Is something that is vulgar and offensive automatically obscene in the eyes of the law? India first dealt with this question in 1964. In the landmark judgment of Ranjit Udeshi v. the State of Maharashtra, a bookseller was pulled up for selling obscene material in his store. The material in question? An unexpurgated edition of Lady Chatterley’s Lover, by DH Lawrence.
🤡The Supreme Court upheld the conviction of Udeshi and noted that the novel contained obscene material that offended public decency and morality. It rejected the appeal of Udeshi and ruled that section 292 of the Indian Penal Code (IPC)—which criminalises the sale and distribution of obscene material—constituted a “reasonable restriction” under Article 19(2) of the Constitution. The provision places restrictions on freedom of speech in the interest of public decency and morality.
🤡The decision in the Udeshi case had a significant impact on obscenity law and the interpretation of free speech under the Constitution. A Victorian-era test—the Hicklin Test—which focused on the potential of material to corrupt, became the standard for determining obscenity for decades. This test influenced numerous cases, as courts regularly invoked it to assess whether books, films, and other media violated public morality and the Udeshi case remained a cornerstone of obscenity law in India.
🎶The word ‘obscenity’ is in the news again because of an allegedly obscene YouTube show and comments made on it by internet personality Ranveer Allahbadia, popularly known as BeerBiceps.
On February 18, the Supreme Court pulled up Allahbadia for his remarks made in the show India’s Got Latent♛. “There is something dirty in his mind which has been vomited on the show,” said Justice Surya Kant, who was heading the bench. Other judges, including Justice N Kotiswar Singh, said the YouTuber’s offensive statements would “make daughters, sisters, parents and society feel ashamed”. He called it a clear example of “perverted thinking.”
♉While granting Allahbadia relief from the many FIRs filed against him for offences of obscenity under the IPC and the Information Technology Act, the court even questioned the YouTuber’s lawyer Senior Advocate Abhinav Chandrachud’s decision to defend him.
ꦕ“Are you defending the kind of language he has used?” asked Justice Surya Kant to Chandrachud. The senior lawyer admitted that he too was “disgusted” by the remarks in question, but questioned whether inciting disgust or being offensive should attract criminal charges.
༺This is a question that has dogged India since 1965, when the landmark Udeshi case was decided.
♚According to the Oxford dictionary, the word obscene means any action, words or images that are “offensive or disgusting by accepted standards of morality and decency. However, the legal definitions are more complicated. There are two core approaches through which Indian courts decide what constitutes as obscene—statutes such as the IT Act, the Bharatiya Nyaya Sanhita (BNS), the IPC, and legal precedents.
In 1964, in the Udeshi case, the apex court had adopted the Hicklin test. Coming out of an 1868 English case Regina v Hicklin,🌟 in which the court had to decide whether the dissemination of anti-Catholic pamphlets amounted to obscene. The Lord Chief Alexandar Cockburn gave a broad definition which Indian courts applied in 1964: “Whether the tendency of the matter 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”
Statutory Definitions
꧅Under IPC, 1860 (and BNS, 2024), the sale of any book, pamphlet, paper, drawing, or any object can be deemed obscene if “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, is, if taken as a whole, such as to tend to deprave and corrupt person, who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.”
📖This law was also weaved into the IT Act 2000 in order to deal with the rise of online obscenity. Section 67, 67A of the IT Act make the transmission of any obscene material in electronic form punishable by law. The IT Act expands on the BNS/IPC definition by adding that any material that tends “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…’ would be obscene under law.
ℱFor the purposes of obscenity, the overarching definition of Section 292, IPC 1860, and the legal developments in the same shall apply to Section 67 of the IT Act 2000. The IPC, being a much older law, has had much more run-ins with the apex court thus facilitating an exhaustive set of definitions and interpretations of obscenity which squarely apply to Section 67, IT Act 2000.
🍸The vagueness of these statutes—what is lascivious? How does one quantify whether a piece of content has depraved or corrupted its audience? —has made for rich ground of conflicting judgments from Indian courts over the years.
Legal Precedents
🌳While deciding the case, the SC held that ‘obscenity’ was not at that time defined under section 292 of IPC. The court applied the Community Standard Test, a modified version of the Hicklin test. As per this Indian test, any content or gesture is obscene only if the dominant theme is contrary to contemporary community standards. The apex court said that sex and nudity in art and literature alone cannot be obscenity. The bench also introduced the defence of “publication for the public good” against the charge of obscenity.
൲As jurisprudence in this matter developed, so did Indian precedents and the test for obscenity. In 1985 and 1996, the SC further considered whether something that is vulgar is obscenity under the law.
In Samaresh Bose v. Amal Mitra (1985), SC held that ‘what constitutes obscenity’ varies depending on the readers/viewers and their moral standards. The court further held that vulgarity and obscenity are distinct and should not be confused. In 1996, in the case of Om Pal Hoon💖, the SC bench held that “mere words cannot amount to obscenity unless they involve lascivious elements that arouse sexual thoughts and feelings.” In both cases, the apex court decided that vulgarity does not automatically amount to obscenity.
♏Over the years, there have been many cases of obscenity, and jurisprudence has developed on a case-by-case basis.
In 2014, in the case of Aveek Sarkar v. the State of West Bengal, the Supreme Court deviated from the Victorian-era test to use a more liberal American Roth test instead. The case involved the republication of an article in a German Magazine that contained a photograph of Boris Becker, a tennis 🍰superstar, posing nude with actor Barbara Feltus while covering her breasts with his hand. The SC ruled that the half-nude image of Becker with his fiancée was not obscene, because the image did not excite sexual passion or to deprave or corrupt minds of people. Here, the court decided that obscenity must be judged from a common man’s perspective, which changes along with the changing values of society.
In 2015, comedians from the All India Bakchod (AIB) found themselves in the middle of a controversy after they aired a roast episode in which many Bollywood celebrities like Ranveer Singh, Arjun Kapoor and Karan Johar were among those accused of obscenity. The Bombay High Court ཧstayed the arrest orders for the AIB comedians and celebrities involved but refused to squash the case.
𓄧In 2020, actor and model Milind Soman posted a picture of himself running nude on a Goan beach. Shortly after this, Goa police arrested him for “promoting an obscene act” under the IPC and the IT Act. Soman is no stranger to obscenity cases—he was booked along with Madhu Sapre for obscenity in regards to a 1995 Tuff shoe advertisement. A Mumbai court acquitted Soman and Sapre in that case in 2009.
💜The same year as Soman’s nude jog, the Goan police also charged actor Poonam Pandey with obscenity for filming a video at a dam. The video went viral on social media and caused outrage in the local community. The cops filed an FIR and questioned 39 people in connection to the case.
🥀In 2023, the Kerala High Court held that vulgarity and obscenity are distinct and should not be confused. The HC said that the mere sight of the naked woman was not sexual by default and the depiction of the naked body of a woman cannot per se be termed to be obscene, indecent, or sexually explicit.
