The Law of Obscenity in India: Archaic Laws and the Search for Judicial Standards of Determination by the Supreme Court of India

Abstract

The conjunction of free press, growing mass media, and a population that attempts to preserve the Indian cultural values with the legal system; produces challenges of new kinds that poses further questions on the limits of freedom to express and the mooted need to protect the society from obscene materials. However, marked by a severe lack of and nearly impossible consensus on what can be called as obscene, and left with a colonial penal code that leaves us with a century old test for obscenity, the courts have struggled to expand the freedoms of speech and balance it with the need to contain the spread of a certain category of materials. The debate on what is obscene assumes contemporary significance in the light of demands from some quarters to remove or block all materials that are obscene from the Internet, particularly the social networking websites and the often repeated demands to regulate the cable television and broadcasting media. This paper attempts a study on the limitations of the statutory law relating to obscenity, the judicial quest to overcome those limitations, and how they are relevant to our present times. The paper concludes with reflections on the nature of the discretion vested in the judges to determine what is obscene, and suggests the standards on which amendments can be made to the statutes to limit the exercise of discretion.