Recently, we have seen a surfeit of criminal cases involving alleged obscenity in public. Despite the fundamental right to freedom of speech and expression enshrined in article 19(1) (a) of the constitution of India, noted artists and actors have been charged under section 292 of the Indian Penal Code. Indian law on obscenity is often misused in the pursuit of moral interests.
Rights v morals
Typical of this is a case against one of India’s famous contemporary artists, MF Husain, for his painting of Bharat Mata or Mother India. Dismissing the case the court said, “A painter has his own perspective of looking at things, and it cannot be the basis of initiating criminal proceedings against him.” Another example is the writ petition to quash the certificate of exhibition awarded to the film Bandit Queen, which was based on a book that has been freely available since 1991. A single judge of Delhi High Court quashed the certificate and on appeal a division bench of the same court upheld the quashing. However, the Supreme Court reversed the decision, holding that the censor board, which is an expert body capable of judging public reactions to the film, had viewed the film in “true perspective” and granted the film an “A” certificate and its decision should be followed.
An exception to the fundamental right of free speech and expression guaranteed under article 19(1)(a) of the constitution are laws that impose reasonable restrictions in the interest of decency and morality. These vague and changeable notions differ between societies and depend on the cultural values and moral standards that shape the history and society of a country.
In India “obscenity” offences are listed under section 292 of the Indian Penal Code. “Obscenity” is defined as that which is “lascivious or appeals to prurient interest” or which has the tendency to “deprave” and “corrupt” those who are likely to be exposed to it.
The courts have chosen to adopt the old English Hicklin’s test: “whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and in whose hands a publication of this sort may fall”. This test of obscenity was laid down in the Hicklin case in 1869, but has not been used in England since the enactment of the Obscene Publications Act 1959.
Interestingly in 1965 the Supreme Court of India chose to adopt it in the case of Ranjit D Udeshi v State of Maharashtra, when the definition of obscenity came up for consideration for the first time. The court felt that the Hicklin’s test should be used as the test makes the court a judge of obscenity and emphasizes the potential of the impugned object to deprave and corrupt by immoral influences.
In that case Udeshi was prosecuted along with the other partners of a bookstall who were in possession (for the purposes of sale) of the unexpurgated edition of the book Lady Chatterley’s Lover. Focusing solely on the impugned passages, the Supreme Court said that where art and obscenity are mixed, what must be seen is whether the artistic, literary or social merit of the work in question outweighs its obscene content. The element of art must overshadow the obscenity or make it so trivial and inconsequential that it can be ignored.
As standards vary widely in a socially and culturally disparate country like India, it is very difficult to straitjacket notions of decency, morality and obscenity. Society must guard itself against state prescribed morality and must lean towards freedom of speech and expression. Courts should be vigilant while upholding ideas such as “decency” and “morality”. Something that is different may cause discomfort and unpleasantness, but that in itself cannot be a ground to curb its expression, stop people speaking of it, decide it is obscene and ban it. Moreover, the internet age and the breakdown of traditional barriers make censorship increasingly ineffective.
Discouraging moral policing
Amendments such as that of section 69A of the Information Technology Act, 2000, which came into effect on 27 October 2009, have raised the bar for the government to block obscenities on websites. The government can still block such websites, but only if they create a public order problem. A minor but critical difference between section 69A and the earlier version of section 69 means that websites can be barred only on five specific grounds – sovereignty and integrity of India, defence of India, security of the state, friendly relations with foreign states and public order. Earlier, the government could ban websites for the purpose of “preventing incitement to the commission of any cognizable offence” including obscenity.
Law and morality must remain exclusive of each other as far as possible. India is rich in art and culture and in this age of modernization and liberalization, we should be progressive and tolerant while embracing different thoughts and ideas.
Mohit Wadhwa is an associate at Lall Lahiri & Salhotra, an IP boutique based in Gurgaon.
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