SEXUAL HEALTH AND HUMAN RIGHTS A legal and ... - The ICHRP

Sections 292, 292A, 293 and 294 of the Indian Penal Code penalize obscenity. Section 292
prohibits, inter alia, the sale, hire, distribution, exhibition, possession, advertisement, import
or export of obscene books, pictorial representations or figures. Such items are deemed to be
obscene if they are “lascivious or appeal to the prurient interest”. Exceptions to this are items
which are demonstrated to be for the public good since they are “in the interests of science,
literature, art or learning…”, or used “bona fide for religious purposes” or any representation
on or in any ancient monument or temple, or on any vehicle used for the conveyance of idols
or used for any religious purpose. 757 Section 292A contains a similar prohibition for materials
that are “grossly indecent or scurrilous”. The term “scurrilous” is explained to mean anything
which “is likely to be injurious to morality.” 758 Section 293 has a similar prohibition of
materials made available to anyone below 20 years of age and enhances imprisonment from
two to three years (and from five to seven years for repeated offences). 759 Section 294
prohibits doing an obscene act or uttering an obscene song or words in a public place, to the
annoyance of others. 760
There have been several judgments of Indian courts in relation to obscenity but only a few
which are presently relevant. In an earlier case, BK Adarsh v. Union of India 761 the Andhra
Pradesh High Court considered a film titled “Sex Education”, which the petitioners claimed
fell foul of obscenity provisions in the Indian Penal Code and the Cinematograph Act. While
drawing its conclusion the court elucidated on the content of what would amount to obscene
material. It stated:
“Ideas having redeeming social importance are allowed to be conveyed; yet
obscene, lewd or lascivious are no essential part of any expression of ideas and
have little social value as a step to truth or progress or order in society. The
words obscene, lewd and lasciviousness signify that form of immorality which has
a relation to sexual impurity and has a tendency to excite lustful thoughts. Sex and
obscenity are not synonymous. Obscene material is material which deals with sex
in a manner appealing to prurient interest. The portrayal of sex either in the art,
literature of scientific works or through motion pictures is not itself sufficient
reason to deny material the protection of freedom of expression assured under
Article 19(1)(a).”762 [emphasis added]
It went on to add that:
“...the test of inculcating depravity and corrupt thoughts of those whose minds are
open to such immoral influences and into whose hands the publication may fall
needs to be modified in considering the freedom of expression guaranteed under
Article 19(1)(a). Therefore, each case has to be considered and the test to be laid
down must obviously be of a general character but it must admit of just
application from case to case by indicating a line of demarcation not necessarily
sharp but sufficiently distinguishing between that which is obscene and that which
is not. None has so far attempted a definition of ‘obscenity’ because the meaning
can be laid bare without attempting a definition by describing what must be
757 Section 292, Indian Penal Code, 1860
758 Section 292A, ibid.
759 Section 293, ibid.
760 Section 294, ibid.
761 AIR 1990 AP 100
762 Ibid.
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