"I Know It When I See It": Obscenity And The Indian Judiciary

Abstract

Any judicial or legislative overture the application of which will curtail the constitutionally guaranteed fundamental right of an individual must undergo scrutiny and the grounds of such a restriction must find their rationale in a clearly demarcated objective, and the restriction itself should be proportional to such objective. In this Article, the authors argue for importing this principle into the law on obscenity which is, at present, a murky domain, and is vulnerable to exploitation by political parties and dominant social groups for the furtherance of their self-perpetuating propaganda. To this end, the authors have studied obscenity laws of various jurisdictions and analysed them in the context of the Indian legal position. A critical appraisal of the most recent judgement on obscenity, Aveek Sarkar v. Union of India, has been undertaken so as to comprehensively understand and scrutinise the contemporary requirements for a reform in the legislative provisions. Discerning therein the inconsistencies and ambiguities in the law on obscenity, the authors have called for a substantive overhaul of the law. The Article concludes with a detailed section on recommendations where the authors have put forth certain suggestions in the form of broad guidelines and a test, adherence to which, the authors opine would lead to a more rational, just and progressive application of the law on obscenity.