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Tuesday, November 24, 2020

Milind Soman booked for ‘obscenity’: History of obscenity under Section 294, and how it is defined

Advocate Faisal Sherwani explains the law under which Milind Soman was recently booked.

Written by Faisal Sherwani | New Delhi | Updated: November 15, 2020 12:12:30 pm
milind soman booked for obscenity, what is obscenity, obscenity legal definition, obscenity Section 294, Milind Soman, Manto obscenity trial, bandit queen obscenity trial, indian expressMilind Soman. (Twitter/@milindrunning)

Last week, model-actor Milind Soman was booked for “obscenity”, after the 55-year-old fitness enthusiast tweeted a picture of himself running nude on a beach in Goa. The photograph was accompanied by the caption, “Happy Birthday to me…55 and running”. An FIR was filed against him under Section 294 (obscenity) of the Indian Penal Code, 1860 (IPC) along with other relevant sections of the Information Technology Act, 2000.

Faisal Sherwani, an Advocate-on-Record, Supreme Court of India and a Partner at Luthra & Luthra Law Offices, explains the nuances of Section 294 of the IPC. He also highlights other intriguing cases that have shaped our understanding of the law and its exceptions.

The history of obscenity under Section 294

The law is one from colonial times, with roots in the Victorian era. Section 294 of the IPC deals with obscenity, along with Section 292 and 293. The expression ‘obscenity’, or what is ‘obscene’ is not clearly defined in the IPC. In fact, Section 292 in its current form didn’t exist in 1860, when the code was framed. It was inserted in 1925, so that makes it colonial, but yes with roots in the Victorian sense of puritanical existence, where the British were all suited and booted, and hence were not very comfortable with showing skin. There were fixed notions of what was ‘moral’ and ‘acceptable’.

We know of the trials of Saadat Hasan Manto, the great Urdu writer who was tried for obscenity no less than six times – thrice, prior to 1947 (for his works Dhuan, Bu and Kali Shalwar) in British India under Section 292 of the IPC, and an equal number of times after independence in Pakistan (for Khol Do, Thanda Gosht and Upar Neeche Darmiyaan). He was fined only once – but in our system, the process serves as the punishment and there are accounts of how some of these trials left him utterly exhausted.

Does the Section define obscenity?

It’s not defined in Section 294, but in 292, which provides for “Sale, etc of obscene books, etc”. The form in which we find the provision was the result of amendments to the IPC in 1925. This was a time when substantial print publication was being circulated in Europe, also much of this had started to find its way into India. In fact, there is good authority to suggest that by the 1880s India was one of the largest markets for British books.

There was also the issue of French novels such as those by M. Zola, which were being translated into English and vernacular languages. The British were somewhat concerned about such ‘immoral’ and ‘filthy’ material being readily available to the native youth. So, the government introduced a new Obscene Publications Bill in 1924, which led to the insertion of Section 292 in the IPC.

The provision says “a book, a pamphlet, paper, writing, drawing, painting, representation figure or other object shall be deemed to be obscene if it is lascivious or appeals to the prurient interest.”

Additionally, all material which tends “to deprave and corrupt person” falls within the vice of the provision. It essentially outlaws selling, distributing and letting to hire, importing or exporting material, making a profit out of it commercially, or advertising it or making it known by any means at large. Section 294 (Obscene acts and songs in a public place) is of earlier origin, which has been on the statute book since 1895.

Publication aside, this makes provision to outlaw and punish the more overt acts of obscenity. Even when print media wasn’t widespread, it was common ground that such obscenity, i.e. in full public view, could not be tolerated.

Also in Explained | What OTT platforms coming under IB ministry means for Netflix, others

Where does the IT Act come in?

Soman seems to have been booked under Section 67 of the IT Act mainly for uploading the photograph on a social media site. The provision outlaws electronic transmission of or publication of sexually explicit material. It borrows heavily in sentiment and language from Section 292. Qualitatively, the two provisions are quite similar.

Are there parameters in place for gauging obscenity?

At best the definition seems to be vague and somewhat open to subjective interpretation. The courts have adopted tests to determine whether a certain material is obscene or not. It started with the Hicklin test (adopted from the 1868 English case –Regina v. Hicklin), which allows for scenes to be looked at sans context. In other words, the test permits one to look at the allegedly obscene material in a vacuum, which isn’t ideal. For example, if a rape scene in a cinematograph film has the tendency to deprave and corrupt those whose minds are open to ‘immoral’ influences – the material would qualify as obscene, i.e. regardless of context or artistic or literary merit.

The first time it was really adopted in India was in the 1964 case Ranjit D. Udeshi v. State of Maharashtra, where the constitutionality of Section 292 had been challenged along with the government-imposed ban on DH Lawrence’s novel Lady Chatterley’s Lover. Of course, the provision survived the challenge and remains on the statute book today. Also upheld was the ban on the novel in question.

This is where you might want to spare a thought about the exceptions under the law. Publications that are proved to be justified as being for public good or in the interest of science, literature, art or learning are excepted from Section 292. So is material kept or used for religious purposes. The latter exception was a consequence of the realisation that was mandated on account of the Hindu mythological depictions of gods, goddesses and figures, often in the nude.

After Ranjit D. Udeshi there was a growing sentiment that the Hicklin test was unsuited to an exercise for evaluating obscenity. And viewing something without context is unfair. Arguably, Soman running nude also has context, as he was celebrating his 55th birthday and showing off how fit he is. Hollywood actress Gwyneth Paltrow had done something similar for her 48th birthday, when she had done a complete nude shoot. One might say that, ‘oh, it’s the US’. Fair point, but that’s where the next test comes in, the Roth test (adopted from the 1957 US case – Roth v. United States), which came to be adopted by our courts. Under this test, the material is obscene if the “dominant theme taken as a whole appeals to the prurient interest” of the “average person, applying contemporary community standards”. The insistence was on viewing the work “as a whole”. 📣 Express Explained is now on Telegram

The Bandit Queen case

This particular case is a good example — Bobby Art International, etc. v. Om Pal Singh Hoon (1996), where they cite rape scenes in the motion picture Bandit Queen as being allegedly obscene. The Supreme Court held that the question of obscenity had to be assessed in the context of the whole film and ruled that the objectionable scenes could not be seen in isolation.

The court found that the application of context was inescapable, as the rape scenes reflected the very sad but real social circumstances  of her (Phoolan Devi’s) suffering and the horrendous state of affairs. There was recognition that if they don’t make it graphic, you may lose the emotion.

Is nudity the problem?

Not by and of itself. There is sufficient precedent to suggest the converse. Take the case of Maqbool Fida Husain v. Rajkumar Pandey (2008), where the Delhi High Court quoted Picasso and reminded us that, “Art is never chaste. It ought to be forbidden to ignorant innocents, never allowed into contact with those not sufficiently prepared. Yes, art is dangerous. Where it is chaste, it is not art.” It concluded that nudity in art and literature is not per se evidence of obscenity.

Take the All India Bakchod issue in 2015 – where the Bombay High Court found the roast to be ‘vulgar’ but not ‘obscene’. It furnishes an indicator – possibly if it is not revulsive or disgusting – it isn’t obscene, just vulgar and the penal sections we discussed wouldn’t apply.

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