section 292 analysis

What is Obscenity?

The concept of obscenity differs from country to country depending on the moral standards of contemporary society.
The Encyclopedia definition of Obscenity states, 'By English law it is an indictable misdemeanor to show an obscene exhibition or to publish any obscene matter, whether it be writing or by pictures, effigy or otherwise.' The precise meaning of "obscene" is, however, decidedly ambiguous. It has been defined as something offensive to modesty or decency, or expressing or suggesting unchaste or lustful ideas or being impure, indecent or lewd". This brings us to the law relating to obscenity laid down in Sec. 292 of the Indian penal code which came about the act 36 of 1969.
Sec.292 reads as follows:

Sale, etc., of obscene books, etc.-[(1)] For the purposes of sub-section (2) book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object, shall be deemed to be obscene, if it is lascivious or appeals to the prurient interest or if its effect, or (where it comprises two or more distinct items) the effects of any one of its items, is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely , having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.]

[(2) Whoever- sells , lets to hire ,distributes, publicly exhibits or in any manner puts into circulation or for purposes of sale, hire, distribution public exhibition of circulation, makes produces, or has in
(a) Possession any obscene book, pamphlet, paper, drawing painting, representation or figure or any other obscene objects whatsoever, or

(b) Imports, exports or conveys any obscene objects for any of the purposes, aforesaid, on knowing or having reason to believe that such objects will be sold let to hire, distributed or publicly exhibited or in any manner put into circulation or

(c) takes part in or receives profit from any business in the course of which he knows or has reasons to believe that such an object are for any of the purposes aforesaid, made produced, purchased , kept, imported, exported, convey, publicly excited, or in any manner put into circulation, or

(d) advertises or makes known by any means whatsoever that any person is engaged or is ready to engage in any act which is an offence under this section, or that any such obscene object can be procured from or through any person, or

(e) Offers or attempts to do any act which is an offence under this section, shall be punished

The Punishment.
On first conviction with imprisonment of either description for a term which may extend to two years, and with fine which may extend to two thousand rupees, and, in the event of a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and also with fine which may extend to five thousand rupees.
The Exceptions.
The law does not extends to-
(a) any book, pamphlet, paper, writing, drawing, painting, representation of figure-

(i) The publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, writing, drawing, painting, representation or figure is in the interest of science, literature, art or learning or other objects of general concern, or

(ii) which is kept or used bona fide for religious purpose;

(b) any representation sculptured, engraved, painted or otherwise represented on or in-

(i) any ancient monument within the meaning of the Ancient Monuments and Archaeological Sites and Remains Act,1958(24 of 58), or

(ii) any temple, or any car used for the conveyance of idols, or kept or used for any religious purpose.
The Reason stated by the Government-
Section 292 of Act 8 of 19521 was amended by Act 36 of 1969. The objects and reason laid down by the Parliament for the amendment states as;
"Under the present sec.292 and sec.293 of the Indian Penal Code, there is a danger of publication meant for public good or for bonafide purpose of science, literature, art or any other branch of learning being declared as obscene literature as there is no specific provision in the act for exempting them from operations of those sections. The Act removes that lacuna so as to bring the law into conformity with modern practice in other civilized countries."

The Case Study.
Ranjit D Udeshi Vs State of Maharashtra.
Citation: AIR 1965 SC 881

Judges: M Hidayatullah, P B Gajendragadkar, K N Wancho, J C Shah, N Rajagopala
Ayyangar

Facts: The appellant was prosecuted along with the other partners of a bookstall which was found to be in possession (for the purposes of sale) of the unexpurgated edition of the book, Lady Chatterley's Lover. The partners were charged under Section 292, Indian Penal Code (IPC) [1] for certain obscene passages in the book. During the trial, the accused produced as witness Mr Mulk Raj Anand, a writer and art critic, who presented a detailed analysis of the novel and opined that the novel was a classic workof considerable literary merit and not obscene. Nonetheless the trial court found the appellant guilty; the Bombay High Court upheld the verdict. Hence the appeal.

Issue: Whether S. 292, IPC was constitutionally valid; if so, whether or not it could be invoked in the present case.

Arguments: The prosecution contended that the law regarding obscenity in India had its underpinnings in the Hicklin test (which laid emphasis on the potential of the impugned object to deprave and corrupt by immoral influences) and that the book failed the test.
The appellant argued that S. 292 of the IPC was void as an impermissible and vague restriction on the freedom of speech and expression; that even if the Section were valid, if it was properly construed and the book was considered as a whole, the book would not be found obscene; and that for possession or sale to be punishable underthe Section it must be with the intention of corrupting the public in general and thepurchasers in particular. On the subject of obscenity, the appellant contended that the standard should not be that of an immature teenager or a person who is abnormal but of one who is normal, that is to say, with a mens sana in corporis sana. That, if valid, the section must apply only to cases of intentional lewdness/hardcore pornography, libidinous writings of high erotic effect unredeemed by anything literary or artistic and intended to arouse sexual feelings.

The Decision: the court dismissed the appeal concluding that,
The book is probably an unfolding of the author's philosophy of life and of the urges of the unconscious but these are unfolded in his other books. Therefore, there is no loss to society if there was a message in the book. The divagations (sic) with sex are not a legitimate embroidery but they are the only attractions to the common man."

My Analysis of the law
-Laid on the foundation of having a civilised country the law fails to define obscenity in its most appropriate manner.
-The law fails to explain the existence of “GREY AREA”, which is the space between actual obscenity and an interpretation of an individual perspective which could be artistic, professional or personal.
-The law to an extent violates the exercise and enjoyment of individual freedoms, which forms the basis of our constitution. It has to be kept in mind that a certain standard of public and sexual morality cannot be imposed, solely because it reflects the conventions of a given community and not the public on whole.
-The law states of obscene intentions that can harm an individual or the society as whole on getting exposure to it in 1970s, but with the passing time and evolved culture our understanding of harms caused by these materials has changed and yet again the law fails to keep the pace on with the changing times.
-The very basis of the law is based on primitive psyche, it has no space left for modifications or may be the system is too rigid to turn a few pages back and revise it.
-The legislative chose to leave sec.292 to open ends and by doing so left the criteria for application of standards to the judges. It is not the function of the judge to define material which is to be proscribed by law. The present law which fails to define obscenity with precision is too arbitrary and too vague.
How has the law been useful-
-It helps to maintain the standards of exposure common people should have so as to prevent them from getting provoked, or gain negative aspirations on the basis of nudity, vulgarity and obscenity.
-It helps to form a basis for a well-structured society which mutually collides with a mind frame of having a traditional culture.
-It prohibits the misuse of objects that can success criminal aspirations.
-It sets standards for media to know the amount of intrusion they can cause to an individual, institution or an organization. It helps determine the amount of information that needs to be passed from one head to another keeping in mind the violation of obscenity law.
-It restricts an individual from indulging in a profession that supports the obscenity as stated by the law and thus helps maintain controlled business expansions.
-It indirectly claims the business of prostitution, smuggling, pornography and human trafficking to be highly law violating thus supporting other laws.
How has the Law not been useful-
-It restricts from having an open minded transparent system of education, for example as per the exertion of this law any material of obscene nature could not be supplied and with this the sex education is now considered to be obscene. This is further responsible for under aged engaging in pornography and other cyber-crimes. Thus this law becomes a conflict for its own self.
-It restricts the media from exposing huge scandals, controversial disclosures and real faces of many people on the grounds of calling it too obscene for people to view it, read it or understand it.
-Women have trouble time explaining any kind of unethical behaviour they face may be at work or in person as it keeps reminding the unexplained definition of onscenity thus confusing it with actual malpractices.
The Reccomendations.
-It should keep in mind the freedom of press and let the media make their own boundaries in mutual understanding of public discretion laws. It is the media that has the up to date information of peoples issue and not these primitive laws.
-It should understand the fact that it is not the material that is obscene but it’s an individual perspective of it. A biology textbook of 12th grade contains more obscene representations then an actual obscene literature but labelling it educational makes it ethical whereas the other part still being literature becomes obscene not matching the undefined standards of the law.
-While coming up with a definition it should be kept in mind that Obscenity law should avoid using vague and subjective terms, such as 'indecent' 'absence' and 'harmful to public morals', without providing further clarification. Vagueness is dangerous.
-Obscenity restrictions must be aimed at preventing real harm and not simply at preventing 'offence to public sensibilities'
-A 'community standard of tolerance' test should be taken into consideration. Community standards must be contemporary. Times changes and ideas change with them. It should be a standard of the community as a whole which must be considered and not of a small segment of a community
Conclusion
The law on obscenity in India is clearly outdated and inconsistent with constitutional and international guarantees of freedom of expression and in desperate need of amendment. The word 'obscene' has not been defined in the code. The laws are vague in that no specific definition is laid down which could lead to arbitrary interpretation and in gross violation of freedom of expression enshrined in the Constitution of India.
Thus, a comprehensive review of sec.292 is inevitable.