Recently a picture posted by Milind Soman, showing him running in the nude on a Goan beach, has stirred up a controversy on social media; people are divided as to whether he should have the freedom to post what he wants or whether such freedom is restricted, and the supposedly obscene material should be taken down. There are essentially four distinct opinions amongst the public — those in favour of striking off the section in toto, those in favour of increasing the threshold so as to not include everything under the ambit of obscenity, those in favour of retaining the section but reducing the punishment, and, those in favour of maintaining the status quo. I decided to research a little into the topic and conducted a survey with 72 participants. Out of these 34 belonged to the age group of 40 years or above and the remaining 38 belonged to the age group of below 40 years.
What is Obscene?
The Indian Penal Code defines obscenity under Section 292 as lascivious or appealing to the prurient interests where if the effects of the work taken as a whole, tend to deprave and corrupt persons, who are likely, to read, see or hear the supposed material. Under section 292(2) the sale, distribution or public exhibition of obscene books, pamphlets etc. is made punishable. Import, export, possession of obscene material for the purpose of sale, distribution, etc., is also made punishable. This section provides for imprisonment which may extend till 5 years and a fine which may extend to five thousand rupees. Section 294 of the IPC punishes obscene acts which are done in public places.
Section 67 of The Information Technology Act, 2000 provides punishment for publishing or transmitting obscene material in electronic form. The definition of obscenity is the same as that given under section 292 IPC. The punishment can be up to 5 years along with a fine of up to 10 lakhs. In Sharat Babu Digumarti v. Govt (NCT of Delhi) it was held that the IT Act would have precedence over the IPC since special laws override general laws. This is important in the present case of Milind Soman because the picture was posted on Instagram, which is an electronic platform that would be governed by the IT Act.
Evolution of Jurisprudence?
The vague wording of ‘obscenity’ has shifted the burden on the courts to decide what is and what is not obscene. The first major test of obscenity was laid down in the famous case of R v. Hicklin by Cockburn CJ: “[T]he test of obscenity is whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall…” Hence, the test held that the obscene material has to be judged according to isolated passages of a work considered out of context and judged by their apparent influence on most susceptible readers.
This test becomes problematic for primarily two reasons: Firstly since the obscene material is to be considered in isolation and not in the context of the work as a whole. It would invariably tilt the scale in favour of classifying the material as obscene. Secondly, since such material is to be tested against individuals prone to immoral influences vis-à-vis a reasonable person, again it would tilt in favour of classifying a work as obscene seen from a subjective angle.
However, in the case of Roth v. United States, the U.S. Supreme Court departed from the Hicklin Test when they said that only those sex-related materials which had the tendency of “exciting lustful thoughts” were to be seen as obscene. These had to be judged from an average person point of view by applying contemporary standards.
Aveek Sarkar v. State of West Bengal, a Supreme Court judgment, is the final say on the obscenity is to be adjudged in India. The SC too departed from the Hicklin Test and adopted a version of the Roth test, which is based on the Community Standard test. The Court stressed that while judging a particular material as obscene regard must be paid to the contemporary morals and the national standards and not the standards of a group of susceptible or sensitive persons. Applying the “contemporary community standard test”, the Court held the photograph does not tend to deprave or corrupt the minds of the people. The larger societal message being imparted by the photo should be taken in account (which was the eradication of apartheid and to promote love and harmony between an inter-racial couple), and the picture should not be viewed in isolation. Obscenity, which keeps on changing with changing social values, it ruled, needs to be determined from the point of view of the average person and in the context of contemporary mores and community standards.
Now the question arises as to how does one determine how an average person would judge a supposedly obscene material? While judging, a person’s own standard of obscenity may cloud their thinking. In the survey, three photographs were shown to the participants. They were asked to judge whether they found them obscene or not. If they did, should the person posting the material be punished?
However, I should mention the assumptions and biases inherent in the survey. Since most of the participants chosen did not belong to the legal fraternity, their ideas of trial and subsequent punishment may be different from reality. The selection of participants outside the legal fraternity was done purposely for two reasons: First, people who have studied the law on obscenity may have their presupposed notions regarding how it ought to exist. Second, around 10% of participants belonged to the legal fraternity, this can be taken as a fair representation of the general public.
Picture 1 Picture 2 Picture 3
The Supreme Court in Aveek Sarkar had found ‘picture 1’ to be not obscene, and the Esplanade metropolitan magistrate’s court had held ‘picture 2’ to be not obscene. As for ‘picture 3’ the Goa Police has booked Milind Soman under Section 294 of the Indian Penal Code and under Section 67 of the Information Technology Act and its status is yet to be decided.
Results of the Survey
27% of all participants found the first picture to be obscene, 35% the second picture and 31% found the third picture to be obscene. Analyzing by age, almost 52% of those participants belonging to the age group of 40 years and above found the pictures to be obscene. One the other hand, only 16% of those below the age of 40 years found the pictures to be obscene.
With regards the second question regarding the appropriate punishment for disseminating obscene material, 30% of the participants in the 40 years and above age group favoured punishment while only 13% of the participants below the age of 40 years favoured punishment. In totality, only 20% of all participants were in favour of punishment and the others were split between not doing anything at all, removing the picture from circulation, removing the picture from circulation and collecting fine from the offenders.
From the results, we can see how the new test of relying on community standards is also problematic due to issues of arriving at a common community standard. Another factor to consider is that one becomes more conservative with age and a majority of the judges invariably belong to an older generation; is it then possible for them to set aside their own opinion and judge the material in line with a younger community standard? Moreover, as seen in the survey, even where people may classify a picture as being obscene, rarely do they want to punish the offender since they consider the punishment to be disproportionate to the harm done. It is then worth considering whether we need to prosecute people like Milind Soman or whether the just thing to do would be to remove the material from circulation, if it is found to be obscene, while recovering costs from the offenders or imposing a softer disciplinary action in the form of say, social work upon them.
I believe the threshold of what is included in obscenity should be increased. However, since this is a qualitative and not a quantitative dilemma, the objectivity that we desire will invariably elude us. To counter this, a feasible, yet utopian idea could be to systematically and systemically change how we perceive a supposed obscene material. The taboo surrounding such material, which according to some has the power to corrupt young and susceptible minds should be removed. The material should be viewed as just that and not as a weapon capable of destroying minds.