amount to offence, unless it is supported with some artistic, cultural or educational settings.
In China
Under China law, a standardised law named Control of Obscene and Indecent Articles Ordinance (Cap. 390) (“COIAO”) was enacted in 1987 provides the explicit provisions under Section 10 to qualify the provisions. These are:
These include:
(a) The moral standards generally accepted among reasonable members of the community;
(b) the defining characteristic of the article, or of the subject as a whole;
(c) the likely recipients’ class or age;
(d) If a matter is publicly displayed, the location where it is displayed and the class or age of likely recipients; and
(e) whether the article or matter has a genuine purpose
In Africa
In the case of Nyambirai v. National Security Authority, the Court of Zimbabwe laid down three specifications related to the restriction of freedom of speech. These are termed as ‘three-tier systems. These are as follows:
(i) the legislative objective is sufficiently important to justify limiting a fundamental right;
(ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.
In Iran
In case of Iran producing pornographic material can amount to death sentence. Thus, we see that there is are very stringent laws here. It can be equated to rape offences in India.
In India
Under Section 294 of Indian Penal Code, an Israeli couple was married according to Hindu Traditions. However, they were caught kissing in public. The magistrate thereafter, slapped them a fine of Rs.500/- for committing an indecency.
In another illustration, a tourist from Finland was found guilty under Section 294 as she was skinny dipping in a local hotel. Later it was discovered that she was streaking on the streets up to her hotel.
In the case of Bobby Art International v Om Pal Singh Hoon, the film scene was demonstrating rape scene and streaking up a scene where the movie Bandit Queen was banned, due to such contentions related to obscenity. On the similar lines, in case of Ranjit Udeshi v State of. Maharashtra 1965), it was held that in comparison of the Fundamental Right of Article 19(1) and Section 292, the reasonable restriction laid down by Section 292 was held to be constitutional in nature.
What are various tests which are used to check whether the content qualifies as ‘obscene’?
Under international law, Article 19 of the International Covenant on Civil and Political Rights permits restrictions on freedom of expression only as necessary to protect the rights and reputations of others, national security, or public order, health or morals. There are certain tests such as ‘Hicklin test’ in the United Kingdoms’; ‘Millers Test’ in the USA, ‘community standard test’ in India.
What should be the standards established by Media Laws?
The laws related to obscenity are constantly evolving. There is no clear definition of these laws. In the case of Ajay Goswami v. UOI proposed a new test called the responsible reader test wherein a reader should be cautious in this era of technology. On the similar lines, in M. Saravanan & Dr. L. Prakash v. State, a doctor was punished under Section 67 IT Act, 2000 for online distribution of lewd photos and videos of a woman just for the purpose of making money.
However, it is surprising that it was only after the Gupta period that nudity in statues and sculptures was removed. Before the Gupta age, nudity was allowed. This can be proved by Harappa’s famous ‘dancing girl’ who forms one of the prominent figures of the Harappan times. However, it is still very controversial, that if Khajuraho temple monuments were explicitly displaying nudity and various erotic poses, then why has it been included in the UNESCO World heritage sites? Comment your views about it below.
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