OBSCENITY LAWS IN INDIA AND UNITED SATES: A

COMPARITIVE STUDY
By RITWIK GHOSH

Abstract
The core part of freedom of expression lies in the capacity to imagine and converse unreservedly
and to obtain knowledge from others in the course of various publication and civic discussion
without any fear of punishment, limitation or suppression by the government. It is through
freedom of expression that populace strengthens their morality and helps others to become moral
and enlightened citizen. Derived from the Latin word ‘obscaenus’, obscenity can defined as any
remark, comment or action that robustly offends the established integrity of time. As a legal term
it refers to graphic depiction of people engaged in erotic & excretory activity. “Obscenity is a
function of culture- a function in the mathematical sense, I mean, its value changing with that of
the variables on which it depends”. Indecency is one term that is confused with obscenity,
indecency includes anything that would be disgusting and revolting in the eyes of a decent man
or women, indecency is a wider concept than obscenity, i.e. something, if it is obscene has to be
indecent but indecency may be something which may not be obscene always, in the sense of
tendency to corrupt the mind of the reader. In case the court succeeds in acknowledging the
indicative function of obscene, it must then say that this type of communication is without
constitutional value.

(Keywords: Freedom of expression, Obscenity, Indecency, Indicative Function)

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 1. Prologue
“It’s true that obscenity is a matter of test and in the eye of the beholder”
Obscenity is definitely a skewed matter, which is hard to clarify. Obscenity in layman’s term
would signify the breach of present moral codes in words, representations of actions that are
easily approachable or available to the public large. The impression of obscenity would vary
from country to country depending on the values of principles of present-day society. Anything
that is measured as sexually explicit but not obscene in other countries may well be considered
obscene in India. Obscenity is tangled with the moral standards of the society. Alterations and
changes in our community standards and attitudes, changes our view on obscenity. Anything that
was understood to be obscene in the past may not be same in the present scenario. Anything that
is taken as a piece of art or literature in France can be declared obscene in England, again what is
not obscene in both the countries may be obscene in our country.

The U.S Supreme Court in 1973 defined the standard will be in three parts: (a) whether the
common man, applying present-day social principles would find that the work when taken as a
whole, appeal to the prurient interest. (b) If the work depicts or describes in a deliberately
unpleasant way, sexual manner particularly stated by the relevant state laws (c) If the work as a
whole lacks grave literary, artistic, political or scientific value 1. The first standard is a test to
decide if the given material is obscene i.e. if the predominant part of the matter, when taken into
consideration as a complete text or matter and in relation to proposed recipients is a call for
prurient significance. The main stress lies on the fact that “predominant theme” should be
viewed as a whole and not part by part, if the theme or main plot of the material entirely
contributes to the prurient interest of a layman from the public it is said to be obscene. The
second standard is a test whether the matter is blatantly unpleasant or disgusting by modern
principles of the society i.e. if it surpasses the commonly established norms of openness as to be
evidently odious. Modern day principles are those that are set by what is usually established in
the general public as a whole or by society at large, and not by what same group of a people
think or believe in a community. The third standard is the test to check whether the given
obscene matter when taken in one piece, lacks serious literary, artistic, political or scientific
value.

Hicklin’s Test, U.K- In R.vs. Hicklin Lord Cockburn2 supplied the test for obscenity, he said
that the test of obscenity was if the matter that is considered as obscene had the inclination to
suborn the mindset of the people exposed to unethical influences and the likely reader, it would
influence young mindset of all gender even elder people with immoral and lewd thoughts.

1 . Miller vs. California 413 U.S 15

2. 1868 LR 3QB 360, 371

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Hicklin’s Test in India- A plea was made to the Supreme Court in regard of judgement of a
book seller and his allies by Bombay High Court for being in ownership of an Obscene book.
The Supreme Court holding to the constitutionality of section292 IPC, used the hicklin’s test to
determine obscenity, laying much prominence on the words ‘tendency of the matter deprave’ and
distort the imagination power. It confirmed the conviction, holding to the fact that it caused a
rational limitation on the right of freedom of expression under Article 19 (2). The court held that
in determining what is obscene, main emphasis should be laid upon the standards set up by our
society and its moral part and if the matter “appeal to the lustful part of mankind”.

The one who is in power for passing the judgment for such cases should step in the shoes of the
reader(for all age group)who is in potential position to possess the book, and try to understand
the impact it leaves in the human psyche. The Section 292(1) of the IPC replaces the “most
vulnerable person” benchmark laid by Hicklin3, by the likely reader test. This lies stress on the
impact it could cause on people who can be logically be expected to avail the right to use to the
publication. ‘The main stress should lie on the fact that the book or story should leave an impure
or degrading impact on a entire class or section of people, it should not be an isolated case’4

Although the Supreme Court of India held Lady Chatterley’s Lover to be obscene, in the English
Courts the jury cleared the publishers from all charges, saying it was not obscene. “Community
standards and morals” played an important part in the Supreme Court of India, hence making it
different from the courts of the United Kingdom. However this had turn out to be obsolete in this
age of technology and World Wide Web where publications across the globe are made available
with just one click.

2. Obscenity Laws in U.S and India.

American view on Obscenity- The first amendment under American Constitution has nothing
mentioned about the relation obscenity and freedom of speech. Therefore the Supreme Court has
always denied protection to obscenity. Although the governments, both federal and state have the
power to decide upon making laws, the Supreme Court had evolved many ideas to scrutinize
obscenity. In Roth vs. United States5, the test used by the jury was that if an common man given
to present social norms, if the central matter of argument or the main plot of the matter, as a
whole appeals to the prurient interest. It was further extended in the case of Miller vs.
California, and a new approach was developed acknowledged as the miller test which judges a
work to be obscene if it would call for the prurient interest by an layman applying present-day
social norms, would depict any content in a blatantly disgusting way which has no serious
literary, artistic and scientific value. One need to keep in mind that the “community standards”

3. (1868) 3 Q.B 360

4. Samaresh (1985) 4 SCC 289, para 19 p.314.
5 . 354 U.S 476 (1957)

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are poles apart from the “national standards” i.e. anything that is declared obscene in one place
possibly will not be obscene in another place.

The issues of obscenity has raised a amount of limitation in United States of America regarding
the freedom of speech and of the press which were protected under the First Amendment to the
Constitution of the U.S, the Supreme Court declared obscenity as an exemption to the First
Amendment and is restricted to anything which aims at indicating or refers sexual acts that are
accessible publically, or any subject matter that can be either spoken or in written language can
be publically transferred from one person to another or acknowledged by the general public.

The legal difference between artistic nudity and allowed commercial pornography that are also
known as “protected forms of expression” and “obscene acts”, which are unlawful and different
as of those specifically allowed areas which include the permitted are of titillate art which
includes Michelangelo’s David Statue and the normally fewer valued commercial pornography,
but no precise purpose exists outside the lawful domain in federal courts, only a definite act is to
be fitted in the definition and categorization of obscene and is thus unlawful. The obscenity laws
in The United States are highly unusual because at present there is no consistent national
benchmark to define it., in an attempt to classify what exactly can be defined as obscene wrote “I
shall not today attempt further to define the kind of material I understand to be embraced but I
know when I see it.”

Indian View on Obscenity-

 Whichever work with the intention of appealing to prurient interest

 Whichever work, highlights sexual behavior in a blatantly unpleasant manner.

In legal terms obscenity can be described as a licentious phrase, such as words, images, and
actions, exhibiting acts which are indecent and that leads to immoral influences of one’s
imagination, is a breach of the Indian Law. The Indian Constitution evidently sets out limitations
on freedom of speech guaranteed under article 19(1) (a) can be subject to limitation to maintain
decorum or principles. It can be coined as “repulsive to decorum”. If the publication as a whole,
implicates to distort the mind of people who are exposed to such influence, is termed obscene.
The literal or dictionary meaning for it is, “words, thoughts, books picture etc. morally
disgusting, offensive”. Alpana Poddar, a SC lawyer says “does not have any clear cut definition
on this. It depends on facts of the case”. Former Member of the parliament and lawyer RK
Anand adds on to it by saying that obscenity can be a wide word as, what was considered as
obscene 20 years before, may not be considered obscene now.

Section 292 of the Indian Penal Code deals with obscenity offences in India, the section counters
one’s right to freedom of expression, which assured by the constitution of India, but Article
19(2) of the constitution provides that right to freedom of expression is open to limitations for
prevention of indecency in public interest. Section 292 of Indian Penal Code provides that sale of
books, pamphlets, paper, writing, drawing, painting, representation, figure or any other object

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shall be deemed obscene if it is licentious or pleads to the prurient concern or if its outcome, if
the major part tends to degrade a person, who are likely to get exposed to it.

A penalty of two years along with a fine up to rupees two thousand (Rs.2000) is prescribed under
the Indian law for a individual who advertises obscenity, such as sells, possess, hire, imports,
makes profit from such business, if he is found accountable for the succeeding time, captivity for
up to five years and a fine up to rupees five thousand (Rs.5000) is served as retribution.

In Ranjit D. Udeshi vs. State of Maharashtra, the court said that the check of obscenity in India
is whether obscenity is available with a profitable or marketable purpose and no other societal
intention. It shouldn’t have the constitutional defense of freedom of speech. In case of relation of
art with obscenity the court said that ‘the art must be so preponderating as throw obscenity into a
shadow or the obscenity so trivial that it can have no consequence and can be ignored’.

Comparison of the United States and Indian Constitution in relation to Obscenity law and
Freedom of Expression

Two enormous democracies of the human race, America and India recognize the freedom of
speech as important part of their constitution. According to the US laws the congress has no role
or power to make or amend the laws related to freedom of pressCorrespond to the Article 19(1)
of the Indian constitution .

The two notable features of the United States that makes it different from the Indian scenario is
(i) freedom of press is specifically mentioned (ii) Absolute freedom of expression (no
restriction). The Indian Supreme Court provides no condition for freedom of press. The
“freedom of press is species of which freedom of expression is a genus”, therefore cannot argue
any special license except provided specially by the commandment or law.

In Express Newspapers (private) Ltd. vs. Union Of India6 Justice Bhagwati said that the freedom
of expression in our foundation is taken from the provisions of the First Amendment of the
United States Constitution, hence it will be appropriate if we refer to the judgements of the of the
U.S to understand the true nature, range, degree of this right. Despite various similarities in their
legal provisions both the countries have their own jurisprudence to approach the freedom of
expression, the difference lies in moral standards set by communities and reasonable restriction
provisions.

Freedom of expression is of no meaning if it is not given its space to breathe. The Indian
Supreme Court adopted the famous principle of “New York Times vs. Sullvian” 7 set of
American law against officials. The democratic governance mandate scrutiny of public official
duties, therefore statements made in public eye against persons are not defamatory unless the
malice intention is proved. The legal assurance of free speech under the First amendment Of the

6. (1985) 2 SCR 287

7. 376 U.S 254

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U.S constitution means complete of freedom of expression to the fullest. Good or bad, this is the
American way. In India the legal provisions are generally subjected to the general moral
principles of the society. The Legal structure has embodied various restrictions in freedom of
expression and this is applied for a long time now.

3. Cyber Obscenity
The internet began in 1969 as a project of APANET a branch of the department of defense 8.
Internet today is the easiest and admired way of interaction because it is simple and user-
friendly. Everybody has the right to use the internet and view, share, download any document or
file from the website that he/she finds on the internet 9. But some the websites contain sexually
explicit materials which are harmful for children, the principle concern of parents lies on the fact
that the easy access to such pictures by just “pointing and clicking” is a simple task for a small
child. Also a women in relationship, naturally will not inquire the intention of her spouse and
permits to capture moments of their physical relationship. Women who are photographed either
casually or in exposed situations by strangers who blackmail them later or use these to lure them
into their “adult industry”. Apart from this men have been editing pictures of women who either
dump them or abandon them. The internet is the safest avenue for distribution of pornography as
the distributor and receiver remains anonymous.

In the United States the Communications Decency Act 1996 (Title V of the Tele communications
Act 1996) was an attempt to make Internet “superhighway safe place for our children and our
families to travel on”10. The solitary purpose of CDA was to guard the minor from any obscene,
lewd, filthy content on the internet. Also the CDA made it a unlawful offense to use computer to
communicate with minor and transmit the described sexual or excretory activities, or to
communicate in a manner that is easily available by anybody under the age of eighteen. In Reno
vs. ACLU11, the Supreme Court of U.S invalidated the CDA indecency provision of 47 U.S.C
223(a) and 223(d) in 7-2 decision. The government argued that it was constitutional as it was to
defend and preserve the interest of the minor, but the court said that although the safety of
children from sexually explicit content had been governments compelling interest, but the CDA
provisions censored an intolerable amount of legally secured dialogue for adults. Possession of
obscene material with the intention to distribute or to receive from a carrier in interstate or
foreign commerce is a crime.

In India, Information Technology Act, 2000 contains the term cyber obscenity. According to this
Act storing or individual (private) viewing of obscene material is legal as it does not specifically
restrict it, but transmission and distribution of such is illegal. Section 67 was the only provision
of the IT Act that prohibited release of obscene material till 2008. Section 67(A) deals with

8. Maureen A. O’Rourke, Fencing Cyberspace: Drawing borders in Visual World, 82

9. Reno I. 929 F, Supp. At 836-37
10. 141 CONG REC. S8087-04 (JUNE 9, 1995)
11. 117 S Ct. 2329 (1997)

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restriction in publication of any content that is sexually explicit and Section 67(B) prohibits
publication of child pornography. This section makes transmission and distribution of such
material a criminal offense but downloading, storing or viewing of such is not an offense under
this law. The essentials of this section are (i) the transmission should be made in electronic form
(ii) It should appeal to prurient interest. The penalty under this section is any person who is
declared guilty, should be imprisoned for up to three years or as decided by the court with a fine
of rupees five lakhs (Rs. 500000) in First conviction, and if he is declared responsible for the
succeeding time, captivity up to five years and a compensation of rupees ten lakhs is served as
punishment.

4. Obscenity Laws for Children

The Child Pornography Prevention Act prohibits circulation of computer based or voluntarily
altered images, of a junior participating in clear sexual behavior. The Child Online Protection
Act (COPA) was the second effort to restrain content on the internet by the congress, after the
law was passed, in less than twenty four hours it was challenged by the same group who
challenged CDA in 1996; they claimed it to be unconstitutional. The main difference between
CDA and COPA is that COPA purports to be valid only to profit-making websites, and also
provides a “harmful to minor” norm. It makes communication with minor a federal crime if one
knowingly indulges in communication with minor for commercial purpose, and if it includes any
matter that is dangerous or detrimental for minor. Therefore it is clear, that the federal laws
strictly prohibits distribution of obscene content to minor, any attempt or transfer of such
material to anyone under the age of 16, is a criminal offense also misleading a minor into such
domain is also an offense. It must be noted that obscenity standard for children are different from
that of an adult. Also the offenders of such crime face harsher penalties then that of an offender
in case of obscenity in adults.

Objects that depicts children in clear sexual conduct is defined in Section 67B of the Information
Technology Act, 2008, the wrongs in this section include publishing, or transmitting of content
that depicts clear physical act or conduct or abusing children through causing of any text is a
criminal offense, also browsing, downloading of such is also considered a criminal offense. The
sad reality is even after having robust laws against child pornography, it is still being committed
with ease, and it becomes difficult to put a ban on those websites which are indulged in such
activities of circulating, viewing, and distributing such content online. A punishment that
includes life imprisonment up to five years with a sum of ten lakhs (Rs. 1000000) for any person
who has convicted for the first time and for the second time a detention of 7 years and a sum of
rupees ten lakhs (Rs 1000000) is served as punishment.

5. Epilogue

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 A constitution establishes and builds the ethical order of a civilization.

Obscenity is a wider term, and one should not confuse it with indecency and vulgarity, it is as
such, what is obscene is vulgar but what is vulgar may not be obscene, this is proved as the court
restrained the police from arresting the AIB casts for their roasting and using vulgar terms in
their content, the court clarified that their content was vulgar and not obscene.

The freedom of expression is the basic principle given to the people by the constitution (rule and
order of a civilization). The two big democracies United States and India have secluded this right
as a core part of their civil rights. In the beginning the US legal foundation did not have a single
special provision to protect the freedom of expression it was only after the First Amendment that
it provided absolute freedom of expression without any permissible restriction. In case of the
Indian view of freedom of expression it provides some rational limitations to the free speech in
Article 19(2) for “interest of the public order” this leads to most of the disorder and calls for a
proper nexus amidst the constraint and accomplishment of public order. The dissimilarity lies in
the moral standards of both the nation.

The growing use of Internet welcomes vulnerability to several illegal activities, so the
mechanism to counter it should be robust enough to have effective prosecution, investigation,
detection of case related to cyber obscenities.

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