The anatomy between art and obscenity has always existed. It is challenging to pinpoint the blurred line between artistic expression and the offense of obscenity (especially in Indian law!). On the one hand, nudity has a special place of expression in our Sanatan Sanskriti. It is evident from beautiful sculptures of the temples like that of Khajuraho built by the Chandela dynasty in its golden age between the 10th and 11th centuries. These temples give insight into our reach heritage of acceptance, freedom of artistic expression, and open-mindedness of our culture.
On the contrary, there has been a huge hue and cry on the recent photographs of Ranveer Singh in this so-called “Modern time” of the internet. Mr. Singh was booked under Section 294 of IPC (along with other laws related to obscenity). It is not the first controversy but one in an endless list of controversies related to nudity. You must remember the one involving a nude photo of Milind Soman running on a beach or the controversial image of Amir Khan on the poster of PK.
As a screenwriter/filmmaker/author/artist, you must wonder how much nudity you can legally use in your film/artwork. Is there any measuring scale to avoid crossing this thin line between artistic expression and obscenity? Do all nude images, by default, count as obscenity? How should you film an intimate scene without breaching obscenity laws in India? In this article, I am going to address these queries briefly.
Obscenity law in India is one of the legal grey areas. It has developed over a while. Section 292 of the Indian Penal Code deals with obscenity. This provision’s original form (without judicial interpretation) is a draconian Victorian law. As per this Section, a work shall be deemed obscene if (i) it is lascivious or appeals to the prurient interest or if its effect, or (ii) it may deprave and corrupt persons who see it. Initially, Indian Court applied UK based “Hicklin test” to interpret this provision. As per this test, a work is taken as the whole context of the work, and then it is seen if it is creating any apparent influence on the most susceptible readers, such as children or weak-minded adults.
Now, the question is, does all sexual scenes or nudity in your script/film influence the most susceptible readers, such as children or weak-minded adults? Who is a week-minded adult? Should content be measured from the perspective of common people in a society or a few sensitive individuals? How can one measure it? Hence, the Court had to think beyond the “Hicklin test” and apply the “American Ruth Test.” (a more pragmatic test). Aveek Sarkar v. the State of West Bengal (2014) is a landmark case. In this case, the German magazine “STERN” published an article with a picture of a world-renowned Tennis player Boris Becker, posing nude with his dark-skinned fiancĆ©e Barbara Feltus, a film actress. Ms. Feltus’s father photographed this picture. The purpose of this photograph was to send a message against racial discrimination and Apartheid. The photo signifies that love champions hatred. This photograph was also published in an Indian magazine and was challenged as obscene material. The Supreme Court of India refused to hold such a photograph as obscene.
Per the Honorable Court, a photograph (or any art, including a script or film if we interpreted this principle) has to be viewed in the background in which it was shown, and the message it has to convey to the public and the world at large. The Court further held that obscenity was to be evaluated from an average person’s perspective, applying prevailing community standards. The contemporary community standards test considers the changing values in society and how something that could have been considered obscene a few years ago would not be considered obscene today.
We can count it as a progressive and pragmatic judgment. The community standard changes from time to time, and there cannot be a strait jacket formula. In the movies of the 1950s-1960s, you rarely find a kissing scene or a bikini-clad diva. However, today intimate scenes or glamorous dresses are no more objectionable. In 1996, a movie titled “Fire” was banned due to the intimate homo sexuality scene. However, today we can find numerous content with same-sex/queer romances.
Hence, while writing a script or making a film, do not presume that it shall come under the radar of obscenity if you put nudity or sexual content. At the same time, your bold content may fall under the law of obscenity. Your content cannot be labeled obscene if you can justify the context and background. However, a scene like sexualizing a child, pornographic content (without background justification), frontal and back nudity, etc., may be considered nudity and may come under the radar of this law.
Hence, if you have landed into a tricky situation, it is advisable to take a legal opinion on whether a specific scene comes under obscenity as per Indian law from an entertainment attorney before you start the shooting. This simple precaution step helps you avoid re-shoot, censor board objections, legal action, and public protest. This article has given you a brief understanding. For any detailed discussion, feel free to write to us at attorneyforcreators@gmail.com.
