Section 292 of the Indian Penal Code lays down that the sale of obscene books etc. is a criminal offence, with the aim of fulfilling the social purpose of not corrupting human minds with circulation of gross sexual material. The issue becomes particularly relevant when considered in light of pornographic material which has proliferated with the advent of the internet, and which many argue, there is a strong need to curb.
Pursuant to this, in the present post I will focus upon the legislation regarding obscenity under the penal code, examining the words and phrases incorporated in the same. To whose end I intend to illustrate (though very superficially) how s.292 is a manifestation of Victorian England's mores towards sex, which have largely been drawn from the Biblical concept of sex as sinful, as advanced during the middle ages. Additionally, how Section 292, in as many words admits its own morality to be in disjunction with the sexual mores prevalent in India in the 19th century, i.e. at the time that the Indian Penal Code was enacted. The argument being that, s.292 essentially imported and imposed the then English proprieties about sex into the Indian scenario, the same English sexual taboos which we deem to be so "Indian" today. [Though taken, it can be argued that why such morality should not be deemed Indian after a 100 years of its use in the Indian society uptil independence--though I would not accept this argument easily because of reasons which I don't intend to discuss now for brevity's sake--but the intention of this post is really to highlight the origins of morality of contemporary Indian law on obscenity.]
Definition of obscene
s. 292 of the Indian Penal Court lays down the definition of obscene as follows:
"
A book, pamphlet, paper, writing,
drawing, painting, representation, figure or any other object, shall be
deemed to be obscene if it is lascivious or appeals to the prurient
interest or if its effect, or (where it comprises two or more distinct
items) the effect of any one of its items, is, if taken as a whole, such
as to tend to deprave and corrupt person, who are likely, having regard
to all relevant circumstances, to read, see or hear the matter
contained or embodied in it."
The following terms strike to me as worth a discussion in the abovementioned provision.
"Lascivious"
Lascivious and prurient are not words from contemporary vocabulary. They in fact were used largely in Victorian England, and have Biblical connections.
Lascivious has its etymology in the Latin "lascivia" meaning loose, runaway passion and lust. The Church was infact very influenced by the writings of Aristotle who advocated that humans must not give in to instincts, but rather use reason to control their urges as this will help strike a balance which humans much need for a good life. It was thus that the Church came to see loose and runaway passion as a threat to balance and happiness. Runaway passion, as everyone who has ever been in love, will know is pretty out of control. Instinctive. And humans need to control. Hence, lascivious isn't a good thing at all, no good thing, the Church said. In the Book of Jude, warnings against lasciviousness have been issued:
"
Satan is sending a certain false doctrine to infiltrate the church. And
it's going to come through preachers, teachers and evangelists. They'll
take God's grace and subtly twist it, manipulating it, until finally it
produces lasciviousness in God's people."
Paul the Apostle further warns the Corinthians:
"
I fear, lest, when I come, I shall not find you such as I would...and
that I shall bewail [mourn for] many which have sinned already, and have
not repented of the uncleanness and fornication and lasciviousness
which they have committed." (2 Corinthians 12:20-21).
In both cases, not desirable qualities. Not desirable at all.
"Appeals to the prurient interest"
Prurient. Again not contemporary vocabulary. It means
"marked by, arousing, or appealing to sexual desire." The word is derived from the Latin
pruriens which means to itch. Now itching is a really involuntary feeling, implying
lack of control.To itch is a yearning. Yearning signifies loss of voluntary outputs. Which is again, something undesirable in Aristotlean philosophy and the philosophy of the Church.
Sexual desire is thus paralleled with an itch. Totally out of control. And hence looked down upon as something base. Something not befitting the higher human order of the mind and reason and balances.
"Tend to deprave and corrupt"
Now both lasciviousness and prurient interests, being such lower order emotions (drawing from Aristotlean philosophy), the higher, intellectual etc. mind of the human must shun/shirk such emotions. But if these emotions do arise they tend to deprave or corrupt the person by lowering his dignity as a thinking, rational person from the higher orders. Thus making him less human and more a creature of a lower order [Do notice how this philosophy is used to exclude a person from the category of 'human' as someone depraved and corrupt is not a human at all but a creature of the lower order.]
The law then lays that since we don't want any person (person in the sense of
homo sapien) demoted from the
human to some creature of lower order we must take due measures to ensure that the said person is not depraved or corrupted by base emotions. How paternalistic is that! To pronounce some very basic emotions of persons as
not human and then to set out and
cure the person of those emotions, or well,
protect the person from such emotions!
But hey, that's what our obscenity laws rely upon. The glory of being a saviour! And if there's not enough things to save people from, invent some. First invent standards to classify people as depraved or corrupt based on some natural instincts, and then
save (read: persecute) those who are not hypocritic enough to show/agree that they comply with those standards.
The Insight From Exceptions
That was one part of s. 292. This portion relates to what insight I think we can gain from the exceptions which s.292 carves. It lays down that s. 292 does not extend to:
"
any representation sculptured, engraved, painted or otherwise represented on or in—
(i) any ancient monument within the
meaning of the Ancient Monuments and Archaeological Sites and Remains
Act, 1958 (24 of 1958), or
(ii) any temple, or on any car used for the conveyance of idols, or kept or used for any religious purpose."
Sounds rummy, doesn't it? If a major argument for carving the entire concept of obscenity came from religious philosophy, one would assume that religious depictions themselves would be compliant with the anti-obscenity standard. One does not expect religious materials, ancient monuments etc. themselves to be lascivious and prurient in this regard, so why why exclude them from scrutiny under obscenity laws? For any such exclusion will only make sense if there is in fact something prima facie obscene about them. [If there is not, upon application of obscenity test, it would be automatically clear that there is not and an exception would not be needed].
Though I can already hear some people coming up with the argument that since there is obviously nothing obscene about ancient monuments etc. just exclude it from the obscenity test by carving an exception, so as to reduce unnecessary litigation.
But but but I do wonder how many of religious art form in India and ancient monuments will actually survive the definition of obscenity as laid in s. 292? The Khajuraho Temples for one I am sure arouse a fair amount of "lasciviousness" and appeal to "prurient interest" with all their negative connotations for the newly arrived European drafting the Penal Code. Why wasn't all this then scrutinised under the colonial law?
It was a matter of pragmatism really. 1860 was the year when the Indian Penal Code was enacted and this was not too long after the 1857 Revolt, subsequent to which the British had adopted a hands-off approach towards Indian cultural mores (which for the British meant largely religious aspects, for eg. Caste system was a part of religion). This, they had done because they thought too much meddling with Indian culture and attempting to "correct" it, for example in the form of the Sati Abolition and Widow Remarriage Acts in the early half of the 19th century was what had brought the reaction from people in India in form of the 1857 revolt. Something which they did not want to see more of.
But this does not sideline the fact that had such an exception not been carved, a lot of the existing cultural (a.k.a religious, in Brit terms) artefacts, monuments, literature etc. in India would have been deemed obscene under the law.
So what the British regime essentially did was import some Christian ideas on desirable emotions into s.292, and note that these ideas were not compliant with the Indian culture or religion...(religion- culure? culture-religion? blah blah, we need a better term here), so all of that had to be excluded from the application of the obscenity test. But then we went ahead and adopted these Brit/Church norms as "Indian" and started censoring everything using a very repressive and victimising concept framed by them, a.k.a. obscenity for our "national" and "community" standards of "public morality" to curb freedom of speech and expression. Voila! But that's a story for another post.
Conspicuous by absence
Just on a sidenote it is interesting to observe that s.292 has nothing on the lines of arguing against circulation of "obscene" material because it degrades women and suchlike, though considering that it's a 1860 legislation that's probably too much to ask for. Or is it, considering that there's already a provision in the Code to "protect and preserve the modesty of women?" But looks like obscene books etc. have not much to do with the modesty of a woman (true, it's not a real woman which any such book might talk about, so perhaps that could be attributed as a reason for exclusion of this line of argument.) But I reckon this argument will be a major one against obscene material in contemporary scenario- an argument which I have not addressed here due to reasons in the following bracketed portion. (But wait! is Indian law on obscenity even talking contemporary? We are not even arguing contemporary arguments, no! Forget counters for them!)
The essential argument for s.292 thus remains that free, "uncontrolled" sexual feelings (and by uncontrolled I don't mean uncontrolled to such an extent that they result in unconsented sexual violence like rape, we are just talking about uncontrolled in the sense it lets the mind go romping, thinking or fantasising about sex) is a grossly wrong thing to have in the head and if you cause that for anyone you are le Satan, and must be punished hey!
