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Who Knows What Is Obscene? I Know It When I See It.

Abhay Anturkar
13 Nov 2020 9:02 AM GMT
Who Knows What Is Obscene? I Know It When I See It.
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The offences relating to 'obscenity' are back in the news. Last week an FIR was registered against actor and model Milind Soman for running naked on a Goa beach. Mr Soman shared a picture of himself running nude on a beach to mark his 55th birthday. Around the same time, another complaint was filed with the Goa Police against the actor and model Poonam Pandey for shooting an 'obscene' video in Goa. On 11.11.2020, the Hon'ble Madhya Pradesh High Court refused to quash that the complaint filed against film and television producer Ekta Kapoor under Sections 284, 298 and 34 of the IPC and Sections 67 and 67-A of the I.T. Act.

Sections 292, 293 and 294 of the IPC provide for crimes relating to obscenity. Section 294 makes it an offence to sell, etc., obscene books, Section 293 makes it an offence to sell, etc. obscene objects to young persons and Section 294 provides for offences relating obscene acts and songs. Obscenity is a sine qua non for any of the aforementioned offences. However, the term obscene or obscenity have not been defined in the Indian Penal Code. Since obscenity itself is subjective, there is no clarity as to what is obscene and what is not.

The Queen's Bench Division made the earliest attempt to lay down a test or a guideline to assist in identifying the obscene nature of an act or a thing in The Queen v. Hicklin.[2] The Court was examining whether pamphlet entitled, "The Confessional Unmasked; shewing the depravity of the Romish priesthood, the iniquity of the Confessional, and the questions put to females in confession" was an "obscene" book. The pamphlet consisted of extracts taken from the writing of theologians on the doctrine and discipline of the Romish Church and particularly on the practice of auricular confession. About half of the pamphlet related to controversial questions and the latter half of the pamphlet was alleged to be grossly obscene, as pertaining to impure and filthy acts, words, and ideas. Hicklin was accused of selling the obscene pamphlet.

Cockburn, C.J. observed as under in the course of his judgment:

"…It is quite clear that the publishing an obscene book is an offence against the law of the land. It is perfectly true, as has been pointed out by Mr Kydd, that there are a great many publications of high repute in the literary productions of this country the tendency of which is immodest, and, if you please, immoral, and possibly there might have been subject-matter for indictment in many of the works which have been referred to. But it is not to be said, cause there are in many standards and established works objectionable passages, that therefore the law is not as alleged on the part of this prosecution, namely, that obscene works are the subject matter of indictment; and I think the test of obscenity is this, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands are publication of this sort may fall…"

This test laid down by Cockburn, C.J. in Hicklin is popularly referred to as the Hicklin Test. It postulated that a publication Has to be judged for obscenity based on isolated passages of a work considered out of context and judged by their apparent influence on most susceptible readers, such as children or weak-minded adults.[3]

The United States, however, made a marked departure from the Hicklin test. In Roth v. the United States,[4] the constitutionality of a criminal obscenity statute was in question before The Supreme Court of the United States. Rot conducted business in New York in the publication and sale of books, photographs and magazines. He used circulars and advertising matter to solicit sales. He was convicted by a jury in the District Court for the Southern District of New York upon 4 counts of a 26 counts indictment charging him with mailing obscene circulars and advertising, and an obscene book, in violation of the federal obscenity statute. The conviction was affirmed by the appellate Court. The question which The Supreme Court was called upon to answer was whether obscenity is utterance within the area of protected speech and press.

Justice Brennan, who delivered the opinion of the Court, took into consideration the earlier pronouncements and the provisions of The First Amendment to the Constitution of the United States, and ultimately held that obscenity is not within the area of constitutionally protected speech or press.[5] He further observed as under:

"18. The early leading standard of obscenity allowed the material to be judged merely by the effect of an isolated except upon particularly susceptible persons. Regina v. Hicklin, (1868) L.R. 3 Q.B. 360. Some American courts adopted this standard, but later decisions have rejected it and substituted this test: whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interests. The Hicklin test, judging obscenity by the effect of isolated passages upon the most susceptible persons, might well encompass material legitimately treating with sex, and so it must be rejected as unconstitutionally restrictive of the freedoms of speech and press. On the other hand, the substituted standard provides safeguards adequate to withstand the charge of constitutional infirmity."

[Emphasis supplied]

Thus, the community standards test, was held by the Supreme Court of the United States to be more appropriate than applying the Hicklin test to determine whether something was obscene or not.

The decision in Roth was followed by another decision of the Supreme Court of United States in Jacobellis v. State of Ohio.[6] Nico Jacobellis, manager of a motion picture theatre in Cleveland Heights, Ohio, was convicted on two counts of possessing and exhibiting an obscene film viz. 'Les Amants' ('The Lovers'). It was contended before the Hon'ble Supreme Court that the determination whether particular motion picture, book, or other work of expression is obscene can be treated as a purely factual judgment on which a jury's verdict is all but conclusive, or that in any event the decision can be left essentially to the lower Courts, with the Supreme Court exercising only a limited review. Justice Brennan considered the aforesaid an observed as under:

"3. …The suggestion is appealing, since it would lift from our shoulders a difficult, recurring, and unpleasant task. But we cannot accept it. Such an abnegation of judicial supervision in this field would be inconsistent with our duty to uphold the constitutional guarantees. Since it is only 'obscenity' that is excluded from the constitutional protection, the question whether a particular work is obscene necessarily implicates an issue of constitutional law…Such an issue, we think, must ultimately be decided by this Court…"

While discussing the proper standard for determining obscenity, Justice Brennan observed that the community standard test laid down in Roth, was 'not perfect'.[7] But at the same time, he also observed that "…any substitute would raise equally difficult problems…". Thus, he ultimately adhered to the community standard test.

More interesting is the observation of Justice Stewart, who, while concurring, held:

"18. It is possible to read the Court's opinion in Roth v. United States and Albers v. California, 345 U.S. 476, 77 S. Ct. 1304, 1 L.Ed.2d 1498, in a variety of ways. In saying this, I imply no criticism of the Court, which in those cases was faced with the task of trying to define what may be indefinable. I have reached the conclusion, which I think is confirmed at least by negative implication in the Court's decisions since Roth and Alberts, that under the First and Fourteenth Amendments criminal laws in this area are constitutionally limited to hard-core pornography. I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that."

Perhaps, Justice Stewart's non-attempt to define obscenity is more accurate than others' attempt to define it in an inaccurate manner.

A Five-Judges Bench of the Supreme Court of India was called upon to examine whether a book is obscene or not in the matter of Ranjit D. Udeshi v. State of Maharashtra.[8] Udeshi, an owner of a book stall in Mumbai, was prosecuted along with other partners, under section 292 of the IPC for being in possession for the purpose of sale of an obscene book called Lady Chatterley's Lover.

The Court thereafter observed that the Indian Penal Code does not define the word 'obscene' and this delicate task of how to distinguish between that which is artistic and that which is obscene has to be performed by Courts, and in the last resort by the Supreme Court. The test which the Supreme Court proposed to evolve was to be of a general character which would admit of a just application from case to case by indicating a line of demarcation not necessarily sharp, but sufficiently distinct to distinguish between that which is obscene and this which is not. Having said so, the Bench also observed that '…treating with sex and nudity in art and literature cannot be regarded as evidence of obscenity without something more'.[9]

The Court considered the aforementioned English decision in Hicklin and the aforementioned American decision in Roth. The Court observed that the Hicklin Test had been uniformly applied in India.[10] Ultimately, however, the test laid down by the Court in Ranjit D. Udeshi is as under:

"22. … In our opinion, the test to adopt in our country (regards being had to our community 'mores') is that obscenity without a preponderating social purpose or profit cannot have the constitutional protection of free speech and expression and obscenity is treating with sex in a manner appealing to the carnal side of human nature, or having that tendency. Such a treating with sex is offensive to modesty and decency but the extent of such appeal in a particular book etc., are matters for consideration in each individual case."

The meaning of the term 'obscene' came up for consideration before the Supreme Court of India in Shri Chandrakant Kalyandas Kakodkar v. State of Maharashtra and Others[11]. In Kakodkar, the Supreme Court took into consideration the English decision in Hicklin and the Indian decision in Udeshi and held that it was the duty of the Court to consider the obscene matter by taking an overall view of the entire work and to determine whether the obscene passages are so likely to deprave and corrupt those whose minds are open to such influences and in whose hands the book is likely to fall.

The law relating to obscenity has not changed too much since Ranjit Udeshi. The tests laid down by the Constitution Bench continued to be applied to individual cases by different Court. However, an important judgment came in the form of Aveek Sarkar v. State of West Bengal[12]. Aveek Sarkar was the editor of the magazine Sports World which had published an article with a picture of Boris Becker, a world-renowned tennis player, posing nude with his dark-skinned fiancée Barbara Feltus, a film actress, but Boris Becker covering his fiancee's breasts with his hands. The article conveyed a message to the people at large of Boris Becker being a strident protester against the pernicious practice of apartheid.

A practising lawyer filed a complaint under Section 292 against Aveek Sarkar. The Supreme Court discussed the decision in Hicklin. It observed as under:

"20. The Hicklin test postulated that a publication has to be judged for the obscenity based on isolated passages of a work considered out of context and judged by their apparent influence on most susceptible readers, such as children or weak-minded adults. The United States, however, made a marked departure. Of late, it felt that the Hicklin test is not correct test to apply to judge what is obscenity. In Roth v. United States, the Supreme Court of United States directly deal with the issue of obscenity as an exception to freedom of speech and expression. The Court held that the rejection of "obscenity" was implicit in the First Amendment. Noticing that sex and obscenity were held not to be synonymous with each other, the Court held that only those sex-related materials which had the tendency of "exciting lustful thoughts" were found to be obscene and the same has to be judged from the point of view of an average person by applying contemporary community standards.

23. We are also of the view that Hicklin test is not the correct test to be applied to determine "what is obscenity". Section 292 of the Penal Code, of course, uses the expression "lascivious and prurient interests" or its effect. Later, it has also been indicated in the said section of the applicability of the effect and the necessity of taking the items as a whole and on that foundation where such items would tend to deprave and corrupt persons who are likely, having regard to all the relevant circumstances, to read, see or hear the matter contained or embodied in it. We have, therefore, to apply the "community standard test" rather than the "Hicklin test" to determine what is "obscenity"…"

The Court also relied on its decision in Bobby Art International v. Om Pal Singh Hoon[13] where it was called upon to deal with the question of obscenity in the context of a film called Bandit Queen. In Bobby Art International the Court pointed out that the so-called objectionable scenes have to be considered in the context of the message that the film was seeking to transmit in respect of social menace of torture and violence against a helpless female child which transformed her into a dreadful dacoit. In other words, the Court looked at the message that the allegedly obscene work sought to convey. Ultimately, the picture of Borris Becker and Barbara Feltus was held to be not obscene.

From the aforesaid discussion, one thing is clear: obscenity does not and cannot have a definition which may meet the requirement of each and every case. It has to be examined in a fact-specific manner. The tests laid down by the Courts are mere guidelines. The guidelines themselves are subjective. For instance, a man running naked on a beach to promote the idea of physical fitness may be applauded in metropolitan cities, but a woman expressing her sexuality in an artistic manner may be looked down upon by the very same society. Perhaps the time has come for the law makes to revisit the provisions relating to "obscenity" and amend them in a manner which would be in consonance with the evolving social mores and expanding the scope of speech. After all, as a democracy, it is our duty to promote speech and expression.
Views are personal.
(Author is a practicing Lawyer at the Supreme Court of India)

[1] Judgment and order dated 11.11.2020 in M.Cr.C.No. 28386/2020

[2] (1868) LR 3 QB 360

[3] Per K.S.P. Radhakrishnan, J. in Aveek Sarkar and Another v. State of West Bengal and Others, (2014) 4 SCC 257 at para 20.

[4] 1957 SCC OnLine US SC 106

[5] Ibid at Para 12.

[6] 1964 SCC OnLine US SC 156

[7] Ibid at para 6

[8] AIR 1965 SC 881

[9] Ibid at para 16.

[10] Ibid at para 15

[11] (1969) 2 SCC 687

[12] (2014) 4 SCC 257

[13] (1996) 4 SCC 1


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