~By Mr. Parth Birla and Mr. Garv Arora
INTRODUCTION
“Nudity should not be tied to sex. The mere sight of the naked upper body of the woman should not be deemed to be sexual by default.”
The Kerala High Court in its judgment has made an aberration from the patriarchal view on the autonomy of women. The factual matrix of the case revolves around a video shared by a women rights activist on her social media with the hashtag ‘Body Art and Politics’ which depicts her two minor children, painting on her semi-nude torso. It was blatantly criticized by the public and cases were registered against the woman under the relevant provisions of IT, POSCO and JJ Act. It was observed by the Kerala High Court that this act is an art activity and cannot be characterised as a “real or simulated sexual act” and it would be harsh to term this innocent artistic expression as obscene and a sexual act. The court also observed that the petitioner was merely propagating her views on the default sexualisation of the female naked body which is well protected under Article 19(1)(a).
In the context of this judgment, it becomes relevant to throw light on the freedom of speech and expression conferred by the Constitution which also includes artistic expression and creativity. It still remains a call to harmonise any potential harm that may flow from obscene material and the rights conferred by the Constitution. The Indian Courts have relied on various tests to ascertain whether a particular form of art can be considered as obscene or not. Thus, it gives rise to another question as to whether the freedom of speech and expression can be pigeonholed by narrowly tailored tests. This article tries to delve into the typical position of obscenity in India and how the meaning of obscenity has changed over time taking into account the international position.
CHANGING DIMENSION OF JUDGING OBSCENITY
The term ‘Obscene’ is not defined under any law whatsoever and the meaning of this term has evolved with the changing times and what is obscene at present, may not be obscene in future. Though, obscenity as an offence is dealt under Section 292 of the IPC, 1860 which penalizes the publication and transmission of obscene material, or material containing sexually explicit acts. And when the same material is transmitted through an electronic form, then it comes under the ambit of Section 67 of the IT Act, 2000.
However, it is subjective as to what shall be considered obscene and the Indian Courts, through various judgments, have downsized the criteria of obscenity. The Madras High Court in Public Prosecutor v. A.D. Sabapathy (1957), has opined that ordinary and literal meanings should be given to the term “obscene” i.e. ‘repulsive’, ‘filthy’, ‘loathsome’, ‘indecent’ and ‘lewd’. The Supreme Court took a restrictive view by following the Hicklin Test in Ranjit D. Udeshi v. State of Maharastra (1964) regarding the test of obscenity. The Hon’ble court observed whether such artistic work would have the tendency to deprave and corrupt the minds of people into whose hands such publication may fall. Thereafter the definition of term obscenity took a liberal turn and in Gandhi Smaraka Samithi, v. Kanuri Jagadish Prasad (1994), the court held that a mere nude picture is not obscene per se obscene and in this regard, the surrounding circumstances and the suggestive elements have to be considered. However, the Supreme Court in 2014 scrapped the Hicklin test as laid in the Ranjit D. Udeshi case and adopted Community standard test in Aveek Sarkar Case. It was observed that mere nude material cannot be termed as obscene. The lascivious material must appeal to the prurient interest of society in order to be termed as obscene. In furtherance of the view, the Apex court in another case observed that “If the rigid test of treating with sex as the minimum ingredient were accepted hardly any writer of fiction today would escape the fate Lawrence had in his days”.
The Kerala high court in its recent judgment provided a much-needed insight into the current view of obscenity in society wherein the court opined that female nudity is considered taboo and it is presumed that a naked female body is only meant for erotic purposes. A naked picture of a female cannot be termed as obscene or indecent and contextual circumstances have to be taken into consideration. The abovementioned judgments show the changing position of obscenity as a restriction on Article 19(1)(a). The Kerala High Court’s observation is well in line with the changing circumstances of society and it is expected from the Supreme Court as well to again establish a unified position about obscenity. The criterion for ascertainment of obscenity was construed in a very narrow manner and throughout time a liberal approach has been adopted by protecting Article 19(1)(a) of the citizens.
THE CONUNDRUM OF FREE SPEECH AND OBSCENITY
“whenever free speech and expression is sought to be given wings and let loose against the backdrop of one’s creativity, it must carry on its flight within the domain of constitutional morals”
Article 19(1)(a) of the Indian Constitution is the touchstone of democracy and guarantees freedom of speech and expression to the citizens of India. However, maintaining decency and morality is one of the restrictions that can be imposed on this right. A pertinent question arises whether this right can be pigeonholed by narrowly tailored tests of obscenity.
Though freedom can be abridged on account of reasonable restrictions under Article 19(2), the narrow view of obscenity can hamper the freedom given by Article 19(1)(a). In various judgments, the courts have laid down a more expansive and wider approach to the test of obscenity. The court in Shri Chandrakant Kalyandas Kakodkar v. State of Maharashtra (1969), observed that society is undergoing rapid changes and so the content available to the public, the content cannot be removed merely on the ground that it has some sexually explicit content, if such is the case then no book can be sold but religious books. Further, in Bandit Queen Case (1996), the court held that it is not always the case that nakedness has to be counted as obscenity and since the story of Bandit Queen included some explicit content but the same is well protected as freedom of expression, hence the same cannot be considered as obscene or indecent per se. In Maqbool Fida Husain v. Raj Kumar Pandey (2008), the court stated that art is an essential tool of expression and Article 19(2) can restrict it but by reviewing the content and idea of the painting, the court held that the painting cannot be considered as obscene. In 2016, the Madras high court also gave its judgment protecting the right to freedom of expression of artists against the charges of obscenity.
The Kerala High Court through its latest judgment has reinstated that State legislative actions cannot interfere with the right given under Article 19 of the Constitution. Artistic work has to be looked at in the light of the message it wanted to convey and has to be appreciated for that even though it contains some content with the overtone of sexuality and nudity. It shows that freedom of speech and expression cannot be curtailed by any narrow test of obscenity and there should be a broader yardstick that has some substance to restrict the above said right.
INTERNATIONAL PERSPECTIVE ON OBSCENITY
The notion of what is to be considered obscene differs from country to country. In the United Kingdom, the Hicklin Test was laid down in Regina vs. Hicklin and is applied today as well which laid focus on the vulnerability of the people who are exposed to such material. However, The United States of America did not continue with the above test and adopted the Miller Test in 1973. It emphasizes the standard of the community, hence what is considered to be obscene in one State might not be considered obscene in another. In one instance, one State of the US even held the law criminalising obscenity to be unconstitutional as it hampers the freedom of speech and expression.
The Canadian Supreme Court has taken a step forward and further developed the community standard test as laid down by the Supreme Court of the United States. In R v. Butler, the Canadian Supreme Court stated that “while degrading or dehumanizing materials are likely to cause harm regardless of whether the community may be ready to tolerate such harm, materials which show no violence, no degradation or dehumanization are less likely to cause harm”. The Supreme Court of Australia settled the test of obscenity in Crowe v. Graham, the court stated that when determining whether works of art violate current community norms in matters involving visual art and obscenity: the publishing circumstances for the piece of art have to be taken into account.
CONCLUSION
With the changing circumstances in the society and evolution of social media, the notion of obscenity has also undergone a significant change. The ruling of the Courts clearly shows the expansion of freedom of expression while keeping in mind the standards and tolerance of society. Artistic works are well protected under Article 19(1)(a) but there shall exist a boundary that needs to be drawn in the heap of increasing charges of obscenity. The general population has been more susceptible to such content as the use of social media sites has increased, and if the standard test of obscenity is followed, freedom of speech and expression would be impeded. The content on the internet clearly shows the increased tolerance of society however there are still instances which transgress the boundaries of freedom of expression. However, it has recently been recognised that this freedom has been exercised in several aspects, one of which is artistic work. Since artistic creations are subjective in nature, some leeway should be allowed to them and they must be viewed from a bird’s eye perspective.
The Kerala High Court judgment is a welcome step and it rightly restated the expression of obscenity in India. The observation of the court depicts the taboo that a woman has to face and how the patriarchal society always perceives the naked photo of a woman as something obscene and sexual. This judgment shows the interpretation of obscenity in India aligns with the International level but it is still a long way to go to break free from the social taboos. The Kerala High Court’s assessment is in keeping with the changing circumstances of society, and the Supreme Court is expected to develop a uniform view on obscenity once more. The criterion for determining obscenity was defined in a fairly narrow manner, and a liberal approach has been taken throughout time by safeguarding people’s freedom of speech and expression.
The authors are third year students at HNLU, Raipur.