Obscenity: present and possibilities
“The law is dynamic and is expected to diligently keep pace with time and the legal conundrums and enigmas it presents”.
-VikramajitSen J. in ABC v The State (NCT of Delhi)
Factual condition
On 15th April, 2013, an Indore-based advocate filed aPublic Interest Litigation in Supreme Court for ban on pornographic content available on internet. Acting under this petition, the government placed before the Cyber Regulation Advisory Committee the issue of pornography on internet. The apex court also directed the government to place a copy of writ petition before the committee to help it form an opinion on the matter.
The court had initially accepted the arguments presented in the petition, as it directed the government to find a way to ban porn [28th August, 2014] but recently [8th July, 2015], the bench headed by the Chief Justice H.L. Dattu refused to pass any interim order on this matter stating that it will be violation of article 21 of the constitution.
On 3rd August, 2015 Department of Electronics and Information Technology banned 857 such websites. But according to news reports and later confirmed by Communications and Information Technology minister Ravi Shankar Prasad, this ban is to be partially lifted soon after criticism. Also, the ban is to stay on those websites which promote child pornography as the same is offence.
Legal Stand
Our constitution provides us with the fundamental right of freedom under article 19 and right to personal liberty under article 21. But the former is restricted under clause 2, article 19. According to article 19(2), government can put reasonable restriction when it comes to:
“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”.
The exception which comes to play in recent scenario is of “decency or morality”. One thing to be noted and which is quite a misconception among most of the people is that it is not just related to sexual morality but is a much wider term.
The law related to obscenity is covered under section 292 of Indian Penal Code, 1980. Obscene has been defined under section 292 as:
“if it is lascivious or appeals to the prurient interest or if its effect, or (where it comprises two or more distinct items) the effect of any one of its items, is, if taken as a whole, such as to tend to deprave and corrupt person, who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it”.
Section 292 makes only distribution and circulation of obscure material punishable. But the real question that arises is “what is the test for obscenity?”
The courts in India has used age-old test developed in 1869, called the Hicklin test. This test was laid down by Cockburn C.J. The test of obscenity is:
“the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and in whose hands a publication of this sort may fall.”
This test has been applied in cases like Ranjit D. Udeshi&Ors.v. State of Maharashtra and many other related cases.
With society progressing and standards of obscenity changing, the test also demands change. A hint of change was seen in the case of Samaresh Bose v. AmalMitra, when the court saw obscenity in context of changing social outlook.
A major change was brought in the much recent case of AveekSarkar v. State of West Bengal. The SC in this case adopted the modern test of “community standards”. According to this test, standards of the contemporary society are applied to ascertain obscenity. Generally, it is the jury which ascertain the standards but as the same does not exist in India, it is the judges who have the discretion in this matter. In the above case, it was held that mere nudity is not obscenity. If Hicklin test is to be applied, nudity also falls in the definition of obscenity which clearly shows obsoleteness of this test.
Conclusion
Banning porn on large scale is not possible. The government has itself admitted the difficulty in blocking pornography sites because there are around 4 crore such websites and when government blocks one, a new one comes along.
India is world’s largest democracy and has the second largest number of internet users in the world after China. It is to be seen what will be the final decision of the apex court in dispensing this petition. Whatever the decision will be, it will be the test of Indian judiciary, test of its dynamicity.