Obscenity Law : An Overview

Obscenity law: An overview

Dr.Lalan Prasad Thakuria

Advocate, Gauhati High Court

The dictionary meaning of the word ‘Obscene’ is repulsive, filthy, loathsome, indecent and lewd. The term ‘obscene’ means something offensive to chastity, decency, or delicacy; expressing or presenting to the mind or view something that delicacy and purity forbid to be exposed. Indecency is an act against good behaviour and a just delicacy. Obscenity is such indecency as is calculated to promote the violation of the law and the general corruption of morals.

However, ‘indecent’ signifies something more than indelicate and less than immodest— something unfit for the eye and ear and the tendency of which is to deprave those whose minds are open to immoral influence and into whose hands the matter is likely to fall. The word ‘obscene’ is not defined in the Penal Code. However, if the words addressed were clearly offensive to the chastity and modesty of the girls and they are likely to express and personate something which delicacy and purity and decency forbade to be expressed, it is an obscene act (1)

Obscenity is applied to language spoken, written or printed, and to pictorial productions and includes what is foul, and indecent, as well as immodest, or calculated to excite impure desires. By an ‘obscene exhibition of the person’ is meant any offensive, disgusting, and indelicate presenting to view, show, or display of the person and it also means an exposure of those parts of the person which are commonly considered as private, and which custom and decency require should be covered and kept concealed from public sight. Again, anything tangible or visible which is offensive to good taste or which tends to corrupt the morals or to lower the standards of right and wrong especially as to sexual relationship.

The obvious purpose of Acts passed against obscenity is to guard and protect the public morals, by erecting barriers which the evil-minded and lascivious may not overpass with impunity. The word ‘obscenity’ can not be said to be a technical term of the law and is not susceptible of exact definition in its judicial uses, though it has been defined in a general sense as meaning offensive to morality or chastity, indecent, nasty. However, ‘obscenity’ was indictable at common law, on the ground that what tended to corrupt society amounted to a breach of the peace.

While it is not possible to define obscenity with any degree of practical certainty the test ordinarily followed by the courts in determining whether a particular publication or other thing is obscene within the meaning of the statutes is whether the tendency of the matter charged as obscene is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication or other article, charged as being obscene may fall. Thus, it has been held that where a publication or other article suggests to the young of either sex, or even to persons of more advanced years, thoughts of an impure and libidinous character it is obscene. Another test of obscenity is that which shocks the ordinary and common sense of men as an indecency. The true test of verbal obscenity is whether the particular language employed is calculated to corrupt morals or excite libidinous thoughts and not whether the words themselves are impure.

However, the legal perspective surrounding pornography has historically taken the form of criminal obscenity laws. The origins of obscenity law can be traced back to the religious doctrines of ancient civilization. Blasphemy, heresy, and impiety were the basis of charges brought against prominent individuals in Greece during the reign of Pericles. Even the great Greek philosopher Plato spoke in favour of restricting writings that told untruths about the gods. Religious restrictions grew as Christianity became more entrenched and led to the promulgation of the Index Liborum Prohibitorum by Pope Paul IV. Works which were prohibited were done so on a religious grounds rather than on the basis of any sexual content.

The development of modern obscenity law as it is recognized began in England. The Court of Star Chamber reviewed books and thereafter during the reign of King Henry VIII and it continued until 1640. Restrictions placed on materials were still based largely on religious and political grounds. The focus began to change in 1663 when the British Courts were confronted with the situation which arose as the case of King Vs Sedley (2) s case was thus the first involving an offence to public decency as opposed to one against religion or government. Also, one hundred and fifty years later, it was relied on as precedent by the first American Court to find obscenity indictable at common law (3)

Public concern over obscenity increased in 17th century England, and in 1708 James Read was indicted for publishing the book ‘The Fifteen Plagues of a Maidenhead’. The Queens Bench Court dismissed the indictment against Read for obscene libel in Queen Vs Read (4) The court found that Read’s work was not a reflection on the government, the Church or any individual and it rejected the idea that libel included obscenity. Another case of obscene libel arose in 1727 when Edmund Curll was convicted for publishing Venus in the Cloister or the Nun in Her Smock. In Dominus Rex Vs Curll, the court rejected the doctrine of Read and relied instead on Sedley’s Case. The court found corruption of morals to be an offence at common law and thereby established obscenity as a crime.

The crime of obscene libel took root in 19th century England, and was accompanied by the rise of the Society for the Suppression of Vice in 1802. The Society crusaded against obscene publications, and their work culminated in the passage of two important pieces of legislation. The Vagrancy Act of 1824 made publication of indecent pictures a forbidden act and Lord Campbell’s Act of 1857 gave magistrates authority to issue search warrants for obscene material and have it destroyed. Since the printing of photographs was not prevalent until the late 1800’s, the challenged works consisted mainly of writings, sketches or line drawings.

The offence of obscene libel was still devoid of any precise definition of what material would be considered obscene. The initial definition was presented in Regina Vs Hicklin (5). The case involved an anti-religious pamphlet called ‘The Confessional Unmasked’ which detailed the sexual nature of questions posed by Catholic priests during confessions. The trial magistrate, Hicklin, ordered the publication destroyed because of references to intercourse and fellatio. On appeal, the Quarter Sessions Court reversed Hicklin on the grounds that the publisher’s motive was an innocent one despite the obscene content of the writing.

On final appeal, the Queens Bench affirmed Hicklin’s initial order and Chief Justice Cockburn fashioned the resulting obscenity standard. Cockburn held that the author’s intent was irrelevant as long as the work was obscene. The work was obscene if it tended to deprave and corrupt minds which are open to such immoral influences and into whose hands the publication may fall. The determination was based on the impact of certain parts of the writing on susceptible individuals. The Hicklin test remained in force in England for 100 years.

American laws concerning pornography also found their origin in sacrilegious works. In 1711, the colony of Massachusetts enacted a statute which prohibited the “composing, writing, printing, or publishing of any filthy, obscene or profane story, pamphlets, libel or mock sermon, in imitation of preaching or any other part of divine worship”. Despite this enactment, there were no reported obscenity prosecutions until 1815 and the Pennsylvania case of Commonwealth Vs Sharpless (6). Sharpless was charged with showing a drawing depicting a man and woman in a lewd posture. Like his British counterparts in Read and Curll, Sharpless contended that there was no statute prohibiting his conduct. The Pennsylvania court relied on Sedley’s case and found crimes against public decency to be indictable at common law.

The first federal law concerning obscene materials was enacted in 1842. The focus of the Act was to regulate materials imported into the United States. It prohibited “all indecent and obscene prints, paintings, lithographs, engravings and transparencies”. The lax enforcement of these statutes after their enactment led citizens and religious groups to take action. As cases began to arise under the obscenity statutes, the question of what items constituted obscene materials was addressed using the English precedent of Regina Vs Hicklin. In United States Vs Bennet (7) the court held that a determination of obscenity based on a portion or excerpt of a work was valid and that its effect would be measured in terms of whether it would corrupt those who might come into contact with it. In applying Hicklin, the American courts reached varying results as to what materials were obscene under the test.

It was not until the twentieth century, that the Hicklin rule began to wane. Judge Learned Hand criticized the Hicklin test in United States Vs Kennedy (8)  He questioned whether the treatment of sexual topics should be reduced to the standard found in a child’s library. He also fashioned a test for implementing community standards holding that obscenity must be determined in accordance with the present balance between candor and shame at which the community may have arrived here and now. During the first half of the twentieth century, serious literary efforts were the subjects of obscenity prosecutions. “Ulysses” by James Joyce was one such work, although it was not found to be obscene. “Tropic of Cancer” and “Tropic of Capricorn”, by Henry Miller were both found to be obscene. The United States District Court heard evidence including eighteen published reviews of Henry Miller’s works, fifteen letters, and two affidavits of critics, all attesting to the literary merit of the two books. The court rejected this evidence as ‘immaterial’ and held that portions of the books rendered both obscene. The United States Court of Appeals affirmed, and described Miller’s works as practically everything that the world loosely regards as sin is detailed in the vivid, lurid, salacious language of smut, prostitution and dirt’ (9) The Appeals Court reasoned that obscenity, though a part of a composition of high literary merit, is not excepted from operation of the statute.

However, the law of obscenity encompasses a myriad of legal issues. In addition to the myriad of other harms and anti–social effects brought about by obscenity, there is a link between traditional organized crime group involvement in the obscenity business and many other types of criminal activity. Physical violence, injury, prostitution and other forms of sexual abuse are so interlinked in many cases as to be almost inseparable except according to statutory definitions. Again, our legal framework has developed in many respects into a system where citizens have delegated their right to redress certain harms to government officials. Government, in turn, is charged with the responsibility of providing appropriate remedies for its citizens, including the investigation and prosecution of individuals as well as corporations too.

A preliminary analysis of governmental responsibilities is significant for several reasons. First, the Constitution delineates and apportions the power delegated to the Union (Central), State and local governments. Each of these levels of government have restrictions on the type of activity it can regulate as well as the manner of such regulation. Some activities can be regulated at all levels of government, while others are the sole responsibility of a single level. Second, government has been created to act on behalf of and in the best interests of its citizens. The citizens, therefore, have every right to request and expect that the laws developed by the community (whether at the central, state or local levels) will be enforced by its elected and appointed government officials. Third, the law is not so simplistic that individual and collective rights are mutually exclusive. It is this competition which ultimately must be reconciled by both government and citizens alike.

While citizens should and must rely heavily on official government action to ensure that obscenity related laws are enforced, there are also a number of alternative remedies available to them in their effort to control the proliferation of obscenity in their community. The private actions initiated by groups or individuals are often as effective as a government initiated action. For example, citizens can organize pickets and economic boycotts against producers, distributors and retailers of obscene materials. They can also engage in letter writing campaigns and media events designed to inform the public about the impact of obscene materials on the community.

A citizen’s right to free speech is guaranteed under the constitution. This right entitles individuals to organize and speak out even against those offensive materials that are not proscribed by law or cannot under the constitution be regulated. While such action is permissible and often desirable, there are social if not legal risks of going too far in mandating social conformity in this area. To avoid these pitfalls, citizens are encouraged to be vigorous, well–informed, but responsible advocates and to exercise self–restraint so that in exercising their rights, they do not prevent other citizens from exercising theirs.

Under Sec- 292 of Indian Penal Code the sale, distribution or public exhibition of obscene books, pamphlets etc. are made an offence. However, the section does not make knowledge of obscenity an ingredient of the offence. To escape liability, it is open to the accused to prove his lack of knowledge. Otherwise, the court will presume that he is guilty unless he can establish that the sale was without his knowledge or consent. However, the constitutional validity of Sec. 292 was challenged in R.D. Udeshi Vs State of Maharashtra(10) on the ground that it was violative of the right to freedom of speech and expression guaranteed under Art 19 of the Constitution. The Supreme Court held, “It can hardly be claimed that obscenity which is offensive to modesty, or decency is within the constitutional protection given to free speech or expression, because the article dealing with the right itself excludes it. That cherished right on which our democracy rests is meant for the expression of free opinions to change political or social conditions or for the advancement of human knowledge. This freedom is subject to reasonable restrictions which may be thought necessary in the interest of the general public and one such is the interest of public decency and morality. Sec- 292 of the Penal Code manifestly embodies such a restriction because the law against obscenity…………………………….. seeks no more than to promote public decency and morality………………… Sec 292 of Penal Code deals with obscenity……………. and can not thus be said to be invalid in view of the second clause of Art- 19.”

However, the Fifth Law Commission, expressing its displeasure about the so-called ‘test’ laid in Sec-292 for determining ‘obscenity’ observed:

“An attempt has been made to lay down a test of obscenity, but since the words used are the same as Judges have, before now, used in their judgments, it does not seem that the concept of obscenity has become any clearer, the practical problem still being the difficulty of deciding what is ‘lascivious’ and what ‘appeals to the prurient interests’ and what does or does not ‘tend to deprave corrupt’………………… More important than this attempted definition is the new exception, which allows a defence on the ground that the ‘publication is in the interest of art or science or literature or learning’. This will actually turn on expert evidence, and it seems to have been assumed that such expert evidence would be permissible under Sec-45 of the Evidence Act. The assumption is probably well founded, but it would be safer if, in the section itself a provision is specifically made for admission of expert evidence.”

And the proposed proposal reads; “Where, in any prosecution under their section, the question is whether the publication of any book, pamphlet, paper, writing, drawing, painting, representation or figure, is in the interest of science, literature, art or learning or other object of general concern, the opinion of experts as to its scientific, literary, artistic, academic or other merits may be admitted in evidence(11)

However, the Tenth Law Commission opined that the existing provisions of Sec. 292 and 293 are inadequate to take into their ambit the display of indecent and obscene advertisements. In its opinion, Sec-293 does not punish obscene advertisements, as it is silent about the manner which is merely indecent, without being obscene. Therefore, the Commission recommended that a new Sec- 293 A be added to the chapter for holding a person responsible displaying indecent advertisements”(12).

It is important to note that some of the proposals of the Fifth Law Commission not only found place in the Indian Penal Code (Amendment) Bill 1978 but also received endorsement from the Fourteenth Law Commission(13).

The 1978 Amendment Bill also sought to add two new provisions [Sec- 292–A and Sec 294–B] in the I.P.C. The proposed Sec- 292–A sought to criminalize the printing of grossly indecent or scurrilous matter or matter intended for blackmailing. It, obviously, intended to desist irresponsible way of printing newspaper, periodicals or other exhibits meant for public view motivated with blackmailing. It is supplemented with two explanations. The first explanation intended to keep printing done in good faith outside the purview of the penal provision. While the second explanation offered some guidelines of general nature to be taken into account by the courts while determining complicity for printing indecent matter.

Lastly, citizen interest in obscenity control is a vital component of any law enforcement programme. Since one aspect of the constitutional test for obscenity is the notion of contemporary community standards, this is an area of the law which presents a significant opportunity for public input. A successful community action programme should contain the following components:

1. Sincere citizen interest in controlling the proliferation of obscene material in their community.
2. A police department that is willing to allocate a reasonable portion of its resources to obscenity enforcement.
3. A prosecutor who will aggressively pursue violations of obscenity statutes with due regard for the right to distribute constitutionally protected material.
4. A judiciary that is responsive to obscenity violations and will sentence offenders appropriately.

However, the best written laws will be ineffective if prosecutors do not enforce them or if judges fail to recognize the extent of citizen concern when sentencing offenders. When the law enforcement mechanism inadequately addresses a particular problem, citizens and communities must explore other avenues. For example, “Mothers Against Drunk” is an example in which citizen action has made communities across our neighbouring state a safer place to live. Can it not be encouraged to improve the quality of our life by preventing obscenity in our society?

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1. (A.I.R., 1963 All 105, 107).
2. [1 Keble (620 K.B.), 83 Eng. Rep. 1146 (1663) and 1 Sid. 168, 82 Eng. Rep. 1036 (1663)]
3. [Commonwealth Vs Sharpless, 2 Serg. & Rawle 91 (1815)].
4. [11 Mod. Rep. 142, 88 Eng. Rep. 953 (1708) and Fotescu’s Reports 98, 91 Eng. Rep. 777 (1708)]
5. [L.R. 3 Q.B. 360 (1868)].
6. [2 Serg. & Rawle 91 (1815)]
7. [24 F.Cas. 1093 (C.C.S.D.N.Y. 1879)]
8. [209 F. 119 (S.D.N.Y. 1913)].
9. [208 F2d at 145].
10. (A.I.R. 1986 S.C. 967)
11. Law Commission of India, ‘Forty Second Report; The India Penal Code’ Government of India, 1971, Para 14.13.
12. Law Commission of India, ‘One Hundred and Ninth Report; Obscene and Indecent Advertisements and Displays; Sec 292-293, Indian Penal Code’ Government of India, 1985, Para 5.14.
13. Law Commission of India, ‘One Hundred and Fifty Six Report: The Indian Penal Code’ Government of India, 1997, Paras 12.43, 12.44 and 12.46.