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Rethinking Obscenity: An Overview

Apart from being ambiguous and arbitrary, India's obscenity laws have real-world implications for India's scientific temper, societal openness, and artistic freedom.
Obscenity

Representational use only.Image courtesy:depositphotos.com

One of the main characteristics of Indian law is its ambiguity. The lack of sufficient definitions for crimes leaves one to rely on often contradictory and outdated case laws. The ambiguity mentioned above is extremely prevalent in the case of obscenity, which is repeatedly used against artists, filmmakers, and writers. The latest target of this is actor Ranveer Singh, whose pictures in Paper magazine have led to an FIR being filed against him by a Mumbai-based NGO under Sections 292 (sale of obscene books, etc.), 293 (sale of obscene objects to young people), 509 (word, gesture or act intended to insult the modesty of a woman), along with provisions of the Information Technology Act.

History

Many stalwarts of the Indian cultural scene have been at the receiving end of the obscenity laws. One of the most well-known cases is of Urdu writer Saadat Hasan Manto, who was charged with obscenity six times. Many progressive writers of the time, like Ismat Chughtai, were also charged with obscenity for their honest portrayals of Indian society.

One of the most well-known instances of obscenity in recent times was Kerala's Kiss of Love protest, which took place in 2014 against the issue of moral policing. While the Supreme Court has maintained, through a series of landmark judgments, that kissing in public does not constitute an offence per se, several cases have been registered under obscenity laws against people involved in the protest.

Defining Obscenity: Tests and Case Laws

The term "obscene" is not clearly defined in Indian law, leaving it up to the courts to decide whether a case holds merit.

There have been three main standards under which obscenity is decided upon in India,

Hicklin Test: The Hicklin test comes from the United Kingdom case of Queen v. Hicklin, famously applied in Ranjit D. Udeshi v. State of Maharashtra. The Hicklin test examines whether the impugned matter tends to "deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall." After application of the Hicklin Test, the court charges the accused with obscenity for selling D.H. Lawrence's book Lady Chatterley's Lover.

Roth Test/Community Standards: In Roth v. United States, the United States noted that sex and obscenity should not be viewed as interchangeable terms. It was determined that only sex-related materials that had the potential to arouse lustful thoughts were deemed to be obscene and that these materials must be assessed from the perspective of the typical person by using contemporary community standards. The Community Standards Test says that the art or any gesture or content is obscene only if the dominant theme taken as a whole is opposed to contemporary community standards.

The Court applied these tests in Aveek Sarkar v. West Bengal, where the case was against Anandabazar Patrika and the magazine Sports World, which featured a naked photoshoot of Boris Becker and his fiancee. The court held that the pictures were not obscene, and the charges were dismissed.

When determining whether or not a nude picture showing "Bharat Mata" can be said to be obscene, the Delhi High Court was dealing with the case of Maqbool Fida Husain v. Raj Kumar Pandey. The judge refused and continued, saying, "nudity or sex alone cannot be said to be obscene."

The Hon. Supreme Court maintained its ruling in the Bobby International case, which stated that sex and obscenity are not always synonymous and that it is incorrect to categorise sex as basically obscene, much alone disgusting or immoral.

"Morality" and its Consequences

There are two arenas of obscenity laws being used in India.

Firstly, there is constant harassment by the police of young couples, which often extort money using the threat of obscenity laws. This is such a common phenomenon that it is showcased in media as well, recent examples being Neeraj Ghaywaan's Masaan and Amazon Prime's show Made In Heaven.

The issue of policing public spaces is also multilayered. While most young couples are targeted, interfaith, inter-caste and queer couples are more likely to be vulnerable when cornered by the police. The issue of public space is also a class issue, and the fact of who can afford private spaces (of their flats or well-established hotels) must be taken into consideration.

Secondly, the majority of obscenity cases that are filed are against media, art, and literature. From the well-known cases of M.F. Hussain and Perumal Murugan, there are also cases filed against smaller publishers. Since adopting the Community Standards Test, the judicial system has been dismissing obscenity charges for the most part. However, the process remains the punishment, and these charges often create an atmosphere where the creators of art always have to be cautious and fearful.

The common thread that runs across both arenas is the issue of morality and its weaponisation. Vigilante action, prominently from religious groups and right-wing political parties, ensures there is deep-set repression of sexuality and all discourses around it. This repression creates a deeply conservative and hypocritical society that is often obsessed with the ideas around sex and sexuality behind closed doors but is afraid of its discussion in public. India is one of the world's biggest consumers of pornography, ranking 3rd, well above most Western nations. Unsurprisingly, most other countries that rank high on the list are conservative, like Pakistan and Poland.

The disgust toward "obscene" topics in public spaces leads to the lack of sex education in India. Discussions around consent and pleasure are non-existent, and India's taught to be ashamed of discussing these things to preserve a sense of cultural morality. In reality, this has far-reaching and devastating consequences.

Children and women are particularly vulnerable to sexual assault if they are kept in the dark about sexuality and the violence it can result from, frequently carried out by friends and family. According to a poll conducted by the Ministry of Women and Child Development, 50% of boys and girls in India experience sexual abuse at some point in their young lives. Most Indians have no comprehensive knowledge of safe sex practices and sexually transmitted diseases (especially HIV).

Apart from being ambiguous and arbitrary, India's obscenity laws have real-world implications for India's scientific temper, societal openness, and artistic freedom. There needs to be a space for reforming how the police, institutions, and politicians treat the topics of sexuality in public.

The writer is a Political Science graduate from Kirori Mal College, Delhi University. All views are personal.

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