Certain laws which impose reasonable restriction in the interest of decency & morality

i) Old IPC & BNS

(292-294)

ii) cinematograph Act (censorship)

iii) Dramatic Performances Act

iv) Custom's Act

V.) Post Office Act

Indecent representation of women prohibition act

vi) Young person's harmful publication act

vii) IT Act, 2000 67,67A,67B

viii) Cable television regulation Act

Decency & Morality

Terms

Meaning of Decency & Morality These two terms are vaque, they are elastic notions, that have
evolved with time and social change, they vary for different cultures, what maybe acceptable to One
section maybe outrageous for other section of society

Chandrakanth Kalyandas Kaketkar

SC observed that notion of Decency and Morality vary from country to country depending on their
moral Standards

(In Indies, these terms became more vague) coming up with straight jacket fomula is nearly
impossible

Decency & Morality must be given a wide meaning, but practically speaking whenever there is any
serious deliberation, we can confine these two terms to sexual morality. That is why there is a lot of
confusion.

Indecency & obscenity

Obscenity means something offensive to modesty, offensive to decency, luid, filthy, repulsive,
something lasivicious, something appealing to puriant interest, something that tends to deprave &
corupt individuals

On the other hand we have indecency, which mething absceno is wider than oliscenity something is
indecent but what is need always te cliscene indecent in might.

Test for obscenity

Hicklin test
R v Hicklin.2

The case was related to an anti-Catholic pamphlet, entitled “The Confessional Unmasked”, wherein
allegedly one half of the pamphlet contained obscene material relating to impure and filthy acts,
words, and ideas. The pamphlet allegedly purported to expose what catholic priests conversed with
young women during their confessions “showing the depravity of the Romish priesthood, the iniquity
of the Confessional, and the questions put to females in confession”. Affirming the Magistrate’s
decision of seizure of pamphlets, the Queen’s Bench laid down the test of obscenity as “whether the
tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open
to such immoral influences, and into whose hands a publication of this sort may fall”

obscene publication test

a later development, opt was enacted as a campaign to provide protection to publication with
literary merit. Although Hicklin was buried in England, sc used this in case of ranjeet udeshi

This Hicklin Test, although diluted over many years, was followed by the Indian courts for a significant
period of time. The first case of obscenity before the Indian courts was Ranjit D Udeshi v State of
Maharashtra(1965) where the appellant, a bookseller, was charged under section 292 IPC for selling
copies of D H Lawrence’s book, “Lady Chatterley’s Lover”. He challenged the said section for being
violative of Article 19(1)(a), and even if the section was valid the book was not obscene. ection 292
was held to be well within the confines of the Constitution. The court further held that as per section
292, knowledge of obscenity is not an essential ingredient of the offence, thereby making the
argument that it must be proved that the appellant sold the book with the knowledge of it being
obscene and an intention to thereby corrupt the purchaser, is invalid. The court will presume that he
is guilty if the book is sold on his behalf and is later found to be obscene unless he can establish that
the sale was without his knowledge or consent.

Likely Audience Test

When a creative idea germinates in the mind of a maker, the target audience/viewer/reader for the
same also floats in the mind. Consequently, every creative work is intended to be associated with a
focused group. This focused group may be a universal audience with no restrictions, or it may be for
a specific age group or above a prescribed age limit, or it may be restricted to other classification as
per the maker. This target audience becomes a crucial factor when deciding the work on test of
obscenity. This can be further explained by the Supreme Court’s decision in Chadrakant Kalyandas
Kakodkar v State of Maharashtra.

The court deviating from the Hicklin Test on “likely to fall in the hands of the reader”, stated that
there are innumerable books in the market available for both adults and adolescents, which contain
references to sex; but the intention may not always be to stimulate sexual feelings in the reader.
Sexual references can form part of art and may be intended to propagate ideas. What has to be seen
rather is that whether a class, not an isolated case, into whose hands the book, article or story falls
suffer in their moral outlook or become depraved by reading it or might have impure and lecherous
thoughts aroused in their minds.

Objective Method of Deciding Question of Obscenity

In Samaresh Bose v Amal Mitra,the Supreme Court raised two important points – firstly, that each
matter of obscenity must be looked at objectively, and secondly, every vulgar writing is not
necessarily obscene. The judge should, first, try to place himself in the position of the author and try
to understand what is it that the author seeks to convey and whether what the author conveys has
any literary and artistic value. Secondly, the judge should place himself in the position of a reader of
every age group in whose hands the book is likely to fall and should try to appreciate what kind of
possible influence the book is likely to have in the minds of the readers. Thereafter, in the third stage
the judge should apply his judicial mind dispassionately to decide whether the book in question can
be said to be obscene within the meaning of section 292 by an objective assessment of the book as a
whole and also of the passages complained of as obscene separately.

Literary Merit

The courts have time and again stated that when deciding on the question of obscenity the literary
and artistic merit of a work is paramount. If the literary or artistic merit of the work outweighs the
alleged obscenity or predominates overall work, then such work should be given the advantage of
exercising the freedom of speech and expression. In MF Hussain v Raj Kumar Pandey,25 a petition
was filed challenging the summoning orders against the petitioner for a painting depicting India in an
abstract and graphical representation of a woman in nude with her hair flowing in the form of
Himalayas displaying her agony. The silhouette of the woman was similar to the outline of India’s
map.

The court held that looking at a piece of art from the painters’ perspective becomes very important
especially in the context of nudes. It was further held that the work of art must have any aesthetic or
artistic touch and should not seem to have been taken with the sole purpose of attracting viewers
who may have a prurient mind. Thus, where obscenity and art are mixed, art must be so
preponderating as to throw obscenity into shadow or render the

obscenity so trivial and insignificant that it can have no effect and can be overlooked.26 The court
further stated that when a question in relation to nude/semi-nude pictures of a woman arises, it
would depend on the particular posture, pose, the surrounding circumstances and background in
which the woman is shown. Thus, the literary and artistic merit of the work must overpower the
alleged point of obscenity

Upheld in KA Abbas v UOI

court held that treating with sex and nudity in art and literature cannot be regarded as evidence of
obscenity without something more. Where obscenity and art are mixed, art must be so
preponderating as to throw obscenity into shadow or render the obscenity so trivial and insignificant
that it can have no effect and can be overlooked.

Contemporary/National Standards

this test dynamic in nature because the standards of the society fluctuate but it is also the most
relevant test because the standards of rigidity and liberty are mostly dependent on the perception of
overall society that we live in the court laid down the following threefold Miller’s Test, Marvin Miller
v State of California:

i. Whether the average person, applying contemporary community standards would find that work,
taken as a whole, appealing to the prurient interests

ii. Whether the work depicts/describes, in a patently offensive way, sexual conduct specifically
defined by the applicable State law.

iii. Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.
This was upheld in S Khushboo v Kannaimmal, it was held that the appellant in this case had only
expressed her personal opinion related to pre-marital sex and had in no way either described a
sexual act or said anything that would arouse sexual desires.

Apex Court further stated that the threshold for placing reasonable restrictions on the “freedom of
speech and expression” is indeed a very high one and there should be a presumption in favour of the
accused in such cases. It is only when the complainants produce materials that support a prima facie
case for a statutory offence that Magistrates can proceed to take cognizance of the same

Test of Ordinary Man

A work to be judged on the question of obscenity must always be judged from the perspective of an
ordinary reasonable man. An average person’s reasonability, sensibility and perception should be the
yardstick for the same. The question cannot be decided from the point of view of persons with
exceptional or out-of-the-ordinary opinions, nor from the perspective of an overtly sensitive person.
For instance, if a person, hypothetically, suffers from motion sickness while travelling in airplanes,
should that lead to complete ban for everyone on travel by flight? The answer is, No. Likewise, if one
person or a small group of persons are offended by a particular movie or book or song or painting,
etc. then the same cannot be declared as obscene based on the hyper-sensitivity of a small fraction
of the society. The judiciary has to bear in mind the outlook of an average reasonable person.

Judging the Work as a Whole

In Director General, Doordarshan v Anand Patwardhan,45 a documentary film, titled “Father, Son and
Holy War”, was denied from being telecast on Doordarshan, a national network channel in India. The
documentary film, which was in two parts, was given two different certificates by the Central Board
of Film Certification. Furthermore, the court also applied the contemporary standards test, and
stated that judging the work in its entirety does not lead to the conclusion that it will corrupt the
mind of an average citizen. The film depicts communal violence and the reality of such crimes, and
therefore cannot be understood by watching it in bits and pieces. To understand the message that
the film wants to convey, the film should be watched and judged as a whole for the overall impact.
Only when the work is observed and appreciated in its entirety will the true meaning come through.

Aversion Defence

The aversion defence, simply reiterates the line of thought that if a work incorporates elements of
sex, nudity, etc. to create an aversion in the minds of the reader/viewer towards a particular
character or towards a particular act, generating sympathy and empathy towards the victim then
such a work cannot be judged as obscene. The best example of this defence is the Bobby Art
International’s case, where the court has expressly held that the movie, Bandit Queen, has
incorporated scenes of nudity to generate a sense of disgust against the perpetrators and sympathy
towards the victim. Thus, the scenes cannot be excised from the film in the name of perversion. A
film, book or other form of art which intends to condemn a social evil must necessarily show that
evil, even if it requires showcasing some amount of nudity or sexual references. If the overall
intention and prepondering effect is to create aversion towards the social evil, then the work cannot
be simply adjudged as obscene

Expert Opinion

Therefore, the courts should always have the option open of referring to experts from the field if
necessary. For example, if the content in question before the court is in a language that the judges do
not know or are not familiar with, then a lot of meaning could be lost in translation, if correct
meaning and understanding is not sought from an expert.

Devidas Ramachandra Tuljapurkar v State of Maharashtra also emphasised on the community

standards test obscenity has to be judged from an average person’s perspective and applying
contemporary community standards. Additionally, the Comparables Test,40 i.e., relying on
comparable materials and literature as an indicator of what the community accepts, has been
appreciated to resonate the Contemporary Community Standards Test, and to understand what
might be acceptable to the community. However, it is not accepted as an applicable test to
determine obscenity, rather is an addition to the Contemporary Community Standards Test.

Nudity is not Necessarily Obscene

In Raj Kapoor v State,12 the appellant’s film “Satyam Shivam Sundaram” was subject-matter of a
complaint for alleged punitive prurience, moral depravity and shocking erosion of public decency. It
was further held that while film certification undergoes a due process, yet it is open to be reviewed
by the courts when required, and the court will examine the film and judge whether its public
display, in the given time and clime, so breaches public morals or depraves basic decency as to offend
the penal provision. The question of whether mere nudity amounts to obscenity was settled by the
Supreme Court in Bobby Art International v Om Pal Singh Hoon. The Supreme Court laid down clearly
that nudity cannot necessarily be always termed as obscene. held that the object of the scene where
she is humiliated, stripped naked, paraded, made to draw water from the well, was not to titillate the
cinema-goer’s lust but to arouse in him sympathy for the victim and disgust for the perpetrators.15
The court held that a film on any social evil necessarily must show that social evil. The naked parade
was central to the story, and nudity was not with the intention to arouse sexual feelings, Thus, the
judgment sets two distinct parameters – firstly, that a form of art which intends to depict a social evil
must necessarily show the evil. The theme and essence of the work, if portraying social problems,
must bear proximity to reality even if it requires explicit references. If removing such references
distorts the reality or takes away from the gravity of the matter then the work would be futile.