SECTIONS 292, 293

1. SECTIONS 292, 293 -TEJAL SHRINGARPURE VEENA BHATE SAYLEE SALVI ANINDITA GANGULY

2. Introduction • What is meant by Obscenity? • The state or quality of being obscene. • Something that is offensive or repulsive to the senses

3. Legal definition of Obscenity… • Obscenity is a legal term that applies to anything offensive to morals and is often equated with the term pornography. Pornography, however, is a more limited term, which refers to the erotic content of books, magazines, films, and recordings. Obscenity includes pornography, but may also include nude dancing, sexually oriented commercial telephone messages, and scatological comedy routines.

4. The two sections of Obscenity- • 292 • 293

5. Section 292 • A book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object, shall be deemed to be 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 persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.

6. Whoever sells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation, or for purposes of sale, hire, distribution, public exhibition or circulation, makes, produces any obscene book, pamphlet, paper, drawing, painting, representation or figure or any other obscene object.

7. Exception- • This section does not extend to- • Any book, pamphlet, paper, writing, drawing, painting, representation or figure (1) the publication of which is proved to be justified as being for the public good; (2) Which is kept or used bona fide for religious purposes. • Any representation sculptured, engraved, painted or otherwise represented on or in any ancient monument, any temple, or on any car used for the conveyance of idols, or kept or used for any religious purpose.

8. Section 293 • Whoever sells, lets to hire, distributes, exhibits or circulates to any person under the age of twenty years any such obscene object as is referred to in the last preceding section, or offers or attempts so to do, shall be punished [on first conviction with imprisonment of either description for a term which may extend to three years, and with fine which may extend to two thousand rupees, and, in the event of a second or subsequent conviction, with imprisonment of either description for a term which may extend to seven years, and also with fine which may extend to five thousand rupees]

9. HISTORY • The law covering obscenity is dealt with in the IPC of 1860. • These laws are relics of the colonial period and fundamentally at variance with the constitutional guarantees of freedom of expression. • These laws relating to obscenity are directly inherited from British colonialism

11. What is obscenity ? • Concept of obscenity differs from country to country depending on the moral standards of contemporary society.

12. NEED OF OBSCENITY LAW IN INDIA • The system of authoritative materials for grounding or guiding judicial and administrative action recognized or established in a politically organized society. • One of the most controversial issue in obscenity is balancing the need to protect society • Against the potential harm that may flow from Obscene material. • Need to ensure respect for the freedom of expression and to preserve a free flow of information and idea.

13. What the laws in India say ? • The law relating to obscenity is laid down in section 292 and 293 of the Indian penal code which came about by Act 36 of 1969 .

14. Analyzing the Indian Law • Amendments of 1969 brought about changes to obscenity law. • Primary object was to prevent circulation of and traffic in obscene literature . • Specifically to restrict communication of certain types of materials based on their content.

16. Analyzing continued….. • The obscenity legislation and jurisprudence prior to the enactment of Act 36 of 1969 were concerned with prohibiting ‘immoral influences’ of obscene publications and safeguarding the moral individual into whose hands such works could fall. • To impose a certain standard of public and sexual morality.(On society as a whole) • But at the same time exercise individual freedoms , which forms the basis of our constitution.

17. In Samaresh Bose vsAmalMitra • The concept of obscenity is moulded to a very great extent by the social outlook of the people who are generally expected to read the book. • Changes from person to person • Changes from country to country

18. Judging criteria of obscenity • Try to place himself in position of author • Viewpoint of the author • Place himself in the position of a reader of every age group in whose hands the book is likely to fall. • Understand the influence on the readers. • Thereafter apply his judicial mind.

20. Framing definition of obscenity • Defining the concept is very necessary in any law • Interpret obscenity basing on fact and circumstances • Obscenity law should avoid using vague and subjective terms, such as ‘indecent’ ‘absence’ and harmful to public moral’ • Obscenity restrictions must be aimed at preventing real harm

21. Obscenity law not only restricts material which can be shown to be harmful. • It also means that it predisposes person to act in an anti-social manner • Example – physical or mental mistreatment of women by men

22. Case study 1 • Bobby Art International & others v Om pal Singh Hoon & others

23. Citation – 1996 AIR (SC) 1846 • Judges – S P Bharucha; B N Kirpal • Facts - A writ petition was filed by the first respondent to quash the certificate of exhibition awarded to the film Bandit QUEEN. • The film was based on a book which had been in a market since 1991 without objection

24. The first respondent was president from Gujjar community • Issues – whether the portrayal of frontal nudity, rape and violence in the movie ‘Bandit Queen’, were obscene , indecent and denigrating to women

25. Arguments • Respondent contended that after seeing the film his fundamental rights were violated • Alleged that the depictions in the movie were “abhorent and gross and a slur of womanhood in India.” • Also claimed that a rape scene in the film was suggestive of the moral depravity of the Gujjar community because the rapist was Gujjar • Thus, the film depicted the petitioner and his community as rapists and lower the reputation of the Gujjar community

26. Decision • The court observed that a film that illustrates the consequences of a social evil necessarily must show that social evil • Theme of the film • Scenes of the nudity and rape and use of expletives, were in aid of the theme and intended not to arouse prurient or lascivious thoughts but revulsions against the perpetrators and pity for the victim

27. Case study 2 • Maqbool Fida Husain V Raj kumar Pandey

28. Citation - Crl. Revision Petition No. 114/2007 • Facts – M F Hussain painted an art work of a nude lady in grief without giving it any title. The untitled painting was sold to a private collector in 2004 • In 2006, it was an part of an online charity auction for victims of the earthquake under the name ‘Bharat Mata’. • Hussain had no role or involvement in this auction • Large scale protests against the painting • Apology

29. Several complaints were filed in different parts of the country alleging various offences against MF Hussain. • Arrest warrants • APEX court consented and matter was consolidated and transferred to the court of ld.ACMM , Delhi, by way of transfer petitions. • This court issues summons against the petitioner, M F Hussain, for crimes under Sectio n 292.

30. Arguments – • The petitioner, M F Husain, argued that, on the face of it, the painting contained no material that could be held to be obscene in terms of the legal definition of obscenity. • He argued that there was nothing in the painting that could be interpreted to be lascivious or appealing to the prurient interest, or tending to deprave or corrupt persons likely to view the painting, and that its identity was irrelevant to the alleged obscenity of the painting.  

31. The petitioner pointed out that as soon as complaints were filed and protests held against the painting, he had tendered an unconditional apology and the painting was withdrawn from the auction.  • The respondents alleged that the petitioner’s acts had hurt the sentiments of Hindus and all patriotic Indians. A line had to be drawn where the average person with morals begins to feel embarrassed or disgusted at a naked portrayal of life without the redeeming touch of art or genuine or social value.  

32. Decision • The court held that, on the face of it, the painting was neither lascivious nor likely to appeal to the prurient interest – ie, the painting would not arouse sexual interest in a perverted person and would not morally corrupt or debase a person viewing it.   • The nude woman was not shown in any peculiar kind of posture, nor were her surroundings painted so as to arouse sexual feelings or lust. The placement of the Ashoka Chakra was also not on any particular part of the body of the woman that could be deemed to show disrespect to the national emblem.  

33. The court pointed out that “...the literature of India, both religious and secular, is full of sexual allusions, sexual symbolisms and passages of such frank eroticism the likes of which are not to be found elsewhere in world literature”. It went on to state that “While an artist should have creative freedom, he is not free to do anything he wants. The line which needs to be drawn is between art as an expression of beauty and art as an expression of an ill mind intoxicated with a vulgar manifestation of counter-culture where the latter needs to be kept away from a civilian society.” • According to the judges, “There are very few people with a gift to think out of the box and seize opportunities, and therefore such people’s thoughts should not be curtailed by the age-old moral sanctions of a particular section of society having oblique or collateral motives who express their dissent at every drop of a hat.” 

34. PRAJAPATI NOVEL CASE Samaresh Bose and Another v Amal Mitra and Another

35. BACKGROUND FACTS • Samaresh Bose,the first appellent is a famous Bengali Author of novels and short stories. One of his work-’Prajapati’was published in Sarodiya Desh, a journal of Bengali literature with wide circulation. • Sitangshu Kumar Dasgupta, the second appellant, was the publisher and the printer of the journal at the relevant time. • Judges: Amarendra Nath Sen, R S Pathak

36. On February 2, 1968, Amal Mitra, a young advocate, made an application in the court of the Chief Presidency Magistrate at Calcutta and complained that the novel was found to be obscene • Both the accused persons were said to have committed an offence punishable under Section 292 of the Indian Penal Code and under Section 292 read with Section 109 IPC • Both the accused persons were convicted of charges under Section 292 • The magistrate ordered that the offending portions in the journal be destroyed.

37. The appellants then filed appeals in the Calcutta High Court. The appeals were dismissed and the high court held that the Chief Presidency Magistrate should also take appropriate steps to destroy the offending portions of the journal in respect of the novel if published in book form • The author and publisher then filed an appeal in the Supreme Court. The question for consideration in this appeal was whether the two appellants could be said to have committed an offence under Section 292. • In order to decide this, the court looked at whether or not the novel Prajapati was obscene.

38. ISSUES LOOKED INTO THE CASE • The court was faced to decide what ‘constituted’ obscenity and whether the content of the book was obscene • Whether references to kissing, descriptions of the body and the figures of female characters in the book and suggestions of sex acts by themselves have the effect of depraving and debasing, and encouraging lasciviousness among, readers of any age, and must therefore be considered obscene.

39. The appellants argued that the novel depicts the feelings, thoughts, actions and life of Sukhen, the hero of the novel and its main character • Through them,the author has condemned and criticised various prevalent aspects of life in various strata of society • If cultured and sophisticated words were used for the portrayal of the character, the entire portrayal of Sukhen's character would become unreal and meaningless. • They argued that the book had a social purpose to serve and had been written with the primary object of focusing the attention on the various ills and maladies ailing society and destroying the social fabric. • The state of West Bengal supported the judgment of the Chief Presidency Magistrate and the high court

40. The Supreme Court allowed the appeal and dismissed the charges of obscenity. It held that vulgar writing is not necessarily obscene • The court said that although, in some places in the book there may have been an exhibition of bad taste, it was up to readers of experience and maturity to draw the necessary inference. The court said that it was not sufficient to bring home to adolescents any suggestion that was depraving or lascivious • SC held “it cannot be right to insist that the standard should always be for the writer to see that the adolescent may not be brought into contact with sex. If a reference to sex by itself in any novel is considered to be obscene and not fit to be read by adolescents, adolescents will not be in a position to read any novel and have to read books which are purely religious".

41. DPS MMS SCANDAL Avnish Bajaj vs State Bench: S Muralidhar

42. BACKGROUND FACTS • Bazee India Private Ltd. –owner of an online shopping portal-website http://www.baazee.com • Subsequently , a wholly owned subsidiary of Ebay Inc. USA, renamed as Ebay India Private Limited (EIPL) • The website baazee.com provided an online platform or market where a seller and a buyer could interact. • To be either a seller or buyer a person had to first register himself with baazee.com by filling out an online form giving contact details

43. For selling, a user had to use his unique ‘bazee id’ to log on and create a ‘listing’, by classifying the product under a correct ‘category’ and ‘sub category’ for the proposed product • The seller had to provide a title and a text of description –brand name, model no. and an image that depicts the item correctly. • Baazee.com also offered a mode of receiving payment under 'paisapay'. The user could also opt for other methods like cheques, demand drafts, cash on delivery etc.

44. BIPL had a Safety and Trust Division which instituted word and text filters for the site • A Community Watch Programme was also operational –The users could bring to notice of any objectionable material being listed.It would be removed • Once the item was automatically screened by the filter, the listing was placed on the site with a unique computer generated item ID • Incase of buying, registered users searched and selcted the item by clicking ‘Buy Now’. • The method of payment was selected-cheque, bank transfers,credit cards etc.

45. If the buyer opted for a "paisapay" option and made an online payment, the normal banking payment gateway got attracted. • Once the payment gateway confirmed the receipt of the payment then an automated payment confirmation was sent to the buyer. • Thereafter the buyer received the item, depending on the product, through email, hand delivery, courier or post • For this financial arrangement system, the website had tied up with the –HDFC Bank. • For facilitating this entire transaction BIPL received a commission which was usually a percentage of the selling price of the product.

46. SEQUENCE OF EVENTS • The sequence of events relevant to the present case unfolded thus. • Ravi Raj, a fourth year student of the Indian Institute of Technology (IIT) Kharagpur, was registered as a seller with baazee.com since 21st July 2004. • In the evening of Saturday 27th November 2004, Ravi Raj placed on the baazee.com website a listing offering an MMS video clip for sale at Rs. 125 per piece.

47. Adopted fake name-Alice electronics. Gave fake address. • Included the clip under the category Books and Magazines and sub-category 'e-books‘ to avoid detection by the filters • Although baazee.com did have a filter for some of the words which appear on the website, the listing nevertheless took place. • The electronic website baazee.com when visited had the following item description on its site: "Item 27877408 - DPS Girls having fun!!! full video + Baazee points." • The price was Rs. 125.

48. . Upon clicking on the item description, the listing read as under: • “DPS Girls having fun!!! Do you want to see that video clip which has rocked the whole DELHI and now has become a hot point of discussion in the entire Nation?YES, Then what are you waiting for!!!! Just order for this product and it will be delivered to you within few hours.This video is of a girl of DPS RK PURAM which has been filmed by his boyfriend in very sexual explicit conditions. Please note: This video clip of around 2:30 Minutes and will be send to you as an email attachment.”

49. The buyer had to pay Rs. 128 per clip which included a commission of Rs.3 that went to BIPL. • This was deducted from the amount received from the buyer and the balance of Rs. 125 per clip was remitted to the seller by the HDFC bank. • The seller, on receiving confirmation that payment had been made, would send the video clip by an email attachment by a zip file with the description 'dps_rkpuram-sex-scandle.zip'. • Between around 8.30 pm in the evening of November 27th 2004 when the listing went on line till around 10 am on 29th November 2004 when the listing was de-activated, eight transactions of sale of the said video clip took place to buyers located in various parts of the country.

50. At around 8.20 pm on Saturday 27th November 2004 information was received on email by a user, through the community watch programme, that reported the clip listing on the website to BIPL • This email was assigned to Namrata of BIPL at around 8.25pm on 27th November 2004 itself. At around 6:25pm on the next date i.e. 28th November 2004, which happened to be a Sunday, it was assigned to Swapna Sawant of the BIPL and the priority was shifted to the 'high alert' category. • 29th November 2004 at 10:10am baazee.com wrote to Alice Electronics that the listing it had put up was obscene or pornographic and was closed by the site