Obscenity and The Indian Penal Code

What is obscene? Is difficult to define. It is a subjective term that may depend from person to person, something which is obscene for me, may not be so for someone else. This originates the squabble. Kissing in public for example may be obscene for some people while it is expression of love for others. The judiciary has faced several problems relating to the obscenity and the causation of annoyance in public, as both being subjective terms differ in beliefs, opinion and perspectives. Though section 294 of the Indian Penal Code 1860, administers punishment for those who use obscene words or songs, or acts in public and thereby cause annoyance to the public at large, still several times its interpretation has been brought to scrutiny.

Section 294 of Indian Penal Code, 1860 lays down the punishment for using obscene words, songs or acts in public, which causes public annoyance. To fall within the scope of obscene it must be done in public place and should cause annoyance to the public.[1] Annoyance is an important ingredient for this offence, and it has to be inferred from proven facts. “Causing annoyance to others” has been disputed in a recent case of Sanjay Dutt v. State of UP,[2] wherein Sanjay Dutt while giving a political speech, said ‘Jadu Ki Jhappi' and ' Jadu Ki Pappi' to the minister. This offended certain government officials and they filed an F.I.R against the actor under section 294 IPC. The court in this matter interpreted the essence of the term “causing annoyance to others” and had held that the actor had merely repeated the dialogue of the film and that was made in a much lighter and friendly atmosphere. Moreover since none other than the government officials were offended it was thus held that the F.I.R. was lodged only to please the minister, hence no offence had been committed by the actor under section 294 I.P.C. Moreover in the case of K. Jayaramanuju v. Janakaraj and others[3], wherein, a similar question of uttering of obscene words was involved, the Madras High Court while considering the question held that in order to prove the offence under Section 294 IPC mere utterance of obscene words are not sufficient but there must be a further proof to establish that it has caused “annoyance to others”. Hence the annoyance to “others” is an essential ingredient for an offence under this section. The courts have faced different instances where the annoyance to others and that the act is in a public place is put to question. Again the degree of annoyance depends from person to person and there is a thin line between them and it left to the adjudication of the courts based on the facts and circumstances of the case.

The word ‘obscene’ is not defined differently in the sections 292, 293 and 294 IPC, but the punishments prescribed are different depending upon the effect of ‘obscenity’ that causes on the viewer or the hearer as the case may be. Since all these sections come under a common chapter and thus indicate a common cause to redress, the words should be sufficiently understood in the same sense.[4] One of the tests to be applied is to find whether an article possesses the standard of obscenity is the Hicklin Test.[5] As per this, the test of obscenity is whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose mind are open to such immoral influences and into whose hands a publication of this sort may fall. The other test is the Community Standard Test, whereby the obscenity has to be judged from the point of view of an average person by applying contemporary community standards.

Thus the cabaret dancers, in restaurant while dancing and exposing their private parts would not amount to annoyance to others because it is generally known that the people who are interested to enjoy such performances they only go to watch them, so it would rather amount to consenting for the said act.[6] It was thus held that the acts of the cabaret dancers would not amount to be indecent per se without the fulfilment of the essential ingredient, i.e. evidence pertaining to the ‘annoyance to others’. The Supreme Court in State of Maharashtra v. Indian Hotel and Restaurant Association[7] had lifted the ban on dance bars. The rationale behind this was that how can the same dance be immoral and lead to depravity if performed in prohibited establishments and on the contrary be socially accepted if the same is done in high class hotels, clubs and gymkhanas. Thus there was no justification for a dance to lead to depravity in one place and be converted to an acceptable performance by a mere change of venue. Moreover a very interesting assumption was taken by the judges, that when an adult person goes to such shows, he runs the risk of being entertained by the very obscenities according to his taste. So basically to charge under this section the court will have to delve deep into the technicalities and find out whether any person while witnessing the obscene act was actually annoyed at all. Hence the words “annoyance to others” have to be judged from the point of view of an ordinary person having good moral values. So if the performances are likely to annoy the person holding good moral character, the provision of section 294 IPC would be attracted. The courts have thus failed to lay emphasis on our culture and civilization which does not approve of any such nude performances in public. Additionally the exhibition of private parts of a woman in public place is not in consonance with our cultural ethos, moral standards or our civilization. Our society has not yet approved such performances and conduct in public places like hotels, restaurants wherein adult persons can be permitted on purchase of tickets. Such performances are immodest, immoral and indecent while judged by the standards of our country and the historical background.

The basis of section 294 I.P.C is that the acts, words or songs should be “obscene”. What is moral and what is contrary to it remains difficult to specify because what may be unaesthetic in a given situation could be perfectly decent and aesthetic in another situation. In The Queen v. Hicklin[8] Cockburn C.J. laid down the test of 'obscenity' in these words:".......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." The law on the subject has travelled a long distance from what was laid down by the Constitution Bench of the Hon'ble Supreme Court in Ranjit D. Udeshi v. State of Maharashtra[9], to a recent judgment of the Supreme Court in Devidas Ramachandra Tuljapurkar v. State of Maharashtra and others[10] wherein it was held that the prevalent test of obscenity in India is the contemporary community standards test i.e. obscenity has to be judged from the point of view of an average person by applying contemporary community standards which vary from time to time, as perception, views, ideas and ideals and can never remain static.

Thus section 294 of I.P.C has been interpreted in diverse ways, but there are certain shortcomings in the provision itself. The fact that it is for the prosecution to prove that the accused committed an obscene act or the accused sang, recited or uttered any obscene song, ballad or words and this was done in or near a public place and that it has caused annoyance to others. It has been observed that normally it is very difficult to establish those facts and seldom complaints are being filed and criminal cases take years and years and often people get away with no punishment. Moreover filing complaint and undergoing a criminal trial is in itself a mental and physical agony for the complainant.

Also the test of obscenity has created problems and has often lead to miscarriage of justice. Since there is no proper standard test and it is just based on the contemporary community standards, it possesses the tendency of leading to differing of opinions at different instances as the contemporary standards keep on changing at a really fast pace. Also the obscene act which is taken into consideration only on the basis of it being in a public place is also not justified. Laws should be there for avoidance of obscenity in general and it should not be categorised on the basis of private or public. Even if the venue of the act changes from public to private, the laws should be consistent and hence this will definitely lead in proper administration of justice. Thus much work is left to mould and set standards for proper implementation of laws, because the world is moving at a really fast pace and so is the crime rates.

[Profile of the Author-Priyanka Jaiswal, 4th Year, National University of Study and Research in Law, Ranchi.]

[1] Pawan Kumar v. State of Haryana, AIR 1996 SC 3300.

[2] 2011 74 AllCriC 529.

[3] 1997 CRI.L.J.1623.

[4] Danisha v. Rakhi N. Raj, 2012 CrLJ 3225.

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

[6] Narendra H. Khurana v. Commissioner of Police another, 2004 2 MhLJ 72.

[7] AIR 2013 SC 2582.

[8] 1963-3-Q.B.360 at 371.

[9] AIR 1965 SC 881.

[10] (2015) 6 SCC 1.