In recent years, India has witnessed a series of controversies surrounding the concept of obscenity. The latest incident involving YouTuber Ranveer Allahbadia led to an FIR being filed by the Assam police along with the Maharashtra government invoking Information Technology Act, 2000 (“IT Act”) for transmission of obscene material. We have witnessed a lot comedians and actors facing backlash for explicit jokes, leading to police complaints. Parallel to these debates lies another legal grey area: sex toys. Despite no explicit ban, products like vibrators face restrictions under obscenity laws. Companies market them as “massagers” to bypass censorship, but customs officials often seize shipments on moral grounds.
This duality—comedians navigating free speech vs. “vulgarity,” and sex toys straddling privacy and public morality—highlights India’s struggle to define obscenity in a diverse and rapidly modernizing society.
Obscenity, in legal terms, generally refers to content that is considered offensive, indecent, or morally corrupting. However, the definition remains subjective and often varies based on societal norms and cultural contexts.
What does the law say?
The law on obscenity is primarily governed by the Bharatiya Nyaya Sanhita, 2023 which prohibits the sale, display, or transmission of obscene material, including electronic content. The law defines obscene content as material that is lascivious, appeals to prurient interests, or is likely to deprave and corrupt those exposed to it. Additionally, the IT Act, addresses obscenity in the digital domain and penalizes the publication or transmission of obscene material in electronic form.
Regarding sex toys, while there is no specific law banning them, they often fall under the purview of obscenity laws.
The Indian judiciary's approach to obscenity has evolved. In the landmark case of Ranjit D. Udeshi vs. State of Maharashtra (1964), the Supreme Court adopted the Hicklin test from British law to determine obscenity. This test focused on whether the material in question would tend to deprave and corrupt those whose minds are open to such influences.
However, in 2014, the Supreme Court moved away from the Hicklin test in the case of Aveek Sarkar v. State of West Bengal. The court adopted a more nuanced approach, focusing on the importance of context and considering the work as a whole rather than isolated portions. This ruling signalled a shift towards an understanding of obscenity, that takes into account changing societal norms and artistic expression.
Recent cases have further refined the legal stance on obscenity. In the AIB Knockout case, the Bombay High Court refused to grant interim relief to the comedians involved, highlighting the complex nature of determining what constitutes obscenity in comedy. The court's reluctance to provide a clear-cut definition underscores the ongoing challenge of balancing freedom of expression with societal standards of decency. In the College Romance Case (2024), the Supreme Court essentially distinguished “obscenity” (arousing lust) from “vulgarity.” It clarified that profanity or indecent language does not automatically qualify as obscene unless it arouses sexual thoughts or corrupts public morality.
Regarding sex toys, a 2011 Calcutta High Court ruling in Kavita Phumbhra v. Commissioner of Customs stated that objects used privately at home should not be considered obscene but bared its public sale.
Where do you draw the line?
The question of where to draw the line between acceptable content and obscenity remains challenging. The courts have emphasized the importance of context, contemporary community standards, and the overall intent of the work in question. For instance, in the latest Allahbadia and Raina controversy, authorities will likely consider the entire context of the show, its intended audience, and the specific nature of the comments made.
In the case of sex toys, the line is even more blurred. While personal use is generally not criminalized, their sale and marketing remain contentious. Many retailers navigate this grey area by marketing products as "wellness devices" or using discreet packaging and advertising to avoid legal issues.
While a one-size-fits-all approach is inadequate, there remains a need for clearer guidelines that can adapt to the rapidly changing digital landscape and that respect both cultural sensitivities and personal liberties.
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