By Vidhi Srivastava
Introduction
Legal Moralism is a criminalisation theory that advocates employing criminal law to penalise immorality per se and ‘wrong’ conducts, irrespective of whether they adversely affect others.[1] In India, ‘obscenity’ has been viewed from the lens of morality and decency. The law is embodied in s. 292 of the IPC. This provision categorizes all forms of representation, including books, paintings, figures, etc. as obscene if it is “lascivious or appeals to the prurient interest” or in totality, their effect is to “deprave or corrupt persons, who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.” The act criminalized is sale, hire, distribution, publicity, exhibition, and circulation of the obscene object and other second-order actions that result in these actions. The exceptions to the sections are rooted in public good, in the interest of science, literature, art, and religious purposes. The law reflects a moralistic paranoia for moral corruption and depravation of the consumers of alleged obscene materials, even when received voluntarily.
The article aims to understand and analyse the law of obscenity from the perspective of legal moralism and argues against a purely moralistic understanding of obscenity. To this effect, firstly, the article discusses the theory of legal moralism and the philosophical objections to the same; secondly, it analyses Indian jurisprudence in light of those philosophical objections; and lastly, it recommends that the obscenity law should not solely be viewed through morality but include an understanding of Harm principle to prevent the infringement of individual rights.
Understanding the Fundamentals of Legal Moralism
Devlin, a key proponent of Legal Moralism, underpins his thesis with two arguments: firstly, the society has the right to protect itself against practices threatening its existence, and secondly, it has the right to follow its moral convictions to prevent adverse changes in the moral environment. Allowing harmless immoralities would undermine the social fabric, dissolve the moral consensus, and lead to social disintegration. Shared ideas would ensure social cohesion and thus penalising immorality is justified. This penalisation, in Devlin’s opinion, extends to any form of speech or action invoking feelings of disgust, intolerance and indignation.
However, Hart and Dworkin took strong exceptions to Devlin’s claims. According to Hart, firstly, the assumption that the society can legislate sexual morality and penalise certain actions in order to avoid disintegration is without any foundation. There is no empirical evidence to support that preservation of society is dependent upon enforcement of morality. Secondly, enforcement of morality leads to restriction of individual freedoms. Further, he disagreed that there are eternal truths about morality. Devlin’s approach would state defining sexual norms based on majoritarian moral convictions and marginalise the least conventional and pluralistic ideas within the society.
Similarly, Dworkin argued that in a liberal and democratic society, the principles we follow, do not call for the enforcement of consensus. Dworkin calls this ‘the right to moral independence’ – The individual’s right to not face any disadvantages in the exercise of their freedoms solely on the grounds that fellow-citizens consider a particular way of life as ignoble.
This paper demonstrates that both these criticisms can be transposed to Indian jurisprudence on obscenity. Law’s discomfort towards sexual expression is generally related to the discomfort around sex. In India, a puritanical thinking continues to inform responses and attitudes to sex: sex is immoral, bad and corrupting. These assumptions as we shall see also inform judicial instinct. The analysis of court’s reasoning supports the philosophical objections to legal moralism as the courts end up imposing a system of ‘sexual stratification’ where heterosexuals, married, monogamous, reproductive individuals are at the top of the ‘erotic pyramid’. The Indian courts mirror this in their reasoning and result in the imposition of conventional sexual morality.
Analysing Indian Jurisprudence on Obscenity
The seminal judgment of Ranjit Udeshi dealt with the obscenity. In the case, the appellant, a book store owner, possessed an unexpurgated edition of “Lady Chatterley’s Lover”. In dismissing the appeal against previous conviction under s. 292, the court upheld the section’s constitutionality. Justice Hidayatullah addressed the issue of precisely defining obscenity. After strolling through the common law history of the offence, he settled on “Hicklin Test”. Developed in 1868. This test defines obscenity as something that would deprave and corrupt individuals because of its immoral influence. The test deals with checking if the publication adversely affects the most vulnerable readers, for instance, on kids or adults of impure or libidinous character.
The test is problematic for three reasons:
Firstly, as the excerpt suggests, the test employs the proxy of the most vulnerable and the most immature, and not a reasonable person. The fundamental difficulty with this is the mischaracterisation of the underlying obscenity of what this is based on. An individual’s distaste for an obscene object is not because of its inherent obscenity, but because, according to that individual, it threatens a value they cherish. Since the test bends towards the extremes instead of a middle ground, it is based on an excessively sensitive sense of moral indignation. This is where it goes awry, for by nature, it’s loaded in favour of interests on margins.
Secondly, to salvage the test, the court observed that for literary and artistic merit to trump over obscenity, the obscene part of the book had to be weighed against the inoffensive part and “art must be so preponderate as to throw obscenity into a shadow”. However, at its kernel was not the concern for free speech and creative expression but apprehensive judicial notions of decadence and depravity of the masses. To put it simply, if the court considered the publication to be good literature, it would not be considered obscene and vice-versa. What was not acknowledged was the fact that it is nevertheless literature.
Thirdly, as is clear from the excerpt, there is no need of mens rea – the accused’s state of mind. The absence of any discussion or dissent on this point reveals the law’s anxiety towards sexuality. It is suppressed through such principles of strict liability.
Over the years, the Hicklin was test was modified in various judgements. In Chandrakant Kakodkar, the Court unambiguously laid down that a stray passage cannot be selectively used for proving obscenity. This was a way forward from the mixed language of Udeshi. However, in holding the material to be ‘not obscene’, the court stuck to the problematic Hicklin reasoning. It judged the publication by placing it in a broader social context, with having regard to the national standards. The context and the standard being that ‘bad women’ were shown in poor light, ambition was depicted as corrupting women and their happiness relied on accepting male supremacy.
In Samaresh Bose, the Court reiterated on not looking at stray passages for proving obscenity. Moreover, it differentiated between something being vulgar in words and depictions but not having the effect of depraving and corrupting the morals of individuals. Although a progressive stride forward, this was consistent with Udeshi and Kakodkar since the context and literary merit of contribution to society was scrutinised. The Court did not acknowledge the value of literature being literature without any added social redeeming merit.
In Aveek Sarkar, the Supreme Court held that a photograph of Boris Becker and his fiancée, who was nude, is not obscene under S. 292. The judgement, however, is significant as it expressly rejected the problematic “Hicklin Test”. The Court adopted the “community standards” test. The court held that a picture of a nude woman per se cannot be called obscene. Obscenity has to be judged from the point of view of an average person by applying contemporary community standards. Thus, the court got rid of the vulnerable person standard suggested by Hicklin.
Even though the Court progressively moved from Hicklin to the Community Standards Test, there has been no visible emotional or discursive shift in the understanding of sexuality. The acceptance of a test that relies on community standards further results into the imposition of conventional morality of the majority. The judicial reasoning in the present case is inundated with such emotional slips. At the outset, following the seemingly progressive trend of the previous cases, the court emphasised that images need to be viewed in the broader context. The Court, looked into excerpts of Becker’s interview and statements appearing in the photograph. The Court acquitted the appellant as the statements alongside the photograph suggested interracial harmony and love and did not have the tendency to deprave people’s minds. The “photos were supposed to shock” but the same could not be appreciated by the court as the shock value was restricted by confining the interpretive focus to the text. The Court refused to see the sensual, erotic and the sexual in the image, obliterating it under the textual logic.
Further, the Court asserted that the image is still tolerable according to community standards as it does not “excite lustful thoughts” because Barbara Fultus’s breast had been covered with Becker’s arm. The covering by the fiancée’s arm is not obscene as it is a love affair leading to the marriage. We realise the climax of such heterosexual ‘community standard’ when the Court noted that the photograph was taken by Barbara’s father. The ‘not obscene’ decision in this case came along with the declaration of the maintenance of the dominant sexual normative order. The construction of obscenity in the eyes of law remains discursively entangled with the project of construction of acceptable relationships and legitimate emotions. The photograph was brought into the zone of permissibility by completely de-sexualising it and depriving it of its actual intent of shocking the society.
The analysis of these cases portrays how a purely moral understanding of law restricts the society into the conventional web of morality, restricting individual’s freedom without any real evidence of how the obscene publications prove detrimental to the society.
Need For Harm Principle
Criminal law is not a tool to be used everywhere. Criminal sanction is a ultimate threat; as it inflicts the combination of stigma and loss of liberty. This generates the problem of criminalisation and accepting the general case of criminalising immorality per se will inevitably lead to restrictions to an individual’s autonomy especially since criminal prohibitions are typically framed in broad terms. Hence, criminal sanctions should be used sparingly to ensure that individuals are not arbitrarily deprived of their freedoms.
To ensure that the Indian law does not lead to the same, it becomes pertinent to look into another important theory of criminalisation- Harm Principle. It was first articulated by JS Mill who argued that the only purpose for which the state can rightfully exercise power over any individual against his will, is to prevent harm to others. His moral good is not a sufficient warrant. John Fienberg builds on Mill’s analysis by adding “offence to others” as a good enough reason from prohibiting an act. However, that harm must be a wrong. The Harm Principle tries to balance interests (in the case of obscenity- the autonomy of an individual and the right of the society to prohibit actions) by requiring the act to be a serious offence to others.
A piercing scrutiny into Devlin’s argument shows that it implicitly rests on harm principle. Social disintegration is against the citizens’ lives and interests, causing them a harm, albeit a remote one. However, the primary reservation with this argument is that mere immorality, without empirical links with the harm cannot be asserted as a general ground to prohibit immoral acts.[1]
Thus, the need to criminalise sparingly becomes clear and individual interests can be protected if an understanding of ‘serious offense to others’ is added to the moral understanding and adjudication of obscenity law. This can be understood through a feminist perspective. Feminists criticise the moralistic understanding of obscenity law. Their conception focuses on the “aggressive, degrading, domineering or objectifying” relations between men and women. This test also includes whether the practices in the sexual publication show subordination on the basis of sex. Such obscene publications especially harm women by contributing to the patriarchal construct of the society treating women with inferiority.[2]
A close application of this principle can be seen in the Canadian case of R v Butler, cited in in Aveek Sarkar. Butler, while dealing with obscenity, restricted itself to prohibiting only “undue exploitation of sex” which it defined as either sex that was dehumanising or degrading or sex with violence. Thus, while the court also made community mores relevant for enquiry into obscenity; it still provides some protection against the tyranny of conventional morality.
Further, restricting the application of law in this manner would allow the society to be more receptive to positive representations of sexuality that flout the conventional sexual norms and make the country inclusive for all individuals.
Conclusion
An understanding of the judicial instincts through case analysis echoes the problems that legal moralism as a theory of criminalisation faces. Right from its inception, adjudication on S 292 has led to the imposition of conventional morality by society. This becomes further problematic in India, where the cultural baggage implies a negative conception of sex and sexuality. A purely moralistic understanding infringes on individual’s autonomy and freedoms. The interests of society and individuals can be balanced when a feminist understanding of what harm is applied under the Harm Principle to provide for some protection against the arbitrary and heteronormative construction of morality and provide space to representations of sexuality challenging the majoritarian conventional morality.
[1] AP Simester, JR Spencer, Findlay Stark, GR Sullivan and GJ Virgo, Simster and Sullivan’s Criminal Law (6th edn, Hart Publishing 2016)
[2] Kathleen Mahoney, ‘Obscenity, Morals, and the Law: A Feminist Critique’ (1984) 17 Ottawa Law Review 33
Vidhi Srivastava is a Third-Year Student at the National Law School of India University, Bangalore.
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