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Vulgarity vs obscenity
The Bombay high court restrained the police from arresting AIB members on grounds that their comedy was vulgar but not obscene. What's the difference?
Sadat Hasan Manto, the legendary Urdu writer, was a plain, blunt man. Sometimes, this got him into trouble.
For instance, Manto was once dragged to court on the charge of writing obscene stories, such as the famous 1944 short story Bu (odour).
In court, a prosecution witness claimed that Manto had used the word “bosom” to describe a woman’s breasts. Manto leapt to his feet. “What else did you expect me to call a woman’s breasts—peanuts?”
Manto won his case, but nearly got thrown out of court for contempt.
In his time, the writer frequently outraged his conservative community members by pushing the boundaries of the socially acceptable.
From Manto to the AIB Roast, have we come very far at all?
So who cares about obscenity anyway?
Everyone who has ever written or said something in public, or posted online, or sent an email, should care.
This probably includes you, the reader.
Obscenity is a criminal offence across a variety of laws. The Indian Penal Code in section 292 and section 294 criminalize publishing obscene books, singing obscene songs, and doing obscene acts in or near a public place.
The Information Technology Act punishes the online transmission or publication of sexually explicit acts. The Post Office Act prohibits transmitting obscene materials by post. There are other laws as well, but the broad point is that obscenity legislation covers a vast range of daily activities.
And, as the AIB case demonstrates, you never know when someone might go to the police and ask them to initiate criminal proceedings against you.
It does seem, though, that the folks at the comedy collective All India Bakchod (AIB) are going to get away with just a scare, this time.
On Tuesday, the Bombay high court restrained the police from arresting the comedians, remarking that although the AIB’s much publicised roast of Bollywood actors Arjun Kapoor and Ranveer Singh was vulgar, it was not obscene.
Wait—vulgar but not obscene? How do you differentiate between the two?
Well, lawyers are notorious for splitting hairs over words. Let’s check the dictionary.
According to Merriam-Webster, “vulgar” refers to something that is “offensive in language”, or “lewdly or profanely indecent.”
“Obscene”, on the other hand, is defined as “disgusting to the senses”, “so excessive as to be offensive”, and “abhorrent to morality or virtue, designed to incite lust or depravity.”
Section 292 of the India Penal Code (IPC) says: “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 (is) such as to tend to deprave and corrupt person”.
That’s some hot and heavy stuff. So what’s the difference again?
You’re right, that’s not terribly helpful.
We’ll just have to look at how the courts have tried to make sense of it, then.
The first major case dealing with obscenity law in India was Ranjit Udeshi vs State of Maharashtra, decided more than 50 years ago, in 1964.
Interestingly, we didn’t have much of our own obscenity jurisprudence in India, because in that Supreme Court case, the very constitutionality of the anti-obscenity section 292 of the IPC was challenged.
The court was rather conservative in its approach.
It upheld section 292, as well as the government’s ban on D.H. Lawrence’s 1928 novel, Lady Chatterley’s Lover, which was actually by 1960 in the process of being un-banned in a whole bunch of other countries as it was recognised as literature rather than racy smut.
The court also decided to adopt the 1868 English test of R vs Hicklin for determining obscenity (which, incidentally, had been discarded in its own country of birth just a few years before India’s decision).
According to the Hicklin test, material is obscene if its tendency is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands it is likely to fall.
You can see that there are two important aspects to this test: something obscene has to have a tendency to “deprave and corrupt”, while it also requires weak minds that are open to immoral influences.
So basically, they were judging what’s obscene by asking the most sensitive and easily-offended person whether something is obscene? That sounds really subjective. Is that still the test?
No.
After Ranjit Udeshi, the court went on a steady process of gradually undermining the Hicklin test.
In later cases, it took on record the advice of experts in determining whether the literary merits of a work would save it from the proverbial censor’s furnace.
It replaced the weak and vulnerable minds test with that of the average, reasonable and strong-minded person.
And it insisted, time and again, that the work must be viewed at “as a whole”.
That seems to be even more confusing—how do you decide what is average strong-mindedness?
That would be up to the court in each case—they do have some experience in such matters.
Ok, let’s go back to Manto. For instance, is depicting a pair of breasts “obscene”?
Good question.
And in fact, the Supreme Court was faced with this kind of a hypothetical in its most recent judgment on obscenity in a case decided in 2014.
In that case, the question was whether a photograph of Boris Becker and his fiancée, in the nude, was obscene.
The court held that it was not, making much of the fact that Becker’s arm was covering his fiancée’s breasts.
More to the point, however, the Court (finally!) discarded the 1868 Hicklin test, in favour of the 1957 American test in Roth vs United States. (1868 to 1957. Progress! Well, of a sort.)
Under Roth, obscene material must “appeal to the prurient interest”. This means that it must be such as to arouse sexual desire in the viewer—or, in the court’s own words, “excite sexual passion”.
The court never really explains what is so terrible about arousing sexual passion, but that is the law.
However, we can now understand what the Bombay high court was getting at on Tuesday.
The AIB roast might have been “vulgar” in the sense of being offensive and in bad taste, but it was not “obscene” in the sense of being lascivious, or appealing to the prurient interest.
So sex is ok, sexy sex is not?
Maybe. And even sexy is okay if the judge thinks it’s art.
That said, “prurient interest” remains a manipulable and subjective phrase, and we will probably have judges ruling on the aesthetic merits of novels and TV shows for a long time to come.
But for now, it seems as though at least obscenity law will be on the side of AIB.
Gautam Bhatia (@gautambhatia88) is a Delhi-based advocate. His book, ‘Offend, Shock or Disturb: Free Speech under the Indian Constitution’ is forthcoming from Oxford University Press in August 2015
Mint’s association with LegallyIndia.com will bring you regular insight and analysis of major developments in law and the legal world.
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First Published:18 Feb 2015, 02:30 PM IST
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