What amounts to obscenity is subject to the community standards test: Ranjana Adhikari

Interview/ Ranjana Adhikari, partner, TMT practice group of IndusLaw

Q/ In the Raj Kundra case, it came across that definition of pornography is often a grey area. Where exactly does the distinction lie?

A/ In India, the production, circulation and distribution of pornographic content are illegal under laws such as the Indian Penal Code, 1860; Indecent Representation of Women (Prohibition) Act, 1986, and the Information Technology Act, 2000. However, what amounts to obscenity so as to trigger these penal laws is something that is subject to the tests laid down by the Supreme Court of India for obscenity in various judgments and is an evolving legal concept. The test which has found favour with the Supreme Court over the years is the ‘community standards test’, which leads to obscenity being a concept whose thresholds are constantly evolving.

In 1969, the Supreme Court observed in a case: “The standards of contemporary society in India are also fast-changing.”While content made for voyeuristic appeal is likely to qualify as obscene content and trigger the laws, what amounts to obscenity in a particular case set of facts would depend on the tests laid down by the Supreme Court. In 2014, the Supreme Court observed: “Only those sex-related materials which have a tendency of “exciting lustful thoughts”can be held to be obscene, but the obscenity has to be judged from the point of view of an average person, by applying contemporary community standards.”

Q/ The government recently tightened its control over OTT platforms by introducing IT Rules, 2021. Do you think the content on these platforms can be categorised as porn?

A/ There is a difference between content produced and disseminated expressly as pornographic content and those portions of nudity that may exist in a piece of online curated content. The consumers of these two may not overlap in all situations, either.

It wouldn’t be apt to say that any kind of nudity in an online curated content would make it pornographic content. Such content is also evaluated on the overall storyline, length of the scene, and need for such portrayal. The Supreme Court, while dealing with the question of obscenity in the film Bandit Queen pointed out that the scenes in the film containing nudity have to be considered in the context of the message that the film was seeking to transmit in respect of social menace of torture and violence against a helpless female child which transformed her into a dreaded dacoit.

Similarly, in the same judgment, the court referred to the film Schindler’s List, which contained a scene of rows of naked men and women, shown frontally, being led into the gas chambers of a Nazi concentration camp. Thereafter, the Supreme Court observed: “Nakedness does not always arouse the baser instinct.”

Q/ Do you think porn consumption should be legalised in India?

A/ Agreeing with what was orally observed by former Chief Justice H.L. Dattu in the case of Kamlesh Vaswani v. Union of India, solely on the point of consumption of pornographic content by an adult within the four walls of his house, this shouldn’t be made an illegal activity. The state should ideally steer clear of a paternalistic approach while dealing with an adult’s choice of what to consume in his private space and time. At the same time, the act of circulation, production and publication can always be evaluated with a different yardstick.