Chapter-4

Constitution & Obscenity

In any society or country, law is formulated in the

reference to obscenity on the ground of public morality ever
prevalent in the society. These laws are always existent
aiming at maintaining public morality. Obscenity is always
concerned with sex, and sex to love, which is considered to
be the private affairs of the individuals.1 At present there is
the age of technological developments and we are so
immuned to cyber technology and ‘online’ activities. All
these have been randomly embraced by these in the trade of
pornography inserting a new wave of facilities and making a
new inroads to information super highway. ‘Net’ is
constantly used and along with it the dissemination of
2
computer pornography via internet is posing grave
challenges creating negative images of and adverse attitude
towards women-the tender sex.3 Now a day’s most of the net
groups are committed to sexual topics. It is a crude fact that
every new medium of vocalisaion has been off and on used
1
The New Encyclopaedia Britannica, Vol. 8, at p. 857 (1993-USA)

2
Oxford Encyclopaedia Dictionary, Vol. 2, at. page-1164

3
Oxford Encyclopaedia Dictionary, at. page-79 (vol.1)

1
to strew information about sex resulting in a flourishing
4
market of pornography on several websites. Its
pervasiveness and all increasing accessibility in an easy way
are the areas of great concern. 5 While discussing the
constitution of India regarding obscenity, we are confronted
with the relevant issue invoked in Birmingham crown court
case, R.V. Fellows. 6 In this case the decision of the court
made it clear that the copy of an intangible object which can
replicate is a copy of its photograph and anyone allowing
access to this information knowingly would come under the
meaning of “distribute” as envisaged by the protection of
children Act. 1978, which the defendant was prosecuted
under.7

Hence, it would be proper to say that the study of

judicial trends in India is very much relevant to discuss. For
it, it is necessary to review Indian position in this regard as
the legislature and judiciary have not kept pace with
technology. However, if we look at the laws working in the

4
The New Encyclopaedia Britannica, Vol.- Page-594 (1993-USA)

5
Oxford Encyclopaedia Dictionary, at. page (Vol-1)

6
In AIR 1957 SE 2299, at page-2380 (Gandhi V. Rajnaryan)

7
Section 292, I.P.C. re-numbered as sub-section (2) thereof and sub-section (i) added by Act 36
of 1969, Section 2

2
reference to obscenity, there seems to be two types of law-
(1) The Indecent Representation of women (Rohibition) Act,
1986 8 and (2) Section 292 9 of the Indian Renal code. 10
According to it, article 19 (2) provides for the grounds of
reasonable restriction on the freedom of speech and
expression.11

Obscenity Constitution wise-

Parliament and the state legistlatures think it

possible to impose reasonable restrictions on freedom of
speech and expression on the ground of public decency and
morality as in the Article 19(2) of the constitution. 12 The
transmission of obscene messages is banned and it is not
unconstitutional. The reason behind it is that the
pornography comes in law speech category and the harm it
produces is sufficient to justify the regulation of that
expression.13 The supreme court of India held the opinion in
8
Punishbale under S. 293, I.P.C.

9
Punishable under S. 294, I.P.C.

10
Indian constitution in Article 19

11
Indian constitution in Article 19 at 51.1

12
Enacted vide Act. No. 60 of 19686

13
Section 2(a) provides advertisement includes any notice, circular label, wrapper or other
document and also includes any visible representation made by means of any light and sound.

3
the case of Ranjit D. Udeshi V. State of Maharashtra14 that
speaking in terms of the constitution it can modesty or
decency is within the protection of the constitution given to
free speech and expression. There are cherished rights on
which our democracy rests which is meant for the expression
of free opinions to change political and social conditions or
for the advancement of human knowledge. This freedom is
subject to reasonable restriction that may be thought
necessary in the interest of general public and one such is the
interest of public decency and morality.15

Obscenity Definition wise-16

The major portion of Indian law has been taken from

English Law and obsceninty is no exception. Section 292 of
the Indian Penal code explains the definition of obscenity,
which is as follows-

“Book pamphlet, paper, writing, drawing, painting,

representation, figure or any other object, shall be deemed to
be obscene, if it is lascivious or appeals to the prurient

14
Section 5(a), (b) and (c) provide that no entry under this sub section shall be made into a
private dwelling house without a warrant.

15
Ragina Hicklin, (1968) LR Q 8, 360

16
State V. Thakur Prasad, AIR 1959 All 49, 1959 Cri LT 9

4
interest or if its effect, or (where it comprises two or more
distinet items) the effect of anyone of its items, is, if taken as
a whole, such as to tend to deprave and corrupt persons who
are likely, having regared to all relevant circumstances, to
read and see or hear the matter contained or embodied in it.”

This definition has been formulated by R.V.

17
Hiklin. and this the very same definition has been
incorporated under IRW Act.18 However, submission is that
the test laid more than one century age. Now it is out of date
because of changing community standard and it has not been
effaced from our panel statute. The test laid down has
become out of fashion. The reasons behind it are as follows-

1- It requires a subjective, speculative evaluation by the

judge regarding corrupting and depraving tendencies of
the body.

2- The boundaries of obscenity were based on the

purported vulnerability of a very specific class of
people, namely those minds are open to such moral
influences. Since children were considered the most

17
Kakodakar V. State of Maharashtra, AIR 1970 SC 1930: 1970 Cri LJ 1273 and Rajkpoor V.
Laxman, AIR 1980 SC 605: 1980 cri LJ 436

18
Published in oriya “Dainika Asha” at 22-12-1996 in column “Sambad Bichitra” (page 2)

5
 vulnerable the test “reduced treatment of sex to the
standard of a child’s library.19

3- This definition is not suitable to the modern

development occurring, as it is inefficient to tackle with
the computer pornography.

That is why, the supreme court of India abrogated

the Hicklin test and the three-prong test in Miller V.
20
California was developed. The test called for an
explanation of-

(a)“Whether the average person, applying contemporary

community standard, would find that work, taken as a
whole, appeals to the prurient interest in sex.21

(b) Whether the work describes or depicts, in a penalty

offensive way, Sexual conduct defined specifically by
the applicable state law;

(c)Whether the work, taken as a whole, lacks serious

literary, artistic, political or scientific value.22

19
Paripurnanada Verma, “Pathology of crime and Delinquency”, president, All India crime
prevention society (1972 Edr.) at page 161

20
Dealing with sale of obscene books etc.

21
Dealing with the sale of obscene objects to young persons.

6
 The Miller test is, in real sense, a constitutional
measure for establishing the parameters of obscenity.23

Regulation of Interest in abroad-24

25 26 27
As far as America, Canada, China, and
Singapore28 are concerned, they all have taken active steps in
order to regulated the dissemination of pornography on
internet. In all these countries, the respective governments
are so active taking regulation in their hands, so that
obscenity material could be censored properly. Very

22
Dealing with obscene acts and songs.

23
Section 3 of the Act deals with the prohibition of advertisements containing indecent
representation of women. The violation of the provision has been made punishable under
section 3 of the Act.

24
Prohibits to transmit or re-transmit through cable services of any programme which is
obscene, or incites violence or derogatory to women. The programme of foreign satellite
channels are not covered under this provision. See at page No. 6

25
Prohibits to transmit through cable service of any advertisements which is obscene, or incites
violence or derogatory to women. Also see section 5 and 6 of the cable television network
(regulation) Act, 1995

26
Deals with the punishment for contravention of provisions of act.

27
Bobby International V. Ompal Singh Hon. AIR 1996 SC 1846

28
Dealing with the power of Board of film censors to examine the film while issuing certificate
for public exhibition.

7
specifically, these countries have, via legislation,
criminalised the circulation of pornographic material on net.

The issues regarding regulation create lots of

problems. The main problem behind it is to but the internet
in one classified category of broad casting medium or point
to point communication. We are often mistaken to classify
the internet as either point to point communication or
broadcasting. Rather it is a hybrid.29

Basically speaking, there are three models30 through

which regulation of pornographic material could be done;

(i) A ‘Self-regulatory regime’ with a code of practice

and a complaint handling procedure.

(ii) A comprehensive education program to reinforce the

regime and assist in protecting children from
unsuitable material; and

(iii) Legislation containing ‘offensive provisions’ to

provide sanctions against individuals who
deliberately breach community standards.31

29
Dealing with the definition of indecent representation of women.

30
Dealing with the prohibition of advertisements containing indecent representation of women.

31
Dealing the penalty in case of violation of the Act

8
E-pornography in cyberspace-

Regulation regarding pornography and pornograbhic

material on the Internet creats the specific problem of
jurisdiction. The most vital question transpires the
determination of the question of jurisdiction-whether a
particular website could be susceptible to the regulation of
Indian law, which has been brought into or assessed by an
Indian resident but it follows the legal norms whether the
server is located. In this very situation which country law
will be applicable.32

If basically analyzed, jurisdiction plunges into two

issues-fairness to the person being sued; and comity and
equal, mutual respect that state would give each other. 33
However, as a general rule, court can hold one accountable
in one’s home state jurisdiction is basically an constitutional
metter. The relevant enquiry could be made by any court is
whether, under the facts of specific case, the non-resident
party has sufficient contracts or dealing with the foreign state
so that the exercise of jurisdiction over the non-resident state

32
See supra note 9

33
“Bijnor women protest against obscene films “The Hindustan Times, July 30, 1998”. Women
under the banner of “Gayatri Parivar” staged against the display of obscene film in the cinema
halls and indecent posters in public places.

9
would comply with the traditional nations of fair play and
substantial justice. It is very interesting to know that the
question whether a court can exercise its jurisdiction over the
non-resident defendant came up before the court in
compuserve V. Patterson. Where the court exercised its
jurisdiction but the court restricted its decision to fact
circumstances only.

Very important to ensure that the regulations of any

kind imposed on online services by different jurisdictions are
broadly inconsistent. National government will need to
cooperate if they hope to regulate trans-border data flow and
formulate international standareds for content.

Probles of setting international standard for obscenity-

It is very difficult to interpret the meaning of

community standard in a big world of computer networks,
the meaning of “Community Standard”- the test by which a
place of work is to be judged obscene. In Miller supreme
court ruled in effect that residents of Bible belt towns need
not to put with Time Square ranch. But in cyberspace where
physical proximity to an information source is not
significant. Miller-Style community standard is really
unenforceable. Because it was strongly argued that material
offered was not obscene according to the standard prevailing
10
in the society. But it was decision in an unprecedented case-
Sable communication V. FCC that a provider who is having
customers of different communities of different local
standards must bear the burden of complying. The court is
likely to treat the online services the same way.

As far as India is concerned, there is no debate or the

consensus over the matters of obscenity. No question, there
is, to draft any law or entering into any kind of legal
procedure. No doubt, pornography is the matter of deep
concern and Internet or cyberspace is no exception.
However, headlong rush to regulate may turn out to be more
dangerous to civil liberties, and intellectual growth than any
account of prurient rubbish pouring from the computers of a
new technology sarvy social deviants.

As far as the situation in India is concerned, the at

present regime in India, there is least possibility of putting a
restriction on the flow of obscene materials on internet and
other social media. The reason behind it is that the old laws
are quite no capable to deal with the net, nor will they be
accepted at all. In the year of 1996, the legislation as ‘the
communication decency Act’ was existent but only in theory
not in practice. It was not possible to enforce them in
practical aspects of cyber tech. This can be interpreted in a

11
way that censoring the internet is just like to build a wall of
sand to hold back the tides-the exercise in vain.

Considering the issue from a cost-benefit analysis, it

is imperative to measure whether the cost to the potential of
India to become a major player is worth the benefit derived
from shielding children from no-appropriate material.

For the prevention of this apparent inevitability,

there are following options to censorship should be given
serious consideration.

1- The government might be able to think of possibility of

making law regarding the pre-censorship of online
contents through VSNL. It has already been practiced
in other countries very successfully.

2- There are a number of software companies who are

adamant to create challenges making so many
programs that block access to sites carrying sexually
explicit or other offensive contants. Net Nanny, surf
watch, cyber patrol, Webfilter and so many other
websites are filtering software or PIES compatible
selection software that will enable children to access
educational material while shielding them from
offensive and harmful material.

12
 As online service cannot be Pigeonholed into a clear
area of law, technology may contribute the only practical
solution to regulating content. In fact, it seems to us that the
online service industry is automatically developing a kind of
technological solution to the issue of regulation of the online
content-at least in relation to the issue of suitable ways
addressing the other issue emerging from the currently
unregulated Internet.

Obscenity in electronic media & Films-

Indian films are, now a days, flooded with violence,

vulgarity, obscenity and so many antisocial activities marring
the nextgen particularly. And if is a social fact that Indian
films, Electronic media and TV-Serials have become
common affairs of life. It is surprising and alarming as well
that the scenes of nudity, rape, attempt to rape, kissing,
embracing, kidnapping for ransom, killing for money and the
songs like ‘Choli Ke Peechhe Kya Hai’, ‘Kudi Pat Gayee’,
‘Paon Bhari Ho gaya’, ‘Ladki Aankh Marre’, and many other
objectionable songs are in fashion at alrming rate in Indian
films & cinema. Moreover, TV serials are also loaded with
kissings and love making. The idea behind projecting the
educational institutions for co-educations gets marred
because the girl and boy students try to develop love-affairs

13
among them, has made the situation more critical. These all
have made the academic atmosphere in institutions more
polluted and misled our nextgen about the concept of true
love which totally differs from any sexual attachment.

What trend going on in TV serials and film is

creative ill effects on human life in different ways. The
reason behind it is that the cases of kidnapping and rapes,
looting, killing for money and variety of violence against
women and children are increasing by leaps and bounds.
These the very tendencies created and developed a feeling of
insecurity among people posing a grave challenge to the
situation of law and order in the country.

There is least doubt that certain legal provisions

have been made to check and control the problems of
obscenity, vionlence and vulgarity in the films and TV
serials. As for example-the acts of obscenity have been made
punishable under section 292 & 293 and 294 of Indian penal
code and the acts of representing the women indecently
(includes nudity etc) have been strictly prohibited and made
punishable under ‘The indecent representation women
(Prohibition) Act, 1986. Here, we would like to add that the
problem of obscenity, vulgarity and violence may be covered
under the ‘Programme and Advertising Codes’ prescribed

14
under the rule 6 and 7 of the ‘Cable Television Network
(Regulations) Rules, 1984 ensuring any programme or
advertisement transmitted through cable service should be
free from any obscenity, vulgarity and violence etc. If these
provisions violated, the culprit should be punished under
section 16 of the cable Televisions network Act. 1995.

The problems relating to obscenity, vulgarity,

violence and the depravity can be effectively controlled
under ‘The cinematograph Act. 1952. As per section 5(B)(i)
of cinematograph Act. 1952 certain principles for guidance
to the Board of Film censors have been formulated. In this
principle, it has been empowered to reject the request for
issuing certificate to any film. If found against the interest of
decency and the morality, the censor Board has full-fledged
authority to reject any film. Additionally, the Central Board
have enacted some rules & regulations regarding the
issuance of the certificate to the film. As the rules &
regulations enacted by the Central government, the central
Govt. requires the fulfiment of tems & condition to ensure:

1- That the media of the film remains responsible and

sensitive to the values and standards of the society.

2- That the film provides clean and healthy environment.

15
 3- That the film is of aesthetic value and of good standard
cinematically.

4- That the film is not offended by vulgarity, obscenity

and depravity.

5- That the scenes like sexual violence, rape, attempat to

rape or molestation have been avoided and if such
incident is germane to the theme, they should be
reduced to their minimum.

It is clear that in general, obsceninty, vulgarity,

depravity and sexual violence have not been permitted in the
films and TV serials. But there may be exceptions in which
sex, obscenity and violence may be allowed to go with the
reduction to their minimum, if necessary. On this point, the
Hon’ble Supreme Court has expressed the opinion in the film
‘Bandit Queen’ directed by Shekher kapoor. The courts
while setting aside the judgement of Delhi High Court
upheld the view of appellate tribunal wherein nudity and
rape scenes were permitted to explain the title of the film.

There is no question as to what extent the scenes of

rape and nudity reduced in any film to explain the title. But it
all should have rational relationship with the values and
standards of the society. The answer to this question lies in

16
the test. How the people react about such film? If the
majority of people in the country do not prefer to see the film
sitting together with their family members, than the criteria
of reducing the nudity and rape scenes (to explain the title)
fails to have any rational relationship with the values and the
standards of society.

As far as the trends in films and TV serials, are

concerned, it may be said that most of the people do not
prefer to see film sitting together with their family-members.
If people, sometimes, do, it gives them a feeling as if they
have been made either captive viewers to the scenes of
obscenity and violence etc. or captive listeners to vulgar
songs in films or Tv serials.

The Board of film censors has strong representation

of women but still obscenity, vulgarity and the violence are
flowing in our social life via films & Tv serials. These all
indicate that the Indian legal system has been miserably
failed while cheeking the same. Keeping these all in view,
the following suggestions are recommended-

(1) Dire need for developing some new Techniques to

measure public opinion about the need of obscenity,
violence, vulgarity in the film & TV serials-

17
 If the film & TV serial to make upto the expectation
of the people, the decision taken by the Film censor Board
regarding the need of obscenity, violence and vulgarity to
explain the title in the film, should be in such a way that it
may inspire the people to see them sitting together with their
family members. For measuring the extent of nudity, sex,
violence and rape, some mode of techniques with updated
application is badly required. Additionally, some of the
efficient techniques should be evolved to gauge public
opinion. This the very kind of technique may be good answer
to the producers who mostly take this excuse. For this
purpose, an effective amendments have been made according
to the section 4 of the cinematograph Act, 1952

(2) The Responsibility of the Directos, Producers and

Actors-

The responsibility of the directors, producers and

actors is supreme while maintaining the code of conduct
regarding the containment of obscenity, rape, violence and
vulgrity, increasing in film & Tv serials. Hence, the creation
of accountability of them towards these problems can be
quite helpful in controlling the same. Appropriate and
effective amendment should be made under the
Cinematograph Act, 1952

18
(3) Some specific liability of women to be created-

There is no doubt that most of the producers and

directors of TV serials or film should be held responsible for
causing the Indecent representation of women. But it is also
equally true that it is possible till the women working in the
films & TV serials give. Consent to do the acts of sexually
induced activity. In these circumstances, these women
should be held liable and responsible for their acts
amounting to indecent representation. It is quite essential to
do so. Keeping this in view, on effective amendment should
accordingly be made under section 2(c)(10), 3(11) and 6(12)
of the indecent representation of women (Prohibition) Act,
1986.

(4) Projecting the Educational Institutions in Films

& TV serials as places for the boys and girls students to
develop love affairs should be strictly prohibited-

Most often it has been realized that boy students and

girl students are projected creating love-scenes in
educational institutions. In most of the films and TV serials
this is morally wrong and it should be strictly prohibited. In
this context, very effective and suitable amendments should
be made under section 4 (13) of cinematograph Act, 1952

19
(5) Some of specific provisions should be created to
check and control the programmes of foreign satellite
channel-

Noteworthy is that the programmes of foreign

satellite channel are not covered by the ‘programme code’ of
the cable (Television networks regulation) Act, 1995. These
types of channel are the main source of spreading obscenity,
violence and vulgarity in the community. Hence, it is the
liability of the central government to check and control over
these programmes. It is quite necessary because the time
demandsit.

(6) Role of NGOs (Non-Government Organisations)-

It is a fact that the role of NGOs is really significant

in checking and controlling the problem of obscenity,
vulgarity and the violence trapping films & TV serials.
Hence it is clear that the role of NGOs should according be
encouraged.

No doubt, if the aforsaid suggestions are honestly

implemented, the problums of obscenity, vulgarity and
violence would be easily controlled. Its effective soluction is
quite possible. But for it, NGOs would have to be alert and
conscious. Additionally, it is also the responsibility of central

20
Govt, the respecteive state Governments and NGOs that they
realise the moral values and cultural heritage of the country
through a healthy and good entertainment of the films and
TV serials and cable channels.

(1) Crime of obscenity-to Socio-Legal parameters-

It is a real and cruel fact that the erotic scenes in the

films, obscene posters, pictures and use of labels and
advertisements very badly pose a serious problem with
threats hurting morality and deceney in the society. This
problem is not only fofired to one particular country, but also
is global in nature. Hence, this is the world-problem. From
the very beginning, the women are said to be the tender sex
and also the source of inspiration for poets, artists, sculptors
and writers as well. It is often said that ‘Behind every
successful man, there is a woman.’ If we start from Kalidas-
a legend in sanskrit literature to william wordworth. Every
me has truely and beautiful coloured the nature or woman by
adding life to the language. But with the pace of time,
woman have been, time to time, exploited. They are again
utilised for commercial purpose. And also Sex-appearing
obscene pictures and attractive nude posters are publically
exhibited in the large hoardings on street corners.

21
 In the Contemporary society, it is difficult to
confirm and verify obscenity. The reason behind it is that the
differentiation between obscenity and vulgarity is not easily
feasible. Projecting woman in naked postures and visualizing
her nude image is really the disrespect to mother-community.
Because ‘the womanhood’ is neither a commercial
commodity, nor a sexual enjoyment oriented object. Rather
she is regarded as’ ‘Shakti’ and responsible for upcoming
generation. Therefore, woman is accepted as the ‘incarnation
of divide mother and acknowledged as ‘the corter, butions of
Kausalya, Debaki, Mother Mary and Amina for bringing the
power of God as Ram, Krishna, Jesus and Mohammad for
the welfare of humanity. Hence, there should be stong
protest for using woman in obscene postures.

Now a days, the existing mad competition of

modern fashion, cultural pollution and consumerism attitude
are surfacing in the society. The ill effectes of western films,
cable TVs, exploing flow of obscene literature, obscene
picture, photo and painting are resulting into sexual crimes.
The human conduct is so depraved in society. It is infecting
the mass as a whole and the nextgen the future generations of
the country.

22
 Now the situations are also fast changing. It is our
duty to awaken our society that certain norms should be
evolved for the preservation of order and decency with
morality. What the standard it adopted by society cannot be
urged to be perfect. But it may differ from society to society
and time. The women are misrepresented in posters and
paintings. It is the question mark to moralists, legislators and
jurists.

Obescenity, vulgarity, Decency and Art- In the reference to

Development of Laws in India Comparably with Abroad-

In general sense, obscenity means the offence to

public sense of decency. It is socially important. It is evident
when the history of censorship and legislation are strictly and
seriously analyzed, it is necessary for the suppression of
obscene acts, especially, the publication of sexual-explicit or
indecent matter. Literally it is the ongoing perception that
‘obscenity like beauty lies in the eyes of holder, “is
evidenced by the elusiveness of a satisfactory definition.

Additionally, the word ‘obscene’ is clear cut defined

in the ‘oxford Encyclopaedia Dictionary’ as ‘repulsive’,
‘indecent’, and ‘grossly repulsive’ tending to deprave and
currupt. The word ‘currup’ includes the dishonest creation
which is immoral and wicked and created to destroy purity.
23
This sort of literature cannot be claimed to be as true
literature or arts. Rather these are said to be as ‘obscene
literature’.

However, obscene is diffrent from vulgarity. As far

as vulagrity is concerned, it arouses a feeling of disgust and
revulsion and also boredorn. It does not have the effect of
depraving, debashing and corrupting the morals of any
reader of the novel, while obscenity has the tendency to
deprave and corrupt those whose minds are open to such
immoral influence.

As for as ‘Art’ is concerned, it means the skill,

especially applied to design, representation or imaginative
creation. Encyclopeadia Britannica defines art ‘as the use of
skill and imagination in the creation of aesthetic objects,
environments or expreiences that can be shared with others.
The term ‘Art’ may also disignate one of a number of modes
of expression product. Thus we speak of painting, sculpture,
film-making, expression as the arts. The term “Art” may
further be exployed in order to distinguish a particular object,
environment or experience as an instance of aesthetic
expression, allowing us to say for example, ‘That drawing or
tapestry is” Art.”

24
 According to this definition, the use of aesthetic
plays a vital role and the painting and sculpture etc to be an
art. It must be aesthetic in accordance with principles of
good taste, otherwise,it cannot be considered as an art.

‘Decency’ is the word which is defined

asdemeanour. It requires compliance with recognised nations
of modesty or dilicacy and respectability or else, decency of
the creation can be coloured in the court of law.

If we want to keep the standard of morals in society,

we will have to deal with the creators of obscene literature
and artists with stern legal action. The reason behind it is that
as per the apex court has interpreted that morals have often
been considered to be the end of law since long, but law has
always a purpose. And the end of this purpose is definitely
welfare of society.

‘The obscene publication Act’ was codified in the

year 1857 in Britain to prohibit obscene literature which is
also called as lord Combell’s Act 1954. An effort was made
in British Parliament to amend lord Campbell’s Act,
resulting in ‘obscene publication Act, 1959. Its important
provisions are-

25
 1- That a person shall not be convicted when his/her
publication was in the interests of society, literature, art
or learning.

2- That the opinion of experts as to the literacy, artistic,

scientifc or other merits of publication, may be
admitted as evidence.

3- That the work is to be read as a whole.

4- That the publishers and authors of books speak in

defence of the work though they have not been
summoned in the case. Further the act was amended in
1964 to affect the wholesale of anyone merely “having
an obscene material or obscene article. In the year
1997, this Act was again broadened to include the
distribution of pornographic films.

U.S. took the view of Regina V. Hicklin, (1868) as

Precedent and their anti-obscenity legislation was introduced
with comstock Law of the year 1873.

As far as ‘India’ is concerned, the penal code of

1860 punishes sale and purchase of obscene books, to young
persons and for obscene acts and songs. This is concerned
with obsceninty. It states that book, pamphlet, paper, writing,
drawing, painting, presentation, figure or any other object, if

26
taken to as a whole, tend to deprave and corrupt person who
are likly. having regard to all relevant circumstances to read,
see or hear the matter contained or emboied in it, is an
offence under section 292 of IPC. There is the provision in
this section that the expression of obscene publications for
the purpose of sale is an offence. This section was included
in Indian penal code to give effect to the convention for
suppression of the trafficking of obscene publication of
1923.

If constitutionally seen, the constitution of our

country guarantees the freedom of speech and expression.
But on the other, constitution of India permits reasonable
restrictions to regulate decency and morality. India, as other
nations, has adopted legistations concerned with the banning
of the publication of obscene materials. Hence, basic control
has been maintained through the criminal law. There are
many other countries who already provide for administrative
regulation by the customs, postal service and national or
local boards for the licensing of motion picture or stage
performances. Additionally there are more than 50 nations
who are parties to an international agreement for controlling
obscene publications. It is more interesting that this
convention operates without any definition of obscenity

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because it was agreed that this would vary from country to
country.

In the year of 1986 ‘the indecent representation of

women (Prohibition) Act was passed and enacted by
parliament of India, so that indecent represention of women
via advertisements could be Prohibited.

As far as the meaning of ‘Indecent representation of

women’ is concerned, it depicts the figure of women in any
manner, her form or body or any part thereof in such a way
as to have the effect of being indecent or derogatory to or
denigrating woman or is likely to deprave corrupt or injure
the public morality or morals (Section 2c).

However, there are the exceptions also. As the Act

provides that the following points shall not be considered as
indecent-

A- Any book, pamphlet, paper, slide film, writing,

drawing, painting, photograph, representation or figure;
(i) the publication of which is proved to be justified as
being for the public good on the ground that such book,
pamphlet, paper, slide, film, writing, drawing, painting,
photographs, representation or figure is in the interest
of sceince, literature, art or learning or other objects of

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 general concern; or (ii) Which is kept or used bonafide
for religious purpose;

B- Any representation sculptured, engraved, painted or

otherwise represented on or in- (i) any ancient
movement within the meaning of the ancient movement
and archeological sites and remians Act, 1958; or (ii)
Any temple or in any car used for the Conveyance of
idols or kept or used for for any religious purposes;

C- Any film in respect of which the provisions of part II of

the cinematography Act, 1952 will be applicable
(Section 4)

As far as the powers of investigating agencies to

enter and seach are concerned, this act authorises any
gazetted officer, who is authorised by the state government
within the local limits of area for which he/she is authorized,
to enter, search, seize any record, register, document or any
other object found in the place.

There are provisions in the Act that for first

convition, punishment will be given as imprisonment of
either description for a term which may extend to two years
and with fine, which may extend to two thousand rupees and
in the event of a second or subsequent conviction with

29
imprisonment for a term of not less than six months, but
which may extend to five years and also with a fine of not
less than ten thousand rupees, but which may extend to one
lakh rupees.

In the case of companies, if the offence has been

committed with the consent or connivance of or is
attributable to any neglect on the part of any director,
manager, secretary or other officer of the company.

Such director, manager, secretary or other officer

shall be proceeded against and punished accordingly
(Section 7). As per this Act, all the offences are made
cognizable and bailable.

This new law has been made as an attempt only to

ensure that women are not and should be used as sexual
object for commercial purpose. This law is mainly concenred
with the punishment to any of the attempt of indecent
represention. Law strictly prohibits obscenity and punishes
conduct which is proved to be immoral and corrupting. This
law is aimed at preveting ‘indecent representation of women’
and public nuisance.

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Judicial Reasoning and Trends- An appraisal-

There is no clear cut difinition of obscenity. Neither

in the vagrancy Act of 1824, nor in the obscene publication
Act, 1857, the definition of obscenity has been made.
According to famous Hicklin case, Cockburn J. gave
definition of obscenity, that was to some extend justified.
The test of literary morality in this case was put as what a
father could read aloud in his own home. In the year of 1934,
in VS in connection with a case, New York circuit court
Appeal held that the criterion for obscenity was not a
consonance with isolated obscene passages, but rather,
“whether a publication taken as a whole has a libidinous
effect”, and the test was held at “Does the book tend to
promote lust?”

In the year of 1957, in the case of Roth V. Vs (1957)

354; the US supreme court gave a basic redefinition of
obscenity as “Whether to the average person, applying
material taken as a what appeals to prurient interest.”

According to the dicision made by Supreme Court in

the year of 1966 in a ruling on the book, Fanny Hill, it was
declared that ‘a work is a pornographic only if it was utterly
without redeeming social value.

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 Indian judiciary interpreted that obscene literature
has caused a great damage to moral fabric of young boys and
girls.

The Hon’ble supreme court has taken a very serious

stand towards display of obscenity through pictorial
presentation. In the case of Uttam Singh V. State; it was
observed that “These offences of corrupting the internal
fabric of mind have to be treated on the some footing as the
case of food adulterators and we are not prepared to show
any leniency.”

C.J. cockburn has eleborately spoken about the

Hicklin test that “Whether the tendency of obscenity is to
deprave and corrupt those whose minds are open to such
moral influences and into whose hands a publication of this
sort may fall it is quite certain that it would suggest to the
minds of the young of either sex or even persons of more
advanced years, thoughts of the most impure character.” The
Hicklin test was applied in the case of Ranjit D. Udeshi V.
State of Maharashtra (BS)- ASC-881). There was the
statement of the Hon’ble supreme court that “obscenity fell
directly within the words” public morality and decency.”
Again when dealt with the crime of obscenity, the SC held
that the concept of obscenity would differ from country to

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country depending on the standards of morals of
contemporary society.

As far as the decision regarding obscenity of a

publication, a hall mark judgement came to light by the
supreme court of India in the case of Somresh Bose V. Anol
Mitra Delivering the judgement Justice R.S. Pathak and
Justice A.N. Sen had observed that ‘In their opinion,
injudging the question of obscenity, Judge in the first place
should try to place himself in the position of author and from
the view point of author, the judge should try to understand
what is it that the author seeks to convey and wether it has
any literary or artistic clue. Thereafter the judge should place
himself in the position of reader of every age group in whose
hands the book is likely to fall and should be able to
appreciate what kind of possible influence the book is likely
to have in the minds of readers. A judge should, thereafter,
apply his judicial mind dispassionatly to decide whetehr the
book in question can be said to be obscene within the
meaning of section 292 of the IPC by an objective
assessment of the book as a whole and also of the passages
complained of as obscene seprately. A kind of commonality
was seen in the decisions of the courts of India, England and
USA was that always social advancement and change have
been observed by the Judges while laying down objective
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standards in deciding whether a matter is obscene or is work
of art, is still eluding judges, for obscenity, is a concept
which defies a precise definition.

All the legal enactments and legislations of various

countries in the world agree that society must be protected
form exposure to erotic literature and obscene works. But the
serious point is that ‘obscenity’ is a word that defies
definitions various legislations prepared and numerous
radical decisions have been made. They all are hunted by
only one question- “What is the demarcating line between
serious literary works and pornography? Amidst various
uncertainties, books of renouned writers, art films etc. have
often been prosecuted and even branded as obscene. It is
another matter that at a latter period or at the same time by
the different courts they were diclared as classics.

Now a days, in the present scenario, much more

focus is being given to public morality and decency among
writers. A kind of bordering is required when vulgar writing
is to be done. In Periara Town of America, the situation is so
grim and alrming that even half-naked women are so
engaged in cleaning the cars at public places only to earn
money.

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 Where highly influence by westernised fashions.
Modern arts, films, cable TV projections, blue films, cheap
obscene literature, film hero and villiain worshipping trends
are spoiling the youths resulting into degradation of society.
The acts and behaviours are social activities. If they are
social in western society, they are to be treated as obscene in
India. Kissing women in public, show of restricted parts of
the women’s body and scenes of sexual embarirsment are
strictly prohibited by the censor board of India because they
hurt public morality and decency. Hence they are treated to
be obscene in Indian Society.

The right to freedom of speech and expression is

conferred by the Indian constitution in Article 19 (1)(a).
Therefore for the maintanance of public morality and
decency, some of the restriction are enposed by the central
Govt. of India. In this modern age, developments and change
are often experienced in society. So the parameters to
measure the obscenity or the extent of obscenity is also fast
changing.

And the laws are used as the instruments to maintain

decency and to prevent the degradation of the values in the
society. As we know that obscenity is decided by the society
and regulated by the authorities concerned and the people

35
only. The Hon’ble ex-president of America Mr. Nixon had
expressed his opinion regarding the prevention of obscenity.
He commented, “when indecent books no longer find a
market, when pornographic films can no longer draw and
audience, when obscene plays open to empty houses, then
the tide will turn; Govenment can maintain dikes against
obscenity, but poeple can turn back the tide.”

Obscenity defies defintion. It is a social fact.

Because its definition cannot be applied to all types of
literature or works of art. The reason behid it is that the
determination of the commission of a crime of obcenity
requires the establishment of an inter-relationship between
the publications which are sexual, sadistic, horvifying and
also whcih deprave or corrupt the minds of readers.

However, the precise and accurate definition of

obscenity was not available. Hence, the courts of India and
abroad mostly depended on one or more of the five testes-
(a) the author’s objective (b) likely effects of work (c) the
standards of contemporary society (d) the obscene matter
considered in the setting of the whole work and (e) the
literary merit of the work. To consider whether a work is
obscene or not, usually the courts apply all five tests. As
obscenity is really a matter of good or bad teste. It invariable

36
shocks the fellings of ordinary decent people obscenity is
justified by the society because several norms are prescribed
by the society. Certain restrictions are imposed by the
Governemnt concerned. These restrictions are said to be as
law. These laws are enforced to create fear among people, so
that they could maintain a standard of dececy in the society.
But there are somewhat short-comings as the deficiencies in
law. So, the various investigations and procedures are failing
in the court of law.

In the society of today, most of the problems and

difficulties are faced, when to decide obscenity. Even
judiciary and agency are also facing the problums to decide
obscenity. Hence, it is our duty and of the Government
concerned that the laws be amended to provide specific
standard, limitations or definitions of obscenity as to be clear
to investingating agencies to launch prosecution.

As far as the implementation of laws regarding

obscenity is concerned, the state Government should also
constitute an experts laboratory consisting of doctors and
medical experts. Additional to it, psychiatrists, sociologists,
professors of literatures and some of retired judges should be
included in the team of experts to opine and decide obscenity

37
in obscenity related literatures. If law amended, these
opinions should be treated as expert’s opinion.

At this juncture, it has been observed that if no

adequite steps taken, the ‘art’ will be synonymous with
obscenity. As far as the work of D.H. Lawrence and film-
makers like Rajkapoor are concened, it needs thorough and
long-drawn legal investigation. Regarding it, a kind of legal
battle is badly required before these obscene literature is
accepted as decent in the society. It is true that obscenity and
vulgarity are the poisons which will destroy all the young
generations. It will ultimately lead to moral devaluation. If
moral devaluation, catastrophic effect will obstruct the
progress of the country.

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