Apar GuptaA labyrinth is one of the many metaphors employed to describe the confusion caused due to the lack of a clear path laid out by law. A recent example is India’s law on obscenity. Last weekend, the Department of Electronics and Information Technology issued directions to internet service providers to block access to 857 websites. Most hosted pornographic content, while others were comedy sites.
This action stands in contrast to a reported comment by the chief justice of India (CJI), stating that the private consumption of pornography is an exercise in personal liberty. As the websites were blocked, many clutched on to the CJI’s remark and wondered if they had a right to access pornography. But there is no clear answer to this. The law on obscenity is a paradox unto itself and captures the hypocrisy prevalent in society — a society in which the values of Victorian England have been adopted and branded as Indian.
Constitutionally, any restriction on the exercise of free speech is required to strictly arise within one of the grounds contained within Article 19(2). Within this limit, legislation can create a reasonable restriction and abridge expression. One such ground is “morality and decency”. The relevant legislation that codifies the offence of obscenity is Section 292 of the Indian Penal Code. The leading case on obscenity relates to the prosecution of four partners of Happy Book Stall in Bombay for selling D.H. Lawrence’s Lady Chatterley’s Lover. In 1962, the Supreme Court, upholding the conviction, adopted the Hicklin test, a legal test for obscenity established in an English case in 1868. This archaic test went through a revision only last year.
In 2014, when confronted with the prosecution of tennis star Boris Becker, the SC expressly rejected the Hicklin test to adopt the much more modern “community standards” test. It reasoned that mere nudity by itself does not amount to obscenity, which should be determined as per contemporaneous social mores. It said that as social values change, so should the interpretation of law. In doing so no clear judicial standards were pronounced, continuing the uncertainty and arbitrariness inherent in the application of Section 292. Further, the doctrine of community standards requires the evaluation of the obscenity by members of a local community, ordinarily determined by a jury trial. Given that in our country judges make such factual determinations, there arose no quarter for the importation of such a principle in Indian law.
Even beyond the individual criticisms of that case, the ambition of the court to make the law liberal has not been without contradiction. In the midst of protests about the December 16 gangrape, the SC was petitioned by an Indore-based advocate under the ever-expansive public interest jurisdiction. The plea, which is still pending adjudication, asks for the creation of a web filter and challenges the constitutionality of Section 292 of the IPC. This is not to get rid of the offence but to make it more stringent. Some high courts have, in the past, determined that the private consumption of obscene content was not punishable, since the provision only criminalised its sale and distribution.
This seemed insufficient to the petitioner and the SC, seeing some merit in his argument, has issued successive orders to the government asking it to devise a solution, even calling the litigation “non-adversarial”. The government has reportedly asked the petitioner to furnish websites and sought to go along with this court-monitored exercise of blocking websites. It is in the middle of arguments in this case that the CJI seems to have questioned the legality of a largescale block. This throws doubt on the success of the petition, which may even be dismissed. However, such a dismissal would at most only strengthen the right of access.
A survey of the law of obscenity not only displays a palpable tension between access and distribution, but also between individual practice and social norms. Where at one end of the rope consumption increases due to technological advances, on the other, mores pull the law towards a more conservative reading. As a result, the law is stretched in opposite directions. Such hypocrisy rises as a national discussion on pornography is avoided. But a discussion is urgent and it must question the very basis for criminalising obscenity, and its continued utility. This is not an exercise in statutory interpretation or constitutional challenge, but of legislative repeal.
This article was originally published in The Indian Express on August 6, 2015.