INTRODUCTION

Fundamental rights are enshrined in the Indian constitution under Part III. These basic rights are
fundamental rights that we get right from birth. No single person or state may take away the
same from us.

In particular, there are six fundamental rights: the right to equality (Articles 14-18), the right to
freedom (Articles 19-22), the right against exploitation (Articles 23 and 24), the right to freedom
of religion (Articles 25-28), educational and cultural rights (Articles 29 and 30) and the right to
constitutional remedies (Article 32).

Meaning of freedom of speech and

expression

The right to express one’s own ideas, thoughts and opinions freely through
writing, printing, picture, gestures, spoken words or any other mode is the
essence of freedom of speech and expression. It includes the expression of
one’s ideas through visible representations such as gestures, signs and other
means of the communicable medium. It also includes the right to propagate
one’s views through print media or through any other communication channel.

This implies that freedom of the press is also included in this category. Free
propagation of ideas is the necessary objective and this may be done through
the press or any other platform.

Article 19 (1)(a) of the Indian constitution

In India, the freedom of speech and expression is granted by Article19(1)(a) of
the Indian Constitution, which is available only to the citizens of India and not
to foreign nationals. Freedom of speech under Article 19(1)(a) includes the right
to express one’s views through any medium, which can be by way of writing,
speaking, gesture or in any other form. It also includes the rights of
communication and the right to propagate or publish one’s opinion. The right
that is mentioned above, guaranteed by our constitution
Union of India v Naveen Jindal and Anr.,[2]
Facts: The respondent Naveen Jindal was not allowed to hoist the national
flag at the office premise of his factory by government officials on the ground
that it was not permissible under the Flag Code of India.

Judgment: In this case, the high court held that the restrictions that the Flag
Code imposed on citizens on hoisting the National Flag were not permissible
under clause (2) of Article 19 of the Indian Constitution. The court has also
stated that displaying a flag is an expression of pride as well as an expression of
genuine enthusiasm and it can only be restricted in accordance with what has
been prescribed in the Constitution, otherwise, the restriction would discourage
the citizens or Indian nationals from identifying with the flag of the country.

OBSCENE MEANING

The word obscene came from a Latin term Obscenus which means ‘offensive’

especially modesty. The Oxford dictionary defines obscene as “offensive or
disgusting by accepted standards of morality and decency”, looks like a simple
word with a simple meaning.

The meaning of the word obscene not as easy to settle on for lawyers, it is a
challenge to set up criteria of obscenity. Because the terms obscene is define as
Literature, art, gesture, movie or any scene in videos also come under obscene
content if they violate contemporary community standards.

INDECENT ADVERTISEMENT MEANING

MEANING FROM THE PROHIBITION OF INDICENT ADVERTISMENT

BILL,
indecent advertisement" means advertisement depicting in any manner, a. horror or vulgar
scene or figure form or body of a male or female, whether nude or semi- nude, or any part
thereof, which may have the effect of being indecent or derogatory.

Anti-Obscenity Laws in India

 There are many laws in India to tackle with Obscenity some laws were too old
from colonial times, with roots in the Victorian era, but even after all these
laws, it is too hard to differentiate what is obscene or what is not. All the laws
discussed below:

Section 292 and 293 of IPC prohibit publication and sale of obscene
books, pamphlets, inter alia representation which shall be deemed to be
‘lascivious or appeals to the prurient interests’, which can include obscene
advertisements.

Section 294 prohibits obscene acts and songs. Whoever, to the annoyance of

others:

 Does any obscene act in any public premises, or

 Signs, recites or utters any obscene song, vulgar words, in or near any public
place.

shall be punished with the confinement of either description for a term which
may extend to three months, or with fine, or with both.

Any offense related to obscenity in electronic form can be tried under the IT
Act and not under the IPC as Section 81 of the IT Act clearly states its
overriding effect

The Indecent Representation of Women (Prohibition Act), 1986

The act punishes the coarse representation of women, which means “the
illustration in any other manner of the figure of women; her from or any other
part thereof in such way as to have the effect of being indecent, or outrageous
to, or denigrating women, or is likely to deprive, corrupt or injure the public
virtue or morals.

Punishment 

 First Offence : Imprisonment upto two years and a fine of two thousand.
 Repeat Offence : Imprisonment upto five years and fine of ten thousand to
one lakh.

Information Technology (Amendment)

Act, 2008
 Section 67(A) makes it clear that a publication of sexual content on a social
media site will lead to a punishment.

Punishment

 First Offence: Five years with a fine of rupees ten lakh.

 Repeat Offence: Seven years with a fine of rupees ten lakh.

Section 67(B) of the amendment is the turning point of the children

movement in India which is against child pornography this law makes it clear
that not only publication, viewing but also possession of such pornographic
content is punishable.

Punishment

 First Offence: Five years with a fine of rupees ten lakh.

 Repeat Offence: Seven years with a fine of rupees ten lakh.

Young Person’s (Harmful Publications) Acts, 1956

If any person advertises or makes known by any means whatsoever that
harmful publications can be procured from or through any person, shall be
punishable.

Punishment

 Imprisonment which may extend to 6 months or fine or with both.

National Human Rights Commission

NHRC, doing with the State Human Rights Commission, has the power to
look into the protecting dignity of women in advertisements.

Section 2(d) of NHRC Act (see here) states that human right means the
rights relating to life, liberty, equality and dignity of the individual guaranteed
by the Constitution or embodied in the International Covenants and applying
by courts in India.

 Aveek Sarkar v. State of West Bengal (see here) in this case a German

Magazine published a photograph of Boris Becker, a renowned tennis
player, posing nude with his fiancée Barbara Feltus, an actress covering her
breasts with his hand. The picture was taken by Feltus’ father. The article
that contained this image was republished in the Indian newspapers and
 magazine. After this, a complaint was filed against the newspaper under
Section 292 of IPC. But the Supreme Court of India ruled that the half-nude
image of Boris Becker with his fiancée was not obscene, after applying the
community standard test, and the reason is that the image is not obscene
because it did not excite sexual passion or to deprave or corrupt minds of
people.

 Ranjeet D. Udeshi v. State of Maharashtra 1964 (see here) In this

case, Ranjeet D. Udeshi is one of the owners of the bookstall. At that time,
there was a book named Lady Chatterley’s Lover (see here) which was
banned because the book had some obscene content and he found some
copies of the book. He was guilty under Section 292 of IPC, in his appeal in
the highest Court he contended that: (1) the section was void because it
violated the freedom of speech and expression guaranteed under Article
19(1)(a) of the constitution of India. (2) even if the section was lawful, the
book was not obscene content. (3) it must be pointed out by the plaintiff that
he sold the book with the motive to corrupt the buyer and that he knew that
the book was not obscene.

Milind Soman, a youth icon, actor and model, recently posted a picture of
himself on his Twitter handle in which he is running nude on the Goa beach in
the state to mark his birthday with a Caption – Happy Birthday to me, 55 and
running. He was arrested by the Goa Police under section 294 of IPC for
promoting the obscene act in a public place and also section 67 of Information
and Technology act for publication of obscene content on the social media but
according to him, he was promoting his fitness