Introduction
One of the basic fundamental rights that any human being will ever acquire on birth is the Freedom of Speech and Expression. It is by virtue of this right that every person has the liberty to express themselves and to convey their thoughts, speech and feelings. Freedom of Speech and Expression is the cornerstone of a vibrant democracy, allowing citizens to voice their thoughts, question the authorities and participate in public discourse. This right is enshrined in Article 19 (1) (a) of the Constitution of India, 1950 guaranteeing every citizen the liberty to express their views through speech, writing or any other form of communication. However, this freedom is not absolute, Article 19 (2) of the Constitution of India, 1950 imposes reasonable restrictions in the interest of sovereignty, security, public order, morality and defamation.

The scope of free speech as per Article 19 (1) (a) has been broadened to encompass the right to receive and transmit information. In India, the exercise of free speech has been both celebrated and contested. Over the years, the Hon’ble Supreme Court has time and again reinforced the importance of this right while also defining its boundaries. With the rise of digital platforms and the advent of modern technology and rapid advancements in the dissemination of information, there has been renewed interest in the regulation of obscenity laws in India. India, at both national and state levels, has taken various measures to strike a balance between individual liberty and the greater public interest. Internationally, the United Nations has addressed the issue of obscenity through the International Convention for the Suppression of the Circulation of Obscene Publications, which seeks to protect the public, particularly youth from exposure to erotic content. Under Indian Law, obscenity is broadly defined as any material or conduct that primarily appeals to prurient interests or voyeuristic tendencies, or that depicts sexual conduct in an explicit and offensive manner. Legally, obscenity encompasses indecent expressions that may be communicated through speech, actions or gestures.

When determining whether certain material qualifies as obscene, the Hon’ble Courts frequently refer the Miller Test derived from the U.S. Jurisprudence. This test establishes three essential criteria, all of which must be satisfied for content to be legally deemed obscene. In India, obscenity includes any material that offends modesty, decency, or morality or is considered lewd, repulsive or offensive to societal standards. The terms decency and morality are closely intertwined with obscenity in India. Decency refers not only to the avoidance of obscene language or gestures, but also to broader societal expectations of civil conduct, both in public and private spheres. This legal interpretation ensures that decorum and morality are preserved in accordance with community standards. Offences such as indecent exposure and indecent publication are recognised as criminal actions under the Indian Law.

Vulgarity Versus Obscenity
Vulgarity refers to language or actions that provoke disgust or revulsion but it does not necessarily degrade an individual’s moral standing. Obscenity, however, is more destructive as it is intended to corrupt the minds of individuals susceptible to immoral influence. As a result, which vulgar material, may be offensive but it does not always meet the legal threshold for obscenity. For instance, in a notable decision popularly known as the AIB roast case, the Hon’ble Bombay High Court restrained the police from arrest any of the four stand up comedians regarding the FIR registered against them in Pune holding that while their material was vulgar, it did not qualify as obscene. This distinction underscores the legal precision with which the Hon’ble Courts analyse the language.

Obscenity and Media in India
India is one of the world’s largest democracies and has a dynamic relationship with mass media. The introduction of mass communication tools such as print media, film screenings and radio broadcasting dates back to the early 18th century. However, disputes over the nature of what is communicated, disseminated or published have persisted throughout history. One recurring issue has been the public’s reaction to content perceived as conflicting with societal norms, often categorising such content under the umbrella of ‘obscenity’. With the rapid expansion of mass media over the past decade, the necessity for a clear and consistent legal standard for obscenity has increased. The advent of digital platforms and the internet has provided artists with new avenues for expression alongwith traditional media such as literature, cinema and paintings.

Legal framework governing obscenity and indecent representation in India
Section 292 of the Indian Penal Code, 1860 criminalises the sale, distribution or production of obscene material, defining such material as that which appeals lascivious, salacious or voyeuristic interests and has the effect of depraving the minds of individuals in a sexual context. Section 293 of the Indian Penal Code, 1860 prescribes punishment for anyone engaged in the sale or distribution of obscene materials, while Section 294 penalises acts performances involving obscene songs or gestures in public. However, the Indian Penal Code, 1860 exempts certain works from the purview of obscenity if they serve the public interest, including materials related to literature, science, history or religion. While these sections seek to address moral concerns, they are often critiqued for conflicting with the fundamental right to freedom of speech and expression under Article 19 of the Constitution of India, 1950. To reconcile these tensions, Article 19 (2) of the Constitution of India, 1950 imposes reasonable restrictions on the right to freedom of speech in the interest of public order, decency, or morality.

Legal Inconsistencies and Judicial Struggles
The Indian Legal System, particularly the judiciary has been tangled with the challenge of defining obscenity while trying to strike a balance between individual rights of expression and societal morals and values. Several cases have highlighted the subjective nature of what is called to be “obscene”. For instance, a Non Governmental Organisation (NGO) based in Mumbai had filed a complaint against a famous Bollywood actor over his nude pictures on social media. Thereafter an FIR was registered under Sections 292, 509 of the Indian Penal Code, 1860. The FIR stated that India as a country has a ‘good culture’ but due to such pictures everyone’s sentiments are hurt. In 2014, a nude poster of another Bollywood Actor released for his movie prompted a civil case, labelling the act as “vulgar and obscene”. In 1995, a controversial print advertisement for Tuff shoes featuring two famous models posing nude with a python was deemed to be obscene and pulled from circulation. A Learned Magistrate had convicted and ordered imprisonment and fine against a book publisher for selling a book which was found to have contained “obscene matter”. The Hon’ble Bombay High Court was pleased to dismiss the appeal. Recently, a youtuber faced multiple FIRs including one on Guwahati for his alleged promotion of obscenity in a publicly accessible online show leading him to move to the Hon’ble Supreme Court to challenge these FIRs.

Judicial Precedents on Obscenity
The legal view of obscenity in India has been a subject of considerable judicial scrutiny, with the Hon’ble Apex Court repeatedly confronting the issue through a variety of precedents. The Hon’ble Apex Court has maintained that the determination of what constitutes obscenity is not susceptible to a fixed or uniformed standard as the judgement must be grounded in the specific facts and circumstances of each case. This evolving jurisprudence reflects the ongoing tension between safeguarding public morality, preserving freedom of expression and going along with societal norms which change according to time and cultural contexts.

In Ranjit D. Udeshi Versus State of Maharashtra¹, the Hon’ble Supreme Court adhered to the Hicklin test which had its origin in R versus Hicklin (1868) to assess the obscenity of the book The Lady Chatterley’s Lover. The Court upheld the conviction of the Appellant, a bookseller, for violating Section 292 of the Indian Penal Code, 1860 by selling the book, despite the Defendant’s assertion of ignorance regarding the book’s content. The application of the Hicklin test which determines obscenity based on its potential to deprave and corrupt and minds was deemed appropriate by the Hon’ble Apex Court reinforcing the legislative stance on regulating potentially harmful literature.

The modified Hicklin Test adopted by the Hon’ble Supreme Court in the said case has continued to followed by the Hon’ble Supreme Court in a host of cases. In several decisions, the Hon’ble Apex Court has held that nudity or vulgarity by itself is insufficient to constitute obscenity. If a work propagates an idea or conveys a social message, the fact that it contains sexual or nude scenes, description of human anatomy, or even abusive language is not enough for it to be considered obscene. Bad taste is not obscenity. However, if the work in question sexually arouses the reader or viewer, it will almost certainly be considered obscene.

In Chandrakant Kalyandas Kakodkar versus State of Maharashtra², the Hon’ble Apex Court was considering whether a short story called ‘Shama’ published in 1962 Diwali issue if a monthly Marathi magazine called Rambha was obscene.

Thereafter in 2014, The Hon’ble Apex Court overruled the Ranjit D. Udeshi Judgement in Aveek Sarkar versus State of West Bengal³ wherein the Hon’ble Bench was pleased to abandon the Hicklin Test in favour of the Community Standard test. The Hon’ble Apex Court ruled that a semi nude photograph could not be deemed obscene unless it had the potential to elicit thoughts or corrupt the minds of the average viewers. The Community Standard Test entails evaluating material in its entirety and considering its potential to corrupt an ordinary viewer, thereby introducing to a more flexible and context sensitive standard for assessing obscenity.

In S. Khushboo Versus Kanniammal⁴, the Hon’ble Apex Court was considering whether statements made by a well known South Indian actress during an interview and reported in the press were obscene. The actress had said there was an increasing incidence of pre marital sex among live in couples and that this should be accepted. The Hon’ble Apex Court took note of the fact that Khusboo had not described the sexual act or said anything that could arouse sexual desires in the mind of a reasonable and prudent reader.

Conclusion
The jurisprudence surrounding obscenity in India remains an area of legal ambiguity, with no uniform or conclusive standards. The Hon’ble Supreme Court has progressively diluted the rigid application of the Hicklin Test and introduced a more sophisticated and contextual evaluative criteria. Nevertheless, the laws governing obscenity remain vague, often allowing judicial discretion to operate within broad parameters, which can be influenced by personal biases or political considerations.

By - Soumya Kamat