In India, art and obscenity often cross paths. Obscenity is criminalised through various legations that aim to censor obscene material. In recent years, the Indian courts have shifted from the restrictive Hicklin test of obscenity to the Community Standard test in deliberating on artworks that include nudity, sexual encounters, and sex and spirituality. However, this article argues that this progressive judicial discourse confines the interpretation and legality of art within socially acceptable categories instead of embracing the authenticity of art. For this purpose, the discussions surround the struggle between artistic expression and obscenity under section 292 of the Indian Penal Code, 1860 (hereinafter, IPC).
Conceptually, societal perceptions shape the meaning of obscenity and vary from culture to culture and between communities. It is transitional and transnational. But generally, it signifies something “that offends or outrages, because it defies accepted standards of decency, civility or modesty.” Obscenity is often related to morality, and the act is presumed to offend or corrupt morals by influencing or leaving an undesirable impact on the viewer. Art is one such medium of expression that has come under the legal scrutiny of obscenity. Professor Vashist puts this issue briefly as:
“Law and aesthetics seem to be situated as polar oppositions as law claims to be rooted in rationalistic thinking whereas art by definition transcends the rational to be artistic.”
Thus, the fundamental struggle remains between an artist’s freedom of speech and expression and the current interpretation of obscenity.
Transnational Tests of Obscenity
Under the common law, the Queen’s Bench laid down one of the first tests to determine obscenity in 1868 in Regina v. Hicklin. The test was “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”. This test allowed the material to be judged based on isolated parts of the work if they influenced the most susceptible readers.
By applying this test, any publication (including books, art, magazine articles) can be judged for obscenity based on isolated passages of the work, or seen (in case of art) without its context. Works can be considered by their supposed influence on the most susceptible readers, such as children or feeble-minded adults. The Obscene Publications Act, 1959 partially modified this test.
Till the late 1930s, this test was followed in the United States as well. In 1957, in the case of Roth v. United States, the US Supreme Court abandoned the Hicklin test. The court said that any work becomes obscene when “to the average person applying the contemporary community standards, the dominant theme of the material taken as a whole, appeals to prurient interest.”
The case was superseded by Miller v. California where it became a three-pronged test. Firstly, the community standards test examined while viewing the said picture in the background to which it was shown, and its message to the public and the world at large. Secondly, the material had to be “patently offensive” and thirdly, it must not have “any redeeming social value” or lack “serious literary, artistic, political, or scientific values.”
The Indian courts have largely interpreted and based the definition of obscenity on a variant of these tests.
Art and Obscenity in India
In Indian law, obscenity is generally understood in terms of morality and decency.Section 292 of the IPC punishes anyone found in possession, sale or transfer or like of obscene material. Obscenity is not defined under IPC. The Supreme Court in Ranjeet D. Udeshi v. State of Maharashtra elucidated the applicable test of obscenity. In this case, the accused was charged with obscenity for selling an unexpurgated edition copy of Lady Chatterley’s Lover. The court applied the Hicklin test and stated that it was not on certain parts of the case here or there but related to the overall story. Further, it said that test for obscenity is “whether the material would tend to deprave and corrupt the minds of readers in whose hands it would fall”.
Although the court applied the Hicklin test, section 292 of the IPC required any material, which is in question to be ‘taken as a whole’. When the material is taken as a whole if it is lascivious and tends to deprave and corrupt persons who read, see or hear the matter contained. So, even before the judgement, the Hicklin test was in contravention of IPC as the former requires the passages to be seen in isolation. However, the court used this test to hold the appellant guilty as he was in possession of obscene material for sale.
Over the years, the Hicklin test was modified in different judgements, but the courts erred in applying the tests of obscenity uniformly though most of them maintained the Hicklin Test. For example, in K.A. Abbas v. Union of India, the court applied some part of the Miller’s test holding that the “deprivation or corruption” must be viewed an average person’s point of view or a reasonable prudent man’s view. Then, in the case of Ajay Goswami v. Union of India, the court quoted the Miller test but titled it as the Hicklin Test.
In the following years, the Indian courts started adopting a seemingly more progressive approach to art and obscenity. In M.F. Husain v. Raj Kumar Pandey, the work of the famous painter M.F. Husain’s work came under the scrutiny of section 292 of the IPC. He had painted a work that depicted India in the form of a naked woman. He sold it to a private collector in 2004 and in 2006 it was displayed for an online charity auction where it was titled ‘Bharat Mata’. This led to various protest and complaints were filed against him. The matter was consolidated by the Supreme Court and referred to the Delhi High Court. Justice SK Kaul reflected that artistic freedom must be balanced with free speech keeping in mind the contemporary mores and national standards.
The High Court further noted that where questions of nudity or sexual figures arise, the perspective of the artist along with the context of the art must be looked into, and the idea that art “should not be seen in isolation without going into its onomatopoetic meaning.” The court concluded that even though some people may be offended by seeing “Mother India naked”, it wasn’t sufficient to constitute obscenity. Conservative notions of clothing the female body must not be allowed to stifle artistic freedom of expression guaranteed by Article 19 of the Indian Constitution.
Finally, in Aveek Sarkar v. State of West Bengal, the Supreme disapproved of the Hicklin Test and adopted the Community Standard test from Roth. In this case, the German magazine STERN published an article with a picture of Boris Becker and fiancée naked along with a photograph that was published in an Indian magazine Sports World and a Kolkata based newspaper Anandabazar Patrika. Aveek Sarkar, a lawyer, filed a case under Section 292 of IPC against the editor, publisher and printer of the newspaper and the editor of the magazine alleging the photograph will “corrupt and deprave the minds of the young and were against the cultural and moral values of society.”
The Supreme Court held that any photograph or work of art that involves nudity or sex could not per se be called obscene unless it tends to arouse feelings or reveal an overt sexual desire. The court said that the cover story mentioned that the motive of such a photograph was to fight racism, promote love and marriage between persons of different racial backgrounds for racial equality.
Further, it was held that since the breasts of Barbara Fultus were fully covered with the arm of Boris Becker the photograph was semi-nude and did not aim to arouse any sexual desires or reprehensible conduct. The Court held that the photograph was not obscene within the meaning of Section 292 of the IPC. The Court observed that decisions in such cases must be taken keeping in mind the contemporary national standards and not that of a group of sensitive persons, thus, the picture must be seen in the context of the message and not in isolation. Accordingly, the Court found no offence under Section 292 of the IPC.
Stifling Artistic Freedom in India
The catena of judgments shows that there have been progressive interpretations and a more acceptable approach in dealing with provocative and sexual art. But the jurisprudence on obscenity and art in India still has major shortcomings. The judgements on obscenity have an inherent bias in looking at art from the societal standard even as they take into context the artist’s intentions. Consequently, the artwork or the “image is never seen or appreciated on its own terms by Law.”
Firstly, there is a deep-seated fear of encountering the female body and sexuality in art in India. In M.F. Husain, although the court holds that “sex and obscenity are not always synonymous”, it cautions that when it comes to semi-nude/nude pictures of a woman, “the surrounding circumstances and background in which woman is shown” will determine whether it is obscene or not.
Similarly, in Aveek Sarkar, the image was not obscene because it didn’t intend to “did not have the tendency of “exciting lustful thoughts” since the “breast of Barbara Fultus has been fully covered with the arm of Boris Becker”. The fact that it was asserted that the picture was taken by her father seems to fit into the spheres of a heterosexual relationship. Thus, it was held that only the most depraved mind would be aroused and titillated by the image. The court seems to embrace a problematic discourse that if an artwork did arouse sexual tendencies, it would be obscene. “Reading the image within the harmony of heterosexual marital union and the familial ideology, the court brought it into the zone of permissibility, completely de-sexualised it, and stripped it of its actual intent of “supposed to shock.” Subsequently, boundaries are created that define and censor representation of female sexuality by creating “zones of sexual permissibility and proscription.”
To illustrate, in 2006 art had come under attack when artists Sanjeev Khandekar and Vaishali Narkar exhibited a how at the Jehangir Art Gallery, Mumbai. The title of the work was ‘Tits, Clits and Elephant Dick’. An FIR for obscenity was filed against the exhibition, and the police asked the artists to cover the nudes. The artists covered the work for the duration of the exhibition in black cloth as a mark of protest.
Secondly, the judgements have tried to fit acceptable art within the confines of accepted moralities of the past. For example, in M.F. Husain, although the court did not hold the artwork obscene, it constantly made comparisons to Kama Sutra, Khajuraho temples and other ancient texts to justify why it is the intermingling of sex and spirituality is acceptable. Consequently, this could be read as a precedent that any art that does not derive legitimacy from the ancient representation of nationalist or divine figures can be called obscene. Such an ambiguous scope of obscenity allows frivolous lawsuits that have inevitably affected artistic freedom to explore the realms of sacred and sensual art.
For instance, in 2007, a post-graduate student artist Srilamanthula Chandramohan became the centre of a controversy concerning his artworks displayed at the Faculty of Fine Arts, MSU Baroda. His works consisted of a painting of crucified Jesus Christ with his penis out on the cross. Semen was shown as dropping out of his penis into a real toilet commode placed beneath the Cross. His other work depicted a nude woman who has a baby coming out from her vagina and another lady attacking the baby with a Trishul. It was titled ‘Durga Mate.’
Chandramohan said that his aim was “to show the purity, truth and reality in human beings using the images of god and goddesses.” The police and men from the orthodox church and other religious organisations barged into the exhibition; Chandramohan was arrested and later released on bail. Since 11 years he hasn’t received his post-graduate degree from the college as he was suspended and Vishwa Hindu Parishad (VHP) attacked his works. The lawsuit against him is still pending and art galleries have repeatedly refused to exhibit his work. Similarly, in the last few years of his life, M.F. Husain was exiled or almost driven out of the country due to the legal battles and controversies surrounding his artworks.
That the purpose of art is not merely decorative but also provocative succinctly puts the debate between art and obscenity laws in India. Art must be allowed to push boundaries, without being stifled by extremists or confined in societal mores by the judiciary. There is a dire need of clarity in the definition and components of obscene art in the IPC provisions. Further, the police power to confiscate publications or artworks deemed as obscene must be curbed too.
 The Indecent Representation of Women (Prohibition) Act, 1986; The Young Persons (Harmful Publication) Act; Section 292, The Indian Penal Code, 1860; The Postal and Telegraph Act; The Information Technology Act, 2000 & The Immoral Trafficking (Prevention) Act, 1956.
 Kerstin Mey, Art and Obscenity (I.B. Tauris 2007) 5.
 Latika Vashist, ‘Law and the Obscene Image: Reading Aveek Sarkar v. State of West Bengal’,5 (Monsoon) JILS (2014), 249.
 3 QB 360 (1868).
 Obscene Publications Act, 1959, ; For further discussion on the changes brought by the act see J. E. Hall Williams, ‘The Obscene Publication Act, 1959’, 23 The Modern Law Review 286 (1960).
 Alice Fleetwood Bartee and Wayne C Bartee, Litigating Morality: American Legal Thought and its English Roots64-54 (Praeger , New York, 1992).
 354 U.S. 476 (1957).
 413 U.S. 15 (1973).
 Patently offensive generally means representations or descriptions of masturbation, excretory functions, and lewd exhibition of genitals.
 AP Datar, Commentary on the Constitution of India 311 (Wadhwa & Co., 2nd edition, 2007)
 Section 292, The Indian Penal Code, 1860.
 AIR 1965 SC 881.
 AIR 1971 SC 481.
 (2007) 1 SCC 143.
 Crl. Revision Petition No. 114/2007.
 (2014) 4 SCC 257.
 Supra note 2.
 Crl. Revision Petition No. 114/2007.
 (2014) 4SCC 257.
 Supra note 2; For a comprehensive analysis of how the equality discourse of judiciary reinscribes women into natural, familial roles, see Ratna Kapur, Women, Familial Ideology and the Constitution, Feminist Terrains in Legal Domains 61 (1996].
 Crl. Revision Petition No. 114/2007.
 Shubhajtroy, ‘MSU Faculty sends lesson to V-C on art: your reading ‘obscene, illiterate’’, The Indian Express (2007), .
 Sukanya Shanta, ‘Suspended for a Decade for Paintings of Gods, Student Returns to Torch VC’s Office’, The Wire (2018), https://thewire.in/culture/suspended-for-a-decade-for-paintings-of-gods-student-returns-to-torch-vcs-office.
 Somini Sengupta, An Artist in Exile Tests India’s Democratic Ideals, The New York Times (November 8, 2008), .