“I disapprove of what you say, but I will defend to the death your right to say it.” – Voltaire
What is obscene and what is not has always been a hotly debated issue in various jurisdictions. In a country such as India, a straight jacketed rule cannot be applied to determine the obscene nature of any content. Such matters are always influenced by religious, political and social considerations. However, the issue arises when the basic right to express is affected by imposing unreasonable restrictions on free speech and expression due to its obscene nature.
The definition of obscenity would be different depending upon the age and times a person is living in and the spirit of tolerance would change accordingly. What was considered as highly obscene probably a decade back might not be considered obscene at the same magnitude presently. How obscenity is to be defined has taken care by the Supreme Court of India in ample of cases. This was evidenced by a February 2014 ruling of the Supreme Court in the case of Avik Sarkar v. State of West Bengal wherein it was held that merely because a picture shows nudity; it cannot be caught under the term ‘obscene’. The case is decided from a criminal appeal filed in 1993 with respect to a nude photograph of a famous golfer published by a Calcutta based magazine. The depiction was not considered as obscene because the same was for propagating a social cause. Contrary to this, in the case of Ranjit Udeshi v State of Maharashtra (1969), where the issue related to a book Lady Chatterly’s Lover for depiction of obscene matter, the Supreme Court held that obscenity should be so decided that it is likely to deprave and corrupt those whose minds are open to influences of this sort and into whose hands the book is likely to fall and that the determination should be made by considering the alleged obscene matter separately from the book. However, the same might not be considered as obscene in the present circumstances. In a similar matter, in the case of Kakodar v State of Maharashtra, the Supreme Court noted that an overall view of the matter has to be taken regard of while determining obscenity. Hence, the Supreme Court has itself moved to a more liberal view for the determination. Furthermore, through its decision in another case of K.A. Abbas v State of Mahrashtra, the court noted that since the definition of ‘obscenity’ is not provided in the Indian Penal Code, therefore it was left for the courts to decide as the Parliament and the Government had not done enough to do the same. It was noted that what is artistically and socially valuable has to be separated from a deliberate indecent and obscene matter and that such separation should not affect the value of the matter.
In India, freedom of speech and expression is ensured by Article 19(1) (a) of the Constitution but is also limited by Article 19(2), which allows the government to place “reasonable restrictions” on this right in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence. However, the problem arises when what is obscenity is not defined by the statutes. This leads us to the point that how far is censorship compatible with the constitutional provisions. Also, the basis provided in Indian Penal Code for determination of obscenity is that the material should neither be lascivious nor be likely to appeal to the prurient interest of a person, which means that the material is not obscene if it would not arouse sexual interest in a perverted person and would not morally corrupt or debase a person viewing it.
The basis of determining obscenity lies in the fact whether the alleged obscene depiction is immoral. Immorality in India directly related to one or another religion. Thus, at the end of the day for determination of obscenity, the role and effect of the matter is to be examined in context of a religion and if such a matter is in faintest violation of an essentiality of a religion, then it would not take time for an attack on such a matter. A recent example of the same is the fuss over the AIB roast, which was targeted for making jokes on the Christian religion. The issue was hotly debated and commented upon, but at the end the story it has to be realised that the country comprises of people who have zero tolerance for any attack on their religion, which is well within their rights and the broad mindedness of a stratospheric level is yet to be reached.
In 2013, the publishing house HarperCollins India, before publishing a book by a Canadian comic artist relating to his encounter with 23 different prostitutes, pixelated the drawing of the author’s own genitals. This is called as a pre-emptive self-imposed censorship by the publisher, which is harming the right of expression at the very root of it and is indeed an ironical situation. If such measures are taken by the creators of content because of the prevalent content regulation regime in India, it would attack the very basic right of expression of the creators. In such cases the right of expression is affected first let alone the nature of expression.
The Indian courts have indeed started taking more liberal views towards the determination of obscenity in a matter. However the issue would always be up for a debate in a country where such regulations are guided by social and religious forces. What has to be taken note of is the context in which a matter is expressed. If such a matter by virtue of it being called as obscene would affect the very nature of its context, then it shatters the meaning of it. The reasonable restrictions have to be imposed in cases of blatant violations but not at the cost of the right of a bona fide creator. India still has a long way to go to settle the dispute of obscenity in the further emerging times.
About the Author
Rashmi Singh is a fourth year student of ILS Law College, Pune. Her interest areas are Constitutional Law and Intellectual Property Laws. She enjoys researching and has been associated as a researcher for various moot court competitions. She likes to read and paint in her free time.