{"id":4316,"date":"2024-12-29T00:57:05","date_gmt":"2024-12-28T19:27:05","guid":{"rendered":"https:\/\/lawjurist.com\/?p=4316"},"modified":"2024-12-29T00:58:55","modified_gmt":"2024-12-28T19:28:55","slug":"obscene-acts-or-songs","status":"publish","type":"post","link":"https:\/\/lawjurist.com\/index.php\/2024\/12\/29\/obscene-acts-or-songs\/","title":{"rendered":"\u201cOBSCENE ACTS OR SONGS\u201d"},"content":{"rendered":"\t\t
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Author Shaan Marvaniya\u00a0 from Gujarat National Law University<\/strong><\/p>\n\t\t\t\t\t\t\t\t<\/div>\n\t\t\t\t<\/div>\n\t\t\t\t\t<\/div>\n\t\t\t\t<\/div>\n\t\t

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Introduction<\/b>:\u00a0<\/span><\/p>\n

Obscenity is a complicated and a world-wide issue, intricately connected to ideas of decency\u00a0 and morality, which differ widely among societies. What one person considers immoral may\u00a0 be perfectly acceptable to another. Due to the varied cultural, religious, and social contexts,\u00a0 defining obscenity in precise terms is a difficult task. The perception of obscenity can evolve\u00a0 over time\u2014what is deemed obscene today may not hold the same connotation in the future. In\u00a0 India, despite numerous efforts, neither the law nor the Supreme Court has succeeded in\u00a0 establishing a clear definition of obscenity. However, the Indian framework includes several\u00a0 provisions that penalize acts of obscenity. One such provision is Section 294 of the Indian Penal\u00a0 Code, 1860 (IPC). This section outlines the penalties for engaging in obscene acts or using\u00a0 obscene language. It states that anyone who, annoys other people, commits an obscene act in\u00a0 a public place, or who recites, sings, or utters any obscene song, ballad, or words in or near a\u00a0 public place, may be subject to imprisonment for up to three months, a fine, or both.\u00a0<\/span><\/p>\n

Evolution and History<\/b>:\u00a0<\/span><\/p>\n

As early as the 4th century, the Roman Catholic Church began taking initial measures by\u00a0 banning certain heretical texts. In 1542, Pope Paul III founded the Sacred Congregation of the\u00a0 Roman Inquisition, which was responsible for suppressing both heretical and immoral books. Similarly, in Protestant countries like England, immoral works were also suppressed. However,\u00a0 before the 18th century, restrictions in England were primarily focused on antireligious or\u00a0 seditious acts and publications, rather than on what we would consider obscene material today.\u00a0<\/span><\/p>\n

Invention of press set the stage for modern obscenity laws by facilitating the widespread and\u00a0 easy distribution of sexually explicit material. By the 17th century, such publications and prints\u00a0 were readily available throughout Europe. In response, governments and church authorities\u00a0 began to arrest and prosecute those involved in publishing and distributing these materials. The\u00a0 first person convicted of obscenity in England was bookseller Edmund Curll in the 1720s. He\u00a0 faced charges for publishing a new version of \u201cVenus in the Cloister; or, The Nun in Her\u00a0 Smock,\u201d a mildly pornographic book. Curll was fined and sentenced to an hour in the pillory,\u00a0 as there were no specific obscenity laws at that time. This case marked the beginning of\u00a0 obscenity being recognized as an indictable misdemeanour under common law.<\/span><\/p>\n

Section 294 IPC, along with its previous two Sections, addresses the issue of obscenity.\u00a0 However, the IPC does not provide a clear definition of what constitutes ‘obscene.’ Notably,\u00a0 Section 292 was not part of the original Code when it was enacted in 1860; it was added in\u00a0 1925. This addition reflects the colonial mindset, influenced by Victorian ideals of morality,\u00a0 where the British, who favoured a formal and modest appearance, were uncomfortable with the\u00a0 idea of revealing skin. These laws were influenced by prevailing views on what was deemed\u00a0 ‘moral’ and ‘acceptable.’ A notable example of these obscenity laws in action is the case of\u00a0 Saadat Hasan Manto, the famous Urdu writer who faced obscenity charges six times. In British\u00a0 India before 1947, he was charged under Section 292 of the IPC for his works \u201cDhuan,\u201d \u201cBu,\u201d\u00a0 and \u201cKali Shalwar\u201d. Although he was only fined once, the trials had a profound impact on him,\u00a0 illustrating how the legal process itself can serve as a form of punishment, leaving him deeply\u00a0 worn out.\u00a0<\/span><\/p>\n

Tests for Obscenity<\/b>:\u00a0<\/span><\/p>\n

The Oxford Dictionary defines “obscene” as something “offensive or disgusting based on\u00a0 accepted moral and decency standards.” However, for legal professionals, term ‘obscene’ is not\u00a0 clearly defined and lacks a universal consensus. Under Section 292 of the IPC, an object or\u00a0 book is considered obscene if it is either lascivious or prurient, or if it has the potential to\u00a0 deprave or corrupt someone.\u00a0\u00a0<\/span><\/p>\n

In response, courts have come up with various tests to decide if something qualifies as\u00a0 ‘obscene.’\u00a0<\/span><\/p>\n

The Miller Test<\/b>:\u00a0<\/span><\/p>\n

It was established by the Supreme Court in the 1973 case “Miller v. California.” This test has\u00a0 encountered difficulties, particularly with cases involving online obscenity. In this case, Melvin\u00a0 mailed five brochures containing explicit images of sexual activities to a restaurant manager.\u00a0 After examining the material, the manager lodged an obscenity complaint against Miller, which\u00a0 led to his prosecution under California law.\u00a0<\/span><\/p>\n

The Miller test consists of three criteria:\u00a0<\/span><\/p>\n

To determine if a work is considered obscene, it must meet all three of the following conditions:<\/span><\/p>\n

    \n
  1. Would an average person, using contemporary community standards, find that the work as a\u00a0 whole appeal to prurient interests?\u00a0<\/span><\/li>\n
  2. Does the work portray or describe sexual conduct, as defined by state law, in a distinctly\u00a0 offensive manner?\u00a0<\/span><\/li>\n
  3. Does the work, when viewed in its entirety, lack significant literary, artistic, political, or\u00a0 scientific value?\u00a0<\/span><\/li>\n<\/ol>\n

    A work is classified as obscene only if it satisfies all these criteria. The first two conditions are\u00a0 concerned with community standards, while the third evaluates the work’s overall societal\u00a0 value.\u00a0<\/span><\/p>\n

    The Hicklin Test<\/b>:\u00a0<\/span><\/p>\n

    The legal test for obscenity that originated from the case \u201cRegina v. Hicklin\u201d (1868) cantered on interpreting the term \u201cobscene.\u201d This test is quite broad and was initially applied in a case\u00a0 involving Henry Scott, who resold anti-Catholic pamphlets titled \u201cThe Confessional\u00a0 Unmasked\u201d. These pamphlets criticized the Catholic Church and its practices. When the\u00a0 bureaucrat Benjamin Hicklin ordered the destruction of these pamphlets, citing their obscenity,\u00a0 Scott argued that his intention was to expose issues with the Church rather than to corrupt\u00a0 public morals. Hicklin ruled Scott\u2019s intent was innocent.\u00a0<\/span><\/p>\n

    In the case of \u201cRanjit Udeshi v. State of Maharashtra\u201d (1964), the Indian Supreme Court used\u00a0 the Hicklin test from the Victorian era. This test assessed obscenity based on whether the\u00a0 material would offend someone who is particularly sensitive to immoral influences. This broad\u00a0 approach allowed a wide range of materials to be classified as obscene. Over time, the judiciary\u00a0 has narrowed the scope of obscenity. This modern approach assesses obscenity based on current\u00a0 community standards, recognizing that societal values change and what was once deemed\u00a0 obscene may no longer be considered so.\u00a0<\/span><\/p>\n

    The Hicklin test, in 1933 was overturned in the case of \u201cUnited States v. One Book Called\u00a0 Ulysses,\u201d which involved James Joyce\u2019s novel \u201cUlysses.\u201d Judge John M. Woolsey permitted\u00a0 the sale of the book in America by emphasizing its literary significance and its effect on an\u00a0 average person with normal sexual instincts. At that time, obscenity was defined as material\u00a0 that could provoke sexual desire or lead to sexually impure thoughts. Despite the government\u2019s\u00a0 appeal, the US Supreme Court upheld Woolsey\u2019s decision, agreeing that \u201cUlysses\u201d did not\u00a0 contain obscene content.<\/span><\/p>\n

    The Community Standard Test<\/b>:\u00a0<\/span><\/p>\n

    The Community Standards Test in India is frequently used to determine obscenity. According\u00a0 to this test gestures and content are considered obscene only if their main theme, when viewed\u00a0 as a whole, violates the prevailing moral and decency standards within the community at the\u00a0 time. This means that rather than focusing on isolated parts or specific details, the work must\u00a0 be evaluated in its entirety. The assessment takes into account the broader social context and\u00a0 the current values and beliefs held by the community. If the overall message or impact of the\u00a0 work conflicts with these contemporary standards, it may be classified as obscene. This\u00a0 approach allows for a more nuanced and contextual judgment, acknowledging that societal\u00a0 norms evolve and what might have been considered obscene in the past may not be viewed the\u00a0 same way today.\u00a0<\/span><\/p>\n

    Essential Ingredients of Section 294, IPC<\/b>:\u00a0<\/span><\/p>\n

    Committing an obscene act in public place, performing or speaking any obscene song, ballad,\u00a0 or words in or around a public area, and creating disturbance or irritation to an individual or\u00a0 the public through such conduct are all deemed offenses.\u00a0<\/span><\/p>\n

    A person can only be punished under this section if all these conditions are met. If even one of\u00a0 these factors is absent, the act or song in question will not be considered obscene. Under Section\u00a0 294 of the IPC, if an individual is found guilty of engaging in obscene acts or performing\u00a0 obscene songs, they may be subject to a penalty that includes imprisonment for a duration of\u00a0 up to three months. Additionally, they may be required to pay a fine, or in some cases, they\u00a0 could face both imprisonment and a fine as punishment for the offense.<\/span>1<\/span>\u00a0<\/span><\/p>\n

    1<\/span>Limited, M. T. P. (n.d.). <\/span>Section 294 IPC<\/span><\/i>. MyAdvo.in. https:\/\/www.myadvo.in\/bare-acts\/indian-penal-code 1860\/ipc-section-294\/\u00a0<\/span><\/p>\n

    Celebrities who were booked under this Section<\/b>:\u00a0<\/span><\/p>\n

    Milind Soman\u00a0<\/b><\/p>\n

    The prominent model and actor faced charges under Section 294 after sharing an Instagram\u00a0 photo of himself running naked on the beach to mark his 55th birthday. The image upset\u00a0 many online users, resulting in the filing of an FIR against him under several additional\u00a0 provisions of the Indian Penal Code and the Information Technology Act, 2000.\u00a0<\/span><\/p>\n

    Poonam Pandey\u00a0<\/b><\/p>\n

    The day after Milind Soman’s arrest, Poonam and her husband Sam Bombay also made\u00a0 headlines when they were detained by the Goa police. They were accused of producing an\u00a0 obscene video in Goa, as stated in the FIR. The couple was arrested on November 5 but was\u00a0 subsequently released on bail. They faced charges under Sections 292 (for taking obscene\u00a0 photos), 293 (for distributing obscene photos on social media), 294 (for engaging in an obscene\u00a0 act), and 447 (for trespassing) of the Indian Penal Code, in addition to Sections 4 and 6 of the\u00a0 Indecent Representation of Women (Prohibition) Act, 1986, and Section 67A of the IT Act.\u00a0<\/span><\/p>\n

    Karan Johar\u00a0<\/b><\/p>\n

    In 2014, a roast show that included 14 celebrities, such as Karan Johar and other prominent\u00a0 Bollywood stars, drew significant attention when its video went viral. This led to a lawsuit\u00a0 against all the celebrities involved. Karan Johar, who hosted the roast, faced backlash\u00a0 “indecent” content and was later charged for violation of section 294.\u00a0<\/span><\/p>\n

    Shilpa Shetty\u00a0<\/b><\/p>\n

    Shilpa Shetty was exonerated of all accusations brought against her under Section 294 on\u00a0 January 25, 2022, in relation to a kiss she had with Hollywood actor Richard Gere at an AIDS\u00a0 awareness event in Delhi around fifteen years prior. Gere could be seen kissing Shetty on the\u00a0 cheek in the video. Recently, the Court dismissed the claims as “groundless,” noting that Shetty\u00a0 had been the victim of an unwanted approach. Radical Hindu organizations at the time\u00a0 protested the kiss, seeing it as a transgression of Indian norms.\u00a0<\/span><\/p>\n

    Precedent Analysis<\/b>:\u00a0<\/span><\/p>\n

    In the case of <\/span>Narendra H. Khurana v. Commissioner of Police<\/i><\/b>2<\/span>, the Bombay High Court\u00a0 ruled that cabaret dances featuring inappropriate or obscene acts do not fall under Section 294\u00a0\u00a0<\/span><\/p>\n

    2 <\/span>2004(2)MHLJ72<\/span><\/p>\n

    of the IPC unless there is evidence showing that these acts cause “annoyance to others.” The\u00a0 Court questioned how such acts could disturb those who are not present or impact public order.\u00a0 The ruling suggested that it would be as unreasonable as claiming that watching a Hindi film\u00a0 with provocative dance sequences could disrupt public order. Additionally, the Court clarified\u00a0 that a cabaret, where people enter by purchasing tickets, does not qualify as a “public place”\u00a0 under this Section.\u00a0<\/span><\/p>\n

    In <\/span>Pawan Kumar v. State of Haryana<\/i><\/b>3<\/span>, it was emphasized that courts need to consider evolving\u00a0 moral perspectives and societal standards to properly interpret Section 294 in the context of\u00a0 contemporary views on obscenity. This means understanding how changing attitudes impact\u00a0 the application of the law and its relevance in today\u2019s society.\u00a0<\/span><\/p>\n

    In <\/span>Patel H.M. Malle Gowda vs. The State of Mysore<\/i><\/b>4<\/span>, the Karnataka High Court noted that\u00a0 since annoyance is a key element of the offense under this Section and is typically linked to an\u00a0 individual’s mental state, it is challenging to prove it with direct evidence. Instead, it is usually\u00a0 inferred from the established facts of the case.\u00a0<\/span><\/p>\n

    The Conclusion<\/b>:\u00a0<\/span><\/p>\n

    India remains a conservative society when it comes to defining obscenity, where even revealing\u00a0 a significant amount of skin can sometimes be considered \u2018obscene\u2019. The concept of ‘obscenity’\u00a0 is ambiguous and subject to interpretation under Indian law. What is deemed obscene is largely\u00a0 based on the perspectives of lawyers and judges, and this definition can evolve over time\u2014\u00a0<\/span><\/p>\n

    what might be seen as obscene today could be viewed differently in the future. While it is\u00a0 acknowledged that legal standards need to adapt, there is an urgent need for a clearer definition\u00a0 of obscenity. Presently, there is no precise benchmark for assessing obscenity in films, web\u00a0 series, art, images, or literature in the country.\u00a0<\/span><\/p>\t\t\t\t\t\t\t\t<\/div>\n\t\t\t\t<\/div>\n\t\t\t\t\t<\/div>\n\t\t\t\t<\/div>\n\t\t\t\t<\/div>\n\t\t","protected":false},"excerpt":{"rendered":"

    Author Shaan Marvaniya\u00a0 from Gujarat National Law University Introduction:\u00a0 Obscenity is a complicated and a world-wide issue, intricately connected to ideas of decency\u00a0 and morality, which differ widely among societies. What one person considers immoral may\u00a0 be perfectly acceptable to another. Due to the varied cultural, religious, and social contexts,\u00a0 defining obscenity in precise terms […]<\/p>\n","protected":false},"author":1,"featured_media":4038,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[85],"tags":[],"_links":{"self":[{"href":"https:\/\/lawjurist.com\/index.php\/wp-json\/wp\/v2\/posts\/4316"}],"collection":[{"href":"https:\/\/lawjurist.com\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/lawjurist.com\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/lawjurist.com\/index.php\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/lawjurist.com\/index.php\/wp-json\/wp\/v2\/comments?post=4316"}],"version-history":[{"count":4,"href":"https:\/\/lawjurist.com\/index.php\/wp-json\/wp\/v2\/posts\/4316\/revisions"}],"predecessor-version":[{"id":4320,"href":"https:\/\/lawjurist.com\/index.php\/wp-json\/wp\/v2\/posts\/4316\/revisions\/4320"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/lawjurist.com\/index.php\/wp-json\/wp\/v2\/media\/4038"}],"wp:attachment":[{"href":"https:\/\/lawjurist.com\/index.php\/wp-json\/wp\/v2\/media?parent=4316"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/lawjurist.com\/index.php\/wp-json\/wp\/v2\/categories?post=4316"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/lawjurist.com\/index.php\/wp-json\/wp\/v2\/tags?post=4316"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}