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The essence of free expression is the ability to think and speak freely and to obtain information from others

through publications and public discourse without fear of retribution, restriction, or repression by the government. It is through free expression, people could come together to achieve political influence, to strengthen their morality, and to help others to become moral and enlightened citizens. The concept of obscenity differs from nation to nation. It depends on the cultural values and moral standards that have shaped the history and society of the country. Typically, obscenity is usually analyzed in the backdrop of sexual conduct. Indian law on obscenity is defined under the Indian Penal Code. In India, since time immemorial, the purity of women has been given utmost importance. It is like a social barometer that is essential to sustain a familys social honor and reputation. Whether the women are queens of royal birth or ordinary women, Indian culture placed great importance on values such as fidelity. Even the portrayal of women in India focused on these aspects till advertising and new bohemian way of thinking changed the popular perception. A peek into the pages of French history will show that women were not tied down by such concepts, not even if they were queens. In fact, many French queens were known to bear children other than the Kings and this was accepted without much difficulty even by the royal society. In India, however, this is still unthinkable. Even with the passage of time that has given women considerable freedom, a womans role and position in the family and society is greatly influenced by values such as decent conduct. In Indian law, obscenity has been welldefined by existing provisions and mostly relates to how something like a book or film portrays sexual conduct.

Indian Law: What is Obscenity?

Obscenity is defined under Indian law as: Any work that appeal predominantly to "prurient" interest. Any work that depicts or describes sexual conduct in a patently offensive way. Legally, the term obscenity is referred to indecent expressions, such as words, images and actions. Exhibition of an indecent act that leads to general corruption of morals amounts to violation of Indian law. For example, when the famous painter, M.F.Hussain painted Goddess Saraswati nude, there was considerable public outrage and anger directed at the artist. The paintings were considered obscene by many Hindus while others who viewed it from an artistic perspective saw nothing wrong with it. Freedom of expression, though guaranteed, is not absolute in India. Unlike the U.S. Constitution, the text of India's Constitution clearly sets out restrictions on free expression. The freedom of expression guarantee under Article 19(1) (a) can be subject to reasonable state restriction in the interest of decency or morality. Obscenity in India is defined as "offensive to modesty or decency; lewd, filthy and repulsive." It stated that the test of obscenity is whether the publication, read as a whole, has a tendency to deprave and corrupt those whose minds are open to such immoral influences, and therefore each work must be examined by itself. With respect to art and obscenity, the Court held that "the art must be so preponderating as to throw obscenity into a shadow or the obscenity so trivial and insignificant that it can have no effect and may be overlooked ." The Court concluded that the test to adopt in India, emphasizing community mores, is that obscenity without a preponderating social purpose or profit cannot have the constitutional protection of free expression. In India the Obscenity law is the same as had been framed by the British Government. Charges of obscenity have been levelled against various writers and poets till date; the law has not yet been revised. The famous trials relate to the Hungryalists who were arrested and prosecuted in 1960s.

While debates continue about the veracity of the judicial system's intervention here, the definition of obscenity itself isn't clear. The dictionary says it's "of words, thoughts, books, pictures, etc. morally disgusting; offensive; likely to corrupt and deprave (esp by regarding or describing sex indecently)..." while the Indian law, as Supreme Court lawyer Alpana Poddar says, "does not have any clear cut definition on this. It depends on the factual circumstances of each case." Adds lawyer and former MP RK Anand, "Obscenity is a wide word. It changes with time. What was considered obscene 20 years ago, is not considered so now." A view that is echoed by many who have been in the firing line. Remember the case involving Milind Soman and Madhu Sapre in a shoes ad? The two posed nude with a python draped around their necks. "This happened way back in 1996. It was aesthetically pleasing, albeit a little naughty. But not vulgar!" says Milind.

Indian Law: Obscenity is Covered in Section 292, IPC

Obscenity offences in India are featured in section 292, of the Indian Penal Code. The sections seem to come into conflict with an individuals right to freedom of expression, as guaranteed under the Constitution of India. Further, the Indian law on obscenity is often misused, to restrict a citizens freedom of expression. However, Article 19(2), of the Constitution of India provides that the right to freedom of expressions can be restricted to prevent indecency in public interest. Section 292 of the Indian Penal Code provides that the sale of a book, pamphlet, paper, writings, drawing, painting, representation, figure or any object shall be considered as obscene, if it is lascivious or if it tends to corrupt persons, who are likely to get exposed to it. Indian law prescribes a punishment of 2 years or fine of up to Rs.2,000 if an individual promotes obscenity, such as sells, possesses, hires, distributes, imports, exports, makes profits from business or purchases an obscene material. If found guilty for the second time, he/she shall be liable for an imprisonment up to 5 years and fine up to Rs.5,000. However, the provisions of section 292 are not applicable to any work, which is proved to be in public interest, such as work related to science, literature, religious purpose or ancient monuments. Obscenity is a difficult term to explain as it is intricately linked to the moral values of the society. The Courts have laid down a principle saying that the test to determine obscenity is whether the tendency of the matter, charged with obscenity is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall. If it does, the matter falls within the purview of obscenity. In Ranjit D.Udeshi v.State of Maharashtra (AIR 1965 SC 881), the Supreme Court observed that the test of obscenity to adopt in India is where an obscenity is published with a commercial purpose and no other social purpose, it cannot have the constitutional protection of free expression and expression. Treating sex in a manner appealing or having the tendency to appeal to the carnal desire of human nature is definitely obscenity.

Obscenity: Under American Laws

Since the freedom of expression is mainly governed by the first amendment of the constitution and first amendment did not talk about obscenity and freedom of expression, The Supreme Court has usually refused to give obscenity any protection. The governments, both federal and state, have been permitted to make suitable legislation. However the court from time to time developed various tests to examine obscenity. In Roth v. United States, Court applied a new test for obscenity, which was "whether to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to the prurient interest." this is known as Ruth test of obscenity. The Roth test was further expanded when the Court decided Miller v. California case. It is commonly known as Miller test. Under the Miller test, a work is obscene if it would be found appealing to the prurient interest by an average person applying contemporary community standards depicts sexual conduct in a patently offensive way and has no serious literary, artistic, political or scientific value. It thus includes the expression of ones ideas through any communicable medium or visible representation, such as gesture, signs and the like .It very important to note that under Miller test, the community" standards are followed, which might be different from the national standard. Thus, material may be deemed obscene in one locality but not in another. National standards, however, are applied whether the material is of value. In the United States of America, issues of obscenity raise issues of limitations on the freedom of expression and of the press which are otherwise protected by the First Amendment to the Constitution of the United States. The Supreme Court has found that obscenity is an exception to the constitutional rights under the First Amendment, and is usually limited to content that directly refers to explicit sexual acts that are publicly accessible, though it has at times encompassed other subject matters, such as spoken and written language that can be publicly transmitted and received by the general public. Legally, a distinction is made between socially permitted material and discussions that the public can access and obscenity, access to which should be denied. There does exist a classification of those acceptable materials and discussions that the public should be allowed to engage in, and the access to that same permitted material which in the areas of sexual materials ranges between the permitted areas of erotic art (which usually includes "classic nude forms" such as Michelangelo's David statue) and the generally less respected commercial pornography. The legal distinction between artistic nudity, and permitted commercial pornography (which includes sexual penetration) that are deemed as "protected forms of expression" versus "obscene acts", which are illegal acts and separate from those permitted areas, are usually separated by the predominant culture appreciation regarding such. However, no such specific objective distinction exists outside of legal decisions in federal court cases where a specific action is deemed to fit the classification of obscene and thus illegal. The difference between erotic art and (protected) commercial pornography, vs. that which is legally obscene (and thus not covered by 1st Amendment protection), appears to be subjective to the local federal districts inside the United States and the local moral standards at the time. In fact, federal obscenity law in the U.S. is highly unusual in that not only is there no uniform national standard, but rather, there is an explicit legal precedent (the "Miller test", below) that all but guarantees that something that is legally obscene in one jurisdiction may not be in another. In effect, the First Amendment protections of free expression vary by location within the U.S., and over time. With the advent of Internet distribution of potentially obscene material, this question of jurisdiction and community standards has created significant controversy in the legal community. (See United States v. Thomas, 74 F.3d 701 (6th Cir. 1996)) Even at the federal level, there does not exist a specific listing of which exact acts are to be classified as obscene outside of the legally determined court cases. Title 18, chapter 71 of the USC deals with obscenity, the workings out of the law described in this article, most notably the aforementioned Miller test. Former Justice Potter Stewart of the Supreme Court of the United States, in attempting to classify what material constituted exactly "what is obscene," infamously wrote, "I shall not today attempt further to define the kinds of material I understand to be embracedbut I know it when I see it"

The Miller test was developed in the 1973 case Miller v. California. It has three parts: Whether "the average person, applying contemporary community standards", would find that the work, taken as a whole, appeals to the prurient interest, Whether the work depicts/describes, in a patently offensive way, sexual conduct specifically defined by applicable state law, Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

India and America- Comparison

Two great democracies of world America and India very aptly recognizes the right of freedom of expression. The United States and India almost have similar free expression provisions in their Constitutions. Article 19(1) (a) of Indian constitution corresponds to the First Amendment of the United States Constitution which says, congress shall make no law abridging the freedom of expression or of the press4. However, the provisions in the US Constitution have two notable features i.e.:

freedom of press is specifically mentioned therein, No restrictions are mentioned on the freedom of expression.

As far as India is concerned, Supreme Court of India has held that there is no specific provision ensuring freedom of the press separately. The freedom of the press is regarded as a species of which freedom of expression is a genus. Therefore, press cannot be subjected to any special restrictions which could not be imposed on any private citizen,5 and cannot claim any privilege (unless conferred specifically by law), as such, as distinct from those of any other citizen. In the famous case, Express Newspapers (Private) Ltd. v. Union of India, Justice Bhagwati stated, "[that] the fundamental right to the freedom of expression and expression enshrined in our constitution is based on (the provisions in) Amendment I of the Constitution of the United States and it would be therefore legitimate and proper to refer to those decisions of the Supreme Court of the United States of America in order to appreciate the true nature, scope and extent of this right in spite of the warning administered by this court against use of American and other cases. Despite similarities in their constitutional provisions, the United States and India have their own unique jurisprudence on freedom of expression. Consequently, they differ as to what is and what is not acceptable free expression. As mentioned, the real difference in freedom of expression enjoyed in the United States and India is a question of degree. This difference in degree is attributable to the reasonable restrictions provision and the moral standard of the communities. India has progressed from an authoritarian system of control and is now attempting a legislative model of control, quite similar to that of the United States. Free expression is meaningless unless it has space to breathe. It is important to note that false statements made honestly are equally a part of freedom of expression. The supreme court of India applied the famous doctrine of New York Times v Sullivan standard of American constitutional law against public officials. Accordingly, statements made against persons in the public eye cannot be considered defamatory unless they were made with actual malice. The reason for this is very simple, democratic governance mandates the strict scrutiny of public official duties.

The consequence of this very high degree of constitutional protection to freedom of expression in the United States is that ideas most Americans consider very repugnant, and that may be hurtful to some people, such as racial hatred, can be expressed freely. At the same time, the expansive protection to freedom of expression under the First Amendment ensures robust debate on all public issues and the widest dissemination of all ideas. As stated above, under the First Amendment, there is no such thing as a "bad idea," and the remedy for bad expression is said to be "more expression, and not enforced silence. It is part of our culture that people are "free to speak their mind" and need not fear that they will be sanctioned for saying something that is offensive or unpopular. The government is not required to and, more importantly, is not permitted to make decisions about what ideas may be expressed and what ideas may not be expressed. The constitutional guarantee of freedom of expression under the First Amendment then means freedom of expression in the fullest sense. For better or worse, this is the American way. However in the case of India constitutional provisions have been widely influenced by the moral standard of the society. Constitution has tried to adapt and embody those freedom and restrictions enjoyed by the Indian people from long time. The provision of freedom of expression and restrictions are the result of that way of thinking, and this is the Indian way.

Expression and its freedom is one of the basic guarantees provided by civil society. However in modern world Right to freedom of expression is not limited to express ones view through words but it also includes circulating one's views in writing or through audiovisual instrumentalities, through advertisements and through any other communication channel. It also comprises of right to information, freedom of press etc. It is a right to express and self realization. Two big democracies of world i.e. America and India have remarkably protected this right. As far as India is concerned, this important right is mentioned in Article 19(1) (a), which falls in fundamental right category. Indian courts have always placed a broad interpretation on the value and content of Article 19(1) (a), making it subjective only to the restrictions permissible under Article 19(2). The words 'in the interest of public order', as used in the Article 19 include not only utterances as are directly intended to lead to disorder but also those that have the tendency to lead to disorder. There should be reasonable and proper nexus or relationship between the restriction and achievement of public order. Initially, the American constitution was not having any provisions directed to protection of freedom of expression and expression. It was inserted in the constitution vide first amendment of the constitution. The First Amendment has been drafted in broad and sweeping terms, and for this reason, the text of the First Amendment does not contain any standard for determining permissible restrictions on freedom of expression. The restrictions that are permissible now are those that have been developed by the Supreme Court in its interpretation of the First Amendment. The United States has a complex First Amendment jurisprudence that varies the protection offered free expression according to form. Similarly, India developed its own free expression jurisprudence that applies a "reasonable restrictions" test based on eight mentioned restrictions. The real difference in freedom of expression enjoyed in the United States and India is a question of degree. This difference in degree is attributable to the reasonable restrictions provision and the moral standard of the communities.