“OBSCENE ACTS OR SONGS”

Introduction: 

Obscenity is a complicated and a world-wide issue, intricately connected to ideas of decency  and morality, which differ widely among societies. What one person considers immoral may  be perfectly acceptable to another. Due to the varied cultural, religious, and social contexts,  defining obscenity in precise terms is a difficult task. The perception of obscenity can evolve  over time—what is deemed obscene today may not hold the same connotation in the future. In  India, despite numerous efforts, neither the law nor the Supreme Court has succeeded in  establishing a clear definition of obscenity. However, the Indian framework includes several  provisions that penalize acts of obscenity. One such provision is Section 294 of the Indian Penal  Code, 1860 (IPC). This section outlines the penalties for engaging in obscene acts or using  obscene language. It states that anyone who, annoys other people, commits an obscene act in  a public place, or who recites, sings, or utters any obscene song, ballad, or words in or near a  public place, may be subject to imprisonment for up to three months, a fine, or both. 

Evolution and History: 

As early as the 4th century, the Roman Catholic Church began taking initial measures by  banning certain heretical texts. In 1542, Pope Paul III founded the Sacred Congregation of the  Roman Inquisition, which was responsible for suppressing both heretical and immoral books. Similarly, in Protestant countries like England, immoral works were also suppressed. However,  before the 18th century, restrictions in England were primarily focused on antireligious or  seditious acts and publications, rather than on what we would consider obscene material today. 

Invention of press set the stage for modern obscenity laws by facilitating the widespread and  easy distribution of sexually explicit material. By the 17th century, such publications and prints  were readily available throughout Europe. In response, governments and church authorities  began to arrest and prosecute those involved in publishing and distributing these materials. The  first person convicted of obscenity in England was bookseller Edmund Curll in the 1720s. He  faced charges for publishing a new version of “Venus in the Cloister; or, The Nun in Her  Smock,” a mildly pornographic book. Curll was fined and sentenced to an hour in the pillory,  as there were no specific obscenity laws at that time. This case marked the beginning of  obscenity being recognized as an indictable misdemeanour under common law.

Section 294 IPC, along with its previous two Sections, addresses the issue of obscenity.  However, the IPC does not provide a clear definition of what constitutes ‘obscene.’ Notably,  Section 292 was not part of the original Code when it was enacted in 1860; it was added in  1925. This addition reflects the colonial mindset, influenced by Victorian ideals of morality,  where the British, who favoured a formal and modest appearance, were uncomfortable with the  idea of revealing skin. These laws were influenced by prevailing views on what was deemed  ‘moral’ and ‘acceptable.’ A notable example of these obscenity laws in action is the case of  Saadat Hasan Manto, the famous Urdu writer who faced obscenity charges six times. In British  India before 1947, he was charged under Section 292 of the IPC for his works “Dhuan,” “Bu,”  and “Kali Shalwar”. Although he was only fined once, the trials had a profound impact on him,  illustrating how the legal process itself can serve as a form of punishment, leaving him deeply  worn out. 

Tests for Obscenity: 

The Oxford Dictionary defines “obscene” as something “offensive or disgusting based on  accepted moral and decency standards.” However, for legal professionals, term ‘obscene’ is not  clearly defined and lacks a universal consensus. Under Section 292 of the IPC, an object or  book is considered obscene if it is either lascivious or prurient, or if it has the potential to  deprave or corrupt someone.  

In response, courts have come up with various tests to decide if something qualifies as  ‘obscene.’ 

The Miller Test: 

It was established by the Supreme Court in the 1973 case “Miller v. California.” This test has  encountered difficulties, particularly with cases involving online obscenity. In this case, Melvin  mailed five brochures containing explicit images of sexual activities to a restaurant manager.  After examining the material, the manager lodged an obscenity complaint against Miller, which  led to his prosecution under California law. 

The Miller test consists of three criteria: 

To determine if a work is considered obscene, it must meet all three of the following conditions:

1. Would an average person, using contemporary community standards, find that the work as a  whole appeal to prurient interests? 
2. Does the work portray or describe sexual conduct, as defined by state law, in a distinctly  offensive manner? 
3. Does the work, when viewed in its entirety, lack significant literary, artistic, political, or  scientific value? 

A work is classified as obscene only if it satisfies all these criteria. The first two conditions are  concerned with community standards, while the third evaluates the work’s overall societal  value. 

The Hicklin Test: 

The legal test for obscenity that originated from the case “Regina v. Hicklin” (1868) cantered on interpreting the term “obscene.” This test is quite broad and was initially applied in a case  involving Henry Scott, who resold anti-Catholic pamphlets titled “The Confessional  Unmasked”. These pamphlets criticized the Catholic Church and its practices. When the  bureaucrat Benjamin Hicklin ordered the destruction of these pamphlets, citing their obscenity,  Scott argued that his intention was to expose issues with the Church rather than to corrupt  public morals. Hicklin ruled Scott’s intent was innocent. 

In the case of “Ranjit Udeshi v. State of Maharashtra” (1964), the Indian Supreme Court used  the Hicklin test from the Victorian era. This test assessed obscenity based on whether the  material would offend someone who is particularly sensitive to immoral influences. This broad  approach allowed a wide range of materials to be classified as obscene. Over time, the judiciary  has narrowed the scope of obscenity. This modern approach assesses obscenity based on current  community standards, recognizing that societal values change and what was once deemed  obscene may no longer be considered so. 

The Hicklin test, in 1933 was overturned in the case of “United States v. One Book Called  Ulysses,” which involved James Joyce’s novel “Ulysses.” Judge John M. Woolsey permitted  the sale of the book in America by emphasizing its literary significance and its effect on an  average person with normal sexual instincts. At that time, obscenity was defined as material  that could provoke sexual desire or lead to sexually impure thoughts. Despite the government’s  appeal, the US Supreme Court upheld Woolsey’s decision, agreeing that “Ulysses” did not  contain obscene content.

The Community Standard Test: 

The Community Standards Test in India is frequently used to determine obscenity. According  to this test gestures and content are considered obscene only if their main theme, when viewed  as a whole, violates the prevailing moral and decency standards within the community at the  time. This means that rather than focusing on isolated parts or specific details, the work must  be evaluated in its entirety. The assessment takes into account the broader social context and  the current values and beliefs held by the community. If the overall message or impact of the  work conflicts with these contemporary standards, it may be classified as obscene. This  approach allows for a more nuanced and contextual judgment, acknowledging that societal  norms evolve and what might have been considered obscene in the past may not be viewed the  same way today. 

Essential Ingredients of Section 294, IPC: 

Committing an obscene act in public place, performing or speaking any obscene song, ballad,  or words in or around a public area, and creating disturbance or irritation to an individual or  the public through such conduct are all deemed offenses. 

A person can only be punished under this section if all these conditions are met. If even one of  these factors is absent, the act or song in question will not be considered obscene. Under Section  294 of the IPC, if an individual is found guilty of engaging in obscene acts or performing  obscene songs, they may be subject to a penalty that includes imprisonment for a duration of  up to three months. Additionally, they may be required to pay a fine, or in some cases, they  could face both imprisonment and a fine as punishment for the offense.1 

1Limited, M. T. P. (n.d.). Section 294 IPC. MyAdvo.in. https://www.myadvo.in/bare-acts/indian-penal-code 1860/ipc-section-294/ 

Celebrities who were booked under this Section: 

Milind Soman 

The prominent model and actor faced charges under Section 294 after sharing an Instagram  photo of himself running naked on the beach to mark his 55th birthday. The image upset  many online users, resulting in the filing of an FIR against him under several additional  provisions of the Indian Penal Code and the Information Technology Act, 2000. 

Poonam Pandey 

The day after Milind Soman’s arrest, Poonam and her husband Sam Bombay also made  headlines when they were detained by the Goa police. They were accused of producing an  obscene video in Goa, as stated in the FIR. The couple was arrested on November 5 but was  subsequently released on bail. They faced charges under Sections 292 (for taking obscene  photos), 293 (for distributing obscene photos on social media), 294 (for engaging in an obscene  act), and 447 (for trespassing) of the Indian Penal Code, in addition to Sections 4 and 6 of the  Indecent Representation of Women (Prohibition) Act, 1986, and Section 67A of the IT Act. 

Karan Johar 

In 2014, a roast show that included 14 celebrities, such as Karan Johar and other prominent  Bollywood stars, drew significant attention when its video went viral. This led to a lawsuit  against all the celebrities involved. Karan Johar, who hosted the roast, faced backlash  “indecent” content and was later charged for violation of section 294. 

Shilpa Shetty 

Shilpa Shetty was exonerated of all accusations brought against her under Section 294 on  January 25, 2022, in relation to a kiss she had with Hollywood actor Richard Gere at an AIDS  awareness event in Delhi around fifteen years prior. Gere could be seen kissing Shetty on the  cheek in the video. Recently, the Court dismissed the claims as “groundless,” noting that Shetty  had been the victim of an unwanted approach. Radical Hindu organizations at the time  protested the kiss, seeing it as a transgression of Indian norms. 

Precedent Analysis: 

In the case of Narendra H. Khurana v. Commissioner of Police2, the Bombay High Court  ruled that cabaret dances featuring inappropriate or obscene acts do not fall under Section 294  

2 2004(2)MHLJ72

of the IPC unless there is evidence showing that these acts cause “annoyance to others.” The  Court questioned how such acts could disturb those who are not present or impact public order.  The ruling suggested that it would be as unreasonable as claiming that watching a Hindi film  with provocative dance sequences could disrupt public order. Additionally, the Court clarified  that a cabaret, where people enter by purchasing tickets, does not qualify as a “public place”  under this Section. 

In Pawan Kumar v. State of Haryana3, it was emphasized that courts need to consider evolving  moral perspectives and societal standards to properly interpret Section 294 in the context of  contemporary views on obscenity. This means understanding how changing attitudes impact  the application of the law and its relevance in today’s society. 

In Patel H.M. Malle Gowda vs. The State of Mysore4, the Karnataka High Court noted that  since annoyance is a key element of the offense under this Section and is typically linked to an  individual’s mental state, it is challenging to prove it with direct evidence. Instead, it is usually  inferred from the established facts of the case. 

The Conclusion: 

India remains a conservative society when it comes to defining obscenity, where even revealing  a significant amount of skin can sometimes be considered ‘obscene’. The concept of ‘obscenity’  is ambiguous and subject to interpretation under Indian law. What is deemed obscene is largely  based on the perspectives of lawyers and judges, and this definition can evolve over time— 

what might be seen as obscene today could be viewed differently in the future. While it is  acknowledged that legal standards need to adapt, there is an urgent need for a clearer definition  of obscenity. Presently, there is no precise benchmark for assessing obscenity in films, web  series, art, images, or literature in the country.