What are the Provisions in the Indian Penal Code for Prevention of or Trafficking in Obscene Publication?
The offence is punishable with imprisonment for a term extending to three months and/or fine. (Ss. 292-294).
Test of Obscenity:
Under sub-section (1) of S. 292 a book, pamphlet, paper writing, drawing, painting, representation, figure or any other object, shall be deemed to be obscene if it is lascivious or appeals to the prurient interest or if its effect is such as tends to deprave and corrupt persons who are likely, having regard to all relevant circumstances to read, see or hear the matter contained or embodied in it.
The test of obscenity is to judge whether the tendency of the matter charged as obscene is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of the sort may fall.
If a publication is detrimental to public morals and calculated to produce a pernicious effect in depraving and debauching the minds of the persons into whose hands it may come, it will be an obscene publication which it is the intention of the law to suppress.
The above provisions, however, do not extend to any book, pamphlet, writing, drawing or painting kept for religious purposes or any representation sculptured, engraved, painted in any temple, or kept for any religious purpose.
In Hickin’s (1861) L.R. 3 Q.B. 363, Cockburn, C.J. observed: “I think the test of obscenity is this, 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 publication of this sort may fall. It is quite certain in that it would suggest to the minds of the young of either sex, or even to persons of more advanced years, thought of most impure and libidinous character.”
The Supreme Court in Udeshi v. State of Maharashtra, (1965)1 S.C.R. 55] considered the above test, and Hidayatullah, J., at the outset pointed out that it was not easy to lay down a true test because “it has such varied facts and such individualistic appeals that in the same object the insensitive sees only obscenity because his attention is arrested, not by the general or artistic appeal or message which he cannot comprehend, but by what he can see, and the intellectual sees beauty and art but nothing gross.” It was also pointed out in that decision:
“None has so far attempted a definition of obscenity because the meaning can be laid bare without attempting a definition by describing what must be looked for. It may, however, be said at once that treating with sex and nudity in art and literature cannot be regarded as evidence of obscenity without something more. It is not necessary that the angels and saints of Michelangelo should be made to wear breaches before they can be viewed.
If the rigid test of treating with sex as the minimum ingredient were accepted hardly any writer of fiction today would escape the fate, Lawrence had in his days. Half book-shops would close and the other half would deal in nothing but moral and religious books which Lord Cambell boasted were the effect of his Act.”
It is the duty of the Court to consider the obscene matter by taking an overall view of the entire work and to determine whether the obscene passages are so likely to deprave and corrupt those whose minds are open to such influences and in whose hands the book is likely to fall and in doing so one must not overlook the influence of the book on the social morality of our contemporary society.
“An overall view of the obscene matter in the setting of the whole work would, of course, be necessary, but the obscene matter must be considered by itself and separately to find out whether it is so gross and its obscenity so decided that it is likely to deprave and corrupt those whose minds are open to the influences of this sort and into whose hands the book is likely to fall.”
In other words, treating with sex in a manner offensive to public decency and morality (and these are the words of our Fundamental Law,) judged of by our national standards and considered likely or pander to lascivious, prurient or sexually preconscious minds, must determine the result. We need not attempt to bowdlerize all literature and thus rob speech and expression of freedom.
A balance should be maintained between freedom of speech and expression and public decency and morality but when the latter is substantially transgressed the form must give way.” Their Lordships of the Supreme Court after a review of the above authorities observed in Chadrakant Kalyandas Kakodhar’s case [1969(2) Supreme Court Cases, 687] as follows:
“The concept of obscenity would differ from country to country depending on the standards of morals of contemporary society. What is considered as a piece of literature in France may be obscene in England and what is considered in both countries as not harmful to public order and morals may be obscene in our country? But to insist that the standard should always be for the writer to see that the adolescent ought not to be brought into contract with sex or that if they read any references to sex in what is written whether that is the dominant theme or not they would be affected, would be to require authors to write books only for the adolescent and not for the adult.
In early English writings authors wrote only with unmarried girls in view but society has changed since then to allow litterateurs and artists to give expression to their ideas, and emotions and objectives with full freedom except that it should not fall within the definition of v obscene’ having regard to the standards of contemporary society in which it is read. The standards of contemporary society in India are also fast changing.
The adults and adolescents have available to them a large number of classics, novels, stories and pieces of literature which have a context of sex, love and romance. As observed in Udeshi’s case [(1965)1 S.C.R. 65], if a reference to sex by itself is considered obscene, no books can be sold except those which are purely religious.
In the field of art and cinema also the adolescent is shown situations which even a quarter of a century age would be considered derogatory to public morality, but having regard to changed conditions are more than for granted without in any way tending to debase or debauch the mind.
What we have to see 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.”