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The Immodest Act Of Hurting Modesty: A Serious Threat

Awareness is a menace to combat against the evil.
There are lot of things in this world but what women seeks out of it are Respect and Dignity, in today's time, we see numerous cases where the modesty of a women gets violated and infringed. Violation against women can be seen in many forms like, rape, marital rape to sex slavery, sexual harassment, outraging the modesty of women, voyeurism, stalking and many more, but out of all the mentioned issues one of the frightening issues against women is vulgar display of women. Vulgar display is an act that relates to indecent representation of women, and any law intercepting indecent representation of women can result into fighting against this contention.

Indian law has introduced many provisions and legislations which mainly deals with disallowance of 'obscenity' in any of the form.

First understand, what obscene word mean?

Obscene describes something that is morally offensive in a sexual way and disregard of moral and ethical principles prevailing in the society. So, it regards to something which is not admissible to the society and Supreme Court of India has provided various judgements about what is obscene and what is not.

In the case of Chandrakant Kalyandas Kakodkar v. Province of Maharashtra (1970), the Court stated that although the word obscenity is used many times, there is no clear and well-defined meaning of the word given in the statutes. Obscenity basically punishes and prohibits the act of individual mailing, granting, distributing, and sharing obscene content in which courts must understand the gravity of the offense and deliver a judgement accordingly.

Tests of Obscenity:

The Oxford dictionary defines obscene as 'offensive or disgusting from the perspective of standards of morality and decency.'

There are primarily three tests which determines and check the content or any art or gesture that is it really obscene towards any women or not.
  • Miller Test:
    Miller test initially applied by the United States of America, it is a very famous case in matter relating to obscenity, it is named after the famous case held that is Miller v. California this case deals with challenges occurred through online obscenity issues. Miller test is divided into three parts mainly and that are:
    • The average person, enforcing the contemporary community standards, would find that work, taken as a whole, appeals to the prurient interest.
    • Whether the work indicates or describes, in a patently offensive way, sexual conduct specially defined under the applicable state law.
    • The work, taken as a whole, short of serious literary, artistic, political or scientific value.
    The work or act is considered obscene only if all the above given three conditions are satisfied.
  • Hicklin Test:
    This test is one of the legal tests for obscenity derived from the well-known English case Regina v. Hicklin (1868). This case was totally based on the interpretation of the word "obscene". A broad definition of obscenity, based on ascertaining "whether the tendency of the matter is to deprive and corrupt those whose minds that are open to such immoral impact and into whose hands a publication of this sort may fall"In the landmark judgement of Ranjit Udeshi v. The state of Maharashtra (1964) The Supreme Court of India pursued the Victorian-era Hicklin test. This test assess obscenity on the standard of an individual who was open to immoral influences and would likely to be corrupted or depraved by the material in question. A wide range of material could be held 'obscene' using this test.
  • Community Standards Test:
    The test of community standards states that any gesture, art or any content is considered as obscene or indecent only that is opposed to contemporary community standards. This test applied in India.
The purview of the obscenity has been seen reduced significantly by the judiciary over the years in the case of Aveek Sarkar v. The state of West Bengal (2014) the Supreme Court neither applied the British Hicklin test nor the American Roth test instead. But according to this test, obscenity was to be assessed and should be seen from an average person's outlook, applying prevailing community standards.

This test of contemporary community standard, takes the changing values in society into consideration and how things could be supposed vulgar long ago would not be considered as obscene now.

Legal protection in India:

There are numerous laws residing in India to govern or tackle with the cases of obscenity, but after all these prevailing laws, it's difficult to segregate what is under the ambit of word obscene or what not. All the relating laws are discussed below:
  1. The Indian Penal Code, 1860
    Section 292 and section 293 of Indian penal code,1860 states that 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 and whoever sells, lets to hire, distributes, exhibits or circulates to any person under the age of twenty years any such obscene object referred in section 292, or offers or attempts so to do shall be an offence under this section.

    Section 294 Whoever, to the annoyance to others:
    • Does any obscene act in any of the public place, or
    • Signs, gestures, recites or utters any obscene song, ballad or vulgar words, in or near any public place,
    Shall be held liable under this section and punished either with the imprisonment for a term which may extend to 3 months, or with fine, or with both.

    In the case famous case of Avnish Bajaj v. the State (NCT of Delhi), 2008 it was held by the court that any offence that is related to obscene act in any of the electronic form can be tried only under the IT Act and not under the IPC as Section 81 of the IT Act clearly talks about its overriding effect. But as per the variation in facts and circumstances of the case, provisions of both the laws IT and IPC could be applied.

    Section 509 whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, that is insulting the modesty of a woman in a section which plays a significant role in offences which includes 'sexual assault'. Doing messages or unreasonable comments on the women body or physique on nearby passing girls also covers into this section. Punishment for the same that person shall be liable with simple imprisonment for a term which may extend to 3 years, and also includes fine.
  2. The Indecent Representation of Women (Prohibition Act), 1986
    The main objective of this Act is to restrict the representation of women in an indecent manner through publications or in advertisements, figures, paintings, writings, diagrams or in any other left manner and for any other matters that is connected therewith.

    This act punishes and stop the thick representation of women, which basically means that 'the illustration of the figure of women in any other manner' or any other part of her body thereof shows in such way to have the impression of being indecent, or abusive to, derogating or denigrating towards women, that is likely to denied, corrupt or injure the public ethics or morals.

    Punishment for the same under this act is:
    First offence:
    Imprisonment up to Two years and with a fine of 2 thousand rupees.

    Repeat offence:
    Imprisonment up to Five years and with a fine of from 10 thousand to 1 lakh rupees.
  3. Information Technology (Amendment) Act, 2008
    The Amendment of Information Technology Act in year 2008 (IT Act 2008) is an adequate addition to Information Technology Act 2000 of India. The Amendment in Information Technology Act has been widely hailed as a progressive step forward in order to protect India's cyber infrastructure, prevent cyber-crimes and citizens of India.

    It is one of the most extensive pieces of legislation addressing issues related with Information Technology and sets a strong manifestation for all other countries who are working to update their own IT laws.

    Section 67(A) states that publishing the sexual material on a social platform or on social media applications, sites will result into a punishment.

    • First time offence:
      Imprisonment of Five years with a fine of 10 lakh rupees.
    Section 67 (B) amendment is the turning point in the aspect of the movement of children in India which is against and infringes the provisions of child pornography, and this law makes clear that not only viewing, publication and distributing is punishable but also keeping in possession of such pornographic content is punishable.

    • First time offence:
      Imprisonment of Five years and with a fine of 10 lakh rupees.
    • Repeated offence:
      Imprisonment of Seven years and with a fine of 10 lakh rupees.

Related Judgements:
  1. In this well-known case of Ajay Goswami v. the UOI (2006), the Supreme court of India introduced a test, which determines whether the act of reader is with proper care and caution or not, and also enables a reader to act according to this test in this modern era known as responsible reader test.
  2. In year 2018, AIB Roast Obscenity case occurred which was related to obscenity act, in this case, multiple Bollywood celebrities like Deepika Padukone, Ranveer Singh, Arjun Kapoor and a famous director of Bollywood industry Karan Johar and several other celebrities were involved and found accused in an indecent and obscene act.
  3. In the historical judgement of Maneka Gandhi v. Union of India, SC stated that Article 21 of Indian constitution does not only points out about physical survival but also contains the aspect of Right to live with human dignity. Therefore, it clearly shows that no men or women should be presented in an indecent and vulgar way. Therefore, Article 21 not only talks about right to life rather rooted with right to dignity as well.

The word obscenity or indecent act are from those words whose meanings are still not well defined or not clear in our Indian Law provisions. What comes under the umbrella of word obscene and indecent act towards women, which can be immodest towards them totally depends upon the interpretation of judges and advocates. It became important to point out one thing here that nowadays, the appropriate limitation of obscenity and vulgarity on the content which appears on different social platforms like in web series, movies, books, art, literature, images, videos or picture has not been properly determined in our country yet.

Indian legislation provides a number of provisions to patronize the women from being painted as vulgar or in an obscene manner whether, in the form of paper or digital. Sometimes, it seems necessary to literate the people in a way, which is subtle and gentle to minimize the increasing strain in our society especially, against the female caste that is worshipped like Maa Durga in the territory of India. Protection of women and girls should be our ultimate goal to prevent ourselves and another person to commit such immodest act whether, intentionally or unintentionally.

  1. Indian penal code,1860 S. 292, 293, 294, 509
  2. The Indecent Representation of Women (Prohibition Act), 1986
  3. Information Technology (Amendment) Act, 2008 S. 67(A) & 67(B)
  4. blog
  5. (2014) 4 SCC 257
  6. (1868) LR 3 QB 360
  7. AIR 1965 SC 881

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