abhishreshthaa
Abhijeet S
Analyzing the Indian Law
(a). Though the amendment of 1969 brought about changes to obscenity law, the primary object of the 1969 amendment of sec.292 was to prevent circulation of and traffic in obscene literature. It was specifically to restrict communication of certain types of materials based on their content. The amendment did not still lay down the definition of obscenity.
(b). The present provision is so vague that it becomes difficult to apply it. The purposeful omission of the definition of obscenity has led to attack of sec.292 of the Indian penal Code as being too vague to qualify as a penal provision. It is quite unclear what the provisions mean. This unacceptably large 'grey area', common in laws restricting sexual material, would appear to result not from a lack of capacity or effort on the part of drafters or legislators. Rather, it would seem to be the consequence of an explicit desire to include inherently nebulous concepts within these laws so as to enable application whenever public concern is raised in relation to certain material. This should stir a major uneasiness to protect against politically-motivated restrictions of this sort.
(c). The test here is whether the law 'is so obscure' as to be incapable of interpretation with any degree of precision using ordinary tools.
The obscenity legislation and jurisprudence prior to the enactment of Act 36 of 1969 were concerned with prohibiting 'immoral influences' of obscene publications and safeguarding the moral individual into whose hands such works could fall. It has to be kept in mind that to impose a certain standard of public and sexual morality, solely because it reflects the conventions of a given community, is inimical to the exercise and enjoyment of individual freedoms, which forms the basis of our Constitution.
(d). The enactment of sec. 292 by the legislative, prohibited such material on the belief that they had a detrimental impact on the individual exposed to them and consequently on society as a whole. Our understanding of the harms caused by these materials has developed considerably since that time; however this does not detract from the fact that the purpose of this legislation remains, as was in 1969, the protection of society from harms caused by the exposure to obscene materials. In 1969, the harm to society caused by publication and circulation of obscene material may well have been defined more strictly in terms of public morality.
(e). The Supreme Court of India has time and again adopted the test of obscenity laid down by Cockburn CJ2. The test of obscenity is , '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.'
But these makes the court the judge of obscenity in relation to an impugned book, or article, or newspaper and (which) lays emphasis on the potentiality of the impugned object to deprave and corrupt by immoral influences.
Interestingly, this test of obscenity was laid down in the Hicklin case in 1869 which remains a part of obscenity jurisprudence in India today.
(f). The legislative chose to leave sec.292 to open ends and by doing so left the criteria for application of standards to the judges. It is not the function of the judge to define material which are to be proscribed by law. The present law which fails to define obscenity with precision is too arbitrary and too vague.
(a). Though the amendment of 1969 brought about changes to obscenity law, the primary object of the 1969 amendment of sec.292 was to prevent circulation of and traffic in obscene literature. It was specifically to restrict communication of certain types of materials based on their content. The amendment did not still lay down the definition of obscenity.
(b). The present provision is so vague that it becomes difficult to apply it. The purposeful omission of the definition of obscenity has led to attack of sec.292 of the Indian penal Code as being too vague to qualify as a penal provision. It is quite unclear what the provisions mean. This unacceptably large 'grey area', common in laws restricting sexual material, would appear to result not from a lack of capacity or effort on the part of drafters or legislators. Rather, it would seem to be the consequence of an explicit desire to include inherently nebulous concepts within these laws so as to enable application whenever public concern is raised in relation to certain material. This should stir a major uneasiness to protect against politically-motivated restrictions of this sort.
(c). The test here is whether the law 'is so obscure' as to be incapable of interpretation with any degree of precision using ordinary tools.
The obscenity legislation and jurisprudence prior to the enactment of Act 36 of 1969 were concerned with prohibiting 'immoral influences' of obscene publications and safeguarding the moral individual into whose hands such works could fall. It has to be kept in mind that to impose a certain standard of public and sexual morality, solely because it reflects the conventions of a given community, is inimical to the exercise and enjoyment of individual freedoms, which forms the basis of our Constitution.
(d). The enactment of sec. 292 by the legislative, prohibited such material on the belief that they had a detrimental impact on the individual exposed to them and consequently on society as a whole. Our understanding of the harms caused by these materials has developed considerably since that time; however this does not detract from the fact that the purpose of this legislation remains, as was in 1969, the protection of society from harms caused by the exposure to obscene materials. In 1969, the harm to society caused by publication and circulation of obscene material may well have been defined more strictly in terms of public morality.
(e). The Supreme Court of India has time and again adopted the test of obscenity laid down by Cockburn CJ2. The test of obscenity is , '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.'
But these makes the court the judge of obscenity in relation to an impugned book, or article, or newspaper and (which) lays emphasis on the potentiality of the impugned object to deprave and corrupt by immoral influences.
Interestingly, this test of obscenity was laid down in the Hicklin case in 1869 which remains a part of obscenity jurisprudence in India today.
(f). The legislative chose to leave sec.292 to open ends and by doing so left the criteria for application of standards to the judges. It is not the function of the judge to define material which are to be proscribed by law. The present law which fails to define obscenity with precision is too arbitrary and too vague.