The concept of obscenity has always been directly linked with the concept of morality in the society. The socially acceptable standard of morality and obscenity have always been in a state of flux from the ancient time. Even today it is difficult to find the exact meaning of obscenity. Section 67 of the Information Technology Act, 2000 also gives provisions regarding obscenity. It runs as follows: The Code does not define what is obscene, but Section 292 points out that any writing, drawing, painting or object or engraving etc. kept or used for bona fide religious worship is not deemed to be obscene for the purposes of the law relating obscenity.
The constitutional validity of the section has been upheld by the Supreme Court in Ranjit D. Udeshi v. State of Maharashtra.
The Code provides for the following offences against public decency and morals— (1) Selling, distributing, importing, exporting, publishing, and letting to hire any obscene book, pamphlet, drawing, painting, representation or figure. (2) Making, keeping or producing such things for any of such purposes. (3) Taking part in or receiving profits from any business connected with such things in any way including advertisements. (4) Offering or attempting to do any of the foregoing offences. Punishment for the above offences may be imprisonment of either description upto three months or fine or both (Section 292). “Obscenity” —Meaning of: Section 292 came to be amended in 1969.
The amended provision seeks to clarify what may be deemed to be obscene within the meaning of the section, as the word “obscene” appearing in the section has not been defined in the section or in any provision of the Code. The amended provision as it now stands embodies to an extent in the section itself the import, effect and meaning of the word “obscene” as given by Courts on interpretation of the word “obscene”. The word “obscene” has been borrowed from the English Statute. The common law offence of obscenity was established in England more than three hundred years ago when Sir Charles Seddley exposed his person to the public gaze on the balcony of a tavern. However, obscenity in books was punishable only before the spiritual Courts because it was so laid down to 1708 in which Queen v. Read, was decided. In 1717 in the case against one Curl it was ruled for the first time that it was a common law offence.
Lord Campbell enacted the first legislative measures against obscene books etc., and his successor in the office of the Chief Justice interpreted his statute (20 & 21 Vict. C. 83) in R. v. Hicklin. The section of the English Act used the word “obscene” and provided for search, seizure and destruction of obscene books etc., and made their sale, possession for sale, distribution etc.
, a misdemeanour. That section has been regarded as substantially in pari materia with Section 292, Indian Penal Code, in spite of some difference of language. In the famous case of Hicklin Cockburn, C.J. laid down the test of obscenity in the following words: “…… 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 libindinous character”. The above noted Hicklin’s test has been uniformly applied in India.
Thus, in Ranjit D. Udeshi v. State of Maharashtra, the Supreme Court observed that although the ‘world is now able to tolerate much more than formerly, having become indurated by literature of different sorts, the attitude is not yet settled. Curiously varying results are noticeable in respect of the same book and in the United States the same book is held to be obscene in one State but not in another. But….
the question still remains whether the Hicklin test is to be discarded? We do not think that it should be discarded’. The question of obscenity of a book within the meaning of Section 292, I.P.C., again fell for consideration before the Supreme Court in Kakodkar v. State of Maharashtra. In this case the Court pointed out that the concept of obscenity would differ from country to country depending on the standards of morals of contemporary society.
What is considered as 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 the standards of contemporary society in India, like those in other Western countries, are also fast changing. What we have to see is that whether a class, not an isolated case, into whose hands the book falls suffer in their moral outlook or become depraved by reading it or might have become impure and lacherous thoughts aroused in their minds. The charge of obscenity must, therefore, be judged from this aspect. These two decisions of the Supreme Court (i.e.
, Ranjit and Kakodkar) lay down the legal principles to be observed in deciding the question of obscenity within the meaning of Section 292, I.P.C. This has been accepted by the Supreme Court itself in the case of Samaresh v. Amal Mitra. In Ranjit, case the Supreme Court while formulating the test for India observed as under: “In Roth’s case, Mr. Justice Brennan…… observed that if obscenity is to be judged of by the effect of an isolated passage or two upon particularly susceptible persons, it might well encompass material legitimately treating with sex and might become unduly restrictive and so the offending book must be considered in its entirety.
Chief Justice, Warren on the other hand made ‘substantial tendency to corrupt by arousing lustful desires’ as a test. Mr. Justice Harlan regarded as the test that must ‘tend to sexually impure thoughts’. In our opinion, the test to adopt in our country (regard being had to our community moves) is that obscenity without a preponderating social purpose or profit cannot have the constitutional protection of free speech and expression, and obscenity is treating with sex in a manner appealing to carnal side of human nature, or having that tendency. Such a treating with sex is offensive to modesty and decency; but the extent of such appeal in a particular book etc.
, are matters for consideration in each individual case”. It may be pointed out that in England the decision on the question of obscenity rests with the Jury but in India, however, responsibility of the decision rests essentially on the Court. The nature of such responsibility of the Court has been outlined by the Supreme Court1 thus: “In judging the question of obscenity, the Judge in the first place should try to place himself in the position of the author and from the view point of the author the Judge should try to understand what is it that the author seeks to convey and what the author conveys has any literary and artistic value. The Judge should thereafter place himself in the position of a reader of every age group in whose hands the book is likely to fall and should try to appreciate what kind of possible influence the book is likely to have in the minds of the readers. A Judge should thereafter apply his judicial mind dispassionately to decide whether the book in question can be said to be obscene within the meaning of Section 292 by an objective assessment of the book as a whole and also of the passages complained of as obscene separately. In B.
Rosaiah v. State of A.P., the High Court observed that mere spectator of the blue film cannot be said as abettor of obscenity. The accused was a spectator of the blue film, not arranged intentionally to exhibit the blue film. As observed in Ranjit’s case, if a reference to sex by itself is considered obscene, no books can be sold except those which are purely religious.
There has been a kind of confusion between vulgarity and obscenity. In the case of Samaresh Bose, the Supreme Court took an opportunity to resolve the confusion by pointing out that vulgarity arouses a feeling of disgust and revulsion and also boredom but does not have the effect of depraving, debasing and corrupting the morals of any reader of the novel, whereas obscenity has the tendency to deprave and corrupt those whose minds are open to such immoral influences. Letting to hire, selling, distributing or circulating any of the above things to person under twenty years in age is an aggravated form of the offence and punishment may extend to imprisonment of either description upto six months or fine or both (Section 293). (5) Doing any obscene act in a public place, uttering obscene words, singing obscene songs or ballads in or near any public place—Imprisonment of either description upto three months or fine or both (Section 293).