September 30, 2022

Laws on obscenity in India

Section 292 of the Indian Penal Code

Section 292 of the Indian Penal Code provide the punishment for obscenity in books or any other object.

“292. Sale of obscene books etc.: Whoever-

  • sells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation, or for purposes of sale, hire, distribution, public exhibition or circulation, makes, produces or has in his possession any obscene book, pamphlet, paper, drawing, painting, representation or figure or any other obscene object whatsoever, or
  • imports, exports or conveys any obscene object for any of the purposes aforesaid, or

knowing or having reason to believe that such object will be sold, let to hire, distributed or publicly exhibited or in any manner put into circulation, or

  • takes part in or receives profits from any business in the course of which he knows or has reason to believe that any such obscene objects are, for any of the purposes aforesaid, made, produced, purchased, kept, imported, exported, conveyed, publicly exhibited or in any manner put into circulation, or
  • advertises or makes known by any means whatsoever that any person is engaged or is ready to engage in any act which is an offence under this section, or that any such obscene object can be procured from or through any person, or
  • offers or attempts to do any act which is an offence -under this section,

shall be punished with imprisonment for either description for a term which may extend to three months, or with fine, or with both.

Exception. -This section does not extend to any book, pamphlet, writing, drawing or painting kept or used bona fide for religious purposes or any representation sculptured, engraved, painted or otherwise represented on or in any temple, or on any car used for the conveyance of idols, or kept or used for any religious purpose.

Origin of the Section

The section of the Penal Code was introduced by the Obscene Publications Act (7 of 1925) to give effect to Article 1 of the International’ Convention for the suppression of or traffic in obscene publications signed by India in 1923 at Geneva. It does not go beyond obscenity which falls directly within the words “public decency.

Meaning of Obscene

The word, as the dictionaries tell us, denotes the quality of being obscene which means offensive to modesty or decency; lewd, filthy and repulsive.

The Indian Penal Code borrowed the word ‘obscene’ from the English Statute. As the word “obscene” has been interpreted by English Courts something may be said of that interpretation first.

The Common law offence of obscenity was established in England three hundred years ago when Sir Charles Sedley exposed his person to the public gaze on the balcony of a tavern. Obscenity in books, however, was punishable only before the spiritual courts because it was so held down to 1708 in which year Queen v. Read[1] was decided.

In 1727 in the case against one Curl it was ruled for the first time that it was a Common Law offence[2].

In 1857 Lord Campbell enacted the first legislative measure against obscene books etc. and his successor in the office of Chief Justice interpreted his statute in Hicklin’s case.

The section of the English Act is long (they were so in those days), but it used the word “obscene” and provided for search, seizure and destruction of obscene books etc. and made their sale, possession for sale, distribution etc. a misdemeanour.

The section may thus be regarded as substantially in pari materia with s. 292, Indian Penal Code, in spite of some differences in language.

Hicklin Test

In Hicklin’s case[3] the Queen’s Bench was called upon to consider a pamphlet, the nature of which can be gathered from the title and the colophon which read : “The Confession Unmasked, showing the depravity of Romish priesthood, the iniquity of the confessional, and the questions put to females in confession’.”

It was bilingual with Latin and English texts on opposite pages and the latter half of the pamphlet according to the report was “grossly obscene. as relating to impure and filthy acts, words or ideas”.

Cockburn, C.J. laid down the test of obscenity in these words “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 a publication of this sort may fall. . …. it is quite certain that 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.”

Application of Hicklin test in India

This test has been uniformly applied in India. The important question is whether this test of obscenity squares with the freedom of speech and expression guaranteed under our Constitution, or it needs to be modified and, if so, in what respects.

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.

Difference of obscenity and pornography

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, of course, offend against public decency and morals but pornography is obscenity in a more aggravated form.

Article 19 and obscenity

Speaking 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. That cherished right on which our 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, of course, correctly understood and applied, seeks no more than to promote public decency and morality.

Obscenity without a preponderating social purpose or profit cannot have the constitutional protection of free speech and expression, and obscenity is treating with sex in a manner appealing to the carnal side of human nature, or having that tendency. Such a treating with sex is offensive to modesty and decency but the extent of such appeal in a particular book etc. are matters for consideration in each individual case.

The law seeks to protect not those who can protect themselves but those whose prurient minds take delight and secret sexual pleasure from erotic writings.

Sex in medical science book

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 informations of public interest or profit, the approach to the problem may become different because then the interest of society may tilt the scales 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 Art. 19.

Obscenity in art and literature

It may be said 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 breeches 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.

Half the book-shops would close and the other half would deal in nothing but moral and religious books which Lord Campbell boasted was the effect of his Act.

There is no loss to society if there was a message in the book. The divagations with sex are not a legitimate embroidery but they are the only attractions to the common man. When everything said in its favour we find that in treating with sex the impugned portions viewed separately and also in the setting of the whole book pass the permissible limits judged of from our community standards and as there is no social gain to us which can be said to preponderate.

why seller shall be liable if he doesn’t know that book is obscene?

In ranjeen udeshi’s case[4], Supreme court maintained the conviction of trial court, where trial court convicted the seller for selling obscene book (lady Chatterley’s lover). In its judgement, supreme court wrote the reasoning of such conviction. Honourable court said that,

“The first sub-section of s. 292 (unlike some others which open with the words “whoever knowingly or negligently etc.”) does not make knowledge of obscenity an ingredient of the offence. If knowledge were made a part of the guilty act (actus reus), and the law required the prosecution to prove it would place an almost impenetrable defence in the hands of offenders.

Something much less than actual knowledge must therefore suffice. It is argued that the number of books these days is so large and their contents so varied that the question whether there is mens era or not must be based on definite knowledge of the existence of obscenity. We can only interpret the law as we find it and if any exception is to be made it is for Parliament to enact a law.

The difficulty of obtaining legal evidence of the offender’s knowledge of the obscenity of the book etc., has made the liability strict. Under our law absence of such knowledge, may be taken in mitigation but it does not take the case out of the sub-section.

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.”

REFERENCE

As held by Honourable Supreme court in Ranjit D. Udeshi vs State Of Maharashtra 1965 AIR 881, 1965 SCR (1) 65


[1] II Mod 205 O.B.

[2] 2 Stra. 789 K.B

[3] (1868) L.R. 3 Q.B, 360

[4] Ranjit D. Udeshi vs State Of Maharashtra 1965 AIR 881, 1965 SCR (1) 65