Every day we live by impressions of reality that have been constructed around us. These notions develop a congenital identity that brands us as members of society. The common sense that is inherent to societal functioning ensures a certain normative behavior. Law is an institution that promotes this common sense as discourses of governmentality. Michel Foucault expounds on how power is used to discipline the ‘subjects’ and how the government ensures that disciplinary rules are propagated to cause self-regulation by its subjects.[1] Legislations propagate regulations and rationale based on the collective consciousness. This collective consciousness refers to the social standards that prevail within a given society.

Indian society has undergone extensive changes over time. However, despite the passage through different rulers and different eras, the primordial traditional school of thought still seems to reign over the people, state and its institutions. This rigidified conventional ideology demarcates the society and thrusts minorities (women, lower classes, backward castes, non-Hindus, and further groups that form the ‘others’) towards disquietude. Legislations that govern the society protect the collective consciousness and propagates discourses ensuring self-regulation in accordance with these community standards. These standards are based on such a traditionalistic lexicon. Culture, customs, traditions, and religion dictate the community standards that shape the laws of the country. It cultivates a façade sense of right and wrong.

In the purview of the factors mentioned above, I’d like to provide a legislative analysis of ‘obscenity’ in India.  Just like every other word, obscenity doesn’t have a singular denotation. The oxford dictionary defines obscene as “offending against moral principles” and “(of the portrayal or description of sexual matters) offensive or disgusting by accepted standards of morality and decency.”[2] Meanwhile Collins dictionary provides that “If you describe something as obscene, you disapprove of it very strongly and consider it to be offensive or immoral.”[3] While the Oxford Dictionary applies a very specific approach to the definition strictly limited to sexual content, Collins dictionary implements a more colloquial and broader implication of the meaning. Even though the Indian Penal Code doesn’t precisely define ‘obscene’ or ‘obscenity’, Section 292 of the IPC deems any book, pamphlet, paper, writing, drawing, painting representation, figure or any other object as obscene if it is ‘lascivious’, appeals to the ‘prurient’ interest or to tends to ‘deprave’ and ‘corrupt’ persons.[4] The Information Technology Act (obscene content in electronic form), Indecent Representation of Women Prohibition Act ( obscene portrayal of women ), Young Persons Harmful Publication Act (obscene content that can corrupt a child) and Cinematograph Act ( obscene scenes in movies)  also pertain to publication of obscene material and punishment for the same.[5] The Supreme Court initially adopted the Hicklin test which stated, “whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such influences, and into whose hands a publication of this sort may fall.”[6] However, later this test was discarded and compliance with community standards was adopted.

The legal definition of obscenity is parallel to the definition given by the Oxford Dictionary. It emphasizes the relevance of social morality and standards as well as discretion based on sexuality. These ‘standards’ are fostered by the State as well as a universal guide of definitions (the Oxford Dictionary). Through statutes and case laws, the definitions have varied, however, the meanings relevant to obscenity have persisted to be orthodox, narrow and patriarchal.

Taboo has often surrounded the sexual agency of women. The legislation lays down that sex is a corrupting force in society. An obscene act, according to the IPC is an act dependent on the sale of ‘sexual material’ which offends the community based on the assumption that it might provoke lustful thoughts. In Ranjit Udeshi v. State of Maharashtra, the discussion surrounded the sale of a book that revolved around the sexual affairs of a woman.[7] The unrestricted, open and obvious representation of female sexuality was considered violative of community morals and standards. In K.A Abbas v. Union of India, a scene of a ‘red-light district’ was considered to be obscene and unsuitable for children.[8]  Through these precedents, it is clear that the state presupposes and enforces its power of moral policing. The state assumes its authority to impose right and wrong. It refuses to accommodate the grey area of morality, communal principles, and traditions. Though with time a semblance of ideological progress might be portrayed, traditional rules and principles continue to guide the legislation and judiciary. Archaic perceptions of chastity and submission are ascribed to women.  Children and women are equated to be perceived as naïve beings that require exclusive protection from the law. ‘Red light districts’ being considered as obscene definitely establishes that ‘prostitution’ is a shameful and private matter from which children need to be protected from, women shouldn’t be involved in sexual activities with multiple men or as a means to earn livelihood and women are victims that lack control of their own sexuality. It reinforces patriarchy and controls the sexual agency of women. Several questions such as the following, arise here; Can the state dictate right and wrong when these regulations are not as stringent and unambiguous in the community?; Can the state impose unjust rules and weaken members of society?; Can the state claim the mundane quality of sexuality and dictate authority over it? and; Can the state hide the realities from children for irrational moral claims?. The answers to all of these questions are, yes. The state can do so. In fact, the state can do whatever it wishes to. However, it is wrong to promote the elitist conventional interests and weaken the minoritarian sections of society.

Dance bars in Maharashtra had undergone an interesting and disturbing process of moral policing. These bars were banned by the State Government in 2005. These bars were considered obscene as it was claimed by politicians and locals. This ban had been overturned and reinstated several times. The state had dictated an ordinance that restricted the functioning of these bars which led to the unemployment of bar dancers and forced them through additional societal shaming. The recourse available to women was prostitution, suicide, and poverty. The aim of this ban was to ‘protect women’, ironically it led these bar dancers to tormenting turmoil and devastating living conditions. It infringed on their choices and freedom. Finally, this prohibition was considered unconstitutional by the Supreme Court in January 2019. Despite the upliftment of the earlier provisions, it upheld certain conditions of the prohibition. These bars can’t function after 11:30 PM and are vulnerable to be charged for obscenity by law. [9] In many Indian families, female members are taught that wearing shorter clothes is vile. This, in turn, empowers the male members to decide that a woman is corrupt based on her clothes and justifies rape as a punishment. Similarly, the state acting as a parent decides the profession, conduct, deadline, liberty and sexual agency of women. It diminishes the social, cultural, political and economic status of women. It illustrates a vulnerable, defenseless and gullible imagery of women. The state and its laws endanger women. It protects the people that should be punished in actuality. The law curbs artistic expression while it declares sexual expression to be ‘filthy’. The statutes and judgments, relevant to obscenity aim at protecting those whose minds can be corrupted when such people should be punished for their lack of sense and morality.

While the state aims at protecting public welfare and morality through the laws pertaining to obscenity, it is evident that these aims are hardly being fulfilled. Public welfare cannot be proven through the application of primitive regulations that appear as community standards. Instead, law should be an institution overturning community standards that are arbitrary, unjustifiable and inhumane. Public welfare exists in the development of minorities as well as majorities. Welfare is parallel and progressive in the longer term. The state cannot impose uniform and obsolete derivatives of morality. Obvious falsity can be seen when ‘minds that interpret valid literary and artistic work as sexually stimulating’ are being protected in order to prevent public disharmony. Is the state breeding rape culture by professing that the artistic representation of sex is merely meant to induce lustful thoughts? Is the state claiming that a naked woman is indecent? Is the state implying that people have no control over what they think and can be so easily corrupted by any content sexual in nature? The state institutionalizes the taboos that revolve around sex and female sexuality through such laws.

People are convicted for printing, publishing or selling sexual content that can incite lustful thoughts. The obscenity laws are vague and arbitrary. Political leaders and public figures make disrespectful comments about rape victims. These comments are supported on social media, magazines, newspapers, and television. Such outrageous comments are what should essentially be considered obscene. The vocalization and publication in support of such comments should be liable for punishment. Ideas promoting and leading to mob lynching and communal violence is obscene. The normalized exchange of rape and misogynistic jokes on various interactive platforms is obscene. The binary enforcement of gender roles and restrictions on female identity, movement, sexuality, and liberty are obscene. Obscenity should be relevant to people, who in actuality, cause public chaos. Law should be above romantic paternalism.

Obscenity in its true nature should be punished. These misleading definitions need to be reconstructed. Though the statutes, at a peripheral glance, might seem as a protective agent ensuring decency, they actually normalize indecent and criminal minds. It is not the responsibility of artists merely expressing their emotions or publishers and sellers that aim at providing art to the public to ensure that people accessing such art do not wrongfully perceive it. The inherent nature of law is sexist and deprives women of equality. Where in this democracy, we seek for justice and equality, progress is purely nominal and such means only lead to discrimination and oppression. For how long will such laws be pertinent and validated?

[1]  Burchell, G. and Foucault, M. (1991). The Foucault effect. Chicago: The Univ. of Chicago Press.

[2] Hobson, A. (2001). The Oxford dictionary of difficult words. New York: Oxford University Press.

[3] Breslin, G., McKeown, C. and Groves, R. (2012). Collins dictionary. Glasgow: HarperCollins.

[4] Indian Penal Code.292.

[5] Divan, M. (2003). Eastern Book Company — Practical Lawyer. [online] Ebc-india.com. Available at: http://www.ebc-india.com/lawyer/articles/2003v1a1.htm [Accessed 13 Dec. 2019].

[6] R v Hicklin [1868].

[7] Ranjit Udeshi v State of Maharashtra [1965].

[8] K.A Abbas v Union of India [1970].

[9] OHRH. (2019). Indian Supreme Court on Dance Bar Regulations: Victory for Bar Dancers?. [online] Available at: https://ohrh.law.ox.ac.uk/indian-supreme-court-on-dance-bar-regulations-victory-for-bar-dancers/ [Accessed 10 Dec. 2019].

The article has been written by Sagrika Rajora

This article was first published in the Blog namely The Criminal Law Blog