LAW ON OBSCENITY: TRANSFORMATION FROM HICKLIN TEST TO COMMUNITY STANDARDS TEST

INTRODUCTION

The definition of obscenity is vaguely defined section 292, IPC. As per Section 292, IPC, any content, which has the capacity to lasciviously affect the prurient interest of the people or which are likely to corrupt or degrade the person who comes in contact of that material, is said to be called obscene material. Additionally, Section 293 and Section 294 of IPC are also related to obscenity. The test of what can be called obscene or not has evolved through case laws and past judgments. It keeps on changing as per the changing needs of our current society. The SC of India has switched its approach of judging the matters of obscenity from Hicklin test to Community standards test, as it is believed to be more justifiable.

Hickiln Test

In the case of Regina v. Hicklin, the Hicklin’s test was recognized in English law.[1] The appellant was dispensing pamphlets that highlighted some of the Church’s unethical practises, as well as the kinds of questions that were asked to females during confession. The pamphlet is said to include indecent thoughts and language. The distributed pamphlets were held to be obscene, irrespective of the intention of the author. So, by means of Hicklin’s test, any publication can be weighted for obscenity based on its single section/part of the overall work, which is taken out of the whole content. While using Hicklin’s test, the work is separated from the content to check if it adversely affects the most vulnerable readers, for instance, on kids or weak-minded adults. It only takes into consideration isolated or specific part of the entire work.

Community Standard Test

According to this test, gestures, or content are only obscene if the prevailing topic in total is in violation of existing community standards.

Related Cases

Ranjit D. Udeshi v. State of Maharashtra[2]

The case was decided using Hicklin test. Here, the accused was alleged of selling obscene books. And thus, was charged under Section 292, IPC. He claimed the defence of free speech and expression under Article 19(1)(a), the Indian Constitution. Justice Hidayatullah, while judging the case, noted that in the lieu of shielding public morals and decorum, reasonable restrictions can be placed to curb the circulation of obscene material. It differentiated art and obscenity. It said that when art and obscenity coincide, the artistic element must overpower the obscene element in it. The court found the disputed books were obscene and concluded that it has the capacity to deprave the innocent minds of those, who will read it. Moreover, the court found that the book does not results in any genuine social benefit because there was no other interest in it besides sex. Additionally, the judges highlighted the importance of altering the definition of obscenity. Despite the fact that the case has been extensively criticised for restricting freedom of speech and expression, this finding in the case remains out as an example of how community standards were important even back then.

Bobby Art International v. Om Pal Singh Hoon[3]

The case was initiated to ban the movie named “Bandid Queen”. The movie was given ‘A’ certificate as it was concluded that it insults women by showing pornographic images. However, the film did justice to the story by including those scenes to emphasise the humiliation confronted by the protagonist. The nudity in the film was not intended to incite lust in the audience, but rather to doom the criminals who did nothing to prevent it from happening. However, the court’s judgement demonstrates our country’s intolerance for even such vehement realities.

Aveek Sarkar & Anr vs State of West Bengal and Anr[4]

The case was regarding a disputed nude photograph. The issue was to judge if it was obscene or not. The court held that in order to judge its obscenity, it is necessary to check if its “background” invokes sexual desires. Here, the photograph was meant to encourage love and was a critique on racism. The case rejected the use of Hicklin Test. The court by adopting community standards approach i.e., instead of focusing on the impact on individual mind-set, it looked into the impact on the community as whole.  The court noted that “the question of obscenity must be seen in the context in which the photograph appears and the message it wants to convey.” Moreover, the material has to “taken as a whole”. And, if, this material proves to be lascivious and innocence depriving, it can be termed obscene. Thus, Community Standards test is favored over the Hicklin test.

Maqbool Fida Hussain v. Raj Kumar Pandey[5]

MF Hussain painted a portrait of a nude women in anguish, under the name ‘Bharat Mata’. The painting was put up in a charity event organised for the sufferers of the Kashmir earthquake. He was later prosecuted for obscenity. The court determined that the picture did not, on its face, excite sexual or prurient interest in the twisted persons or morally corrupt anyone who saw it. The court stated that nudity cannot be considered obscene on its own. The nudity of the picture has been remarked to be overshadowed by its beautiful touch. As a result, the decision favoured M.F Hussain.

Conclusion

Community standards test is more acceptable for the developing Indian society as Hicklin test contravenes the essence of this provision of the IPC. And thus, the definition has to adopt itself according to these changes. Furthermore, as the term “obscene” is not well-defined in the IPC, making the use of community standards test is highly appropriate for India. If society supports the portrayal of questionable thing on film, the court should not repeal it for the sake of some sensitive individuals. If it is satisfactory to whole society, the court must as well admit it. In such cases, it is important to consider the overall image and the motive behind the otherwise vulgar content. The final aim must be productive and helpful to society. It means that the constitutional right under Article 19 needs to be balanced as per the current standards of morality. Moreover, it will attract less convictions as it targets on the subjectivity of the audience as a whole, instead of looking at the objectivity of person coming in contact of the material. Thus, the transformation from Hicklin test to Community Standards test was done for the betterment of the society.

Author(s) Name: Kaishena Chauhan (OP Jindal Global University, Sonipat)

References:

[1] Regina v. Hicklin, [1868] LR 3 QB 360

[2] Ranjit D. Udeshi v. State of Maharashtra, AIR 1965 SC 881

[3]  Bobby Art International v. Om Pal Singh Hoon, A.I.R 1996 S.C 1846

[4] Aveek Sarkar & Anr vs State of West Bengal and Anr, (2014) 4 SCC 257

[5]  Maqbool Fida Hussain v. Raj Kumar Pandey, 2008 CrLJ 4107

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