Right To Pornography In India: Resolving The Conflict Between Individual Liberty And Public Morality
By Shubhankar Paul
Doctoral Researcher Scholar, Raiganj University, West Bengal, India.
DOI - 10.5281/zenodo.10305897.
ABSTRACT
Sex is a controversial subject in the social fabric of India, often being linked to immoral and prurient values. The current laws criminalize selling, distributing and publicly displaying obscene or pornographic material. The primary concern underlying this is safeguarding of public morality and decency. But such laws lead to the violation of individual liberty and moral independence of a person who wishes to enjoy pornography as his right to view, read or enjoy pornography (that could be read into his Freedom of speech and expression, and/or the right to privacy under the Indian Constitution) is curtailed. This article tries to ascertain if there are certain identifiable standards of obscenity which could be applied to an analysis of a right to pornography. Substantively, however, this article undertakes an exercise in achieving a balance between arguments of public morality and individual liberty and to also address the larger question of whether legalization of pornography is a viable option in the present Indian society.
Keywords: Pornography, Radical feminists, Liberal feminists, Gender violence, Freedom of speech, Sexual Content. etc.
I. INTRODUCTION
Sex is considered a taboo topic in the societal framework of India, as it is associated with impiety and vulgarity. The Indian legal system has mostly preserved this social 'morality' and has established laws in this respect[1]. One specific measure is the act of making pornography illegal. Is it justifiable for a government to prevent citizens from posting or accessing pornography, or would this be an unwarranted infringement on fundamental liberties? This question is central to a debate that raises fundamental concerns about when and why the Government is justified in utilizing its coercive powers to restrict individual Freedom. This shall serve as the focal point of investigation in this paper.
The conventional discourse encompassing pornography, especially in Western nations, has involved religious conservatives, feminists, and liberals as the primary participants. Conservatives and feminists assert that they have the ability to define and legitimately criticize pornography due to its perceived absence of intellectual or artistic value, potential detriment to audiences, and negative impact on societal morals.[2] Their criticisms of pornography aim to negate its status as a kind of communication or conveyance of ideas.[3] Their ideological adversaries contend that pornographic content frequently constitutes exceptional art or, at the very least, contributes positively to sexual autonomy and emancipation.[4]
This article aims to provide a contextual analysis of the prevailing discourse in India to evaluate the effectiveness and legitimacy of the censorship legislation implemented by the Government. The first part of this article will focus on the issues concerning the Indian penal system's definition and handling of pornography and obscenity. Part II will analyze certain ethical and philosophical inquiries on the regulation of pornography. The subsequent portion of this paper will address the constitutional safeguards provided to pornography in various jurisdictions. The Indian context will be used to demonstrate that criminalizing all types of pornography violates constitutional demands related to free speech and individual liberty, raising constitutional problems. The article will argue that the laws regulating the sale of pornography still rely on outdated moral standards from the nineteenth century. It will highlight how these laws fail to adequately protect the Freedom of speech and expression of pornographic producers, as well as the individual liberty of viewers. Consequently, there is a growing demand to legalize pornography.
II. CRIMINALISATION OF PORNOGRAPHY
The portrayal of sexual content that falls under the categories of "pornography" or "obscenity" has not only created a highly lucrative industry but has also been a subject of regulatory scrutiny by the Government and significant social movements. The discourse surrounding pornography commences with a fundamental inquiry: What precisely constitutes it?
The term "pornography" originates from the Greek phrase 'pornographos', which directly translates to "writing about prostitutes".[5] One widely recognized definition of "pornography" in contemporary society characterizes it as sexually explicit content (either verbal or photographic) which is principally intended to elicit sensual stimulation in its audience.[6] When subjective evaluations are associated with this explanation, pornography is seen as sexually explicit content intended to elicit sexual stimulation in customers that is deemed harmful in a certain manner. Various methods exist for defining pornography, with one prominent one being to define it in relation to obscenity as sexually explicit content that is morally offensive. In India, the trend of considering pornography as an exacerbated version of obscenity is also adopted.[7]
While there is no explicit provision in any law that specifically addresses pornography, it has been included under section 292[8] of the "Indian Penal Code, 1860", which deals with obscenity. This section implements penal responsibility for the trade, dispersion, and other activities involving obscene content. The inclusion of this section was mandated by the "Obscene Publications Act of 1925", in order to implement Article, I of the "International Convention for the Suppression of the Circulation of and Traffic in Obscene Publications". India ratified this convention in 1923 at Geneva. Pornography has been banned by both the "Information Technology Act, 2000"[9] and the "Indecent Representation of Women (Prohibition) Act, 1986.[10]"
The term "obscene" has not been explicitly described in the “Indian Penal Code” due to the subjective nature of obscenity, which varies across different societies and evolves with time. The criterion for determining obscenity is provided in section 292(1) of IPC[11], which draws its basis from an 1868 English ruling in the Hicklin Case[12]. In this case, Cockburn, C.J. established the standard for obscenity as follows:
".... the test of obscenity is this, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall. ... it is quite certain that it would suggest to the minds of the young of either sex or even to persons of more advanced years, thoughts of a most impure and libidinous character."[13]
Due to the lack of clear definitions for concepts such as "obscene", "deprave", "corrupt", and "impure and libidinous nature", there is a wide spectrum of possible interpretations, varying from conservative to liberal.[14] The Indian courts have frequently employed this test in numerous cases involving issues of obscenity and limitations on Freedom of speech and expression based on considerations of decency and morality. In one such case[15], the appellants were found guilty under section 292 of the “Indian Penal Code” for the sale and possession with the purpose of selling an explicit book, "Lady Chatterley's Lover" (unexpurgated version). The Court, after considering the Hicklin criteria of obscenity, concluded that:
"In our opinion, the test to adopt in our country (regard being had to our community mores) is that obscenity without a preponderating social purpose or profit cannot have the constitutional protection of free speech and expression, and obscenity is treating with sex in a manner appealing to the carnal sides of human nature, or having that tendency. Such a treating with sex is offensive to modesty and decency but the extent of such appeal in a particular book etc. are matters for consideration in each individual case."[16]
The Court further affirmed that the Freedom of speech and expression, as outlined in Article 19 of the Indian Constitution, can be limited in the interest of public welfare, including considerations of public decency and morality. Consequently, Section 292, which upholds public decency and morality, cannot be deemed unconstitutional.
When evaluating obscenity, the Judge must initially empathize with the author/producer to determine if they have expressed any intellectual or artistic merit. Following that, the Judge must consider the perspective of readers/viewers of every age category who may come across the substance in issue to assess its potential impact upon them.[17] The judges must evaluate whether the author/producer had a genuine intention and meaningful ideas, or if it was simply a disguise.[18] However, it is worth considering the impact of the Judge's subjective or personal view when examining objectively.[19]
Some claim that the morality discussed in the IPC is not rooted in Indian cultural norms, but rather inspired by the Christian morality of British rulers.[20] According to this ethical framework, sex is considered a sinful act and is intrinsically impure. The only type of sex that is allowed, but not openly discussed, is inside the confines of marriage, and even then, it is only deemed acceptable for the sake of reproduction. The Indian Penal Code was enacted in 1860, as a tool through which the British implemented their moral standards on Indians, utilizing different methods such as legislation. This has been reflected in the definition of "obscenity" in section 292(1) of the IPC as encompassing material that is sexually explicit, arousing, or has the potential to morally corrupt individuals.
The IRWP Act provides a definition for "indecent representation of women" as the portrayal of women in a manner that has the potential to undermine public morality.[21] The purpose of regulating indecent depictions, such as those seen in pornographic publications, is strongly linked to the concept of morality, which is thought to be pre-established and widely accepted. Section 5 of the IRWP Act grants extensive authority to "any gazette officer" to access and inspect an individual's household and confiscate any items deemed indecent, such as pornographic substances, upon obtaining a warrant.[22] The authority to grant an exemption for material based on its literary, creative, scholarly or spiritual nature has been entrusted to the aforementioned officer. Even if the Court subsequently determines that the acquisition was unjustified, section 9 of the IRWP Act shields the officer from any legal repercussions. Consequently, a government official possesses the authority to intimidate any individual, leaving the individual without any means to pursue remedy or resolution.
Once legislation is enacted that designates a specific behavior as 'illegal', individuals involved in it seek to conduct it covertly. Similarly, pornography follows the same pattern. Furthermore, it can result in the misuse of authority by law enforcement and government personnel who engage in cooperation with lawbreakers. This is apparent from the flourishing illicit industry for pornography. Citing multiple previous studies, the "Indira Gandhi Institute of Development Research" suggests that India's illicit industry accounts for approximately 18-21 per cent of the country's gross domestic product (GDP).[23] Tax evasion contributes only somewhat to the black economy, with the majority of illicit income coming from unlawful activities such as criminal activity, drug trafficking, pornography, and wagering.[24] The illicit trade of pornography or obscenity has evolved into a lucrative enterprise worth billions of dollars, extending beyond the borders of India.
III. PORNOGRAPHY: PHILOSOPHICAL PERSPECTIVE
The conventional discussions around pornography in Western nations have typically involved two opposing sides: fundamentalists who argue for a total prohibition of pornography, and liberals who criticize any sort of government interference in subjects pertaining to personal Freedom. Feminists who perceive pornography as a tool employed by men to uphold and perpetuate a patriarchal society have vehemently criticized it. The ensuing paragraphs will provide a thorough explanation of these arguments to establish the setting of the pornographic discussion, before delving into an analysis of the Constitutional framework.
Conservatives often define pornography as sexually explicit material, including both visual and written content, which they consider to be obscene. They argue that the State has the right to employ its repressive authority to support and implement a society's ethical beliefs and to prohibit individuals from participating in actions that violate the dominant moral and ethical norms of the society as a whole, a concept referred to as "legal moralism"[25]. It is incumbent upon the administration to ensure that citizens are protected against self-inflicted damage. The concept of "legal paternalism" refers to the belief that the State has the right to intervene in the mental Freedom of capable adults without their consent, with the intention of promoting their well-being.[26] Contrary to moral conservatives, who oppose pornography due to its sexually explicit content and its negative impact on traditional values, feminists primarily oppose pornography because they believe it contributes to the exploitation and subordination of women. Feminist critiques of pornography center around its capacity to perpetuate sexist ideologies and attitudes, devaluing women as legitimate individuals, while also potentially endorsing and encouraging acts of violence against women. Anti-pornography feminists prioritize the ideological function of pornography in perpetuating harmful gender dynamics that negatively impact women's overall societal standing. They also highlight the harm inflicted upon individual women who become victims of the aggression depicted and promoted in pornographic publications.[27]
Liberals present the most prominent justifications against governmental involvement and restriction. Liberals strongly prioritize personal Freedom and oppose governmental regulations that impede such Freedom. Liberals generally consider governmental limits on individual Freedom to be justified only when there is a potential to avoid harm to others. Historically, liberals have advocated for the protection of the right to pornography based on three primary justifications. Firstly, based on the principle of Freedom of speech and expression, which safeguards the right of individuals (in this example, pornographers) to convey their thoughts and share them with others, regardless of how erroneous objectionable, or objectionable those perspectives may be seen by others. Secondly, liberals have advocated for the protection of the right to pornography based on the right to privacy, also known as "moral independence." This right safeguard individuals' ability to engage in confidential activities that allow them to discover and satisfy their intimate preferences and beliefs, without being subjected to forceful influence or disruption from the Government or other individuals. Lastly, the act of expressing pornographic thoughts or engaging in private consumption of pornography does not result in substantial harm to others, as defined by acts of physical violence or other grave abuses of rights. Therefore, the State has no authority to interfere in the production and consensual private use of pornography.
These fundamental elements of the liberal justification for pornography are encapsulated in a renowned and significant excerpt by John Stuart Mill[28], which can be quoted as:
"The only principle for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinion of others, to do so would be wise or even right. These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with any evil in case he do otherwise. To justify that, the conduct from which it is desired to deter him, must be calculated to produce evil to someone else. The only part of the conduct of any one for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute."[29]
The core assertion posits that society is warranted in intervening with the autonomy of mentally capable people to express and engage in their desires solely when their actions would result in harm to others. This concept is commonly referred to as the "liberty principle" or "harm principle", and it serves as the fundamental basis for the typical liberal argument in support of personal Freedom.
The underlying concern in this whole discussion revolves around the question of why a legal regime should safeguard pornographic content from censorship. Mill's theory on the general value of free expression provides an immediate response to this question, that is, society has the greatest opportunity to uncover the reality, not just in the realm of science but also in determining the optimal circumstances for human prosperity, if it embraces a free marketplace of ideas.[30] The concept was extensively developed in the Report of the Committee on "Obscenity and Film Censorship" (often referred to as the "Williams Report"), which was presented in 1979 in the United Kingdom to investigate the legislation pertaining to the censoring of explicit and indecent content. The Report asserts that while human beings are not merely influenced by their past but also strive to be aware of it, the advancement of individual humans, the community, and civilization as a whole is a dynamic that is inherently shaped by unrestricted speech and the interchange of human interaction. If we acknowledge the inherent importance of free expression, we should embrace a default stance against censorship or banning of any action that potentially conveys a belief about how others should live or experience, or goes against widely accepted or popular beliefs. This presupposition can be countered by demonstrating that the impairment inflicted by the activities is significant. Nonetheless, it is essential to maintain such a robust supposition in order to safeguard the ultimate objective of ensuring the greatest possible conditions for human development, even in the face of our lack of knowledge.
Another justification for safeguarding pornographic content, in addition to the intrinsic worth of Freedom of expression, is the embedded worth of the material itself. Some feminists contend that pornography is a significant means of sexual expression that does not inflict harm upon women. They say that it may even have positive effects by emancipating women and their sexuality from the repressive constraints of convention and sexual orthodoxy. Pornography, according to this perspective, serves as a significant means of investigating and articulating innovative or marginalized manifestations of female sexuality. Contrary to the belief that pornography oppresses women, it can actually serve as a means to challenge conventional notions of femininity and female sexuality. Moreover, it can empower women, regardless of their sexual orientation, to assert control over their own sexual identities.
The presence of a comprehensive censoring mechanism for all pornographic content significantly diminishes the credibility of these justifications. Furthermore, it remains unclear whether these reasons have ever been taken into account within the Indian framework.
IV. CONSTITUTIONAL FRAMEWORK AND A RIGHT TO PORNOGRAPHY: ESTABLISHING THE NEXUS
All Indian laws related to obscenity have been regarded as valid under Article 19(2) of the Indian Constitution. This article permits the Government to implement reasonable limitations on the Freedom of speech and expression, particularly in relation to maintaining public order, decency, and morality. The sole legal ruling[31] regarding the conflict between obscenity and Freedom of speech and expression acknowledges that the crucial right upon which our democracy is built is intended for the articulation of unrestricted viewpoints to effect political or social changes and to promote the progression of human understanding. Nevertheless, the Court proceeded to affirm the legality of section 292 of the IPC based on the fact that it clearly represents a limitation in favour of public decorum and morality. The legislation against obscenity, when properly interpreted and enforced, aims solely to protect these principles.
The Legislature and Judiciary's approach has failed to establish how the personal consumption of pornographic material infringes upon public decency and morals. The underlying rationale for this approach appears to be rooted in the harm principle. However, the State has not provided evidence to substantiate the potential harm, if any, resulting from the voluntary activities of adults involved in the production and consumption of pornography. The State has not successfully proven the intrinsic impropriety of sexual expression and sexual satisfaction by pornographic products. As previously mentioned, pornography, in its narrower accepted definition, can be a beneficial factor in promoting sexual Freedom and the emancipation of individuals, ultimately fostering the healthy growth of adults in society. Without any clear explanation, a regulation that is based only on the discomfort and repulsion felt by certain individuals when others engage in or appreciate pornography infringes against the right to moral autonomy.
In India, although our Constitution does not explicitly include a provision regarding privacy, the Supreme Court has established the right to privacy based on the provisions of Article 19(l)(a) concerning Freedom of speech and expression, Article 19(1)(d) concerning the right to Freedom of movement, and Article 21, which pertains to the right to life and liberty. Mathew J. established the legal principles regarding privacy in the case of Govind v. State of MP[32]. The presiding Judge determined that privacy claims should only be rejected if a significant opposing interest is proven to be more important, or if a substantial sovereign objective is demonstrated. If the Court determines that a claimed right should be safeguarded as a basic privacy right, any law that violates it must meet the rigorous substantial sovereign objective test. Then, the question arises as to whether the State's interest is so crucial that it would justify a violation of the right. The Delhi High Court significantly elevated the concept of the right to privacy in the case of Naz Foundation v. Government of NCT of Delhi[33].
The Court determined that privacy encompasses the entitlement to a domain of personal intimacy and self-governance, enabling individuals to form and cultivate human connections without external interference. The manner in which an individual manifests their sexuality is crucial to this realm of personal closeness. If an individual engages in consensual and non-harmful behaviour while exhibiting their sexuality, any intrusion into that personal domain would constitute a violation of privacy. Given that creating and consuming pornography are forms of expressing one's sexuality, they should be seen as part of the right to privacy, as long as they are produced and viewed discreetly by consensual adults and do not damage others.
Another factor contributing to the infringement upon individual Freedom and autonomy by these laws is their approach towards sexually explicit substances. These laws categorize all such substances as "obscenity" without distinguishing between private and public consumption or considering the varying material which can include sexual eroticism, obscenity, pornography, violent and degrading pornography, and child pornography. Determining this variation in magnitude may really provide a resolution to some of the aforementioned issues. Labelling anything as obscene, according to the conventional understanding of the phrase, is to denounce it as overtly repulsive. The term "pornographic," in contrast, is solely descriptive and refers only to sexually explicit content, including written material and images, that is intentionally and convincingly created to arouse sexual excitation in the viewer or reader. Interchanging the terms "obscene" and "pornographic" raises the crucial and contentious topic of whether all or some pornographic items are truly obscene. In essence, determining whether a particular recognized kind of pornography is truly obscene is a matter that remains logically debatable and should be resolved by argumentation rather than a definitive edict.
The judiciary should preferably consider two key aspects when addressing the matter of pornography: firstly, whether pornography should be interpreted as a form of speech aimed at conveying ideas, and secondly, whether the Freedom of speech and expression of individuals involved in pornographic substance ought to be balanced against other liberties and interests.[34]
Certain jurisdictions such as Canada, the US, and the UK have made attempts to address these challenges through their legal systems. In the case of Miller v. California[35], the US Supreme Court established the "contemporary community test" to determine what constitutes an obscenity charge. This test grants the state significant flexibility in creating laws regarding obscenity, taking into consideration the community's understanding and values. Based on this principle, the Court[36] determined that unless sexually explicit materials are distributed to minors or forced upon unwilling adults, the First[37] and Fourteenth[38] Amendments of the US Constitution prohibit the state and federal governments from completely suppressing or banning such materials solely because they are considered "obscene." The notion of the "contemporary community test" was initially recognized in the Indian context through the Indian Supreme Court ruling in the case of Ajay Goswami v. Union of India[39]. In this instance, the Court determined that the criterion of "community mores and standards" is obsolete in the period of the internet, where conventional obstacles have been dismantled and publications from around the world are easily accessible with a simple click. Therefore, when assessing whether a specific work is obscene, it is necessary to consider current societal norms and standards.
Constitutional law possesses the capacity to serve as a catalyst for transformation. In essence, it dictates the manner in which we structure our lives, both in terms of social interactions and political systems. It offers us valuable perspectives to comprehend and delineate our civilization and its trajectory. It is closely associated with the process of attributing significance to our own identities and our interactions with others. Courts are expected to consider the transformative function of constitutional law while reaching decisions about specific human behaviors and considering situations that could potentially undermine individual autonomy.
V. CONCLUSION
The influence of obscenity laws in India is seen in the unrestricted authority wielded by the Government to prohibit movies, publications, and other things under the guise of indecent or offensive content. An egregious example of obscenity laws being employed to undermine personal liberty was observed in the Ranjit Udeshi case, wherein the distribution of "Lady Chatterley's Lover" (unexpurgated edition) was prohibited, leading to the imprisonment of the individuals involved in its sale. "The Vagina Monologues", a theatrical work written by Eve Ensler, delves into the topic of female sexuality by presenting a series of monologues where individual women share their personal experiences. However, the Chennai Police decided to prohibit its performance in Chennai due to certain sections of the script that were deemed 'objectionable' and potentially capable of causing disturbances to 'public order'[40]. The film "Kamasutra: A True Love Story," directed by Mira Nair, had 40 edits mandated by the Indian Censorship Board due to its 'sensuous' material before it was permitted for screening in Indian cinemas.[41] The film "Bandit Queen", directed by Shekhar Kapur and inspired by the true story of Phoolan Devi, a notorious bandit, faced legal issues when the Delhi High Court prohibited its release due to its explicit content. However, the Supreme Court later overturned this decision and granted the film an A certificate (i.e., adult films).[42] The State has implemented authoritarian measures by banning the cartoon-porn site "Savita Bhabhi", known for its explicit adult cartoon strip depicting the sexual escapades of a married Indian woman.[43]
Regardless of the specific examples mentioned earlier, the major focus of the Court's argument is the impact of obscene content on the decorum and morality of society. However, the morality emphasized by these courts appears to be a subjective and predetermined notion that has been universally accepted. The inquiries regarding the precise components of this morality, as well as the authority responsible for establishing the guiding principles, remain unresolved. The boundary separating the 'acceptable' from the 'offensive' remains ambiguous. The statutes, whether it be the IPC or the IRWP, have simply adopted the long-standing English Law and the corresponding moral principles on which they were originally founded. The legislation in England has undergone changes, whilst the legal framework in India remains unchanging. The proliferation of an illicit market for pornographic goods has unequivocally demonstrated the inefficacy of these restrictions.
The notion that human behaviour can be universally explained by natural rules is being contested by the analytical method, which prioritizes contextual understanding over detached objectivity. It refuses to acknowledge the existence of some truths and deems any attempt to alter them as pointless. Expanding the scope of the conversation is expected to reveal previously concealed underlying facts and issues. Consequently, there should be alterations in determining the pertinent facts, framing the issues, and establishing binding legal principles. In order to achieve a society that is more compassionate and equal, it is necessary to adopt innovative approaches in discussing the challenges related to Freedom of speech. Otherwise, the very methods that were formerly considered progressive will be used to hinder further advancement.
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* Doctoral Researcher Scholar, Raiganj University, West Bengal, India. Email id: shubhankarp2@gmail.com.
[1] See e.g. The Post Office Act, 1893(prohibits obscene matters being transmitted through post); The Sea Customs Act, 1878 (prohibits the import of obscene literature); The Dramatic Performances act, 1876 (prohibits obscene plays); The Cinematograph Act, 1952 (makes provisions for censorship of films); The Press Act, 1951 (prohibits grossly indecent, scurrilous or obscene publications); The Indecent Representation of Women (Prohibition) Act, 1986 (prohibits obscene photographs of women).
[2] Wolfson, Eroticism, Obscenity, Pornography and Free Speech, 60 Brook. L. Rev. 1037, 1038, (1994 - 1995).
[3] Steven G. Gey, The Apologetics of Suppression: The Regulation of Pornography as Act and Idea, 86 Mich. L. Rev. 1564, 1564 (1988).
[4] Id., 1580 - 81.
[5] Lynn Hunt, Introduction To The Invention Of Pornography 13 (1993), as cited in Wolfson, supra note 2, 1038.
[6] Stanford Encyclopaedia of Philosophy. Pornography and Censorship, May 5, 2004, available at http://plato.stanford.edu/entries/pornography-ecnsorship/ (Last visited on November 1, 2023).
[7] Ranjit D. Udeshi v. State of Maharashtra, AIR 1965 SC 881, (per Hidayatullah, J.): “There is, of course, some difference between obscenity and pornography in that the latter denotes writings, pictures etc. intended to arouse sexual desire while the former may include writings etc. not intended to do so but which have that tendency. Both, of course, offend against public decency and morals but pornography is obscenity in a more aggravated form.”
[8] IPC, 1860, §292(2)(a): “Whoever sells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation, or for purposes of sale, hire, distribution, public exhibition or circulation, makes, produces or has in his possession any obscene book, pamphlet, paper, drawing, painting, representation or figure or any other obscene object whatsoever ….shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both.”
[9] IT Act, 2000, §67: “Whoevcr publishes or transmits or causes to be published in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to one lakh rupees and in the event of a second or subsequent conviction with imprisonment of either description for a term which may extend to ten years and also with fine which may extend to two lakh rupees.”
[10] The IRWP Act 1986, §4: “No person shall produce or cause to be produced, sell, let to hire, distribute, circulate or send by post any book, pamphlet, paper, slide, film, writing, drawing, painting, photograph, representation or figure which contains indecent representation of women in any form.”
[11] Indian Penal Code,1860, §292(1): “A book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object, shall be deemed to be obscene if it is lascivious or appeals to the prurient interest or if its effect, or (where it comprises two or more distinct items) the effect of any one of its items, is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.”
[12] R.v. Hicklin, (1868) LR 3 QB 360.
[13] Id.
[14] Shohini Ghosh, Looking in Horror and Fascination: Sex, Violence and Spectatorship in India in Sexuality, Gender And Rights 3-5 (Geetanjali Misra, Radhika Chandiramani eds., 2005).
[15] Supra note 12.
[16] Id.
[17] Chandrakant Kalyandas v. State of Maharashtra, (1969) 2 SCC 687: AIR 1970 SC 1390.
[18] Regina v. Martin Secker and Warburg, [1954] 2 All ER 683.
[19] Samaresh Bose v. Amal Mitra, (1985) 4 SCC 289: AIR 1986 SC 967.
[20] Madhu Kithwar & Ruth Vanita, Using Women as a Pretext for Repression: Indecent Representation of Women (Prohibition) Bill, available at http://www.cscsarchive.org/data.archivc/otherfiles/UGDCM2-128/file (Last visited on November 1, 2023).
[21] IRWP Act 1986, §2(c): “indecent representation of women means the depiction in any manner of the figure of a woman, her form or body or any part thereof in such a way as to have the effect of being indecent, or derogatory to, or denigrating, women, or is likely to deprave, corrupt or injure the public morality or morals.”
[22] IRWP Act 1986, §5(1): “Subject to such rules as may be prescribed, any Gazetted Officer authorised by the State Government may, within the local limits of the area for which he is so authorised. -
(a) enter and search at all reasonable times, with such assistance, if any, as he considers necessary, any place in which he has reason to believe that an offence under this Act has been or is being committed;
(b) seize any advertisement or any book, pamphlet, paper, slide, film, writing, drawing, painting, photograph, representation or figure which he has reason to believe contravenes any of the provisions of this Act;
(c) examine any record, register, document or any other material object found in any place mentioned in clause (a) and seize the same if he has reason to believe that it may furnish evidence of the commission of an offence punishable under this Act;
Provided that no entry under this sub-section shall be made into a private dwelling house without a warrant: Provided further that the power of seizure under this sub-section may be exercised in respect of any document, article or thing which contains any such advertisement, including the contents, if any, of such document, article or thing if the advertisement cannot be separated by reason of its being embossed or otherwise from such document, article or thing without affecting the integrity, utility or saleable value thereof.”
[23] ENS Economic Bureau, Black Market Constitutes nearly 18-21% of the India's GDP, August 2, 1999 available at http://www.indianexpress.com/ieldaily/19990822/ibu22050.html (Last visited on November 1, 2023).
[24] Id.
[25] Joel Feinberg, Pornography and the Criminal Law, 40 U. Pitt. L. REV. 567, 574 (1978 - 1979).
[26] Id.
[27] Eric Hoffman, Feminism, Pornography and Law, 133 U. Pa. L. Rev. 497, 499 (1984-1985).
[28] See generally John Stuart Mill, On Liberty (1975).
[29] Id.
[30] See generally Mill, supra note 51.
[31] Ranjit.D. Udeshi v. State of Maharashtra 1965 AIR 881, 1965 SCR (1) 65.
[32] (1975) 2 SCC 148.
[33] (2009) 160 DLT 277.
[34] Susan M. Easton, The Problem Of Pornography 91 (1994).
[35] 8 L Ed 2d 128: 413 US IS (1972) 413 US 25 (1973).
[36] Billy Jenkins v. State of Georgia, 41 L Ed 2d 642: 418 US 153 (1973)
[37] 1st Amendment, The Constitution of the USA: “Congress shall make no law abridging the freedom of speech or of the press.”
[38] 14th Amendment, The Constitution of the USA:"....No state shall make or enforce any law which shall abridge the privileges or immunities of citizens ....nor shall any state deprive any person of life, liberty, or property, without due process of law."
[39] (2007) 1 SCC 143.
[40] BBC News, Vagina Monologues hits India trouble, March 11, 2004 available at http://news. bbc.co.uk/ 2/hi/south asia/3501034.stm (Last visited on November 5, 2023).
[41] BBC News, India's Chief film Censor Quits, July 22, 2002 available at http://news.bbc.co.uk/2 /hi/entertainment/2144603.stm (last visited on November 5, 2023).
[42] Bobby Art International v. Om Pal Singh Hoon, (1996) 4 SCC 1.
[43] Government Bans Popular Toon Porn Site Savitabhabhi.com; Mounting concern over Censorship, June 25, 2009, available at http://contentsutra.com/article/419-govt-bans-popular-toon-porn-site-savitabhabhi.com-mounting-concern-over/ (Last visited on November 5, 2023).