With the growth of modern technologies & advancement of science, information has become easy to circulate & communicate to the whole of the world. We can easily get the news of an earthquake or landslide happening in the other part of the world with the help of satellites. The media has contributed immensely in making this world a compact place & connecting everyone with fast & easy medium. Earlier delivering news had been difficult & took a lot of time even when in the same country. With the advent of internet any news can be delivered just by a click of the mouse in a few seconds to a few minutes. With the developing media & becoming globalized, the content of the news or message that is circulated or delivered has become much vulnerable. A world cinema which tries to approach the audience in the whole world at large, made in a western country might just hurt the sentiments of people in the Eastern part of the world who are conservative & may not be able to appreciate the art or literature or the social message which the film tries to portray. Hence comes regulations in force to regulate which content would be suitable for display for a particular group of audience. Though these regulations are also often not the correct test as a neutral body adjudges it & there can be sections of people even in a conservative group who might accept a liberal view unlike others. Obscenity is one of the ingredients which prohibit content from being screened or displayed. The concept of obscenity is relative. Obscenity has been discussed & test for obscenity has been laid down by several countries depending on the moral principles, decency codes & social structure of that particular country. In this paper, the researcher discusses obscenity as has been discussed under English Law, Laws of United States & India by discussing various cases & the statutes in force.
English Obscenity Law:
The test to determine obscenity under English law has been coined quite sometimes back in R vs Hicklin case. This is one of the earliest cases where the test for obscenity has been laid down. This case revolved around Henry Scott who resold copies of anti Christ pamphlets entitled “The Confessional Unmasked: shewing the depravity of the Romish priesthood, the iniquity of the Confessional, and the questions put to females in confession.” When the pamphlets were ordered to destroy as obscene, Scott appealed the order to the court of Quarter Sessions. Benjamin Hicklin, a London magistrate who was in charge of such orders as Recorder, revoked the order of destruction. Hicklin held that Scott’s purpose had not been to corrupt public morals but to expose problems within the Catholic Church; hence, Scott’s intention was innocent.The authorities appealed Hicklin’s reversal, bringing the case to the consideration of the Court of Queen’s Bench. In the Queen’s Bench it was held that the order of the justices were right as the publication of such an obscene pamphlet was a misdemeanor, and was not justified or excused by the appellant’s innocent motives or object; he must be taken to have intended the natural consequences of his act.
The modern English law on obscenity began with Obscene Publications Act which came into force in 1959. This Act was brought into force to amend the law relating to publication of obscene matter, to provide for the protection of literature; & to strengthen the law concerning pornography. Sec 1of the Act lays down the test for determining obscenity. Sec 1(1) of the Act states: “For the purposes of this Act an article shall be deemed to be obscene if its effect or (where the article comprises two or more distinct items) the effect of any one of its items is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it”.
On 1 September 2001, Sections 46 and 47 of the Criminal Justice and Police Act, U.K. came into force, making it an offence to place advertisements relating to prostitution in, or in the immediate vicinity of, a public telephone box.
Obscenity Law in United States:
In U.S.A , the term obscene refers to material which the average person applying contemporary standards would find that, taken as a whole, appeals to the prurient interest, contains patently offensive depictions or descriptions of specified sexual conduct, & has no serious literary, artistic , political or scientific value. Miller vs California is one of the important cases decided by the Supreme Court of U.S which lays down the community standard test to define obscenity offensive. After the age old Hicklin’s test laid down by the English courts, the Miller’s test is much modern & contemporary. In this case the appellant conducted a mass mailing campaign to advertise the sale of illustrated books , euphemistically called adult material. After a jury trial he was convicted for violating California Penal Code sec 311.2 (a) a misdemeanor, by knowingly distributing obscene matter, and the Appellate Department, Superior Court of California, County of Orange, summarily affirmed the judgment without opinion. Appellant’s conviction was specifically based on his conduct in causing five unsolicited advertising brochures to be sent through the mail in an envelope addressed to a restaurant in Newport Beach, California. The envelope was opened by the manager of the restaurant and his mother. They had not requested the brochures; they complained to the police. The brochures advertised four books entitled “Intercourse,” “Man-Woman,” “Sex Orgies Illustrated,” and “An Illustrated History of Pornography,” and a film entitled “Marital Intercourse.” While the brochures contained some descriptive printed material, primarily they consisted of pictures and drawings very explicitly depicting men and women in groups of two or more engaging in a variety of sexual activities, with genitals often prominently displayed. This case involves the application of a State’s criminal obscenity statute to a situation in which sexually explicit materials have been thrust by aggressive sales action upon unwilling recipients who had in no way indicated any desire to receive such materials. This case laid down three pointers in determining whether the content for display is obscene or not. The three tests are: (a) it appeals to the prurient interest, (b) it is patently offensive, and (c) it lacks any redeeming value.
Roth vs United States is one of the earliest cases which the Supreme Court of U.S decided on obscenity. In this case the court sustained a conviction under the federal statute punishing the mailing of obscene lewd , lascivious or filty . . .” materials. The key to that holding was the Court’s rejection of the claim that obscene materials were protected by the First Amendment. Five Justices joined in the opinion stating:”All ideas having even the slightest redeeming social importance — unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion — have the full protection of the [First Amendment] guaranties, unless excludable because they encroach upon the limited area of more important interests.
In the case of Memoirs v. Massachusetts , nine years later, the Court veered sharply away from the Roth concept and, with only three Justices in the plurality opinion, articulated a new test of obscenity. The plurality held that under the Roth definition: “as elaborated in subsequent cases, three elements must coalesce: it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value. While Roth presumed “obscenity” to be “utterly without redeeming social importance,” Memoirs required that to prove obscenity it must be affirmatively established that the material is “utterly without redeeming social value.” Thus, even as they repeated the words of Roth, the Memoirs plurality produced a drastically altered test that called on the prosecution to prove a negative, i.e. that the material was “utterly without redeeming social value” — a burden virtually impossible to discharge under the criminal standards of proof.
Chapter 71 of the U.S Code defines obscenity. It has 12 sub clauses which lists down what would constitute as circulating or displaying content which is obscene. The code however doesn’t define obscenity under this chapter.
The Child Exploitation & Obscenity Section was set up in 1987 in the United States to protect the welfare of America’s children and communities by enforcing federal criminal statutes relating to the exploitation of children. CEOS leads the department of Justice in its endeavor to continuously improve the enforcement of federal child exploitation laws and prevent the exploitation of children.
18 U.S.C. §§ 2256(1) and (8) of the United States Code defines child pornography. It is defined as the visual depiction of a person under the age of 18 engaged in sexually explicit conduct. However the legal definition of sexually explicit conduct does not require that an image depict a child engaging in sexual activity which is referred under 18 U.S.C. § 2256(2). Federal prosecutors enforce the laws that make it a crime to possess, receive, distribute or produce child pornography in a way that affects interstate or foreign commerce. Federal jurisdiction is implicated when the visual image is transported across state lines, or when the visual image is produced using materials that were transported across state lines.
What is obscene in India: The standard & the laws
Sec 292(1) Of the Indian Penal Code defines obscenity as:
“For the purpose of sub section (2), a book , pamphlet, paper writing , drawing, painting, representation , figure or any other object , shall be deemed to be obscene if it is lascivious or appeals to the prurient interest or if its effect , or (where it comprises) two or more distinct items) the effect of any of its items , is if taken as a whole , such as to tend to deparave & corrupt persons who are likely , having regard to all relevant circumstances , to read, see or hear the matter contained or embodied.
The Indian law on obscenity has been modeled from the English law itself. So the test for determining obscenity is the old & long outdated Hicklin’s test as is under English law which the Supreme Court has relied upon in deciding many cases. Though the Supreme Court of India has said that there can be no uniform test for obscenity & therefore each case would have to be judged on its own facts.
Supreme Court of India relied on Hicklin’s test while deciding the case of Ranjit. D.Udeshi vs State of Maharashtra after 6yrs Hicklin’s test has been outdated in England after the coming into force of Obscene Publications Act in England. This is one of the important cases that Supreme Court has decided in matter of obscenity. In the present case the appellant , one of the four partners of a firm owning a book stall named , “Happy Book Stall” in Bombay was convicted by the lower court magistrate for being in possession of a copy of a book named , ‘Lady Chaterley’s Lover” which was the unexpurgated version. This book was adjudged to be obscene. Not only the appellant, the other four partners were also convicted. The High Court upheld the judgment of the lower court magistrate. Then this case came for appeal to the Supreme Court. In the Supreme Court the appellant claimed that it must be proved by the prosecution that the appellant sold the copies to corrupt the mind of the purchaser’s i.e the appellant sold the copies knowing they are obscene. The appellant also claimed that sec 292(1) of I.P.C was void as it violated the freedom of speech & expression under Article 19(1)(a) of the Constitution & even if the sec was valid it has to be proved by the prosecution that the book was obscene.
The Supreme Court held that (i) the section embody a reasonable restriction upon the freedom of speech and expression guaranteed by Art. 19 and does not fall outside the limits of restriction permitted by cl. (2) of the Article. The section seeks no more than the promotion of public decency and morality (ii) the book must be declared obscene within the meaning of s. 292, Indian Penal Code. Justice Hidayatullah speaking for the court said: “No doubt Article 19 guarantees freedom of speech & expression but it also makes an exception in favor of existing laws which impose restrictions on the exercise of the right in the interests of public decency & morality. Speaking in terms of the Constitution it can hardly be claimed that obscenity which is offensive to modesty or decency, is within the constitutional protection given to free speech or expression, because Article 19 itself excludes that. That cherished right on which our democracy rests is meant for the expression of free opinions to change political or social conditions or for the advancement of human knowledge. This freedom is subject to reasonable restrictions which may be thought necessary in the interest of the general public & one such is the interest of public decency & morality. Sec 292 manifestly embodies such a restriction because the law against obscenity of course correctly understood & applied seeks no more than to promote public decency”.
The case of Samaresh Bose vs Amal Mitra is also one of the important cases where a very famous Bengali writer was prosecuted under sec 292, I.P.C for writing & publishing a novel under the caption prajapati in a Bengali journal. When the case went on for appeal to the Supreme Court, the conviction was set aside. The court held that while judging the question of obscenity, the Judge in the first place should try to place himself in the position of the author & from the viewpoint of the author, the judge should try to understand what is it that the author seeks to convey & whether what the author conveys has any literary & artistic value. The judge should therefore place himself in the place of the reader of every age group in whose hands the book is likely to fall & should try to appreciate what kind of possible influence the book likely to have on the minds of the reader.
When an author writes a novel, he writes it for all classes of readers & it is not right to insist the writer to keep a standard so that the adolescent be brought into contact with content which talks about sex. If any sex content in a book is regarded as obscene & not fit to be read by adolescents, then they would only have to read religious books. Mere reference of sex in book shouldn’t be adjudged as obscene. The context should be looked into before arriving at any conclusion & referring in book as obscene.
Difference between vulgarity & obscenity:
A vulgar writing is not necessarily obscene. Vulgarity arouses a feeling of disgust & revulsion & also boredom but doesn’t have the effect of depraving, debasing & corrupting the morals of any reader of the novel, whereas obscenity has the tendency to deprave & corrupt whose minds are open to such immoral influence.
Indecency & obscenity:
Indecency is a concept wider than obscenity. Although anything that is obscene must necessarily be indecent, but what is indecent need not be necessarily always obscene. Indecent merely means non conformance with accepted standards of morality, obscenity refers to that which has prurient or lascivious appeal.
The Delhi High Court passed a judgment & banned the screening of the movie Bandit Queen to which there was an appeal to the apex court & the apex court allowed the appeal. This movie was based on the true life of Phoolan Devi who was married to an old man who was old enough to be her father. While being married she was stripped naked & paraded & made to fetch water under the vigilance of the villagers & no one came to rescue her. Being aggrieved by this humiliation she joined a dacoit gang & killed as many as twenty Thakurs in Madhya Pradesh. The apex Court found that this movie was a sad & realistic story of Phoolan Devi whose psyche had changed after she was humiliated & she became a dangerous dacoit full with the intent to take revenge. The scene showing where she was humiliated, stripped naked & going to fetch water infront of other villagers couldn’t have been portrayed better than showing nudity. This nudity shown in the movie wasn’t intended to titillate cinema goers’ lust but to arouse in them sympathy for the victim & disgust for the perpetrators. Rape & sex weren’t glorified in the movie but the movie tried to portray how rape & lust can have a terrifying effect on the victim. The very fact that the “A” certificate granted by the expert Tribunal which consisted of three female members prove that it could be hardly believed that the women would permit a film to be screened which degenerate women, insults women-hood or is pornographic.
Test of the ordinary man:
The test for judging a work should be that of an ordinary man of common sense & prudence & not an out of the ordinary or hypersensitive man. Hidayatullah C.J observed in the case of K.A.Abbas, “If the depraved begins to see in these things more than what an average person would , in much the same way, as it is wrongly said a Frenchman sees a woman’s legs in everything, it cannot be helped.” In the case of K.A.Abbas vs Union of India the petitioner prepared a documentary film titled , ‘A tale of Four cities’, wherein he tried to depict the contrast between the lives of rich & poor in four major cities of India. Some parts of his documentary contained scenes from red light area of Bombay. The petitioner asked for a “U” certificate but the censor board turned down & he was granted a certificate restricted only for adults. On an appeal made by the petitioner, the Central Government said that “U” certificate can be given, provided some cuts were made in the film. He therefore made an appeal to the Supreme Court saying that his fundamental right to free speech & expression was violated by this order of the Central Government & he was entitled to “U” certificate. The petitioner also claimed that the provisions of Part 11 of the Cinematograph Act, 1952, together with the rules prescribed by the Central Government in the exercise of its powers under s. 5-B of the Act were un- constitutional and void. It was held by the court that the censorship of films including prior restrain is justified under the constitution. Section 5-B authorizes the Central Government to issue such directions as it may think fit setting out the principles which shall guide the authority competent to grant certificates under the Act in sanctioning films for public exhibition. It cannot be said that this Section has not indicated any guidance to the Central Government. The first sub-section states the principles and read with the second clause of the nineteenth article it is quite clearly indicated that the topics of films or their content should not offend certain matters there set down.
Other applicable laws in India against obscenity are:
The relevant sections in I.P.C covers obscene publication of books, pamphlets, paper, sale of obscene objects to young persons & obscene acts & songs but none of the section covers indecent representation of women. Representation of women in media can sometimes be derogatory & indecent & even obscene. Women can be portrayed as an object of lust which can often corrupt the mind of the viewers or even excite the viewers & women in the society might just get victimized. Hence to prohibit indecent representation of women, through advertisements, publications, writing, paintings, figures, pamphlets etc. The Indecent Representation of Women (Prohibition) Act, 1986 came into force.
Sec 2 ( c ) of the Act defines indecent representation of a women.
Sec 3 of the Act talks about prohibition of advertisements containing indecent representation of women. This section prohibits a person from getting involved, directly or indirectly in the publication of any advertisement containing indecent representation of women in any form.
Sec 4 prohibits publication or sending by post of books, pamphlets etc, containing indecent representation of women.
Cable Television Networks (Regulation ) Act, 1995 prohibits the telecast of programs on cable television, which offend decency & morality & visits a contravention with imprisonment & fine. Sec 5 of this Act read with Rule 6(1)(o) of the Cable Television Networks Rules, 1994 prohibits the carriage of programs that are not suitable for unrestricted public exhibition. Sec 5-A talks about, “unrestricted public exhibition,”
Sec 4 of the Cinematograph Act, 1952, talks about examination of films. Section 5A of the Cinematograph Act talks about certification of films. Sec 5-A of Cable Television Networks Act read with sec 4 of Cinematograph Act provides for the examination & certification of films by the Board of Film Certification (CFBC).
The Young Persons (Harmful Publication) Act, 1956 prohibits publications which could corrupt a child or young person & incite him to commit crimes of violence or cruelty etc. A contravention of the provisions of this Act is punishable with imprisonment & fine.
The Information Technology Act, 2000 makes publication & transmission in electronic form of material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave & corrupt persons who are likely, having regard to all relevant circumstances to read, see or hear the matter contained or embodied in it punishable with imprisonment & fine.
Advertising Standards Council of India & the self regulatory code of advertisements:
The Advertising Standards Council of India established in 1985 (ASCI) controls the contents in a advertisement which is to be telecasted. ASCI is committed to the cause of self regulation in Advertising ensuring the protection of the consumers. The ASCI was formed with the support of all four sectors connected with Advertising, viz. Advertisers, Ad Agencies, Media (including Broadcasters and the Press) and others like PR Agencies, Market Research Companies etc. Its main objective is to promote responsible advertising thus enhancing the public’s confidence in Advertising.
The Code for Self Regulation in advertising was adopted by ASCI on November 20, 1985 which was amended by in February 1995 & June 1999. The Self Regulating Code was adopted under 2(ii)f of its Article of Association at the first meeting of the Board of Governors. The Self Regulating Code contains one of the fundamental principles as: “To ensure that advertisements are not offensive to generally accepted standards of public decency. Advertisements should contain nothing indecent, vulgar or repulsive which is likely, in the light of generally prevailing standards of decency and propriety, to cause grave or widespread offence.”
A case for obscenity was complained against Amul Macho, an underwear advertisement which was finally turned down by ASCI in June 2007. The Consumer Complaint Cell (CCC) of ASCI received a complaint that the Amul Macho crafted for fanaticizes” stating that the advertisement was indecent & violated the ASCI code. The ad had a woman entering a ‘dhobi ghat’ to wash her bundle of clothes. As other women watch her, the woman, clad in a sari and ornaments that mark her as a new bride, pulls out an underwear from the bundle and washes it, all the while contorting her face and eyes suggestively. Her facial expressions suggested that she is still fantasizing her man wearing the underwear which claimed to have been indecent & not accepted by the general standards of public decency. However after reviewing through the advertisement CCC found that the advertisement was not so obscene to give rise to grave or widespread offence.
The Ministry of Information & Broadcasting wrote to the Indian Broadcasting Federation (IBF) in Aug 2008 asking its member channels not to telecast FMCG major Hindustan Uinlever’s AXE Dark Temptation Deodrants terming it as indecent, vulgar & repulsive. The advertisement featured a chocolate boy being chased around by women and licked and bitten off to communicate the deodorant’s ‘irresistible’ fragrance. The Ministry also requested ASCI to provide details of complaints received & action taken by CCC if any against this advertisement. ASCI is yet to decide its verdict. Hindustan Unilever said it would abide by the government’s final decision but said that the advertisement wasn’t meant to be indecent or obscene but it was rather intended to be humorous & witty as shown by the consumer research.
Developing & conservative countries like India are still in a dilemma as to what would constitute over exposure of sexuality through media & would violate the moral norms of the society & be regarded as obscene. Sometimes the producers of many ads try to showcase their products in an innovative way which many sections of the audience might just accept it. Some sections of the viewers are creative & might accept with open arms the innovative approach in portraying a product. But this is always not true. As developing countries like India has a large section of the society as well which is illiterate & underprivileged which might not be able to accept the creative & innovative portrayal of some ads & which may seem as obscene & indecent to this section of the society. Thus some of these ads might just not be able to confirm to the standard laid down by ASCI & are forced to go off air, some of which ads might just be highly circulated & popular among many other countries.
Many commercial ads featuring deodorants, inner wears have been banned in India as those couldn’t comply with the ASCI codes. India has much been exposed to the westernized world after liberalizing trade after the crisis of 1991. Hence forth many western products have been brought to the Indian markets & the ads featuring these products started flourishing in the Indian markets. But all sections of the society wasn’t ready & is not yet ready to accept the westernized outlook. Most of the brands which are western have been banned from featuring their products in the commercial ads, referring them as obscene, but these products had a very high demand in the world market & their outlook towards marketing their products in the world market especially in the western world is quite different from that of a conservative country like India. The kind of feature films, short documentaries or small clippings of ads that are been banned or referred to as obscene in India is a clear revelation that India is yet to go a long way to reach an universal standard of obscenity observed in the world at large especially the western world. Though the Middle East countries especially the Arab countries are also quite conservative in these aspects where ads featuring condoms & contraceptives are also regarded as obscene which is one of the most important instruments of birth control. But anyways, India needs to come out of its conservative shell & have a much broader outlook towards judging any content as obscene.
Indian Penal Code, 1860
Indecent Representation of Women (Prohibition) Act 1986
Cable Television Networks (Regulation ) Act, 1995
Cinematograph Act, 1952
Young Persons (Harmful Publication) Act, 1956
The Information Technology Act, 2000
Self Regulatory Code of Advertising Standards Council of India
Statutes under English Law
Obscene Publications Act, 1959
Criminal Justice and Police Act, 2001
Statutes under United States’ Law:
Penal Code of California
U.S Code, Chapter 71, defining obscenity
U.S Code defining child pornography
Child Exploitation & Obscenity Section enforcing federal criminal statutes relating to exploitation of children against obscenity
Geoffery Robertson, QC & Andrew Nicol, QC, Media Law, fully revised 5th edition, Penguin Group
K.D.Gaur, Text Book on the Indian Penal Code, 4th edition, Universal Law Publishing
Kiran Prasad, Media Law & Ethics: Readings in Communication Regulation, Volume 2, B.R. Publishing Corporation, Delhi
Madhavi Garodia Divan, Facets of Media Law, Eastern Book Company, Lucknow
Sara Hadwin & Duncan Bloy, Law & the Media, Sweet & Maxwell, London, 2007
Bob. M.Fennis & Wolfgang Stroebe, The Psychology of Advertising, Psychology Press, Hove & New York
Websites referred to:
http://www.jwt.lk/news4.htm (last visited on 7th Nov, 2011)
http://www.ascionline.org/index.php/asci-about last visited on 6th Nov, 2011
http://www.ascionline.org/index.php/asci-codes last visited on 8th Nov, 2011
http://www.mumbaimirror.com/article/2/200706060237543438504e2e0/Underwear-ad-is-clean-rules-ASCI.html last visited on 7th Nov, 2011
http://www.mydigitalfc.com/my-world/govt-indecent-deodorant-ad-air last visited on 7th Nov, 2011
http://www.banksr.co.uk/images/Statutes/MP/Obscene%20Publications%20Act%201959%20(as%20enacted).pdf (last visited on 6th Nov)
R vs Hicklin (1863) 3 QB 360
Miller vs California 413 U.S 25(1973
Roth Vs United States354 U.S 476 (1957)
Memoirs v. Massachusetts 383 U.S 413 (1966)
Ranjt. D.Udeshi vs Union of India AIR 1965 SC 881
Samaresh Bose vs Amal Mitra AIR 1986 SC 967
Bobby Art International vs Om Pal Singh Hoon (1996)4 SCALE 75
K.A.Abbas vs Union of India (1970)2 SCC 7