Obscenity or Absurdity: The Unclear Laws In India
Aashia Jindal, Sanket Gupta
The term ‘Obscene’ is used to describe those things which are either disgusting to the senses or offensive to an individual in a sexual manner whereby they aim to incite lust in a person. The Constitution of India has on one hand provided the freedom of speech and expression to its citizens while at the same time IPC and other statues discussed within the article have curtailed this freedom by penalizing those expressions which come within the ambits of the term ‘Obscene’. However, despite having a dictionary meaning, the exact interpretation of the term ‘obscene’ is not clear and even in instances where this term has been tried to be interpreted, there have been several wrong interpretations of the word, so cumulatively this has led to a denial of freedom of speech and expression as guaranteed by Article 19(1)(a) of the Constitution of India in its true sense and at the same time led to misunderstanding of the penal provisions with respect to the term. This paper deals with the laws which relate to the legal status of obscenity in India and tries to understand the anomaly on the subject as well as discuss the same in other countries like UK and USA. The paper also tries to illustrate the cases and the incidents where the judiciary has been on the wrong foot and has confused art with nudity or reality with vulgarity. There is a need to reform the vague laws which govern obscenity in the country so as to balance the interests of the public at large and the creator or publisher of the content. Through this paper, the author has tried to throw light on the fact that in developing and democratic countries like India, everyone has the same fundamental rights; therefore, consequently, the fundamental right of one cannot supersede the same of another.
Introduction
One of the basic fundamental rights that any human being will acquire on their birth is the Freedom of Speech and Expression. It is by virtue of this right that every person has the liberty to express themselves and to convey their thoughts, speech and feelings.
The 1948 instrument known as Universal Declaration of Human Rights or UDHR for short proclaims thatthe right to freedom of speech, opinion and expression is available with all and includes within its ambits not only the freedom to hold personal opinions without any kind of influence or interference but also the freedom to ask for, to receive and to impart through any media any information or ideas
Thus, the spirit of this fundamental right, which has been guaranteed to us under Article 19 in Part III of the Constitution, is the ability to speak, think and express freely without any fear and to be able to obtain information from others through publications without the apprehension of having to face unreasonable punishment, control, limitation or penalty of any kind.
Read More...Legal Era Online (2015), Right to Privacy - Reading of Obscene and Censored books.
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LEXLIFE India (2020), Criminal law: Obscenity. https://lexlife.in/2020/06/04/criminal-lawobscenity/
Legal Information Institute (2017), Obscenity."https://www.law.cornell.edu/wex/obscenity"
The Indian Express (2020), Explained: What is the measure of ‘Obscenity’ in India?
Universal Declaration of Human Rights, 1948
Constitution of India, 1950
Indian Penal Code, 1860.
Indecent Representation of Women (Prohibition) Act, 1986
Cable Television Networks (Regulation) Act, 1995
Cinematograph Act, 1952
The Young Persons (Harmful Publication) Act, 1956
The Information Technology Act, 2000
Universal Declaration of Human Rights.
All India Reporter (AIR)
Law Reporter
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Criminal Justice and Immigration Act, 2008.