Nishtha Chopra
INTRODUCTION
Kerala High Court’s recent judgement on obscenity not being synonymous with sex and nudity has garnered attention for both good and bad reasons. The Kerala High Court in XXX v. State of Kerala acquitted a woman who had uploaded a video on social media showing her children painting on her semi-nude body. She was booked for offences under Sections 13, 14 and 15 of POCSO, Section 67B(d) of the IT Act, 2000 and Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act). However, what garnered significant attention was the court’s observations and applications of the available jurisprudence on obscenity. This brings into the limelight the procedure followed in cases regarding obscenity in India.
CONTEMPORARINESS OF THE COMMUNITY STANDARDS TEST
Currently, Indian courts use the community standards test, recognized in the case of Aveek Sarkar v. State of West Bengal on the basis of the available legal jurisprudence in Canada and USA, to ascertain whether a particular material is obscene or not. The recent judgement of the High court in Kerala applied this test to determine whether the video was obscene or not. Even though India’s transition from the Hicklin’s test to the community standards test for obscenity was commendable, the question arises whether the community standards test currently in use is the best measure of ascertainment of obscenity. This becomes a question of increasing importance when the growing age of the internet poses additional issues regarding implementing the community standards test.
EVOLUTION FROM HICKLIN’S TEST TO THE COMMUNITY STANDARDS TEST
In India, the Supreme Court accepted the usage of the Hicklin Test in Ranjit D. Udeshi v. State of Maharashtra, borrowing from the case of Regina v. Hicklin which performed the major role in the formulation of the Hicklin’s test. The Hicklin’s test comes with two major points – one, it considers the material provided out of context and two, it judges based on the apparent influence of the concerned material on the most susceptible readers.
In Aveek Sarkar v. State of West Bengal, the Supreme Court made a noteworthy shift from the Hicklin’s test to the community standards test. The court noted that regard must be made to the contemporary and national standards and the changing notions of obscenity. A major shift from the Hicklin’s test was observed as the Court noted that consideration should not be given to the standards of a group of most susceptible or sensitive persons.
COMMUNITY STANDARDS TEST: WHY SHOULD IT BE RECONSIDERED?
The Supreme Court relied on several judgements of the United States and Canada where the community standards test had been applied, with no attention to the fact that at the time when India adopted it, Canada had moved on from the said test and research scholars and jurists in United States had already started to criticize the same formulated in Roth v. United States.
The criticisms had led to numerous amendments to the original test, especially by Memoirs v. Massachusetts and Miller v. California in the United States. Distinctively, two additional factors of “patently offensive” and “of no redeeming social value” have been added making it a three-pronged approach. Moreover, in R v Butler, the majority did not agree with the application of the community standards test only and instead called for a conceptual linkage between the dehumanizing test and the contemporary community standards test. One of the reasons for moving away from the sole application of the test was the need for more objectivity in the test and the subsequent difficulties the lower courts’ judges faced while reaching to a factual decision. In R v. Labaye, the Canadian Supreme Court completely moved on as far as the community standards test is concerned.
SHORTCOMINGS OF THE CONTEMPORARY COMMUNITY STANDARDS TEST IN INDIA
Even though the Supreme Court has made a significant shift from the Hicklin’s test to the community standards test, the concept has yet to be largely developed in India, in the sense that even though the courts have set national standards as the criteria to determine obscenity, there is little to no discussion as to how these national standards are to be ascertained. The Indian courts have mostly turned a blind eye to the criticism the test has achieved in Canada and the USA. The courts have at times, considered factors like artistic expression in determining if something is obscene or not, but due to the lack of well-thought-out jurisprudence on the same, it is bound to be misused.
- National Standards
In Aveek Sarkar, the Supreme Court of India applied the community standards test giving due regard to the national standards of the Indian community rather than local community standards. In Miller v. California, the American court observed that national standards are hypothetical and unascertainable. India is known for its diversity which is also reflected in people’s opinions. For instance, according to surveys, the people from the southern part of India are considered far more liberal when it comes to religion and gender. This diversity thus, leads to people from different parts of the country to have different opinions as to what can be considered tolerable and what can’t be, be it the decision regarding who should a woman marry or what they can tolerate as far as male and female nudity and sexuality is concerned. This means that a uniform national standard of values regarding obscenity does not exist in India.
- Is the Reasonable Person the ‘reasonable standard’?
The Supreme Court of India, accordingly, needs to deliberate more on whether the majority opinion or the opinion of an average reasonable man is to be considered while evaluating the community standards test. However, relying completely on the judgement in Aveek Sarkar the Court expresses discontent on using the opinion of a certain group of persons to come to this community standard. There are references to considering the opinion of a ‘reasonable’ man or the ‘ordinary’ man. This is problematic as firstly, a reasonable man may largely go only by a matter of feeling and secondly, the very idea of determining what a ‘reasonable man standard’ is in a country like India is an issue. The concept of reasonable man has come into considerable criticism because of the issues related to coming to a definite standard of what a reasonable man, and even a reasonable woman, looks like. This means that in a country as diverse as India, it comes back to the whims and fancies and biases of the individual judges to decide the ‘standard’ in each context. As stated by Patrick Delvin himself, it must be noted that the reasonable man is not the same as a rational man and is devoid of the expectation to reason about anything. Is it fair to consider the standard of an entity who is not ‘rational’ and is devoid of ‘reason’ to be the ultimate guide to determine what should be the law? Probably not.
The Indian courts, while deciding on the obscenity of a particular material, have not been known to gather objective evidence as to what the national standards are. For instance, in XXX v. State of Kerala the judge noted that the societal perception to the case might be different when it was observed that there are double standards prevailing in the society regarding male and female bodies. However, the judgment was delivered on the basis of the biases and considerations of the judge where gathering evidence as to what the ‘common man’ thinks was almost impossible. The Canadian Supreme Court has criticized the reliability of the apparent fact that such standards are unascertainable given the diversity of a country as large as that. This means that coming at a single majority in a country like India with people from different cultures and religions and variations within a particular religion as well, might not even be possible and more importantly, ethically incorrect.
- Lack of adequate protection for artist’s expression
Just as Article 19(1)(a) protects the fundamental right of speech and expression, the obscenity laws take away this right by imposing a ‘reasonable’ restriction on it. Thus, it separates what cannot be protected from what can be protected. In Ranjit D Udeshi, the Supreme Court stated that the task of distinguishing between what is artistic and needs to be protected must be determined by the courts. Even though it had suggested that instances of sex and nudity in art and literature do not necessarily equate to obscenity, is there enough jurisprudence and legal authorities to aid the lower courts in performing this delicate task? The answer is no. More than mere declarations of protection in cases of artistic value are needed, and specific and narrowed-down procedures must be in place.
CONCLUSION
The development of an objective lens to view the community standards is the first step which should be taken to reform the law. More than a decade back, Google devised a solution to do so by looking at the search data of the individuals residing in a particular area. However, this solution again takes us back to the same community standards test as the algorithm and the search data is a result of the behaviour of the community itself. Moreover, a whopping 48% of Indians still do not have access to the internet, which makes it hard to gather the ‘real’ objective data. However, an objective procedure of determination can be worth exploring in the future. As a logical corollary, this also makes a pressing argument for reconsidering the geographical differences in obscenity tests in India and devising a solution to determine the community standards as a whole that apply to the entire country.
The Canadian Supreme Court in R v. Butler had mentioned the “internal necessities” test which states that only if a work contains sexually explicit material that by itself will not equate to undue exploitation of sex. It further states that the courts must consider the artistic work in the whole context and whether the material in question was an essential part of the whole work. The factor of essentiality can help Indian lower courts to evaluate the material in question adequately to protect the freedom of speech and expression. An obvious counter to this solution is the yet abstract concept of “essentiality”.
Applause has been coming from all corners of the country on the recent judgement of the Kerala High Court in acquitting a woman of posting a video of her son painting her naked upper body. However, an high court judgement can do little when it comes to jurisprudence guiding obscenity censorship in the country when there is judgements to the contrary by the Supreme Court of India. Following the principles set by the Apex Court, there was no objective consideration of the fundamental community standards, and observations were made merely on the knowledge and biases of the judges. In these times of increasing demand of censorship on the internet and in the movies, the Apex Court should reconsider the manner in which community standards in obscenity laws is determined. Lack of uniformity, unnecessary convictions by the lower courts and an outdated and underdeveloped procedure plague the Indian justice system if the above issues are not resolved.
The author is a second year student at Dr. Ram Manohar Lohiya National Law University
Image Credits: JournalsofIndia
Constitutional Law Society 
The case mentioned “United States v. Hicklin” is incorrect. The decision in Ranjit Udeshi was based on Regina v. Hicklin, an English case.
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