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The law of obscenity and protection for depraving
All democracies have some restrictive freedom towards speech and expression that indulge responsibility, domain over authority, avoiding the monopoly power over media, and boon and bane for unnecessary perceptions. With the consistent development, media is losing the vulnerability of content and social accountability that gives the immense quantum of coverage for abnormal events, fake news, and non-reliable issue. The electronic form of media contains a vast domain over information and entrainment which widens the scope of violation of rights simultaneously educating the people.[i] It routinely increases the multi-fold situation which consequently results in offensive contention towards the modesty of people, prurient data, filthy content, and ghastly behaviour. The media act as a double-edged sword that produces as well as disseminates the information which impacts society in every social norm.[ii]
[Image Sources : Shutterstock]
‘According to the oxford dictionary – Obscene is categorized as offensive, deprave, or disgusting with an acceptation towards standards of dignity, decency, and morality.’ From an Indian perspective, it has always been taken a conservative approach toward the trait or purity of women, which preserves the status and reputation of the gender. There are considerably three different tests for checking the gesture of content –
- Miller’s case highlights the five distrustful branches of the conspicuous relevance towards the activities that enforce the community standards for appealing to the prurient interest. It was been depicted as a whole situation wherein work which have serious literature value, artistic belief, and scientific or political value cannot be upheld as obscene. Therefore, in this case, there is a collusion of freedom of speech and expression with the ethnicity of the circumstances.
- The legal test was later been, Therefore, overruled by the Miller case of Regina v. Hicklin which disclose the iniquity over confessional issues related to the reputation of the woman and stirring the impulsion of sexual thoughts. Benjamin Hicklin was a bureaucrat who was alleged for publication on ordering as recorder, revoked over the order of extermination, and ascertaining of immoral influences. However, it was later been held that the book will not be categorized under obscene material.
- Community standards are signified and applied over the territory of India, as per the saying – art, content or any kind of gesture can be pinpointed as obscene only if the theme is bifurcated as dominant in nature and taken up as offensive or opposed value which can affect the courtesy of an individual.[iii]
The portrayal of the women can be depicted as one of the most dignified aura, aesthetic manner, and respectful attire but on the other hand, they have been elaborated as vulgar or obscene depiction. Media have emerged as the major exploiter of indecent toward women, sometimes a systematic approach can be overdone only for selling and promoting purposes. For safeguarding and protecting the rights many constitutional obligations are provided to the people such as – Article 19 which provides the freedom of expressing themselves, section 292 – 294 of the Indian Penal Code for exhibiting the sale and circulation of the obscene publication, Section 3(c) of Dramatic Performances Act, that empowers state authority for prohibiting the corrupted performances, and Section 95 of Code of Civil Procedure authorizes the power to seize copies of the objectionable matter. However, many provisions in Indian law are vague in interpretation but will change in a matter of time.[iv]
Contemporary relevance with judgments
Usually, models or actors post their semi-nude photos which signify or give a message to society as a whole but concept of obscenity matter from case to case and fully depend on the mentality of the people. For instance – Milind Soman, Ranveer Singh, and Urfi Javed, these sensational icons were on social media for a while and have been alleged for obscene content or publication. However, in the judgment of Ajay Goswami v. UOI[v], it was gravely elaborated a new test which held readers responsible for taking the news in whichever manner they want, it is simultaneously exercised that care towards technology and caution should be taken while reading the content.[vi] There are few landmark pronouncements which is considered the backbone of the ‘law of obscenity’ –
- In the appeal of the Supreme court, the appellant was contended for selling an unexpurgated publication of ‘Lady Chatterley’s Lover’ under S. 292 of IPC, later it was dismissed on the ground of – violation of his right towards freedom of speech and expression, the provision was eventually held void, and specification was given that embodied some essential reasonable restriction. Herein it was also been specified that for promoting public integrity, decency, and morality one should not misuse Article 19 (2) of the constitution.[vii]
- The pronouncement distinguishes between two mere terms i.e., ‘vulgarity’ and ‘obscenity’, as everything which is implied in the source cannot be always upheld to be either of the concepts. The court held that – ‘Vulgarity which arose can be defined as a feeling or getting a sense of disgust, revulsion, or boredom but it does not result in depraving, corrupting act, or debasing the moral ethic by any reader. However, it was held that obscenity is elaborated as the tendency for depraving the mind and opening a path for immoral influence.[viii]
- In this case, the appellant was an editor working in the editor who was prosecuted for publishing a semi-nude photograph for supporting the anti-racism campaign. The appeal was quashed upholding that ‘nudity per se would never be considered as obscene, further applying the community standard test. The court held that there will be designed legal measures taken for exciting the sexual passion or towards the deprave mind accordingly.[ix]
Constitution and Courts grant everyone some basic rights for safeguarding the interest and value of individuals not for misusing or inviting the pose towards threats. The media act as a speculator for alarming about the policies that can give immediate attention to the cause but incidentally it is severely affecting the growth of the society. Unfortunately, this kind of coverage lesser the space for circulating positive news and create community conflict which increases the tension within society. The awareness can be created by – effective legislation, educating people, giving knowledge about every sector in a healthy manner, and providing training for handling sensitive issues. However, for reducing the corrupt mind there should be established legislative efforts which will compile social awareness, ethical values, and fighting against the menace that will stable dignity with courtesy.
Author: Garima Jargar, A Student at MNLU, in case of any queries please contact/write back to us via email to firstname.lastname@example.org or at Khurana & Khurana, Advocates and IP Attorney.
[i] “Mass Media Versus Obscenity: Laws in India”, available at, https://www.ijalr.in/2020/09/mass-media-versus-obscenity-laws-in.html (Last visited on 30.09.2022)
[ii] “Media and Obscenity”, available at, https://www.legalserviceindia.com/legal/article-7096-media-and-obscenity.html (Last visited on 30.09.2022)
[iii] “Obscenity laws in India”, available at, https://blog.ipleaders.in/obscenity-and-its-laws-in-india/#Related_case_laws (Last visited on 30.09.2022).
[iv] “Law of Obscenity and Freedom of Expression: Where to draw the Line” available at, https://www.scconline.com/blog/post/2022/07/21/law-of-obscenity-and-freedom-of-expression-where-to-draw-the-line/ (Last visited on 01.10.2022).
[v] Writ Petition (civil) 384 of 2005.
[vi] “Mass Media versus Obscenity: The Judicial Contribution” available at, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2661201 (Last visited on 01.10.2022).
[vii] Ranjit Udeshi v. State of Maharashtra AIR 1956 SC 881.
[viii] Samaresh Bose v. AmalMitra (1985) 4 SCC 289.
[ix] Aveek Sarkar v. State of West Bengal Criminal Appeal No. 902 of 2004.