The Enigma of Obscenity: The Transforming Contours of Morality, Community and Article 19

By Anirudh Tyagi

What is obscene shall always be a matter of bitter contention in a democracy that juxtaposes cultural restrictions with modern liberties. Recently, a First Information Report (FIR) has been registered against a film personality who was found to be running naked on a beach in India for “promoting obscenity”.1 Also the Madras High Court has recently restrained the telecast of obscene advertisements on television. 2 The judgment, however, is yet to be delivered. One actress-mother was held guilty of propagating obscenity when she allowed her sons to paint her naked body.3 Although the facts in these cases differ in intensity, they run on a common theme-obscenity and its tumultuous relationship with freedom to speech and expression.

Banning something for being obscene could be socially reasonable thingy, nudity can be disturbing in a culturally sensitive India, but the legal reasoning behind holding something obscene is not manifestly tenable. We are a continuously changing society and this change is presumed to have certain “prudence” on individual reasoning while debating on such heated issues. Therefore, we assume while referring to a “man” a reasonable person who understands and accepts the transition of past cultures to modern liberal values. The process, as said, is in transitory and is yet to be completed. The United States Supreme Court (“SCOTUS”) opined in Cohen v. California4 that one man’s “vulgarity” could be another’s lyric. The court said the matter of taste may differ from person to person and the constitutional liberties should be mature enough to tolerate some witty distaste. Subsequently the SCOTUS in Piknus v. United States5 laid down that the understanding and comprehension of children should not be the benchmark of testing obscenity.

The standards of obscenity, laid down in Memoirs v. Massachusetts6 were that the “dominant theme” of the material and the “contemporary community standards” are to be looked at while referring to something as obscene. This test was to influence, though not expressly, the Indian courts in laying down the obscenity standards. This is understandable that the test in Memoirs shall depend on the societal prudence and therefore cannot be implemented in India its totality; especially when we have a fundamental right to speech and expression under Article 19 of the constitution.

From Hicklin to Sarkar: The Indian Understanding of Obscenity

The famous “Hicklin test” of determining obscenity was propounded by the Queen’s Bench in Regina v. Benjamin Hicklin.7 This test for more than a century has been the stalwart of obscenity determination and had widely been followed by the courts around the world including the Indian Supreme Court. A pamphlet attacked the Roman Catholicism by asking questions on adultery, fornication by priests, seduction of females, and many similar things. Notwithstanding the purpose of the publisher, the pamphlet aroused huge anger and abhorrence in general public. The law governing obscenity at that time in England was the Obscene Publications Act of 1857. The court summarily said that “the test of 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.8

It manifestly suggests that the such published content should not be deprave or corrupt. It has to be looked upon by the perspective of immature people and not through the prism of reasonability, as that is the case with majority of such laws. The intent of the publisher has to be judged by the content in question and the “original intent” shall be irrelevant, howsoever altruistic it might be. The obscenity shall not be thematic and therefore even if a part of the book is likely to “deprave or corrupt” the minds of people, it may be regarded obscene.

Obscenity is a penal offence in India punishable with imprisonment upto twp years. Section 292 of the Indian Penal Code deems any object to be obscene “if it is lascivious or appeals to the prurient interest or if its effect (is) such as to tend to deprave and corrupt person.”9

Kherode Roy Chowdhary10 is one of the earliest cases in India where the applicability of the Hicklin Test was contested. The facts of the case were that a Hindu God Krishna was shown touching the breasts of Radha, another Hindu Goddess. The petitioner contended that the Hicklin test must be applied but the court refused the contention. The courts said that for the Hicklin test to be applied the content must be of such a nature that may arouse “immoral influences” and Hindus, who think of couple godly, shall not get negatively influenced by it. In another case11 however, the Allahabad High Court said that the doctrine of reasonability must apply and such content must be viewed as a reasonable person would see it.

In Bobby Art International v. Om Pal,12 a movie on the life of Phoolan Devi, a rape survivor, was alleged to be obscene as it showed “extensive nudity.” The court refused to accept the proposition and said that “nakedness does not always arouse the baser instinct”.

Avnee Sarkar13 witnessed a doctrinaire innovation of the Indian Supreme Court and the express abandonment of the Hicklin test. A German tennis player with her “black fiancée” was pictured semi-nude and the photo was published by Anandabarzar Patrika, a widely circulated news magazine in India. A complaint under section 292 of IPC was filed. The Court said that the Hicklin test is not the correct test to determine the obscenity. The Court while holding the picture not obscene, relied on American case of Roth v. United States14 which espoused the relevance of “community standards” while referring to obscenity.

Article 19 and Obscenity:

In Avnee Sarkar for the paradigm change towards the moral standards that were envisaged by the constitution and not by a Victorian era court. A pure reading of Article 19 suggests that the fundamental freedom to speech and expression can be restricted on the grounds on “decency and morality”. India has many such provisions in various laws including IPC and the Cinematographic Act, 1952. It has consistently been held by the Supreme Court that the restriction applied on the exercise of any freedom must have a nexus with the object it sought to achieve. The judgment in Avnee Sarkar was sensational as it settled that the values or morality as grounds of restrictions on freedom to speech must be constitutional in nature and no extra-constitutional restrictions could be applied by the State. This has now been further bolstered by the judgment in NALSAR v. Union of India15 that the popular opinions or public morals cannot restrict the fundamental rights. The court in this case recognized the transgender people as the third gender. A plain reading of Avnee Sarkar and NALSAR suggests that to constitute obscenity under Article 19 the “explicit libidinous” character of the content has to be satisfied as only that could constitute a violation of constitutional morality. 

Community Standards as Benchmarks for Obscenity:

We started the article on the plot of an allegedly obscene photo of a model running naked on beach. Would the “community standards” call this obscene? Is this lustful or libidinous or would arouse sexual desires into the minds of reasonable members of society who may see it? A few judgments provide more insights into these often morphed and often distorted questions. In Chandrakant Kalyandas16 the court accepted that the “concept of obscenity would differ from country to country” and it depends on the standards of social morality. This was further elegantly noted by Justice Hidyatullah in K.A.Abbas17 by noting that “artistic and inartistic presentations alike” and the standards for the determination of obscenity are uniform. The learned judge held that the standards are such that we do not get “reduced to a level where the protection of the least capable and most depraved amongst us determines what the morally healthy cannot view or read”. This is quite a ‘liberal’ stand and had been very essential in a free society.  K.A Abbas had laid down the stone on which later on Avnee Srakar was constructed and the “obsoleteHicklin test was abandoned.

It was succinctly settled in Ananda Patwardhan18 that it is the whole thematic rhythm that has to be looked at while deciding obscenity and not the isolated pages or actions.

Conclusion

According to the established precedent of Avenee Sarkar,19 the allegedly vulgar or obscene advertisements cannot be banned unless they are of such intensity as to deprave a reasonable man and arouse in him lustful or libidinous feelings. However, an actor caught running naked on beach could be booked but the burden to satisfy the standards of obscenity shall be on the prosecution. Section 292 of IPC that deals with “obscenity” is in itself a very old law and should necessarily get changed in modern paradigm. This was what the Supreme Court did in K.A Abbas20. Article 19 provides a freedom that could be restricted but only on the grounds given under Article 19(2); which in our case are “decency or morality”.21 As we have already perused, the community standards can determine the “intensity” or the “social experience” of a content but the “morality” here refers to constitutional morality and not the public morality. Therefore, in author’s paradigm, these two notions are the two tests according to which the obscene nature of content has to be judged. While the “test of community standards” would make the law keep pace with the changing times, the “test of constitutional morality” shall bolster the values that the constitution enshrines. In author’s profound analysis these two tests are the byproduct of two very different judgments- one on obscenity and other on transgender rights in India. Reading them together however resolves the whole conundrum.

Also, the standards of understanding of obscenity do not only differ nationally but also locally. A naked walk on the roads in Delhi would definitely be called obscene or thwarting the constitutional morality but would a similar walk on a beach in Goa be met the same social resentment? A constructive analysis of the ratios by the author in above cases conjectures in negative. The community standards shall not get transgressed by such an obscene walk on Goa beach. This is what understandably the Supreme Court had conveyed in Chandrakant Kalyandas.22.On the another hand, however, the alleged obscene advertisements could attract the community resentment but again the second test of constitutional morality would be contestable and hence the Madras High Court in its judgment would have to address the moral standards of constitution, thereby furthering what was started by the Supreme Court in Avnee Sarkar.23


(The author is an undergraduate law student at Dr. RML National Law University, Lucknow. All views are personal)


  1. PTI, FIR against Milind Soman as he runs naked on Goa beach, charged for ‘promoting obscenity, The Print, (November 7, 2020), https://theprint.in/india/fir-against-milind-soman-as-he-runs-naked-on-goa-beach-charged-for-promoting-obscenity/539064/.
  2. Sparsh Upadhaya, Some Condom Ads Obscene, Like Porno Films’ : Madras High Court Restrains TV Channels From Telecasting Vulgar Advertisements, Live Law (Dec 4, 2020), https://www.livelaw.in/news-updates/condom-ads-obscene-madras-high-court-bans-166806
  3. Op India Staff, Kiss for love’ campaigner Rehana Fathima, who attempted to desecrate Sabarimala, booked for posting video of her kids painting on her topless body, Op India, (June 24, 2020), https://www.opindia.com/2020/06/kerala-sabrimala-activist-rehana-fathima-booked-police-youtube-video-children-painting-naked-body/#:~:text=The%20Thiruvalla%20police%20of%20Pathanamthitta,on%20her%20semi%2Dnude%20body.
  4. Cohen v. California, 403 U.S. 15 (1971)
  5. Piknus v. United States, 436 U.S. 293 (1978)
  6. Memoirs v. Massachusetts, 383 U.S. 413 (1966)
  7. (1868) 3 Q.B. 360
  8. Id.
  9. Indian Penal Code, 1860, S. 292
  10. Kherode Chandra Roy Chowdhury vs Emperor (1912) ILR 39 Cal 377
  11. Empress of India v. Indraman (1881) ILR 8 All 837
  12. Bobby Art International v. Om Pal, (1996) 4 SCC 1
  13. Aveek Sarkar v. State of W.B., (2014) 4 SCC 257
  14. Roth v. United States, 354 U.S. 476 (1957)
  15. NALSAR v. Union of India, AIR 2014 SC 1863
  16. Chandrakant Kalyandas v. State of Maharashtra, AIR 1970 SC 1390
  17. K.A Abbas v. Union of India, (1970) 2 SCC 780
  18. Ananda Patwardhan v. Union of India, (2006) 8 SCC 433
  19. Aveek Sarkar v. State of W.B., (2014) 4 SCC 257
  20. K.A Abbas v. Union of India, (1970) 2 SCC 780
  21. The Constitution of India, Art. 19
  22. Chandrakant Kalyandas v. State of Maharashtra, AIR 1970 SC 1390
  23. Aveek Sarkar v. State of W.B., (2014) 4 SCC 257