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Obscenity
Obscenity includes lewd expressions, remarks or representation through any means, be it words or pictures. It mainly includes the content which has vulgarity or indecency in it. It is obvious that it is a vague term but the growing number of cybercrimes and consumption of such content online is a pressing issue today. The impact it has on viewers is not only wrongful but portrays an image of the society or a part of it that can lead to increase in prejudice and affect the decency of society as a whole. Mainly the impact is on those teenagers and children, who due to lacking philosophical reasoning and awareness in India’s education system, resort to unlawful and unethical things. Although the social media platforms and websites have terms and conditions in reference to it and take action based on the reports, but there is a need to understand the laws in India regarding obscenity, especially in regard to the internet.
Obscenity Mentioned in Law:
Although obscenity is not defined under any Indian law but the punishment for it and obscenity as an offence is mentioned under following laws:
- Obscenity by any obscene content through electronic form is mentioned under section 67 of the Information Technology Act, 2000, which prescribes the punishment for it up to three years and the fine up to five lakh rupees.
- Other sections of the IT Act include section 67 A and section 67 B which provide punishment for the offence of publishing or transmitting pornographic material online and for the offence of including children in it, respectively.
- Under the Indian Penal Code, 1860, section 292 mentions obscenity as an offence.
- The Indecent Representation of Women (Prohibition) Act, 1986 also helps protect women from being a victim of obscenity as an offence.
- As of now, a victim can easily file a complaint against such offence on the National Cybercrime Reporting Portal, cybercrime.gov.in.
The National Commission for Women, recently asked Tiktok app to remove the videos and account of a famous user named Faisal Shaikh, that were spreading obscene content and were glorifying crime against women. Several videos of similar nature have been found on the app and after the statement by Chairperson of the National Commission for Women, Mrs. Rekha Sharma, there is an ongoing hot debate about obscenity on the internet.
Cases Related to Obscenity:
In the case of Ranjit Udeshi v. State of Maharashtra[1], there were some booksellers who were selling D.H. Lawrence’s Lady Chatterley’s Lover, which was banned after being found to be obscene and hence its sale was illegal under the section 292 of the Indian Penal Code, 1860. However, there were clashes regarding section 292 of the IPC and Article 19 (1) (a) of the Indian Constitution, that grants the fundamental right of freedom of speech and expression. While the Court resorted to the Hicklin test, which was criticised further, the consistency in the judgements of the Court was also bashed.
What is the Hicklin Test?
The Hicklin test was provided by the House of Lords in the case of Regina v. Hicklin[2], that described obscenity in the year 1868 and sensitised it for the use in publications to ensure that no obscene content is spread. The use of an outdated test for obscenity in 1960s in India, was also a subject to debate. The test was replaced or discarded by several courts worldwide.
In another case before the Supreme Court of India, Aveek Sarkar v. State of West Bengal[3], the Hicklin test was removed and the judgement was rather based on the community standards test, through which obscenity was to be determined based on the impact of the material on the community itself and not by judging the content solely and also take into account the purpose of such material under question. The court emphasised on the role of community standards in place of the opinions of groups of sensitive or offended people.
The facts of the case were that an article was published in a German magazine along with a semi-nude photograph of an actress. When it was republished and reprinted in India, the legality was questioned under section 292 of the IPC, 1860 and section 4 of the Indecent Representation of Women (Prohibition) Act, 1986. However, the court found the photograph not to be obscene and discontinued the Hicklin test.
Apart from such judgements and opinions of sections of society, it cannot be denied that harassment and bullying are promoted if obscene material or content is circulated. While defining obscenity in strict terms would probably never be possible due to its subjective nature but the impact of it on the society involved is needed to be assessed. The cases of obscenity through digital content are rising and the need for stricter laws regarding it is increasing.
- By Anurag Kushwaha
[1] 1965 AIR 881.
[2] LR 3 QB 360.
[3] (2014) 4 S.C.C. 257.
The article shows what obscenity is but how it’s connected with cyber space. With pornography , obscenity is also getting virtual these days. Any publication of obscene material in cyber space or on internet will be online obscenity . Certain applications are very serious about this and take content down that promotes obscenity such as instagram or tiktok. It immediately deleted any picture or video which is obscene in nature .
Obscenity, no doubt is cybercrime and must be demotivated. Though people are aware that illicit content promoting vulgarity and pornography are subject to strict actions, yet this is openly circulate it. There are pages on instagram that promote such pornography material, though they have private accounts but things as such leave a bad impression on people specially on teenagers, where women are a subject to vulgarity. Social media influence and shape people’s outlook to a great extent ,if such obscene things are curculated online, it will only make women and even men more vulnerable to sexual crimes. People should be made aware of the legal actions that can be taken against them, if they propogate such ideas online.
The term obscene is very vague and hard to describe. Also, what is obscene to someone may not be obscene to another person. It’s very subjective. Adding to that is the fundamental right to speech and expression. What would happen if people thought Michaelangelo’s paintings and sculptures to be obscene? They tried to fix his painting and ruined the masterpiece in the process. It all comes down to an individual level.
It lacks in some areas like this article is unable to establish the link between obscenity and cyber crime.
It defines what is obscenity in a proper and informative way.
Internet is an easy way to circulate obscene material among people and that’s why strong cyber laws should be made to avoid the circulation of such data.
The article has deeply described the term “obscenity” in Indian law by citing cases and judgement. How this word got different definitions and understandings with changing time.
Term obscenity is very wide. It depends on time, place, and society that what could be obscene and what cannot be called as obscene. Utmost care should be followed by the courts while making such decisions because it is matter of not one but the whole society.
Great article loved reading and got to know new things terms like opscenity.
Obscenity is an infringement to the right to live with dignity of the person and further of course it is a wider concept to understand. This article explains the status of this shameful crime in the Indian legal system. It further explains very nicely about the Hicklin test and the relevant case laws. The laws regarding these crimes need to be more stringent.