INTRODUCTION

"The relation between reality and relativity must haunt the court's evaluation of obscenity,
expressed in society's pervasive humanity, not law's penal prescriptions." - Krishna Iyer

Law has been an integral part of human civilization. It cannot be differentiated entirely from
ethics and religion. Great philosophers like Henning and Bentham had also denied the
necessity of making a difference between law and morals. Primitive societies and
communities were small, and everyone lived together as it was challenging to exist
individually. Various customary laws evolved. However, there was a thin line of difference
between ethics and religion. The growth of multiple nations, states, and evolvement in the
idea of the welfare state and worldwide activities has made considerable changes in the
meaning of 'obscenity.'

Criminal law's essential goal and aim is to safeguard not only the safety and security of
people's fundamental rights, such as the right to life, but also to uphold public morality,
public decency, and the state's overall moral welfare. Therefore, it is the responsibility of the
state to protect its citizens from potentially sneaky attacks and to penalise those who
publish offensive material that tends to degrade morality. The Geneva Convention for the
Suppression and Circulation of Obscene Publications and Traffic in Obscene Publications
resolution from 1923 serves as a good example of the significance of these rights'
protection. The Convention was ratified by India on September 12, 1923.

Given the cultural, religious, and socioeconomic diversity in our society, it is challenging to
provide a clear and specific description of what obscenity is. According to the Oxford
Dictionary, "obscene" is defined as repulsive or repugnant by generally recognised moral and
decency standards (of the portrayal or description of sexual topics). It is derived from the
Latin or French term "obscene." Obscenity is defined differently in every country due to
cultural differences.

CONCEPT OF OBSCENITY

The idea of obscenity is shaped by the masses' social perception of who is expected to
confront obscene materials. obscenity is dynamic; the definition of the term changes from

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time to time. Every nation has a different meaning for the word " obscenity, " as its purpose
depends on society's morality standards. obscenity can be defined as a statement or act which
offends the moral standards of the community. It can be in the form of a video, picture,
article, figure, or write-up against acceptable social, ethical standards. The word is derived
from the word 'obscaena,' which in Latin means offstage. The meaning is such because
potentially offensive content, such as sex, was depicted offstage in the Latin drama.

The meaning of the word obscenity varies from nation to nation, even between communities
having the same culture or individuals between the same community. It is a very abstract
term as its components change with evolutions of culture. Tests were laid down to understand
the meaning of obscenity and censorship imposed to control and suppress the obscene
material flowing in the society. In legal terms, it means expressions of sexually- explicit
nature.

Each nation has virtually suffered from the question of what to do about the representation of
sexual activity. Sexual material is prevalent in society because it manifests the tensions
between social norms and desires of an individual. Modern-day thinking about sex advances
our understanding concerning these problems, but society's ideology is still orthodox about
the impact of sexual depictions and sexual freedom. They still try to prohibit explicit material
altogether.

In the Indian Constitution, freedom of speech and expression is a fundamental right to assure
the free flow of ideas and thoughts. There are reasonable restrictions that are imposed by the
Constitution to put a limitation on the free flow of ideas. one of these restrictions includes
"decency or morality" that puts an end to obscene materials. Therefore, it can be said that
obscenity is an exception to the right of freedom of speech as it can be problematic and
harmful for society and can make an adverse impact on the moral values of the community.

NATURE & MEANING OF OBSCENITY

The term 'obscenity' is complex, and it is complicated to explain because it is closely linked
to society's moral values and sentiments. The Court had laid down a principle by adopting a
test that determines what publications are categorized as obscene and what not. The test is
whether the tendency of the matter, charged under obscenity, corrupts or depraves those

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minds open to such influence and into whose hands such material or publication may fall. If
such material corrupts such minds, then it will fall within the purview of obscenity.

In India, the Supreme Court of India, in the case of Ranjit D. Udeshi v. the State of
Maharashtra, observed that to identify the constituent of obscenity, the test would be "where
an obscene material is published for a commercial purpose and no other social purpose; it
cannot have the constitutional protection of free speech and expression. Treating sex in such
a manner, as it appeals or has the tendency to appeal to the carnal desire of human nature, is
regarded as an obscene material or publication". Thus, the concept of obscenity varies from
nation to nation and from community to community, and it depends on the moral standards of
contemporary society. A literature piece may not be obscene material in England, but it will
be considered vulgar in India. Similarly, an individual's act may not be categorized as
obscene in New Delhi, but the same action is improper in India's rural area. The standards
should always be laid upon on the writer to check that the adolescent should not be contacted
with material containing sexually explicit information. If they read them as a reference,
relevance should be given to the writing's dominant theme.

The flow of obscene material increases with the young generation's growing interest in
indulging in sexual activities, which causes serious problems such as teenage pregnancy,
premarital sex, sexually transmitted infectious diseases, etc. Future threats to this growing
flow of obscene materials could be harmful as it degrades future generations' morals and
ethics. In a country where marriage is considered as a sacred bond and sex only serve as a
purpose of sharing purity and love, obscenity gives us a new meaning of this act, where the
drive is only to fulfil one's sexual needs, and the female will only become an object of lust.
The rising level of obscenity in Indian films damaged the foundation of Indian society, its
cultural and sexual norms, values, and principles. Immediate action should be taken so that
the equilibrium should be maintained between individual rights and societal values.

In this context, this dissertation will look upon the fundamentals of laws relating to obscenity,
the harm that these laws will address, and the methods through which these harms are
prevented from Indian society. The damage which these laws seek to avoid is not an offense
for an individual viewer, nor is it an incitement to violence against women, but they are moral
harm that affects the whole system of law. Also, an attempt shall be made to point out the
analysis of obscenity from the societal point of view; the nature and extent of the existing
laws related to obscenity; their effectiveness; the role played by law enforcement agencies in

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the enforcement of anti-obscenity laws, and the need to revive the current laws on obscenity
having due regards to the morals, norms, ethics, and dynamic nature of society including the
actual concept and spirit of obscenity from the legal and judicial point of views. In brief, the
dissertation discusses that the idea of obscenity is a coherent one and that obscenity law tries
to prohibit a genuine evil. Still, the rules are too cruel a tool for the accomplishment of this
task.

HISTORICAL & JURISPRUDENTIAL ASPECT OF OBSCENITY

Obscenity is a relative term whose meaning is constantly changing over time. The purpose of
the word ' obscenity is generally dependent on the individual's outlook and varies with
society's cultural values and moral standards. Laws guiding obscene literature and materials
do not emerge instantly, but it is the outcome of society's development from ages. Due to
scientific innovations and technological advancement, obscene material transmission is
accessible in the modern era. There is a need to regulate the same by the government through

various methods. Thus, a balance is needed between societal value and moral principles and
the growth of society. For this, the historical and jurisprudential genesis of obscenity is
essential to study.

HISTORICAL GENESIS OF OBSCENITY

The essence of free speech and expression is speaking and thinking freely and obtaining
relevant information from others through publications and public discourse without fear of
repression, restriction, and retribution by the government. This essence of expression brings
people close to each other to strengthen their morality, achieve their political influence, and
help others become enlightened citizens. The concept of obscenity varies from time to time
and from nation to nation. However, it depends upon the moral values and cultural traditions
that shaped the history of the entire world's society. Generally, obscenity is analysed in the
background of the sexual conduct of the individual constituting the group. Indian law relating
to obscenity is defined under the Indian Penal Code, 186o, and the legislature's various
statutory enactments. In India, the law mainly deals with how a material or publication such
as a book or a film depicts or portrays sexual conduct. In India, from ancient times, the
'purity' of women has been regarded as most important. obscenity is like a social barometer
that is elemental to sustain a family's social reputation and social honour. Whether the woman

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belongs to the royal family or simply an ordinary woman, Indian culture always relied on
women's values, especially their fidelity.

Even the portrayal of women exhibited in India's temples, such as the Khajuraho paintings,
focuses on these aspects until the new advent of bohemian thinking and advertising, which
changed the common perception.

DEVELOPMENT OF OBSCENITY IN INDIA

In the Indian context, the concept of obscenity was first introduced in the Penal laws of 186o.
Sections 292 to 294 of the code primarily deals with obscene books and objects etc. The
sections prohibit the distribution, sale, and publication of obscene materials. If anybody
contradicts these provisions, such an article will be forfeited, and the offender will be liable
to punishment. The Supreme Court of India in Ranjit D. Udeshi v. the State of Maharastra
adopted the test to determine obscenity as laid down by the Chief Justice, Cockburn in R. v.
Hicklin. The difficulty determining the criteria of obscenity formulated by the Hon'ble
Supreme Court is, 'whether the tendency of the matter charged as containing obscene
materials corrupt or deprave the mind of those accustomed to such immoral influences and
into whose hands such obscene publication might have fallen.'

Interestingly, the test, which was formulated in 1869 by the Hicklin case, remains the basis
for obscenity jurisprudence in India even in modern times, until the Supreme Court replaces
them in Aveek Sarkar v. State of West Bengal. However, at the end of the 2oth and the
early 21st century, differences arose between nations regarding the legal meaning and moral
and cultural conceptions of obscenity. Such a concept became highly important with the
evolution of the Internet and mass media. This technological advancement enables anyone
having a computer to view sexually explicit materials, including images, motion pictures, and
texts originating virtually from anywhere around the world.

The Supreme Court of India, in the case of Aveek Sarkar v. State of West Bengal, took a
different view and said that the correct test to determine the principle of obscenity would be
the contemporary 'Community Standards Test' and not the doctrine propounded in the Hicklin
test. The Court had observed that the judicial pronouncements in obscenity cases must be
taken by taking into mind the contemporary national standards of the society and not the
means of few sensitive persons.

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TEST FOR OBSCENITY

The tests for obscenity can vary depending on the legal jurisdiction. Here are some
commonly used tests or standards:

1. The Miller Test: The Miller test is a widely recognized standard used in the United States
to determine obscenity. It involves three prongs:

a. Whether the average person, applying contemporary community standards, would find
that the material appeals to the prurient interest.

b. Whether the material depicts or describes sexual conduct in a patently offensive way.

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

2. Hicklin Test: The Hicklin test, derived from a British case, was historically used in some
jurisdictions. It focused on the effect of isolated passages on the most vulnerable and
susceptible individuals, rather than considering the work as a whole. However, this test has
been largely abandoned in many jurisdictions due to its overly restrictive nature.

3. Community Standards Test: This test assesses obscenity based on the prevailing
community standards of the local area or jurisdiction. It considers whether the material or act
would be deemed obscene by the average person in that community.

4. Dominant Theme Test: This test examines whether the dominant theme of the material,
taken as a whole, appeals to the prurient interest, regardless of any redeeming or non-obscene
elements.

It's important to note that the specific tests and standards for obscenity can vary across
different legal systems and jurisdictions. It is advisable to consult the laws and legal
precedents of the particular jurisdiction in question to understand the specific tests applied in
that context.

The Miller Test

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Determining obscenity is often subjective and can vary based on cultural, societal, and legal
contexts. However, there are certain tests or guidelines that courts and legal systems have
used to assess whether something is obscene or not. One such test is the three-pronged test
established in the landmark case of Miller v. California (1973) in the United States. Please
note that this test may not apply universally, as obscenity laws and tests may differ in
different jurisdictions. Here is an overview of the Miller test:

1. The Average Person Test: The material in question is evaluated based on the contemporary
community standards of the average person's sensitivity, taking into account the local
community where the case is being heard.

2. Patently Offensive Test: The material must be found to be patently offensive, meaning that
it goes beyond the boundaries of what is acceptable to the average person's standards of
decency.

3. Lack of Serious Literary, Artistic, Political, or Scientific Value: The material must be
determined to lack serious value in terms of literary, artistic, political, or scientific merit. This
assessment considers whether the material has any redeeming social importance beyond its
potentially offensive or obscene content.

It is important to note that these tests can vary across jurisdictions, and different countries
may have their own legal standards for determining obscenity. Additionally, cultural and
societal norms play a significant role in defining what is considered obscene. Therefore, it is
crucial to consult local laws and legal authorities to understand the specific obscenity
standards applicable in a particular jurisdiction.

The Hicklin Test

The Hicklin Test, named after the 1868 British case Regina v. Hicklin, was historically used
to determine obscenity in some jurisdictions. It focused on the effect of isolated passages
from a work rather than considering the work as a whole. The test asked whether the material
had a tendency to "deprave and corrupt" those whose minds were open to immoral
influences, particularly the most vulnerable and susceptible individuals, such as children and
morally weak individuals.

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Under the Hicklin Test, even a small portion of a work that could be deemed obscene could
lead to the entire work being considered obscene. This test took a highly restrictive approach
to obscenity and did not consider the context or the overall merits of the work.

However, the Hicklin Test has been largely criticized and is no longer widely used in many
jurisdictions. It was considered overly broad, leading to the suppression of works that had
artistic, literary, or scientific value but contained isolated passages or elements that could be
deemed obscene. Courts and legal systems have since adopted more modern tests, such as the
Miller Test, that take into account the work as a whole and consider contemporary
community standards.

It is important to note that the use of the Hicklin Test or any other specific test for obscenity
can vary depending on the jurisdiction and legal framework in place.

CONSTITUTIONAL & STATUTORY PROVISIONS OF LAWS RELATING TO

Law against obscenity is often formulated or defended on the ground of public morality
prevalent in society. Such law seems to presuppose that there is a thing called public
morality, which has some claim on the community's members. obscenity has some
connection with sex, and sex is related to love, which is an intimate private concern of all
men. Thus, the problem of obscenity involves far-reaching questions about the nature of our
community, their compositions, the ends and values by which this civil society should be
governed, and it also affects the most delicate and personal interests of individual human
beings. obscene materials in their contents and form depreciate and violate the fundamental
standards of decency and morality.

Obscenity is mainly not a legal term in the true sense. Time is not defined anywhere, so it is
tough to mean everyone and every society. obscenity is, to a more considerable extent, a
product of the imagination of the person; something indefinable in the minds of a few
individual and not in the others and similarly such perception is not similar in every
individual of every clime and country nor is identical to the present, past and the future.

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CONSTITUTIONAL PROVISIONS RELATING TO OBSCENITY

In any democratic country like India, freedom of speech and expression is considered a
quintessential right. Such freedom ensures the free flow of thoughts and ideas. It is the most
cherished constituent for a healthy and open-minded democracy that allows individuals to
actively and freely participate in their own country's political, social, and cultural happenings.
In India, Freedom of Speech and Expression is constitutionally protected and guaranteed
under Article 19 (1) (a) of India's Constitution, 195o.

However, this fundamental right is not absolute. A rider is provided under Article 19(2),
which allow the state to restrict and regulate the right provided under sub-clause (a) of clause
(1), through imposing reasonable restrictions on this freedom in the light of "the interest of
sovereignty and integrity of India, friendly relation with foreign states, the security of the
state, public order, decency or morality or concerning contempt of Court, defamation or
incitement to an offense.

Obscenity becomes a topic of constitutional interest, and from that time, clashes occurred
between the individual interest to freely express their opinions. For obscenity, the ground of
decency and morality is relevant. The purpose of this exception is to regulate and control the
proliferation of morally degrading or indecent materials14 . The right of freedom of speech
and expression does not protect obscene materials. But consequently, the question arises as to
what are the standards for Indecency or immorality in society? To answer this, we have to
look into the meaning of the term 'indecency' or 'immorality.' The expression "indecency"
seems to be relatively interchangeable with obscenity, frequently used in statutes. Whenever
the term 'indecent' occurs in the English statutes, it reflects the same meaning as obscene.
However, the term morality has a broader connotation than decency. The Supreme Court of
India, in the case of Bal Thackeray v. Prabhakar Kashinath Kunte , explains the meaning of
the term by observing that the ordinary sense of 'decency' indicates an action that must be per

the current behavioural pattern and societal norms. In a secular society, the correct
behavioural pattern requirement is when the candidate contesting the election will not appeal
for votes on the religion or caste, region, etc. The fact that the idea of separate electorates was
rejected during the framing of the Constitution and Secularism being adopted is relevant
considerations to treat this as reasonable restrictions on the fundamental right of speech and

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expression. Such rules help maintain individuals' behaviour, which is required following the
principle of decency and propriety of the social norms and values.

The scope of the term 'Morality' is vague and not very clear. The conception of the term
varies from society to society and also from time to time15. Thus, contraceptives and birth
control methods are considered immoral at primitive time, and publication dealing with such
contraception was deemed evil and convicting the accused person. Still, now the perception is
wholly changed, and there is no offense to discuss and writing on such material; instead, the
state encouraged their publication and disseminated the information.

Famous Cases

Milind Soman, a famous Indian model and actor, was involved in an obscenity case in 2020,
related to a photograph he had posted on social media.

The photograph in question was of Milind Soman running naked on a beach in Goa, with
only a pair of shoes on. The photograph went viral on social media and received a mixed
response from the public.

An advocate from Goa filed a complaint against Milind Soman, alleging that the photograph
was obscene and violated various laws related to public nudity, indecency, and obscenity.
The case was registered under Section 294 (obscene acts and songs) of the Indian Penal Code
and Section 67 (punishment for publishing or transmitting obscene material in electronic
form) of the Information Technology Act.

Milind Soman defended himself by stating that the photograph was a part of an advertisement
campaign for a brand that promotes healthy living and fitness, and that it was not intended to
be obscene. He also argued that the photograph did not show any private body parts and that
it was taken in a secluded area, away from public view.

In November 2020, the Goa Police filed a closure report in the case, stating that there was no
evidence to prove that Milind Soman had committed any offense under the relevant laws. The
case was subsequently closed, and no charges were filed against Milind Soman.

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This case highlights the subjective nature of obscenity laws and how they can be interpreted
differently by different individuals. It also emphasizes the importance of context and intent
when determining whether a particular act or image is obscene or not.

Milind Soman and Madhu Sapre for a Tuff shoe commercial obscenity case

Milind Soman and Madhu Sapre were involved in an obscenity case in 1995, related to a
print advertisement for Tuff shoes that they had appeared in.

The advertisement featured Milind Soman and Madhu Sapre posing nude, with only a pair of
Tuff shoes on, and a python wrapped around them. The advertisement was part of a campaign
that aimed to convey the message that Tuff shoes are tough enough to withstand anything.\

The advertisement created a lot of controversy and was criticized for being vulgar and
obscene. A complaint was filed against Milind Soman, Madhu Sapre, and the manufacturers
of Tuff shoes, under various sections of the Indian Penal Code related to obscenity, indecent
representation of women, and public nudity.

The case went on for several years, with the accused challenging the charges and arguing that
the advertisement was artistic and had been misinterpreted. In 2002, the Supreme Court
acquitted the accused, stating that the advertisement did not amount to obscenity, as it was
not intended to arouse sexual feelings or offend public morality. The court also held that the
advertisement was artistic and had social and political relevance.

The case was significant in shaping the understanding of obscenity laws in India, as it
established that artistic expression is protected under the right to freedom of speech and
expression. The case also highlighted the importance of context and intent when determining
whether a particular act or image is obscene or not.

Poonam Pandey and her husband, Sam Bombay obscenity case

Poonam Pandey, a model and actress, and her husband, Sam Bombay, were involved in an
obscenity case in 2020, related to a video they had shot and posted on social media.

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The video in question was shot by Sam Bombay and featured Poonam Pandey posing in a
provocative manner in a public place in Goa. The video went viral on social media and
received criticism for being obscene and vulgar.

The Goa Police filed a complaint against Poonam Pandey and Sam Bombay under various
sections of the Indian Penal Code, including Section 292 (sale, distribution, and display of
obscene material), Section 294 (obscene acts and songs), and Section 67A (transmitting
sexually explicit content).

Both Poonam Pandey and Sam Bombay were arrested and later released on bail. Poonam
Pandey defended herself by stating that the video was intended to be an artistic expression of
her personality and that it was not intended to be obscene or offensive.

The case is still ongoing, and the accused are awaiting trial.

This case highlights the potential legal consequences of posting obscene content on social
media and the importance of being aware of the laws related to obscenity. It also emphasizes
the need to exercise caution when posting content on social media and to ensure that it does
not violate any laws related to obscenity or offend public morality.

Ranveer Singh Photoshoot Case

Ranveer Singh, a popular Bollywood actor, was involved in an obscenity case in 2014,
related to an advertisement for a men's innerwear brand that he had appeared in.

The advertisement featured Ranveer Singh wearing only the brand's innerwear and striking
provocative poses. The advertisement received criticism for being vulgar and offensive, and a
complaint was filed against Ranveer Singh and the manufacturers of the innerwear under
various sections of the Indian Penal Code related to obscenity and indecent representation of
women.

Ranveer Singh defended himself by stating that the advertisement was meant to be humorous
and was not intended to be obscene or offensive. He also argued that the advertisement was
part of a larger campaign that aimed to promote body positivity and self-confidence.

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The case went on for several years, with the accused challenging the charges and arguing that
the advertisement did not amount to obscenity. In 2016, the Bombay High Court quashed the
case, stating that the advertisement did not violate any laws related to obscenity or indecent
representation of women. The court also held that the advertisement was not intended to
arouse sexual feelings or offend public morality and was a legitimate form of artistic
expression.

The case is significant in shaping the understanding of obscenity laws in India, as it

CONCLUSION

The concept of obscenity is dynamic, and it constantly changes with the circumstances of the
case. There is no clear definition of the term 'obscenity. It means modesty or chastity, while
its legal meaning is any tendency that deprives or corrupts the mind of those who are open to
such immoral influences. The word is extensive and includes everything that seems to be
'vulgar.' obscenity is a global phenomenon and largely depends on different nations' local
moral traditions and values. In all the legal systems, however, the test to determine the
components of obscenity is somehow similar. Still, the manner of investigation and the
conduct of judicial prosecution are somewhat different.

In the Indian context, the law relating to obscenity developed through the court interpretation
of the term 'obscene' in Ranjit D. Udeshi v. the State of Maharashtra. In this case, the Court
applied the Hicklin test in the Indian conditions. The test laid down cannot be followed in
every case, mainly due to varied cultural and moral standards between the two nations. The
acceptance of the different notion of morality and decency differentiate one country from the
other. Recently, however, the Supreme Court changed its judicial approach and laid down the
'Collective Community Test' as the basis to determine whether or not a publication or
material falls within obscenity or not. This approach was adopted in Aveek Sarkar v. State of
West Bengal, in the Miller test line. India, being a complex multi-cultural, multi-ethnical
society, the concept of obscenity has been altered due to variation in community standards
and social attitudes.

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The Constitution of India treated both men and women equally and in the same manner. Still,
in Indian society, a clear-cut distinction is visible between the rules and their practical
application. To remove this ambiguity, provisions have been laid down which favors women.

Also, Freedom of Speech and Expression is recognized as a fundamental right under Article
19(1)(a) of the Indian Constitution but, such a right is not absolute. It could be restricted on
the ground of 'morality, decency, and public. order' mentioned under Article 19(2) of the
Indian Constitution. This restriction is incorporate to protect people from depravity and
corruption by immoral influences. Censorship is permitted on obscene substances, mainly on
the grounds of moral values and social interest specified under Article 19(2). Similarly, the
Constitution guarantees the protection of life and personal liberty and includes the right to
live with decency and dignity.

Indian Parliament. The laws relating to obscenity are further strengthened by Sections 292 to
294 of the Indian Penal Code, 186o, the Cinematograph Act,1952, the Information
Technology Act, 2ooo, etc. Yet, it is unfortunate that despite these Constitutional Articles,
Legislative enactments and provisions, and Judiciary intervention, both print, and electronic
media, continue to publish and transmit obscene materials. The growing rise of obscenity in
the Indian entertainment industry undermined the notion that illegal obscenity can be
prosecuted. Thus, it is high time to uproot this social problem at every level through a strict
compliance and sincere implementation of the law against obscenity. Media is considered the
fourth pillar of democracy, and hence, media should play the role of the agent to alarm the
policy makers against obscenity. Every person must take cognizance of the activities that
destroy the foundational pillar of Indian society and its culture. otherwise, our future
generation will blame us for destroying the rich cultural and social heritage, which
transformed into vulgarity and obscenity of the meanest order.

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