Offensiveness in Obscenity and the Legal Provisions

About the Article

Depiction of obscene materials and Pornography is considered as the forbidden subject in the social fabric of India. It cannot be denied that obscenity is against decency and Morality. Generally, it can be seen by advertising materials in which the women are used by showing their different body parts. Nudity is exhibited on the internet in the form of videos and pictures.

Though all the nude works do not fall under the category of obscenity. There are many historical Artistic works which can be seen in nude form but their purpose isn’t to promote carnal desire. Now the questions arise that what are the Parameters on which the Offensiveness of Nudity can be examined? And what does it impact on the minds of its Audiences? And why should it be prohibited? All these questions will be answered in this Article. 

Introduction

Every Society has some Morality and decency if these elements are not present in society. Society will go towards its decay. Viewing or expressing obscene materials creates lewdness in society. To prevent the harmful effects of these obscene materials can the state impose some restriction on Expressing and viewing of these contents? 

In western Societies, the main players of this debate are the religious conservatives, Feminists and the liberals. Religious conservatives and feminists argue that viewing pornographic contents demolishes the moral fabric of society and has a lack of Intellectual and Aesthetic competence. While liberals argue that Pornographic material is an art and promoting sexual freedom and liberation. In this article, I have discussed to what extent liberty and freedom are provided by Article 19(1) (a) of Indian Constitution and the restrictions imposed under clause (2) of the Constitution. 

Test of Obscenity 

The Supreme Court in the case of Ranjit D. Udeshi v. State of Maharashtra AIR 1965 SC 881[1] laid down the test of obscenity and held that the test of obscenity in India is the obscenity without preponderating the social purpose and profit cannot have the Constitutional Protection of free speech and expression and it is an obscenity in treating sex and provoking the sexual desire of human nature[2]. It was also held that merely treating with sex and nudity the art and literature cannot be said obscene unless there is the tendency to provoke sexual desires. 

Obscenity cannot be defined in single parlance because it differs from society to society and time to time. There was a time when human beings used to remain all naked. But with the emergence of time, the definitions of obscene and decency had to be searched. 

The idea of obscenity can be traced back three hundred years ago when Sir Charles Sedley exposed his nude body in public from his balcony. This act was condemned by the people. 

Indecent Portrayal of women

It is written in the Manu Smriti that the highest respect and protection should be given to the women throughout their life[3]. Unfortunately with the emergence of new technology television media the portrayal of women in Advertisements, Magazines, newspapers, and films are being used as the sale of Product. In most of the advertisements, separate body parts of the women are advertised with a view to generating a large profit on a particular commodity. The rising level of obscenity in films and web series is another concern for the decency and morality of society. Generally, adults are not so mature and the indecent representation of women in films and web series leads them to develop the sexual desire and creates a lewd perception in their minds for the women. 

Mass media is equally responsible for the increase of the indecent portrayal of women as the television has tremendous Popularity and its ability to reach a vast audience. Serious issues like gender inequality and harassment of women are not discussed but the indecent advertisements are portrayed. 

There are many games and websites in India which contain such contents categorised as obscene materials. 

Constitutional and legal provisions relating to obscenity

Article 19 

The preamble, Fundamental rights, Directive Principle of State Policy and fundamental duties of the Constitution grants the empowerment of women and provides the state to adopt measures of positive discrimination in favour of women. 

Generally, the argument in favour of expressing and viewing obscene contents is given by the liberals in India is the Freedom Of speech and expression provided under article 19 (1) (a) of the Indian constitution. And there is no physical harm in society by expressing these sexual Expressions. Though clause 2 of Article 19 provides that the state can make any law in respect of clause 1 on the grounds of decency and morality. Obscene materials and pornographic contents both make a negative impact in the society and degenerate the decency and morality of the society therefore the state can take any action against these Obscene materials for securing social Interest. 

Article 21

Article 21 of the Indian Constitution provides the right to life and personal liberty. In Maneka Gandhi v. UOI[4], the Supreme Court held that the right to life means not only mere Physical existence but it means a dignified meaningful human life. In Chandra Rajakumari vs. Police Commissioner Hyderabad[5] the Nature of beauty contest was defined by the court and held if the beauty contest is obscene, Indecent, scurrilous or Intending for blackmailing is repugnant dignity or decency of the women and violates article 21. 

Indian Penal Code

Under section 292 and 293 of Indian Penal Code (IPC) provides the sale, hire, distribution, Public exhibition circulation, import, export or advertisement of any matter which is Obscene is prohibited and Punishable and punishable on first conviction either with imprisonment for a term which may extend to three years and with fine which may extend to two thousand rupees. In second conviction imprisonment for a term which may extend to seven years. 

The Indecent Representation of Women (Prohibition) Act, 1986

This act punishes Indecent representation of women which defines under this act as the depiction of the figure of a woman and her body parts in such a manner as to have the effect of being indecent, derogatory, regenerating women, or is likely to deprave, corrupt or injure the public morality. Section 3 of this act Forbids the depiction of women in an Indecent or derogatory manner in mass media. Sec 6 of the act Provides penalty for sec 3 to a fine of two thousand rupees to ten thousand rupees and in second default conviction to six months to five years and a fine of rupees ten thousand. 

Freedom of Press: A Guaranteed Right?

In 2012 National Commission for Women way back in 2012 recommended to the government that the act also include digital media like internet, mobile phones etc. the definition of advertisement should also include any notice, circular, label, wrapper or other documents. 

Protection of human rights act, 1993

Section 2 (d) of the protection of the human rights act states that human right means rights relating to life, liberty, equality and dignity of the individual guaranteed by the constitution. NHRC can take cognizance of the infringement of the dignity of the women. 

The Press Council of India

The Press Council of India was established in 1978, the objective of this council was to improve the standard of the newspapers and News Agencies in India. According to PCI Journalists should not publish anything which is obscene, vulgar, and offensive to public good taste, Newspapers also shall not display advertisements which are vulgar and depiction of a woman in a nude or lewd posture. And it is the responsibility of the editor to prevent journalists from publishing anything which harms the morality and decency of the society. 

National commission for women Acts 1990

The National Commission for women was set up as a statutory body in 1992. This committee suggested that the women were facing injustice therefore the statutory body was formed which has made a large number of females aware of their rights by organising Seminars, Consultations, and workshops. 

Conclusion

Decency and morality are considered as the sole of any society without these elements any society cannot exist for a long time. Obscenity and pornography both are the enemies of Social Interest. Though the Indian constitution provides freedom of speech and expression it is subject to restriction. As Mukherjee, J says that freedom must not be subject to restriction. And there must be a balance between Individual Liberty and Social control. Viewing of obscene content decays the social fabric. Individual interest can never dominate over social interest. Therefore to protect the social interest restrictions on individual liberty can be imposed. Despite a number of laws, obscenity has become a fashion and huge money-generating sector. Problem is not in-laws but in their implementation. There must be strict guidelines to what extent obscenity can be portrayed and strict punishment on violation of these guidelines. 

Endnotes

1. 1965 AIR 881, 1965 SCR (1) 65
2. http://docs.manupatra.in/newsline/articles/Upload/AD469423-96F8-4A5F-AC67-B9EBE7A5E6E5.pdf
3. http://www.iosrjournals.org/iosr-jhss/papers/Vol19-issue11/Version-8/H0191183336.pdf
4. 1978 AIR 597, 1978 SCR (2) 621
5. 1998 (1) ALD 810, 1998 (1) ALD Cri 298, 1998 (1) ALT 329

BY- Aryan Solanki | Aligarh Muslim University