Introduction
The media has a great role in forming culture, values, and public opinion. In India that media reports also play out in terms of the balance it seeks to achieve between creative freedom and what is socially moral. Articulated in Article 19(1)(a) of the Indian Constitution is the right to free speech and expression, but at the same time, Article 19(2) puts in place what is reasonable in the issue of morality and decency. It is in this area that we see the issues of obscenity and vulgarity play out against the legal structure. For decades, the courts and the legislature have been at work to put in place these regulations, which have seen a shift from very conservative forms of censorship to a more contextual and free approach.
Constitutional and Statutory Framework
The base, which we may look to for understanding what is considered obscenity, is the Indian Constitution. Article 19(1)(a), which we see gives out that freedom of expression, but at the same time Article 19(2) also puts in place an exception for the implementation of moral and social issues. To that end also we have also seen the enactment of many a statute.
Indian Penal Code (IPC):
Section 292 outlaws the sale, distribution or public display of obscene books, pamphlets, paintings or material.
Section 293 provides more severe sentences for the sale of obscene material to those under the age of 20.
Section 294 outlaws obscene acts and songs in public.
Cinematograph Act, 1952:
The Central Board of Film Certification (CBFC) is given the power to review films before they are released. Films found to be obscene or contrary to public decency may be denied certification.
Information Technology Act, 2000:
Section 67 outlaws the distribution or publication of offensive material in electronic form.
Section 67A deals with sexually explicit content, at the same time Section 67B puts forward protection against child pornography.
These rules, which form the base of our obscenity regulation policy, have been put in place for print, film and digital media.
Obscenity and Vulgarity:
Grasping the distinction between
Although people tend to use these terms interchangeably, they really should not. What we mean by obscenity is material that puts forth a great value in creating what is lustful or that which is debased in nature. As for vulgarity, what we are talking of is a great deal of crudity and indecency which may shock or go against what is acceptable in society, which, in turn, offends some, but it does not in any way bring about corruption of the mind.
For example, we see a piece of work which has many layers of meaning and at times may be offensive, but not pornographic. That is a key issue that the courts have looked at between what is acceptable in terms of vulgarity as a form of artistic expression versus what is not and thus falls into the domain of obscenity, which does attract legal action. Also, the courts have determined that for something to go over to the illegal side, it has to go beyond just being vulgar and, in fact, have to cross a certain line into the area of pornographic.
Judicial Tests for Obscenity
Indian courts over the years have developed various tests to determine what is to be considered obscene.
Hicklin Test:
From R v. Hicklin (1868) we got the test which defined obscenity as material that tends to corrupt and degenerate people with open minds. It looked at separate parts of a work and the impact they have on a vulnerable audience. In Ranjit Udeshi v. State of Maharashtra (1965) the Supreme Court applied this test to uphold a conviction for the possession of D.H. Lawrence’s Lady Chatterley’s Lover. Very strict, this test was put forward also put forth that which ignored the literary and artistic value.
Community Standards Test:
The Indian judiciary, over time, has distanced itself from Hicklin. In the case of Aveek Sarkar v. State of West Bengal (2014), the Court put forth the community standards test, which it’s to say it used current social norms to determine what is offensive and looked at a work as a whole instead of in parts. A nude photo of Boris Becker with his partner did not have an issue with the Court because the picture also put out a social message against racism.
This turn saw a liberal and at large approach, which put freedom of expression on par with morality.
Landmark Cases
In some cases, we see how Indian courts have determined which expressions cross the line into obscenity and which are acceptable.
a) Udeshi v. State of Maharashtra (1965): Upheld conviction for profanity in print, which was put to the Hicklin test.
b) K.A. Abbas v. Union of India (1970): Maintained pre-release censorship of films, which we see as very much a part of the social fabric.
c) Samaresh Bose v. Amal Mitra (1985): Stressed out that it has to be perfect from start to finish.
d) Bobby Art International v. Om Pal Singh Hoon (1996): Allowed Bandit Queen to include nudity and violence as they were integral to the film’s social commentary.
e) Aveek Sarkar v. State of West Bengal (2014): Adoption of standards that broaden what is accepted in obscenity.
In these cases, courts have shifted from a very black and white moral perspective to a more flexible and situational one.
Regulation in the Digital Age
With the rise of OTT platforms and social media, traditional regulatory measures have broken down. Unlike film, digital content is not pre-screened. To that end, the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules of 2021 put in place a three-tier grievance red which also included mandatory content rating. But at the same time, critics say that these rules are too loose in definition, open to abuse, and they, in fact, promote self-censorship.
The internet, which has removed geographical boundaries for information flow, at the same time complicates regulation what is accepted worldwide may not be in keeping with Indian culture. Also in this digital age, which has broken the traditional geographic community mould, courts are left to put forth a community standard that is very different from the past.
Comparative Perspective
Other regions serve as good comparisons. In the U.S., the Miller Test (Miller v. California, 1973) states that a work should be judged by whether:
The average person, applying contemporary standards, finds it appeals to prurient interests.
It is of a pornographic nature.
It has no real literary, artistic, political or scientific value.
This test reports that which speech is protected in India does, in large part of what earlier had the Hicklin standard. The UK, on the other hand, still uses the “deprave and corrupt” rubric, which is very much in line with India’s past methods. Today in India, we see a middle path that has adopted community standards into its framework, but at the same time has put in large play the role of the judiciary because of the diverse culture.
Critical Reflections
In the field of obscenity law, we see that which is the issue is its subjective nature. What one group of people find shocking may, in fact, be fine for another. Judges use community standards in their decision-making, which helps to some degree, but also do not agree with each other by region, religion, and demographic. Also, we see that overregulation may, in fact, stifle artistic expression, while at the same time, underregulation may allow for harmful material.
Gender issues also play into this, which is why courts have to tell the difference between sex, which objectifies women, and that which empowers them or brings to light social issues. Bandit Queen is a great example that saw naked scenes allowed because they depicted oppression instead of arousal. That which we see in this is an approach that puts intent and context forward as well as the content itself.
Conclusion
Vulgarity may offend, but does not, in the main, justify criminal action as a rule. What is also true is that the law, which is of the land, must also balance creative liberty against issues of social morality. At the same time, the law must also adapt to the changing cultural and technological trends that India is seeing.