The Curious Case of Restriction of ‘Obscene’ Speech

Introduction

The foundations of freedom of speech and expression is rooted in the belief that every individual has a right to freely express themselves. The Constitution of India under Article 19 (1) (a) guarantees its citizens the right to freedom of speech and expression. However, this right is not unbridled and ‘reasonable restrictions’ under Article 19 (2) lay down the limits that are permissible under law. One ground on which free speech can be restricted by legislature is ‘decency and morality’. However, for most part these two words have been interpreted to mean obscenity or sexual conduct. Obscenity has been defined by section 292 of the Indian Penal Code which says that anything that is “lascivious or appeals to the prurient interests . . . if taken as a whole, such as to tend to deprave and corrupt person.” Is barring citizens from expressing themselves on the belief that such expression will corrupt another a reasonable restriction?

Perplexed USA

In the United States of America (USA), freedom of speech and expression is granted to its citizens by the first amendment which says, “Congress shall make no law . . . abridging freedom of speech”. Obscenity is excluded from the list of categories of speech that do not have the first amendment protection. The judiciary, through various cases have shown that despite its explicit mention, obscenity is a restricted from of speech. The court laid down the standard to measure obscenity by saying, “whether, to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest.” This marked the end of the Hicklin test in USA by making the standard test general population oriented.

It was not until Miller v California[1], years later, when the Miller test, which is a three-pronged standard was introduced. This was a development on the test laid down by the Roth case, namely the third prong. In USA there is no uniform national standard, but rather, there is an explicit legal precedent[2] (the miller test), which says-

- Whether "the average person, applying contemporary community standards", would find that the work, taken as a whole, appeals to the prurient interest,

- Whether the work depicts/describes, in a patently offensive way, sexual conduct specifically defined by applicable state law,

- Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value[3]

In the dissents of both the cases we see judges expressing doubts over the application of obscenity laws despite the lack of clear definition. Censoring speech or taking actions based on the perception of a handful of people and applying this as the moral standard of the community poses a threat to free speech. The same was expressed in the dissent of Roth case when one judge pointed out that each person is a different individual and have their own interests and sexual arousals. This problem of lack of clarity on obscenity laws is shared by the Indian judiciary, who often have relied on the American standards to judge obscenity.

India Sharing the Confusion

The evolution of India’s obscenity laws can be traced for the Ranjit Udeshi case to the Khushboo v. Kanniammal[4] case. In the Ranjit Udeshi v. State of Maharashtra case[5], 1965 the Indian supreme court used the archaic Hicklin test to determine whether the book, “Lady Chatterley’s lover’ was obscene. The court singled out the sexual part of the book, deemed it to be offensive and therefore an exception to free speech under Article 19 (2). In the Kanniammal case, 2010, the court implicitly rejected the Hicklin test and upheld the Miller test. More striking is the fact that the court held that the comments made on pre-marital sex would not be considered obscene even if they did arouse sexual desires.

Sandwiched between these two cases was the Ajay Goswami v. Union of India[6] case in 1985, which was one of the premier Indian cases to reject the Hicklin test and apply the Miller test. Along with the Alfred E Butler vs. State of Michigan[7] case, these two decide in favour of the respective publications in question holding that imposing a blanket ban on publication of sexual material to protect children will deprive adults of materials of their interests. “Surely, this is to burn the house to roast the pig."[8] Janet Reno vs. American Civil Liberties Union[9] is another case that voiced out against suppression of speech and expression in protecting children from harmful materials[10].

The Aveek Sarkar v. State of West Bengal[11]case applied the community standards test, regarding this to be the most accurate form to judge obscenity. According to this test the prevailing moral standards of the community were given prominence and emphasis on ‘taking the boarder picture into perspective’ was further rooted. The court also looked at the ‘positive social message’ of the picture which relayed the point that obscenity law needs to be judged on a case-to-case basis since there is no airtight definition. This comes close to Justice Stewart’s statement about pornography, “I can't define pornography, I know it when I see it.”[12]

Conclusion

Obscenity laws in both India and USA struggle with definition and categorization. Judgements are largely based on precedents which themselves are open to prejudice and cultural and societal influence. Judges are merely followers of societal custom, and they do not trigger social change. As Goutam Bhatia says “Obscenity is a weapon of cultural regulation”. Use of coercive powers and censorship on the grounds of obscenity are mere judicial representations of the dominant community standards of decency and morality, which is also known as legal moralism. Freedom of speech and expression of individuals cannot be curbed based on general community standards. It is not necessary that what is obscene to community A will be the same for community B. To add to this, there is the potential for differences in opinion within communities as well. Various cases have implicitly acknowledged that humans are sexual beings and have sexual desires. Inspite of this if there exists a system where one cannot express those feelings, it must be considered an unreasonable restriction.

[1] Miller v California, 37 L.Ed.2d 419 (1973). [2] Raj, Pratyush, Obscenity: Analysis of Indian and US Laws (May 14, 2012). Available at SSRN: https://ssrn.com/abstract=2057442 or http://dx.doi.org/10.2139/ssrn.2057442 [3] Ibid. [4] S. Khushboo vs Kanniammal & Anr, criminal appeal no. 913 of 2010 [5] Ranjit Udeshi v. State of Maharashtra, 1965 AIR SC 881. [6] Ajay Goswami v. Union of India, AIR 2007 SC 493. [7] Alfred E Butler vs. State of Michigan, 1 Led 2d 412 (1957). [8] ibid [9] Janet Reno vs. American Civil Liberties Union, 138 Led 2d 874 (1997). [10] Ibid. [11] Aveek Sarkar v. State of West Bengal, AIR 2014 SC 1495. [12] Jacobellis v. Ohio, 378 U.S. 184 (1964).

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About Author

Manthan Dalwai

A 5th year BA. LLB. student at OP Jindal Global University, LLM candidate at ISDE for Masters in International Sports Law. Presently interning at Centre for sports law, business and governance and at the All India Football Federation