What is the legal perspective on obscenity in India?

Legal Provisions on Obscenity in India

1. Section 294 of the BNS, 2023:

   • Punishes activities like selling, importing, exporting, advertising, or making money from obscene materials (like books, paintings, or videos).
   • Defines obscene content as something that excites sexual desire or can harm the viewer or reader’s mind.
   • Punishments:
     
     • First offense: Up to 2 years in jail + fine up to ₹5,000.
     • Repeat offense: Up to 5 years in jail + fine up to ₹10,000.

2. Section 67 of the IT Act, 2000 (For online obscene content):

   • Same definition of obscenity as Section 294, but stricter punishment for online content.
   • Punishments:
     
     • First offense: Up to 3 years in jail + fine up to ₹5 lakh.
     • Repeat offense: Up to 5 years in jail + fine up to ₹10 lakh.

3. Section 296 of the BNS, 2023:

   • Makes obscene acts in public or using obscene words, songs, or ballads that disturb the public illegal.
   • Punishment: Up to 3 months in jail and/or fine up to ₹1,000.

4. Indecent Representation of Women (Prohibition Act), 1986:

   • Punishes the crude or disrespectful portrayal of women.
   • Punishments:
     
     • First offense: Up to 3 years in jail and fine up to ₹2,000.
     • Repeat offense: Up to 5 years in jail and fine between ₹10,000 and ₹1 lakh.

5. Information Technology (Intermediary Guidelines and Digital Media Ethics) Rules, 2021:

   • Requires websites and social media platforms to prevent users from posting fake news or inappropriate content.

Judicial Interpretation of Obscenity in India

1. Hicklin Test (1868, UK):

   • It judged content based on whether it could corrupt people who are easily influenced, even if it has artistic value.
   • This test made it easier to label things as obscene.

2. Ranjit D. Udeshi vs State of Maharashtra (1964, India):

   • India’s Supreme Court followed the Hicklin test, labeling Lady Chatterley’s Lover as obscene.

3. Modern Approach: Community Standards Test:

   • US Case: Roth vs United States (1957): This case changed the approach by considering the whole work and whether it fits with the community’s values.
   • India Case: Aveek Sarkar vs State of West Bengal (2014): The Supreme Court applied this test and ruled that isolated parts of content can’t be judged as obscene. They also dismissed charges against a magazine for publishing a nude photo, saying it had artistic value and wasn’t meant to create lust.

Obscenity and Online Content

• College Romance Web Series Case (2024):
  
  • The Supreme Court cleared a web series of obscenity charges. It said that using explicit language isn’t automatically obscene if it doesn’t create sexual desire. The language used may just express emotions like anger or excitement.

Conclusion

• Changes in Laws: Over time, India has moved from a strict approach (Hicklin test) to a more flexible one (Community Standards Test), considering changing societal values.
• Framework for Regulation: Laws like the BNS, 2023, IT Act, and earlier judgments guide the regulation of obscene content across different media, balancing free speech and public morality.
• Court Approach: The courts now look at the content as a whole instead of judging individual parts, ensuring more fairness.
• The Future: Content creators are encouraged to use self-censorship and ensure that their content doesn’t cross the line of obscenity