Context: Model-actor Milind Soman booked under Section 294 (obscenity) of the Indian Penal Code, 1860 (IPC) along with other relevant sections of the Information Technology Act, 2000.

The history of obscenity under Section 294

• 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.
• Saadat Hasan Manto, the great Urdu writer 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).

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.
• British were concerned about ‘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.

Where does the IT Act come in?

• Section 67 of the IT Act has provision that 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.
• In the Bandit Queen case, 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.
• In All India Bakchod issue in 2015 – Bombay High Court found the roast to be ‘vulgar’ but not ‘obscene’.

https://indianexpress.com/article/explained/explained-history-of-obscenity-under-section-294-and-how-it-is-defined-7048062/

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