Obscenity Law In India
1. Introduction
This paper looks into the need to reform outdated laws relating to obscenity in India. Laws which have been abused in order to restrict freedom of expression. The law covering obscenity is dealt with in the India Penal Code of 1860. Interestingly, these laws are relics of the colonial period and fundamentally at variance with the constitutional guarantees of freedom of expression. These laws relating to obscenity are directly inherited from British colonialism. A time where Britain experienced a period of what might be described as 'moral fundamentalist'.
One of the most controversial issue is balancing the need to protect society against the potential harm that may flow from obscene material, and the need to ensure respect for freedom of expression and to preserve a free flow of information and idea. The Constitution guarantees freedom of expression but in Article 19(2) it also makes it clear that the State may impose reasonable restriction in the interest of public decency and morality. The culminative effect of these provisions seems to sustain the legality of any act of the State which lawfully restrains the publication of 'obscene' material in India. The crucial question is, 'what is obscenity?'.
A brief study is done looking into the present obscenity law of India, the history of that law and the surrounding circumstances in which that law came into our statute book and the inadequacy of law. It further looks into the laws dealing with obscenity by different countries.
2. What the laws in India say?
The law relating to obscenity is laid down in Sec.292 of the Indian Penal Code which came about by Act 36 of 1969.
Sec.292 reads as follows:
Sale, etc., of obscene books, etc.-[(1)] For the purposes of sub-section (2) book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object, shall be deemed to be obscene, if it is lascivious or appeals to the prurient interest or if its effect, or (where it comprises two or more distinct items) the effects of any one of its items, is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely , having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.]
[(2) Whoever-
sells , lets to hire ,distributes, publicly exhibits or in any manner puts into circulation or for purposes of sale, hire, distribution public exhibition of circulation, makes produces, or has in
(a) Possession any obscene book, pamphlet, paper, drawing painting, representation or figure or any other obscene objects whatsoever, or
(b) Imports, exports or conveys any obscene objects for any of the purposes, aforesaid, on knowing or having reason to believe that such objects will be sold let to hire, distributed or publicly exhibited or in any manner put into circulation or
(c) takes part in or receives profit from any business in the course of which he knows or has reasons to believe that such an object are for any of the purposes aforesaid, made produced, purchased , kept, imported, exported, convey, publicly excited, or in any manner put into circulation, or
(d) advertises or makes known by any means whatsoever that any person is engaged or is ready to engage in any act which is an offence under this section, or that any such obscene object can be procured from or through any person, or
(e) Offers or attempts to do any act which is an offence under this section, shall be punished [on first conviction with imprisonment of either description for a term which may extend to two years, and with fine which may extend to two thousand rupees, and, in the event of a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and also with fine which may extend to five thousand rupees.]
[Exception.- this section does not extend to-
(a) any book, pamphlet, paper, writing, drawing, painting, representation of figure-
(i) The publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, writing, drawing, painting, representation or figure is in the interest of science, literature, art or learning or other objects of general concern, or
(ii) which is kept or used bona fide for religious purpose;
(b) any representation sculptured, engraved, painted or otherwise
represented on or in-
(i) any ancient monument within the meaning of the Ancient Monuments and Archaeological Sites and Remains Act,1958(24 of 58), or
(ii) any temple, or any car used for the conveyance of idols, or kept or used for any religious purpose.]]
3. Objects and Reasons
Section 292 of Act 8 of 19521 was amended by Act 36 of 1969. The objects and reason laid down by the Parliament for the amendment states as;
"Under the present sec.292 and sec.293 of the Indian Penal Code, there is a danger of publication meant for public good or for bonafide purpose of science, literature, art or any other branch of learning being declared as obscene literature as there is no specific provision in the act for exempting them from operations of those sections. The Act removes that lacuna so as to bring the law into conformity with modern practice in other civilized countries."
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.
4. What is Obscenity?
The concept of obscenity differs from country to country depending on the moral
standards of contemporary society.
The Encyclopedia definition of Obscenity states, 'By English law it is an indictable misdemeanor to show an obscene exhibition or to publish any obscene matter, whether it be writing or by pictures, effigy or otherwise.' The precise meaning of "obscene" is, however, decidedly ambiguous. It has been defined as something offensive to modesty or decency, or expressing or suggesting unchaste or lustful ideas or being impure, indecent or lewd".
In the United States, Pennsylvania Consolidated statutes in s. 5903. defines "Obscene." as
Any material or performance, if:
1. the average person applying contemporary community standards would find that the subject matter taken as a whole appeals to the prurient interest;
2. the subject matter depicts or describes in a patently offensive way, sexual conduct of a type described in this section; and
3. the subject matter, taken as a whole, lacks serious literary, artistic, political, educational or scientific value.
5. What do laws in other countries say?
United States
In 1973, the U.S Supreme Court in Miller v. California3, set down what it deemed to be appropriate standard in relation to obscenity:
The basic guidelines for the tier of fact must be: (a) whether " the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest….;(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and(c) whether the work, taken as a whole, lacks serious literary, artistic political, or scientific value.
Canada
One of the most progressive and liberal judgments on obscenity was Regina v. Butler4 by the Supreme Court of Canada. Some relevant issues discussed are noted below:
The Canadian Criminal Code defines obscene material as;
For the purposes of this Act, any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, horror, cruelty and violence, shall be deemed to be obscene. 5
The Supreme Court of Canada extensively interpreted the meaning of "undue exploitation, holding that the dominant test is a community standard one. However, it is the standard of tolerance, not taste that is relevant. What matters is not what Canadians think is right for themselves to see(but) what the community would (not) tolerate others being exposed to on the basis of the degree of harm that may flow from such exposure".6
The portrayal of sex coupled with violence will almost always constitute the undue exploitation of sex. Explicit sex, which is degrading or dehumanizing may be undue if the risk of harm is substantial. Finally, explicit sex that is not violent and neither degrading nor dehumanizing is generally tolerated in our society and will not qualify as the undue exploitation of sex unless it employs children in its production. 7
In order for the work or material to qualify as 'obscene' the exploitation of sex must only be its dominant characteristic, but such exploitation must be 'undue'. In determining when exploitation of sex will be 'undue', the courts formulated a workable test. The test being the 'community standard of tolerance' test.
In R v. Dominion News & Gifts, the court stated that the community standard test must necessarily respond to changing mores.
In R v. Butler, The Canadian Supreme Court held that the State could not restrict expression simply because it was distasteful or did not accord with dominant conceptions of what was appropriate.
South Africa In South Africa, legislators have opted for a detailed list of prohibited material. Schedule 1 of the 1996 Films and Publications Act, as amended, defines the XX Classification of prohibited publications as material, which contains a real or simulated visual presentation of:
a. child pornography;
b. explicit violent sexual conduct;
c. bestiality;
d. explicit sexual activity which degrades a person and which constituted incitement to cause harm; or
e. the explicit infliction of or explicit effect of extreme violence which constitutes incitement to cause harm.
Japan
In Koyama v.Japan, the Japanese Supreme Court ruled that a work could be judged "obscene" under Article 175 of the Constitution if "it aroused and stimulated sexual desire, offended a common sense of modesty or shame, and violated "proper concepts of sexual morality."
" . . . [obscene matter] is that which wantonly stimulates or arouses sexual desire or offends the normal sense of sexual modesty of ordinary persons, and is contrary to proper ideas of sexual morality."
1. Introduction
This paper looks into the need to reform outdated laws relating to obscenity in India. Laws which have been abused in order to restrict freedom of expression. The law covering obscenity is dealt with in the India Penal Code of 1860. Interestingly, these laws are relics of the colonial period and fundamentally at variance with the constitutional guarantees of freedom of expression. These laws relating to obscenity are directly inherited from British colonialism. A time where Britain experienced a period of what might be described as 'moral fundamentalist'.
One of the most controversial issue is balancing the need to protect society against the potential harm that may flow from obscene material, and the need to ensure respect for freedom of expression and to preserve a free flow of information and idea. The Constitution guarantees freedom of expression but in Article 19(2) it also makes it clear that the State may impose reasonable restriction in the interest of public decency and morality. The culminative effect of these provisions seems to sustain the legality of any act of the State which lawfully restrains the publication of 'obscene' material in India. The crucial question is, 'what is obscenity?'.
A brief study is done looking into the present obscenity law of India, the history of that law and the surrounding circumstances in which that law came into our statute book and the inadequacy of law. It further looks into the laws dealing with obscenity by different countries.
2. What the laws in India say?
The law relating to obscenity is laid down in Sec.292 of the Indian Penal Code which came about by Act 36 of 1969.
Sec.292 reads as follows:
Sale, etc., of obscene books, etc.-[(1)] For the purposes of sub-section (2) book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object, shall be deemed to be obscene, if it is lascivious or appeals to the prurient interest or if its effect, or (where it comprises two or more distinct items) the effects of any one of its items, is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely , having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.]
[(2) Whoever-
sells , lets to hire ,distributes, publicly exhibits or in any manner puts into circulation or for purposes of sale, hire, distribution public exhibition of circulation, makes produces, or has in
(a) Possession any obscene book, pamphlet, paper, drawing painting, representation or figure or any other obscene objects whatsoever, or
(b) Imports, exports or conveys any obscene objects for any of the purposes, aforesaid, on knowing or having reason to believe that such objects will be sold let to hire, distributed or publicly exhibited or in any manner put into circulation or
(c) takes part in or receives profit from any business in the course of which he knows or has reasons to believe that such an object are for any of the purposes aforesaid, made produced, purchased , kept, imported, exported, convey, publicly excited, or in any manner put into circulation, or
(d) advertises or makes known by any means whatsoever that any person is engaged or is ready to engage in any act which is an offence under this section, or that any such obscene object can be procured from or through any person, or
(e) Offers or attempts to do any act which is an offence under this section, shall be punished [on first conviction with imprisonment of either description for a term which may extend to two years, and with fine which may extend to two thousand rupees, and, in the event of a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and also with fine which may extend to five thousand rupees.]
[Exception.- this section does not extend to-
(a) any book, pamphlet, paper, writing, drawing, painting, representation of figure-
(i) The publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, writing, drawing, painting, representation or figure is in the interest of science, literature, art or learning or other objects of general concern, or
(ii) which is kept or used bona fide for religious purpose;
(b) any representation sculptured, engraved, painted or otherwise
represented on or in-
(i) any ancient monument within the meaning of the Ancient Monuments and Archaeological Sites and Remains Act,1958(24 of 58), or
(ii) any temple, or any car used for the conveyance of idols, or kept or used for any religious purpose.]]
3. Objects and Reasons
Section 292 of Act 8 of 19521 was amended by Act 36 of 1969. The objects and reason laid down by the Parliament for the amendment states as;
"Under the present sec.292 and sec.293 of the Indian Penal Code, there is a danger of publication meant for public good or for bonafide purpose of science, literature, art or any other branch of learning being declared as obscene literature as there is no specific provision in the act for exempting them from operations of those sections. The Act removes that lacuna so as to bring the law into conformity with modern practice in other civilized countries."
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.
4. What is Obscenity?
The concept of obscenity differs from country to country depending on the moral
standards of contemporary society.
The Encyclopedia definition of Obscenity states, 'By English law it is an indictable misdemeanor to show an obscene exhibition or to publish any obscene matter, whether it be writing or by pictures, effigy or otherwise.' The precise meaning of "obscene" is, however, decidedly ambiguous. It has been defined as something offensive to modesty or decency, or expressing or suggesting unchaste or lustful ideas or being impure, indecent or lewd".
In the United States, Pennsylvania Consolidated statutes in s. 5903. defines "Obscene." as
Any material or performance, if:
1. the average person applying contemporary community standards would find that the subject matter taken as a whole appeals to the prurient interest;
2. the subject matter depicts or describes in a patently offensive way, sexual conduct of a type described in this section; and
3. the subject matter, taken as a whole, lacks serious literary, artistic, political, educational or scientific value.
5. What do laws in other countries say?
United States
In 1973, the U.S Supreme Court in Miller v. California3, set down what it deemed to be appropriate standard in relation to obscenity:
The basic guidelines for the tier of fact must be: (a) whether " the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest….;(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and(c) whether the work, taken as a whole, lacks serious literary, artistic political, or scientific value.
Canada
One of the most progressive and liberal judgments on obscenity was Regina v. Butler4 by the Supreme Court of Canada. Some relevant issues discussed are noted below:
The Canadian Criminal Code defines obscene material as;
For the purposes of this Act, any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, horror, cruelty and violence, shall be deemed to be obscene. 5
The Supreme Court of Canada extensively interpreted the meaning of "undue exploitation, holding that the dominant test is a community standard one. However, it is the standard of tolerance, not taste that is relevant. What matters is not what Canadians think is right for themselves to see(but) what the community would (not) tolerate others being exposed to on the basis of the degree of harm that may flow from such exposure".6
The portrayal of sex coupled with violence will almost always constitute the undue exploitation of sex. Explicit sex, which is degrading or dehumanizing may be undue if the risk of harm is substantial. Finally, explicit sex that is not violent and neither degrading nor dehumanizing is generally tolerated in our society and will not qualify as the undue exploitation of sex unless it employs children in its production. 7
In order for the work or material to qualify as 'obscene' the exploitation of sex must only be its dominant characteristic, but such exploitation must be 'undue'. In determining when exploitation of sex will be 'undue', the courts formulated a workable test. The test being the 'community standard of tolerance' test.
In R v. Dominion News & Gifts, the court stated that the community standard test must necessarily respond to changing mores.
In R v. Butler, The Canadian Supreme Court held that the State could not restrict expression simply because it was distasteful or did not accord with dominant conceptions of what was appropriate.
South Africa In South Africa, legislators have opted for a detailed list of prohibited material. Schedule 1 of the 1996 Films and Publications Act, as amended, defines the XX Classification of prohibited publications as material, which contains a real or simulated visual presentation of:
a. child pornography;
b. explicit violent sexual conduct;
c. bestiality;
d. explicit sexual activity which degrades a person and which constituted incitement to cause harm; or
e. the explicit infliction of or explicit effect of extreme violence which constitutes incitement to cause harm.
Japan
In Koyama v.Japan, the Japanese Supreme Court ruled that a work could be judged "obscene" under Article 175 of the Constitution if "it aroused and stimulated sexual desire, offended a common sense of modesty or shame, and violated "proper concepts of sexual morality."
" . . . [obscene matter] is that which wantonly stimulates or arouses sexual desire or offends the normal sense of sexual modesty of ordinary persons, and is contrary to proper ideas of sexual morality."