Obscenity: The Supreme Court discards the Hicklin Test

Just now, in Aveek Sarkar v. State of West Bengal, the Supreme Court has held that a photograph of Boris Becker and his fiancee, in the nude, is not “obscene” within the meaning of S. 292 of the Indian Penal Code. This judgment is particularly significant because it expressly rejects the Hicklin Test, the archaic 1868 rule for determining obscenity, that the Court has regularly used in its history – most notably, to uphold the ban on Lady Chatterly’s Lover in Ranjit Udeshi’s CaseInterestingly, by citing a number of countries where Lady Chatterly’s Lover was not found obscene, the Court seems – at least implicitly – to be expressing its disapproval of Udeshi, almost fifty years after it was decided (paragraphs 16, 17 and 22). 

In contrast to the Hicklin Test, which was focused on individual or isolated aspects of an entire work that could be deemed obscene, as well as its impact on “vulnerable” sections of society, the Court adopts what it called the “community standards” test:

“A picture of a nude/seminude woman, as such, cannot per se be called obscene unless it has the tendency to arouse feeling or revealing an overt sexual desire. The picture should be suggestive of deprave mind (sic) and designed to excite sexual passion in persons who are likely to see it, which will depend on the particular posture and the background in which the nude/semi-nude woman is depicted. 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.” (Paragraph 24)

While welcome in that the Supreme Court gets rid of the Hicklin Test at last, the judgment is also problematic in many respects. First, the Court cites the 1957 US Supreme Court case of  Roth v. United States, and its use of the phrase “contemporary community standards” has been lifted from Roth – but the test in Roth itself was superseded twice over – first in 1966, by Memoirs v. Massachusettsand then in 1973, by Miller v. California, neither of which are cited by the Court.

More troublingly, however, Roth did not just speak about community standards test, but actually laid down a three-pronged test. Community standards constituted the first prong, but under the second prong, the material had to be “patently offensive”, and under the third prong, “of no redeeming social value” (Memoirs and Miller saw a liberalization of the third prong). The second and third parts of the Roth test are conspicuously absence from the Court’s judgment – in essence, it seems to be saying that if (on applying community standards), a particular work “has a tendency to arouse feeling or reveal an overt sexual desire“, it can be criminalized as obscene. This is worse than vague. On what ground does the Court hold sexual arousal to be something that ought to be criminalised? Additionally, the last Roth ground is crucial, because it is on the social value prong that works of art, literature, sculpture etc., that would otherwise be deemed obscene, are spared. The Court has referred to social value elsewhere, notably in Udeshi itself, and so its absence in this judgment, that otherwise rejects the foundation of Udeshi, leaves the law of obscenity in a state of flux.

The Court also cites the Canadian case of R v. Butler in its support for the community standards test, but regrettably, doesn’t do much with it. This is a pity, because Butler restricted itself to outlawing “undue exploitation of sex”, which in turn it defined as either sex with violence, or that was “degrading or dehumanizing”. In this way, unlike in the US, while Butler made community standards relevant in its obscenity enquiry, it did not make them dispositive. This, naturally, is extremely important, because in determining “community standards”, time and time again we have seen that the Courts simply adopt the dominant majority’s publicly affirmed views, and thus a fortiori exclude alternative, marginalized and minority ways of thinking, especially about sexual matters. Butler tries to provide at least some protection against this tyranny of the majority.

Nonetheless, today’s decision is an important step forward. The Hicklin test is now gone. Furthermore, in focusing so closely upon contemporary community standards, the Court will hopefully henceforth close its doors to claims based upon an idealized, purified (and imaginary) vision of “Indian culture and values”, a monolithic, eternal entity, whose proscriptions tend to match the views of its most extreme  advocates. And lastly, by referring to both Roth and Butler with approval, the very incompleteness of today’s decision leaves it open to revision in light of these cases in a more specific and meaningful way. There is a long way to go before India’s obscenity laws are truly speech-protective, but perhaps we have at last stopped moving backwards.

 

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18 Comments

Filed under Free Speech, Obscenity

18 responses to “Obscenity: The Supreme Court discards the Hicklin Test

  1. rajendra bhatia

    typo here

    conspicuously absence from the Court’s judgment – in essence, it seems to

  2. Radhika

    This is interesting. You would know (and perhaps guide me better on this as well) that while even in the US, where free speech is read very broadly, there is still immense restriction on sexual speech. It is restrained in the name of obscenity and preventing lasciviousness, it is a method by which the sexual agency of women is restrained, strangely enough, by the response it evokes in men. I suppose the Indecent Representation of Women Act here works on the same principle.

    • Excellent point – in the US, obscene speech isn’t considered “speech” at all for the purposes of the First Amendment, so it has absolutely no constitutional protection. The test for obscenity has changed and liberalized over the years, starting from the abandonment of Hicklin by Roth v US in 1957, and through Memoirs v Massachusetts and Miller v California – so it’s now more *difficult* to prove an obscenity claim. In my (admittedly sketchy) understanding of US law, nonetheless, if the three-pronged test (community standards + patently offensive + lacks serious value) – which is still extremely subjective – is satisfied, then the work in question will have no protection.

      The further problem is that *even if* a work isn’t “obscene”, and therefore falls within First Amendment protection, if it is pornographic or otherwise sexually explicit, it is considered “low-value” speech, and the government bears a less-then-compelling burden of public interest to abridge it. See, for instance, the concurring opinion of Justice Stevens and the dissenting opinion of Justice Scalia in US v. Playboy: http://en.wikipedia.org/wiki/United_States_v._Playboy_Entertainment_Group (link to the judgment at the bottom of the Wiki page).

  3. Vasujith Ram

    The Supreme Court also laid down that the message and context in which the picture was shown is relevant – this test may perform the function of the social value test.
    In any case, both S. 4 of the Indecent Representation Act as well as S. 292 of the IPC (after the 1969 amendment) have statutory exceptions, which cover art & literature – I haven’t really gone through Roth and the subsequent cases, but from a preliminary reading, it seems that the US Statutes did not have these social value exceptions.

    • Vasujith Ram

      And of course, I do not have detailed knowledge of the social value test – so it would be great if you could point out any error in my understanding.

    • Thanks for that. You raise a very valid point – I think the problem with message-and-context is precisely that it doesn’t make the art-as-exception ground clear enough. I’m thinking again of Lady Chatterley’s Lover, where arguably, there is no broader message (like in the Becker photograph) beyond simply exploring the possibilities/meaning of life through the lens of sex. I’m not sure if the message-and-context test will be helpful to future Lawrences, specially if community standards are the sole determining test.

      With respect to the art-exception under 292, I think that – given that the judgment cited Roth – it would have been better if it explained the scope of 292(e)(a), because in the US itself, that question itself has been under dispute. In Roth, the test was “utterly without redeeming social value”, whereas in Miller, it was liberalized to “lacking serious literary, artistic, political or scientific value.” I think the key question here is who determines whether a putatively obscene work is art or not – “redeeming social value”, at first blush, seems to lean more to the side of the subjective judgment of the Court (like it did in Ranjit Udeshi), whereas “serious… value” would seem to require a greater focus on the intent of the writer and the meaning of his work as determined by the norms of the art itself.

      An associated problem is whether, having only cited the first prong of Roth, the Court implies that community standards are what will *determine* whether or not something is a work of art or not. Quite apart from the difficulty of identifying a single community standard in a country as diverse and plural as India, I wonder if we would be entirely comfortable with this judgment being left to a moral majority.

      • Vasujith Ram

        I agree with you there, the message and context check is not reply specific or precise. The standard of scrutiny may depend on future cases. But yes, the use of community standards as a primary determining factor is troubling. It may have been better to evolve a constitutional standard rather than a seemingly majoritarian standard.

        That’s an interesting distinction between Roth and Miller, I wonder how the message & context aspect will be applied!

      • Asha

        Is it really necessary for the court to mention social value? Isn’t it understood that the exception of *public good* in section 292 shall apply?

  4. Vasujith Ram

    It seems that there is a precedent in KA Abbas v UOI [(1970) 2 SCC 780], where Justice Hidayatullah observed:
    “Rape in all its nakedness may be objectionable but Voltaire’s Candide would be meaningless without Cunegonde’s episode with the soldier and the story of Lucrece could never be depicted on the screen […] Therefore it is not the elements of rape, leprosy, sexual immorality which should attract the censor’s scissors but how the theme is handled by the producer.”

    • Vasujith Ram

      The paragraph begins, stating: “We may now illustrate our meaning how even the items mentioned in the directions may figure in films subject either to their artistic merit or their social value over-weighing their offending character.”

  5. harish2068

    I have basic doubt as to whether it is minimalist approach of the Court in decision making in the light of your statement that the court has left doors open for further interpretation.

  6. I have basic doubt as to whether it is minimalist approach of the Court in decision making in the light of your statement that the Court has left the doors open for further interpretation.

  7. siddharth

    okay so i have a point about this hicklin test, in the judgement of queen v hicklin it is nowhere mentioned that the test will be that of isolated judges, what it expounded was the definition related to the depravity of the innocent minds. i believe there can be an argument that in the udeshi judgement the judiciary or in fact roth got the test wrong. the test so applied in the aveek sarkar can be very well construed under the definition of hicklin.

  8. Divyam Krishna

    I have a slight confusion. I don’t think “contemporary community standards” test can properly be applied, if the “decency and morality” clause of Article 19(2) doesn’t derive from a greater “public interest.” Here are my two cents. I will assume Article 19(1)(a) forms part of the basic structure.

    Article 19(2) doesn’t intend the enforcement of “public” morality, not only because of the reasons mentioned on this blog, but also because the Article itself forms a part of the basic structure. If its “amendment” is immune from the “consensus,” then surely so is its “interpretation,” which is not so in the case of the States. Therefore, a “community standards” test (howsoever imperfect and howsoever desirable to Hicklin – I’m not advocating its resurrection) is merely making Article 19 “a plaything of the majority” of the people, something which is repugnant to the idea of the basic structure.

    Also, the application of the “community standards” test indirectly implicates the “decency and morality” clause of Article 19(2). Therefore, unlike, say CrPC, its interpretation has to stay uniform throughout all the states. Now, the “community standards” test can either be applied by way of a “national community standards” test or a “local community standards” test. The problem with the former is that it calls for the enforcement of the “consensus,” whereas the latter calls for an interpretation of the Constitution that varies from state to state (or worse, grants a Hecker’s Veto to the most puritan of states).

  9. Divyam Krishna

    I have a slight confusion. I don’t think the “contemporary community standards” test can properly be applied, if the “decency and morality” clause of Article 19(2) doesn’t derive from a greater “public interest.” Here are my two cents. I will assume that Article 19(1)(a) forms part of the basic structure.

    Article 19(2) doesn’t intend the enforcement of “public” morality, not only because of the reasons mentioned on this blog, but also because the Article itself forms a part of the basic structure. If its “amendment” is immune from the “consensus,” then surely so is its “interpretation,” which is not so in the case of the States. Therefore, a “community standards” test (howsoever imperfect and howsoever desirable to Hicklin – I’m not advocating its resurrection) is merely making Article 19 “a plaything of the majority” of the people, something which is repugnant to the idea of the basic structure.

    Also, the application of the “community standards” test indirectly implicates the “decency and morality” clause of Article 19(2). Therefore, unlike, say CrPC, its interpretation has to stay uniform throughout all the states. Now, the “community standards” test can either be applied by way of a “national community standards” test or a “local community standards” test. The problem with the former is that it calls for the enforcement of the consensus, whereas the latter calls for an interpretation of the Constitution that varies from state to state (or worse, grants a Hecker’s Veto to the most puritan of states).

  10. Pingback: News & Cues: Fifty Shades of *Bleep* – Artistik License – Artists | Entrepreneurs | Law

  11. Anvesha

    I might be wrong but is it odd that court mentions “revealing an overt sexual desire” in same breath as arousal? Does it mean that such revelation automatically causes arousal [which it assumes is corrupting] or does it mean that such revelation is *bound to be* morally corrupting in some other way?

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