From Liberty to Limitation: The Complex Relationship Between Free Speech and Obscenity

Author- Aniket Tiwari, Student, New Law College, Bharati Vidyapeeth, Pune,

Abstract

This article critically examines how Indian obscenity law constrains the constitutionally

guaranteed freedom of speech and expression, especially in the context of evolving social norms

and digital media. It interrogates whether criminal liability for obscenity should arise even in the

absence of a culpable mens rea, and how courts ought to draw the line between vulgarity and

punishable obscenity. Tracing the doctrinal journey from the Hicklin test to the contemporary

community standards approach, the paper highlights the inherent subjectivity and inconsistency

produced by vague notions of “decency,” “morality,” and “obscenity” under Article 19(2) and

sections 294–296 of the Bharatiya Nyaya Sanhita, 2023. It argues that the problem is exacerbated

in the digital age by the absence of clear statutory definitions, weak takedown mechanisms, and

the lack of platform accountability for obscene content on social media and streaming services.

Engaging with Dr B.R. Ambedkar’s emphasis on substantive legislation, the article calls for

Parliament to codify a precise, rights compatible definition of obscenity and to adopt a uniform,

contemporary test that can be applied consistently across cases. It concludes by proposing a

calibrated framework that simultaneously safeguards artistic and expressive freedom under

Article 19(1)(a) and enables effective, timebound regulation and removal of genuinely obscene

material in a plural, culturally diverse society.

Introduction.

Various events in the recent past, such as the nude photo shoots of Bollywood star Ranveer Singh

and comments made by YouTuber Ranveer Allahbadia on the popular show “India’s Got Talent,”

have raised legal questions. A key issue revolves around the concept of Mens Rea (guilty mind)

in criminal law. Specifically, the question is whether artistic expression that may deprave and

corrupt a person's mind, even without malicious intent, can be deemed liable for the crime of

obscenity.

Freedom of speech and expression is protected under Article 19(1)(a) 1 of the Constitution of

India; however, it is subject to reasonable restrictions as outlined in Clause 2 of the same article.

The terms decency and morality; provide a broad framework for these reasonable restrictions.

Notably, the phrase reasonable restriction is not defined in the Constitution itself or any

statutory laws in India. In the case of the State of Madras v. V.G. Row 2 , the Supreme Court

clarified that an abstract standard or general criterion of reasonableness cannot be established for

all cases and situations. The reasonableness test may vary depending on the right being restricted

by the law in question. Sections 294 3 (sale, etc., of obscene books), 295 4 (sale, etc., of obscene

objects to children), and 296 5 (obscene acts and songs) of the Bharatiya Nyaya Sanhita, 2023,

empower the court to convict individuals for the crime of obscenity. However, a significant issue

arises because obscenity is not explicitly defined in any statutory laws in the country, and it is

challenging to define obscenity because obscenity is dynamic; it depends on the society what is

considered to be obscene or not.

In the case of Ajay Goswami vs. the Union of India and another 6 , the Supreme Court noted that

the definition of obscenity varies across different cultures, within communities of the same

culture, and even among individuals within those communities. Many cultures have established

laws to define what is deemed obscene, and censorship is frequently employed to suppress or

control materials that fall under these definitions.

The legal battle and testing of obscenity.

In India, two widely used tests assess obscenity in artistic expression and materials that may

provoke prurient thoughts. In the landmark Judgment of 1964 case, Ranjit D. Udeshi v. State of

Maharashtra , the Supreme Court applied the Victorian-era Hicklin test to prohibit the

publication of D.H. Lawrence's *Lady Chatterley’s Lover*. This test defined obscenity as

anything with a “tendency to deprave and corrupt” individuals who are susceptible to immoral

influences. However, the Hicklin test allows for a broader restriction of artistic expression.

Today, few would consider *Lady Chatterley’s Lover* obscene; instead, it is regarded as a

literary masterpiece. Years later, in the case of Aveek Sarkar v. State of West Bengal 8 , the Court

adopted the “community standards” test, which is a more contemporary approach. However,

defining community standards can be challenging, as they are often vague and subject to change.

The community standards test is often vague, as it depends on societal views of obscenity.

The standards for determining obscenity continue to evolve with societal changes. What one

society considers obscene may not be viewed the same way in another. Therefore, it's important

to recognise that the criteria for defining obscenity depend on the specific society in question.

According to the Supreme Court in the S. Khushboo v. Kanniammal case, 9 obscenity must be

assessed in line with contemporary community standards that reflect the sensibilities and

tolerance levels of the average reasonable person. However, it is pertinent to note that in a

country like India, where different strata of people live, what is considered to be obscene or not

depends on the culture and individuals of that particular society. By the above phrase, one can

assume how difficult it is to implement the Community Standard test, and it also depends on the

judges who give different judgments. Hence, there is no continuity in the judgments of the same

type of case.

Obscenity in the Digital Age: India’s Battle Against Evolving Norms.

In the era of digitalisation, where people start their day by scrolling through their mobile phone,

coming up with something may provoke prurient thought. There is a law to regularise this

problem, but without defining the term Obscenity, what is obscene or not depends on the

community, or on that particular individual, and this wholly depends on the matter of fact. There

is also no effective mechanism in India that strikes down the obscene material from social media

within an hour after it is uploaded, and there is no liability of the social media platform by which

obscene material is transmitted in the digital sphere.

The terms obscenity, decency and morality remain undefined, and no one has attempted to

define these expressions. This issue is peripheral to the evolving nature of society's

understanding of obscenity, decency, and morality. Dr B.R. Ambedkar believed it was wiser to

allow the legislature to establish forms of administration rather than embed them in the

Constitution. In this context, Dr Ambedkar is advocating for substantive law; however, society is

struggling to define these terms and expressions in a prudent manner. The absence of laws that

clearly outline what constitutes obscenity and what violates decency and morality in society is a

significant concern.

Codifying Statutory Frameworks.

Art reflects society, and democracy requires the unwavering protection of free speech and

expression, which are natural rights of individuals. The remarks made by YouTuber Ranveer

Allahbadia on the popular show “India’s Got Latent” may certainly be considered vulgar, but

whether they qualify as obscenity is ultimately a legal question. As Ambedkar advocated for

substantial laws, it is essential for legislation to establish clear definitions and guidelines to

address issues of obscenity, vulgarity, decency, and morality in an evolving society. Such laws

should define expressions in a precise manner to ensure that no one can bypass them.

Defining obscenity in our evolving society is a challenging task, which raises important

questions about how Parliament and the courts should respond to issues of obscenity. To address

this, here are some suggestions: first, we should establish a definition of obscenity that reflects

contemporary societal values. Additionally, we need a standardised test that can be applied

consistently in every case to determine whether a particular material is obscene or not.

Conclusion.

After defining what is obscene or not by the law-making body of the country, and having

established a standardised test for the testing of obscenity. We have to look forward to regulating

the social media and streaming platforms from which obscene material is transmitted into the

daily lives of people. We should build such a strong department in the I.T Cell that looks over

obscene material on social media and streaming platforms and strikes it down within an hour of

uploading it. However, it is important to define the term “Obscene” in a manner that ensures

protection under Article 19 of the Constitution of India.

With effective laws that protect Article 19 and define Obscenity simultaneously, and with a

better implementation mechanism, we can achieve better implementation of the law in a civilised

society.

Reference

1 The Constitution of India, art. 19(1)(a).

2 State of Madras v. V.G. Row, AIR 1952 SC 196: 1952 SCC OnLine SC 34.

3 The Bharatiya Nyaya Sanhita, 2023 (Act 45 of 2023), s. 294.

4 The Bharatiya Nyaya Sanhita, 2023 (Act 45 of 2023), s. 295.

5 The Bharatiya Nyaya Sanhita, 2023 (Act 45 of 2023), s. 296.

6 Ajay Goswami v. Union of India, AIR 2007 SC 493: 2006 SCC OnLine SC 1389.

7 Ranjit D. Udeshi v. State of Maharashtra, AIR 1965 SC 881: 1964 SCC OnLine SC 52:(1964) 1 SCR 65.

8 Aveek Sarkar v. State of West Bengal, (2014) 4 SCC 257.

9 S. Khushboo v. Kanniammal, (2010) 5 SCC 600.

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