‘Freedom of Speech and Expression v/s Obscenity’

In recent times we have had a lot of debates about fundamental right of speech and expression. One classic and most recent example, that comes to every one’s mind is the ‘Kiss of Love Campaign’ or ‘Kiss of Love Protest’ so to say, that seems to be rapidly spreading like a fashion trend across metro cities.

But the big question is, on whose side the law stands, in this fight between ‘So called preachers of freedom of expression’ and ‘Self proclaimed protectors of morality’?

To understand the issue we will have to go through a few important concepts prescribed in Indian Constitution and the provisions prescribed in the Indian Penal Code. We would also have to analyze as to how the Apex Court has viewed the issue in recent times to get a hang of how the subject has evolved over the years.

The Constitution of India in Article 19(1)(a) guarantees ‘Freedom of Speech and Expression’ to every citizen of India. Which, basically means that every citizen of India has a fundamental right to freely express himself/herself by word of mouth, writing, printing, picture of in any other manner?

In the context of the aforementioned fundamental right anyone and everyone, who is a citizen of India, is free to express himself/herself in the way he/she feels most suitable for such expression.

But the Article 19(1)(a) is not without caveats and the right to speech and expression is not an absolute right, in as much as, Article 19(2) provides for conditions under which the said right may be restricted through operation of an existing law and/or state’s right to create a new law. One among the prescribed conditions, which is most important while dealing with the subject is ‘in the interest of decency or morality’.

This brings us to the provisions of Section 294 of the Indian Penal Code (IPC), which inter alia (among other things) prescribe imprisonment for a period of three months or fine or both to the person ‘who to the annoyance of others does any obscene act in public place.

It is interesting to note that no definition of the term ‘obscene’ has been prescribed for this particular section and a reference to the same can be drawn from the clarification given in Section 292 of IPC for any publication to be obscene ‘if it is lascivious or appeals to the prurient interest or if its effect, or (where it comprises two or more distinct items) the effect of any one of its items, is, if taken as a whole, such as to tend to deprave and corrupt person, who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.’

Since there is no specific definition of the term ‘obscene’ prescribed, the test applied by the Courts over the years was dependent on the portion underlined in the above para. The said test was popularly known as ‘Hicklin Test’ in the judicial parlance, which was derived from the famous English case of Regina Vs. Hicklin. The judgment was an interpretation rendered while interpreting ‘Obscene Publication Act, 1857’.      

One would however, feel that the standards of morality in a society are constantly evolving and the test, whether something and/or some act has a potential to deprave and corrupt someone, would have to be seen through the prevailing social acceptance standards.

The Hon’ble Supreme Court of India recently in the matter of Aveek Sarkar and Another Vs. State of West Bengal and Others has laid down landmark judgment and has given several revolutionary observations such as:

while judging as to whether a particular photograph, an article or book is obscene, regard must be had to the  contemporary mores and national standards and not the standard of a group  of  susceptible  or sensitive persons’

We are also of the view that Hicklin test is not the correct test to be applied to determine "what is obscenity".   Section 292  of  the  Indian Penal Code,  of  course,  uses  the  expression  'lascivious  and  prurient interests' or its effect.  Later, it has also been indicated  in  the  said Section of the applicability of the effect and the necessity of taking  the items as a whole and on that foundation where  such  items  would  tend  to deprave and corrupt persons who  are  likely,  having  regard  to  all  the relevant circumstances, to read,  see  or  hear  the  matter  contained  or embodied in it.  We have, therefore, to apply the "community standard test" rather than "Hicklin test" to determine what is "obscenity".   A  bare reading of Sub-section (1) of Section 292 , makes clear that a  picture  or article shall be deemed to be obscene (i) if  it  is  lascivious;  (ii)  it appeals to the prurient interest, and (iii) it tends to deprave and corrupt persons who are likely to read, see or  hear  the  matter,  alleged  to  be obscene.  Once the matter is found to be obscene, the question may arise as to whether the impugned matter falls within any of the exceptions contained in Section.  A picture of a nude/semi-nude woman, as such, cannot per se be called obscene unless it has the tendency to arouse feeling or revealing an overt sexual desire.  The picture should be suggestive of deprave mind and designed to excite sexual passion in persons who are likely to see it, which will depend on the particular posture and the background in which the nude/semi-nude woman is depicted.  Only those sex-related materials which have a tendency of "exciting lustful thoughts" can be held to be obscene, but the obscenity has to be judged from the point of view of an average person, by applying contemporary community standards.

The judgment goes on to analyze various judgments passed by the Supreme Court and comes to a conclusion that no specific definition of the term ‘Obscene’ can be given as it has to be seen in the context of the entire issue and by application of standards which are contemporary and not archaic.   

The Hon’ble Supreme Court has, however, also discussed the case of Ranjit D. Udeshi, where it suggests as follows:

The test 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.

It has thus stressed upon the fact that the definition of term ‘obscene’ cannot be completely a generic one but the same needs to be decided on case to case basis.

Taking a cue from the aforementioned discussion, ‘can kissing in public be treated as obscene’ or can it be termed as ‘just an expression of love and affection and not amounting to breach of moral standards and hence purely within the fundamental rights enshrined in the Constitution’?

In my opinion the same would again differ on case to case basis and every expression will have to be tested on the basis of facts and circumstances of each case.

While I firmly believe, that there is no space for any hard line response to any public expression of love and affection and random registration of cases under IPC. I also feel that widespread mindless protests, demonstrations and campaigns are starting to take a form, where it may have some elements of creating annoyance to others and a tinge of obscenity.