With the advent of science and technology, it has become easier to communicate the day to day events of importance through the media. Media has made the world a smaller place connecting all with great ease and speed. The entry of the electronic media has changed the dimensions of news coverage and presentation of news. All democracies all over the world provide their media with some level of freedom of speech and expression. But, as is commonly believed with great power comes great responsibility, and like all other domains this power is abused by the media as well. Media acts as both a boon and a bane. Media is slowly losing its social accountability by giving massive amount of coverage to abnormal events and issues. The vulnerability of the content has also increased multifold as a result. The need of the hour is for the media to draw lines and thus the need for regulations.
Electronic media is a vast domain which includes both information and general entertainment channels. It includes advertisements and in the modern time the internet based media. Electronic media has been violating industry ethics on a fairly regular basis. Inappropriate content is often aired and advertising rules prescribed by the Telecom Regulatory Authority of India are not adhered to. News channels, too, are vulnerable and often fail to cover the correct or the most imperative events.
Media regularly sensationalizes events by spicing things up and in the process even transgresses privacy. Obscenity is one such issue of vital importance plaguing the nation, which the media fails to remedy and conveniently overlooks. Obscenity is one of the ingredients which should ideally be a reason to prohibit content from being screened or displayed. Obscenity in India is defined as “offensive to modesty or decency; lewd, filthy and repulsive.” It is stated that the test of obscenity is whether the publication, read as a whole, has a tendency to deprave and corrupt those whose minds are open to such immoral influences, and therefore each work must be examined by itself. The discussion has been carried out and tests laid down in several countries, according to the social and moral structure.
Legal Status in India
Even in India it is a controversial topic and the Delhi High Court on April 09, 2013 took the view that absence of state intervention further complicates the issue and it is vital for a diverse media environment. As on date the ‘Broadcasting Consumers Complaint Committee’, a body set up by the Indian Broadcasting Foundation is the authority to take decisions and pass orders. Popular shows like ‘Emotional Atyachar’ telecast on UTV Bindass have also fallen under the scrutiny of the BCCC on counts of vulgarity and obscenity.
The Supreme Court has taken the view in the case of Ranjit D. Udeshi v. State of Maharashtra that the freedom of speech and expression under Article 19 (1) (a) is not an absolute right and can be imposed with reasonable restrictions under Article 19 (2). Further, it held that there can be no uniform test for obscenity and therefore each case would have to be judged on its own facts and merits.
Our Constitution under Section 292 (1) of the Indian Penal Code defines obscenity. The Indecent Representation of Women’s (Prohibition) Act, 1986 under 2 (c) defines obscenity and indecent representation of women. Further, Section 3 of the act prohibits the same. Section 4 of the Cinematograph Act, 1952 talks about examination of films by the Board of Film Certification. Additionally, child obscenity is dealt under The Young Persons (harmful Publication) Act, 1956. The Information Technology Act, 2000 makes the publication and transmission in electronic form of material which is obscene in nature punishable with imprisonment and fine.
Self regulation is practiced by the media in India. However, there exist bodies for regulation of media, namely the Press Council of India and the News Broadcasting Standards Authority, a self-regulatory organization. They issue standards in the nature of the guidelines.
International Judicial Precedents
Regina v. Hickland (1868)
In this landmark English case the ‘Hicklin test”, the legal test to determine obscenity was established. It was held that all material tending “to deprave and corrupt those whose minds are open to such immoral influences” was obscene, regardless of its artistic or literary merit
Roth v United States (1957)
The material categorized as obscene would be such if it seems obscene to an average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.
Miller v. California (1973)
The Court had rewritten the law of obscenity, setting three guidelines for juries to apply: 1) whether ‘the average person, applying contemporary community standards,’ would find the work, taken as a whole, appeals to the prurient interest. 2) Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law. 3) Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.
Obscenity is arguably a relative concept, but at the same time the need to regulate it and to bring in proper checks and filters is imminent. The question before us is to decide the form of this much needed regulation. India as a nation should more effectively impose reasonable restrictions by virtue of Article 19(2) so as to avoid overstepping of boundary by the media. Obscenity along with other colonial laws like sedition, defamation, blasphemy laws undermine the right to dissent and criticize the state policy. It is high time to take note of countries like the USA, UK and re frame our laws and determine the form of regulation of media. In the present day where internet based media exists on a global level, we need to find the origin of the ‘obscene’ material and then effectively penalise the offenders. Thus, the question whether international agreements or laws should be instituted looms large.
About the Author
A 3rd year student of law, she is against armchair criticism. She is a diehard feminist and is vocal about the injustice towards women. Kajal was also a part of the “I Lead India” campaign, which was a clarion call for bringing about change. She loves reading and public speaking. She completed her schooling from Sanskriti School, New Delhi and being an army kid has traveled all over the country. She has a special interest in Intellectual Property Rights and plans to pursue criminal litigation.