Whether the Appellants are liable for selling and promoting obscenity through the film

'Being Gay'?

It is humbly submitted that the Appallalant is not guilty of promoting and selling obscenity
through the movie “Being Gay”. The offence of promoting and selling obscenity has been
defined under Article 292of the Indian Pena Code.

The word “obscenity‟ is derived from the Latin word „obscaena‟ (offstage)1. The word can
be used to indicate a strong moral repugnance, in expression such as “obscene profits” or “the
obscenity of war‟. According to the Webster’s New International Dictionary, “It is offensive
to chastity or modesty, expressing or preventing to the mind or view something that delicacy,
purity or decency forbid to be exposed, impure as obscene language, obscene picture, impure,
indecent, unchaste, lewd.” The Indian Penal Code does not define the word ‘obscene’ and
this delicate task of how to distinguish between that which is artistic and that which is
obscene has to be performed by courts.

In R v. Hicklin10 , Chief Justice Cockburn laid down that “the test of obscenity is this,
whether the tendency of the matter charged as obscene is to deprave and corrupt those whose
minds are open to such immoral influences, and into whose hands the a publication of this
sort may fall. It is quiet certain that it would suggest to minds, of the young either sex, or
even to persons of more advanced years, thoughts as a most impure and libidinous character."
The Supreme Court of India followed the same approach as laid down in Hicklin‟s case and
applied the same in the Ranjit D. Udeshi v. State of Maharashtra11 without any attempt for a
definition of obscenity.12

1
A cognate of the Ancient Greek root „skene‟, because some potentially offensive content, such as murder or
sex was depicted offstage in classical drama.
2. The movie had a social purpose to serve .

Since the main motive of the director in making the movie as mentioned in the facts was to
convey a social message regarding the much marginalised section of the society i.e the
LGBTQ community. The director intened to make the film to dpict the socio-religious
intolerance faced by the homosexual couples in India , it is humbly submitted that the social
values and meaningfulness of the movie must be taken into account while deciding the issue.

As in the case of Ranjit D Udeshi v State of Maharashtra, it was pointed out by the
Honourable Supreme Court that “Where obscenity and art are mixed, art must so
preponderate as to throw the obscenity into a shadow or the obscenity must be so trivial and
insignificant that it can have no effect and may be overlooked. In other words, treatment of
sex in a manner offensive to public decency and, judged by our national standards,
considered likely to pander to lascivious, prurient or sexually precocious minds, must
determine the result.”

Further in the case In K.A. Abbas v. the Apex Court, in the context of Cinematograph Act,
following the Further in in Ranjit D. Udeshi, held that it is not the elements of sexual
immorality which should attract the censor's scissors, but how the theme is handed by the
producer. Paragraph 50 of the decision of the Apex Court in the said case reads thus :
“. Therefore it is not the elements of rape, leprosy, sexual immorality which should attract the
censor’s scissors but how the theme is handled by the producer. It must, however, be
remembered that the cinematograph is a powerful medium and its appeal is different. The
horrors of war as depicted in the famous etchings of Goya do not horrify one so much as the
same scenes rendered in colour and with sound an\

d movement, would do. We may view a documentary on the erotic tableaux from our ancient
temples with equanimity or read the Kamasutra but a documentary from them as a practical
sexual guide would be abhorrent.”

The Supreme Court ruled in the Bobby International Case that the scenes depicting nudity
must not be seen in isolation. They must be seen in the context or the background in which
they (film, portrait, writing, and photograph) are made. The message being conveyed through
the portrayal is of utmost importance when deciding the obscenity of an act.

Freedom of speech and expression:

It is humbly submitted before the coutrt that it must also be taken into account that freedom
to think and act differently is an essential feature of democracy. The said freedom includes
freedom to react and respond to same situations differently and distinctly. One cannot expect
everybody to express themselves in the same manner. After all, film making is a creative
work. If freedom to express one's ideas is not conceded, there will not be any creativity at all.
Looking at one or two scenes or expressions in the film, it cannot be said that the film offends
religious sentiments or that it is vulgar and obscene.

The High Court of Kerala in Jayan Cherian vs. Union of India & ors., has held that mere
rference to homosexuality and masturbation of women may not amount to obscenity or
vulgarity. The high court observed that it is the right of a film maker to make and exhibit his
film, as it is part of his fundamental right of Freedom of Speech and Expression guaranteed
under Article 19(1)(a) of the Constitution.

In the case of Raj kapoor and others v state and ithers justice Krishna Iyer thatIyer observed,
“The world’s greatest paintings, sculptures, songs, and dances, India’s lustrous heritage, the
Konarks and Khajurahos, lofty epics, luscious in patches, may be asphyxiated by law, if
prudes and prigs and state moralists prescribe paradigms and prescribe heterodoxies.”

Referring to the freedom of speech and expression the judges in the case of M.F HUssai
stated that According to the judges, “There are very few people with a gift to think out of the
box and seize opportunities, and therefore such people’s thoughts should not be curtailed by
the age-old moral sanctions of a particular section of society having oblique or collateral
motives who express their dissent at every drop of a hat.”