-Dr. Abhimanyu Chopra, Aman Choudhary and Kushagra Jain*
[This is the first part of the two-part contribution discussing the evolution of the offence of obscenity from the Indian Penal Code to the recent amendments to the IT Act.]
“Let the author be resurrected to what he is best at. Write.”
- Justice Sanjay Kishan Kaul,
Former Judge of the Hon’ble Supreme Court
I. INTRODUCTION
The Information Technology Act, 2000 (“IT Act”) was enacted primarily as a legislation that provided a framework for legal recognition of transactions carried out by means of electronic data interchange and other means of electronic communication. However, owing to the increase in cybercrimes[1], there was a need felt for such crimes to be made accountable, owing to which, on October 27, 2009, amendments were carved out in the IT Act pursuant to which Chapter XI dealing with such offences was added into the IT Act.
A lot has been said regarding the inadequacy of Chapter XI of the IT Act as it was felt that offences in cyberspace have been introduced as part of the IT Act only as a temporary measure. Hence, Chapter XI has been subjected to a lot of rigours for its implementation as well as interpretation by the judiciary.
The authors, by way of this two-part series, dwell upon a limited but much-debated issue in today’s day and age, charting the evolution/jurisprudence of the offence of obscenity from the Indian Penal Code, 1860 (“IPC”) to the most recent amendments to the IT Act, relying on the lineage and volume of dicta on the subject. Part I traces the evolving law with respect to the offense of ‘obscenity’ under the. IPC and now, Bhartiya Nyaya Sanhita (“BNS”) vis-à-vis the development of the ‘community standards’ test as well as the self-regulatory dichotomy of OTT and social media content. Part II delves into the offence of obscenity in cyberspace, treatment, and interpretation thereof under the IT Act. This is more specifically in the context of the recent judgment of the Supreme Court (“SC”) in Apoorva Arora and Anr vs. State (Govt. of NCT Of Delhi) and Anr (“TVF Judgment”) which was passed in the context of a webseries namely ‘College Romance’ as well as the recent full bench decision of the Hon’ble Bombay High Court regarding the interplay of provisions under the IT Act and the Indian Penal Code, 1860 (“IPC”).
Black’s Law Dictionary defines the word ‘obscenity’ as “the quality, state, or condition of being morally abhorrent or socially taboo, esp. as a result of referring to or depicting sexual or excretory functions.” The IT Act, by way of Section 67, penalizes the circulation of ‘obscene’ and ‘sexually explicit material’ in electronic form. Moreover, the usage of terms like ‘obscene material’ and ‘sexually explicit acts’ in Section 67, which are not defined under the IT Act, has created a grey area and have subjected the provision to interpretation from everyone, including the judiciary, and therefore, such cases are considered on a fact-to-fact basis, and the judgments also vary from court to court. While the intention behind the provision is to combat the dissemination of obscene content, the ambiguity and vagueness of the language of the provision have led to debates regarding its effectiveness and potential for misuse.
II. OFFENCE OF OBSCENITY AS LAID DOWN UNDER THE IPC/ EVOLUTION TO BNS
IPC was a statute enacted in 1860 and was essentially a colonial-era law applicable to the time when it was enacted. However, after 150 years of its enactment, the standard for the test of what qualifies as obscene has certainly changed with time.
Section 292 of the IPC defines ‘obscene’ as, inter alia, any representation or object that is lascivious, appeals to the prurient interest, or has such an effect, if taken as a whole, that tends to deprave and corrupt persons who are likely to read, see, or hear the matter contained in it. Subsequently, if any such representation or object is sold, distributed, exhibited, or circulated in any manner, the same would constitute an offence under Section 292 of the IPC and will suffer from penal consequences.
It is pertinent to note that Sections 292 and 294 of the IPC penalize the representation of obscene material in the form of books, pamphlets, figures, recitation of songs, or spoken words in public space. However, the said offences did not cover the circulation of obscene material over the internet, which resulted in the insertion of a separate offence under the IT Act in the form of Section 67, which is dealt with in extension hereinbelow.
Applying the ‘Hicklin Test’
In the case of Ranjit D. Udeshi v. State of Maharashtra, the court affirmed the constitutionality of Section 292, considering it a justifiable limitation on freedom of speech. The court applied the ‘Hicklin Test’ to assess whether the book ‘Lady Chatterley’s Lover’ was obscene. According to this test, any material is deemed obscene if it has the potential to morally corrupt and degrade individuals who may come across it and are susceptible to such immoral influences. The following excerpt is crucial to understanding the ‘Hicklin Test’ applied by the SC:
“… I think the test of obscenity is this, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall … it is quite certain that it would suggest to the minds of the young of either sex, or even to persons of more advanced years, thoughts of a most impure and libidinous character.”
While the Hicklin test was actively being applied by the courts in India to adjudicate cases qua obscene material, it was observed that it allowed the material to be judged on the basis of isolated parts of the work by their influence on the most susceptible readers. With evolving societal norms, in the case of Aveek Sarkar v. State of West Bengal (2014), it was realized that “regard must be had to the contemporary mores and national standards and not the standard of a group of susceptible or sensitive persons.”
Time for a change —Contemporary Community Standards Test
In the case of Bobby Art International v. Om Pal Singh Hoon, the SC moved away from the restrictive Hicklin Test and emphasized factors like responsiveness to evolving social values, balancing artistic expression with censorship, judging the work as a whole considering its overall impact and contemporary standards, and avoiding scenes degrading women or gratuitous sexual violence.
This shift to the said Community Standards Test was also on account of the fact that the impact of the material must be judged from the standards of “a reasonable, strong-minded, firm and courageous person, and not from the perspective of weak and vacillating minds or those who sense danger in every hostile point of view”. The court opined that material cannot be reasonably regulated and curtailed from an entire sect of society merely because a small sect has to be protected/estopped from accessing it. Therefore, the standard ought to be an “ordinary man of common sense and prudence” and not a hypersensitive person.
Resultantly, the courts across the world (such as in the United States and Canada), as well as India, adopted the ‘Contemporary Community Standards Test,’ whereby “obscenity has to be judged from the point of view of an average person, by applying contemporary community standards.”.
Subsequently, the SC, in the landmark judgement of Aveek Sarkar v. State of West Bengal, whilst adjudicating over whether a photograph of tennis player Boris Becker posing nude with his fiancée was obscene, quashed an FIR registered under Section 292 of the IPC. The SC observed that a picture of a nude woman is not obscene unless it arouses sexual passion or depraves or corrupts the minds of the people who consume the said content, which the SC assessed the said picture not to be. The renowned actor Milind Soman was similarly booked by the Goa Police and an FIR was filed against him at Colva police station in 2020 under Section 294 of the IPC and Section 67 of the IT Act for posting a photograph of himself running nude by a beach in Goa on social media, which goes against the SC’s dictum in the Aveek Sarkar case.
Following the established principles for obscenity in traditional mediums, courts have applied similar evolving standards to content available in cyberspace.
It was held that for material to be obscene under Section 292 of the IPC, the content should be (i) suggestive of a depraved mind and (ii) designed to excite sexual passion in persons who are likely to see it, which will depend on the particular posture and the background. The Court observed that societal norms evolve, and obscenity should be judged based on the prevailing moral standards of the contemporary community. This shift placed greater emphasis on the context of the image and the audience it was intended for.
The case of S. Khushboo v. Kanniammal established ‘contemporary community standards’ as a vital factor in determining obscenity, reflecting the evolving social landscape. It recognized the right to discuss sexual matters openly, particularly when promoting safe practices and social awareness. The court held that obscenity should be judged based on the sensibilities and tolerance levels of a reasonable person in today's society.
Further, in C.K. Kakodkar v. State of Maharashtra, the Supreme Court held that the concept of obscenity would differ from country to country depending on the standards of morals of contemporary society. It was observed that what is considered a piece of literature in France may be obscene in England, and what is considered in both countries as not harmful to public order and morals may be obscene in our country. But to insist that the standard should always be for the writer to see that the adolescent ought not to be brought into contact with sex or that if they read any references to sex in what is written, whether that is the dominant theme or not, they would be affected, would be to require authors to write books only for the adolescent and not for the adults.
Hence, the true test should not be to find out what depraves in only one way, viz., by exciting sexual desires and lascivious thoughts. The question regarding obscenity is one of fact and depends upon various circumstances, and no hard and fast rule can be laid down. The effect produced by the publication on an ordinary member of society has to be ascertained, who as such is expected to be of normal temperament. The standard of the reader is neither one of exceptional sensibility nor one without any sensibility whatsoever.
Another noteworthy mention is the judgment of S. Tamilselvan v. Government of Tamil Nadu where Justice Sanjay Kishan Kaul (Chief Justice of the Madras High Court, as he then was) aptly captured the line, “If you do not like a book, throw it away.” He was adjudicating an issue pertaining to obscenity in relation to a translation of a book which depicted womenfolk of a ‘Tiruchengode’ town in an allegedly derogatory manner. A relevant excerpt from the aforesaid judgment shows the evolving taste and the judicial determination arrived at in the aforesaid judgment:
“Whether the society is ready to read a particular book and absorb what it says without being offended is a debate which has been raging for years together. Times have changed. What was not acceptable earlier became acceptable later. “Lady Chatterley’s Lover” is a classical example of it. The choice to read is always with the reader. If you do not like a book, throw it away. There is no compulsion to read a book. Literary tastes may vary – what is right and acceptable to one may not be so to others. Yet, the right to write is unhindered. If the contents seek to challenge or go against the very Constitutional values, raise racial issues, denigrate castes, contain blasphemous dialogues, carry unacceptable sexual contents or start a war against the very existence of our country, the State would, no doubt, step in.”
The perusal of the aforesaid authorities and the judicial pronouncements makes it clear that the SC and other High Courts across India have relied more upon the element of the impact on the public at large rather than the literal depiction given by the artist. This has been a more balanced approach, as a literal depiction of nudity per se cannot be said to be obscene, lascivious, or prurient. If that were so, then our entire ancient cultural heritage sites, such as the Khajuraho, would be a banned site under lock and key, and of course, let’s not forget India being attributed to the origin of the ‘Kama Sutra’[2]. Surely, this is not the case!
[1] “A crime involving the use of a computer, such as sabotaging or stealing electronically stored data.” As defined in Black's Law Dictionary (8th ed. 2004).
[2] The Kama Sutra is an ancient Indian text attributed to Vatsayana believed to have been written between the 3rd and the 5th Centuries CE. It is often referred to as a guide on love, sexuality and relationships containing a combination of practical advice and philosophical discussions.
*This article has been authored by Dr. Abhimanyu Chopra, Aman Chaudhary and Kushagra Jain. The authors Dr. Abhimanyu Chopra (Partner), Aman Chaudhary (Senior Associate) and Kushagra Jain (Associate) are with AZB & Partners. Views expressed here are those of the authors.
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