Tests for obscenity

Obscenity is a legal concept which characterizes certain material as offensive to the public sense of decency.  The laws against obscenity are concerned with prohibiting lewd, indecent materials or depictions, words or pictures. The legal provisions related to obscenity are mainly given under Indian Penal Code, 1860 as the Information Technology Act, 2000.

Tests for obscenity

The concept of obscenity differs from nation to nation depending on the cultural and moral values of the country. India has adopted various tests from different countries to determine the element of obscenity in its court cases.

• Hicklin Test: It was established in English law in the case of Regina v. Hicklin where the court held that all material which tends to deprave and corrupt those whose minds are open to such immoral influences was obscene regardless of the merit. In this test, the isolated part of a work is considered out of context to see if it creates any apparent immoral influence on its most susceptible readers.
• Roth Test: In the case of Roth v. United States, the Supreme court rejected the Hicklin test and it was held that only sex related material which can excite lustful thoughts are obscene and the same has to be judged from an average person applying contemporary community standards. This test was better than Hicklin as it does not isolate the content but takes the dominant theme of the work.
• Miller Test: It was established in the United States and is also known as the three-prong obscenity test was developed in the case of Miller v. California. The court held that if a work, taken as a whole, appears to the prurient interests by an average person, and the work depicts sexual conduct specifically defined in the laws and when taken as a whole lacks serious literary, artistic, political or scientific value.

Legal provisions

Section 292 of the Indian Penal Code states that if any material when taken as a whole appears lascivious or appeals to the prurient interests and tends to corrupt the person who sees, reads or hears it will come under purview of obscenity. Section 293 of the IPC deals with selling of obscene objects to young persons and prescribes punishment for the same. Section 292 conflicts with the freedom of speech and expression under Article 19(2) of the Constitution, however, this freedom is subject to restrictions and indecency is one of those restrictions. Section 294 of the IPC punishes a person for committing obscene acts in public places.

The punishment for publishing obscene material in electronic form is given under Section 67 of the IT Act. Any offence related to obscenity in electronic form can only be tried under IT Act as Section 81 of the IT Act clearly states the overriding effect of IT Act over IPC as it is a specific provision. Section 2(c), Section 3 and Section 4 of the Indecent Representation of Women Prohibition Act, 1986 also deals with the obscenity of woman in literary and artistic works.

Cases

In the case of Aveek Sarkar v. State of West Bengal the Supreme court held that nudity cannot be considered obscene under Section 292 unless it arouses feelings of sexual desire. The court discarded the Hicklin test in this case and adopted the Roth test keeping in mind that cases should be decided using the contemporary community standards and not from the point of view of susceptible persons.

In the cases of Ajay Goswami v. Union of India, the Supreme court held that the community based standard test has become redundant and a new test called as responsible reader test was adopted wherein the reader should be cautious.

The case of  State of Tamil Nadu v. Suhas Katti was the first case where the accused was convicted under Section 67 of the IT Act. Some defamatory  and obscene messages were posted on Yahoo messaging group about a widowed victim to imply that she was soliciting. Due to this, the victim started receiving phone calls. The accused was caught after an FIR was filed.

In Avinash Bajaj v. State (NCT) of Delhi, obscene material was put up for sale by one person on a website Baazee.com. Even though the website was just an intermediary, the court held that the ultimate transmission of obscene material wouldn’t have been possible without the facilitation by the website hence the website was held liable under Section 67 of the IT Act.

Conclusion

The term obscenity is not defined in the IPC but the courts have taken the effort to reasonably decide cases of obscenity. The determining factors in such cases like public decency, social morality and cultural variations keep changing and so the decisions also need to change with time. Obscenity is more of a social evil than a crime and can be curbed by raising awareness.

By- Mona Das