Obscenity: How India Sees It …?

Understanding the context

The recent row that has been doing rounds involving two prominent youtubers and the comments that they made during an episode of the show, has brought us to a two faceted discussion. The first part being the extent of freedom of speech and expression and the second being an ongoing debate as to what content we are consuming in the name of free speech and expression? Lets crisply delve into the judgements which shaped the concept of obscenity in India. Section 294 of the BNS punishes those who sell, import, export, advertise, or profit from obscene material such as books, paintings, and figures and also includes the “display of any content in electronic form”.

The Indian Constitution enshrines the fundamental right to freedom of speech and expression under Article 19(1)(a), a cornerstone of democratic values. This right vital for a vibrant society, encompasses diverse forms of articulation, from spoken and written words to visual representations and even the right to remain silent. It also underpins the freedom of the press, recognized by the Supreme Court as an essential component, and the right to information, empowering citizens to form informed opinions. However, this freedom is not unfettered. Article 19(2) empowers the government to impose reasonable restrictions on specific grounds, including safeguarding the sovereignty and integrity of India, national security, friendly relations with foreign states, public order, decency and morality, contempt of court, defamation and incitement to an offense. Landmark cases like Romesh Thappar v. State of Madras (1950) and Maneka Gandhi v. Union of India(1978) have underscored the importance of this right and the need for reasonable, non-arbitrary restrictions. The Shreya Singhal v. Union of India (2015) case, which struck down Section 66A of the IT Act, highlighted the judiciary's role in protecting online speech from overly broad restrictions. While freedom of speech and expression is indispensable for a healthy democracy, allowing for the free exchange of ideas, the judiciary plays a crucial role in balancing this right with legitimate societal interests, ensuring that any limitations are constitutionally sound.

Similarly publishing or transmitting obscene material online can also be punished under Section 67 of the Information Technology Act, 2000. The definition of obscene material is identical to that provided under Section 294 of the BNS (previously Section 292 of the Indian Penal Code, 1860). However it provides a comparatively more rigorous punishment up to three years imprisonment and a fine of up to Rs. 5 lahks for a first-time offence.

In 1964, the Supreme Court of India held that the book was obscene under Section 292 of the IPC in the case of Ranjit D Udeshi v. State of Maharashtra (1964). It did so by borrowing from a British case called Queen v. Hicklin (1868) which laid down the “Hicklin test” for determining if a work is obscene. While the Hicklin test defined obscenity using the lowest common denominator, the US and the UK accounted for shifting and evolving societal mores. The Roth v. United States case, in particular, influenced the Indian Supreme Court’s choice to adopt the “community standards” test in the case of Aveek Sarkar v. State of West Bengal (2014).

In a recent case of 2024, Apoorva Arora v. State(NCT of Delhi), the Bench of the SC again applied the “Community Standards test” and quashed the proceedings against the makers of a popular YouTube show.

Conclusion

The recent controversy surrounding comments made by YouTubers underscores the delicate balance between freedom of speech and expression and societal norms. While Article 19(1)(a) guarantees this fundamental right, it is not absolute, and reasonable restrictions can be imposed, particularly concerning decency and morality. The legal framework surrounding obscenity, as defined in Section 294 of the BNS and Section 67 of the IT Act, has evolved over time. Initially, India adopted the restrictive "Hicklin test" but later shifted towards the "community standards" test, reflecting evolving societal mores, as seen in cases like Aveek Sarkar and the recent Apoorva Arora case. This shift acknowledges that what is considered obscene can change over time. The ongoing debate about online content consumption necessitates a nuanced approach. While freedom of expression is crucial, it cannot be used as a shield for content that clearly violates community standards of decency and morality. The judiciary's role remains vital in interpreting these standards and ensuring that restrictions on free speech are both reasonable and constitutionally sound, protecting both individual rights and societal values. Ultimately, a healthy democracy requires a continuous dialogue about the boundaries of free speech, balancing individual liberties with the need to maintain a respectful and inclusive society.