Author: Shubhangi Raj, Student of BBA, LLB 4th year, School of legal studies, Banasthali Vidyapith
INTRODUCTION
Every country has its own culture, customs, and traditions, which lay down certain social constructs and obligations that an individual needs to abide by in order to sustain or live content in its society. There are different communities, ethnic groups, or religions that have their own culture and customs that have been followed since time immemorial. Law has always been an important pillar of a society, and it cannot be differentiated from the customs of its country. The law helps in framing rules in accordance with the religion and ethics of the people. Although there’s a fine line between ethics and religion, But the ethics of a certain community heavily depend on the religion the community follows. Moreover, the rise of multiple ideologies of correctness and righteousness with time and the evolving horizons of the mindset have given a broader aspect to the word “ethics” and also to “obscenity.”
WHAT IS OBSCENITY?
The answer to this question hugely depends on which kind of public is being targeted and which background the individual answering it belongs to. The applicability of the word obscenity is derived from the perceptions of the people who are exposed to such incidents. Obscenity can not just be confined to an act sexually depicted, but can also be words, pictures, video, article, figure, photograph, etc., whichever tries to violate the social standards of morality. The meaning of the word obscenity differs from country to country and even from time to time. People of different mindsets and backgrounds react to any particular obscene instance in a very varied manner. The meaning of the word obscenity changes with the evolution of society and its culture.
Originally, the word obscenity was derived from the Latin word obscaena, which meant offstage. Sexual acts were depicted offstage in Latin dramas, which were considered to be obscene in those eras.
The term obscenity is very complex in nature and is broadly open-ended. It is also complicated to understand as it is closely related to an individual’s choices, which are directly or indirectly related to their culture and customs. Every country has struggled to define and set the ambit of this word. Laws relating to the regulation of these obscene contents are also a result of society’s development, concerns, and changing needs and criteria for obscene literature and acts. Due to developments in the fields of science and technology, the flow of these kinds of obscene is made a lot easier, the flow is unstoppable, and heavier restrictions are required by the country to regulate them accordingly.
Legally, the word obscenity can be defined as anything that is exposed to a certain age of audience and has the capacity to corrupt the minds of an individual. Any indecent act, when exposed, presented, or circulated among the general public, which can amount to corruption of one’s morals and customs, whether through words, acts, images, or actions, amounts to a violation of Indian law.
In the light of freedom of expression, many potential indecent acts can occur, which will have the capability to disturb the strength of a community’s morality and suppress its values. These kinds of acts are offensive in nature to one’s decency and ethics and can corrupt the minds of the person bearing them.
These acts hold the power to bring clashes into society, disturb the peace, and create chaos and integrity in any community. The sentiments of people are often attached to their customs and traditions and tend to agitate an individual if they are being mistreated or misoriented in any way. Changing habits and preferences of modern-day people are resulting in a rise in tensions between social norms and personal desires, which is a serious issue that needs to be regulated accordingly.
OBSCENITY AND INDIAN LAWS
India law and society go hand in hand; as society progresses, the law of India updates and advances along with it. In India, obscenity is discussed and defined in the Indian penal code and other related statutory enactments. These acts primarily focus on obscenity, such as sexual conduct or nudity, which is transmitted or depicted through movies or books.
However, the concept of obscenity changed with the advent of the media and the internet. It has now become easier for the public to access these kinds of sexually explicit movies, pictures, books, and many more. There is no such barrier to restricting these kinds of transmissions, which can be done from any part of the world.
The Supreme Court in the case of Aveek Sarkar v. State of West Bengal proposed that the latest “Community Standards Test” should be used to determine what constitutes obscenity and that the earlier Hicklin test will not be applicable. The Court had come to the conclusion that, while making decisions in obscenity matters, judges should consider the current national standards of society rather than the opinions of a select group of people.
Section 292 to Section 294 of the Indian Penal Code talks about obscenity and majorly deals with the publication of obscene books and movies. Anyone who violates these rules will forfeit the offensive article, and the culprit will be punished.
Freedom of speech and expression is a fundamental right guaranteed by the Indian Constitution to ensure the free exchange of ideas and views. The Constitution places a restriction on the free exchange of ideas, with some justifiable limits. One of these limitations prohibits the use of materials that violate “decency or morality” or other standards. Thus, it can be stated that obscenity is an exception to the right to free expression because it may be problematic and detrimental for society and may have a negative impact on communal moral standards.
SITUATION AND LAWS RELATING TO OBSCENITY IN UNITED KINGDOM
Earlier in the United Kingdom, obscenity was considered harmful only for those things that were breaches of peace and insulted the religion and lord. Then, in 1787, the ambit of obscenity grew with King George III’s proclamation, wherein he sought to punish the publishers and vendors of such publications that dispensing poison in the young generations and minds, wherein he pointed out the books, immoral publications, and prints.
Till 1857, there wasn’t any proper law framed regarding matters of obscenity until in the same year Chief Justice John Campbell passed the Obscene Publications Act, 1857, which gave power to find and destroy any obscene material in the hands of magistrates.
According to English law, C.J. established a designated definition and standards for obscenity. The test for obscenity, according to the Chief Justice, is whether the allegedly obscene material has a tendency to corrupt and deprave people whose minds are vulnerable to such immoral influences and into whose hands a publication of this kind may fall.
The six components of the test established by the Queen’s Bench were the following:
Tendency to deprave and corrupt: The material that was published had to have a tendency to become depraved and corrupt, or it had to arouse in readers the most impure and libidinous thoughts.
Not the reasonable person: When determining the issue of obscenity, the court aimed to make its decision from the perspective of a reasonable person, particularly those whose minds are susceptible to such immoral effects. According to Cockburn, C.J., a reasonable person may include young children or elderly individuals who are in their later years.
Presumed intent: The court did not have to consider the author’s covert or charitable intentions while resolving the obscenity issue because there is no such thing as a pure purpose for publishing filthy material. Obscenity was to be assessed solely based on the author’s choice of words.
Irrelevance of contemporary books: The published work had to stand on its own, and the court was not allowed to consider other works that were available at the time.
Accessibility: The court was required to assess the circumstances surrounding the publication in question as well as its accessibility. Thus, a medical treatise with illustrations required for students or practitioners’ education may not be considered obscene because it was written with a specific audience in mind, even though it may be if it were displayed in a storefront for everybody to view.
Work as a whole is irrelevant: According to this test, only one isolated paragraph might make the entire work obscene rather than the entire work or the theme being taken into consideration when determining whether it was obscene.
CONCLUSION: WHY SHOULD OBSCENITY NOT BE PROTECTED?
Obscenity is an evolving notion that is constantly modified by the circumstances of the situation. Obscenity is a term with no precise definition. Its legal definition is any inclination that robs or corrupts the minds of individuals who are susceptible to such immoral influences. It denotes modesty or chastity. The term is broad and encompasses everything that appears to be “vulgar. Obscenity is a global problem that heavily depends on the local moral traditions and norms of many countries. However, the test to identify the elements of obscenity is somewhat the same across different legal systems.
The community’s moral standards and beliefs are lowered by the sexual thought that is generated by inappropriate content. The underlying societal standards, morality, and values are damaged by prolonged exposure to obscene content; this leads to social imbalance. These harms, which go against accepted norms and standards of sexual morality, might disturb cultural and moral order and result in increasing sexual licence, corruption, and depravity. Because obscene acts are prohibited, obscenity laws contribute to upholding current moral norms.
Men and women were treated equally and consistently under the Indian Constitution. However, there is a major difference between the standards and how they are really applied in Indian society. Provisions that benefit women have been established in order to clear up this uncertainty.
It is unfortunate that both print and electronic media continue to publish and transmit obscene content in spite of these constitutional articles, legislative enactments and restrictions, and judicial action. India’s social and moral standards are changing quickly as a result of technological advancement and the country’s rapid rise to a developed position. The judges must consider whether a group or individual who receives such information will suffer in terms of moral values and worldview or become deceived by reading it or allowing lecherous or impure thoughts to enter their brains.
Obscenity has become more prevalent in Indian entertainment, refuting the idea that it can be criminalized. Therefore, it is imperative to adhere strictly to the rule against obscenity and to execute it in a true manner in order to eradicate this societal issue at all levels. Given that the media is regarded as the fourth pillar of democracy, it should act as a warning system for lawmakers regarding obscenity. Everyone needs to be aware of the actions that weaken the fundamental elements of Indian society and culture. If we don’t, future generations will hold us responsible for ruining their rich cultural and social history, which they will blame for the unpleasantness and obscenity of the lowest type.
The social issue of obscenity cannot just be solved by framing laws, giving landmark judgements, or amending acts; other specific and effective strategies must also be used to eradicate it completely.
FAQS
What is obscenity online?
Sections 67A and 67B of the Information Technology Act of 2000 make it illegal to engage in pornographic activities online. The publication or electronic transmission of sexually explicit acts or conduct is forbidden by Section 67A, and offenders who violate this law may be sentenced to up to five years in prison and a fine of Rs. 10,000,000 upon their first conviction. The maximum penalty for a second conviction is seven years in prison and a fine of Rs ten lakh. Similar offenses are likewise prohibited by Section 67B if the sexually explicit content features kids.
What is Community standards test?
In India, this test was used. According to the Community Standards Test, a work of art, gesture, or substance is only considered offensive if the overarching theme violates accepted social norms in the modern world.
How is vulgarity different from obscenity?
It is believed that whereas obscenity is more likely to corrupt or contaminate minds who are susceptible to such immoral influence, vulgarity is supposed to elicit feelings of disgust, aversion, and detestation in people without depraving or lowering their moral character.
Refernces
https://www.iasparliament.com/current-affairs/daily-news/obscenity-laws-in-india
