Law of Obscenity and Freedom of Expression: Where to Draw the Line

Introduction

In February 2014, a two-Judge Bench of the Supreme Court in Aveek Sarkar v. State of W.B.³ ruled that the nude photograph of Boris Becker with his fiancée cannot be termed as obscene under Section 292 of the Penal Code⁴. The judgment has been hailed as a landmark judgment because the Court in this case discarded Hicklin test and decided to adopt the community standard test to determine whether a particular thing is obscene or not.

This was a welcome ruling because by this we finally got rid of the archaic Hicklin test which was propounded way back in 1868 in R v. Hicklin.⁵ The Supreme Court has now decided to adopt the community standard test which has been laid down by the US Supreme Court in Roth v. United States of America.⁶ However, it is pertinent to note that the American Supreme Court was forced to modify the community standard test because of its subjective nature. Hence, it can be said that even the current judgment has many flaws which need to be rectified in the due course of time.

Development of obscenity laws in United Kingdom, India and United States of America

Professor Laurence H. Tribe in his book Invisible Constitution has rightly argued that “when we ask questions, the kind of answers we actually get, depends to some degree who is answering them, including who is sitting on the side of Supreme Court”.⁷ The development of obscenity laws across various jurisdictions vindicates Laurence Tribe’s remark without an iota of doubt. Different regimes and courts have attempted to define this term with their own set of societal understanding. The era of Victorian conservatism in England lead to evolution of the Hicklin test whereas a century later American Supreme Court took an altogether different approach and ruled that, one man’s vulgarity is another’s lyric.⁸

United Kingdom

History of obscenity legislation in Great Britain starts with King George III’s proclamation of 1787, wherein he proclaimed that “his subjects must suppress all loose and licentious prints, books, and publications, dispensing poison to the minds of young and unwary, and he sought to punish the publishers and vendors of such publications”.⁹ Prior to the issuance of this proclamation obscenity was considered harmful only in those cases wherein it gave rise to breach of peace or it insulted religion.

Till 1857 any specific law concerning obscenity was not in place. However, there was a body of law enacted in various statues which sought to regulate obscenity in England. It was in 1857 when at the insistence of Chief Justice John Campbell British Parliament passed the Obscene Publications Act, 1857 (hereinafter referred as “the 1857 Act”), which authorised the Magistrates to find and destroy any obscene material.¹⁰

After the passing of 1857 Act, it was only in 1868 wherein in R. v. Hicklin¹¹, the Queen’s Bench was seized with a matter arising out of the newly passed 1857 Act. The question which posed before the Court was that whether a pamphlet entitled “The confessional unmasked” was obscene or not? Writing for the Court, Alexander Cockburn, C.J. laid down an authoritative definition and an authoritative test for obscenity under English Law. The Chief justice wrote that “the test for obscenity is this, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall”.

The test laid down by the Queen’s Bench¹² had six constituent elements:

1. Tendency to deprave and corrupt: The matter published had to have the tendency to “deprave and corrupt”, or to suggest to readers “thoughts of most impure and libidinous character”. However, the meaning of these terms was not clear as to what it suggests.¹³
2. Not the reasonable person: The Court while deciding the question of obscenity was to judge the matter from the standpoint of a reasonable person, especially those whose minds are open to such immoral influences. As per Cockburn, C.J. reasonable person may include children or elder person i.e. person of more advanced years.¹⁴
3. Presumed intent: While deciding the question of obscenity, purity of motive is no excuse for publication of indecent matter, neither the court had to look into the tacit or altruistic intent of the author. The question of obscenity was to be judged merely upon the selection of words by the author.¹⁵
4. Irrelevance of contemporary books: The published work had to be judged on its own merits and it was not permissible for the court to look at other books which were in circulation at that time.¹⁶
5. Accessibility: Circumstances of the publication in question becomes a relevant consideration and the court was to look into the accessibility of the publication. Thus, a medical treatise with illustration necessary for information of students or practitioners may not be treated as obscene, because it was intended to reach only to the limited audience though it might be indictable if exhibited in a shop window for every passer-by to see.¹⁷
6. Work as a whole irrelevant: As per this test it was not the whole work or the theme which was to be looked into while deciding the question of obscenity, rather the presence of a single isolated paragraph may make the whole work obscene.¹⁸

However, the test laid down in R. v. Hicklin¹⁹ got partially modified by the Obscene Publications Act, 1959 which sought to replace the previous 1857 Act. The 1959 Act introduced provided some safeguards to the authors wherein the author cannot be charged for obscenity if he successfully proves that the publication in question is being justified as being for the public good on the ground that it is in the interest of science, art, literature or of other subjects of general concern.²⁰ However due to some deficiency is the 1959 Act, British Parliament passed an amendment in the year 1964 to cure the deficiencies in order to strengthen the law against publishing obscene matters.

Section 1(1) of the Act took a shift from the traditional criminal liability and the issue of crime causation, or the motive of author has become immaterial. The present law as it stands today says “an article shall be deemed to be obscene if its effect or (where the article comprises two or more distinct items) the effect 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”.²¹

Encompassing the principles of modern criminal liability, the essence of the offence is not the motive of the writer or the purpose of writing, but its tendency or the necessary effect to deprave and corrupt.²²

India

If we read the history of colonial laws concerning the freedom of speech, we will find that the law of obscenity and sedition traces their origin in English Law of libel, but irrespective of their common law origin, there was a difference in its implementation. The law of sedition under the Penal Code²³ was framed and implemented in such a manner which was considerably different from its English counterpart. However, the same was not the case with obscenity. The law concerning obscenity was modelled on similar lines as that in Britain.²⁴

As it has been earlier mentioned that before the passing of 1857 Act, there was a body of law in England dealing with obscenity, but in India there was a complete void till 1856, when the then Governor General for the first time gave his assent to “An Act to Prevent the Sale or Exposure of Obscene Books and Pictures.”²⁵ Modelled on the lines of English Town Police Clauses Act, 1847, the Act criminalised the distribution, sale, offer for sale, or wilful exhibition of any book, paper, print or representation in any shop, bazaar, street, thoroughfare, high road, or other such places of public resort.²⁶

It is pertinent to note that the original draft of Penal Code prepared by Lord Macaulay nowhere mentions about a single provision regarding obscenity, except for a provision that penalised the outraging of the modesty of the woman by any sound or gesture.²⁷ Section 292 was introduced in Penal Code by the Obscene Publications Act, 1925 (8 of 1925), in order to give effect to Article I of the International Convention for the Suppression of the Circulation of and Traffic in Obscene Publications, which was signed by India in Geneva in 1925.²⁸

Section 292(2) of the Penal Code penalises the sale, hire, distribution, exhibition, or circulation of any matter as mentioned under Section 292(1) of the Code. Section 292(1) of the Penal Code states that:

292. (1). … a book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object, shall be deemed to be obscene if it is lascivious or appeals to the pruri­ent interest or if its effect, or (where it comprises two or more distinct items) the effect of any one of its items, is, if taken as a whole, such as to tend to deprave and corrupt person, who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.²⁹

However, it is pertinent to note that even after the enactment of the Penal Code, Hicklin test remained applicable with little modifications in deciding the question of obscenity both in colonial India as well as in independent India. Although few High Courts refused to accept the opinion of Cockburn, C.J. which stated that obscenity must be judged from the standpoint of immature persons, young and old, or from the perspective of those whose minds are open to immoral influences. But, apart from this the other limb of the Hicklin test was adopted by the High Courts in Colonial India.

Soon after the enactment of Constitution of India, the newly established Supreme Court of India in Ranjit D. Udeshi v. State of Maharashtra³⁰ was asked to decide a matter pertaining to obscenity. In this case, Ranjit Udeshi who was a partner in a firm which owned a book stall in the City of Bombay. He was prosecuted under Section 292 of the Penal Code for selling and possessing the copies of D.H. Lawrence’s classic text Lady Chatterley’s Lover. Due to the titillating content, this book was considered as an obscene text under the Indian obscenity law. As a result, Ranjit Udeshi was convicted to pay a fine of 20 rupees or to suffer one week’s simple imprisonment. The petitioner decided to challenge the constitutionality of Section 292 of the Penal Code.

In this case, Hidayatullah, J. adopted a modified version of Hicklin test. Writing the judgment for the Court, Hidayatullah, J. ruled three major modifications in the Hicklin test. The three major departures from the English Hicklin test were:

1. Presence of sex and nudity in art and literature cannot be considered as the evidence of obscenity. Something more was required. Sex by itself was not enough to deprave and corrupt.³¹
2. The work needs to be judged as a whole, and at the same time obscene words or passages had to be weighed against the non-obscene portions of the work, and it needs to be looked that whether non-obscene portion of the work were so preponderating as to throw the obscenity into shadow, or the obscenity is so trivial and insignificant that it can have no effect and may be overlooked.³²
3. Third departure from the test was in the form of defence to the offence of obscenity, if the publication in question was for the public good.³³

The Penal Code was amended in the year 1969. Under the amended law the court was supposed to consider the work as a whole. The law inserted a “public good” exception which was also adopted by the Supreme Court in Ranjit D. Udeshi v. State of Maharashtra³⁴.³⁵

In Samaresh Bose v. Amal Mitra³⁶, the Court was asked to decide that whether the Bengali novel Prajapati is obscene or not, as the novel depicted sexual encounters and used vulgar language. The trial court held the matter as being obscene. However, the Supreme Court disagreeing with the trial court finding observed that:

…the concept of obscenity is moulded to a great extent by the people who are expected to read the book. It differs from country to country, depending upon the standards of morality. Even the outlook of a Judge may differ from another Judge as it is a matter of objective assessment of the subjective attitude of the Judge hearing the matter.³⁷

The Court further ruled that vulgarity and obscenity need not be confused with each other.³⁸

Till 2014, the Supreme Court and the High Courts of our country followed the Hicklin test. However, in the year 2014, the Supreme Court in Aveek Sarkar v. State of W.B.³⁹ formally abandoned the Hicklin test. In this case the Court was to decide that whether a semi-nude photograph of the iconic German tennis player with his dark-skinned fiancée was obscene or not. The photograph was first published in a German magazine, and then it was carried by Sportsworld and Anandabazar Patrika. The Court held that “a picture of a nude/semi-nude woman by itself could not be called obscene, unless it had the tendency to arouse the feeling of an overt sexual desire”.⁴⁰ The Court placed more reliance upon the context in which the photograph appeared, and the message sought to be conveyed and found that it conveyed an important message to eradicate racism and apartheid in society.

The United States of America

In the United States of America, only “hardcore pornography” is considered as obscene under the First Amendment. However, the same was not always the case. In the year 1954, the American Supreme Court in Roth v. United States of America⁴¹ held that “sex and obscenity were not synonymous, and that if there was sex in art, literature or scientific works, that was not sufficient reason to deny the material the constitutional protection of free speech”.

The Court in this case further ruled that:

the material in question will be considered obscene if to the average person (not necessarily the reasonable person), applying contemporary community standards (not national or State standards) the dominant theme of the work taken as a whole, appeals to prurient interest (i.e. material having a tendency to excite lustful thoughts).⁴²

However, the scope of the community standard test which was propounded in Roth case⁴³ was subsequently restricted in Nico Jacobellis v. State of Ohio.⁴⁴ The Court in this case ruled that the community standard test was limited only to hardcore pornography.

Eventually in 1974, the American Supreme Court in Marvin Miller v. State of California⁴⁵ laid down a threefold test to determine whether something was obscene or not. Burger, C.J. wrote the majority opinion in which he laid the following guidelines:

(a) whether the average person applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest;

(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and

(c) Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

The contemporary community standard test laid down in Miller case⁴⁶ required courts to determine whether something is obscene or not from the standpoint of the local community in which the trial takes place. This in the opinion of the researchers is quite a problematic ruling because the test is full of subjectivity. Something which is obscene for one cannot be obscene for all. In a heterogenous society it becomes even more difficult to determine or lay down a fixed community standard. Douglas, J. in a strong dissent has rightly ruled that “obscenity cannot be defined with precision. To send men to jail for violating standards they cannot understand, construe, and apply is a monstrous thing to do in a nation dedicated to fair trials and due process”.⁴⁷ Douglas, J. reiterated this opinion in Paris Adult Theatre I v. Lewis R. Slaton⁴⁸ that the contemporary community standard test is full of subjectivity and hence, it should be discarded. However, unfortunately the test laid in Miller case⁴⁹ continues to hold the field.

However, there are a few exceptions to the contemporary community standard test as laid down in Miller case⁵⁰. The first exception being that even those materials which will not be considered as obscene under Miller test can be regulated under some conditions. The American Supreme Court has upheld many laws which imposed time, place, or manner restrictions on sexually explicit but non-obscene speech.⁵¹

Secondly, the American Supreme Court has also ruled that mere possession of hardcore pornography cannot be considered as a crime because it violates right to privacy.⁵² Furthermore, the Miller Standard test does not apply in those cases wherein children are involved either as actors or consumers. The Court in Sam Ginsberg v. State of New York⁵³ upheld a statute which made it a crime to sell sexually explicit non-obscene materials to minors. It is also pertinent to note that even possession of child pornography is considered as a crime and the accused cannot take the plea of right to privacy.⁵⁴

Harm based test: A better alternative

The Canadian Supreme Court and the South African Constitutional Court have laid down the harm-based test to determine whether something is obscene or not. In Butler v. R.⁵⁵, the Canadian Supreme Court classified obscene material into three categories. First are those that depict explicit sex with violence. The second is explicit sex without violence but subjects’ participants to treatment that is degrading and dehumanising. Third being explicit sex without violence that is neither degrading nor dehumanising.

The Court further ruled that:

The first two categories of material can justifiably be outlawed and the same is also constitutionally permissible as well. The main objective of censoring such kind of material is not to preserve morals, but to protect the community from harm.⁵⁶

The Constitutional Court of South Africa in De Reuck v. DPP⁵⁷ upheld the constitutionality of the provision of a statute which criminalised the creation, distribution or possession of child pornography. The Court ruled that objectification and sexualisation of children violate their right to dignity. Hence, the law is constitutionally protected.⁵⁸

A combined reading of both the judgments leads to the creation of harm-based test which understands harm in the context of protecting established constitutional values such as dignity and equality. This in the opinion of the researchers is a better test to regulate obscenity than the community standard test.

Conclusion and suggestions

“Freedom of expression … is applicable not only to information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock, or disturb the State or any sector of the population.” — Handyside v. United Kingdom⁵⁹

If we look into the jurisprudence on obscenity laws, we will find that the Anglo-American approach is public morality based. On the other hand, the Canadian South-African approach is a harm-based approach. If we look into the Indian position on obscenity laws, we will find that it is mostly inspired by the Anglo-American approach. However, the Anglo-American approach suffers from the problem of subjectivity. Furthermore, it not only makes our obscenity law vague, but it also makes the fundamental rights of the citizens subservient to public morality.

Hence, the researchers believe that the Indian Supreme Court should discard the Anglo-American approach. Rather the Supreme Court should adopt the Canadian South-African approach which understands harm in the context of protecting established constitutional values such as dignity and equality.

Furthermore, the researchers believe that the morality clause as mentioned in Article 19(2) of the Indian Constitution⁶⁰ neither depicts public morality or individual morality, rather it depicts constitutional morality. Hence only those works must be regulated which violates constitutional morality.

Now the question arises is what comes under the ambit of constitutional morality? Legal scholar Gautam Bhatia in his bookhasrightly argued that the most important aspect of constitutional morality is the right to equality.⁶¹ The author in his book has further contended that if we look into the Indian Constitution, we will find that there are many articles which ensure equality in Indian society (Articles 15-18⁶²). Thus, a combined reading of all the articles lead to the creation of principle of anti-subordination: a concept which would end all sorts of discrimination existing in society. The same can also be applied in sexual content. If the content of the material results in any form of subordination, then the material is not constitutionally protected.⁶³

For instance, in the case of pornographic films, scholars like MacKinnon and Andrea Dworkin have rightly argued that constructing a social reality of dominance and submission in a pornographic movie, does not merely depict subordination, but actually subordinates women. The content should not be viewed as a representation of reality but is a reality itself. Thus, such content needs to be regulated.⁶⁴

Hence, the researchers believe that by applying the harm-based test, principle of anti-subordination and by interpreting morality under Article 19 as constitutional morality, we will be able to ensure that the law on obscenity is not used by the authorities to establish and then police norms of civility and behaviour, rather it is used by the authorities to restrict speech which is in violation of constitutional morality and Constitution.