“Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties.” – John Milton, Areopagitica.
The reason for the success of democracy is that it offers its citizens is to express their views, ideas, thought, expression, belief, opinion or faith without any fear of retribution, repression, restriction or any other form of state’s arbitrary control from the government. Through speech, humans convey their thoughts. The right to freedom of speech includes the freedom to hold opinions without interference and to seek and receive and impart information and ideas through any media and regardless of frontiers. Article 19(1) (a) of Indian Constitution guarantees to all citizens the right to freedom of speech and expression. Freedom of Speech and expression means the right to express one's opinions freely by either by words, writing, painting or any other form of art. But at the same time, there are a certain restrictions to freedom of speech and expression, called as reasonable restrictions and they are:- 1) Security of State 2) Friendly relations with foreign states 3) Public Order 4) Decency or morality 5) Contempt of Court 6) Defamation 7) Incitement to an offence 8) Sedition
CONCEPT OF DECENCY AND MORALITY UNDER ARTICLE 19(2)
The reason man is called crown of creation because he lives a social life; a certain degree of decency and morality is required otherwise society is bound to decay. It is imperative to the curb carnal and low instincts of its members; hence, it was felt to include “decency or morality” in Art. 19(2).
Section 292 of the Indian Penal Code defines ‘obscenity’. Obscenity has been defined by the Supreme Court as ‘the quality of being obscene which means offensive to modesty and decency; lewd, filthy and repulsive’ Indecency is a concept wider than obscenity and although, anything that is obscene must necessarily be indecent, what is indecent need not always be obscene.
Some of the offences are selling of obscene books, selling obscene things to young persons, or committing an obscene act in a public place, which is listed under Section 292 of the IPC. The trial of indecency is whether the propensity of the issue charged as indecent is to deny and degenerate those whose psyches are available to such corrupt impacts, and into whose hands a production of this sort is probably going to fall. In a landmark judgment decided by the Supreme Court, it was observed that the concept of decency and morality vary from country to country, depending upon the standards of morals in contemporary society
The inquiry with reference to when some expression or distribution was indecent or obscene emerged in a landmark case. Mr Ranjit Udeshi, a partner of a firm which owned a bookstall in Bombay, was prosecuted and convicted under section 292, for possession of an obscene book ‘Lady Chatterley’s Lover’, which was unexpurgated edition. He appealed to the Supreme Court which upheld the conviction. The court held that the opinions of the literary or other experts were not relevant to the question of whether a publication is obscene.
In another landmark case, the Supreme Court has given fairly more extensive significance to the term conventionality and ethical quality. The court kept up that 'conventionality' or 'profound quality' isn't limited to sexual ethical quality alone. Fairness demonstrates that the activity must be incongruity with the present guidelines of conduct or legitimacy.
OBSCENITY AND NUDITY
The Supreme Court, in various decisions, distinguishes between mere references to sex or sexual explicitness from obscenity or indecency. In a landmark judgment, the Supreme Court held that “Sex and nudity in art and literature cannot be regarded as evidence of obscenity without something more.”
Similarly, in another landmark case of K. A. Abbas v. Union of India, the Hon’ble court was of the opinion that sex and obscenity are not always synonymous. In Bobby Art International v. Om Pal Singh Hoon (The Bandit Queen), Court allowed the screening of the film showing rape and frontal nudity, because the impugned scenes advanced the message of the film and held film would have lost impact and message had the scenes been deleted.
TEST OF OBSCENITY
Earlier Hicklin test was used to decide indecency, but it is no longer used now because it sets out an unclear and discretionary standard for judging vulgarity and tends to diminish the ensured appropriate to the right to speak freely and articulation.
The Supreme Court in the Bobby International Case held that the scenes depicting nudity must not be seen in isolation. The scenes have to be construed in the context of what they want to portray or convey. Hence the yardstick to decide obscenity of art is to be understood through the lens of what they want to convey. The objective of moviemaker was to depict how Phoolan Devi due to torture and violence suffered as a female child forced her to change into a dreaded dacoit. Nowhere the intention was to show nude scenes was to satisfy the lust of depraved but to arouse the sympathy for the victim and disgust for the perpetrators.
The acceptable level of obscenity o in films or any other forms of art is ambiguous in India. Section 292 of the Indian Penal Code deals with issues of obscenity and depravity.
The United States in Roth v. United States observed that terms such as sex and obscenity are not synonyms. It was held that only those sex-and obscene materials which have the tendency of arousing the impious thoughts were construed as improper.
The Court had observed in Aveek Sarkar that the decisions in such issues of nudity and obscenity have to be taken by taking into consideration contemporary national standards and not the group of sensitive persons. The court reiterated the society is dynamic and in such scenario fixing rigid standards for determining a crime which is based on the perspective and acceptance of the society is wrong. The weightage should be given to what message is portrayed through obscene material rather than just outrightly ban what is considered to be obscene.
The Supreme Court should be lauded for striking rigid Hicklin test and upholding the more adaptive Community Standards test.