The internet user base in India has exceeded 500 million mark and is likely to reach 627 million by end of 2019.1 In India, Internet content is completely unregulated, there is no law or regulation that requires censorship of films and shows that are streamed online on the online video streaming platforms like Netflix, Amazon Prime, Hotstar etc. The talks to regulate this content is catching heat in India. Earlier this year, petition filed by an NGO, Justice for Rights Foundation in Hon’ble Delhi High Court was dismissed. The division bench of Delhi High Court while dismissing the petition said that they cannot frame any guidelines in this matter or pass any other order, because there are stringent provisions already in place under the Information and Technology Act.

However, this same NGO has again filed a petition in Hon’ble Supreme Court of India seeking framing of guidelines for the content on online video streaming platforms like Netflix, Amazon Prime Video, Hotstar. The Supreme Court has issued notice to Centre in response to this petition. This petition is filed for seeking guidelines in order to regulate the unregulated, uncertified, pornographic, obscene, sexually explicit, vulgar and profane content on these platforms. Now here, the main question that arises is; how would you determine obscene and sexually explicit content? This Article gives a step by step analysis of the view of Indian Courts on the understanding of the terms ‘obscene’ and ‘obscenity’.

Obscenity – Legal Provisions in India

The words obscene and obscenity have not been defined clearly in the Indian Penal Code. Section 292 of IPC only states that if any material taken as a whole, is lascivious or appeals to prurient  interest and tends to deprave and corrupts the persons who read, see or hear the matter contained will come under the ambit of obscenity. Further, Section 294 of IPC punishes a person for committing obscene act in public.

Information and Technology Act also gives provisions to prohibit obscene content in electronic form. Section 67 of IT Act gives punishment for publishing obscene material in electronic form. It is to be noted that any obscenity in electronic form can only be tried under the IT Act and not under IPC as section 81 of IT Act talks about its overriding effect over other laws.

Sections 2(c), 3 & 4 of the Indecent Representation of Woman Prohibition Act, 1986 also deal with prohibition of such instances. The Cable Television Network regulation Act, 1995, prohibits the telecast of obscene content on television. Further, Sections 4 and 5A of Cinematographs Act, provides that the films should be examined before release.

Tests for Obscenity

1. Hicklin test

The Hicklin’s test was laid down in English law in the case of Regina v. Hicklin. On Application of Hicklin’s test, a publication can be judged for obscenity based on the isolated part of the work considered out of the context. While applying Hicklin’s test the work is taken out of the whole context of the work and then it is seen that if that work is creating any apparent influence on most susceptible readers, such as children or weak-minded adults.

2. Roth Test

In 1957, a new test was developed by US courts to judge obscenity in case of Roth v. United States, In this case it was held that only those sex-related materials which had the tendency of exciting lustful thoughts were found to be obscene and the same has to be judged from the point of view of an average person by applying contemporary community standards. This test was sharper and narrower than the Hicklin’s test as it does not isolate the alleged content but limits itself to the dominant theme of the whole material and checks whether, if taken as a whole, it has any redeeming social value or not.

Indian Courts on Obscenity:

Indian Judiciary for the first time defined obscenity in the case of Ranjit D. Udeshi v. The State of Maharashtra. In this case Hon’ble Supreme Court observed that the test of obscenity is, whether the tendency of the matter charged as obscene is to deprave and corrupt those whose minds are open to immoral influences, but the test of obscenity must agree with the freedom of speech and expression guaranteed under our Constitution. Therefore, sex and nudity in art and literature cannot be regarded as evidence of obscenity without something more.2

The Court went on to admit that obscenity has been understood in the following terms:

(1) That which depraves and corrupts those whose minds are open to such immoral influences.

(2) That which suggests thoughts of a most impure and libidinous character.

(3) That which is hard-core pornography.

(4) That which has a substantial tendency to corrupt by arousing lustful desires. (5) That which tends to arouse sexually impure thoughts.

(6) That which passes the permissive limits judged of from our community standards.

In this case the Hicklin test was applied and given due regard by the court to judge obscenity.3 After this case Hicklin test was continuously liberalized and applied until the recent case of Aveek Sarkar.

In another such case, K.A. Abbas v. Union of India and Anr4, the Hon’ble Supreme Court validated the pre-censorship of content as exception to the right to freedom of speech and expression. However, the court observed that “the censors need to take into account the value of art while making their decision. The artistic appeal or presentation of an episode robs it of its vulgarity and harm and also what may be socially good and useful and what may not.”

While determining that whether a thing presented in a film is obscene or not it should be considered with the context in which that thing is being portrayed and it should not be isolated from the context. Based on this same concept as mentioned, the Supreme Court in case of Bobby Art International & Ors. v. Ompal Singh Hoon while dealing with the question of obscenity in the context of film called Bandit Queen, ruled that the scenes depicting must not be scene in isolation. Hon’ble court said that the so called objectionable scenes in the film have to be considered in the context of the whole film and with the context that film is seeking to transmit in respect of society.

Further, In Chandrakant Kayandas Kakodar vs The State of Maharashtra, the Supreme Court observed that the standards of contemporary society in India are fast changing. The adults and adolescents now have available to them a large number of classics, novels, stories and pieces of literature which have a content of sex, love and romance. In the field of art and cinema also the adolescent is shown situations which even a quarter of century ago would be considered derogatory to public morality, but having regard to changed conditions, are more taken for granted without in any way tending to debase or debauch the mind.

In case of Director General, Directorate General of Doordarshan & Others v. Anand Patwardhan and Another5 in this case an independent filmmaker challenged doordarshan’s refusal to telecast his documentary, giving reason that it contain scenes that could promote violence and it’s telecast would be against the policies of doordarshan. The court held that tough, there are some scene of violence and social injustices in the film but because of this it cannot be said that the filmmaker supports any of that, and this depiction is only meant to convey that such social evils still exist. The Court also held that a documentary couldn‟t be denied exhibition on Doordarshan simply on account of its "A" or "UA" certification. the Court held that a film must be judged from an average, healthy and common sense point of view.

In case of Maqbool Fida Husain vs Raj Kumar Pandey Delhi High Court while dealing with the issue of whether a nude painting depicting ‘Bharat Mata’ can be said to be obscene or not. The court answered this in negative and went on observing that “nudity or sex alone cannot be said to be obscene.”

High Court of Bombay in case of state of Maharashtra v. Joyce Zee alia Temiko observed that, A .customer, above the age of eighteen, who goes to a hotel, where a cabaret show is run, looks forward to be entertained by obscenity and cannot complain of annoyance to which, if any, he shall be deemed to have given his consent.

In the recent land mark judgment of Aveek Sarkar v. State of West Bengal Hon’ble Supreme Court while dealing with the issue of obscenity finally disapproved the Hicklin’s test and adopted the Roth test. The issue was revolving around a picture which was alleged to be obscene in nature.

Hon’ble Supreme Court in this case held that “the question of obscenity must be seen in the context in which the photograph appears and the message it wants to convey.” The Court further said that the correct test to determine obscenity would be, Community Standards Test i.e. Roth test and not  Hicklin Test. The Court observed that in every case related to check on obscenity the material in question to be ‘taken as a whole’. When the matter taken as a whole and it is lascivious and tends to deprave the person who reads, see or hear that material, then only that material can be said to be obscene. The court observed that the Hicklin test is in contravention of IPC. Further court observed that as the terms ‘obscene’ and ‘obscenity’ is not defined in Indian Law, this makes the community standard test to be more suitable for Indian Law Regime, also, the community standards test is more adaptive to any changing society.

Conclusion

Indian Courts have indicated that the concept of obscenity would change with the passage of time, and what might have been “obscene” at one point of time would not be considered as obscene at a later period. Here it is pertinent to note that the acceptable level of obscenity in cinemas, photographs, paintings and literature is still not settled in India, and there is still more to be talked about. Currently one petition has been filed in Hon’ble Supreme Court for regulation of online video streaming platforms contending that these platforms contain obscene and sexually explicit content, and in this regard Hon’ble Supreme Court has issued a notice to the Centre.

In Bobby International case the Hon’ble Supreme Court upheld its own judgment in K. A. Abbas vs The Union Of India & Anr.,6 wherein it was held that Sex and obscenity are not always synonymous, and it is wrong to classify sex as essentially obscene or even indecent or immoral. Further, it cannot be said with any assurance that a novel, film or video is obscene merely because some slang and unconventional words have been used, or there is emphasis on sex and description of female bodies, or there are narrations of feelings, thoughts and actions in vulgar language in it.

It is also important to note that the world's greatest paintings, sculptures, songs and dances, India's lustrous heritage, the Konaraks and Khajurahos, lofty epics, luscious in patches, may be killed by law, if prudes and prigs and State moralists prescribe the definition of obscenity.

With respect to the content available on the online platform, it would be unfair to judge the features of the content as obscene merely because the content depicts sexual contents and vulgar language. Such sexual and vulgar contents are no more unethical or unaccepted social feature, rather such contents represent the present trend. Further, since the online portal provides for proper disclaimer, and warns its audience about the contents, therefore it would be unfair to comment on the nature of the content available as obscene. The only control that is required to be maintained by the content provider is to make proper disclaimer of the contents by mentioning the nature of contents included. Bringing the content under the ambit of Central Board of Film Certification (CBFC), may only be effective to the extent of providing a certificate for the content, however, the power to regulate and censor may not be effective against the online platform, especially when the Bombay High Court has, in Children's Film Society Through CEO V/S Central Board Of Film Certification (CBFC) Mumbai Through Regional Officer,7 observed that CBFC is a certification board and they are not empowered to determine what one wants to watch.

The petition on content regulation of online platforms, is still pending before the Hon’ble Supreme Court, and the final decision on the online content and whether there is any requirement of regulation, will be settled by Apex Court subsequently. However, as on date, the online platform are free to provide contents but a proper disclaimer would be a check in favor of the content provider showing efforts to restrict the content to appropriate audience.