What does Indian Law say about Obscenity?

Context: Assam Police have registered a complaint against YouTuber Ranveer Allahbadia and comedian Samay Raina for allegedly making obscene remarks during an appearance on the YouTube show. They have been charged under Section 296 of the Bharatiya Nyaya Sanhita (BNS), 2023, and are currently under investigation by Mumbai police.

Relevance of the Topic:Prelims: Key facts about obscenity laws in India. 

Legal Provisions on Obscenity in India

• Section 294 of the BNS, 2023
  • It punishes selling, importing, exporting, advertising, or profiting from obscene materials (books, paintings, figures, electronic content, etc.)
  • Defines obscene content as "lascivious or appealing to the prurient interest" or content that could "deprave and corrupt" readers, viewers, or listeners.
  • Punishments:
    • First-time offense: Up to 2 years imprisonment + fine up to ₹5,000.
    • Repeat offense: Up to 5 years imprisonment + fine up to ₹10,000.
• Section 67 of the IT Act, 2000 (For online obscene content):
  • Similar definition as Section 294 of BNS but has stricter punishment:
    • First-time offense: Up to 3 years imprisonment + fine up to ₹5 lakh.
    • Repeat offense: Up to 5 years imprisonment + fine up to ₹10 lakh.
• Section 296 of the BNS, 2023 (Applicable in this case):
  • Criminalises obscene acts in public places or the utterance of obscene words, songs, or ballads that cause public annoyance.
  • Punishment: Up to 3 months imprisonment and/or a fine up to ₹1,000.
• Indecent Representation of Women (Prohibition Act), 1986:
  • Punishes the coarse representation of women.
  • Punishment for first offence: Imprisonment up to 3 years and a fine of ₹2 thousand.
  • Repeat Offence: Imprisonment up to 5 years and fine of ₹10 thousand to ₹1 lakh.
• Information Technology (Intermediary guidelines and Digital Media Ethics) Rules, 2021: Amendments impose a legal obligation on intermediaries to make reasonable efforts to prevent users from uploading fake news.

Judicial Interpretation of Obscenity in India

• Hicklin Test (1868, UK): Established in Regina vs Hicklin, this test judged obscenity by whether the content had the potential to corrupt those “open to immoral influences,” regardless of its literary or artistic merit.
  • This test led to a low threshold for obscenity, as it focused on the impact on the most impressionable audiences.
• Ranjit D. Udeshi vs State of Maharashtra (1964, India): The Supreme Court upheld the Hicklin test while declaring Lady Chatterley’s Lover obscene.
• Modern Approach: Community Standards Test
  • US Case: Roth vs United States (1957): Rejected the Hicklin test and introduced a new standard:
    Obscenity should be determined based on the dominant theme of the work, taken as a whole, and whether it appeals to prurient interest based on contemporary community standards.
  • India: Aveek Sarkar vs State of West Bengal (2014): The Supreme Court adopted the community standards test, ruling that isolated passages cannot be taken out of context to judge obscenity.
    • Example: It quashed charges against a magazine for publishing a nude photo of tennis player Boris Becker with his fiancée, stating that it did not arouse lust but had an artistic and social message. 

Obscenity and Online Content:

• College Romance Web Series Case (2024): The SC has quashed obscenity charges under Section 292 of IPC and Section 67 of the IT Act. It held that mere usage of explicit language does not automatically qualify as obscenity if it does not arouse sexual desire. SC applied the community standards test and ruled that such language often expresses emotions like anger, frustration, or excitement rather than prurience.

Conclusion

• In India, the obscenity laws have evolved from the Hicklin test (which had a rigid moralistic approach) to the community standards test, which considers changing societal norms.
• The BNS, 2023, IT Act, and previous judgments provide a framework to regulate obscene content in different mediums to balance free speech and public morality.
• Courts now take a contextual approach to determining obscenity, ensuring that content is judged as a whole rather than by isolated statements.
• The way forward is self-censorship of such content by the creators.