A popular YouTube content creator is currently under scrutiny following allegations of making offensive and obscene comments during a widely streamed show. A formal complaint has been lodged under Section 296 of the Bharatiya Nyaya Sanhita (BNS), 2023, citing "obscene acts." This incident has reignited discussions on how obscenity is legally defined, particularly in the digital era.
Understanding the Legal Framework on Obscenity
Section 294 of BNS 2023 (Formerly IPC Section 292)
This provision criminalizes the sale, advertisement, and public display of obscene material, including content shared through digital platforms. Obscene material is described as content that is sexually suggestive, intended to incite sexual thoughts, or deemed harmful to public morality and behavior.
- First-time violators can face imprisonment of up to two years and a monetary penalty of ₹5,000.
- Repeat offenders may receive up to five years in jail and a fine of ₹10,000.
Section 296 of BNS 2023|
This section penalizes obscene conduct in public spaces, as well as the recitation, singing, or verbal expression of offensive songs, ballads, or words that cause public annoyance. The aim is to maintain societal decorum and curb actions that could offend public morality and decency.
Section 67 of the Information Technology Act, 2000
This provision deals with the online dissemination of obscene content. The definition of obscenity aligns with Section 294 of BNS, but the penalties under the IT Act are more severe:
- First-time violations can lead to imprisonment for up to three years and a fine of ₹5 lakh.
- Repeat offenses attract even stricter punishments.
Indecent Representation of Women (Prohibition) Act, 1986
This law restricts any form of portrayal of women that is degrading, derogatory, or detrimental to public morality.
POCSO Act, 2012 (Protection of Children from Sexual Offences Act)
This act prohibits the creation, storage, dissemination, or access to child sexual content, with strict legal consequences for violators.
Judicial Standards for Determining Obscenity
The Hicklin Test
In the landmark case
Ranjit D Udeshi v. State of Maharashtra (1964), the Supreme Court of India adopted the British
Queen v. Hicklin (1868) test, which deemed content obscene if it had the potential to corrupt or morally degrade individuals vulnerable to such influences. The assessment was based on isolated sections of a work rather than considering it as a whole.
Criticism of the Hicklin Test- The approach was considered outdated and excessively restrictive.
- It applied the lowest common denominator standard, meaning material was judged by its impact on impressionable audiences rather than the general public.
The Community Standards Test (CST)
In
Aveek Sarkar v. State of West Bengal (2014), the Supreme Court replaced the Hicklin Test with the CST, which evaluates obscenity based on evolving societal norms and perceptions.
- The court now considers the overall theme and intent of the content rather than isolated portions.
- Material is deemed obscene if it appeals purely to prurient interests and lacks artistic, literary, political, or scientific merit.
- A balance is sought between freedom of expression under Article 19(1)(a) and the reasonable restrictions permitted under Article 19(2).
Notable Judicial Precedents- Boris Becker Nude Photo Case (2014): The Supreme Court ruled that nudity alone does not constitute obscenity if it carries artistic or social significance.
- 2024 College Romance Web Series Case: The court determined that the use of vulgar language does not amount to obscenity unless it incites sexual thoughts.
Challenges with the Community Standards Test- The test is highly subjective, leading to regional variations in legal judgments based on cultural and social differences.
- Rapidly shifting societal attitudes make it difficult to establish a fixed definition of obscenity, resulting in legal ambiguity.
Public Morality, Decency, and Free Expression
Morality and Legal Interpretation
Morality encompasses ethical principles defining acceptable behavior within a society. In
Navtej Singh Johar v. Union of India (2018), the Supreme Court emphasized that constitutional morality takes precedence over prevailing public morality, ensuring justice prevails over societal biases.
Decency and Public Conduct
Maintaining public decorum involves refraining from offensive speech and gestures. In
B. Manmohan and Ors. v. State of Mysore and Ors. (1965), the court underscored the necessity of upholding community standards of decency in public interactions.
Balancing Free Speech and Obscenity Laws
Article 19(1)(a) of the Indian Constitution guarantees the right to freedom of speech and expression, but this right is subject to reasonable restrictions under Article 19(2), which includes prohibitions against obscene content that contravenes public decency and morality.
Key Takeaways
The ongoing legal scrutiny of the YouTube influencer underscores the evolving complexities of regulating obscenity in the digital sphere. With the rapid expansion of online media, defining and enforcing obscenity laws remains a challenging task. While courts continue to refine legal tests to assess obscenity, the balance between individual freedoms and societal standards remains a contentious issue.
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