Do we find the definition of the term ‘Obscene’ anywhere in IPC? Even after amendments, the term and its definition cannot be defined easily owing to its changing nature and measure of obscenity from time to time. With technological developments, the definition again requires amendment, considering the nature of obscenity. There have been several tests laid down to test the obscenity of any content published in the form of books, magazines, etc. with the advent of social media, the notation of obscenity through pictures in person’s media accounts would also be scrutinized to check its obscenity. Recently, in November 2020, Actor and model Soman’s public nudity also led to debate over existing Obscenity laws in India. Arguing against Obscenity in a country like India is common, but then we also find a certain community of people who raise the constitutional right of freedom of expression over such publication of contents. This article will look into the Legal dimensions of Obscenity in India and concerning laws, tests for obscenity and would bring the Judiciary’s stand in cases concerning the conflict of Freedom of expression and Obscenity laws.

Laws relating to Obscenity:

Looking from the International perspective of laws relating to Obscenity, the Geneva Convention or International Convention for the suppression of Circulations of and traffic in Obscene Publication, 1923 lays down the principle to bring an effective policy in the suppression of publications of obscene contents. Article 1 of the convention enables the signatory countries to take all measures to discover, prosecute and penalize any person who is involved in any of the offenses that have been provided under sub-section (1) to (4). In other words, it penalizes for the trading of writings, drawings, prints, photographs, cinematographs which essentially corrupt any person through its obscenity.

India, which is a signatory to the convention, enacted section 292 of the Indian Penal Code, 1860, and effectuated Article 1 of the convention under this section. Later, section 292 was amended in 1969 to give a precise meaning or a definition for the term ‘Obscene’ under the Indian Penal Code. These amendments to section 292 include amendments made by the state of Tamil Nadu and Orissa.

Section 292, as reiterated, states that any sale of books, 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, 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 the purpose of any act provided under sub-section (2) shall be punished with imprisonment of 2 years and fine up to 2000 rupees”

Apart from the Indian Penal Code, the Information technology act, 2008 also punishes any person for transmitting or publishing Obscene content in electronic form. Section 67 states that any person who publishes or transmits any obscene content, which has been defined under section 292 of IPC, 1860, in an electronic form, and then he/she shall be punished with imprisonment up to 3 years and a fine up to 5 lakh rupees.

Test for Obscenity and Case Laws:

Section 292 of the Indian Penal Code was heavily scrutinized by the court of law, as there are artistic and literary works that come up with such obscene content and puts the court in a deciding position. When it comes to obscenity and Arts, which is an exception to section 292, the court observed that the arts should have to influence effect over obscenity, i.e. art should surpass the obscenity and makes the public overlook the same.

In India, Mishkin’s Test of Obscenitywas first applied in the KA Abbas case and was renamed as the “selective audience obscenity test”. It observed that ‘there should be a line drawn as to where the moral life of a man begins to disgust at a naked portrayal of life against the social life’.

In the case of Shivaprasad Sajjan v. the State of Karnataka (2018) the accused (software engineer) was charged under section 67 of the IT Act, for publishing obscene photographs and emails to the victim. He was imprisoned for 2 years and was imposed with a fine of Rs. 25,000.

Obscene Content and Role of Intermediaries:

With emerging technological developments and the advent of social media platforms, the medium of obscene content publication takes a new dimension. It leaves the policy framers and regulators to enhance their rules to govern such online platforms as well as penalizing the publisher under section 292 IPC.
The role of Intermediaries in facilitating content among its users receives the focus light under the Information Technology act, 2008. Even though intermediaries are not held responsible for the third-party actions, they have the option of content moderation, which would serve the purpose of this matter. They can restrict the users from sending obscene pictures or photographs through their terms of the agreement. Recently, IT (guidelines) rules, 2018 also requires these intermediaries to deploy certain automated tools to identify and remove such obscene content.
In case of violation, then section 79(3) will rule out the protection of any intermediary under the same section and would make such intermediary liable under the law. This is to ensure that there is a limitation placed on every intermediary and notify them that their protection is subject to limitations under section 79(3) of IT Act, 2008.

Obscenity and Freedom of Expression:

Another dimension to look at obscenity laws is through the freedom of expression under Article 19. No constitutional right is absolute. They carry restrictions along with enough freedom and rights. Similarly, questioning the obscenity laws on the ground of Article 19 would never be entertained because the right to freedom of expression carries the reasonable limitation that is, on the ground of public decency and social morality. Thus, even though Indian courts have favored Freedom over morality, the same also is restricted through the application of laws, as the law considers contemporary community standards.