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Context:

Mumbai police are investigating Beer Biceps founder Ranveer Allahbadia and comedian Samay Raina for allegedly obscene comments on India's Got Talent, under Section 296 of the Bharatiya Nyaya Sanhita, 2023, which deals with "obscene acts."

About obscenity laws 

India’s obscenity laws are governed by Section 294 of the Bharatiya Nyaya Sanhita (BNS) and Section 67 of the Information Technology Act, 2000.

Section 294 of BNS:

• It criminalizes the creation, sale, import, export, advertisement, or distribution of obscene materials, including electronic content.
• Obscene material is defined as content that is lascivious, appeals to prurient interests (excessively sexual), or has the potential to deprave and corrupt
• First-time offenders face up to 2 years imprisonment and a fine of up to ₹5,000.

Section 67 of the IT Act:

• It punishes the publishing or transmission of obscene material in electronic form.
• The definition of obscenity aligns with Section 294 of BNS.
• First-time offenders face up to 3 years imprisonment and a fine of up to ₹5 lakh.

How has the Court interpreted obscenity over the years?

The interpretation of obscenity has evolved from strict Victorian-era standards to a more liberal approach based on community standards.

Early Rulings and the Hicklin Test:

• In Ranjit D. Udeshi v/s State of Maharashtra (1964), the Supreme Court relied on the Hicklin test (from the 1868 English case Regina v. Hicklin).
• The Hicklin test defined obscenity as material that could deprave and corrupt individuals susceptible to immoral influences, judged from the perspective of the most impressionable readers (e.g., children).

Shift to Community Standards:

• In Aveek Sarkar v/s State of West Bengal (2014), the Supreme Court rejected the Hicklin test and adopted the community standards test.
• The court ruled that obscenity must be judged in context and based on evolving societal norms, not isolated passages or the lowest common denominator.

Recent Rulings:

• In March 2024, the Supreme Court quashed obscenity charges against the creators of the YouTube series College Romance.
• The court differentiated between obscenity and profane or indecent language, ruling that obscenity must arouse sexual or lustful thoughts, which the show did not.

How to draw the line between obscenity and the right to freedom of speech and expression

The line between obscenity and freedom of speech is drawn based on context, community standards, and the intent of the content.

Community Standards

• Courts assess whether the material appeals to prurient interests based on contemporary societal norms.
• For example, in Aveek Sarkar (2014), a nude photograph was deemed not obscene as it was artistic and did not violate community standards.

Intent and Context

• Content that reflects anger, frustration, or excitement without arousing lustful thoughts is not considered obscene (College Romance case, 2024).
• However, content that explicitly promotes sexual depravity or corruption may be deemed obscene.

Balancing Free Speech

• Courts have emphasized that obscenity laws should not be weaponized to stifle free speech. For example, the focus should be on penalizing harmful content, such as child exploitation or non-consensual pornography, rather than policing consensual adult expression.

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Obscenity

Source:

THE HINDU

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