Introduction

With the growth of modern technologies & advancement of science, information has
become easy to circulate & communicate to the whole of the world. We can easily get the
news of an earthquake or landslide happening in the other part of the world with the help
of satellites. The media has contributed immensely in making this world a compact place
& connecting everyone with fast & easy medium. Earlier delivering news had been
difficult & took a lot of time even when in the same country. With the advent of internet
any news can be delivered just by a click of the mouse in a few seconds to a few minutes.
With the developing media & becoming globalized, the content of the news or message
that is circulated or delivered has become much vulnerable. A world cinema which tries
to approach the audience in the whole world at large, made in a western country might
just hurt the sentiments of people in the Eastern part of the world who are conservative &
may not be able to appreciate the art or literature or the social message which the film
tries to portray. Hence comes regulations in force to regulate which content would be
suitable for display for a particular group of audience. Though these regulations are also
often not the correct test as a neutral body adjudges it & there can be sections of people
even in a conservative group who might accept a liberal view unlike others. Obscenity is
one of the ingredients which prohibit content from being screened or displayed. The
concept of obscenity is relative. Obscenity has been discussed & test for obscenity has
been laid down by several countries depending on the moral principles, decency codes &
social structure of that particular country. In this paper, the researcher discusses obscenity
as has been discussed under English Law, Laws of United States & India by discussing
various cases & the statutes in force.

English Obscenity Law:

The test to determine obscenity under English law has been coined quite sometimes back
in R vs Hicklin case. This is one of the earliest cases where the test for obscenity has been
laid down. This case revolved around Henry Scott who resold copies of anti Christ
pamphlets entitled The Confessional Unmasked: shewing the depravity of the Romish
priesthood, the iniquity of the Confessional, and the questions put to females in
confession. When the pamphlets were ordered to destroy as obscene, Scott appealed the
order to the court of Quarter Sessions. Benjamin Hicklin, a London magistrate who was
in charge of such orders as Recorder, revoked the order of destruction. Hicklin held that
Scotts purpose had not been to corrupt public morals but to expose problems within the
Catholic Church; hence, Scotts intention was innocent.The authorities appealed Hicklins
reversal, bringing the case to the consideration of the Court of Queens Bench. In the
Queens Bench it was held that the order of the justices were right as the publication of
such an obscene pamphlet was a misdemeanor, and was not justified or excused by the
appellants innocent motives or object; he must be taken to have intended the natural
consequences of his act.

The modern English law on obscenity began with Obscene Publications Act which came
into force in 1959. This Act was brought into force to amend the law relating to
publication of obscene matter, to provide for the protection of literature; & to strengthen
the law concerning pornography. Sec 1of the Act lays down the test for determining
obscenity. Sec 1(1) of the Act states: For the purposes of this Act an article shall be
deemed to be obscene if its effect or (where the article comprises two or more distinct
items) the effect 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.

On 1 September 2001, Sections 46 and 47 of the Criminal Justice and Police Act, U.K.
came into force, making it an offence to place advertisements relating to prostitution in,
or in the immediate vicinity of, a public telephone box.

Obscenity Law in United States:

In U.S.A , the term obscene refers to material which the average person applying
contemporary standards would find that, taken as a whole, appeals to the prurient interest,
contains patently offensive depictions or descriptions of specified sexual conduct, & has
no serious literary, artistic , political or scientific value. Miller vs California is one of the
important cases decided by the Supreme Court of U.S which lays down the community
standard test to define obscenity offensive. After the age old Hicklins test laid down by
the English courts, the Millers test is much modern & contemporary. In this case the
appellant conducted a mass mailing campaign to advertise the sale of illustrated books ,
euphemistically called adult material. After a jury trial he was convicted for violating
California Penal Code sec 311.2 (a) a misdemeanor, by knowingly distributing obscene
matter, and the Appellate Department, Superior Court of California, County of Orange,
summarily affirmed the judgment without opinion. Appellants conviction was
specifically based on his conduct in causing five unsolicited advertising brochures to be
sent through the mail in an envelope addressed to a restaurant in Newport Beach,
California. The envelope was opened by the manager of the restaurant and his mother.
They had not requested the brochures; they complained to the police. The brochures
advertised four books entitled Intercourse, Man-Woman, Sex Orgies Illustrated,
and An Illustrated History of Pornography, and a film entitled Marital Intercourse.
While the brochures contained some descriptive printed material, primarily they
consisted of pictures and drawings very explicitly depicting men and women in groups of
two or more engaging in a variety of sexual activities, with genitals often prominently
displayed. This case involves the application of a States criminal obscenity statute to a
situation in which sexually explicit materials have been thrust by aggressive sales action
upon unwilling recipients who had in no way indicated any desire to receive such
materials. This case laid down three pointers in determining whether the content for
display is obscene or not. The three tests are: (a) it appeals to the prurient interest, (b) it is
patently offensive, and (c) it lacks any redeeming value.

Roth vs United States is one of the earliest cases which the Supreme Court of U.S
decided on obscenity. In this case the court sustained a conviction under the federal
statute punishing the mailing of obscene lewd , lascivious or filty . . . materials. The key
to that holding was the Courts rejection of the claim that obscene materials were
protected by the First Amendment. Five Justices joined in the opinion stating:All ideas
having even the slightest redeeming social importance unorthodox ideas, controversial
ideas, even ideas hateful to the prevailing climate of opinion have the full protection
of the [First Amendment] guaranties, unless excludable because they encroach upon the
limited area of more important interests.

In the case of Memoirs v. Massachusetts , nine years later, the Court veered sharply away
from the Roth concept and, with only three Justices in the plurality opinion, articulated a
new test of obscenity. The plurality held that under the Roth definition: as elaborated in
subsequent cases, three elements must coalesce: it must be established that (a) the
dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b)
the material is patently offensive because it affronts contemporary community standards
relating to the description or representation of sexual matters; and (c) the material is
utterly without redeeming social value. While Roth presumed obscenity to be utterly
without redeeming social importance, Memoirs required that to prove obscenity it must
be affirmatively established that the material is utterly without redeeming social value.
Thus, even as they repeated the words of Roth, the Memoirs plurality produced a
drastically altered test that called on the prosecution to prove a negative, i.e. that the
material was utterly without redeeming social value a burden virtually impossible to
discharge under the criminal standards of proof.

Chapter 71 of the U.S Code defines obscenity. It has 12 sub clauses which lists down
what would constitute as circulating or displaying content which is obscene. The code
however doesnt define obscenity under this chapter.

The Child Exploitation & Obscenity Section was set up in 1987 in the United States to
protect the welfare of Americas children and communities by enforcing federal criminal
statutes relating to the exploitation of children. CEOS leads the department of Justice in
its endeavor to continuously improve the enforcement of federal child exploitation laws
and prevent the exploitation of children.

18 U.S.C. 2256(1) and (8) of the United States Code defines child pornography. It is
defined as the visual depiction of a person under the age of 18 engaged in sexually
explicit conduct. However the legal definition of sexually explicit conduct does not
require that an image depict a child engaging in sexual activity which is referred under 18
U.S.C. 2256(2). Federal prosecutors enforce the laws that make it a crime to possess,
receive, distribute or produce child pornography in a way that affects interstate or foreign
commerce. Federal jurisdiction is implicated when the visual image is transported across
state lines, or when the visual image is produced using materials that were transported
across state lines.

What is obscene in India: The standard & the laws

Sec 292(1) Of the Indian Penal Code defines obscenity as:

For the purpose of sub section (2), a 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 effect of any of its items , is if taken as a whole , such as to tend
to deparave & corrupt persons who are likely , having regard to all relevant
circumstances , to read, see or hear the matter contained or embodied.

The Indian law on obscenity has been modeled from the English law itself. So the test for
determining obscenity is the old & long outdated Hicklins test as is under English law
which the Supreme Court has relied upon in deciding many cases. Though the Supreme
Court of India has said that there can be no uniform test for obscenity & therefore each
case would have to be judged on its own facts.
Supreme Court of India relied on Hicklins test while deciding the case of Ranjit.
D.Udeshi vs State of Maharashtra after 6yrs Hicklins test has been outdated in England
after the coming into force of Obscene Publications Act in England. This is one of the
important cases that Supreme Court has decided in matter of obscenity. In the present
case the appellant , one of the four partners of a firm owning a book stall named , Happy
Book Stall in Bombay was convicted by the lower court magistrate for being in
possession of a copy of a book named , Lady Chaterleys Lover which was the
unexpurgated version. This book was adjudged to be obscene. Not only the appellant, the
other four partners were also convicted. The High Court upheld the judgment of the lower
court magistrate. Then this case came for appeal to the Supreme Court. In the Supreme
Court the appellant claimed that it must be proved by the prosecution that the appellant
sold the copies to corrupt the mind of the purchasers i.e the appellant sold the copies
knowing they are obscene. The appellant also claimed that sec 292(1) of I.P.C was void
as it violated the freedom of speech & expression under Article 19(1)(a) of the
Constitution & even if the sec was valid it has to be proved by the prosecution that the
book was obscene.

The Supreme Court held that (i) the section embody a reasonable restriction upon the
freedom of speech and expression guaranteed by Art. 19 and does not fall outside the
limits of restriction permitted by cl. (2) of the Article. The section seeks no more than the
promotion of public decency and morality (ii) the book must be declared obscene within
the meaning of s. 292, Indian Penal Code. Justice Hidayatullah speaking for the court
said: No doubt Article 19 guarantees freedom of speech & expression but it also makes
an exception in favor of existing laws which impose restrictions on the exercise of the
right in the interests of public decency & morality. Speaking in terms of the Constitution
it can hardly be claimed that obscenity which is offensive to modesty or decency, is
within the constitutional protection given to free speech or expression, because Article 19
itself excludes that. That cherished right on which our democracy rests is meant for the
expression of free opinions to change political or social conditions or for the
advancement of human knowledge. This freedom is subject to reasonable restrictions
which may be thought necessary in the interest of the general public & one such is the
interest of public decency & morality. Sec 292 manifestly embodies such a restriction
because the law against obscenity of course correctly understood & applied seeks no
more than to promote public decency.
The case of Samaresh Bose vs Amal Mitra is also one of the important cases where a very
famous Bengali writer was prosecuted under sec 292, I.P.C for writing & publishing a
novel under the caption prajapati in a Bengali journal. When the case went on for appeal
to the Supreme Court, the conviction was set aside. The court held that while judging the
question of obscenity, the Judge in the first place should try to place himself in the
position of the author & from the viewpoint of the author, the judge should try to
understand what is it that the author seeks to convey & whether what the author conveys
has any literary & artistic value. The judge should therefore place himself in the place of
the reader of every age group in whose hands the book is likely to fall & should try to
appreciate what kind of possible influence the book likely to have on the minds of the
reader.

When an author writes a novel, he writes it for all classes of readers & it is not right to
insist the writer to keep a standard so that the adolescent be brought into contact with
content which talks about sex. If any sex content in a book is regarded as obscene & not
fit to be read by adolescents, then they would only have to read religious books. Mere
reference of sex in book shouldnt be adjudged as obscene. The context should be looked
into before arriving at any conclusion & referring in book as obscene.

Difference between vulgarity & obscenity:

A vulgar writing is not necessarily obscene. Vulgarity arouses a feeling of disgust &
revulsion & also boredom but doesnt have the effect of depraving, debasing &
corrupting the morals of any reader of the novel, whereas obscenity has the tendency to
deprave & corrupt whose minds are open to such immoral influence.
Indecency & obscenity:

Indecency is a concept wider than obscenity. Although anything that is obscene must
necessarily be indecent, but what is indecent need not be necessarily always obscene.
Indecent merely means non conformance with accepted standards of morality, obscenity
refers to that which has prurient or lascivious appeal.

The Delhi High Court passed a judgment & banned the screening of the movie Bandit
Queen to which there was an appeal to the apex court & the apex court allowed the
appeal. This movie was based on the true life of Phoolan Devi who was married to an old
man who was old enough to be her father. While being married she was stripped naked &
paraded & made to fetch water under the vigilance of the villagers & no one came to
rescue her. Being aggrieved by this humiliation she joined a dacoit gang & killed as many
as twenty Thakurs in Madhya Pradesh. The apex Court found that this movie was a sad &
realistic story of Phoolan Devi whose psyche had changed after she was humiliated & she
became a dangerous dacoit full with the intent to take revenge. The scene showing where
she was humiliated, stripped naked & going to fetch water infront of other villagers
couldnt have been portrayed better than showing nudity. This nudity shown in the movie
wasnt intended to titillate cinema goers lust but to arouse in them sympathy for the
victim & disgust for the perpetrators. Rape & sex werent glorified in the movie but the
movie tried to portray how rape & lust can have a terrifying effect on the victim. The
very fact that the A certificate granted by the expert Tribunal which consisted of three
female members prove that it could be hardly believed that the women would permit a
film to be screened which degenerate women, insults women-hood or is pornographic.
Test of the ordinary man:

The test for judging a work should be that of an ordinary man of common sense &
prudence & not an out of the ordinary or hypersensitive man. Hidayatullah C.J observed
in the case of K.A.Abbas, If the depraved begins to see in these things more than what
an average person would , in much the same way, as it is wrongly said a Frenchman sees
a womans legs in everything, it cannot be helped. In the case of K.A.Abbas vs Union of
India the petitioner prepared a documentary film titled , A tale of Four cities, wherein
he tried to depict the contrast between the lives of rich & poor in four major cities of
India. Some parts of his documentary contained scenes from red light area of Bombay.
The petitioner asked for a U certificate but the censor board turned down & he was
granted a certificate restricted only for adults. On an appeal made by the petitioner, the
Central Government said that U certificate can be given, provided some cuts were
made in the film. He therefore made an appeal to the Supreme Court saying that his
fundamental right to free speech & expression was violated by this order of the Central
Government & he was entitled to U certificate. The petitioner also claimed that the
provisions of Part 11 of the Cinematograph Act, 1952, together with the rules prescribed
by the Central Government in the exercise of its powers under s. 5-B of the Act were un-
constitutional and void. It was held by the court that the censorship of films including
prior restrain is justified under the constitution. Section 5-B authorizes the Central
Government to issue such directions as it may think fit setting out the principles which
shall guide the authority competent to grant certificates under the Act in sanctioning films
for public exhibition. It cannot be said that this Section has not indicated any guidance to
the Central Government. The first sub-section states the principles and read with the
second clause of the nineteenth article it is quite clearly indicated that the topics of films
or their content should not offend certain matters there set down.

Other applicable laws in India against obscenity are:

The relevant sections in I.P.C covers obscene publication of books, pamphlets, paper, sale
of obscene objects to young persons & obscene acts & songs but none of the section
covers indecent representation of women. Representation of women in media can
sometimes be derogatory & indecent & even obscene. Women can be portrayed as an
object of lust which can often corrupt the mind of the viewers or even excite the viewers
& women in the society might just get victimized. Hence to prohibit indecent
representation of women, through advertisements, publications, writing, paintings,
figures, pamphlets etc. The Indecent Representation of Women (Prohibition) Act, 1986
came into force.

Sec 2 ( c ) of the Act defines indecent representation of a women.

Sec 3 of the Act talks about prohibition of advertisements containing indecent

representation of women. This section prohibits a person from getting involved, directly
or indirectly in the publication of any advertisement containing indecent representation of
women in any form.

Sec 4 prohibits publication or sending by post of books, pamphlets etc, containing

indecent representation of women.

Cable Television Networks (Regulation ) Act, 1995 prohibits the telecast of programs on
cable television, which offend decency & morality & visits a contravention with
imprisonment & fine. Sec 5 of this Act read with Rule 6(1)(o) of the Cable Television
Networks Rules, 1994 prohibits the carriage of programs that are not suitable for
unrestricted public exhibition. Sec 5-A talks about, unrestricted public exhibition,
Sec 4 of the Cinematograph Act, 1952, talks about examination of films. Section 5A of
the Cinematograph Act talks about certification of films. Sec 5-A of Cable Television
Networks Act read with sec 4 of Cinematograph Act provides for the examination &
certification of films by the Board of Film Certification (CFBC).

The Young Persons (Harmful Publication) Act, 1956 prohibits publications which could
corrupt a child or young person & incite him to commit crimes of violence or cruelty etc.
A contravention of the provisions of this Act is punishable with imprisonment & fine.

The Information Technology Act, 2000 makes publication & transmission in electronic
form of material which is lascivious or appeals to the prurient interest or if its effect is
such as to tend to deprave & corrupt persons who are likely, having regard to all relevant
circumstances to read, see or hear the matter contained or embodied in it punishable with
imprisonment & fine.

Advertising Standards Council of India & the self regulatory code of advertisements:

The Advertising Standards Council of India established in 1985 (ASCI) controls the
contents in a advertisement which is to be telecasted. ASCI is committed to the cause of
self regulation in Advertising ensuring the protection of the consumers. The ASCI was
formed with the support of all four sectors connected with Advertising, viz. Advertisers,
Ad Agencies, Media (including Broadcasters and the Press) and others like PR Agencies,
Market Research Companies etc. Its main objective is to promote responsible advertising
thus enhancing the publics confidence in Advertising.
The Code for Self Regulation in advertising was adopted by ASCI on November 20, 1985
which was amended by in February 1995 & June 1999. The Self Regulating Code was
adopted under 2(ii)f of its Article of Association at the first meeting of the Board of
Governors. The Self Regulating Code contains one of the fundamental principles as: To
ensure that advertisements are not offensive to generally accepted standards of public
decency. Advertisements should contain nothing indecent, vulgar or repulsive which is
likely, in the light of generally prevailing standards of decency and propriety, to cause
grave or widespread offence.

A case for obscenity was complained against Amul Macho, an underwear advertisement
which was finally turned down by ASCI in June 2007. The Consumer Complaint Cell
(CCC) of ASCI received a complaint that the Amul Macho crafted for fanaticizes stating
that the advertisement was indecent & violated the ASCI code. The ad had a woman
entering a dhobi ghat to wash her bundle of clothes. As other women watch her, the
woman, clad in a sari and ornaments that mark her as a new bride, pulls out an underwear
from the bundle and washes it, all the while contorting her face and eyes suggestively.
Her facial expressions suggested that she is still fantasizing her man wearing the
underwear which claimed to have been indecent & not accepted by the general standards
of public decency. However after reviewing through the advertisement CCC found that
the advertisement was not so obscene to give rise to grave or widespread offence.

The Ministry of Information & Broadcasting wrote to the Indian Broadcasting Federation
(IBF) in Aug 2008 asking its member channels not to telecast FMCG major Hindustan
Uinlevers AXE Dark Temptation Deodrants terming it as indecent, vulgar & repulsive.
The advertisement featured a chocolate boy being chased around by women and licked
and bitten off to communicate the deodorants irresistible fragrance. The Ministry also
requested ASCI to provide details of complaints received & action taken by CCC if any
against this advertisement. ASCI is yet to decide its verdict. Hindustan Unilever said it
would abide by the governments final decision but said that the advertisement wasnt
meant to be indecent or obscene but it was rather intended to be humorous & witty as
shown by the consumer research.

Developing & conservative countries like India are still in a dilemma as to what would
constitute over exposure of sexuality through media & would violate the moral norms of
the society & be regarded as obscene. Sometimes the producers of many ads try to
showcase their products in an innovative way which many sections of the audience might
just accept it. Some sections of the viewers are creative & might accept with open arms
the innovative approach in portraying a product. But this is always not true. As
developing countries like India has a large section of the society as well which is illiterate
& underprivileged which might not be able to accept the creative & innovative portrayal
of some ads & which may seem as obscene & indecent to this section of the society. Thus
some of these ads might just not be able to confirm to the standard laid down by ASCI &
are forced to go off air, some of which ads might just be highly circulated & popular
among many other countries.

Conclusion:

Many commercial ads featuring deodorants, inner wears have been banned in India as
those couldnt comply with the ASCI codes. India has much been exposed to the
westernized world after liberalizing trade after the crisis of 1991. Hence forth many
western products have been brought to the Indian markets & the ads featuring these
products started flourishing in the Indian markets. But all sections of the society wasnt
ready & is not yet ready to accept the westernized outlook. Most of the brands which are
western have been banned from featuring their products in the commercial ads, referring
them as obscene, but these products had a very high demand in the world market & their
outlook towards marketing their products in the world market especially in the western
world is quite different from that of a conservative country like India. The kind of feature
films, short documentaries or small clippings of ads that are been banned or referred to as
obscene in India is a clear revelation that India is yet to go a long way to reach an
universal standard of obscenity observed in the world at large especially the western
world. Though the Middle East countries especially the Arab countries are also quite
conservative in these aspects where ads featuring condoms & contraceptives are also
regarded as obscene which is one of the most important instruments of birth control. But
anyways, India needs to come out of its conservative shell & have a much broader
outlook towards judging any content as obscene.

Bibliography

Statutes:

Indian Penal Code, 1860

Indecent Representation of Women (Prohibition) Act 1986

Cable Television Networks (Regulation ) Act, 1995

Cinematograph Act, 1952

Young Persons (Harmful Publication) Act, 1956

The Information Technology Act, 2000

Self Regulatory Code of Advertising Standards Council of India

Statutes under English Law

Obscene Publications Act, 1959

Criminal Justice and Police Act, 2001

Statutes under United States Law:

Penal Code of California

U.S Code, Chapter 71, defining obscenity

U.S Code defining child pornography

Child Exploitation & Obscenity Section enforcing federal criminal statutes relating to
exploitation of children against obscenity

Books:

Geoffery Robertson, QC & Andrew Nicol, QC, Media Law, fully revised 5th edition,
Penguin Group
K.D.Gaur, Text Book on the Indian Penal Code, 4th edition, Universal Law Publishing

Kiran Prasad, Media Law & Ethics: Readings in Communication Regulation, Volume 2,
B.R. Publishing Corporation, Delhi

Madhavi Garodia Divan, Facets of Media Law, Eastern Book Company, Lucknow

Sara Hadwin & Duncan Bloy, Law & the Media, Sweet & Maxwell, London, 2007

Bob. M.Fennis & Wolfgang Stroebe, The Psychology of Advertising, Psychology Press,
Hove & New York
Websites referred to:

http://www.jwt.lk/news4.htm (last visited on 7th Nov, 2011)

http://www.ascionline.org/index.php/asci-about last visited on 6th Nov, 2011

http://www.ascionline.org/index.php/asci-codes last visited on 8th Nov, 2011

http://www.mumbaimirror.com/article/2/200706060237543438504e2e0/Underwear-ad-
is-clean-rules-ASCI.html last visited on 7th Nov, 2011
http://www.mydigitalfc.com/my-world/govt-indecent-deodorant-ad-air last visited on 7th
Nov, 2011

http://www.banksr.co.uk/images/Statutes/MP/Obscene%20Publications%20Act
%201959%20(as%20enacted).pdf (last visited on 6th Nov)

Cases discussed:

R vs Hicklin (1863) 3 QB 360

Miller vs California 413 U.S 25(1973

Roth Vs United States354 U.S 476 (1957)

Memoirs v. Massachusetts 383 U.S 413 (1966)

Ranjt. D.Udeshi vs Union of India AIR 1965 SC 881

Samaresh Bose vs Amal Mitra AIR 1986 SC 967

Bobby Art International vs Om Pal Singh Hoon (1996)4 SCALE 75

K.A.Abbas vs Union of India (1970)2 SCC 7