OBSCENITY AND MEDIA

I. INTRODUCTION

The word 'obscene' has been derived from the French term 'obscenities. The Latin term 'obscene originated during the late sixteenth century, meaning ill-omened or abominable, which also sums up something offensive to society's accepted contemporary standards of decency and morality in legal terms. Ironically, obscenity is always considered in the pretext of sexual conduct or something not soothing to the senses. In contrast, it should be considered the other way round and not given such a narrow definition. The yardstick for defining obscenity should be something that paralyzes and poisons the thought process of any person in society. The word 'obscene or 'obscenity' has been nowhere defined in the Indian Penal Code but set out the parameters of the activities or commission of acts which will amount to obscenity, and the Court follows the Commodity Standard Test in determining whether a particular object, picture, pamphlets contain any obscene material content. The word 'obscene' was initially used for describing anything disgusting, repulsive, filthy or foul. The use of the word is now somewhat archaic or poetic. It is ordinarily restricted to something offensive to modesty or decency, expressing or suggesting unchaste or lustful ideas, or being impure, indecent or lewd. Several countries have laid down obscenity tests depending on the moral principles, decency codes and social structure.[1] If this is what defines obscenity, then the articles or reports published on rape, the most heinous crime against a woman is that not obscenity, because somewhere reading such articles is obnoxious and not soothing to our senses times publication of such crimes add fuel to the distorted brains. Sometimes in the name of reaching out to the public, the digital world poses an immense threat to the accepted standards of society. Once the famous painter, M.F.Husain, canvassed a painting of Goddess Saraswati nude, he had faced severe criticism. It outrages anger among the people who could not accept such artwork as they considered the image derogatory and against the accepted standards of society, according to some. At the same time, some did not find it obscene from an artistic point of view. This creates confusion because opinions and perspectives differ from person to person and from community to community. So, the definition of obscenity depends on that particular society's morals and norms.

II. OBSCENITY AND FREEDOM OF SPEECH AND EXPRESSION

Article 19(1)(a) of the Indian Constitution establishes a guarantee for freedom of speech and expression, which implicitly encompasses liberty of the press and media, as established by different judicial decisions over time. Article 19 guarantees rights that are not absolute and are subject to reasonable limitations. Among the different other rules mentioned under Article 19(2), any act which is against decency or morality is vehemently criticized and not accepted, and the right to freedom of speech and expression stands restricted on this ground and standards of decency or morality when not met out is an essential characteristic that constitutes obscenity. The restrictions were laid with the view to restrict the publication of speeches or reports against the public's morals, which will affect public morality and tranquillity.

In 1965 in the case of Ranjit Udeshi v. State of Maharashtra[2], the Supreme Court had taken into consideration the Victorian-era English test principle held in R. v. Hicklin[3] held that if the material was obscene and tended to subvert or corrupt the people who are likely to come across such material. There were three significant drawbacks of the Hicklin were the terms "deprave or corrupt" had a wide ambit and taking these terms into prosecutions under the Hicklin test would focus on specific words or phrases that were frequently considered as obscene and considering it from the perspective of its effect on people who are likely to come across such material were considered as 'deprave or corrupt' as opined by the Court as "the most vulnerable constituency test". In the Ranjit Udeshi case, the Court held that clarifying that obscenity must be tested by taking into account the work of art as a whole and in the context relevant. Gradually with time, the other drawbacks of the Hicklin test were subsequently liberalized in cases, Doordarshan v. Anand Patwardhan[4], and then in Ajay Goswami,[5] point, the Hon'ble Apex Court shifted from the view of "most vulnerable constituency test" held earlier in Ranjit Udeshi's case to that of the effect on an average, reasonable and strong-minded reader and in Aveek Sarkar case[6], the Supreme Court it expressly abandoned observations of the Hicklin case after a half-century of struggle, replaced it with the word held in 1957 American issue of in Roth v. the U.S.[7]. It was held that:

"The test for evaluating obscenity, enough to overcome the claim of constitutional infirmity, is whether the primary topic of the material, taken as a whole, appeals to prurient interest to the ordinary person, adopting contemporary community standards."

The dignity of a woman is constitutionally protected. Publication of any such material derogatory to a woman is prevented and prohibited by the supreme law of the land and hence protects women and children from any such media projections which are likely to affect the thought process and mindset of a human being and always kept under constant check and if violations are made in this regard strict actions are taken and imposes statutory limitations laid down under the Indian Penal Code, 1860, the Indecent Representation of Women Act, 1986, and The Cinematograph Act, 1952.

. Its present meaning is based on the Miller Test, established by the Supreme Court in Miller v. California in 1973. To be judged obscene, content must pass all three parts of this test. When a piece of content is deemed vulgar, it is not protected under the First Amendment. Since the initiation of the Internet, there has remained a rebirth of interest in the concept of obscenity and the laws that govern it. Words and pictures are being transmitted quicker and further than ever before because of advances in digital technology. Although most of the material on the Internet has real societal value, there is a significant quantity of stuff that even the most liberal-minded would deem dubious. Pornographic websites abound, as most Internet users are aware, and are freely accessible to everyone. "The pornography business has become among the most active advertisers on the Internet," says J. Robert Flores of the National Law Centre for Children. Only a select few people nowadays can avoid [pornographic material]".

Furthermore, Forrester, an American research firm, projected that the commercial Internet market for pornography was approximately $1 billion in 1998, a ten per cent increase over the previous year. The online pornography business is booming. Although some may be concerned about its rapid development, it is essential to remember that pornographic content is not prohibited until it passes the Miller Test for obscenity. In Miller v. California[8], the United States Supreme Court established a standard for obscenity. The Supreme Court, using Hicklin's Test[9], stated that the pertinent questions are:

● "Whether the ordinary individual, using current community norms, would conclude that the work as a whole appeal to the prurient desire.

● Whether or whether the work shows or describes the sexual activity as defined by the applicable state legislation in an objectionable way.

● Whether the work has substantial literary, aesthetic, political, or scientific worth as a whole."

The famous Director General, Directorate General of Doordarshan v. Anand Patwardhan related to these Hicklin's exam questions.[10]

Obscenity is defined under the Obscene Publications Act of 1959. as "anything which tends to deprave and corrupt individuals who are likely, having respect to all relevant circumstances, to understand, see, or hear the material included either incorporated in it."

III INDIAN LAW ON OBSCENITY

Under The Information Technology Act, 2000

Section 67 of the Act prohibits obscene materials in electronic form and prescribes Punishment for its violation. "Whoever publishes improper information in electronic form is liable, transmits, or causes to be published in electronic form, any material which is lascivious or appeals to the prurient interest, either if its effect is such as to tend to deprave including evil characters who are likely, should regard to every relevant factor, to read, see or hear the material included or embodying the case held or including the issue stopped.

Punishment for publishing or sending content comprising the sexually explicit Act, etc., in electronic form, according to Section 67-A. Any substance containing sexually specific Act or conduct shall be punished on first conviction with imprisonment of either description for a term that may extend to five years and a fine that may extend to ten lakh rupees, and on second or subsequent conviction with imprisonment of either description for a term that may extend to seven years and a fine that may extend to ten lakh rupees. Whoever publishes, transmits, or causes to be published, transfers, or causes to be published, shares, or causes to be published, ships, or causes to be published, transmits,

Section 67-B. states, Punishment for publishing or sharing material depicting children in sexually explicit Acts, etc., in electronic form. -Whoever, Publishes gives or causes to be distributed or communicated in any electronic form anything depicting children engaging in sexually explicit acts or conduct; or gathers searches for, browses, and generates text or digital images Creates text or digital pictures, gathers, searches, browses, downloads, advertises, promotes, swaps, or distributes anything in any electronic form portraying minors in obscene, indecent, or sexually explicit ways;

Cultivates entices or encourages children to engage in online interactions with one or more other children for including sexually specific Acts or in a way that may offend a rational adult on a computer resource; or

Facilitates child abuse about sexually explicit Acts with children shall be punished on a first a conviction for custody of either description for a term that may extend to five years and with a fine that may elongate to ten lakh rupees, and on a second or following conviction for the imprisonment of either description a period that may extend to 5 years, including with a penalty that may extend to ten lakh rupees.

It must be noted that both are under the Indian. Penal Code, !860 and Information Technology Act 2000, the test to determine obscenity is similar.[11]

Section 68 of the Act states the Power of Controller to Give Directions. It states

(I) By order, the controller may require a Certifying Authority, either any representative of such Authority, to take such steps or cease carrying out such activities as stated to ensure compliance with the terms of this Act, its rules, or any regulations issued thereunder.

(ii) Any person who fails to comply with any order issued under sub-section I commit an offence and is punishable by imprisonment for a term not exceeding three years or a fine not exceeding two lakh rupees, or both.

The ingredients of an offence under this section are:

a) Publication or transmission in the electronic form.

b) Lascivious material appealing to prurient interests.

c) Tendency to deprave and corrupt persons.

d) Likely-audience

e) To read, see or hear the matter contained

or embodied electronic form.

The word "publish" has not been defined under

the Act. However, the Supreme Court held in Bennett Coleman & Co. v.

Union of India that The term "publish" refers to

"dissemination and distribution." Publication or transmission of

information in electronic form involves distribution, storage, and circulation.

Section 2 (1) (v) defines information as "information." that Data,

text, pictures, sound, speech, codes, computer programmes, software, and databases,

as well as microfilm or computer generated microfiche; as a result, the obscene

the content might take any of these forms to be prosecuted beneath Section

67. This section calls for the prohibition of "obscene content in

electronic form" be considered separately to determine whether it is so

gross and its obscenity so determined that it is likely to deprave and corrupt

people with receptive minds to such influences and into whose hands the

'obscene material in electronic form' is expected to fall. It is important to

note that any offence involving As stated in section 81 of the ITA, obscenity

in electronic form cannot be prosecuted under section 292 of the IPC take

precedence: "The provisions of this Act shall have an effect notwithstanding

anything inconsistent with that that is included in any other currently in

effect statute." As a general rule, charges involving 'obscenity in electronic

form' should be prosecuted under the provisions of Section 67 exclusively, and

any effort to import provisions from Section 292 of the IPC would be a

violation of the legislative intent of the Act and result in a miscarriage of

justice[12]. But, in the recent

judgment of Avnish Bajaj v.

State (NCT of Delhi)[13], both the provisions were considered together in concluding. Furthermore, Section 67 of the ITA is worse than the penalty under Section 292 of the IPC. Section 67 is also being chastised. It is simple for a person to avoid criminal charges by demonstrating his ignorance of the publishing or transferring obscene content in electronic form. Moreover, though publication or transmission of improper information may be illegal but mere possession, browsing or surfing through obscene content is not an unlawful activity. The issues related to the publication of wrong information in electronic form have to be looked at from the perspective of 'extra-territorial jurisdiction and Internet technologies, keeping in view that 'obscenity' is no longer a local or static phenomenon. It is now global and dynamic and thus needs strict interpretation of the statute.

Further, section 75 of the Act states-

Act to apply for an infraction or violation

committed outside of India (1) Subject to subsection (2), the provisions of

this Act applies to any offence or offence committed outside India by any

person, regardless of nationality. (2) For paragraph (1), this

The Act applies to any person who commits an offence or contravention outside India

if the Act or behaviour constituting the crime or contravention includes a

computer, or computer network situated in India.

Under The Indian Penal Code 1860

Section 292 of

Indian Penal Code describes obscene materials. It states

that a book, pamphlet, paper, writing, drawing, painting representation,

the figure or any other object is It is improper if it is lascivious or appeals to

the passionate desire, or if its impact, or (when it consists of two or more

separate items) the effect of any one of its items is obscene, is such as to

deprave and corrupt persons who are likely, having regard.

The Obscene Publications Act created Section

292 of the Indian Penal Code, 1860, to carry out Article I of the International

Convention for the Suppression of Circulation.[14]

Section 293of the Act

prohibits the sale, etc., of obscene objects to young persons. It states that

whoever sells, hires, distributes, exhibits, or circulates to any person under

the age of twenty years any such obscene object, as defined in IPC Section 292

(definition below), or offers to do so, shall be punished (on a first conviction,

with imprisonment of either description for a period that may extend to three

years, and a fine that may extend to three years).

The Young Persons (Harmful Publication) Act, 1956

The term "harmful publication" is defined under Section 2 of this Act. It states that a harmful publication is any book, magazine, pamphlet, leaflet, newspaper, or other similar publication that consists of stories told with or without the aid of pictures, or wholly in pictures, being stories portraying altogether or mainly incidents of repulsive rather horrible nature; in such a way where the publication as a whole tends to corrupt a young person into whose hands.

Section 3 of the Act establishes penalties for the sale, distribution, and distribution of damaging publications. (1) If a person(a) sells, hires, distributes, publicly exhibits, or in any other way puts into circulation any harmful publication, or (b) prints, makes, or produces or has in his possession any harmful publication for sale, hire, distribution, public exhibition, or circulation, or (c) advertises or makes known, in any way, where such damaging publication can be acquired.

The Prasar Bharati (Broadcasting Corporation of India) Act, 1990

Section 2 This Act defines broadcasting as "the dissemination of any form of communication such as signs, signals, writing, pictures, images, and sounds of all kinds by the transmission of electromagnetic waves through space or through cables intended to be received by the general public either directly or through the medium of relay stations," as well as "all grammatical variations and cognate expressions."

The Protection of Human Rights Act, 1993

Section 2 of this Act states that Human rights are defined as the rights of individuals to life, liberty, equality, and dignity guaranteed by the Constitution or enshrined in international treaties and enforced by Indian courts.

The Indecent Representation of Women (Prohibition) Act, 1986

Section 2(C) Indecent representation is defined in the Act as "the depiction in any manner of the figure of a woman, her form or her body or any part thereof in such a way as to have the effect of being indecent or derogatory to or denigrating women, is likely to deprave, corrupt, or injure the public morality or morals."

Cable Television Networks (Regulation) Act, 1995

This Act prohibits the telecast of programs on cable television, which offend decency & morality & visits a contravention with imprisonment & fine. Sec 5 of this Act read with Rule 6 (1) (o) of the Cable Television Networks Rules, 1994 prohibits the carriage of programs that are not suitable for open, public exhibition. Sec 5-A talks about "unrestricted, public display.

IV ROLE OF MEDIA AND OBSCENITY

In this period of technology, the system has become a global village, and information can be exchanged one swipe away. Technology is often compared to a coin having both advantages and disadvantages, and at times, the effect of technology can be nasty on society. It leads to victimization and an increase in crimes. With the advent of globalization and developing media, the content and information circulated or delivered have become vulnerable. Obscenity and pornography are two terms often used interchangeably and due to cut-throat competition amongst various branches and to get hold of viewers and readers to increase TRP's they usually take the escape channel of calling it as modernity and helping in uplifting the society and bringing in the transformation from following conservative stereotypes practices as the proper definition of obscenity as not been given apart from stating that the contents affect on ordinary people as a whole who are likely to come across the range. Nowadays, the television channels are primarily up with adult content, the entertainment channels where music videos are played where a woman is half-dressed. To cope with competition, some content is shown in the name of news that doesn't soothe the senses. The advertisements relating to contraceptives and deodorants of males always have the catchphrase of "attracting girls" as if apart from that the deodorants have no purpose of serving and also innerwear's which at times are banned because of the content displayed. The detailed description published regarding rape articles does reach all sections of society. It is a well-accepted fact now. In this present century, media plays a vital role in shaping our lives because, whether accepted or not, the contents displayed directly connect with the actual violence committed. Out of ten soaps and daily shows that are played, eight project violence or crime stories, which in a way sends a wrong message to the society and engaging in pre-marital sex, marital affairs, carrying out conspiracy amongst members, if this is not obscenity, then what is. Obscenity does not only relate to sexual conduct but is always clubbed with indecency, immorality and has a broad ambit. Most importantly, are we promoting obscenity in the name of modernity? It's high time we should give it a thought.

V CONCLUSION AND SUGGESTIONS

It is said obscenity is a subjective term, and it lies in the eyes of the beholder. However, they should still be more careful while publishing or circulating content and make sure what reaches the public does not deprave, corrupt, or injure their thought process because society is going to be victimized in the long run. Obscenity has no measuring yardstick accurate, but it becomes essential and crucial on our part to raise voices against the information circulated or delivered if it is felt that the content displayed fails the test of decency and morality and that we are not like blindly following the western footprints trends because at the end of the day it's affecting is borne by the society at large as the visual display has more affect on the minds of the community.

[1] Devidas Ramchandra Tuljapurkar v. State of Maharashtra, AIR 2015 SC 2612.

[2] AIR 1965 SC 881

[3] L.R. 3 Q.B. 360 (1868) Court of the Queen's Bench

[4] 1996(8) SCC 433

[5] AIR 2007 SC 493

[6] (2014) 4 SCC 257

[7] 354 U.S. 476:Volume 354:1957: U.S. Supreme Court Cases

[8] Miller v. State of California 413 US 15

[9] Regina v. Hicklin, 1868 L.R. 2 Q.B. 360.

[10] Director-General, Directorate General of Doordarshan v. Anand Patwardhan, 2006 (8) SC 255.

[11] M. F Husain v. Raj Kumar Pandey, 2008 CrLJ 4107 (Del).

[12] Vakul Sharma, Information Technology- Law and Practice, Universal Publisher

[13] Avnish Bajaj v. State(NCT of Delhi) Delhi H.C. Judgment dated 29.05.2008

[14] Ratanlal & Dhirajlal, The Indian Penal Code 482(35th ed., Lexis Nexis, 2017).