Our society is developing every day. The thoughts of our society change. The gesture we show to others is dependable on the person who is in front of us. The word we use shows our minds. According to this, to describe the activity of ourselves that actually, the society wants to see or what are against the society is a little confusing.
Every individual has the right to do whatever they want according to this modern era. In legal terms, if we say then which activity is called obscene for the society.
The legal term Obscene originates from the Latin word “Obscenus” which means offensive. The definition of obscene was also described under the Oxford dictionary that activity which is offensive or disgusting by accepted standards and morality and decency. But our judiciary doesn’t stand only on the meaning of the dictionary. Under the act of obscene, the act or word had to pass the confirmation test.
There are primly three types of the test there to clear that the action, word, or gesture used was comes under the word obscene or not.
1. Hicklin test:
This test was originated in the English case Regina vs Hicklen (1868). The main issue was to interpret the term “obscene” in the act of Obscene Publication Act, 1857 which permits the ending of obscene books. The court argued that every material nursing “to lewd and corrupt to an individual whose minds are open to such bad influences” was come under the term obscene regardless of its artistic and written merit.
In 1993, the Hicklen test was finished on the United level in the case of United State vs One Book called Ulysses wasn’t comes under the term obscene. The court pass three statements pass to prove anything was obscene.
- Selected passages of a whole work didn’t fall under the obscene.
- The aftereffect on average, sooner than the mainly liable person.
- Contemporary community standards.
Lastly in the year of 1957, the Apex Court ruled in Roth vs United States (354 U.S. 476) that the Hicklen test was unsuitable. In the case, the Justice argues initially the American adopted the Hicklen test but after the case of Book called Ulysuss, the three questions have arisen. After that, the Roth test becomes necessary for the new definition of the term Obscenity in the US.
2. Miller test:
This test was mainly applicable in the US of America in the case of Miller vs California in the year 1973. This test was based on online obscenity. The fact of this case was the Miller who mailed five suspicious photos of males and females engaged in sexual activities. After receiving those emails the manager of the restaurant filed a case of online obscenity.
But there is also the division of the text into three points:
- The standard person, imposing the contemporary community standards, will found that activity, as a whole, calls to prurient interest.
- Whether the activity represents, and in an offensive way, sexual activity.
- The activity, taken as a complete, short of serious literal, creative, political, or technical value.
The activity is considered obscene if all three conditions are fulfilled. The first two statements of this test were considered as standards of the community and the third was argued to a person of the United state as a whole.
3. Community Standard Test:
This test was used in India. This test defines that any gesture or word was only ruling the theme of obscenity taken as a whole is against contemporary community standards.
Provisions and rules governing the crime of Obscenity in India:
There are so many provisions that deal with the crime of Obscenity they are following:
1. Under Indian Penal Code, 1860:
Section 292, 293, and 294 deal with the obscene in the IPC, 1860.
Section 292 and 293 prohibit the reporting and retailing of obscene books, brochures which shall show as lustful or appeals to the licentious interests which can contain obscene announcements.
Section 294 states that any obscene activity and songs should be prohibited that whoever:
- Do any obscene activity in any public place, or
- Utters sings, gives signs and unmannerly any song dedicates near or on public premises.
That individual should be penalized for the imprisonment of either for a period which may extend to three months or fine or with both.
One Landmark case named Aveek Sarkar vs State of West Bengal [(2014) 4 SCC 257] the fact of the case was a German Magazine announced a photo of Boris Becker, a famous tennis player, shoot their nude images with their fiancée. The images were published in Indian Newspapers and magazines. Aftermath, the suit was filed in the Court in the accordance with Section 292 of the IPC. The Court held that the images did not come under the offense of Obscene because the objective was to encourage love and that skin tone matters and love triumph over love. Although, no offense was made under Section 292 of the IPC, and a decision was also followed now.
Bobby Art International vs Hoon this case fell under the act of Cinematograph Act, 1952 the suit was filed against a film producer of the movie “Bandit Queen” because many scenes that were recorded which was regarded as some obscene and graphic events done in the movie. The Court argued that the scenes which were in the movie of nudity depicted for showing the important story and it was a fundamental right of producers of speech and expression. The sensor permits the movie an “A” certificate but there is a condition they have to delete some scene or modified.
The act which was done in the private area was considered an offense under the Indian Penal Code stated by the Bombay High Court.
2. Under Information Technology (Amendment) Act,2008:
It directly prohibits any sexual content on the social networking platform under Section 67 (A) of the IT (Amendment) Act,2008.
The person who shares any ill-mannered activity in the context of sexual content shall be punished for time imprisonment for a period of 5 years along with that fine of Rs. 10 lakhs and if the same person repeats the act was imprisoned for a period of 7 years along with the fine of Rs, 10 lakhs.
Also, the person who shares and encourages child pornography on the social networking site will be punished according to Section 67 (B) of the IT, Act. This first do of crime should be penalized by imprisonment for a term of 5 years along with the fine of Rs. 10 lakhs and if that person does this activity again then the period of imprisonment increases and the term was 7 years along with the fine of Rs. 10 lakhs.
Case: M Saravanan & Dr. L Prakash vs State in this case a doctor was penalized under Section 67 for the distributing of women in lewd form for making money.
3. Under National Human Rights Commission:
NHRC preserves the dignity of the women in any advertisement.
Section 2(d) of the NHRC Act argued about human rights which include the life, equality, dignity, and liberty of every person which were described under the Constitution of India and also incorporated in the International covenants and put in by Indian courts.
4. Under the Indecent Representation of Women (Prohibition) Act, 1986:
This act prohibits that illustration in any manner which outrages the image of women which like to decrease or injure public morals and sentiments.
Any of the individual outrages the image of women should be punished that individual with the imprisonment of a period of 2 years along with the fine of Rs. 2 thousand and if that person repeats the same offense can be punished with the imprisonment for a period of 5 years along with the fine of Rs. 10 thousand.
Some recent case laws:
- The famous model, artist name Milind Soman was arrested by the Goa police because he posted his nude photo running on the beach on his birthday. He was detent under Section 294 of the IPC and also Section 67 for posting those photos on the social media platform.
- The famous Actress and husband were also arrested under the crime of obscenity because both are shooting an objectable video on the government premises.
On the land of many religions and cultures existence, there is a problem raised of maintaining and understanding all the customs. Everyone has freedom of speech and expression under Article 19(1) of the Indian Constitution but some restrictions are also there. To observe which word, gesture and action were counts under the obscene word. Society was developing in the new generation everyone was becoming open-minded and started doing those things which they wanted to do. But the question raised that the society who were seeing all these activities will accept those actions or they are becoming against the public interest.
We already know that law was not static and they evolve according to social needs that’s why the definition of obscene in the law was also changing from time to time. So, we have to educate ourselves that our action, reaction, gesture, and what we speak is in favor of our society scenario or it was coming as against the society.
This article is authored by Vedanshi Gupta, 3rd Year B.Com LL.B Student at Banasthali Vidyapith.
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