Evolution of Obscenity from the Victorian Era to the Republic of India
Author - Mohit Kandpal
Despite obscenity being an age-old offence, it remains an open-ended debate till date. Since a lot of subjectivity lies in the definition as well as in the test for obscenity, what precisely falls under obscenity and what does not is still not very apparent. With the recent Rehana Fathima case coming to light wherein the activist has pleaded that nudity per se does not attract the charge of obscenity and has applied for anticipatory bail, this uncertainty resurfaces. However, Hon’ble Mr Justice Arun Mishra termed it as ‘obscenity clearly’ while rejecting her bail application. Provided this backdrop, the author feels it is the right time to ponder upon the law on obscenity and how it has evolved over the centuries.
Obscenity as an offence traces its history to the colonial era, and it was introduced as a restriction over freedom of speech and expression. Surprisingly it was one of the few laws which were implemented in both England & British India alike. Section 292 of the Indian Penal Code which came into being in 1860 was not the first time obscenity was penalised. Rather its criminalisation can be traced back to ‘An Act to Prevent the Sale or Exposure of Obscene Books and Pictures’ which received Governor-General of India’s assent in 1856. This offence was introduced in the Victorian era of moral conservatism and sought to preserve and shape the morals of the society, to a large extent. This, in a way, made the government a moral guardian to decide what the society shall be reading or viewing. However, with the passage of time, the courts took a more liberal stand in deciding what is obscene and what is not, which we will be discussing in some time. Another important fact to mention here is that merely purchasing or viewing of obscene material was not a crime; however, the selling or exhibiting of such material constituted a crime.
Test for obscenity and its evolution
In 1868 the Queen’s Court devised the ‘Hicklin Test’ in the case of Regina v Hicklin, and it is considered as the first authoritative test for obscenity. The Hicklin test constitutes of 6 significant ingredients which are as follows: -
a) ‘tendency to deprave and corrupt, or to suggest to readers thoughts of a most impure and libidinous character’;
b) ‘minds that are open to such immoral influences’; this was a significant aspect as the court did not test it from the reasonable person standpoint, but rather any person in whose hands the thing in dispute may land.
c) ‘the intent of the wrongdoer was to be presumed from the words which he had used. His actual intent was not relevant.’; this way even those who might have intended a social message or challenge to some practice might land up in trouble.
d) ‘prevailing contemporary circumstances of no relevance’; the social construct and the type of literature prevailing at the time was not considered as significant either.
e) ‘accessibility’; the fact that how easily the disputed material is available to the public was another factor to be considered.
f) Another crucial and rather draconian constituent of the test was that any portion, part, or passage of the material could be judged separately and the whole material can be considered obscene on its basis.
This Hicklin test was applied for several decades, not only in British India but also in the Republic of India. However, in 1964 the Ranjit Udeshi case came up before the Supreme Court of India, and this was the first-time that obscenity was dealt with by the Supreme Court. The Supreme Court, while upholding the Hicklin test, adopted some modifications to it. It held that sex or nudity by itself was not enough to corrupt or deprave minds and thus to hold something as obscene. Further, it was held that the work is to be taken as a whole and the obscene part has to be weighed against the whole work to determine whether the obscenity is so serious to term the whole work as obscene or not. Also, an obscene publication was considered to be justified if it was for public good unless obscenity was so serious so as to weigh down the public good.
Few years post this judgement, Section 292 of IPC was amended in 1969 to include ‘public good’ as an exception to charges of obscenity, which was in line with what was held in Ranjit Udeshi case. Further, materials kept ‘bona fide for religious purposes’ or sculptures on any ‘ancient monument’ were also excepted from the definition of obscenity. The amendment also requires that the material is to be considered as a whole, in contrast to the requirement under the Hicklin test.
Further, let’s have a look over a few more precedents that have had a crucial role in casting the law on obscenity. Another significant point to ponder upon is the usage of vulgar language and whether it shall constitute obscenity or not. In the case of Samaresh Bose v Amal Mitra the Supreme court was considering the question of whether a Bengali novel ‘Prajapati’ was obscene or not. The novel used vulgar language and acts which the trial court held to be obscene. However, the Supreme Court disapproved of the same. It was held that reference to kissing, descriptions of the female anatomy, and ‘suggestions of acts of sex’, by themselves, were insufficient to constitute obscenity. Vulgarity and obscenity were not to be confused. On similar lines in Chandrakant Kalyandas Kakodkar v. State of Maharashtra, a short story wherein the protagonist had sexual relationships with three ladies, was under consideration. Here also the court held that although the story was in bad taste, still it did not amount to obscenity. However, vulgarity & abusive language can amount to obscenity when directed against important historical figures such as Mahatma Gandhi, as was the case in Devidas Ramachandra Tuljapurkar v. State of Maharashtra wherein a Marathi poem, namely ‘Gandhi Mala Bhetala’ (‘Gandhi Met Me’) was under consideration and was held to be obscene by the Supreme court.
Another recent and very significant judgement that needs to be looked upon is Aveek Sarkar v. State of West Bengal, wherein the Supreme court was considering if a semi-nude photograph of renowned tennis player Boris Becker with his dusky fiancée was obscene or not. This judgement has a special significance since the Hicklin test was abandoned here and the Supreme Court held that the material cannot be judged by its effect on the most susceptible readers, rather, the court has to apply a ‘community standard test’. They further went on to hold that obscenity is to be judged from an average person’s point of view, having contemporary relevance. It also held that nudity cannot be held obscene unless it has the potential of exciting lustful thoughts. Another important issue was of the message or the context of the material. Even if something is obscene, still the message that it intends to deliver needs to be given due consideration. Here the pictures intended to address and raise awareness against a prevalent social evil, viz., Racism and thus the court dismissed the allegation of obscenity. A similar situation arose in the case of Bobby Art International v. Om Pal, wherein the objectionable scenes in the film ‘Bandit Queen’ were considered in the context of the film and thus were not considered obscene as they were required to convey the grief of the protagonist. It was held that the objectionable content was not to incite lust; rather, it was to create a sense of sympathy for the victim.
Legislations governing obscenity in India:
As already stated, the age-old provision governing obscenity is Section 292 of Indian Penal Code, but with the advent of technology, the modes of transmission & distribution are no longer limited to books, pamphlets, etc. Now web content is taking over the world and considering the same the Information Technology Act (hereinafter referred to as “IT Act”) was introduced in 2000, Sec. 67 of which deals with online obscenity. Just like Section 292, Section 67 also does not provide for a precise definition of what is obscene but punishes the publication & transmission of such material over the internet. The language used in the two sections is almost identical that is, “lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons” and hence the tests of obscenity as pronounced by the courts over the time will apply to instances under both the sections. However, one significant point regarding the IT Act is that it is a special act and contains a non-obstante clause that gives it an overriding effect over IPC. The Supreme court further clarified this in the case of Sharat Babu Digumarti v Government (NCT of Delhi) where it held that if an alleged offence involves an electronic record, then the IT Act comes into play. The offence gets out of the net of IPC. The special act will prevail in such cases, and the various provisions under that act will cover the offence under S. 292 of IPC as well.
Another point worth mentioning here is that while the various courts of the country have held that nudity or sex by itself cannot be regulated or prohibited under IPC, the IT Act under Section 67A prohibits the transmission or publication of materials containing sexually explicit act or conduct as well. This shows how the IT Act goes one step forward in terms of regulating decency & morality of the masses as compared to the Indian Penal Code.
Giving due consideration to the precedents established by the Supreme Court on the subject matter, a debate that persists is concerning the subjectivity that might remain in the courts’ decisions. The fact that for something to be considered obscene, it shall have the potential to excite lust in the readers or viewers makes obscenity subjective. As was rightly held by Kerala High Court also, “What may be obscene to some may be artistic to others; one man's vulgarity is another man's lyric”. Rehana Fathima’s case thus resurfaces this issue where she makes an argument of sending a social message. She claims that her video was to raise awareness around the issue of sex education and that the female body isn’t a taboo to be kept hidden. She argues that she intended to normalise the female body. While on the other hand, the Kerala High Court as well as the Supreme court of India has dismissed this argument of hers holding the act to be obscene. This process of weighing the obscenity with the message it tries to deliver is where subjectivity finds its place.
[The Author is a 3rd-year student from National Law University, Odisha.]
 Bar and Bench, Cannot agree that Sex Education should be taught like this: Kerala HC while dismissing Rehana Fathima's bail plea over controversial video, July 24, 2020, available at https://www.barandbench.com/news/litigation/cannot-agree-sex-education-can-be-taught-like-this-kerala-hc-rehana-fathima-bail-plea-dismissed (Last visited on September 7,2020).  Bar and Bench, “It will leave society in a very bad taste", Supreme Court dismisses anticipatory bail plea by activist Rehana Fathima, August 7, 2020, available at https://www.barandbench.com/news/litigation/it-will-leave-society-in-a-very-bad-taste-Supreme-court-dismisses-anticipatory-bail-plea-by-activist-rehana-fathima (Last visited on August 9,2020).  Regina v Hicklin, 1868 LR 3 QB 36.  Ranjit Udeshi v. State of Maharashtra, AIR 1965 SC 881.  Samaresh Bose v Amal Mitra, (1985) 4 SCC 289.  Chandrakant Kalyandas Kakodkar v. State of Maharashtra, (1969) 2 SCC 687.  Devidas Ramachandra Tuljapurkar v. State of Maharashtra, (2015) 6 SCC 1.  Aveek Sarkar v. State of West Bengal, (2014) 4 SCC 257.  Bobby Art International v. Om Pal, (1996) 4 SCC 1.  The Information Technology Act, 2000.  The Information Technology Act, 2000, §67.  Sharat Babu Digumarti v Government (NCT of Delhi), (2017) 2 SCC 18.  The Information Technology Act, 2000, §67A.  Felix M.A. v. P.B. Gangadharan, W.P.(C) No. 7778 of 2018 (Kerala H.C.) (Unreported).