The Indian Penal Code does not define the word “obscene” and this delicate task of how to distinguish between that which is artistic and that which is obscene has to be performed by Courts. The test to be evolved must obviously be of a general character but it must admit of a just application from case to case by indicating a line of demarcation not necessarily sharp but sufficiently distinct to distinguish between that which is obscene and that which is not.
Supreme Court in the case namely Ranjit D. Udeshi vs. State of Maharashtra, decided on 19.08.1964 (MANU/SC/0080/1964 = 1SCR65) discussed and adjudicated on the constitutionality of Section 292 of the Indian Penal Code, 1860 (IPC). Section 292 deals of provision relating to sale of obscene books etc.
On the subject of obscenity it was submitted that a work of art is not necessarily obscene if it treats with sex even with nudity and a work of art or a book of literary merit should not be destroyed if the interest of society requires that it be preserved. The work should be viewed as a whole, and its artistic or literary merits should be weighed against the so-called obscenity, the context in which the obscenity occurs and the purpose it seeks or serve. If on a fair consideration of the opposite aspects, the interest of society prevails, than the work of art or the book must be preserved, for then the obscenity is overborne. The standard should not be that of an immature teenager or a person who is abnormal but of one who is normal.
It was pointed out that the test adopted by the Courts below from Queen v. Hicklin (1868) L.R. 3 Q.B. 360 (the Hicklin test) is out of date and needs to be modified. The Hicklin test in this though was not discarded as was sought and eventually it was discarded in the recent decision of Supreme Court in the recently decided case namely Aveek Sarkar and Anr. vs. State of West Bengal and Ors., decided on 03.02.2014 (MANU/SC/0081/2014 = AIR 2014 SC 1495)
There were three legal grounds raised during the argument which are as under:
(i) S. 292 of the Indian Penal code is void as being an impermissible and vague restriction on the freedom of speech and expression guaranteed by Art. 19(1)(a) and is not saved by clause (2) of the same article;
(ii) Even if S. 292, Indian Penal Code, be valid, the book is not obscene if the section is properly construed and the book as a whole is considered; and
(iii) The possession or sale to be punishable under the section must be with the intention to corrupt the public in general and the purchasers in particular.
The above set of contentions was raised with the backing of Article 19 of the Constitution.
It was held that undoubtedly Article 19 guarantees complete freedom of speech and expression but it also makes an exception in favour of existing laws which impose restrictions on the exercise of the right in the interests of public decency or morality. The section of the Penal Code in dispute was introduced by the Obscene Publications Act (7 of 1925). It does not go beyond obscenity which falls directly within the words “public decency and morality” of the second clause of the article. Word denotes the quality of being obscene which means offensive to modesty or decency; lewd, filthy and repulsive. It was held that it cannot be denied that it is an important interest of society to suppress obscenity. There is some difference between obscenity and pornography in that the latter denotes writings, pictures etc. intended to arouse sexual desire while the former may include writings etc. not intended to do so but which have that tendency. Both offend against public decency and morals but pornography is obscenity in a more aggravated form.
In terms of the Constitution it can hardly be claimed that obscenity which is offensive to modesty or decency is within the constitutional protection given to free speech or expression, because the article dealing with the right itself excludes it. The cherished right on which Indian democracy rests is meant for the expression of free opinions to change political or social conditions or for the advancement of human knowledge. This freedom is subject to reasonable restrictions which may be thought necessary in the interest of the general public and one such is the interest of public decency and morality. Section 292, Indian Penal Code, manifestly embodies such a restriction because the law against obscenity seeks no more than to promote public decency and morality. The word obscenity is really not vague because it is a word which is well-understood even if persons differ in their attitude to what is obscene and what is not.
Condemnation of obscenity depends as much upon the mores of the people as upon the individual. It is always a question of degree or where the line is to be drawn. The obscenity by itself has extremely “poor value in the propagation of ideas, opinions and information of public interest or profit. When there is propagation of ideas, opinions and information of public interest or profit, the approach to the problem may become different because then the interest of society may tilt the scale in favour of free speech and expression. It is thus that books on medical science with intimate illustrations and photographs, though in a sense immodest, are not considered to be obscene but the same illustrations and photographs collected in book form without the medical text would certainly be considered to be obscene. Section 292, Indian Penal Code deals with obscenity in this sense and cannot thus be said to be invalid in view of the second clause of Article 19.
Court rejected the third argument at the outset that the prosecution must prove that the person who sells or keeps for sale any obscene object knows that it is obscene, before he can be adjudged guilty. The first sub-section of S. 292 does not make knowledge of obscenity an ingredient of the offence. The prosecution need not prove something which the law does not burden it with. If knowledge were made a part of the guilty act and the law required the prosecution to prove it, it would place an almost impenetrable defence in the hands of offenders. Something much less than actual knowledge must therefore suffice. The difficulty of obtaining legal evidence of the offender’s knowledge of the obscenity of the book etc., has made the liability strict. Under the Indian law absence of such knowledge, may be taken in mitigation but it does not take the case out of the sub-section.
The second part of the guilty act is selling or keeping for sale of an object which is found to be obscene. Here, the ordinary guilty intention will be required before the offence can be said to be complete. The offender must have actually sold or kept for sale, the offending article. The circumstances of the case will then determine the criminal intent and it will be a matter of a proper inference from them. In criminal prosecution mens rea must necessarily be proved by circumstantial evidence alone unless the accused confesses. The sub-section makes sale and possession for sale one of the elements of the offence. As sale has taken place and the appellant is a book-seller the necessary inference is readily drawn at least in this case. Difficulties may, however, arise in cases close to the border. To escape liability the appellant can prove his lack of knowledge unless the circumstances are such that he must be held guilty for the acts of another. 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. The law against obscenity has always imposed a strict responsibility.
However one may have to consider a plea that the publication was for public good. This bears on the question whether the book etc. can in those circumstances be regarded as obscene. It is necessary to bear in mind that this may raise nice points of the claims of society to suppress obscenity and the claims of society to allow free speech.
In the Hicklin case, the test of obscenity was held to be – 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. It would suggest to the minds of the young of either sex, or even to persons of more advanced years, thoughts of a most impure and libidinous character.
The important question was whether the test of obscenity squares with the freedom of speech and expression guaranteed under the Constitution, or it needs to be modified and, if so, in what respects.
It was observed that the laying down of the true test is not rendered any easier because art has such varied facets 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. The Indian Penal Code does not define the word “obscene” and this delicate task of how to distinguish between that which is artistic and that which is obscene has to be performed by Courts. The test to be evolved must obviously be of a general character but it must admit of a just application from case to case by indicating a line of demarcation not necessarily sharp but sufficiently distinct to distinguish between that which is obscene and that which is not. Treating with sex and nudity in art and literature cannot be regarded as evidence of obscenity without something more. If the rigid test of treating with sex as the minimum ingredient were accepted hardly any writer of fiction would escape the consequential fate. Half the book-shops would close and the other half would deal in nothing but moral and religious books.
The world is now able to tolerate much more than formerly, having become indurated by literature of different sorts. The attitude is not yet settled. The Hicklin test however was held as not to be discarded as it makes the court the judge of obscenity in relation to an impugned book etc. and lays emphasis on the potentiality of the impugned object to deprave and corrupt by immoral influences. It will always remain a question to decide in each case and it does not compel an adverse decision in all cases.
The present was the first case before the Apex court invoking the constitutional guarantee against the operation of the law regarding obscenity and the book in question was from an author of repute facing several controversies. It was held that there would be no loss to society if there was a message in the book and when the whole book passed the permissible limits judged of from community standards and as there was no social gain which can be said to preponderate, the book was held to be passing through the test.