Ranveer Singh, Milind Soman, Lady Chatterley's Lover: India's Vague Law On Obscenity

BOOM spoke to artists, lawyers, and academics to understand what is considered obscenity in India.

Ranveer Singh is in trouble; an FIR has been filed against him for obscenity. The Bollywood actor had posted photos on social media of his nude photoshoot. Following complaints, the Mumbai police registered the FIR against him under various sections of the Indian Penal Code like 292 (sale of obscene books, etc), 293 (sale of obscene objects to young people), 509 (word, gesture or act intended to insult the modesty of a woman), and provisions of the Information Technology Act.

This isn't the first time celebrities have been booked over nude photoshoots and been told that is 'obscene'. In 1995, Madhu Sapre and Milind Soman courted controversy when they were booked for appearing nude—a python covered their bare essentials—on the cover of a magazine.

Soman was booked again in November 2020, this time by Goa police when he ran nude on the beach for his 55th birthday.

Back in 1974, model Protima Bedi found herself in the crosshairs after CineBlitz published a picture of hers running naked on a beach that was described as Mumbai's Juhu. In her memoirs, Bedi clarified that the original image was taken on a nude beach in Goa, and the magazine had misrepresented the image.

In May 2016, actor Sunny Leone was booked by Thane police after a local resident and social activists complained against indecent pictures and videos on her website.

Soman, Singh, Bedi and Leone join the stalwarts like Sadat Hasan Manto (he faced the charge no less than six times), Ismat Chugtai, and MF Hussain, who were booked for being obscene over the years. Literature like Bu, Lady Chatterley's Lover, painting 'Bharat Mata', the film Bandit Queen, stand-up comedies including All India Bakhod's (AIB) famous roast have all offended a select audience and have invited accusations of obscenity.

Stand-up comic Rohan Joshi—who was part of the AIB team—told BOOM that the laws on obscenity in India are "too restrictive for any form of expression" and what is obscene needs to be defined by reasonable standards. "Who decides what is obscene, and is an arbiter of the morality of society?" Joshi asked.

Models, Bollywood actors (Hollywood actor Richard Gere too features in this list), artists, and authors have all faced the same charges, which leads one to the question of what is considered to be obscene.

BOOM spoke to artists, lawyers, and academics and went through observations by courts to understand what is considered obscenity in India.

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What is obscenity?

The word 'obscenity' is used but not defined across legislation in India, advocate Kaushik Moitra told BOOM. The Supreme Court in 2010 had said "obscenity should be gauged with respect to contemporary community standards that reflect the sensibilities as well as the tolerance levels of an average reasonable person". Meanwhile, the Kerala High Court in 2018 said "shocking one's morals" is an "elusive concept" and that "one man's vulgarity is another man's lyric".

"The courts have therefore interpreted what amounts to 'obscenity' over the years, and lately have relied on the contemporary community standards test i.e. the content as a whole must be opposed to contemporary community standards," Moitra, Partner at a law firm Bharucha & Partners, told BOOM.

"That said, it is impossible to expect or enforce a global standard for morality across the masses, particularly in a country as diverse as India," he added.

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What are the laws on obscenity?

Provisions in the Indian Penal Code, and the Information and Technology Act criminalise acts of obscenity. Section 292 penalizes–with a jail term of up to two years and a fine, or both—the sale of obscene books, pamphlets, paper, writing, drawing, painting, representation, figure, or any other object "if it is lascivious or appeals to the prurient interest" if it tends to "deprave and corrupt persons".

However, material otherwise considered obscene would be exempt if it has been justified for public viewing or is in the interest of knowledge, science, literature, art or religious purposes. Ancient monuments and religious idols are also exempt.

Section 293 criminalizes the sale of obscene products to young people. Jail term can extend up to three years and a fine. Under Section 509 any word, gesture or act "intending to insult the modesty of any woman" can attract a maximum penalty of three years with a fine, or both.

Section 67A Information Technology Act, 2000 bars the publishing/transmitting of any material that contains sexually explicit acts or conduct through electronic means. Here, such a violation can attract a maximum jail term up to five years, and a fine up to ₹10 lakh.

Apart from this, The Indecent Representation Of Women [Prohibition] Act, 1986, The Cable Television Network Act, 1995, Cable Television Networks (Regulation) Act, 1995 also regulate available content. For example, the CTNA prohibits any kind of adult content on television.

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A look at what courts have said on obscenity

Obscenity laws in India are inspired by Victorian-era notions of what is considered to be crude. "The law is objective, neutral, and doesn't define 'obscenity'," advocate Kaushik Moitra said.

In 2018, the Kerala high court said one man's vulgarity is another man's lyric while dealing with the case where a Malayali magazine published the image of a woman breastfeeding a child. "We do not see, despite our best efforts, obscenity in the picture, nor do we find anything objectionable in the caption, for men. We looked at the picture with the same eyes we look at the paintings of artists like Raja Ravi Varma. As the beauty lies in the beholder's eye, so does obscenity, perhaps," the high court had said.

However, the journey undertaken by Indian jurisprudence to reach the high court's 2018 observation has been long.

While deciding the country's first obscenity case in 1964, the Supreme Court adopted the 1868 Hicklin test—derived by the British—and defined the parameters of what is obscene.

Ranjit Udeshi was a bookseller who sold an "unexpurgated edition" of DH Lawrence's Lady Chatterley's Lover. Udeshi had challenged section 292. Supreme Court, however, dismissed his plea, upheld the ban on the book, and adopted the Hicklin test. "The law seeks to protect not those who can protect themselves but those whose prurient minds take delight and secret sexual pleasure from erotic writings," the top court had said.

The Hicklin test assessed obscenity by the standard of an individual who was open to immoral influences and likely to get corrupted, and depraved. By this test, the material in question was looked at in isolation, or vacuum—whether it is obscene or not—as opposed to considering the entire context in which the material is being projected.

However, since then, Indian courts have taken a fairly liberal approach to what can be considered obscene.

In its 1969 Chandrakant Kakodar judgment, the SC acknowledged that standards of contemporary society are fast changing.

In its 1970 KA Abbas judgment, the Supreme Court said censors needed to account for the value of art while making their decision. The artistic appeal or presentation of an episode robs it of its vulgarity and harm and also what may be socially good and useful and what may not, it said.

In the 1996 Bandit Queen case—Shekar Kapur's film on Phoolan Devi—the Supreme Court allowed the screening of the film with the 'A' certificate after observing that scenes of nudity and rape; use of expletives were in tune with the film's theme and not intended to arouse prurient or lascivious among the people. Instead, the coarse scenes were to portray revulsion against the perpetrators and pity for the victim, the court had observed.

"'Bandit Queen' tells a powerful human story and to that story the scene of Phoolan Devi's enforced naked parade is central. It helps to explain why Phoolan Devi became what she did— her rage and vendetta against the society that had heaped indignities upon her," the court had said.

In the MF Hussain case—where he came under fire for some of his paintings including the one titled 'Bharat Mata'—the Delhi High Court in 2008 said the interpretation of 'obscenity' in the criminal context must be balanced against one's constitutional right to free speech and expression.

"A painter has his own perspective of looking at things and it cannot be the basis of initiating criminal proceedings against him," the 74-page judgment read. "In India, new puritanism is being carried out in the name of cultural purity and a host of ignorant people are vandalizing art and pushing us towards a pre-renaissance era," the high court had observed while dismissing the plea.

In the 2006 Ajay Goswami case, Supreme Court said "per se nudity is not obscenity".

Supreme Court in its 2014 Aveek Sarkar case said Boris Becker's nude photo with his fiancée could not be termed obscene rather, "the message, the photograph wants to convey is that the colour of skin matters little and love champions over colour. Picture promotes love affair, leading to a marriage, between a white-skinned man and a black-skinned woman." Supreme Court said, the "picture has to be viewed in the background in which it was shown, and the message it has to convey to the public and the world at large."

And just like that, 50 years after Ranjit Udeshi, the Supreme Court junked the Hicklin test in favour of the American's 1957 Roth test in which the community standards test apply. Here the material was tested against an average person's sensibilities and was contextual.

Also Read: Centre Wanted to Block Political, Journalistic Content: Twitter to HC

Is nude art obscene?

Obscenity laws took birth in the colonial era, and nude art has been in existence since time immemorial, advocate Radhika Roy said. "A bare reading of the obscenity laws reveal how vague and wide they are. It opens the door for a person's freedom of speech and expression to be held at ransom by another's subjective interpretation of what is obscene," Roy added. "For instance, in the Ranveer Singh fiasco," she added.

"Nude art has been in existence since time immemorial. While a reasonable person who may find the photographs distasteful, has the good sense to just not look at them, but a person whose sensitivities have been slighted, can take recourse of penal law to punish the artist," she said.

Sociology professor and ex-HOD at Mumbai's Xavier's College Nandini Sardesai told BOOM that historically, Indian culture and philosophy have been very inclusive and liberal. She said a culture existed where people who looked ahead and helped bring about social revolution lived side by side with those who are rigid and shunned change. "All these views have lived harmoniously. Morality was subjective," the ex-censor board member added.

Rohan Joshi said the obscenity laws come as obstacles in the way of expressing oneself. "Who are you to get offended on behalf of someone or society?" Joshi asked. The stand-up comic said this has affected the way he prepares his performances. "One has to think twice about everything you say in a public platform. We have to be careful that one shouldn't have to beyond a point," he added.

"We live in a world, where it should be that if you don't like something don't see it. That's where obscenity laws should start and end. Nobody should get to decide on other people's behalf what is obscene," Joshi told BOOM.

"In the last 10 years, tolerance has transformed into intolerance, and people are less caring about others' points of view. They have become hypersensitive, and touchy about views that they don't subscribe to. This was not so in the past," Sardesai lamented.

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