Looking back towards the origin of the term ‘Pornography’, it is derived from the word, ‘pornographos’ which means that it contains writing about the prostitutes and it is often commonly attributed with sexual explicit content carried out for profit making motive and to obtain large viewership. When India is considered, such kind of content is condemned and considered to be an aggravated form of obscenity.
Provisions relating to Pornography in India
Indian Penal Code, 1890
When we try to find a particular provision, which tries to deal with the elements of pornography, it cannot be found directly within that of The Indian Penal Code and it is generally brought within the purview of Section 292 of The Indian Penal Code, 1860 which deals with the element of obscenity and imposes liability of criminal nature for the sale, distribution and propagating of such obscene content. But this element of obscenity should not be subjected to a standard form of test because it changes with the changing dimensions of the society and The Hicklin’s Test which was laid down stated that the tendency of a particular matter which is considered to be obscene is to deprive as well as corrupt those minds which are considered to be open to such kind of influences and into the hands of those a publication of this sort may fall.85
But the various terms like obscene, deprave a well as corrupt and impure nature have not been anywhere defined and thus this test is amounted to being subjective in nature and the Indian Courts from time to time has applied this principle in many a case with regard to imposition of restriction of freedom of speech and expression. It is opined by the Courts that the test for obscenity is like treating with sex in a way appealing to the carnal sides of a human being or having that particular tendency.
The Constitution of India, 1950
The Court had also stated that the freedom of speech and expression which is provided under Article 19 of The Constitution of India, 1950 can be subjected to reasonable restriction. The approach which is taken by the legislature as well as the judiciary has completely been flawed when it comes to the private use as well as enjoyment of a pornographic material of violating decency and morality. The State has completely failed to demonstrate the concept of harm as well as the inherent immorality of sexual expression as well as sexual stimulation through the pornographic works.
Though in the case of Naz Foundation v. Government of NCT, The Delhi High Court took the right of privacy to all together a commendable approach and held that “privacy distinguishes a right to a sphere of private intimacy as well as autonomy which allows us to establish as well as nurture human relationships without interference from the outside community.” But whenever a case regarding such appears before the court, it is in every scenario that the judge while deciding is expected to place himself or equate with the position, the author or the producer and to have a look whether such author or producer have propagated some literary as well as artistic value to the viewers having honest ideas and intention.
The Debate of Morality
There have been various number of debates that have been taking place all around the world between the western modernized and the conservatives to impose a complete ban which is advocated by the conservatisms loving people.
The Conservatives: A strong attack has been brought into by the feminists who have a view regarding the male dominance in such activities and the paternalistic mind-set of the society88. The people against the liberal view consider such materials to be responsible for ruining the morality. It is also stated that such a thing is known as legal paternalism in which the Government by imposing such restrictions and measure, take care of their citizens. The conservatives have always stated that sexually explicit content can be curbed down by The State to uphold and enforce a moral standard and also to prevent the citizens of a state from engaging in activities that ultimately offend the prevailing community standards of morality as well as decency. The feminist from the very beginning, have objected to pornography because they consider that the pornography mainly focuses on the exploitation of women and not primarily on the moral grounds.
The Liberals: The people who have adopted a liberal view on this point, they take the stand of individual freedom and choice against the state regulation. With regard to that of freedom of speech and expression, as well as with regard to privacy, the liberals have defended their stand and continue to communicate that it is all about a private taste of individuals. The people who want to refrain themselves from pornographic material can abstain from doing so and the entire discussion boils down to the point about the need of a particular system of law to censor pornographic material. How a person should live, or how a person should express cannot be controlled and it would negate the individual freedom. In the name of expression of sexuality, if an individual act consensually without harming any other, there cannot be any restriction put on such kind of activity. The pornography liberates the women out of the traditional shackles and the stereotypical orthodox mind-set is curbed down and can be considered as an important tool for the exploring as well as expressing minor forms of female sexuality. Thus, having a system of complete censorship in the cases of all the pornographic material does not suffice to the general development.
Now according to the present scenario, the manufacturing as well as viewing of pornography are considered to be expression of one’s sexuality, it should necessarily conform within the sphere of privacy and the other reasons for the legislations treating all these contents under a same parameter is because of bringing or narrowing down everything in the heading of ‘obscenity’ and there is no difference made between public viewing and private consumption. The content of these materials generally ranges from eroticism, obscene, demeaning as well as child pornography. Now, to call or mark something obscene, is to condemn it directly that all the pornographic materials suffer from obscenity which is not always the case according to various levels of perception. The Court when is baffled with such dispute should consider in depth the issue that whether the pornography construed as speech which is intended to communicate ideas and whether the freedom of speech as well as expression of persons who are engaged with such a material should be weighed and compared to against the rights as well as other interests.
The best way to approach to the problem of obscenity is defining it preciously. The legislation should define what is obscene in present time, as the society is changing very fast. Law should distinguish between what is offensive and what is obscene. There is need to set out a community standard for obscenity. The people living in community should know what is permissible and what is not. When we have a look towards the fault which is with the current Indian Law, it is seen that there are conflicting decisions which gives rise to a confusion. The court has interpreted the word in a way to mean what is indecent, lewd, filthy as well as repulsive. The various criteria which have been considered to be a part of trial regarding the cases for obscenity exclude the elements of habit as well as flagrancy and if this is tantamount to proscribing criticism of outmoded and unsuitable conventions then the law of obscenity constitutes indeed a deplorable limitation on freedom of expression just like it is very difficult to determine the nebulous because how do you determine the scale, it varies from one person to another and according to the taste of the readers. Like someone may be tilted towards reading erotic novels, does not mean that he is always in a daze. So even a word can fill someone’s mind with obscene thoughts and it is pretty much hard to measure such a thing. Therefore, the laws are needed to be very precise and the definition of ‘obscenity’ should be provided and the test should be laid down with regard to the present scenario to determine the element of obscenity.
By Shatabdi Nayak, 2nd Year law student pursuing BA.LLB from Damodaram Sanjivayya National Law University, Visakhapatnam.