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Development of the Test for Obscenity

Sarthak Sharma

OP Jindal Global Law School


Obscenity has been a sensitive topic of disputation and debate across history, and our own country is no different in that regard. Being a rather subjective concept, the method of demarcating what counts as obscene and what doesn’t have been a topic for thorough deliberation, but the tests used for such demarcation have also evolved along with the subjects of contention. Liberty of art and freedom of expression often constitute the base of arguments, and the changing legal standpoint on the issue has been documented in this article, via the means of important case precedents.


The term ‘obscenity’ is currently defined under Section 292 (I) as “a book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object, which is lascivious or appeals to the prurient interest, or 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.”. This definition has evolved almost as much as the tests used to determine it.

In the 19th century case of Regina v. Hicklin (1868), CJ Cockburn set the precedent and established the test for obscenity, called the Hicklin Test, wherein it was necessary to establish the tendency of the matter charged as ‘obscene’ to deprave and corrupt those, whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall.

This meant that even if a trivial portion of the publication was found to be ‘obscene’, the whole publication could be outlawed. Also, because the statute doesn’t outline the boundaries of obscenity, the proceedings of each case became very subjective and contextual. Meaning that the courts have to analyse what falls under obscenity or art, alleviating the artist from having a say about their own work, as the bench would examine the work, keeping the most sensitive part of the population in mind, which takes the creative liberties and suppresses the artist’s vision to accommodate it into the moral standpoint of the susceptible few.

The next development can be gauged in 1912, in Kherode Chandra Roy Chowdhury vs Emperor, wherein the object in question was a book called “Natu Chori”, which described one of the ‘balya-leela’ (deeds of a young), Lord Krishna, in Uriya language. It described a 5-year-old Lord Krishna and Radha’s encounter. It was held that even though the text might seem obscene to an individual unaware about the Hindu faith and mythology, the text was published for Hindu reading and nearly every Hindu considers Krishna and Radha to be deities and not human beings, their acts aren’t perceived as immoral. The court held that merely because a small section of the Uriya speakers might draw immoral/licentious thoughts from the piece, the publication cannot be declared obscene.

This marks a massive change in the stance of the law regarding the sensitive part of the population, as it was acknowledged that the susceptible populace being considered for the Hicklin’s Test wouldn’t always have a higher pedestal and say, and the lucidity of the test was reassured.

Ranjit D. Udeshi vs State of Maharashtra (1965) marked a significant shift in the law’s outlook regarding obscenity, as it was held that whilst judging a work, the whole publication must be considered as a whole rather than portions in isolation. Secondly, wherever obscenity and art are amalgamated, if the art is preponderating enough to overshadow the obscenity or the obscenity in itself very nominal, then the publication shouldn’t be taken down.

This is an imperative judgment, because, on one hand, it ascertained a balance between "freedom of speech and expression" and "public decency or morality", and simultaneously, made sure that the original intentions and vision of the artist (if not overtly voluptuous), are given preference over the fractioned portion which might be ‘obscene’ in the eyes of the susceptible few.

Rahul Mookerji vs. State (NCT) of Delhi (2009) highlighted an important but underrated issue of moral policing. The facts were that the Sub Inspector of the Delhi Police lodged an FIR against a married couple, under IPC section 294 (obscene acts/words in public), for being in an ‘objectionable position’ and kissing each other, to the disturbance and annoyance of ‘passer-byes’. The Delhi HC held that the FIR doesn’t make a case for Section 294, as public expression of love by a young-married-couple shouldn’t entice the charge of obscenity.

This judgement should be read as a relatively progressive one in a rather regressive social setting, as the issue of moral policing by public officials as well as self-proclaimed defenders of public decency and morality (re: Bajrang Dal) still haunts young couples, as the lack of demarcation of the term ‘obscenity’ has given the license to the authorities to class whatever they deem might qualify as obscenity, and further their agendas of making the public spaces ‘pure’. The question has yet not been asked, why has the statute and society in general criminalized expression of love? Is the general public so susceptible to an adult, consenting couple kissing each other in public that it absolutely necessitates criminal proceedings and perhaps punishment?

Next up is perhaps the judgement, which altered the test of obscenity in India: Aveek Sarkar v. State of West Bengal (2014). The facts concerned a semi-naked picture of former tennis player Boris Becker and his fiancée, which was published in magazines and newspapers as a part of a protest against apartheid. The Supreme Court discarded the Hicklin’s Test and adopted the Community Standards Test, which dictates that: contemporary morals and national standards must be regarded, and not the viewpoint of sensitive persons, whilst determining obscenity. On application of the same, it was held that only if a particular work “has a tendency to arouse feeling or reveal an overt sexual desire “, should be criminalized as obscene, which was not the case thither.

This test although has its fallacies, one being that it only embodies the first of the three ‘prongs’ from its source (Roth v. The United States), them being 1) community standards 2) material being patently offensive and 3) having no redeeming social value; this judgement itself being superseded twice. The second and third parts of the Roth test are absent from the Aveek Sarkar judgment – essentially criminalizing any work which has the tendency of sexually arouse the readers. This does more harm than good, as on what ground does the Court criminalise sexual arousal? This again leaves it up to the Courts to interpret and apply the statute contextually.

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