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WHAT CONSTITUTES ‘OBSCENITY’

 


By Kishore Kulkarni

The notion obscenity jurisprudence have evolved by adopting various tests of determining as to what can be called as obscene materials. The concept of obscenity persists under a colonial statute, specifically enshrined in section 292 of the Indian Penal Code, which continues to hold its place in the legal framework.  The initial legal framework of the concept of obscenity can be found in  common law, which interpreted obscenity based on the criteria established in the 1868 case of R v. Hicklin. In this case, Justice Cockburn articulated the standard to be applied “whether the tendency of the matter charged as obscenity is to depraved and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall.”

In 1965, the case that affirmed the constitutionality of Section 292 was Ranjit Udeshi v. State of Maharashtra. Following the determination that Section 292 was indeed constitutional, it became the responsibility of the courts to delineate the concept of obscenity. Analyzing Article 19, Clause 2 reveals the absence of a specific expression that the framers intentionally excluded. This intention was recognized by the Supreme Court five years prior to the Ranjit Udeshi decision in the Sakal Newspapers case. What, then, does the term 'morality' truly encompass? There are three potential interpretations: Public morality, Individual morality, Constitutional morality. The Delhi High Court in Naz foundation V. NCT where the court quoted Ambedkar for the following proposition

“popular morality, as distinct from a constitutional morality derived from constitutional values, is based on shifting and subjecting notions of right and wrong”

The Courts are subject to constitutional morality, in deciding a case, it is not concerned with Individual or public morality. An assumption can be made as an alternative interpretation of 19(2) could suggest that it pertains not to public morality, but rather to individual morality. This perspective emphasizes the safeguarding of the individual from corruption or moral decay, focusing on the integrity of the person.

 The direct consequence of Ranjit Udeshi's case was the modification of Section 292 of the Indian Penal Code, which introduced a definition of 'obscenity.' According to the revised section, obscenity its overall effect is such that it tends to deprave and corrupt individuals who are likely, considering all pertinent circumstances, to read, view, or listen to the material presented.

After the amendment, Section 292 was interpreted to determine what constitutes obscenity. A book, pamphlet, paper, drawing, painting, representation, figure, or any other item is considered obscene if it is lewd or appeals to sexual interest, or if its overall effect, or the effect of any individual item within it, tends to corrupt or deprave individuals who are likely to read, see, or hear its content, based on all relevant circumstances.

Anyone who sells, rents, distributes, publicly shows, or circulates any obscene book, pamphlet, paper, drawing, painting, representation, figure, or any other obscene item, or makes, produces, or possesses such items for sale, rental, distribution, public showing, or circulation, or imports, exports, or transports any obscene item for these purposes, knowing or having reason to believe it will be sold, rented, distributed, or publicly shown, or  participates in or profits from any business where they know or have reason to believe that obscene items are made, produced, bought, kept, imported, exported, transported, publicly shown, or circulated in any way.

In  Actress Khushboo’s  case, criminal proceedings were initiated against the Tamil actress  after an India Today interview in which she stated that “our society should come out of the thinking that at the time of marriage, the girls should be virgin”

 The court noted that

“people can choose to either defend or question the existing social mores. The framers of our constitution recognised the importance of safeguarding this right since the free flow of opinions and ideas is essential to sustain the collective life of citizenry.”

 The Supreme Court has repeatedly asserted that the fundamental purpose of free speech is to empower individuals to interrogate and contest the prevailing social norms and ethical beliefs that may be widely accepted by the majority at any given moment. The freedom of speech can be really exercised when there is free flow of ideas and information without any kind of unconstitutional restraint. The free flow of ideas include the freedom to dissent not only political but also cultural. The very purpose of incorporation of freedom was to ensure free flow of difference of opinions.

In the case of Aveek Sarkar v. State of West Bengal, the court referenced the American ruling in Roth v. United States, interpreting obscenity in relation to sexual arousal, which is to be assessed through a community standards test.

A Picture… can be held to be obscene, but the obscenity has to be judged from the point of view of an average person, by applying contemporary community standards.

When it comes to limiting a constitutional right, such limitations must be explicitly grounded in the constitution itself. Principles such as democracy, the rule of law, and secularism, along with Articles 14, 19, and 21—often referred to as the constitutional triangle—are recognized as integral components of the constitution's basic structure. These elements are so fundamental that they transcend the amending authority of Parliament. The foundation of regulation should not be anchored in the contentious notions of public morals or personal corruption; rather, it should be grounded in constitutional principles such as equality. Interpreting Article 19 (2), the morality clause should be viewed as embodying constitutional morality rather than public or individual morality.

“I Do not know how one actually would define obscenity. I am sure the definition is different according to the age one is living in”

-Jane Alexander

Thank You for your time.
Kishore Kulkarni
BA LLB Student 




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