A society that treats its women well is prosperous and more stable than those where treatment is unfair and biased. A woman represents the culture, morality and dignity of society. As rightly said, if a woman is educated, she can educate the whole society. However, women have been treated as the second sex. Women have faced objectification, primarily sexual, of their bodies/figures throughout history.
Even though the laws prohibit it through several legislations, we still can see instances of obscene and vulgar displays of women. The word ‘obscenity’ has been derived from the Latin word ‘Obscenus’ which means filthy and disgusting. Section 292 of the Indian Penal Code 1860 also refers to obscenity as anything that is lascivious or prurient or tends to deprave and corrupt a person. Section 294 of IPC describes obscene acts in any public place as an act that annoys others.
It penalises the person with imprisonment up to 3 months or fine or both. Indian laws have not defined obscenity either in IPC or in any other statute. However, the Indian judiciary has discussed the meaning through several landmark cases. The Madras High Court in the case of Public Prosecutor v A.D. Sabapathy [1958 CriLJ 647] defined ‘obscene’ as anything repulsive, filthy, loathsome, indecent and lewd.
The first case of this nature went to a seven-judge bench of the apex court in the case of Ranjit D Udeshi v State of Maharashtra [1965 SCR (1) 65]. The court held that: “We need not attempt to bowdlerize all literature and thus rob speech and expression of freedom.
A balance should be maintained between freedom of speech and expression and public decency and morality but when the latter is substantially transgressed the former must give way.” It was based on the Victorian-era test of the Regina v Hicklin [1868 L.R. 2 Q.B.] that permitted conviction even if a publication had a mere proneness to titillating thoughts.
This test was famously called the Hicklin Test. Five years later, the apex court in the case of Chandrakant Kalyandas Kakodar v The State Of Maharashtra [AIR 1970 SC 1390] held: “The concept of obscenity would differ from country to country depending on the standards of morals of contemporary society.
What is considered as a piece of literature in France may be obscene in England and what is considered in both countries as not harmful to public order and morals may be obscene in our country.” Article 19 Clause (2) of the Constitution of India, imposes reasonable restrictions in the interest of decency or morality.
Decency can be said to be words and expressions meant to sound pleasing and not disturb the mental peace of a prudent person or the morality of society as a whole. Various laws protect the display of vulgarity of women in India. We also have several judgements and legislations on the same. Some are mentioned below.
The Indecent Representation of Women (Prohibition) Act of 1986 protects women from individuals, groups or companies who commit such acts of vulgarity. Section 2, clause (c) of the Act defines the indecent representation of women as a depiction of a figure or any body part being derogatory or denigrating or likely to deprave or injure public morality. Section 3 and 4 prohibit publishing or exhibiting a vulgar display of women in any form.
Section 6 provides for the punishment and penalty in contravention of these sections. Any offence under this act is cognizable which means that the police can arrest the accused without a warrant. The Information Technology Act of 2000 was enacted to provide legal recognition and prohibition to electronic data that massively replaced the age-old penpaper and print media.
It also protects the virtual presence of women. Section 67 of the Act provides for punishment for publishing or transmitting obscene material in electronic form. The punishment for the first conviction is imprisonment that may extend to 5 years with a fine which may extend to Rs 10 lakh. The punishment for the second or subsequent conviction is imprisonment which may extend to seven years with a fine which may extend to Rs 10 lakh.
The Cable Television Networks Rules of 1994 are read with The Cable Television Networks (Regulation) Act, 1994. The Advertising Code under Rule 7, clause 2, subclause (vi) reads as follows: “…in its depiction of women violates the constitutional guarantees to all citizens. In particular, no advertisement shall be permitted which projects a derogatory image of women.
Women must not be portrayed in a manner that emphasises passive, submissive qualities and encourages them to play a subordinate, secondary role in the family and society.
The cable operator shall ensure that the portrayal of the female form, in the programmes carried in his cable service, is tasteful and aesthetic, and is within the well-established norms of good taste and decency”. Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) is the most comprehensive international treaty of Women’s Rights.
It not only protects women against the state but also requires states to take affirmative actions. India signed the CEDAW Convention on 30 July 1980 and ratified it on 9 July 1993. Article 5 of the Convention requires states parties to “take measures to seek to eliminate prejudices and customs based on the idea of the inferiority or the superiority of one sex or the stereotyped roles for men and women.” It also mandates the state parties “to ensure…the recognition of the common responsibility of men and women in the upbringing and development of their children.
” In Ajay Goswami v. Union of India [(2007) 1 SCC 143], while examining the scope of Section 292 IPC and Sections 3, 4 and 6 of the Indecent Representation of Women (Prohibition) Act, 1986, the Apex Court held that the commitment to freedom of expression demands that it cannot be suppressed, unless the situations created by it allowing the freedom are pressing and the community interest is endangered.
Thus, it shifted from the Hicklin Test for obscenity and adopted a liberalised view of impression and effect on the mind of a prurient reader. The Apex Court of India in S. Khushboo v Kanniammal [CRIMINAL APPEAL NO. 913 of 2010], reiterated the principle of contemporary community standards, the general attitude of a reader and social values. The Supreme Court of India, in 2014, while deciding the case of Aveek Sarkar v State of West Bengal [Criminal Appeal No. 902 OF 2004], expressly discarded the Hicklin Test.
The apex court found that no offence had been committed under Section 292 IPC and then the question of whether it falls in the first part of Section 79 IPC has become academic. The court also appreciated the nude photographs along with the message that it wanted to convey, which was to eradicate the evil of racism and apartheid obviously by alarming the reader of the Ananda Bazar Patrika.
The real message was: ‘love champions over colour and not to shock the conscience.’ Finally, the Roth Test was adopted in India by this judgement. The US Supreme Court in Roth v United States 354 U.S. 476 (1957) held that “The standard for judging obscenity, adequate to withstand the charge of constitutional infirmity, is whether, to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest.” The Supreme Court of Canada also held in Brodie v The Queen [1962 SCR 681] that D.H. Lawrence’s novel “Lady Chatterley’s Lover” was not obscene within the meaning of the Canadian Criminal Code. It was also held that literary works must involve reading and must be considered as a whole and not be viewed in isolation. The Madras High Court in the case of P. G. Sam Infant Jones v State [CRL OP(MD). No.7426 of 2021] noted that though it is not illegal to watch pornographic content in India by an adult, it should be in one’s personal living space.
Article 21 of the Constitution of India protects the life and personal liberty of its citizens. In the case of Kamlesh Vaswani v. Union of India (Writ Petition No. 177 of 2013), Justice H.L. Dattu remarked that banning four crore porn websites in India is not possible as it will be ultra vires Article 21 and also that is not the solution as another four crore websites would surface. Adult content originates mostly in foreign countries and they are hydra-headed. However, a young school girl was raped by 4 of her seniors. The reason given by the accused was arousal after watching pornographic content. The High Court of Uttarakhand in the case of In Re v State Of Uttarakhand [Writ Petition (PIL) No. 158 of 2018] directed the MeITY to strictly comply with the order of banning 857 websites that infringed morality and decency in order to protect the children of impressionable age.
The lawmakers are yet to formulate a policy on pornography in India. As laid down in Joginder Kumar v. State of UP. (1994): “The quality of a nation’s civilization can be largely measured by the methods it uses in the enforcement of criminal law.” The glorification of vulgar displays of women is still prevalent through mass media all over the world.
A controversy arose during Miss World 2014 which scrapped the mandatory swimsuit round. The pageant chief Julia Morley believed that she wanted to shift the perception of people from physical to mental beauty and personality. These pageant shows are a patriarchal relic of the past. Cinemas are the mirror of society.
The cinema industry must ban the obnoxious portrayal of women as second sex or items/objects through lyrics and item songs in the movies. It is also to be noted that the scenes must not be seen in isolation as was decided by the Supreme Court in Bobby Art International v. Om Pal Singh Hoon (1996) [Civil Appeal Nos. 7523, 7525-27 AND 7524 (Arising out of SLP(Civil) No. 8211/96]. We have several legislations and commissions such as the Human Rights Commission and the National Commission for Women to safeguard such interests.
However, the need of the hour is to change not only the perception but also the attitude of people. Women in India face such issues not only outside but also at home where they are supposed to feel most safe. We must act on not normalising indecency and vulgarity as a part of our culture.
Social awareness programmes and camps should be organised to make people aware. Parents in India wanting their female child and relatives to get married at the age of 18 is yet another example of the objectification of the female. As such we also see the prevalence of commodification of the female body.
Every other day women have to deal with the ignorance of their personal characteristics such as productivity, intelligence or fertility and the focus is shifted towards suitable body size and appealing features. In such a demanding time, when women after centuries of struggle all over the world have come to a better place in terms of education, career and financial liberty, the US Supreme Court has taken away the constitutional right to abortion for women.
The Court on 24 June 2022 overturned the landmark judgement in the case of Roe v Wade [410 U.S. 113 (1973)] which granted and protected women’s right over their bodies during pregnancy against the State. The need of the hour is to enact new laws, make existing laws more strict and include the curriculum of dignified human life in the early years of education that shape perceptions in later years.
The state must protect women and children and in order to do so, they may make special provisions under Articles 15(3), 39(a), 39(e), 39(f), 42 and 45 of the Constitution of India, 1949. The right to life, enshrined under Article 21 of the Constitution of India, also encompasses the right to live with dignity as was held in Maneka Gandhi v Union of India [AIR 1978 SC 597.]