Introduction
Obscenity laws have a significant impact on the media and expression landscape, determining the parameters of what is considered appropriate for general public consumption. By prohibiting content that is deemed offensive, morally repugnant, or potentially harmful to public decency, these laws aim to protect society values. But the definition of obscenity is not always the same, it can be interpreted differently and changes over time in response to changing social mores and cultural standards. Therefore, navigating the complicated world of media content regulation requires an understanding of the specifics of obscenity laws and how the courts interpret and apply them. Examining obscenity laws provides insightful information about the delicate balance between individual liberties and communal values in the context of media and communication, from historic court cases that have shaped judicial interpretations to the ongoing discussions about the need to preserve public morality versus the right to freedom of expression.
The concept of the term obscene
The term “obscenity” originates from the Latin word “obscaena,” which originally referred to elements of a theatrical production that were kept offstage. Its modern usage encompasses things considered offensive or morally objectionable, extending beyond sexual content to include various forms of repugnant behavior or expression. It can be employed metaphorically to critique unethical financial gains as “obscene profits” or to condemn the immorality and brutality of war as “the obscenity of war.” In these contexts, “obscenity” denotes strong disapproval, highlighting the extreme offensiveness or immorality of the subject matter. The precise meaning of obscene is though still very ambiguous.[1] Though it can be explained as material, language, or behavior that is considered offensive, repulsive, or morally repugnant by prevailing societal standards of decency and morality. It typically involves content that is sexually explicit, vulgar, or otherwise deemed inappropriate for public consumption due to its explicit or graphic nature. However, obscenity can also extend to other forms of expression or conduct that violate commonly held moral or ethical principles, such as violence, cruelty, or gross disregard for human dignity. The definition of obscenity may vary depending on cultural, social, and legal contexts, and it often involves subjective interpretations based on individual perspectives and community standards. It is also important to note that Defining obscenity is Highly context-driven and could be specific to some parts of the world, what might be considered obscene in one place might not be considered obscene elsewhere.[2]
Several tests have evolved through various judgments that lay down what qualifies as obscene and what does not.[3]
Tests for What is Considered Obscene.
One prominent test used to assess obscenity is the Miller test, named after the U.S. Supreme Court decision in Miller v. California.. This test consists of three parts: the test states that “Firstly, whether the work, taken as a whole, appeals to the prurient interest according to contemporary community standards. Secondly, whether the work depicts or describes sexual conduct in a patently offensive way, as defined by applicable state law. And thirdly, whether the work lacks serious literary, artistic, political, or scientific value. The work is deemed obscene only if all three conditions are met.”[4]
Another significant test is the Hicklin test, which originated from the English case Regina v. Hicklin This test focuses on ascertaining whether the tendency of the material is to deprave and corrupt those exposed to it. It assesses the potential to corrupt individuals open to immoral influences and generally takes a broad view of what could be considered obscene.[5]
In the United States, the Roth test is also used, named after the case Roth v. United States. This test evaluates obscenity from the perspective of the average person, applying prevailing community standards. It considers how contemporary societal values influence perceptions of obscenity, recognizing that standards may evolve over time.[6]
Judicial interpretations of Obscenity in Indian Courts.
The interpretations of obscenity in India started with the case of Ranjit D. Udeshi v. State of Maharashtra, the Supreme Court of India was tasked with ruling on a matter related to obscenity. Ranjit Udeshi,[7] a partner in a firm owning a book stall in Bombay, faced prosecution under Section 292 of the Penal Code for selling and possessing copies of D.H. Lawrence’s novel “Lady Chatterley’s Lover,” which was deemed obscene under Indian obscenity laws due to its suggestive content. Udeshi was subsequently convicted and fined 20 rupees or sentenced to one week’s simple imprisonment. Dissatisfied with the verdict, the petitioner sought to challenge the constitutionality of Section 292[8] of the Penal Code. Justice Hidayatullah introduced a modified version of the Hicklin test. In his judgment for the Court, he outlined three key adjustments to the original English Hicklin test. Firstly, he emphasized that the mere presence of sex and nudity in art and literature could not automatically be considered evidence of obscenity; additional factors were required to establish obscenity. Secondly, he stressed that the depiction of sex alone was insufficient to be deemed as depraving or corrupting. Lastly, he highlighted the importance of assessing the work as a whole, considering both obscene and non-obscene elements, and determining whether the non-obscene parts outweighed the obscene ones, or if the obscenity was so minimal that it could be disregarded. The third modification to the test involved introducing a defense against charges of obscenity if the publication in question served the public good. This change was implemented through an amendment to the Penal Code in 1969. Under this amended law, the court was required to evaluate the entirety of the work. In the case of Samaresh Bose v. Amal Mitra,[9] the Court was tasked with determining whether the Bengali novel Prajapati was obscene due to its portrayal of sexual encounters and use of vulgar language. While the trial court deemed the matter obscene, the Supreme Court disagreed with this finding and noted that
“The concept of obscenity is moulded to a great extent by the people who are expected to read the book. It differs from country to country, depending upon the standards of morality. Even the outlook of a Judge may differ from another Judge as it is a matter of objective assessment of the subjective attitude of the Judge hearing the matter”
And later The Court also clarified that there is a distinction between vulgarity and obscenity.[10] Until 2014, both the Supreme Court and the High Courts in India applied the Hicklin test. However, in 2014, the Supreme Court officially abandoned this test in the case of Aveek Sarkar v. State of W.B[11]. In this case, the Court was tasked with determining the obscenity of a semi-nude photograph featuring a renowned German tennis player with his dark-skinned fiancée. Originally published in a German magazine, the photograph was subsequently reproduced in Sportsworld and Anandabazar Patrika. The Court concluded that simply depicting a nude or semi-nude woman in a picture did not constitute obscenity.
Kinds of Media on which the obscenity laws apply.
Obscenity laws are applicable to a diverse array of media formats, spanning print, broadcast, digital, and artistic realms. In print media, newspapers, magazines, books, and pamphlets fall under the purview of obscenity regulations, governing both written and visual content. Broadcast media, including television and radio, are subject to these laws, impacting broadcasts, advertisements, and programs aired to the public. With the advent of the internet, obscenity laws extend to digital platforms such as websites, social media, and streaming services, encompassing text, images, videos, and other digital content. Furthermore, motion pictures, television shows, videos, and other visual media are scrutinized for compliance with obscenity regulations. Artistic expressions, ranging from paintings and sculptures to performances and exhibitions, are also subject to these laws if they contain sexually explicit or offensive material. Additionally, advertisements displayed through posters, billboards, and commercials may be regulated for obscenity. Even live performances, such as stage plays, concerts, and public events, can come under scrutiny if they feature content deemed obscene. Overall, obscenity laws aim to regulate and control content that is considered offensive, morally objectionable, or harmful to public decency and morals across a wide spectrum of media formats.[12]
Impact and necessity of controlling obscenity from media
Controlling obscenity in the media is deemed necessary due to its significant impacts on individuals and society at large. One crucial aspect of this necessity lies in safeguarding public morals and values. Obscene content has the potential to undermine societal norms, eroding moral standards and cultural integrity. Additionally, regulating obscenity is essential for protecting vulnerable audiences, particularly children and adolescents, from exposure to harmful material that could lead to psychological distress or inappropriate behavior. Moreover, controlling obscenity aims to prevent harm by discouraging the normalization of detrimental behaviors such as violence, substance abuse, and sexual exploitation. It also plays a role in promoting public health by combatting the dissemination of unrealistic or harmful attitudes towards sexuality and relationships. Furthermore, regulating obscenity contributes to the preservation of social harmony by mitigating the dissemination of divisive or inflammatory narratives that could incite social unrest. While ensuring the regulation of obscenity, it’s also imperative to uphold the principles of freedom of expression, striking a balance between protecting individuals and maintaining liberties. In essence, controlling obscenity in the media serves to uphold public morals, protect vulnerable audiences, prevent harm, promote public health, preserve social harmony, and safeguard freedom of expression within legal and ethical boundaries.
Conclusion
Examining obscenity laws highlights how societal values and the right to free speech must be balanced when controlling media content. Courts attempt to negotiate the difficult terrain of what constitutes obscenity through judicial interpretations in landmark cases and tests such as the Miller and Hicklin tests. These laws raise significant concerns about censorship and individual liberties even as they work to safeguard vulnerable audiences and uphold public morals. It is necessary for legislators and attorneys to modify these laws to reflect modern values and protect fundamental rights as society views continue to change. In the end, the discussion around the control of obscenity in the media is still dynamic and ongoing, reflecting how ethical issues and cultural norms are constantly evolving.
Author : Srushti Joshi, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at IIPRD
References.
Cases
- Aveek Sarkar v. State of W.B.
- Regina v. Hicklin
- Ranjit D. Udeshi v. State of Maharashtra
- Roth v. United States
- Samaresh Bose v. Amal Mitra
- Bobby Art International v. Om Pal Singh Hoon & Anr.
- Jagdish Jugtawat v. State of Madhya Pradesh
- K.A. Abbas v. Union of India
- M/s Super Cassettes Industries Ltd. v. Board for Film Certification
- Raj Kapoor v. Laxman
- State of Maharashtra v. Firoz Nadiadwala
- State of Maharashtra v. Mohammed Hanif Quareshi
Books
- Singh, Mahendra Pal. V.N. Shukla’s Constitution of India. Vol. [Volume Number], Eastern Book Company, 13th ed., 2020.
- M P Jain, Lexis Nexis’s Indian Constitutional Law (HB) (2 Volumes), 8th ed. (Lexis Nexis, November 2022
[1] Ramanatha Aiyar, P. The Law Lexicon Of British India, 1940.
[2] William B. Lockhart, Robert C. McClure, Literature, the Law of Obscenity, and the Constitution, Minnesota Law Review,1954.
[3] Obscene Publication Act, 1959, S. 13.
[4] Marvin Miller v. State of California, 1973 SCC OnLine US SC 156 : 37 LEd2d 419 : 413 US 15 (1973).
[5] R. v. Hicklin, (1868) LR 3 QB 360.
[6] Roth v. United States of America, 1 L Ed 2d 1498 : 354 US 476 (1957).
[7] Ranjit D. Udeshi v. State of Maharashtra, AIR 1965 SC 881.
[8] The Indian Penal Code, 1860, S. 292.
[9] Samaresh Bose v. Amal Mitra, (1985) 4 SCC 289.
[10] Ibid.
[11] Aveek Sarkar v. State of W.B., (2014) 4 SCC 257.
[12] Coleman A. Young v. American Mini Theatres Inc, 49 L Ed 2d 310 : 427 US 50 (1976).
