Law and You > Criminal Laws > Bharatiya Nyaya Sanhita, 2023 > Chapter XV > Offences Related to Obscenity (Ss. 294 to 296 BNS)
According to Section 270 of the Bharatiya Nyaya Sanhita, 2023, a person is guilty of a public nuisance who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right. A common nuisance is not excused on the ground that it causes some convenience or advantage. In this article we shall discuss offences related to obscenity and lottery.
The fundamental object and purpose of criminal law is not only to protect and to conserve the safety and security of primary personal rights of individuals, such as right to life, right to body, right to property, right to habitation., etc., but also to protect and guard public morals and public decency and to conserve the moral welfare of the State. Thus, it is the duty of the State to guard the citizens against attacks which may be insidious and punish an individual for obscene publications which tend to corrupt morals. The meaning of obscenity changes throughout time. What is considered obscene today should not be considered obscene future.
Anti-obscenity’ means keeping out the obscenity. Any legislation on the said matter can be termed as ‘anti-obscenity law’. The object is to prevent or prohibit the distribution of obscene materials. Sections 294, 295 and 296 of BNS have been enacted with the ulterior motive to protect and safeguard the public moral by making the sale, etc., of obscene literature and publications in general, and to young persons in particular, a cognizable offence.
Comparative Study BNS and IPC
| Bharatiya Nyaya Sanhita, 2023 | Indian Penal Code, 1860 | Change |
| S. 294 | S. 292 | The fine is increased from two thousand to five thousand rupees and from five thousand to ten thousand rupees on subsequent conviction. “including display of any content in electronic form’” is added. “in whatever manner” is also added |
| S. 295 | S. 293 | “person under the age of twenty years” is replaced by “child”, thereby curtailing the scope of this provision. |
| S. 296 | S. 294 | Fine is defined as up to one thousand rupees |
Section 292 IPC:
Sale, etc., of Obscene Books, etc:
(1) For the purposes of sub-section (2), a book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object, including display of any content in electronic form 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.
(2) Whoever—
(a) 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 or has in his possession any obscene book, pamphlet, paper, drawing, painting, representation or figure or any other obscene object whatsoever in whatever manner; or
(b) imports, exports or conveys any obscene object for any of the purposes aforesaid, or knowing or having reason to believe that such object will be sold, let to hire, distributed or publicly exhibited or in any manner put into circulation; or
(c) takes part in or receives profits from any business in the course of which he knows or has reason to believe that any such obscene objects are, for any of the purposes aforesaid, made produced, purchased, kept, imported, exported, conveyed, publicly exhibited or in any manner put into circulation; or
(d) advertises or makes known by any means whatsoever that any person is engaged or is ready to engage in any act which is an offence under this section, or that any such obscene object can be procured from or through any person; or
(e) offers or attempts to do any act which is an offence under this section, shall be punished on first conviction with imprisonment of either description for a term which may extend to two years, and with fine which may extend to five thousand rupees, and, in the event of a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and also with fine which may extend to ten thousand rupees.
Exception:
This section does not extend to—
(a) any book, pamphlet, paper, writing, drawing, painting, representation or figure—
(i) the publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, writing, drawing, painting, representation or figure is in the interest of science, literature, art or learning or other objects of general concern; or
(ii) which is kept or used bona fide for religious purposes;
(b) any representation sculptured, engraved, painted or otherwise represented on or in—
(i) any ancient monument within the meaning of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (24 of 1958); or
(ii) any temple, or on any car used for the conveyance of idols, or kept or used for any religious purpose.
Ingredients of Section 294 BNS:
- The book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object, was observed; and
- That the accused did any of the acts mentioned in Clauses (a) to (e) of Sub-Section 2 of Section 294 BNS.
Punishment:
- On first conviction with imprisonment of either description for a term which may extend to two years, and with fine which may extend to five thousand rupees, and
- In the event of a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and also with fine which may extend to ten thousand rupees.
Classification of Offence:
The offence under this section is cognizable, bailable, Non-compoundable and triable by any Magistrate.
Case Laws:
The constitutional validity of section 292 was challenged in Ranjit Udeshi v State of. Maharashtra (1965) 1 SCR 65 case. The facts of the case are that Ranjit D Udeshi one of the four partners, was the owner of Happy Book Stall. All the four partners were prosecuted for selling Lady Chatterley’s Lover, a book by D. H. Lawrence under section 292. Udeshi contented that section 292 was infringing his fundamental right of freedom of speech and expression guaranteed under article 19(1)(a) of the Constitution. It was held that article 19(1)(a) of the Constitution is subject to the restrictions enlisted under article 19(2). One of the grounds is public morality and decency. Section 292 dealing with obscene materials falls within this exception thereby addressing the issue of public decency and morality. Therefore, section 292 is constitutional.
In Bobby Art International v Om Pal Singh Hoon, AIR 1996 SC 1846 case. the issue that came up for consideration was whether the film Bandit Queen can be banned on the ground of obscenity. The child named ‘Phoolan Devi’ was made to marry a man of her father’s age. She was stripped naked and paraded and made to fetch water from the village well under the gaze of the villagers, but no one came to rescue. To avenge herself upon her prosecutors, she joined a dacoit’s gang, humiliated and killed twenty Thakurs of the village. The apex court while allowing the appeal against the judgment of Delhi High court banning the film on the ground of indecency for the public exhibition held that a film that carries the message that social evil is evil cannot be made impermissible and banned for public exhibition for the same. The scene of nudity and rape as well the use of expletives were in aid of the theme and intended not to arouse prurient or lascivious thought but revulsion against the perpetrators and pity for the victim.
Hicklin Test:
In Regina v. Hicklin (1868) case the Court held that a work can be considered obscene if any portion of it is found to “deprave and corrupt those whose minds are open to such influences”. The test was most famously used by the Supreme Court to ban DH Lawrence’s Lady Chatterley’s Lover in the case of Ranjit D Udeshi vs State Of Maharashtra (1964).
Miller State:
The US Supreme Court has laid down Miller test in order to determine obscenity. The Miller test for obscenity includes the following criteria:
- whether ‘the average person, applying contemporary community standards’ would find that the work, ‘taken as a whole,’ appeals to ‘prurient interest’
- whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and
- whether the work, ‘taken as a whole,’ lacks serious literary, artistic, political, or scientific value.
In Samresh Bose v Amal Mitra, AIR 1986 SC 967 case, the Supreme Court departed from Hicklin’s test while laying down the test of obscenity. The Court held that while judging the test of obscenity the judge should place himself in the position of reader of every age group in whose hands the book is likely to fall and should try to appreciate what kind of possible influence the book is likely to have in the minds of the readers.
Section 295 BNS:
Sale, etc., of Obscene Objects to Young Person.
Whoever sells, lets to hire, distributes, exhibits or circulates to any child any such obscene object as is referred to in section 294, 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 section requires a sale, letting to hire, distribution, exhibition or circulation of any such object as has been mentioned in section 294 of the Sanhita, or offering or attempting to do so. Such an act must be done to any person who has not yet attained the age of twenty years. Vitiating or corrupting the mind of a youth has been treated more severely by the section, and all the more so when a person is being sentenced for the second or subsequent convictions.
Punishment:
- 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.
Classification of Offence:
The offence under this section is cognizable, bailable, non-compoundable and triable by any Magistrate.
Section 296 BNS:
Obscene Acts and Songs
Whoever, to the annoyance of others,—
(a) does any obscene act in any public place; or
(b) sings, recites or utters any obscene song, ballad or words, in or near any public place,
shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to one thousand rupees, or with both.
Illustration 1:
An Israeli couple after being married the Hindu way at Pushkar, Rajasthan was arrested u/s 294 of IPC for kissing in public. A fortnight later, a magistrate slapped a fine of Rs. 500/- on the couple for committing an act of indecency.
Illustration 2:
A woman tourist from Finland was booked u/s 294, IPC on the charge of skinny dipping in the Pushkar Lake and streaking on the streets up her hotel.
In Pawan Kumar v. State of Haryana, AIR 1996 SC 3300 case, the Court observed the ingredients of Section 294 are (i) the offender has done any obscene act in any public space or has sung, recited or uttered any obscene songs or words in or near any public place; and (ii) has so caused annoyance to others. If the act complained of is not obscene, or is not done in any public place, or the song recited or uttered is not obscene, or is not sung, recited or uttered in or near at any public place, or that it causes no annoyance to others, offence is not committed.
In Narendra H. Khurana V. Commr. Of Police, 2004 CriLJ 3393 case, the Bombay High Court observed that cabaret dances wherein indecent & immoral activities are conducted do not violate Section 294 IPC unless evidence of “annoyance to others” is proven. It’s extremely unclear how the contentious act could annoy people who don’t watch it or disrupt public harmony. It’s like suggesting that watching a Hindi film featuring a seductively clothed dancer provocatively disrupt public order. It further stated that a cabaret into which a person enters after purchasing a ticket does not constitute a “public place” underneath the provision.
Conclusion:
Offences related to obscenity under criminal laws reflect the delicate balance between protecting societal morals and upholding the right to freedom of expression. Laws governing obscenity, such as those under the Bharatiya Nyaya Sanhita, 2023 (Sections 294–296) and the Information Technology Act, 2000 (Section 67), aim to curb the distribution and public display of material deemed lascivious, depraving, or corrupting. However, the subjective nature of “obscenity” often leads to ambiguity and varying interpretations by courts.
In the digital age, with the widespread availability of online content, enforcing obscenity laws has become increasingly complex. This necessitates a nuanced, updated legal framework that can distinguish between harmful content and legitimate expression, while ensuring that enforcement does not become a tool of censorship or oppression.
Ultimately, offences related to obscenity must be addressed with a legal approach that is consistent, progressive, and aligned with contemporary standards, while also being sensitive to cultural and social diversity.
Related Topics:
- Public Nuisance: Definition (S. 270)
- Offence Related to Spread of Infectious Disease (Ss. 271 to 273)
- Offences Related to Adulteration of Food (Ss. 274 and 275)
- Offences Related to Adulteration of Drugs (Ss. 276-278)
- Offences Related to Environment (Ss. 279 and 280)
- Offences Affecting Public Safety and Convenience (Ss. 281 to 293, 297)
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