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The word obscene comes from the Latin word obscenus, which means foul, repulsive, or detestable. Obscenity is a term that is used to describe words that usually have a connection with sexual morality but now it extends to images or actions that offend most people. The word has significant legal context as well.

Under Indian law, Section 294 deals with the obscene act but it didn't clearly define what may be called obscene. While Section 292 deals with the publication, sale, exhibition, etc of things that are considered to be obscene. This section also provides punishment of upto 2 years and a fine upto 2 thousand rupees on the first conviction and for the consecutive convection, imprisonment of 5 years and a fine of 5 thousand rupees. There also exist exceptions to those publications which are justified on the public good, bona fide religious purpose and engraving and painting on ancient monuments.

Indian Penal Code:

Section 294: Obscene acts and songs.
Whoever, to the annoyance of others:
  1. does any obscene act in any public place, or
  2. sings, recites or utters any obscene song, ballad or words, in or near any public place, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both.

The Indian Post Office Act, 1898:
Section 20: Transmission by post of anything indecent, etc., prohibited.´┐ŻNo person shall send by post:
  1. any indecent or obscene printing, painting, photograph, lithograph, engraving, book or card, or any other indecent or obscene article, or
  2. any postal article having thereon, or on the cover thereof, any words, marks or designs of an indecent, obscene, seditious, scurrilous, threatening or grossly offensive character.

The Information Technology Act, 2000:

Section 67: Punishment for publishing or transmitting obscene material in electronic form. -Whoever publishes or transmits or causes to be published or transmitted in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect 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, shall be punished on first conviction with imprisonment of either description for a term which may extend to three years and with fine which may extend to five lakh rupees and in the event of 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 ten lakh rupees.

Classification of offence:

The offence of obscenity is cognizable (a case in which a police officer cannot arrest the accused without an arrest warrant)and bailable. The cognizance of such offences can be taken by any magistrate. The offence under section 294 is also non-compoundable.

Who may file a complaint:

Any person who thinks that the object on display or sold or shared has the potential to corrupt the mind of those who contacts it is an aggrieved person. It is not necessary that the person himself has been in contact with the obscene object.

Who can be prosecuted

Only the person who has displayed, shared or sold the obscene material is prosecuted. In the case of large social media giants, they are exempted from criminal liability if they were expeditious in removing the content from their networking sites on receiving such information(Section 79 of Information Technology Act,2000).

Foreign Cases:

Regina v. Hicklin (1868):
In the above case, Justice Cockburn stated the test of obscenity as:
whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such influences, and into whose hands a publication of this sort may fall.

This ruling had some drawbacks like even the part of some writing could be considered obscene which made medical and artistic writing dealing with public importance was also considered obscene and could be restricted. These drawbacks were further improved by Roth v U.S. in the year 1957.

Roth v. United States:
The Court repudiated the Hicklin test and defined obscenity more strictly as material whose dominant theme was taken as a whole appeal to the prurient interest of the average person, applying contemporary community standards. Only material meeting this test could be banned as obscene.

Miller v. California:
The Court, in an attempt to set such limits, devised a set of three criteria that must be met for a work to be legitimately subject to state regulation:
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 or describes, in an offensive way, sexual conduct or excretory functions, as specifically defined by applicable state law (the syllabus of the case mentions only sexual conduct, but excretory functions are explicitly mentioned on page 25 of the majority opinion); and whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Indian Cases:

Ranjit D. Udeshi vs State Of Maharashtra on 19 August:

The word obscene is not limited to writings, pictures, etc. intended to arouse sexual desire. The work of art and literature should not be judged on the mere criteria of sex and nudity. The criteria of sex and nudity alone are not sufficient to consider something obscene. The test given by Cockburn C.J., in Queen v. Hicklin, (1868) to the effect that the tendency of the matter charged as obscene must be to deprave and corrupt those, whose minds are open to such immoral influences and into whose hands a publication of the sort may fall, so far followed in India, is the right test. The work as a whole must be considered. It is necessary that a balance should be maintained between freedom of speech and expression and public decency or morality; but when the latter is substantially transgressed the former must give way.

Samaresh Bose And Anr vs Amal Mitra And Anr on 24 September:

The concept of obscenity is molded 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. Therefore, including the question of obscenity, the Judge in the first place should try to place himself in the position of the author and from the viewpoint of the author the Judge should try to understand what is it that the author seeks to convey and whether what the author conveys has any literary and artistic value.

The Judge should, thereafter, place himself in the position of a reader of every age group in whose hands the book 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 readers. A 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 section 292 I.P.C. by an objective assessment of the book as a whole and also of the passages complained of as obscene separately.

Section 294 violates Articles 19 [freedom of speech and expression]
It was held that undoubtedly Article 19 guarantees complete freedom of speech and expression but it also makes an exception in favour of existing laws that impose restrictions on the exercise of the right in the interests of public decency or morality. The section of the Penal Code in dispute was introduced by the Obscene Publications Act (7 of 1925). It does not go beyond obscenity which falls directly within the words public decency and morality of the second clause of the article. Word denotes the quality of being obscene which means offensive to modesty or decency; lewd, filthy and repulsive. It was held that it cannot be denied that it is an important interest of society to suppress obscenity.

Criminal intent must be proved beyond doubt:

The second part of the guilty act is selling or keeping for sale of an object which is found to be obscene. Here, the ordinary guilty intention will be required before the offence can be said to be complete. The offender must have actually sold or kept for sale, the offending article. The circumstances of the case will then determine the criminal intent and it will be a matter of a proper inference from them. In a criminal prosecution, mens rea must necessarily be proved by circumstantial evidence alone unless the accused confesses.

The object of Section 294 is to curtail the indecent advertisements of various types which find display in the street and social networks and that these could harm the morals of the society, apart from being derogatory to the honour and dignity of the fair sex.

It was further observed that the sanctity of public decency can be utterly destroyed by an obscene advertisement that is not penalised by the legislature. It is also generally considered that the reach of indecent material in the hands of small children can also affect their very nature and their view of adult society. This may result in eccentric behaviour in them and in some feeble minds, it may even result in some unethical and unlawful activities. However one may have to consider a plea that the publication was for the public good.

Award Winning Article Is Written By: Mr.Anshuman Jaiswal
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