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Obscenity: A reasonable Restriction to Article 19

Obscenity: A reasonable Restriction to Article 19

Written by – Trisha

Right To Freedom which is providedunder Article 19[1] is an indispensable fundamental Right guaranteed by the Constitution of India.. The “freedom of speech and expression” gives a citizen the right to publish and propagate their ideas, disseminate their views and circulate them either in the form of spoken words or through writing[2]. Additionally, Article 19 (1) also provides for other freedoms including the right to

  • “assemble peacefully without arms
  • form associations or unions
  • move freely within the territory of India
  • Reside and settle in any part of the country
  • Practice any profession, business or trade”[3]

However, in order to ensure safety and order, this right is not absolute and the constitution provides for certain conditions including security, Public Order, Decency or Morality, Contempt of court, Defamation, incitement of an offence and friendly relations with other states on which basis the right to freedom can be reasonably restricted. Such restrictions as provided under Article 19 (2) of the Indian Constitution.

The term Obscene or obscenity finds its root in the Latin word “Obscaenus” which means something that is “foul, repulsive or dirty”. The term obscenity is vaguely defined under Section 292[4] of the Indian Penal Code and Section 294[5] punishes for obscene acts or words uttered in public places, causing annoyance to others. While words like lascivious, deprave, lewd, etc are used to describe obscenity, the term is not clearly defined in law and is open to various legal interpretations. According to Black’s Law Dictionary, “obscenity means character or quality of being obscene, conduct, tending to corrupt the public merely by its indecency or lewdness[6] Indecency has a meaning similar to that of obscenity. In the English language, Indecency is often interchangeable with obscenity and hence the concept of obscenity in certain cases can fall within the ambit of the reasonable restrictions provided by the constitution. The concept, interpretation and application of such a notion has changes over the years. Obscenity is determined by assessing whether the act or object tends to corrupt those whose minds are open to such depictions and influences. In 1996, it was held that indecency is not a concept that is confined to just sexual immorality but includes any action that does not conform to current standards of propriety. Presently, the Community Standard test is applied by courts to determine the obscenity of any act or publication.

According to the Community Standard Test, as observed in the case of “Aveek Sarkar & Anr vs State of West Bengal[7]”,obscenity is subjective, it varies based on the standards and morals of contemporary society in each nation. As opposed to the priorly followed Hicklin Test which assessed the obscenity or indecency of a publication in isolation, the current test focuses on the overall merit or context of the literary work which may directly bring the contentious parts out of the scope of obscenity. In the broad sense, according to the Indian Penal Code, selling obscene books, selling obscene and indecent things to young people, committing an obscene act or singing an indecent or obscene song falls within the ambit of obscenity.

The Supreme Court had observed that a ban on any object or act was justified if it would protect individual morality that may have deteriorated otherwise, due to exposure to obscene acts and publications. It can be interpreted that such bans on reasonable grounds fall within the ambit of Article 19 (2) if the act in question is indecent and violated basic morality.

As observed in the case of Ranjit D. Udeshi v. State of Maharashtra[8], “any act of obscenity that does not have a prepondering social benefit or profit cannot be protected by the right to freedom of speech and expression as provided under Article 19 of the Constitution.” While the Hicklin test that was used in this case was replaced by the Community Standards test in 2014, the above statement can be considered to understand the relationship between obscenity and article 19 of the Indian Constitution and analysed a test that was considered with regard to the community mores.

The rationale behind such a reasonable restriction is based on the belief that “A society is bound to decay without maintaining high standards of decency and moral”[9]

CONCLUSION

Article 19 guarantees to the citizens of India, right to freedom which is an essential fundamental right. However, this right is not absolute and can be restricted on certain reasonable grounds to preserve law and order in society. One such ground for restriction is to preserve the morality and decency of the current society. The judiciary in India has given various interpretations of obscenity and validated different tests of obscenity. Law provides an unclear definition of Obscenity or indecency that is interpreted differently based on contemporary social norms. Restrictions of this nature must fulfil the relevant test of reasonableness in order to be protected by the constitution.


[1] Indian Const. art. 19

[2] Sakal Papers vUnion of India [1962] 3 SCR 842

[3] Indian Const. art. 19 (1)

[4] Indian Penal Code, 1860 § 292

[5][5] Indian Penal Code, 1860 § 294

[6] Mamta Tripathy vs State of Orissa, (2019) SCC Online Ori 225

[7] Aveek Sarkar & Anr vs State Of West Bengal, (2014) 4 SCC 257

[8] Ranjit D. Udeshi v. State of Maharashtra , 1965 AIR 881

[9] A. Raghunandha Reddy, Role of Morality in Law Making: A critical Study, J. of the Indian L. Institute, (2007)

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