Kushagra Goyal
Criminal Law

Offenses Related to Obscenity

Contents hide

1 Introduction

2 Obscenity Laws in IPC

2.1 Offenses Related to Obscenity –

3 Indian society’s perspective on obscenity.

3.1 OTT platforms

3.2 Hicklin test

4 UK society perspective on Obscenity Laws.

4.1 Globe

4.2 Offenses Relate to Obscenity –

5 Conclusion.

6 Citations.

6.1 Related

Introduction

Offenses Related to Obscenity -The only motive to live in a constitutional country is not to protect the fundamental rights, right to live with dignity, security, and

Safety of a citizen but to uphold the moral and public decency in the society. The country in which we live i.e., India is more reasonable with the criminal part but Obscenity in criminal law

It is the most limelight section of society that got more attention than any other section of criminal law.

Indian society is more tilte towards public decency and believes that everyone should live properly and wear proper clothes so that there should be no public nuisance relating to obscenity as it is taken very seriously in a country like India.

So due to the perspective of Indian citizens, The obscenity laws uphold an important place in the Criminal laws of the country. The importance of these rights is more effective due to the resolution passed

By the international convention for the suppression and circulation of obscene publications at Geneva.

Obscenity Laws in IPC

Offenses Related to Obscenity – The sections of Indian penal code 1860, i.e., 292, 293, 294 of IPC, 1860

They have been place in the Indian law where it prohibits the sale of books with obscene material in 292

Sale of obscene objects to a young person, obscene acts, and songs in section 294. The offenses listed in sections are cognizable, bailable, non-compoundable, and triable by any magistrate.

The evolution of obscene law started as early as in the 4^th century when the roman catholic church had taken

The initiative by banning the few heretical works. The seed was sow by the invention of the printing press of the modern obscenity law. The first person who was convict due to the charge of obscenity was in England

When one bookseller Edmund curl 1720 published a mildly pornographic work but

He was not punish as there was no specific law on the subject matter.

Offenses Related to Obscenity –

The validity of section 292 was challenged in the case of Ranjit deshi v state of Maharashtra [1], where the accused was booked in section 292 but he sought the fundamental right of freedom of speech and expression guaranteed under Article 19(1)(a) [2] of the constitution. It was held that Article 19(1)(a) of the constitution is subject to the restrictions enlisted under article 19(2). Section 292 dealing with obscene materials falls within this exception thereby addressing the issue of public decency and morality. In this case, the government-impose ban on the novel, and when the constitutionality was determining the court upheld the decision on banning the book. There are also exceptions when the material is obscene but it is justified

As it is in the interest of the public good or in science, literature, or learning. The court observe that the test of obscenity in India where it is only use for commercial purposes

And, not social purposes should not have the constitutional protection of freedom of expression. There is the punishment of imprisonment of 2 years and a fine of Rs 2000 on the first conviction while if there is a subsequent conviction then there will punishment of imprisonment of 5 years and a fine up to Rs 5000[3].

Section 294 is basically lead on few factors i.e., an obscene act done in a public place and

Which must have caused annoyance to the public. There are charges and punishment for singing or uttering obscene words in public i.e., imprisonment up to a period of 3 years or fine or both [4].

Indian society’s perspective on obscenity.

The Indian society is more derived from the perspective of forming and living in a decent society and they think obscenity is a way to corrupt our minds and it makes the society impure and unfit to live in. They believe to raise their children protecting from these things and PDA is crossing all the limits. There are instances when some old thinking people hit young boys doing these things in the public domain. There was an instance when an actor Milind Soman was book for obscenity as he share his nude picture on his birthday running on the beach.

If we look at the case individually he has not committed anything wrong and he had not asked anyone to see it on social media platforms and he is free to do anything but nowhere comes the moral decency part and the negative impact it has on society. Thus an FIR was lodge against him under section 294 of the IPC. Section 95 and 96 of the criminal procedure code 1973 [5], contains the practice and procedure of the cases on which these obscenity sections are applied. There was a second incident when activist Rehana Fathima was book for obscenity by the supreme court as she ask his minor son to paint her nude picture. The Indian law is strict regarding obscenity as people are the most affected and it is the duty of the court to protect the interests of its citizens.

OTT platforms

The instance of OTT platforms being popularize in India at a high speed. There are many platforms that provide nude scenes or many times. Obscenity which affects the mind of a minor and he gets tempt due to it. But now there is an argument that OTT platforms are meant for individual fun and the age limit and type of content is already describe in the info section. The platforms like Netflix, Alt Balaji are providing their customers with this content, now the ventral ministry has decided to censor these platforms to stop broadcasting these shows and to censor the scenes. This instance is a part of section 294 of IPC and this clearly suggest that it was irrelevant and was not want but the Indian mind perspective makes the right thing to live in a democratic country where every citizen is free to live unless affecting others’ freedom.

The same was rule in the case of K.A. Abbas v Union of India and others [6] where it was held that pre-censorship was valid and is an exception of freedom of speech and expression as it will have a long effect on the minds of viewers. There is no particular law in India to determine the complexity as to describe what is obscene is or not as it is more determined by the factors like public decency, traditions, beliefs and it undergoes extensive changes from time to time. The Indian courts have changed their decisions and the principle to test the obscenity in the situation. In the case of Aveer Sarkar v state of West Bengal [7], the court applied community mores and standards rather than the Hicklin principle stated in the Ranjit d deshi v state of Maharashtra.

Hicklin test

The facts of the former case that a nude picture of a couple was print by the magazine. Stating their future goals and the message they conveyed to the public. The court ruled that the editors and publishers are not guilty under section 292 of the IPC, 1860, and in this case, they overruled the decisions of the trial court. The court ruling opposed the principles of the Hicklin test and gave their decision on the Community Standard Test principle or Miller Test [8]. According to the standard principle it was held that the people should not make their decisions on the perception of few people make. They should see the larger interests of the national values. As it is more adaptive to the evolving and transitioning India. It is therefore for judges to see the full picture

Instead of on only any particular sexually explicit scenes or material.

UK society perspective on Obscenity Laws.

The obscenity laws in the U.K. are quite different from the Indian laws as the cultural values and moral principles are quite different from the U.K. In the U.K. it is the obscene publication act 1959 where the laws are mention regarding obscenity. In the United Kingdom, the principle used by them was applied in the case of Regina v Hicklin [9]. the Hicklin test, it is less wide

As it applies to the specific person or community which is a problem in its base. It suggests that regarding the community it should be generalize as

It can be seen that if we apply a principle to a specific community then it will lead to obscenity being prove in every case. The spirit of the Hicklin case is clearly visible but

Its application has limited and largely diverted from the conservative views pronounce in the Whyte case. The laws suggest that it should be able to corrupt the minds or degrade the public sentiment and morals. The nature of the material and circumstances should be analyze to presume the nature of the obscene material.

In India, society has different traditions due to which it is hard to determine

What is obscene for one and the same not for others. It is very important that in India the collective standard test should be use as

In India everyone has the right to live in a way that is ideal for them. The laws should not deprive the other person of its basic fundamentals i.e., right to live and right to speech and expression. Just because some person is running nude,

Globe

It can have other interpretation which depends on situation and changes from time to time. The laws in the U.K. are far more upgraded and they can use the Hicklin test

As it is not so much different in traditions and the mentality of the society is not so much conservative in the U.K. The India and U.K. are both common law country and the laws of obscenity are derive from there only

But now with the change in the globe, the laws should be amended too.

Offenses Relate to Obscenity –

Few recommendations should be use regarding the laws of obscenity. The definition of the term obscenity is not define clearly in any law book. It is the need of the hour that a particular definition should be frame to define the term. The other measure is that the law should be applied only when there is any harm to society. Which is measurable and not when only a few people are sensitive to the material. The censorship on the media and entertainment should be discuss once again

By the responsible ministry as it is clearly a measure to violate the fundamental rights of the citizen. The community standard principle should be apply in a wider term

So that no one is being convict just because of the mentality of a few people or the community.

Conclusion.

Offenses Related to Obscenity – In the end the conclusion of the laws and comparative analysis of both the countries. It is clearly sees that in India the laws are apply more

Because of moral and public sentiments and less based on the application of the jurisdiction of the country laws. The Indian court judges have changed from using the miller test to the community standard test. The interpretation of the material is very important as it is the base for the rest of the case. The Offenses Related to Obscenity must be probate but it should not violate or cover the fundamental rights of the citizens.