Obscenity, Pornography and the Printed Word

In one line

Indian law prohibits obscenity, but the Supreme Court has declined to fix the standard of what adults may read by reference to what is fit for a child, and has left the regulation of the press to the body Parliament created.

In the wording a student can write in an exam: obscenity is an offence under the general penal law and under the special statutes governing indecent representation and the protection of children; the question whether the courts should prescribe standards for the press was answered in Ajay Goswami v. Union of India, in which the Supreme Court declined to lay down guidelines and held that the existing statutory framework, including the Press Council of India, was sufficient.

The legal framework in outline

The general penal law punishes the sale, distribution and public exhibition of obscene material, with exceptions for material justified as being for the public good on the ground of science, literature, art or learning, and for material kept or used for religious purposes.

Special statutes deal with the indecent representation of women, with material involving children, and with the transmission of obscene material in electronic form.

And the Press Council Act 1978 creates the body charged with preserving the freedom of the press and maintaining and improving the standards of newspapers and news agencies, with the power to receive complaints and, where it finds a breach of journalistic ethics or an offence against public taste, to warn, admonish or censure. Its constitution and its limitations are the subject of three chapters in Module III.

The test of obscenity

The old test asked whether the material would tend to deprave and corrupt those whose minds are open to such immoral influences, judged by its effect on the most susceptible.

The modern Indian test asks how an ordinary person of common sense and prudence would view the material, taken as a whole and in the context of contemporary community standards, rather than by isolating a passage and judging its effect on the most vulnerable reader.

Two consequences. Material must be read as a whole, and the standard is contemporary and communal rather than fixed and individual.

The leading case

Ajay Goswami v. Union of India, AIR 2007 SC 493, (2007) 1 SCC 143, decided on 12 December 2006.

Facts. The petitioner complained that newspapers were carrying material that was sexually exploitative and unsuitable for minors, and that the existing machinery, including the Press Council of India, was inadequate. He sought directions from the Supreme Court prescribing standards for the press so that children would be protected.

Held. The petition was dismissed. The Court held that a sufficient statutory framework already existed and declined to lay down guidelines of its own. It held that the freedom of expression cannot be curtailed by reducing the material available to adults to what is fit for a child, and it noted that the Press Council of India is the body Parliament established to maintain the standards of the press, operating by self-regulation with a statutory backstop, which is the scheme the law has chosen.