The Court in Maqbool Fida Hussain v. State of Maharashtra discussed the standard to be kept in mind while judging Obscenity Cases. The Court said,
In judging as to whether a particular work is obscene, regard must be had to contemporary mores and national standards. While the Supreme Court in India held Lady Chatterley’s Lover to be obscene, in England the jury in the case of R v. Penguin Books, Ltd. (1961) Crim. L.R. 176 acquitted the publishers finding that the publication did not fall foul of the obscenity test. This was heralded as a turning point in the fight for literary freedom in UK. “Community mores and standards” played a part in the Indian Supreme Court taking a different view from the English jury.
Judging the work as a whole holistic view must thus be taken apart from a closer scrutiny of the impugned subject to come to a conclusion whether the same is grossly obscene and likely to deprave and corrupt.
Aesthetic or artistic touch
The work of art must have any aesthetic or artistic touch and should not seem to have been taken with the sole purpose of attracting viewers who may have a prurient mind. In other words, where obscenity and art are mixed, art must be so preponderating as to throw obscenity into shadow or render the obscenity so trivial and insignificant that it can have no effect and can be overlooked.
Sex and obscenity are not always synonymous and it would be wrong to classify sex as essentially obscene or even indecent or immoral. The basic concern should be to prevent the use of sex designed to play a commercial role by making its own appeal.
In relation to nude/semi-nude pictures of a woman it would depend on a particular posture, pose, the surrounding circumstances and background in which woman is shown.
Opinion of literary/artistic experts
In Ranjit Udeshi’s case (Ranjit Udeshi v. State of Maharashtra) this Court held that the delicate task of deciding what is artistic and what is obscene has to be performed by courts and as a last resort by the Supreme Court and, therefore, the evidence of men of literature or others on the question of obscenity is not relevant.
However, in Samaresh Bose’s case this Court observed:
In appropriate cases, the court, for eliminating any subjective element or personal preference which may remain hidden in the subconscious mind and may unconsciously affect a proper objective assessment, may draw upon the evidence on record and also consider the views expressed by reputed or recognised authors of literature on such questions if there be any for his own consideration and satisfaction to enable the court to discharge the duty of making a proper assessment.
Freedom of speech and expression
In S. Rangarajan v. P. Jagjevan Ram and Ors. , while interpreting Article 19(2) this Court borrowed from the American test of clear and present danger and observed:
Our commitment to freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or far-fetched. It should have proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interest. [In other words, the expression should be inseparably] like the equivalent of a ‘spark in a power keg’.
Public decency and morality is outside the purview of the protection of free speech and expression, and thus a balance should be maintained between freedom of speech and expression and public decency and morality but the former must never come in the way of the latter and should not substantially transgress the latter.
Test of ordinary man
The test for judging a work should be that of an ordinary man of common sense and prudence and not an “out of the ordinary or hypersensitive man”.
Social purpose or profit
When there is propagation of ideas, opinions and information or public interests or profits, the interests of society may tilt the scales in favor of free speech and expression. Thus books on medical science with intimate illustrations and photographs though in a sense immodest, are not to be considered obscene, but the same illustrations and photographs collected in a book from without the medical text would certainly be considered to be obscene.
Obscenity without a preponderating social purpose or profit cannot have the Constitutional protection of free speech or expression. 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.
Test of strict liability
Knowledge is not a part of the guilty act. The offender’s knowledge of the obscenity of the impugned matter is not required under the law and it is a case of strict liability.
It is also clear and apparent that the criminal offence of obscenity is predicated upon the legal term of art and that the legal test of obscenity cannot be equated with the dictionary definition of obscenity which takes within its fold anything which is offensive, indecent, foul, vulgar, repulsive etc. In legal terms of obscenity, the matter which offends, repels or disgusts does not thereby tend to deprave or corrupt a person exposed to such matter and cannot therefore, without more, be said to be obscene.
To fall within the scope of ‘obscene’ under Section 292 & 294 IPC, the ingredients of the impugned matter/art must lie at the extreme end of the spectrum of the offensive matter. The legal test of obscenity is satisfied only when the impugned art/matter can be said to appeal to a unhealthy, inordinate person having perverted interest in sexual matters or having a tendency to morally corrupt and debase persons likely to come in contact with the impugned art.
It must also be remembered that a piece of art may be vulgar but not obscene. In order to arrive at a dispassionate conclusion where it is crucial to understand that art from the perspective of the painter, it is also important to picture the same from a spectator’s point of view who is likely to see it.
Reference
Maqbool Fida Hussain v. Raj Kumar Pandey (2008)