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Constitutionality of Obscenity Law

Article submitted by Mahima Agarwal.

Indian code of Penal Laws attempts to define obscenity even though it is best to not define it and leave it undefined. This is popular reasoning since obscenity is not defined by constitutional morality it is instead defined by popular morality which, constantly changes. Changing society, times, values, and beliefs make it a difficult task to limit the definition or standards of obscenity. It is not difficult to explain it without being vulgar or offensive instead it is difficult to propose a standard definition that is applicable in every situation and at every time.

It is an amalgam of numerous things that determine the standard and level of obscenity for any matter. In India, we have legal provisions to curb obscenity which are mainly specified under the Indian Penal Code of 1860 and the Information Technology Act, 2000.

Volatile Nature of Obscenity Law

The concept of obscenity differs from nations, cultures and even age groups. Moral values, and cultural values shape the society and hence also play an important role especially when it comes to determining the definition of obscenity for legal purposes. Moreover, obscenity also largely depends on the circumstances of the case and the morale of the law enforcers.

For legal purposes, judicial courts from countries across the world have adopted various tests to determine the particular act of obscenity in cases. The common law court first laid down the test in Regina v. Hicklin[1]wherein it specified that the materials that could corrupt the minds and are depraving in nature would be punished irrespective of the intention. Whereas the USA in the case of Roth vs. United States[2] specified that the materials that are capable enough to generate lustful thoughts would only be obscene. They specified that this test should be for the average person altogether rather than just the weak-minded or the vulnerable to ensure better community implementation. The judges also paid specific attention to the demarcation of constitutionally protected speech from obscenity. Materials that portray general standards of sexual desires were not made punishable and were excluded from the purview of nudity or obscenity.

However, the Miller test or the three-prong obscenity test is the most common and effective one until today and was named after the parent case Miller v. California[3]. This test used three factors to determine obscenity of which the first two were based on pre-set standards of community while the third was based on reasonability. Though this encompassed all-determining factor in an efficient manner, however, was lacking on certain grounds since a country comprises of numerous communities which could create a conflict. Therefore, due to the changing nature of the criminal act, the test undergo changes over time so that they are better adapted to the evolving society.

However, the conflict of morals between various individuals is a prime threat to the obscenity law. Since an act is of obscene nature only if it annoys other members of the society as specified by Section 294 of the Indian Penal Code,1860. However, causing annoyance is a subjective perception and cannot be defined. Public Display of Affection for some is a mere act out of love and is perceived as a normal act however certain people would consider action as simple as holding hands to be against values and morals and hence label it as obscene. It is later left to the courts to determine the presence of obscenity, in the act but the lives of the people who are falsely accused of displaying obscenity are disrupted, and the fundamental rights are taken away.

This law is open to interpretation due to no definite straightjacket definition or specifications. Therefore, the provisions and the interpretation must both resonate with the culture and beliefs of the modern world as opposed to the 1860 law. Moreover, it is a cognizable offence that allows law enforcers to impose punishments without even bringing the case under the notice of the magistrate. Obscenity is a matter that is considered in the social context and hence it should be ensured that the society also understands the difference between immoral and illegal since the parameters for morality are subjective and could not be used to determine a criminal offence of national bearing.

Supreme Court in several judgments has reiterated that while determining obscenity in any matter the balance between Article 19 and Section 294 should be carefully observed since fundamental rights are an important part of democracy.

Reforms needed for Speech Based Offence

The Indian Penal Code, 1860 is the substantive Indian Law that regulated the speech of the citizens for maintaining law and order in society. It includes and punishes several of these offences like sedition, defamation, hate speech, and obscenity which can be committed via words both over the internet and through the mouth. With an increased number of serious offences over the internet, these crimes are even regulated through the Information Technology Act, 2000.

Supreme Court through its judgments[4] has reiterated several terms that the balance between the fundamental right to freedom of speech and expression and right to privacy are not ultimate rights and even extend beyond the face to face situations, like over the internet. However, these fundamental rights can be reasonably and proportionally restricted.

Reforms to these specific speech-based offences should be on the basis of proportionality and must fulfil the standards of legitimacy, necessity, and legality. Which at present is ensuring the autonomy and the will of the individuals and not forcefully imposing conventional and conservative norms of the society,

The key concern should be that legal provisions are imposed in a manner that they do not create a chilling effect on speech in general.[5] A legitimate purpose that aligns with the perspective of the 21st century can only satisfy present demands. Since laws based on outdated notions of popular morality will only create a conflict among the different groups. Also, it is imperative that the laws adapt the least restrictive tool[6] to curb the offences since guaranteeing fundamentally guaranteed rights is important.

These obscenity laws need immediate reforms so that they in consonance with the modern world and are also based on consent and harm rather than patriarchal motions of morality. However certain acts like child pornography and child sexual abuse should be dealt with strict punishments and better laws for curbing or even eliminating these menaces should be brought into effect.

Legal Provisions of Obscenity

The prime words obscene and obscenity are left undefined in IPC. Sections concerning the offence of obscenity I.e. Section 292 and 293 simply prohibit selling and circulation of obscene material wherein obscene is any material that depraves or corrupts the person reading or hearing it. However, these provisions are exclusive of literary scientific or religious texts.[7] This Section stands in direct conflict with Article 19(2). Though the supporters of such law rely on the defence of reasonable restrictions as mentioned in the Constitution for the purpose of maintaining decency in public.[8]

Moreover, owing to the dynamic and global reach of the Internet the IT Act, 2000 also regulates the transmission of obscene material over the internet through Sections 67,75 and 81. However, no blanket ban could be imposed on any material that is considered obscene. Additionally, materials with deep hidden meanings that are eventually termed obscene could not be brought under any legal provisions since such proceedings are a threat to free speech and expression and are also not connoting any questionable material in plain sight. Hence banning them only due to the possible danger they could pose in the future is certainly not an effective safeguard.

Quest to identify Obscenity

Lack of proper definition for the said offence leaves the entire burden on the judiciary to determine the disputes. Moreover, the SC of India as the highest court of justice also bears the responsibility to be in consonance with the cultural variations and socio legal changes of that time. Also, it is their duty to bridge the gap between popular morality and constitutional morality. With the onset of the 21st century people have witnessed altered beliefs and opinions hence in today’s time sex and nudity could not be directly termed as offensive or immoral or indecent[9]. With changing beliefs and modernity, the topics earlier considered to be taboo are now openly discussed and debated. Moreover, dissecting the matter in a manner that the material is completely isolated from the context in which it was originally used cannot be considered obscene. Since this will lead to the inclusion of large amounts of material under the purview of obscenity and will eventually create a chilling effect on free expression especially in art and literature.[10] The SC also recognised that the contemporary society in India is fast changing hence many materials which were earlier termed as obscene now could not be considered to debauch the mind.[11]


The determining factors for obscenity are often community determined. Hence the SC in the landmark judgment of Aveek Sarkar v. State of West Bengal[12] held that the test for it should be on the basis of a community standard test since such a test is more adaptive to changing social dynamics and can also be brought into consonance with the Right to freedom of speech and expression and Right to privacy in a more wholesome manner than any other basis. Also, the community standards test is more adaptive to any changing society. Additionally, promoting open discourse and discussion is a necessity for obscenity law.

Indian heritage in the form of the Konaraks and Khajurahos will be killed by an obscenity law that does not reform with the changing times. Also, things that keep up with the trends of that period are important for preserving that period. Thus online content which is a bit proactive should be regulated but not banned.

[1] Regina v. Hicklin, [1868] LR 3 QB 360] [2] Roth v. United States, 354 U.S. 476 (1957). [3] Miller v. California, 413 U.S. 15 (1973) [4]Shreya Singhal v. Union of India, (2013) 12 S.C.C. 73; K.S. Puttaswamy v. Union of India, [2017 10 S.C.C 1]; Anuradha Bhasin v. Union of India, [2020 SCC Online S.C. 25]. [5]UN Special Rapporteur on Freedom of Expression’s 2011 Report- Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression,2011, Human Rights Council, Seventeenth session Agenda item 3. [6]Article 19 of the International Covenant on Civil and Political Rights. [7] Walter Gellhorn, Individual Freedom and Governmental Restraints [8] Emperor v. Kherode Chandra Roy Chaudhury, (1911) I.L.R. 39 Cal. 377. [9]K. A. Abbas v. Union of India, A.I.R 1971 S.C. 51 [10]Bobby Art International v. Ompal Singh Hoon, Civil Appeal nos. 7523, 7525-27 and 7524. [11]Director General, Directorate General of Doordarshan v. Anand Patwardhan and Another, (1996) 8 S.C.C 433. [12]Aveek Sarkar v. State of West Bengal, (2014) 4 S.C.C. 257.



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