Art, Expression and Law: When Does Creativity Cross the Line into Obscenity

Legal Lens: How Indian Law Defines Obscenity:

The Indian Law provides obscenity as an offence under sections 294, 295, and 296 of the Bhartiya Nyaya Sanhita and also in section 67 of the IT Act of 2000 and many other statutory provisions, but the lawmakers haven’t given a comprehensive definition of what is ‘obscene,’ but they had rather relied on the courts and their interpretation of an obscene act. Indian courts from time to time have evolved and changed the things, acts, or arts that can be considered as ‘obscene’ Prior to 2014, the Indian Judiciary followed the Victorian-era ‘Hicklin Test,’ which stated a work that can corrupt or degrade individual brains is considered to be obscene.

After the case of Aveek Sarkar & Anr vs. State Of West Bengal and Anr. in 2014, the Hon’ble Supreme Court laid down the ‘Community Standard Test,’ in which the obscenity was to be judged from the point of view of an average person, applying community standards. Other than this, the Indian Censorship Board also works as a preventive authority against the publication of obscene content. Not having a clear definition of what is obscene and what is decent is a clear demerit of obscenity laws in India, as it gives enormous power to the lawmakers, judiciary, and public at large to misuse this against an individual or an organization.

The “Community Standards” Test: Who Sets the Boundaries?

After the apex court in 2014 in Aveek Sarkar & Anr vs. State Of West Bengal and Anr. discarded the ‘Hicklin Test,’ the new ‘Community Standard Test’ was very subjective in nature, as according to the test, it relied on national and contemporary standards and changing definition of obscenity, which made the test very controversial, as the standards of the community change from time to time; for instance, an act may be obscene today but not after 5 to 10 years.

The standards also vary from person to person; an act may be obscene for one but not for the others. India is one of the most diverse countries in terms of caste, religion, culture, etc. The testing criteria become more difficult as determining the reasonable man may become difficult, and also the bias and feeling factor by a person cannot be left behind while determining the obscenity.

An artist’s freedom of speech and expression provided in Article 19(1)(a) of the constitution also gets violated because of the ‘reasonable’ restriction imposed by obscenity laws. There is no line made by the lawmakers or the judiciary between the obscene and the decent act; anything at any time can fall under obscenity laws.

Creativity vs. Morality: Where Do Artists Stand?

‘Creativity’ and ‘Morality’ for an artist is a topic which has sparked the interests of many for a long time as any being who is subjected to public scrutiny must be careful as any wrong step can lead to dire consequences such as protests and official inquiry and public outrage and it does not even end here as this all lead to him not being able to survive as the primary source of income for an artist is his creation and not being able to create is a greatest bane for an artist the main question lie here is where does an artist stand in this situation as the main requirement for an artist is his artistic freedom as an art is not just some scribble on a paper or some random notes of music as an art is the expressed feeling of an person an artist through his art conveys his or her feeling like discomfort towards any government policy or any policy of lawmakers and in today's time the public can easily be angered and such reaction of public leads to dire consequences creativity is necessary in today's time.

Similarly, the fine line between creativity and morality can be tricky or misleading, as the concept of morality can be vague; what was moral yesterday is not sure to be moral today, and tomorrow can be different too. That's why to ensure artists' freedom and the free use of media, it is imperative to give freedom to artists and to let them express their free will and put only ‘reasonable-objective’ restrictions on them.

Media, Morality, and the Mob: The Role of Public Opinion:

Public outrage can be considered an event of aggression, as in such a situation a large number of the public gathers in protest against some particular person or organization. In today's era of information, such outrages can also be incited by providing false, manipulated, or exaggerated information to the masses. The prime example of that could be the recent ‘Latent case’. This shows the power the information and media hold. Media influence in the Aryan Khan and Sushant Singh cases highlighted the impact of sensationalism and media trials on public perception.

This not only hinders the process of law but also harasses the accused. There were many attempts to define media trials, the definition that comes closest is by R. Surette, who described, it as:

“Media trials are defined as certain regional or national news 'events' in which the criminal justice system is co-opted by the media as a source of high drama and entertainment.”

The role of media should be just to ensure that free and true information reaches the masses. The greed for TRP and fame is what makes things troublesome, as media is considered the 4th pillar of the Indian constitution; this title also carries a responsibility of being fair, free, and true.

Global Perspectives: How Other Countries Handle Obscenity in Art:

The laws on obscenity vary from country to country, as different countries see obscenity from different angles. In 1868, the Queen’s Bench in the United Kingdom laid down the famous ‘Hicklin Test’ while hearing Regina v. Hicklin and was later modified in the Obscene Publication Act, 1959, but the same wasn’t applied in India, and the Indian Judiciary followed the same rule until 2014, when the ‘Community Standard Test’ was adopted from the United States of America, which arose from the famous Roth v. United States of America, 1954, but the same test was changed in the year 1974 in Marvin Miller v. State of California, introducing the ‘Miller Test.’.

The ‘Miller Test’ was more objective than the previous test and had a much more detailed explanation of what is an obscene act and what is not. The test never came into existence in India. There are many more examples of such tests and laws worldwide that are more impactful, objective, and cannot be misused easily in comparison to the present laws and tests used in India.

Way Forward: Balancing Artistic Freedom and Social Responsibility:

The artistic freedom given under Article 19(1)(a) of the Indian Constitution to artists in India is still a debatable, complex, and unresolved topic, as the vague definition of ‘obscenity’ and ambiguous laws on censorship and obscenity leave the artists vulnerable to the legal, political, and social challenges. The transition from the Hicklin test to the community standard test in 2014 was a step forward in Indian jurisprudence on obscenity laws.

The lack of subjectivity still prevails, making it difficult to set a benchmark for what is acceptable art. In a diverse country like India, not having clear guidelines on obscenity leads to media sensationalism and public outrage, costing an artist’s creative freedom. While respecting moral sensitivity, a balanced and objective approach should be followed in India, which respects and protects both artists’ liberty and societal values.

Like the ‘Miller Test,’ the Indian judiciary should also lay down more objective and clearer standards and tests for obscenity. In the end, art should provoke thought, challenge conventions, and inspire change, but without crossing ethical lines, as the key lies in ensuring artistic freedom while upholding societal values and norms.

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