In the 4th Century Roman Catholic church had taken their first move by banning few heretical works. In 1542 Pope Paul III established the sacred congregation of the Roman Inquisition which was vested with the task of suppression of heretical and immoral books. Immoral works also were suppression in protestant countries such as England prior to the 18th century restrictions were applied almost exclusively to anti-religious or seditious acts or publications rather than to obscene material in the modern sense. The invention of the printing press sowed the seed of modern obscenity law there was a wide and easy distribution of sexually explicit material. The first person to be convicted on a charge of obscenity in England was bookseller Edmund Cur II way back in the 1720. Cur published a new edition of the Nun in her smock a mild pornographic work. His sentence was due to the fact that there was no specific law on the subject matter. Obscenity was recognized as an indictable misdemeanor under common law.
In India section 292 states that the publications of a book, pamphlet, paper, writing, drawing, painting, representation, figure will be deemed obscene. Under clause (2) of section 292 holds a person liable to punishment if
Sells, distributes, publicly exhibits or puts into circulation of any obscene material
Imports or exports or conveys any obscene objects for any of the purpose aforesaid
Takes part in or receives profits from business in the course of which he knows or has reason to believe that any such obscene objects were made for any of the aforesaid purposes
Advertises or make known by any means whatsoever that any person is engaged in or is ready to be engaged in any act which is an offence under this section
Offers or attempts to do any act which is an offence under this section
Also, section 293 punishes sales of obscene objects to young persons below the age of 20 years. The constitutional validity of section 292 and the first case of obscenity in Republic India was challenged in Supreme Court in 1964 Ranjit Udeshi v State of Maharashtra the facts are Ranjit udeshi one of the four partners was the owner of Happy Book stall all these were prosecuted for selling Lady Chatterley’s Lover a book by D.H. Lawrence under section 292. Udeshi claimed that section 292 was infringing his fundamental right of freedom of speech and expression guaranteed under Art 19(1)(a) of the constitution. The court held that Art 19(1)(a) of the constitution is subject to the restrictions enlisted under Art19(2). Section 292 dealing with obscene materials falls within the exception and addressing the issue of public decency and morality and therefore section 292 is constitutional.
The following are the important Supreme Court precedents which explains the objective of obscenity law in India. Vulgar languages used in novel shall not constitute obscenity provided this statement may differ from case to case that is vulgarity and obscenity were not be confused reference to kissing, descriptions of female anatomy, suggestions of acts of sex were insufficient to constitute obscenity. Where as vulgarity and abusive language can amount to obscenity when it is against important historical figures. In the latter cases nude photoshoots are judged under the Community Standard Test under this nudity cannot be held obscene unless it has the potential of exciting lustful thoughts. In Rehana Fathima’s case the defendant claimed that she made an video to raise social awareness around the issue of sex education and female body. The supreme court dismissed the argument saying that “What may be obscene to some may be artistic to others one man’s vulgarity is another man’s lyric. By weighing the obscenity with the message, it tries to deliver is where subjectivity finds its place. The fact court made clear is to considered something obscene it shall have the potential to excite lust in the readers or viewers make obscenity subjective.
Obscenity law is an age-old provision but still we feel its importance in a different form in present scenario. By the advent of technology the modes of transmission & distribution are no longer limited only to books, pamphlets etc. since web content is taking over the world obscenity law now it is read with Information Technology Act introduced in 2000. If the alleged offence under took in electronic record, then IT Act comes into play the special act will prevail in such cases and the various other provisions of offence cover under the Sec 292 of IPC. The recent sensational news of Ranveer Singh nude photoshoot and its related controversies again setting an example to understand the obscene law. Senior Advocate Amit Desai quoted just because provision of obscenity is of a law of 1860 doesn’t mean that obscenity should not be an offence or the provision has to be struck down. In Ajay Goswami v Union of India, it outlined “per se nudity is not obscenity” there was an objective criterion in law, all objective criteria had a certain amount of subjectivity. Obscenity should be gauged with respect to contemporary Community Standards that reflects the sensibilities as well as the tolerance levels of an average reasonable person.
Obscenity is all about the context merely we see the skin of a celebrity doesn’t mean anything in the context of obscenity, Naga sadhus present at the KumbhMela for the hold dip showcased widely in the media with frontal nudity was not an act of obscenity but a spiritual one. The artistic expression of how he felt about fashion and nakedness cannot be said that he is promoting obscenity. The concept of obscenity changes with time and what might have been obscene at one point in time cannot be considered as obscene at later period. The right to freedom of speech and expression is not absolute and it thus has to be balanced against the contemporary community standards of morality when it comes to penalizing obscene acts or content.