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India’s societal response and conduct towards ostensibly ‘modern practices’ like public displays of affection, and expression via apparel by women have often been met with resistance and criticism. It’s often contended to be against social values, mores and is even characterized to be obscene. However, the interpretation of obscenity in the legal sphere sways from the restrictive box it’s often confined to in the social sphere. The definition of obscenity has been laid down in Section 292 of the IPC, wherein it mentions that articles that are “lascivious, appeals to prurient interests and has the ability to deprave and corrupt individuals” that possess such articles, shall be considered to be obscene. Section 294 of the IPC requires causation of annoyance to others to be essential, in ascertaining whether an act can be construed to be obscene in the physical sphere. 


During the assessment of the nature of an act, courts often have to balance the fundamental right to the freedom of expression and the need to protect the society from immoral and deprave influences, while simultaneously ensuring the advancement of the cultural and artistic sphere of society. The interplay between Article 19(1)(a) and obscenity was first dealt with in 1965, in the case of Ranjit D. Udeshi v State of Maharashtra[i], wherein it was observed that the “fundamental right to expression is meant for the expression of free opinions to change political or social conditions or for the advancement of human knowledge and that Section 292 of the Indian Penal Code, manifestly embodies such a restriction because the law against obscenity aims to promote public decency and morality”.

 The court also adopted the Hicklin test from English Law to assess obscenity, according to which, a matter that has a “tendency to deprave and corrupt those minds that are open to such immoral influences shall be deemed to be obscene”. However, this test didn’t necessarily assess the contentions surrounding obscenity due to its subjective and ambiguous nature. In 1970, the court in K.A. Abbas v Union of India[ii] (that dealt with censorship and right to artistic expression in movies) observed that:

“Our standards must be so framed so that we are not reduced to a level where the protection of the least capable and the most depraved amongst us determines what the morally healthy cannot view or read. The standards that we set must make a substantial allowance in favour of freedom thus leaving a vast area for creative art to interpret life and society with some of its foibles along with what is good.”

This observation essentially indicates the need to tolerate unpopular perspectives and opinions in the socio-cultural space for the promotion of artistic expression, which was also observed by the court in the subsequent case of S. Rangarajan v Jagjivan Ram[iii], which held that the fundamental right to expression “cannot be held ransom by an intolerant group of people” and that this right can only be suppressed when the interests of the community are endangered, provided that such danger has proximate and direct nexus with the expression. 


Due to various inadequacies of the Hicklin test adopted from the English Law, the Supreme Court of India, adopted the Roth test laid down by the Supreme Court of America, according to which, an article, “when taken as a whole, (1) appeals to the prurient interest in sex, as determined by the average person applying contemporary community standards; (2) portrays sexual conduct, as specifically defined by the applicable state law, in a patently offensive way; and (3) lacks serious literary, artistic, political, or scientific value”. It also laid emphasis on the need for assessing the background or intention with which the article is being published, or the act is being performed. It is on the basis of this reasoning that the court in the case of Aveek Sarkar v State of West Bengal [iv]dismissed the charges of obscenity against a semi-nude picture of Boris Johnson and his dark-skinned fiancée Barbara Feltus, since the picture intended to convey the message that ‘love triumphs over hatred’ and portrayed Boris Becker to be a pernicious protester against apartheid. 

However, the standard for assessing obscenity varies in cases of artistic expression and obscenity in day-to-day life. The courts are often liberal in their acceptance of morally subjective articles due to the need to enable the growth of the cultural realm of our society. The problem that arises is the inherently subjective nature of social morality and the use of criminal law to unduly interfere with the domain of personal autonomy. While courts are quick to dismiss cases based on its liberal acceptance of ostensibly ‘modern practices’ like public displays of affection[v], the utterance of derogatory remarks[vi], and expression via apparel by women, it doesn’t change the fact that criminal law is often used as a tool to restrict individual autonomy. 

SECTION 292 & 294 IPC

It’s often argued that the legislative intent behind imposing stringer punishments awarded via Section 292 of the IPC i.e., 5 years as opposed to the 3 months awarded via Section 294 is due to the visual effect obscenity has when it’s depicted in the books, writings, paintings, etc. It’s contested the influence would be “more when compared to the utterance of the obscene words since the person who views or sees would be more tempted to be affected by such impure and lustful desires”. However, the traumatic effect of witnessing an obscene act in the physical world as opposed to reading about it in literature is also something that needs to be taken cognizance of, since reading about sexual assault or exhibitionism and witnessing it has a stronger and potentially distressing influence in the latter case. 


The other issue that arises in regards to obscenity is the subjectivity of a “reasonably strong-minded person applying the contemporary community standards” since the standards between communities differ and there isn’t a standard of uniformity amid the morals in the present society. The variations and the variables inside a certain society are also crucial considerations while judging whether an object comes within the mischief of obscenity. It is in this context that some High courts in India have adopted the Comparable Test. This test requires “three foundational elements to be present with the proffered evidence: similarity or “reasonable resemblance” of content; availability of content, and acceptance, to a reasonable degree, of the similar, available content to indicate that the materials are accepted by the community and hence, not obscene”[vii]. This test will help in resolving the dichotomy in social values and practices, like the semi-nude attire worn by indigenous communities in India conflicting with cultural standards of decency, the utterance of remarks considered to be offensive in one community but acceptable in another, and depiction of eroticisms in temple art which is acceptable by one group but is incompatible with the ideologies of another. It is based on this contradiction that the court in Dhanisha v Rakhi N. Raj[viii] observed that the words uttered by the defendant should be judged in reference to the meaning attributed to those words in that particular region/locality. The tone and tenor of those words and the meaning of those words, whether hearers are likely to suffer mental shock on hearing such words, whether those words are intended and used in that locality as obscene are questions of fact to be decided based on the evidence that may have to be adduced.


The adoption of the Roth and Comparable test provides a comprehensive framework to objectively assess the standard of obscenity in India. However, while the test may facilitate an objective assessment, it’s ultimately based on the outlook of the Judge examining the nature of the act or article. Its therefore imperative, that we as a society normalize and allow for the tolerance of many morally conflicting opinions (provided it’s rational and doesn’t interfere with individual autonomy and rights) to facilitate the advancement of the cultural sphere, create a society of inclusiveness and prevent the restraint of individual autonomy via criminal laws.

Author(s) Name: Silvia Tomy Simon (Student, Symbiosis Law School, Hyderabad)



[i] Ranjit D. Udeshi v. State of Maharashtra, (1965) 1 SCR 65.

[ii] K. A. Abbas v. Union of India, (1970) 2 SCC 780.

[iii] S. Rangarajan v. P. Jagjivan Ram, (1989) 2 SCC 574.

[iv] Aveek Sarkar v. State of West Bengal, (2014) AIR 0081 (SC).

[v] Tanushree Punwani, ‘India’s Top Court Suspends Gere-Shetty Kiss Cases’ Thomsom Reuters (15 May 2007)

[vi] Vinaya Deshpande, ‘Language of AIB, Vulgar not Obscence: HC’ Hindu (Mumbai, 17 February 2015)

[vii] Devidas Ramachandra Tuljapurkar vs. State of Maharashtra, (2015) 6 SCC 1

[viii] Dhanisha v. Rakhi N. Raj and Ors. (2012) Manu 0611 (KE).