Introduction
The debate over artistic freedom and its implications on fundamental rights such as freedom of speech and expression has been prevalent for a long time. It hinders the artists’ ability to freely express themselves through their artistic expressions as the present laws might make them liable for certain penalties. There is a need to explore the legal contours which might be present in the law pertaining to the cultural history of India, depicting nudity, and evolving the existing concepts of morality and decency. In Indian cultural history, relinquishing clothes has been considered a symbol of abandonment of all materialistic worldly attachments. Aspects such as nudity have been evident in the ancient Indian paintings and sculptures from the Khajuraho era till today. The courts have regarded this as part of the Indian culture since it is an artist’s “emotional connection to his perceptual reality and by the Government”. Thus, nudity has never been considered obscenity with respect to paintings and sculptures.
Legal Silhouette:
The freedom of speech and expression has been enshrined under Article 19[1] of the Constitution which also has some reasonable restrictions with regards to public order, decency, and morality, among various other aspects. An exemplification of such restrictions on ‘decency and morality is evident in Sections 292[2] and 293[3] of the Indian Penal Code and Section 67A[4] of the IT Act. Section 292[5] prohibits the sale, distribution or any other manner or mode of circulation of any book, painting or other obscene objects, and the person going against such prohibition shall be punishable. Upon consideration of such restrictions vis a vis artistic expressions, there are mainly two issues that arise: first, whether such artistic representations are considered as a violation of decency and morality as laid down in the Constitution, and second, whether such representation can be distinguished from the circumstances and context.
With respect to the first issue, the IPC does not define obscenity. Due to such lacking, the courts have enumerated certain tests to evaluate the obscenity in such representations. One of the earliest test was laid down in Regina v. Hicklin (1868)[6], where Cockburn, C.J. stated that “the 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. It is quite certain that it would suggest to the minds of the young of either sex or even to persons of more advanced years, thoughts of a most impure and libidinous character.” This test was known as the Hicklin Test. This was followed by the Indian Courts till 2014[7], after which it was replaced by the Community Standards Test as enumerated in the case of Roth v. United States[8]. The court in the case of Aveek Sarkar & Anr v. State of West Bengal and Anr (2014)[9], stated obscenity to be a “representation that arouses an overt sexual desire.” The court further held that for such representation in pictures to be considered obscene, it must incite some sexual desire in the person seeing it. And for sculptures, their posture and background of them should be considered when determining obscenity[10]. Furthermore, it was elaborated that the obscenity of an object should be decided from an ordinary person’s perspective through the application of the contemporary community standards test[11]. Thus, due to a such shift in the views of the courts, the artistic works are viewed from a reasonable man’s perspective and not a person who is susceptible to such influences.
Considering the second issue, there was a shift in the views of the courts examined that obscenity based on a limited scope. While the inclusion of this aspect in the IPC, a more progressive approach was adopted. Section 292[12] of IPC states that “the representation is required to be seen ‘as a whole’. In Bobby Art International & Ors. v. Om Pal Singh Hoon (1996)[13], the Supreme Court held that an isolated inspection of obscenity would amount to a “wanton violation of the letter of the law.” Therefore, the examination of a matter of obscenity depends on the courts through the use of community standards tests within its judicial capacity[14]. Moreover, in order to prove the guilt of an artist under Section 509[15] of IPC, the most essential aspect of mens rea needs to be fulfilled where the intention to insult a woman’s modesty must be proved beyond all reasonable doubt. There is an additional requirement under Section 67A[16] of the IT Act that the material shall be ‘sexually explicit’ to hold the artist accountable.
Provisions Pertaining to the Issue
The main concept of obscenity arises from the Obscene Publications Act, 1925[17]. And further, to give effect to Article 1 of the International Convention for Suppression or Traffic in Obscene Publications[18], Section 292[19] of the IPC was brought into existence. The convention was entered into by India in 1923 at Geneva. The Section has been misused many times to impede the artists’ freedom under Article 19[20] of the Constitution. One way to reduce such frivolous cases is a prior sanction of certain executing authority must be made mandatory prior to the institution of a case under this Section.
Conclusion
The concept of morality has evolved over time and can be considered as a variable of both time and location. Furthermore, new art forms are emerging on the verge of globalization, and art is being perceived to be an instrument of social change, thus the interpretation of decency and morality must also evolve. It is also the responsibility of the courts to ensure freedom for Artists under Article 19[21] of the Constitution, in order to ensure that art is used to promote a positive change in society.
Author(s) Name: Praneel Panchagavi (Symbiosis Law School, Pune)
References:
[1] Constitution of India 1950, art 19
[2] Indian Penal Code 1860, s 292
[3] Indian Penal Code 1860, s 293
[4] Information Technology Act 2000, s 67A
[5] Indian Penal Code 1860, s 292
[6] Regina v Hicklin (1868) L.R. 3 Q.B, 360
[7] Ranjit D. Udeshi v State Of Maharashtra (1965) AIR 881
[8] Roth v United States 354 U.S. 476 (1957)
[9] Aveek Sarkar & Anr v State of West Bengal and Anr (2014) 4 SCC 257
[10] Ranjeet D. Udeshi v State of Maharashtra (1965) AIR SC 881
[11] Regina (n 8)
[12] Indian Penal Code 1860, s 292
[13] Bobby Art International & Ors. v Om Pal Singh Hoon (1996) 4 SCC 1
[14] Ajay Goswami v Union of India (2007) 1 SCC 143
[15] Indian Penal Code 1860, s 509
[16] Information Technology Act 2000, s 67A
[17] Obscene Publications Act, 1925
[18] International Convention for Suppression or Traffic in Obscene Publications 1923, art 1
[19] Indian Penal Code 1860, s 292
[20] Constitution of India 1950, art 19
[21] Ibid
