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Media And Obscenity

Obscenity is a kind of mind pollution and a social problem affecting the society at large. It can be defined as any picture, photograph, figure, article, write up, video, etc. or a public act which depraves or corrupts the mind and which appeals to the prurient interests or which is against the acceptable social moral standards would be called obscene and vulgar.

Off late, the media has played a major role in promoting obscenity by way of semi-nude ads, video-graphy, news in the form of soft-porn and much more. They are certainly putting at stake the values of an entire generation just for a little more circulation, readership, viewership and a little more money.

What is obscenity
Obscenity is a legal term that refers to anything that offends a person's morals. This may be doing something that is indecent, lewd, or obscene. Obscenity is commonly used in reference to pornography, though it pertains to much more. The courts have found determining just what qualifies as obscenity, as it is subject to each individual person's moral values. The term often applies to erotic content in books, magazines, and films, as well as nude dancing. To explore this concept, consider the following obscenity definition.

Legal Provisions
Various legal provisions including sections, acts and codes have been discussed for highlighting Indian scenario against obscenity.

The legal provisions against obscenity are as follows:
Indian Penal Code, 1980
Section 292 of the Indian Penal Code, laid down three tests to understand the term obscenity which are as follows:
A book, pamphlet, paper, writing etc., shall be deemed to be obscene if it is:
  1. lascivious; or
  2. appeals to the prurient interest; or
  3. if its effect or where it is more than one item, the effect of any one of the items, if taken as a whole, is such as to rend to deprave and corrupt persons who are likely, having regard to all the relevant circumstances to read, see or hear it.
If all the above conditions are fulfilled then the matter would be considered as obscene and the same would be punishable under law.

Cable Television Networks (Regulation) Act, 1995
This act prohibits the transmission of advertisements on the cable network which are not in conformity with the Advertisement Code. The Advertisement Code is set out under Rule 7 of the Cable Television Network Rules, 1994. Contravention of these provisions attracts liabilities. The Advertisement Code states that no advertisement shall be permitted which derides any race, caste, colour, creed and nationality.

The Information Technology Act, 2000
This particular act has been brought about aims to facilitate the development of a secure regulatory environment for electronic commerce. Thus while, it is admittedly a statute leaning towards regulation of commercial activities, it has several provisions, which refer to penalties and offences. The legislators very clearly intend this to be the fundamental umbrella legislation to govern computer- related activity in India.

There is a separate chapter for Offences and for the purposes of this paper the most important provision is section 66 which is as follows:
Whoever publishes or transmits or causes to be published 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.

The Cable Television Network Act, 1995
This act clearly mentions that 24 hours NO ADULT programme can be shown on television.

The Indecent Representation Of Women [Prohibition] Act, 1986
This act states that depiction of the figure, body, or any part of a woman's body, which is denigrating women or likely to corrupt Public Morality is a punishable offence. The Act punishes the indecent representation of Women , which means the depiction in any manner of the figure of a woman; her form or body or any part thereof in such way as to have the effect of being indecent, or derogatory to, or denigrating women, or is likely to deprave, corrupt or injure the public morality or morals.

Tests for Obscenity
  1. Hicklin test
    The Hicklin's test was laid down in English law in the case of Regina v. Hicklin. On Application of Hicklin's test, a publication can be judged for obscenity based on the isolated part of the work considered out of the context. While applying Hicklin's test the work is taken out of the whole context of the work and then it is seen that if that work is creating any apparent influence on most susceptible readers, such as children or weak-minded adults.
  2. Roth Test
    In 1957, a new test was developed by US courts to judge obscenity in case of Roth v. United States, In this case it was held that only those sex-related materials which had the tendency of exciting lustful thoughts were found to be obscene and the same has to be judged from the point of view of an average person by applying contemporary community standards. This test was sharper and narrower than the Hicklin's test as it does not isolate the alleged content but limits itself to the dominant theme of the whole material and checks whether, if taken as a whole, it has any redeeming social value or not.

Indian Courts on Obscenity:
Indian Judiciary for the first time defined obscenity in the case of Ranjit D. Udeshi v. The State of Maharashtra. In this case Hon'ble Supreme Court observed that the test of obscenity is, whether the tendency of the matter charged as obscene is to deprave and corrupt those whose minds are open to immoral influences, but the test of obscenity must agree with the freedom of speech and expression guaranteed under our Constitution. Therefore, sex and nudity in art and literature cannot be regarded as evidence of obscenity without something more.2

The Court went on to admit that obscenity has been understood in the following terms:
  1. That which depraves and corrupts those whose minds are open to such immoral influences
  2. That which suggests thoughts of a most impure and libidinous character.
  3. That which is hard-core pornography.
  4. That which has a substantial tendency to corrupt by arousing lustful desires. That which tends to arouse sexually impure thoughts.
  5. That which passes the permissive limits judged of from our community standards.
In this case the Hicklin test was applied and given due regard by the court to judge obscenity.3 After this case Hicklin test was continuously liberalized and applied until the recent case of Aveek Sarkar.

In another such case, K.A. Abbas v. Union of India and Anr, the Hon'ble Supreme Court validated the pre-censorship of content as exception to the right to freedom of speech and expression. However, the court observed that:
The censors need to take into account the value of art while making their decision. The artistic appeal or presentation of an episode robs it of its vulgarity and harm and also what may be socially good and useful and what may not.

While determining that whether a thing presented in a film is obscene or not it should be considered with the context in which that thing is being portrayed and it should not be isolated from the context. Based on this same concept as mentioned, the Supreme Court in case of Bobby Art International & Ors. v. Ompal Singh Hoon while dealing with the question of obscenity in the context of film called Bandit Queen, ruled that the scenes depicting must not be scene in isolation. Hon'ble court said that the so called objectionable scenes in the film have to be considered in the context of the whole film and with the context that film is seeking to transmit in respect of society.

Further, In Chandrakant Kayandas Kakodar vs The State of Maharashtra, the Supreme Court observed that the standards of contemporary society in India are fast changing. The adults and adolescents now have available to them a large number of classics, novels, stories and pieces of literature which have a content of sex, love and romance. In the field of art and cinema also the adolescent is shown situations which even a quarter of century ago would be considered derogatory to public morality, but having regard to changed conditions, are more taken for granted without in any way tending to debase or debauch the mind.

In case of Director General, Directorate General of Doordarshan & Others v. Anand Patwardhan and Another in this case an independent filmmaker challenged doordarshan's refusal to telecast his documentary, giving reason that it contain scenes that could promote violence and it's telecast would be against the policies of doordarshan. The court held that tough, there are some scene of violence and social injustices in the film but because of this it cannot be said that the filmmaker supports any of that, and this depiction is only meant to convey that such social evils still exist.

The Court also held that a documentary couldn‟t be denied exhibition on Doordarshan simply on account of its "A" or "UA" certification. the Court held that a film must be judged from an average, healthy and common sense point of view.

In case of Maqbool Fida Husain vs Raj Kumar Pandey Delhi High Court while dealing with the issue of whether a nude painting depicting 'Bharat Mata' can be said to be obscene or not. The court answered this in negative and went on observing that "nudity or sex alone cannot be said to be obscene."

High Court of Bombay in case of state of Maharashtra v. Joyce Zee alia Temiko observed that:
A .customer, above the age of eighteen, who goes to a hotel, where a cabaret show is run, looks forward to be entertained by obscenity and cannot complain of annoyance to which, if any, he shall be deemed to have given his consent.

In the recent land mark judgment of Aveek Sarkar v. State of West Bengal Hon'ble Supreme Court while dealing with the issue of obscenity finally disapproved the Hicklin's test and adopted the Roth test. The issue was revolving around a picture which was alleged to be obscene in nature.

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