-TEJAL SHRINGARPURE VEENA BHATE SAYLEE SALVI ANINDITA GANGULY

What is meant by Obscenity?

The state or quality of being obscene. Something that is offensive or repulsive to the senses

Obscenity is a legal term that applies to

anything offensive to morals and is often equated with the term PORNOGRAPHY. Pornography, however, is a more limited term, which refers to the erotic content of books, magazines, films, and recordings. Obscenity includes pornography, but may also include nude dancing, sexually oriented commercial telephone messages, and scatological comedy routines.

292

293

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, or (where it comprises two or more distinct items) the effect of any one of its items, is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.

Whoever sells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation, or for purposes of sale, hire, distribution, public exhibition or circulation, makes, produces any obscene book, pamphlet, paper, drawing, painting, representation or figure or any other obscene object.

This section does not extend toAny book, pamphlet, paper, writing, drawing, painting, representation or figure (1) the publication of which is proved to be justified as being for the public good; (2) Which is kept or used bona fide for religious purposes.
Any representation sculptured, engraved, painted or otherwise represented on or in any ancient monument, any temple, or on any car used for the conveyance of idols, or kept or used for any religious purpose.

Whoever sells, lets to hire, distributes, exhibits or circulates to any person under the age of twenty years any such obscene object as is referred to in the last preceding section, or offers or attempts so to do, shall be punished [on first conviction with imprisonment of either description for a term which may extend to three years, and with fine which may extend to two thousand rupees, and, in the event of a second or subsequent conviction, with imprisonment of either description for a term which may extend to seven years, and also with fine which may extend to five thousand rupees]

The law covering obscenity is dealt with in the IPC of 1860. These laws are relics of the colonial period and fundamentally at variance with the constitutional guarantees of freedom of expression.
These laws relating to obscenity are directly inherited from British colonialism

Concept of obscenity differs from country to country depending on the moral standards of contemporary society.

The system of authoritative materials for grounding or guiding judicial and administrative action recognized or established in a politically organized society.

One of the most controversial issue in obscenity is balancing the need to protect society 1. Against the potential harm that may flow from Obscene material. 2. Need to ensure respect for the freedom of expression and to preserve a free flow of information and idea.

The law relating to obscenity is laid down in section 292 and 293 of the Indian penal code which came about by Act 36 of 1969 .

Amendments of 1969 brought about changes to obscenity law. Primary object was to prevent circulation of and traffic in obscene literature .
Specifically to restrict communication of certain types of materials based on their content.

The obscenity legislation and jurisprudence prior to the enactment of Act 36 of 1969 were concerned with prohibiting immoral influences of obscene publications and safeguarding the moral individual into whose hands such works could fall.
To impose a certain standard of public and sexual morality.(On society as a whole) But at the same time exercise individual freedoms , which forms the basis of our constitution.

The concept of obscenity is moulded to a very great extent by the social outlook of the people who are generally expected to read the book.
Changes from person to person Changes from country to country

1.
2. 3.

Try to place himself in position of author

Viewpoint of the author Place himself in the position of a reader of every age group in whose hands the book is likely to fall. Understand the influence on the readers. Thereafter apply his judicial mind.

4. 5.

Defining the concept is very necessary in any law

Interpret obscenity basing on fact and circumstances Obscenity law should avoid using vague and subjective terms, such as indecent absence and harmful to public moral Obscenity restrictions must be aimed at preventing real harm

Obscenity law not only restricts material which can be shown to be harmful. It also means that it predisposes person to act in an anti-social manner
Example physical or mental mistreatment of women by men

Bobby Art International & others v Om pal Singh Hoon & others

Citation 1996 AIR (SC) 1846

Judges S P Bharucha; B N Kirpal Facts - A writ petition was filed by the first respondent to quash the certificate of exhibition awarded to the film Bandit QUEEN. The film was based on a book which had been in a market since 1991 without objection

The first respondent was president from Gujjar community Issues whether the portrayal of frontal nudity, rape and violence in the movie Bandit Queen, were obscene , indecent and denigrating to women

Respondent contended that after seeing the film his fundamental rights were violated
Alleged that the depictions in the movie were abhorent and gross and a slur of womanhood in India. Also claimed that a rape scene in the film was suggestive of the moral depravity of the Gujjar community because the rapist was Gujjar Thus, the film depicted the petitioner and his community as rapists and lower the reputation of the Gujjar community

The court observed that a film that illustrates the consequences of a social evil necessarily must show that social evil
Theme of the film Scenes of the nudity and rape and use of expletives, were in aid of the theme and intended not to arouse prurient or lascivious thoughts but revulsions against the perpetrators and pity for the victim

Maqbool Fida Husain V Raj kumar Pandey

Citation - Crl. Revision Petition No. 114/2007 Facts M F Hussain painted an art work of a nude lady in grief without giving it any title. The untitled painting was sold to a private collector in 2004 In 2006, it was an part of an online charity auction for victims of the earthquake under the name Bharat Mata. Hussain had no role or involvement in this auction

Large scale protests against the painting

Apology

Several complaints were filed in different parts of the country alleging various offences against MF Hussain. Arrest warrants
APEX court consented and matter was consolidated and transferred to the court of ld.ACMM , Delhi, by way of transfer petitions. This court issues summons against the petitioner, M F Hussain, for crimes under Sectio n 292.

Arguments 1. The petitioner, M F Husain, argued that, on the face of it, the painting contained no material that could be held to be obscene in terms of the legal definition of obscenity.
2.

He argued that there was nothing in the painting that could be interpreted to be lascivious or appealing to the prurient interest, or tending to deprave or corrupt persons likely to view the painting, and that its identity was irrelevant to the alleged obscenity of the painting.

The petitioner pointed out that as soon as complaints were filed and protests held against the painting, he had tendered an unconditional apology and the painting was withdrawn from the auction. The respondents alleged that the petitioners acts had hurt the sentiments of Hindus and all patriotic Indians. A line had to be drawn where the average person with morals begins to feel embarrassed or disgusted at a naked portrayal of life without the redeeming touch of art or genuine or social value.

The court held that, on the face of it, the painting was neither lascivious nor likely to appeal to the prurient interest ie, the painting would not arouse sexual interest in a perverted person and would not morally corrupt or debase a person viewing it. The nude woman was not shown in any peculiar kind of posture, nor were her surroundings painted so as to arouse sexual feelings or lust. The placement of the Ashoka Chakra was also not on any particular part of the body of the woman that could be deemed to show disrespect to the national emblem.

The court pointed out that ...the literature of India, both religious and secular, is full of sexual allusions, sexual symbolisms and passages of such frank eroticism the likes of which are not to be found elsewhere in world literature. It went on to state that While an artist should have creative freedom, he is not free to do anything he wants. The line which needs to be drawn is between art as an expression of beauty and art as an expression of an ill mind intoxicated with a vulgar manifestation of counterculture where the latter needs to be kept away from a civilian society. According to the judges, There are very few people with a gift to think out of the box and seize opportunities, and therefore such peoples thoughts should not be curtailed by the age-old moral sanctions of a particular section of society having oblique or collateral motives who express their dissent at every drop of a hat.

Samaresh Bose and Another v Amal Mitra and Another

Samaresh Bose,the first appellent is a famous Bengali Author of novels and short stories. One of his work-Prajapatiwas published in Sarodiya Desh, a journal of Bengali literature with wide circulation. Sitangshu Kumar Dasgupta, the second appellant, was the publisher and the printer of the journal at the relevant time. Judges: Amarendra Nath Sen, R S Pathak

On February 2, 1968, Amal Mitra, a young advocate, made an application in the court of the Chief Presidency Magistrate at Calcutta and complained that the novel was found to be obscene Both the accused persons were said to have committed an offence punishable under Section 292 of the Indian Penal Code and under Section 292 read with Section 109 IPC Both the accused persons were convicted of charges under Section 292 The magistrate ordered that the offending portions in the journal be destroyed.

The appellants then filed appeals in the Calcutta High Court. The appeals were dismissed and the high court held that the Chief Presidency Magistrate should also take appropriate steps to destroy the offending portions of the journal in respect of the novel if published in book form The author and publisher then filed an appeal in the Supreme Court. The question for consideration in this appeal was whether the two appellants could be said to have committed an offence under Section 292. In order to decide this, the court looked at whether or not the novel Prajapati was

The court was faced to decide what constituted obscenity and whether the content of the book was obscene Whether references to kissing, descriptions of the body and the figures of female characters in the book and suggestions of sex acts by themselves have the effect of depraving and debasing, and encouraging lasciviousness among, readers of any age, and must therefore be considered obscene.

The appellants argued that the novel depicts the feelings, thoughts, actions and life of Sukhen, the hero of the novel and its main character Through them,the author has condemned and criticised various prevalent aspects of life in various strata of society If cultured and sophisticated words were used for the portrayal of the character, the entire portrayal of Sukhen's character would become unreal and meaningless. They argued that the book had a social purpose to serve and had been written with the primary object of focusing the attention on the various ills and maladies ailing society and destroying the social fabric.

The Supreme Court allowed the appeal and dismissed the charges of obscenity. It held that vulgar writing is not necessarily obscene The court said that although, in some places in the book there may have been an exhibition of bad taste, it was up to readers of experience and maturity to draw the necessary inference. The court said that it was not sufficient to bring home to adolescents any suggestion that was depraving or lascivious SC held it cannot be right to insist that the standard should always be for the writer to see that the adolescent may not be brought into contact with sex. If a reference to sex by itself in any novel is considered to be obscene and not fit to be read by adolescents, adolescents will not be in a

Avnish Bajaj vs State Bench: S Muralidhar

Bazee India Private Ltd. owner of an online shopping portal-website http://www.baazee.com Subsequently , a wholly owned subsidiary of Ebay Inc. USA, renamed as Ebay India Private Limited (EIPL) The website baazee.com provided an online platform or market where a seller and a buyer could interact. To be either a seller or buyer a person had to first register himself with baazee.com by filling out an online form giving contact details

For selling, a user had to use his unique bazee id to log on and create a listing, by classifying

the product under a correct category and sub category for the proposed product

The seller had to provide a title and a text of description brand name, model no. and an image that depicts the item correctly. Baazee.com also offered a mode of receiving payment under 'paisapay'. The user could also opt for other methods like cheques, demand drafts, cash on delivery etc.

BIPL had a Safety and Trust Division which instituted word and text filters for the site A Community Watch Programme was also operational The users could bring to notice of any objectionable material being listed.It would be removed Once the item was automatically screened by the filter, the listing was placed on the site with a unique computer generated item ID Incase of buying, registered users searched and selcted the item by clicking Buy Now. The method of payment was selected-cheque, bank transfers,credit cards etc.

If the buyer opted for a "paisapay" option and made an online payment, the normal banking payment gateway got attracted. Once the payment gateway confirmed the receipt of the payment then an automated payment confirmation was sent to the buyer. Thereafter the buyer received the item, depending on the product, through email, hand delivery, courier or post For this financial arrangement system, the website had tied up with the HDFC Bank. For facilitating this entire transaction BIPL received a commission which was usually a percentage of the selling price of the product.

The sequence of events relevant to the present case unfolded thus. Ravi Raj, a fourth year student of the Indian Institute of Technology (IIT) Kharagpur, was registered as a seller with baazee.com since 21st July 2004. In the evening of Saturday 27th November 2004, Ravi Raj placed on the baazee.com website a listing offering an MMS video clip for sale at Rs. 125 per piece.

Adopted fake name-Alice electronics. Gave fake address. Included the clip under the category Books and Magazines and sub-category 'e-books to avoid detection by the filters Although baazee.com did have a filter for some of the words which appear on the website, the listing nevertheless took place. The electronic website baazee.com when visited had the following item description on its site: "Item 27877408 - DPS Girls having fun!!! full video + Baazee points." The price was Rs. 125.

. Upon clicking on the item description, the listing read as under: DPS Girls having fun!!! Do you want to see that video clip which has rocked the whole DELHI and now has become a hot point of discussion in the entire Nation?YES, Then what are you waiting for!!!! Just order for this product and it will be delivered to you within few hours.This video is of a girl of DPS RK PURAM which has been filmed by his boyfriend in very sexual explicit conditions. Please note: This video clip of around 2:30 Minutes and will be send to you as an email attachment.

The buyer had to pay Rs. 128 per clip which included a commission of Rs.3 that went to

BIPL.

This was deducted from the amount received from the buyer and the balance of Rs. 125 per clip was remitted to the seller by the HDFC bank. The seller, on receiving confirmation that payment had been made, would send the video clip by an email attachment by a zip file with the description 'dps_rkpuram-sex-scandle.zip'. Between around 8.30 pm in the evening of November 27th 2004 when the listing went on line till around 10 am on 29th November 2004 when the listing was de-activated, eight transactions of sale of the said video clip took

At around 8.20 pm on Saturday 27th November 2004 information was received on email by a user, through the community watch programme, that reported the clip listing on the website to BIPL This email was assigned to Namrata of BIPL at around 8.25pm on 27th November 2004 itself. At around 6:25pm on the next date i.e. 28th November 2004, which happened to be a Sunday, it was assigned to Swapna Sawant of the BIPL and the priority was shifted to the 'high alert' category. 29th November 2004 at 10:10am baazee.com wrote to Alice Electronics that the listing it had put up was obscene or pornographic and was closed by the site

On Monday 29th November at 10:38 am, Swapna Awant of BIPL wrote to Amit Vohra thanking him for "spotting this and reporting to us at Community Watch and informed him the item had been closed The video clip was removed on 29th November 2004 Monday at around 10:38 am. Meanwhile eight persons with distinct IDs located in different parts of the country including Calcutta, Nellore, Pune, Delhi, Banglore and Chennai had purchased it.

On 9th December 2004 two events took place. The Crime Branch of Delhi police, on receiving credible information that the said MMS clip was sold for Rs. 125 by a website, registered an FIR On the same day a news item appeared in a Delhi the newspaper "Today" with the headlines "DPS sex video at baazee.com". The police sent notices under Section 91 CrPC to Sharat Digumarti, the Senior Manager, Trust and Safety, BIPL and obtained information on the working of the website.

On 10th December 2004 in response to a query addressed to baazee.com, Sharat Digumarti provided "the details of the seller (alice_elec) and the buyers who purchased this item. He stated that they had "already disabled the ability of the seller and the buyers. Also the contact details of these users. On 11th December 2004 the police seized the printout of e-mails of placement of order to Ravi Raja and e-mail sent from Ravi Rajas account containing an attachment of the clip as a zip file

Sharat Digumarti also furnished details about his position in the company, the procedure of transactions on website, and the sum payed to the seller through the buyers of the clip He enclosed a note on how the "list of the suspected and banned words(120 words) worked and the process of detection of leakage. He also gave details of the working of Community Watch. The Manager, Finance and paisapay of baazee.com wrote a detailed letter to the police giving information that a sum of Rs. 3 was exacted for each piece of clip sold by paisapay

On 17th December 2004, Ravi Raj was arrested at Kharagpur Avnish Bajaj was arrested in Mumbai on the same day At the conclusion of the investigations, a charge sheet was filed showing Ravi Raj, Avnish Bajaj and Sharat Digumarti as Accused Nos. 1,2 and 3 respectively. Produced before the Metropolitan magistrate on 14th February 2006 The learned magistrate took cognizance of the offences under Sections 292 and 294 IPC and Section 67 IT Act.

Avnish Bajaj, the MD of BIPL (EIPL) filed a petition in the High court quashing this order of the lower court ARGUMENTS OF THE PETITIONER Arguments on behalf of the petitioner were addressed by Mr. Arun Jaitley and Mr. Sidharth Luthra, Senior Advocates. The case against BIPL is not, and cannot possibly be, in relation to the video clip since the clip itself was not made available on baazee. com. at the highest BIPL was concerned only with the listing placed on the website which by itself was not obscene and did not attract the

It was then argued that in any event without BIPL (EIPL) being made an accused, no criminal liability attached to the petitioner for an IPC offence only because he happened to be the MD of BIPL (EIPL) at the relevant time.Stated the revenue generated was not profit profit as contemplated by Section 292 IPC Reasonable care was taken by the website to immediately remove the video clip once it was brought to its knowledge that it was objectionable. Therefore the website acted diligently and did not commit any illegality.
The charge sheet when read as a whole does not make out even a prima facie case against the

In relation to Section 67 IT Act, it was argued - in the absence of the company BIPL (EIPL) itself being made an accused, no liability could attach to the petitioner with the aid of Section 85 IT Act Although the petitioner as MD was in overall charge of the policy and planning of the business, he had no direct role in the placing of the listing or its filtering and subsequent removal. This was an automated process and the work of supervising the placing of listings on the website had been delegated to specific individuals like Accused No. 3 Sharat Digumarti.

State represented by Ms. Mukta GuptaThe offence under Section 292 IPC includes not only overt acts but illegal omissions. The failure to have adequate filter in a system which is entirely automated, entails serious consequences and a website cannot escape such legal consequences. The fact that website earned profits through the sale is evident from the bank statements which show Rs.3 earned on each clip
The fact that payment was made to the seller even as on 27th December 2004 shows that no

That the petitioner was the person in-charge for especially policy and planning functions Notwithstanding that the BIPL itself is not arraigned as an accused, the petitioner can nevertheless be proceeded against for the role played by him in the transaction. For the offence under Section 67 IT Act, it is not necessary that the company BIPL itself be accused. in the judgments of the Supreme Court, what is relevant is whether at the trial a case for convicting the company for the offences had been made out Finally it was submitted that the crime is of an extremely grave nature and cannot go unpunished on technicalities. Even if the charge

At this stage the court is only to examine if a prima facie case is made out and on that test no interference is called for. The question that first requires to be addressed is whether in the facts and circumstances of the case, as disclosed in the charge sheet, a prima facie case for offences under Sections 292 and 294 IPC and Section 67 IT Act is made out. If the answer to this question is in the affirmative, the further question that arises is whether a prima facie case has been made out against the petitioner for those offences.

In the present case, there are two pieces of material that call for scrutiny. One is the video clip and the other the listing on the website baazee.com It was not argued by learned Counsel for the petitioner that the video clip in question did not even prima facie attract the definition of an obscene object within the meaning of Section 292 (1) IPC. Prima facie it appears that the listing itself answered the definition of obscenity The listing contained explicit words that left a

The words in very sexual explicit conditions" are a prominent feature of the listing which invited a potential buyer to purchase the obscene object . This Court is not able to agree with (petitioners) their submissions that the listing itself was not even prima facie an obscene material or text. It was argued that even then, there was no overt act done by BIPL in relation to the video clip or listing The offence under Section 292 (2) (a) IPC gets attracted when the prosecution is able to prove that a person"publicly exhibited or "has in his possession" the obscene object. Even if Ravi Raj, and not BIPL, may have inserted the listing, the website of BIPL certainly "possessed" it. The

In relation to the video clip, the wording of Section 292(2) (d) IPC is wide enough to include an attempt at making known "by any means whatsoever" that "such obscene object can be procured." The placing of an advertisement on the website informing the viewer that an obscene material or object is available for sale, one click away, is enough to attract the offence under Section 292(2)(d). The advertisement might itself have been inserted by the seller but the website facilitated the sale by carrying the listing which informed the potential buyer that such a video clip that is pornographic can be procured for a price.

In response to the petitioners argument that-that the prosecution must prove that the person who sells or keeps for sale any obscene object knows that it is obscene, before he can be adjudged guilty. The court rejecting the argument said that-. The prosecution need not prove something which the law does not burden it with. If this was so, it would place an almost impenetrable defence in hands of the offenders The difficulty of obtaining legal evidence of the offender's knowledge of the obscenity of the book etc., has made the liability for the act strict.The law prevents absence of knowledge as an excuse for the offender/accused

In Ranjit D. Udeshi it was held that the prosecution did not have to prove that the accused had knowledge that the contents of the books being offered for sale were in fact obscene since the deeming provision in Section 292 (1) IPC stood attracted. However the prosecution was required to prove that the accused did intend to sell such obscene object. The text of the listing was doubtless obscene By not having appropriate filters that could have detected the words in the listing or the pornographic content of what was being offered for sale, the website ran a risk of having imputed to it the knowledge that such an object was in fact obscene. Even if the filters failed, the presumption that the owners of the website were aware of the

Offences under other sectionsUNDER SEC 67 IT ACTThe plain words of the above provision unambiguously state that the offence stands attracted when anyone "causes to be published in the electronic form" any material that is "lascivious or appeals to the prurient interest" Under this section it was established that the website did prima facie cause publication of the obscene material. As far as the offence under Section 294 is concerned, the learned Counsel for the prosecution did not dispute the contention of the learned Counsel for the petitioner that the said offence was not attracted in the facts of the case.

The question now remains-Is a prima facie case made out for the offences under Sections 292 IPC and 67 IT Act against the petitioner? It has been argued by the learned Senior counsel for the petitioner that nowhere in the charge sheet is there any allegation that the petitioner himself facilitated the publishing of the obscene material or is in any way directly involved in the transaction It has been held that a prima facie case is indeed made out against BIPL. However, for some reason BIPL has not been arraigned as an accused , as far as the offence under Section 292 IPC is concerned, the law as it presently stands does not envisage an automatic liability attaching to a

Therefore even if at a subsequent stage of the proceedings BIPL is summoned to face trial for the IPC offence, that would not, in the absence of a specific case being made out against the petitioner in his individual capacity, result in his being an accused. THE VERDICT MADE SOME OF THE FOLLOWING CONCLUSIONSA prima facie case for the offence under Section 292 (2) (a) and 292 (2) (d) IPC is made out against BIPL now named as EIPL both in respect of the listing and the video clip respectively.

(c) However, as far as the petitioner Avnish Bajaj is concerned, since the IPC does not recognise the concept of an automatic criminal liability attaching to the director where the company is an accused, not even a prima facie case for the offence under Section 292 IPC is made out even when the charge sheet is read as a whole; it only seeks to implicate him in his designation as MD of BIPL and not in his individual capacity. (d) Therefore, the petitioner will stand discharged as far as the offences under Sections 292 and 294 IPC are concerned. This will however not affect the case against the other accused. A prima facie case for the offence under Section 67 read with Section 85 IT Act is made out against the petitioner since the law as explained by the

A prima facie case for the offence under Section 67 read with Section 85 IT Act is made out against the petitioner since the law as explained by the decisions of the Supreme Court recognises the deemed criminal liability of the directors even where the company is not arraigned as an accused and particularly since it is possible that BIPL (EIPL) may be hereafter summoned to face trial. Bajaj applied a petition in the Supreme court quashing of the criminal proceedings initiated against them under Sections 67 and 85 of the Information Technology Act 2000. The SC has currently issued a stay on the case hearing.