(Daily News Scan - DNS English) Obscenity Law in India : Why in News
Recently, actor Milind Soman was booked by Goa police for obscenity. He had posted some nude photographs of himself on the social media platform after which all this happened. This is not the first time that a case like this has happened with a celebrity. Taking this issue into account,
In this DNS, we will talk about, Indian Law about obscenity, what is considered to be obscene and also talk about freedom of expression
Let us first understand what is called as obscene
- The Oxford dictionary defines obscene as ‘offensive or disgusting by accepted standards of morality and decency’.
- But on the contrary for lawyers, the meaning of ‘obscene’ is not the same. For instance, a book or object to be obscene, Section 292 of the IPC says it must be lascivious or prurient or have the effect of depraving or corrupting someone. The terms ‘lascivious’, ‘prurient’, ‘deprave’ and ‘corrupt’ have not been clearly defined, leaving room for interpretation by courts.
- While the courts, for their part, have developed tests to determine whether something is ‘obscene’.
- In 1965, the Supreme Court adopted the Victorian-era Hicklin test. The test assessed obscenity by the standard of someone who was open to immoral influences and was likely to be corrupted or depraved by the material in question. When approached from this angle, a wide range of material could be ‘obscene’.
- Over the years, the judiciary has narrowed the scope of obscenity. In 2014, the Supreme Court did away with the British Hicklin test and adopted the American Roth test.
- According to this test, obscenity was to be evaluated like an average person would, applying contemporary community standards.
- The contemporary community standards test takes into account the changing values in society. The things that were obscene a century or even a decade ago, need not be obscene now.
What does Indian law say about obscenity
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Section 294 of the Indian Penal Code (IPC) punishes obscene acts or words in a public place.
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To be considered a crime, the obscenity must cause “annoyance to others”. A person convicted under this law can face up to three months imprisonment. Similarly, obscene books are also criminalised under Section 292. The law on obscenity has evolved with the advent of the Internet and social media.
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Under Section 67 of the Information Technology Act, anyone who publishes or transmits obscene material in electronic form can be punished.
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Obscenity laws in India have been there since a very long time. They have been used in colonial India against writers such as Saadat Hasan Manto and Ismat Chughtai whose works traversed themes of sexuality, including female sexuality.
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From novels to biopics along with comedy shows there have been allegations of obscenity against all kinds of art and popular culture.
What about freedom of expression
- The right to freedom of speech and expression is not absolute. Article 19 of the Constitution of India, which guarantees the right also provides for reasonable restrictions on various grounds, including that of decency and morality. This means that free speech has to be balanced against the contemporary community standards of morality when it comes to penalising obscene acts or content.
- Indian courts have often settled the debate between morality and freedom in favour of artistic freedom.
- In some cases It is observed that content perceived as obscene by some and artistic by others cannot be a ground to jail a person.
