Law of Obscenity in India

Section 292 of the Indian Penal Code broadly describes obscene material as that which is lascivious or appeals to the prurient interest or if its effect, or (where it comprises two or more distinct items) the effects of any one of its items, is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it. At the same time it makes exceptions for any material, the publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, writing, drawing, painting, representation or figure is in the interest of science, literature, art or learning or other objects of general concern.

The section says that even if the effect of some materials is to deprave or corrupt those who would access to it, if it's circulation is justified for 'public good' then it shall not be an offence within the meaning of the section. Is it possible theoretically or practically for some material to 'deprave and corrupt' and serve the public good at the same time?

The section seems to make an exception for any representation that is in the interest of science, literature, art or learning or other objects of general concern. Interestingly, this exception has done little to remedy the situation. This provision of law has been used to penalize authors and filmmakers for writing or showing what is obscene.

Similarly, the exception seeks to cover any representation on temples, cars used to carry religious idols, any religious object or any ancient monument. This exception probably seeks to protect all the ancient monuments which have erotic imagery sculpted in stone and are hailed as great works of art and are revenue earning tourist destinations.

At the same time, this section seeks to make an exception for religious purposes ( as distinguished from ancient monuments , for example, depiction of sexuality on temples, cars being used for carrying idol, and object used for religious purposes.). By virtue of this exception, the section seeks to respect the constitutional mandate of secularism and freedom of religion. The fundamental right to preach, profess and practice one's religion is reemphasized by the creation of this exception. One is led to wonder whether the 'freedom of religion' is in anyway more 'fundamental' a fundamental right than freedom of expression guaranteed under Article 19 of the Constitution. While others may argue that such rights are subject to reasonable restrictions, it may be contented that the law on obscenity is hardly reasonable as it seeks to define and regulate that which is completely subjective and therefore is little more than yet another farcical instrument employed by orthodox fundamentalists to fulfill the self-conferred responsibility of purging the society of depravation. The law on obscenity in India was essentially enacted to prevent the publication of some books that would contain graphic description of sexual encounters. It is little more than content regulation. What then is the purpose of the exception clause that says anything in the interest of 'art' is beyond the purview of the law prohibiting obscenity? A case in point is 'Lady Chatterley's Lover', a novel by D. H. Lawrence. The publication of the book caused a scandal due to it's explicit sex scenes, including previously banned four-letter words, and perhaps particularly because the lovers were a working-class male and an aristocratic female. In 1964, bookseller Ranjit Udeshi in Bombay was prosecuted under Sec. 292 of the Indian Penal Code for selling an unexpurgated copy of the book.
On appeal [1], before a three-judge bench of the Supreme Court of India, , Chief Justice Hidayatullah declared the law on the subject of when a book can be regarded as obscene and established tests of obscenity such as the Hicklin test.
The Court held that :
"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, we must hold the book to satisfy the test we have indicated above."
As Oscar Wilde puts it "There is no such thing as a moral or immoral book. Books are well written, or badly written. That is all." This is one among many instances where literary merit has been strangled by ambiguous standards of morality.

The difference between erotica and obscene depiction of sexuality or pornography cannot be defined and any attempt to do so is futile. It is a matter of personal opinion and liberty. The law on obscenity is therefore completely obsolete.

[1] Ranjit D. Udeshi v. State of Maharashtra AIR 1968 SC 881, Interestingly , this book has also faced prosecution for obscenity in England .R v Penguin Books Ltd [1961] Crim LR.

Ushashi Khan, Member SACJ 2007-08, NUJS