Sub-section (1) says that for the purposes of sub-section (2) of this section book, pamphlet etc. shall be deemed to be obscene if the same is either lascivious or appeals to prurient interest or if its effect, or the effect of any one of its items, in such cases where it has more than one item, is such as has a tendency to deprave or corrupt persons if taken as a whole who are likely to read, see or hear the matter contained or embodied in it, having regard to all relevant circumstances. Sub-section (2) says whoever (a) either sells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation, or for the purposes of sale, hire, distribution, public exhibition, or circulation, makes, produces or possesses any obscene book, pamphlet, paper, drawing, painting, representation or figure of any obscene object whatsoever, or (b) either imports, exports or conveys any object which is obscene for any of the aforesaid purposes, or with knowledge or having reason to believe that such object will be either sold, let to hire, distributed or exhibited publicly or put into circulation in any manner, or (c) either participates in or receives profits from any business in the course of which he has knowledge or has reason to believe that any such obscene objects are, for the aforesaid purposes, either made, produced, purchased, kept, imported, exported, conveyed, exhibited publicly or in any manner circulated, or (d) either advertises or makes known by whatever means that any person is either engaged or is ready to engage in any act which is an offence under this section, or any such obscene object can be procured from or through any person, or (e) either offers to do or attempts to do any act which is an offence under this section, shall be punished on first conviction with simple or rigorous imprisonment for a term extending up to two years, and with fine extending up to two thousand rupees, and in the event of subsequent convictions, with simple or rigorous imprisonment for a term extending up to five years, and also with fine extending up to five thousand rupees. There is an exception attached to this section according to which the section does not extend to (a) any book, pamphlet, paper, writing, drawing, painting, representation or figure (i) the publication of which is justified for public good on the ground that the same is in the interest of science, literature, art or learning or other objects of general concern, or (ii) which is either kept or used bona fide for religious purposes. The exception also does not extend to (b) any representation which is sculptured, engraved, painted or otherwise represented on or in (i) any ancient monument within the meaning of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (24 of 1958), or (ii) Any temple, or on any car used for the conveyance of idols, or kept or used for any religious purpose. This section has replaced the old section 292 which was inserted in the Indian Penal Code by Act VIII of 1925. Under the present section selling, or letting to hire, or distributing or publicly exhibiting, or circulating book etc.
, or any representation or figure or object which is obscene is an offence, and keeping abovementioned things for purposes of sale etc. or having it in one’s possession is also an offence. Similarly, importing, or exporting or conveying such thing is an offence if the same is for any of the abovementioned purposes or there is knowledge or reason to believe that it is for such a purpose. Taking part in or receiving profit from any business from such thing knowingly or having reason to believe is also an offence. Similarly, advertising or making known by other means about the actual or prospective engagement of a person in act which is an offence is also punishable and so is offering or attempting to do any such act. The exception exempts liability when the publication is for public good on the lines suggested or when such matter is used bona fide for religious purposes. Similarly, any representation etc.
on an ancient monument or temple, or car used for conveying idols or kept or used for religious purposes is exempted from liability. Even though the word ‘obscene’ has not been defined, use of the words ‘shall be deemed to be obscene’ in subsection (1) creates a fiction, and anything which is lascivious or which appeals to the prurient interest or the effect of which has tendency to deprave and corrupt persons is ’obscene’ within the meaning of this section. Cockburn, C. J.
, has laid down the test of obscenity in the famous case of R. v. Hicklin, which has been widely accepted as the correct exposition of the law. According to him, 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 influence 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 year, thoughts of a most impure and lubricious character. The Supreme Court has accepted this test in Ranjit D. Udeshi v. State. The appellant who was one of the four partners of a firm owning a book stall was convicted along with other partners under section 292 by the magistrate for keeping a banned book named ‘Lady Chatterley’s Lover’ in his stall for sale.
The High Court and the Supreme Court maintained his conviction. The Supreme Court observed that treatment of sex in such a way as to appeal to the carnal side or as to have a tendency towards that is obscene, and it must be seen as to whether such a matter is likely to deprave and corrupt those whose minds are open to such influences and into whose hands such material is likely to fall. Obscenity which is offensive to modesty or decency cannot be protected on the ground of the constitutional protection of freedom of speech and expression guaranteed by Article 19 (1) (a) as this freedom is subject to reasonable restrictions in the interest of public order, decency or morality. In Chandrakant Kalyandas Kakodkar v. State, the Supreme Court said that where the argument is that an allegedly obscene matter is actually a work of literary merit, the views of leading literatures could always be sought. The court must take an overall view of the entire work and then decide whether specific passages are really obscene, bearing always in mind the influence of the book on the social morality of a contemporary society. Mere showing of a nude female body does not necessarily mean that the same is obscene.
The prosecution has to prove that it is likely to arouse unhealthy lustful thoughts in the mind of the viewers. Where the author of a book or novel does not use any vulgar, immodest or unprintable language but at certain places he has tried to let the imagination of the reader to grow, it could not be held to amount to obscenity. Any material inciting extreme immoral perversion in respect of sexual indulgence leading to depravity and degeneration and introducing carnal desires seeking immoral satisfaction is punishable under this section. To decide as to whether a material is obscene or not the court must try to find out as to what effect the publication would have on ordinary members of the society. The standard of the reader is neither one of exceptional sensibility nor one of without any sensibility. It is no defence to say that the information in the offending book has been copied from another source.
If the offending book deals with sex matters in such a manner as to stir sex impulses and leads to impure sexual thoughts amongst the youth corrupting their mind in the process, the guilt under this section is established. The law of obscenity is to be interpreted in its proper perspective in the present day when India is required to take a realistic view of steps to be taken to check its population explosion. Emphasis on sex education and family planning has to be laid through books, posters and such other materials including audio and video cassettes in a little more open manner but without corrupting or depraving the morals. More latitude needs to be given to matters of interpretation so that the courts take a just and reasonable stand to eliminate pornography and vulgar sex from a correct public awareness towards sex education in national interest. In Samaresh Bose v. Amal Mitra, the appellant, a famous Bengali writer, published his novel ‘Prajapati’ in a Bengali journal. While setting aside his conviction under section 292, the Supreme Court held that a vulgar writing is not necessarily obscene.
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 influence. A judge should, while judging whether a material violates the anti-obscentity law, first put himself in the place of the author and try to understand his view point. He must then put himself as a reader and try to assess as to how does he actually feel while reading the material. He must thereafter apply his judicial mind dispassionately to come to a conclusion.
In the process he is entitled to call for the views of eminent literary men to know about how they feel towards such expression. The novel in question, inter alia, described a female human body in all its sensitivity. But by that alone obscenity or otherwise cannot and should not be determined. The book intended to expose various evils and ills prevailing in the society. Emphasis on sex, description of female human body, use of slangs and narrations of feelings, thoughts and actions are all part of the expression chosen by the author with a view to bring out the shock and disgust present in today’s society. The novel is not depraving and lascivious and, therefore, not obscene. In PromiIla Kapur v. Yash Pal Bhasin,’ the appellant was the writer of a book ‘Indian Callgirls’ which was the abridged version of her book ‘The Life and World of Callgirls in India’.
She is a sociologist and the publication was a piece of research. It also contained interviews with call girls and described their encounters with males including first experiences of a few of them. Since the book had been written with the view to make a strategy to fight this malaise, it was held to fall under the exception to section 292, and thus was not obscene. In Jagdisli Chavla v. Slate the Rajasthan High Court observed that possession of obscene object is punishable under section 292 if the possession is for the purpose of sale, hire, distribution, public exhibition or circulation and, therefore, persons found viewing obscence film on television with the help of video cassette recorder cannot be charged for an offence under this section. Sections 292 and 79 of the Code, and Certificate of the Censor Board The Supreme Court has deliberated upon the question of importance of the issuance of a certificate by the Board of Censor in a case to judge obscenity and a defence under section 79 of the Code.
In Raj Kapoor v. State? the court observed that a certificate granted by the Board of Censor to a film under the Cinematograph Act, 1952 is not an irrebuttable defence to the producer of the film but is definitely relevant for consideration by the court. In Raj Kapoor v. Laxman, the court allowed the defence of mistake of fact under section 79 to the producer on the ground that the issuance of the certificate for screening of the film in public by the Board of Censor under the Cinematograph Act, 1952 made the producer believe in good faith in mistake of fact that he was justified in screening the film for public viewing. In G. P. Lamba v. Tarun Mehta, a certificate by the Board of Censor was granted for public screening of an English film ‘Together with Love’.
An advertisement of the movie in a local newspaper carried a picture of a woman along with two captions reading ‘Most intimate scenes ever filmed’ and ‘Secrets of sex American style’. The court observed that granting of a certificate by the Censor Board is not a bar to prosecution, though it is important from the point of view of evidence. A liberal view was taken by the court in view of the modern trend on sex education and family planning. Where the respondent, owner of a press, published six books titled Kamsutra, Rati Rahasya, Anang Rang, Panch Sahayak, Kamkala and Suhagrat which he claimed to be Hindi versions of old works of eminent writers, but also included nude pictures of women which did not exist in the originals, it was held that he was guilty under section 292 of the Code as his intention could not be to educate people about sex but to earn money by greater circulation. Obscenity and probation In Uttam Singh v. Delhi Administration, the accused was convicted under section 292 for selling a pack of playing cards on the reverse side of which lurid obscene pictures of men and women in pornographic sexual postures were printed. Later two more such packs were recovered from his shop. On appeal with respect to the quantum of punishment only, the Supreme Court held that he could not be given any benefit under section 4, Probation of Offenders Act, 1958 as his act had a tendency to corrupt the internal fabric of the mind and so deserved to be punished severely.
Abetment of obscenity In B. Rosaiah v. State, the accused was a viewer of a blue film. There was no allegation that he had intentionally exhibited or arranged exhibition of the film.
It was held that he was not guilty of abetment of obscenity. Other Indian and English statutes In addition to sections 292, 293 and 294 of the Code, there is another important Indian statute, Violation of Indecent Representation of Woman (Prohibition) Act, 1986. In P. K. Somnath v. State, proceedings under the above named Act were allowed by the court to continue and the differences between obscenity and pornography were clearly stated.
In England, the law of obscenity is now governed by the Obscene Publications Act, 1959 which was subsequently amended by the Obscene Publications Act, 1964 and the Criminal Law Act, 1977, and obscene publications are no longer regarded as common law libel. The offence under section 292 of the Code is cognizable, bailable and non- compoundable, and is triable by any magistrate.