Obscenity Law In India 1.

Introduction This paper looks into the need to reform outdated laws relating to obscenity in India. Laws which have been abused in order to restrict freedom of expression. The law covering obscenity is dealt with in the India Penal Code of 1860. Interestingly, these laws are relics of the colonial period and fundamentally at variance with the constitutional guarantees of freedom of expression. These laws relating to obscenity are directly inherited from British colonialism. A time where Britain experienced a period of what might be described as 'moral fundamentalist'. One of the most controversial issue is balancing the need to protect society against the potential harm that may flow from obscene material, and the need to ensure respect for freedom of expression and to preserve a free flow of information and idea. The Constitution guarantees freedom of expression but in Article 19(2) it also makes it clear that the State may impose reasonable restriction in the interest of public decency and morality. The culminative effect of these provisions seems to sustain the legality of any act of the State which lawfully restrains the publication of 'obscene' material in India. The crucial question is, 'what is obscenity?'. A brief study is done looking into the present obscenity law of India, the history of that law and the surrounding circumstances in which that law came into our statute book and the inadequacy of law. It further looks into the laws dealing with obscenity by different countries. 2. What the laws in India say? The law relating to obscenity is laid down in Sec.292 of the Indian Penal Code which came about by Act 36 of 1969. Sec.292 reads as follows: Sale, etc., of obscene books, etc.-[(1)] For the purposes of sub-section (2) 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 interest or if its effect, or (where it comprises two or more distinct items) the effects of any one of its items, is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely , having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.] [(2) Whoeversells , lets to hire ,distributes, publicly exhibits or in any manner puts into circulation or for purposes of sale, hire, distribution public exhibition of circulation, makes produces, or has in

(a) Possession any obscene book, pamphlet, paper, drawing painting, representation or figure or any other obscene objects whatsoever, or (b) Imports, exports or conveys any obscene objects for any of the purposes, aforesaid, on knowing or having reason to believe that such objects will be sold let to hire, distributed or publicly exhibited or in any manner put into circulation or (c) takes part in or receives profit from any business in the course of which he knows or has reasons to believe that such an object are for any of the purposes aforesaid, made produced, purchased , kept, imported, exported, convey, publicly excited, or in any manner put into circulation, or (d) advertises or makes known by any means whatsoever that any person is engaged or is ready to engage in any act which is an offence under this section, or that any such obscene object can be procured from or through any person, or (e) Offers or attempts to do any act which is an offence under this section, shall be punished [on first conviction with 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 imprisonment of either description for a term which may extend to five years, and also with fine which may extend to five thousand rupees.] [Exception.- this section does not extend to(a) any book, pamphlet, paper, writing, drawing, painting, representation of 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, writing, drawing, painting, representation or figure is in the interest of science, literature, art or learning or other objects of general concern, or (ii) which is kept or used bona fide for religious purpose; (b) any representation sculptured, engraved, painted or otherwise represented on or in(i) any ancient monument within the meaning of the Ancient Monuments and Archaeological Sites and Remains Act,1958(24 of 58), or (ii) any temple, or any car used for the conveyance of idols, or kept or used for any religious purpose.]] 3. Objects and Reasons Section 292 of Act 8 of 19521 was amended by Act 36 of 1969. The objects and reason laid down by the Parliament for the amendment states as;

"Under the present sec.292 and sec.293 of the Indian Penal Code, there is a danger of publication meant for public good or for bonafide purpose of science, literature, art or any other branch of learning being declared as obscene literature as there is no specific provision in the act for exempting them from operations of those sections. The Act removes that lacuna so as to bring the law into conformity with modern practice in other civilized countries." Analyzing the Indian Law (a). Though the amendment of 1969 brought about changes to obscenity law, the primary object of the 1969 amendment of sec.292 was to prevent circulation of and traffic in obscene literature. It was specifically to restrict communication of certain types of materials based on their content. The amendment did not still lay down the definition of obscenity. (b). The present provision is so vague that it becomes difficult to apply it. The purposeful omission of the definition of obscenity has led to attack of sec.292 of the Indian penal Code as being too vague to qualify as a penal provision. It is quite unclear what the provisions mean. This unacceptably large 'grey area', common in laws restricting sexual material, would appear to result not from a lack of capacity or effort on the part of drafters or legislators. Rather, it would seem to be the consequence of an explicit desire to include inherently nebulous concepts within these laws so as to enable application whenever public concern is raised in relation to certain material. This should stir a major uneasiness to protect against politically-motivated restrictions of this sort. (c). The test here is whether the law 'is so obscure' as to be incapable of interpretation with any degree of precision using ordinary tools. The obscenity legislation and jurisprudence prior to the enactment of Act 36 of 1969 were concerned with prohibiting 'immoral influences' of obscene publications and safeguarding the moral individual into whose hands such works could fall. It has to be kept in mind that to impose a certain standard of public and sexual morality, solely because it reflects the conventions of a given community, is inimical to the exercise and enjoyment of individual freedoms, which forms the basis of our Constitution. (d). The enactment of sec. 292 by the legislative, prohibited such material on the belief that they had a detrimental impact on the individual exposed to them and consequently on society as a whole. Our understanding of the harms caused by these materials has developed considerably since that time; however this does not detract from the fact that the purpose of this legislation remains, as was in 1969, the protection of society from harms caused by the exposure to obscene materials. In 1969, the harm to society caused by publication and circulation of obscene material may well have been defined more strictly in terms of public morality. (e). The Supreme Court of India has time and again adopted the test of obscenity laid down by Cockburn CJ2. The test of obscenity is , 'whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral

influences, and in whose hands a publication of this sort may fall.' But these makes the court the judge of obscenity in relation to an impugned book, or article, or newspaper and (which) lays emphasis on the potentiality of the impugned object to deprave and corrupt by immoral influences. Interestingly, this test of obscenity was laid down in the Hicklin case in 1869 which remains a part of obscenity jurisprudence in India today. (f). The legislative chose to leave sec.292 to open ends and by doing so left the criteria for application of standards to the judges. It is not the function of the judge to define material which are to be proscribed by law. The present law which fails to define obscenity with precision is too arbitrary and too vague. 4. What is Obscenity? The concept of obscenity differs from country to country depending on the moral standards of contemporary society. The Encyclopedia definition of Obscenity states, 'By English law it is an indictable misdemeanor to show an obscene exhibition or to publish any obscene matter, whether it be writing or by pictures, effigy or otherwise.' The precise meaning of "obscene" is, however, decidedly ambiguous. It has been defined as something offensive to modesty or decency, or expressing or suggesting unchaste or lustful ideas or being impure, indecent or lewd". In the United States, Pennsylvania Consolidated statutes in s. 5903. defines "Obscene." as Any material or performance, if: 1. the average person applying contemporary community standards would find that the subject matter taken as a whole appeals to the prurient interest; 2. the subject matter depicts or describes in a patently offensive way, sexual conduct of a type described in this section; and 3. the subject matter, taken as a whole, lacks serious literary, artistic, political, educational or scientific value. 5. What do laws in other countries say? United States In 1973, the U.S Supreme Court in Miller v. California3, set down what it deemed to be appropriate standard in relation to obscenity: The basic guidelines for the tier of fact must be: (a) whether " the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest.;(b) whether the work depicts or describes, in a patently offensive

way, sexual conduct specifically defined by the applicable state law; and(c) whether the work, taken as a whole, lacks serious literary, artistic political, or scientific value. Canada One of the most progressive and liberal judgments on obscenity was Regina v. Butler4 by the Supreme Court of Canada. Some relevant issues discussed are noted below: The Canadian Criminal Code defines obscene material as; For the purposes of this Act, any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, horror, cruelty and violence, shall be deemed to be obscene. 5 The Supreme Court of Canada extensively interpreted the meaning of "undue exploitation, holding that the dominant test is a community standard one. However, it is the standard of tolerance, not taste that is relevant. What matters is not what Canadians think is right for themselves to see(but) what the community would (not) tolerate others being exposed to on the basis of the degree of harm that may flow from such exposure".6 The portrayal of sex coupled with violence will almost always constitute the undue exploitation of sex. Explicit sex, which is degrading or dehumanizing may be undue if the risk of harm is substantial. Finally, explicit sex that is not violent and neither degrading nor dehumanizing is generally tolerated in our society and will not qualify as the undue exploitation of sex unless it employs children in its production. 7 In order for the work or material to qualify as 'obscene' the exploitation of sex must only be its dominant characteristic, but such exploitation must be 'undue'. In determining when exploitation of sex will be 'undue', the courts formulated a workable test. The test being the 'community standard of tolerance' test. In R v. Dominion News & Gifts, the court stated that the community standard test must necessarily respond to changing mores. In R v. Butler, The Canadian Supreme Court held that the State could not restrict expression simply because it was distasteful or did not accord with dominant conceptions of what was appropriate. South Africa In South Africa, legislators have opted for a detailed list of prohibited material. Schedule 1 of the 1996 Films and Publications Act, as amended, defines the XX Classification of prohibited publications as material, which contains a real or simulated visual presentation of: a. child pornography; b. explicit violent sexual conduct; c. bestiality; d. explicit sexual activity which degrades a person and which constituted incitement to

cause harm; or e. the explicit infliction of or explicit effect of extreme violence which constitutes incitement to cause harm. Japan In Koyama v.Japan, the Japanese Supreme Court ruled that a work could be judged "obscene" under Article 175 of the Constitution if "it aroused and stimulated sexual desire, offended a common sense of modesty or shame, and violated "proper concepts of sexual morality." " . . . [obscene matter] is that which wantonly stimulates or arouses sexual desire or offends the normal sense of sexual modesty of ordinary persons, and is contrary to proper ideas of sexual morality." Britain In Britain the law governing obscene publications is found principally in the Obscene Publication Act 1959. It states that an article is obscene if its effect or (where the articles comprises two or more distinct items) the effect of any one of its' item is, if taken as a whole, is such 'as to tend to deprave and corrupt persons who are likely , having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.' This statute was objected by Lord Wilberforce of House of the Lords in 1972 stating that the statute offers no definition of 'deprave and corrupt' and does not even identify whether the concern is that the impugned material may cause people to commit wicked acts, or whether the mischief is simply that erotic desires may be aroused. Namibia In 1998, The Namibia High Court in a land mark judgment held that sec.2(1) of the Indecent and Obscene Photographic matter Act, 1967 was unconstitutional as it was formulated in an overly-broad manner which was not intended or carefully designed to prohibit possession only of such sexually explicit material as may be proscribed under the Namibian Constitution. The court held that 'although expression may be under certain circumstances be restricted under the Namibian Constitution, the "claw-back" provisions should be interpreted restrictively to ensure that the exceptions are not unnecessarily used to suppress the right to the freedom of expression guaranteed in Article 21'. 6. The Test of Vagueness. Restrictions on fundamental rights must be prescribed by or under the authority of law. The European Court of Human Rights in the Sunday Times8 case set certain standards to determine whether a restriction was prescribed by law: In the Court's opinion, the following are two of the requirements that flow from the expression 'prescribed by law'. Firstly, the law must be adequately accessible; the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as 'law' unless it is

formulated with sufficient precision to enable the citizen to regulate his conduct; he must be able if, need be with appropriate advice, to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. A restriction does not satisfy the 'prescribed by law' part of the test if it is so vague that citizens cannot reasonably predict what the requirements of the law are. Such a statute or such part thereof will be void on grounds of vagueness. Under the Malawi Act, it is an offence to import, publish, manufacture, make or produce, distribute, display, disclose with reference to any judicial proceedings, exhibit or sell, or offer for sale undesirable material The laws outlined above prohibit publications which are obscene, indecent or tend to corrupt morals. The Malawi law goes further, prohibiting a range of other material, including where it is "offensive or harmful to public morals". None of the various laws define any of these terms, leaving wide scope for interpretation. This has led to a wide range of arbitrary abuse and thus beyond the scope of 'prescribed by law'. In ACLU v. Reno the US court held that, the constitutionality of a statute employing the word 'indecent' without further definition was found to be so "unconstitutionally vague as to violate the First Amendment": Indecent in this statute is an undefined word which, standing alone, offers no guidelines whatsoever as to its parameters. Interestingly, another federal crime gives a definition to indecent entirely different from that proposed in the present case [18 USC Para. 1461 states, "The term 'indecent' as used in this section includes matter of a character tending to incite arson, murder or assassination"]. While not applicable here, this example shows the indeterminate nature of the word and the need for a clear definition, particularly in a statute which infringes upon protected speech.9 7. The Inadequacy Created by Vagueness. The Indian Penal Code on obscenity grew out of the English obscenity law which made court the guardian of public morals. It is important that where bodies exercise discretion, which may interfere in the enjoyment of constitutional rights, that discretion must be subject to adequate law. The effect of provisions granting broad discretionary regulatory powers is unforeseeable and they are open to arbitrary abuse. In Canada, the Ontario High Court held: [I]t is not enough to authorize a board to censor or prohibit the exhibition of any film of which it disapproves. That kind of authority is not legal for it depends on the discretion of an administrative tribunal. However dedicated, competent and well-meaning the board may be, that kind of regulation cannot be considered as "law". It is accepted that law cannot be vague, undefined, and totally discretionary; it must be ascertainable and understandable. Any limits placed on the freedom of expression cannot be left to the whim of an official; such limits must be articulated with some precision or they cannot be considered to be law.10

The South African Constitutional Court has clearly pointed to the dangers of granting excessive discretion to executive or administrative authorities: It is incumbent upon the legislature to devise precise guidelines if it wishes to regulate sexually explicit material. Especially in light of the painfully fresh memory of the executive branch of government ruthlessly wielding its ill-checked powers to suppress political, cultural, and, indeed, sexual expression, there is a need to jealously guard the values of free expression embodied in the Constitution of our fledgling democracy.11 In Samaresh Bose v. Amal Mitra12 it was observed by the Supreme Court: "The concept of obscenity is mouled to a very great extent by the social outlook of the people who are generally expected to read the book. It is beyond dispute that the concept of obscenity usually differs from country to country depending on the standards of morality of contemporary society in different countries. In our opinion, in judging the question of obscenity, the Judge in the first place should try to place himself in the position of the author and from the view point of the author the judge should thereafter place himself in the position of a reader of every age group in whose hands the books is likely to fall and should try to appreciate what kind of possible influence the book is likely to have in the minds of the reader. The judge should thereafter apply his judicial mind dispassionately to decide whether the book in question can be said to be obscene within the meaning of S.292, IPC by an objective assessment of the book as a whole and also of the passage complained of as obscene separately. This is one of the few liberal judgments the courts have given. The point to worry about is the power given to the judge to decide what he thinks is obscenity. The idea as to what is deemed obscene varies from age to age, from region to region, and from person to person. Unless a specific definition is laid down as a statute, there is a danger of strict interpretation which would lead to a direct clash with the constitutional guarantee of freedom of expression. 8. International obligation. The Constitution of India guarantees everyone the right to freedom of expression. India is also a party to the International Covenant on Civil and Political Rights and therefore bound to respect the right to freedom of expression guaranteed by Article 19 thereof, which states: 1. Everyone shall have the right to hold opinions without interference. 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds regardless of frontiers, either orally, in writing or in print, in form of art, or through any other media of his choice. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities .It may therefore be subject to;

1. Certain restrictions, but these shall only be such as are provided by law and are necessary (a) For respect of the rights or reputation of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals. Both national and international courts have recognized that freedom of expression is essential to respect for human rights and the maintenance and progress of a democratic society. For example, the European Court of Human Rights has stated: Freedom of expression constitutes one of the essential foundations of [a democratic] society, one of the basic conditions for its progress and for the development of every man.... [I]t is applicable not only to 'information' or 'ideas' that are favorably received or regarded as inoffensive or as a matter of indifference, but also to those which offend, shock or disturb the State or any other sector of the population. Such are the demands of pluralism, tolerance and broadmindedness without which there is no 'democratic society'.13 9. Is the restriction reasonable in a democratic country? Under the European Convention of Human Rights, in order to determine whether a restriction was necessary in a democratic society, the court examines whether the interference: Corresponded to a pressing social need', whether it was 'proportionate to the legitimate aim pursued', and whether the reasons given by the national authorities to justify it are 'relevant and sufficient'. 10. Recommendation The following should be kept in mind while framing a definition on obscenity. (a). The definition should be clear. Time and again our courts have tried to interpret obscenity basing on the facts and circumstances. But the attempt to provide exhaustive instances of obscenity has been shown to fail. The most practicable alternative is to strive towards a more abstract definition of obscenity which is contextually sensitive and responsive to progress in the knowledge and understanding of the phenomenon to which the legislation is directed. (b). While coming up with a definition it should be kept in mind that: Obscenity law should avoid using vague and subjective terms, such as 'indecent' 'absence' and 'harmful to public morals', without providing further clarification. Vagueness is dangerous.

(c). Obscenity restrictions must be aimed at preventing real harm and not simply at preventing 'offence to public sensibilities'. Obscenity laws may only restrict material which can be shown to be harmful. Merely offensive material should not be prohibited. ( Harm here could mean that it predisposes persons to act in an antisocial manner as, for example, the physical or mental mistreatment of women by men.) (d). It is imperative to distinguish between 'offensive' material from material that is actually harmful, only allowing restrictions which have as their objective the prevention of harm. (e). Moral grounds should be concrete problems such as life, harm, well-being,etc and not merely differences of opinion or of taste. (f). A 'community standard of tolerance' test should be taken into consideration. Community standards must be contemporary. Times changes, and ideas change with them. It should be a standard of the community as a whole which must be considered and not of a small segment of a community. The standards of contemporary society in India is fast changing. What one has to see is whether a class, and not an isolated case into whose hands the newspaper or article falls suffer in their moral outlook or become depraved by reading it or might have impure and lecherous thoughts aroused in their minds. The charge of obscenity must, therefore, be judged from these aspect.14 11. Conclusion The law on obscenity in India is clearly outdated and inconsistent with constitutional and international guarantees of freedom of expression and in desperate need of amendment. The word 'obscene' has not been defined in the code. The laws are vague in that no specific definition is laid down which could lead to arbitrary interpretation and in gross violation of freedom of expression enshrined in the Constitution of India. Thus, a comprehensive review of sec.292 is inevitable. Notes : 1 Sec. 292 IPC of 1952 Whoever (a) sells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation, or for purposes of sale, hire, distribution, public exhibition or circulation, makes produces or has in his possession any obscene book, pamphlet, paper, drawing, painting, representation or figure or any other obscene object whatsoever, or (b) imports, exports or conveys any obscene object for any of the purposes aforesaid, or knowing or have reason to believe that such object will be sold, let to hire, distributed or publicly exhibited or in any manner put into circulation, or

(c) takes part in or receives profits from any business in the course of which he knows or has reason to believe that such obscene objects are, for any of conveyed, publicly exhibited or in any manner put into circulation, or read as follows: (d) advertises or make known by any means whatsoever that any person is engaged or is ready to engage in any act which is an offences under this section, or that any such obscene object can be procured from or through any person ,or (e) offers or attempts to do any act which is an offence under this section, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine , or with both. Exception. - This section does not extend to any book, pamphlet, writing, drawing, or painting kept or used bona fide for religious purposes or any representation sculptured, engraved, painted or otherwise represented on or in any temple, or any car used for the conveyance of idols, or kept or used for any religious purpose. 2. Hicklin (1868)LR 3 QB 360 3. Miller v. California, 413 US 15,24 4. 70 C.C.C.(3d) 129; 1992 C.C.C. Lexis 2854 5. S. 163(8) of the Criminal Code,RSC 1985,c.C-46. 6. R. v. Butler (1992) 1 SCR 452, 477,485. 7. R. v. Butler (1992) 1 SCR, 485 8. Sunday Times v. United Kingdom, 26 April 1979, 2 EHRR 245, para. 49. 9. ACLU v.Reno,929 F. Supp.824 (1996) 10. Re Ontario Film & Video Appreciation Society v. Board of Censors, (1983) 41 OR (2d) 583,592. 11. Case & Anor, v. Minister of Safety and Security & Ors, 1996 (5) BCLR 609 (Constitutional Court of South Africa), para. 63 (per Mokgoro). 12. AIR 1986 SC 967 13. Handyside v. United Kingdom, 7 December 1976, 1 EHRR 737, para. 49; see also Compatibility of "Desacato" Laws with the American Convention on Human Rights, Annual Report of the Inter-American Commission on Human Rights 1994, 202 and 205.

14. Chandrakant Kalyandas Kakodhar, .( AIR 1970 SC 1390.)