By Mohammad Abid Hussain Ansari
On 15th April, 2013, an Indore-based advocate filed a Public Interest Litigation in the Supreme Court for a ban on pornographic content available on the Internet. Acting under the government placed before the Constitution Advisory Committee the issue of pornography, to place a copy of the writ petition before it to help it form an opinion on the matter.
The government accepted the arguments and, as it directed the government to block porn [28th August, 2014], but the bench headed by the Chief Justice H.L. Dattu refused, stating that such an order would be a violation of Article 21 of the Constitution. The Department of Electronics and Information Technology banned 857 such websites. Reports later confirmed by the Information Technology Minister stated that the ban would be partially lifted, though the ban would stay on those sites which promote child pornography.
Our Constitution provides us with the fundamental right of freedom under Article 19 and right to personal liberty under Article 21. But the former is restricted under clause 2, Article 19. According to Article 19(2), the government can put reasonable restrictions when it comes to the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, contempt of court, defamation or incitement to offence.
The exception which comes to play in the recent scenario is ‘decency or morality’. One thing to be noted, which is quite a misconception among most people, is that it is not just related to sexual morality but is a much wider term.
The law related to obscenity is covered under Section 292 of the Indian Penal Code. Obscene has been defined under Section 292 as: “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, 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”.
Section 292 makes only distribution and circulation of obscene material punishable. But the real question that arises is: “what is the test for obscenity?”
The Hicklin Test
The courts in India have used the age-old test developed in 1869, called the Hicklin test. This test was laid down by Cockburn C.J. The test of obscenity is: “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.”
This test has been applied in cases like Ranjit D. Udeshi & Ors. v. State of Maharashtra and many other related cases.
With society progressing and standards of obscenity changing, the test also demands change. A hint of changing was seen in the case of Samaresh Bose v. Amal Mitra, when the court saw obscenity in the context of changing social outlook.
Community Standards
A major change was brought in the much recent case of Aveek Sarkar v. State of West Bengal. The Supreme Court in this case adopted the modern test of “community standards”. According to this test, standards of the contemporary society are applied to ascertain obscenity.
Generally, it is the jury which ascertains the standards but as the same does not exist in India, it is the judges who have the discretion in this matter. In the above case, it was held that mere nudity is not obscenity. If the Hicklin test is to be applied, nudity also falls in the definition of obscenity which clearly shows the obsoleteness of this test.
Conclusion
Banning porn on a large scale is not possible. The government has itself admitted the difficulty in blocking pornographic sites because there are around 4 crore such websites and when government blocks one, a new one comes along.
India is the world’s largest democracy and has the second largest number of Internet users in the world after China. It is to be seen what will be the final decision of the Supreme Court in dispensing this petition. Whatever the judgment, it will be the test of Indian judiciary’s test of dynamism.