By Col R Hariharan
The Nagpur bench of the Bombay High Court recently held that wearing short skirts, dancing provocatively or making gestures cannot be considered obscene acts as per Section 294 of the Indian Penal Code (IPC) 1860.
In Lalita Bais & Ors vs State of Maharashtra, Justices Vinay Joshi and Valmiki Sa Menezes, while quashing an FIR against five individuals booked for watching a dance performance by women wearing short clothes, preferred “taking a progressive view in the matter” and were “unwilling to leave such a decision in the hands of police officials”.
They added: “We often witness this manner of dress in films that pass censorship or at beauty pageants held in broad public view, without causing annoyance to any audience. Surely the provisions of Sec 294 of the IPC (obscenity) would not apply to this situation.”
The judgment validates Yale Law School professor Grant Gilmore’s observation in his book The Ages of American Law: “Law reflects but in no sense determines the moral worth of a society. The better the society, the less law there will be. In heaven there will be no law, and the lion shall lie down with the lamb.”
Of course, this was not the first time the courts or society tried to come to terms with “obscenity”. Theoretically, it should not be difficult in the land where Vatsyayana wrote the world’s oldest sex manual Kamasutra. Across India, sculptors of yore immortalised Kamasutra in stone on the walls of temples such as in Khajuraho. The Bhakti cult classic Jayadeva’s Gita Govinda visualised the deep spiritual state of longing as intense love of the gopis (cowherd maidens) for Krishna. In 19th century Avadh, the kotha (bordello) culture was accepted as the hallmark of high society. Actually, India that was Bharat, with diverse religions, races, languages and cultural traditions left it to local communities to observe decency, rather than codifying obscenity.
However, the advent of British colonialism governed by Christian moral principles, based on the story of Adam and Eve, codified obscenity in the Indian Penal Code 1860 (IPC) under Sections 292, 293 and 294.
Section 292 says that any content would be considered obscene if it strikes at the lascivious, voyeuristic, salacious or lustful interests of a person and consequently depraves or sexually corrupts a person likely to read, see or hear it. Section 293 deals with the offence of publication, selling, distributing, exhibiting and circulating obscene objects. Section 294 deals with obscene acts and songs to the annoyance of others and in public places.
Since then, there have been a number of enactments to tackle obscenity in keeping with society’s quest for protecting gender equity and children’s rights. Young Persons (Harmful Publications) Act, 1956, seeks to punish a person who advertises or makes known by any means whatsoever that harmful publications can be procured from or through any person.
The Indecent Representation of Women (Prohibition Act), 1986, was enacted to punish coarse representation of women in advertisements. It refers to “the illustration in any other manner of the figure of women; her form or any other part indecently or outrageous to or denigrating women, or is likely to deprive, corrupt or injure the public virtue or morals”. One has to pity law enforcing officers saddled with the task of going through the semantic jugglery of words “deprive, corrupt or injure the public virtue or morals” to file a chargesheet under this Section.
Advances in communication technology have opened up new avenues of legal quest to save public morals from obscenity. Information technology domains are now universally accessible and are being brought to account for the legality of their contents. There is an ongoing struggle for governments everywhere, including India, on how to tame the IT giants to conform to country-specific laws.
Information Technology (Amendment) Act, 2008, Section 67(A) seeks to punish publication of sexual content on a social media site. Perhaps Section 67(B) of the amendment seeks to arm the war against child pornography. It makes it clear that not only publication and viewing, but also possession of such pornographic material is punishable. The Protection of Children from Sexual Offences Act, 2012 (POCSO) specifically addresses the offence of sexting a minor or sending them obscene content in the form of pictures, videos, films, etc.
But the advent of OTT platforms revolutionised access of the common man to international media, particularly movies. I am reliving my juvenile fascination for Wild West movies to watch John Wayne, grunting his dialogue even as he puts a bullet in the forehead of villains like Lee Van Cleef or Eli Wallach. Who can forget the wiry Clint Eastwood, chewing a cigar, shooting his way through The Good, the Bad and the Ugly?
That is not all. Mothers, who in yesteryears frowned upon sleeveless blouses in the 60s (remember Waheeda Rehman’s Bollywood quote on the subject), are casually accepting their daughters appearing in string bikinis in provocative poses in Instagram. The generation that was aghast at the partial nudity displayed by Zeenat Aman in Satyam Shivam Sundaram in the 70s is seen dozing off in front of scenes of frontal nudity, lesbian and homosexual acts on OTTs as part of their afternoon fare.
Obscenity, it seems, has come of age. With the introduction of 3D technology in the coming years, judges are going to find it more and more difficult to legally define obscenity. Society’s increasing acceptance of yesterday’s obscene scenes as current day norms on OTT platforms raises a few questions. Is obscenity getting democratised, thanks to the electronic technology revolution in the media? It would appear so. Or is it social evolution that is coming to terms with the human body? Probably, it is the technology revolution, aided by electronic media that is hastening the change in social perceptions of obscenity. In other words, the dynamics of social change is “liberalising” views on obscenity.
Will smut gain acceptance in popular media? I hope not, because it will make the scribe’s job more difficult. Novelist Ernest Hemingway vocalised the problem of writers on obscenity: “Here is the piece. If you can’t say fornicate, can you say copulate or if not that, can you say cohabit? If not that, I would have to say consummate I suppose. Use your own good taste and judgment.” That is sound advice.
—The writer is a retired military intelligence specialist on South Asia associated with the Chennai Centre for China Studies