The Oxford Dictionary defines obscenity as “offensive to modesty or decency expressing or suggesting unchaste and lustful ideas; impose, incident, lewd.” It generally refers to lewdness, indecency calculated to shock the moral sense of man by disregard of chastity or modesty.
II. Position of IPC vis-a-vis obscenity & immorality
There are many legislative measures have been enacted to protect the morality and decency of individuals, such as, The Young Persons Act, 1956, The Cinematograph Act, 1952. However, here it is pertinent to mention the position of IPC vis-a-vis obscenity. Sections 292-294 of the code, does not expressly define obscenity, but expressly prohibits the same.
S. 292 – According to this section, the publication of a book, pamphlet, paper, writing, drawing, painting etc. will be deemed to be obscene if :
- It is lascivious or
- appeals to the prurient interest or
- if its effect tends to deprave and corrupt persons who are likely to read, see or hear the matter contained in such materials.
Further clause (2) of S. 292 provides that, whoever :
- Sells, distributes, publicly exhibits or puts into circulation etc. or
- imports or exports or conveys any obscene objects or
- takes part in or receives profit from business by any of the aforesaid method or
- advertises or makes known that any person is engaged in an act which is an offence under this section and
- offers or attempts to do any act which is an offence under this section
shall be punished on first conviction with imprisonment and fine which may extend to 2 years and Rs 2000 respectively, and in any subsequent conviction for a term and fine which may extend to 5 years and Rs 5000 respectively.
Exception : However this section does not apply to :
- Any book, paper, writing etc. the publication of which is proved to be justified for public good on the ground that it is in the interest of science, art or objects of general concern or kept in good faith for religious purposes.
- Any representation sculptured, engraved etc. on any ancient monument and any temple or car used for any religious purpose.
S. 293 – This section provides that anyone who sells, distributes, circulates etc. to any person who is under the age of 21 years any obscene object as is referred to in S. 292 shall be punished on first conviction with imprisonment and fine which may extend up to 3 years & Rs. 2000 and on subsequent conviction up to 7 years and Rs. 5000 respectively.
S. 294 – This section provides that whoever to the annoyance of others :
- does any obscene act in a public place or
- sings, recites or utters any obscene song or words in any public place,
shall be punished with imprisonment which may extend up to 3 months or with fine or both.
Annoyance – In order to punish an accused under this section, his act must have caused annoyance to a particular person or particular persons in general. But it is necessary that it must be in a public place or else there would be no liability under this section.
Obscene Act – Indecent exposure of one’s person or sexual intercourse in a public place will be punished under this section.
Public Place – The obscene act must have been done in or near a public place.
Case Law : Deepa v. S.I. of Police
Held : In this case, the court held that an enclosed area in posh hotel where cabaret dance is performed will be a public place despite of the fact that the entry was restricted to persons who purchased the highly priced tickets. It further stated that otherwise any public place could be made a private place by enclosing the same and restricting entry to persons who can afford payment of huge amount.
III. Constitutionality of S. 292
The constitutionality of S. 292 was challenged in the case of Ranjit D. Udeshi v. State of Maharashtra, which is a landmark case on obscenity in India.
Case Law : Ranjit D. Udeshi v. State of Maharashtra
Held : The court held that the section is constitutionally valid on the ground that it puts a check on the violation of public morals. It stated that though Art 19 guarantees freedom of speech and expression but it is not an unrestricted one as it imposes limitation on the right in the interest of public decency and morality. Therefore, S. 292 is in consonance with the restriction imposed u/a 19. The SC observed that the test of obscenity in India is that obscenity without a preponderating social purpose or profit cannot have the constitutional protection of freedom of speech and expression.
IV. The Test of Obscenity
There can be no single or uniform test of obscenity and each case has to be judged on its own facts. Some of the tests are as follows :
1. Hicklin’s test : The Indian Courts have accepted this test which had been laid down in the English case of R. v. Hicklin. The test lays down that whether the tendency of matter charged as obscene is to deprave and corrupt those whose minds are open to such immoral influences. It stresses on the effect of the publication on vulnerable members of the society.
2. Likely reader’s test : S. 292 IPC adopts the essence of likely reader test which considers the impact on those who could reasonably be expected to gain access to the publication. In Chandrakant Kalyandas the court observed that what we have to see is that whether a class and not an isolated case will have impure and lecherous thoughts aroused in their mind after reading.
3. Preponderating social purpose : As explained above in Ranjit D. Udeshi.
4. Judging the work as whole : This was explained in the case of Samaresh Bose v. Amal Mitra
Facts : It had been contended that the novel ‘prajapati’ was in violation of S. 292.
Held : The SC held that in judging the question of obscenity, the judge shall place himself in following two positions :
- In the position of author and see as to what the author seeks to convey and does the same have any literary and artistic value &
- In the position of a reader of every age group
and then apply his judicial mind to decide whether the book in question is obscene or not. The court must take an overall view of the matter complained as obscene, and also consider the matter charged as obscene separately.
5. Contemporary national standards : In S. Khushboo v. Kanniammal the supreme court said that if a mere reference to sex by itself is considered obscene then no books can be sold except those which are purely religious. The Bench said obscenity should be gauged with respect to contemporary community standards that reflected the tolerance levels of an average reasonable person.
In deciding as to whether a matter charged as obscene what should be scene is the effect of the words must be judged from the standards of reasonable, strong-minded, firm and courageous men and not those of weak and vacillating minds.