abhishreshthaa
Abhijeet S
The Indian Penal Code on obscenity grew out of the English obscenity law which made court the guardian of public morals. It is important that where bodies exercise discretion, which may interfere in the enjoyment of constitutional rights, that discretion must be subject to adequate law. The effect of provisions granting broad discretionary regulatory powers is unforeseeable and they are open to arbitrary abuse.
In Canada, the Ontario High Court held:
t is not enough to authorize a board to censor or prohibit the exhibition of any film of which it disapproves. That kind of authority is not legal for it depends on the discretion of an administrative tribunal. However dedicated, competent and well-meaning the board may be, that kind of regulation cannot be considered as "law". It is accepted that law cannot be vague, undefined, and totally discretionary; it must be ascertainable and understandable. Any limits placed on the freedom of expression cannot be left to the whim of an official; such limits must be articulated with some precision or they cannot be considered to be law.10
The South African Constitutional Court has clearly pointed to the dangers of granting excessive discretion to executive or administrative authorities:
It is incumbent upon the legislature to devise precise guidelines if it wishes to regulate sexually explicit material. Especially in light of the painfully fresh memory of the executive branch of government ruthlessly wielding its ill-checked powers to suppress political, cultural, and, indeed, sexual expression, there is a need to jealously guard the values of free expression embodied in the Constitution of our fledgling democracy.11
In Samaresh Bose v. Amal Mitra12 it was observed by the Supreme Court:
"The concept of obscenity is mouled to a very great extent by the social outlook of the people who are generally expected to read the book. It is beyond dispute that the concept of obscenity usually differs from country to country depending on the standards of morality of contemporary society in different countries. In our opinion, in judging the question of obscenity, the Judge in the first place should try to place himself in the position of the author and from the view point of the author the judge should thereafter place himself in the position of a reader of every age group in whose hands the books is likely to fall and should try to appreciate what kind of possible influence the book is likely to have in the minds of the reader. The judge should thereafter apply his judicial mind dispassionately to decide whether the book in question can be said to be obscene within the meaning of S.292, IPC by an objective assessment of the book as a whole and also of the passage complained of as obscene separately.
This is one of the few liberal judgments the courts have given. The point to worry about is the power given to the judge to decide what he thinks is obscenity.
The idea as to what is deemed obscene varies from age to age, from region to region, and from person to person. Unless a specific definition is laid down as a statute, there is a danger of strict interpretation which would lead to a direct clash with the constitutional guarantee of freedom of expression.
8. International obligation.
The Constitution of India guarantees everyone the right to freedom of expression. India is also a party to the International Covenant on Civil and Political Rights and therefore bound to respect the right to freedom of expression guaranteed by Article 19 thereof, which states:
1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds regardless of frontiers, either orally, in writing or in print, in form of art, or through any other media of his choice.
The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities .It may therefore be subject to;
1. Certain restrictions, but these shall only be such as are provided by law and are necessary
(a) For respect of the rights or reputation of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals.
Both national and international courts have recognized that freedom of expression is essential to respect for human rights and the maintenance and progress of a democratic society. For example, the European Court of Human Rights has stated:
Freedom of expression constitutes one of the essential foundations of [a democratic] society, one of the basic conditions for its progress and for the development of every man.... t is applicable not only to 'information' or 'ideas' that are favorably received or regarded as inoffensive or as a matter of indifference, but also to those which offend, shock or disturb the State or any other sector of the population. Such are the demands of pluralism, tolerance and broadmindedness without which there is no 'democratic society'.13
9. Is the restriction reasonable in a democratic country?
Under the European Convention of Human Rights, in order to determine whether a restriction was necessary in a democratic society, the court examines whether the interference:
Corresponded to a pressing social need', whether it was 'proportionate to the legitimate aim pursued', and whether the reasons given by the national authorities to justify it are 'relevant and sufficient'.
10. Recommendation
The following should be kept in mind while framing a definition on obscenity.
(a). The definition should be clear. Time and again our courts have tried to interpret obscenity basing on the facts and circumstances. But the attempt to provide exhaustive instances of obscenity has been shown to fail. The most practicable alternative is to strive towards a more abstract definition of obscenity which is contextually sensitive and responsive to progress in the knowledge and understanding of the phenomenon to which the legislation is directed.
(b). While coming up with a definition it should be kept in mind that:
Obscenity law should avoid using vague and subjective terms, such as 'indecent' 'absence' and 'harmful to public morals', without providing further clarification. Vagueness is dangerous.
(c). Obscenity restrictions must be aimed at preventing real harm and not simply at preventing 'offence to public sensibilities'. Obscenity laws may only restrict material which can be shown to be harmful. Merely offensive material should not be prohibited. ( Harm here could mean that it predisposes persons to act in an antisocial manner as, for example, the physical or mental mistreatment of women by men.)
(d). It is imperative to distinguish between 'offensive' material from material that is actually harmful, only allowing restrictions which have as their objective the prevention of harm.
(e). Moral grounds should be concrete problems such as life, harm, well-being,etc and not merely differences of opinion or of taste.
(f). A 'community standard of tolerance' test should be taken into consideration. Community standards must be contemporary. Times changes, and ideas change with them. It should be a standard of the community as a whole which must be considered and not of a small segment of a community.
The standards of contemporary society in India is fast changing. What one has to see is whether a class, and not an isolated case into whose hands the newspaper or article falls suffer in their moral outlook or become depraved by reading it or might have impure and lecherous thoughts aroused in their minds. The charge of obscenity must, therefore, be judged from these aspect.14
In Canada, the Ontario High Court held:
t is not enough to authorize a board to censor or prohibit the exhibition of any film of which it disapproves. That kind of authority is not legal for it depends on the discretion of an administrative tribunal. However dedicated, competent and well-meaning the board may be, that kind of regulation cannot be considered as "law". It is accepted that law cannot be vague, undefined, and totally discretionary; it must be ascertainable and understandable. Any limits placed on the freedom of expression cannot be left to the whim of an official; such limits must be articulated with some precision or they cannot be considered to be law.10
The South African Constitutional Court has clearly pointed to the dangers of granting excessive discretion to executive or administrative authorities:
It is incumbent upon the legislature to devise precise guidelines if it wishes to regulate sexually explicit material. Especially in light of the painfully fresh memory of the executive branch of government ruthlessly wielding its ill-checked powers to suppress political, cultural, and, indeed, sexual expression, there is a need to jealously guard the values of free expression embodied in the Constitution of our fledgling democracy.11
In Samaresh Bose v. Amal Mitra12 it was observed by the Supreme Court:
"The concept of obscenity is mouled to a very great extent by the social outlook of the people who are generally expected to read the book. It is beyond dispute that the concept of obscenity usually differs from country to country depending on the standards of morality of contemporary society in different countries. In our opinion, in judging the question of obscenity, the Judge in the first place should try to place himself in the position of the author and from the view point of the author the judge should thereafter place himself in the position of a reader of every age group in whose hands the books is likely to fall and should try to appreciate what kind of possible influence the book is likely to have in the minds of the reader. The judge should thereafter apply his judicial mind dispassionately to decide whether the book in question can be said to be obscene within the meaning of S.292, IPC by an objective assessment of the book as a whole and also of the passage complained of as obscene separately.
This is one of the few liberal judgments the courts have given. The point to worry about is the power given to the judge to decide what he thinks is obscenity.
The idea as to what is deemed obscene varies from age to age, from region to region, and from person to person. Unless a specific definition is laid down as a statute, there is a danger of strict interpretation which would lead to a direct clash with the constitutional guarantee of freedom of expression.
8. International obligation.
The Constitution of India guarantees everyone the right to freedom of expression. India is also a party to the International Covenant on Civil and Political Rights and therefore bound to respect the right to freedom of expression guaranteed by Article 19 thereof, which states:
1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds regardless of frontiers, either orally, in writing or in print, in form of art, or through any other media of his choice.
The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities .It may therefore be subject to;
1. Certain restrictions, but these shall only be such as are provided by law and are necessary
(a) For respect of the rights or reputation of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals.
Both national and international courts have recognized that freedom of expression is essential to respect for human rights and the maintenance and progress of a democratic society. For example, the European Court of Human Rights has stated:
Freedom of expression constitutes one of the essential foundations of [a democratic] society, one of the basic conditions for its progress and for the development of every man.... t is applicable not only to 'information' or 'ideas' that are favorably received or regarded as inoffensive or as a matter of indifference, but also to those which offend, shock or disturb the State or any other sector of the population. Such are the demands of pluralism, tolerance and broadmindedness without which there is no 'democratic society'.13
9. Is the restriction reasonable in a democratic country?
Under the European Convention of Human Rights, in order to determine whether a restriction was necessary in a democratic society, the court examines whether the interference:
Corresponded to a pressing social need', whether it was 'proportionate to the legitimate aim pursued', and whether the reasons given by the national authorities to justify it are 'relevant and sufficient'.
10. Recommendation
The following should be kept in mind while framing a definition on obscenity.
(a). The definition should be clear. Time and again our courts have tried to interpret obscenity basing on the facts and circumstances. But the attempt to provide exhaustive instances of obscenity has been shown to fail. The most practicable alternative is to strive towards a more abstract definition of obscenity which is contextually sensitive and responsive to progress in the knowledge and understanding of the phenomenon to which the legislation is directed.
(b). While coming up with a definition it should be kept in mind that:
Obscenity law should avoid using vague and subjective terms, such as 'indecent' 'absence' and 'harmful to public morals', without providing further clarification. Vagueness is dangerous.
(c). Obscenity restrictions must be aimed at preventing real harm and not simply at preventing 'offence to public sensibilities'. Obscenity laws may only restrict material which can be shown to be harmful. Merely offensive material should not be prohibited. ( Harm here could mean that it predisposes persons to act in an antisocial manner as, for example, the physical or mental mistreatment of women by men.)
(d). It is imperative to distinguish between 'offensive' material from material that is actually harmful, only allowing restrictions which have as their objective the prevention of harm.
(e). Moral grounds should be concrete problems such as life, harm, well-being,etc and not merely differences of opinion or of taste.
(f). A 'community standard of tolerance' test should be taken into consideration. Community standards must be contemporary. Times changes, and ideas change with them. It should be a standard of the community as a whole which must be considered and not of a small segment of a community.
The standards of contemporary society in India is fast changing. What one has to see is whether a class, and not an isolated case into whose hands the newspaper or article falls suffer in their moral outlook or become depraved by reading it or might have impure and lecherous thoughts aroused in their minds. The charge of obscenity must, therefore, be judged from these aspect.14