šŸ“– Book 26 - Chapter 452
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PUBIC DECENCY AND MORALITY

(S. 294 and 297)

QUESTION BANK

Q. 1    Enumerate the offences affecting Public Decency & Morality as defined in BNS?

Q. 2 What constitutes public decency? Explain with illustrations.

SHORT NOTES

  1. Public Decency & Morality

SYNOPSIS

I. Introduction:

II. Definition of 'Obscenity'-

1. Statutory Definition (BNS S. 294 (1))-

2. Judicial Interpretation: The Community Standards Test-

III. Different Types of Offences Against Obscenity Prohibited under the BNS.

1. Sale, etc., of Obscene Books, etc. (S. 294 (2))

Exceptions:-

i) Public Good:-

ii) Religious Purpose:-

iii) Sculpture etc. on Ancient Monuments etc.:-    

iv) On Temple or a Cart:-

2. Sale, etc., of Obscene Objects to Child (S. 295).-

3. Obscene Acts and Songs (S. 296)-

IV. Conclusion:

I. Introduction:

The provisions related to obscenity and indecency, formerly codified in the Indian Penal Code, 1860 (IPC), have been re-enacted with some modifications and renumbering in the Bharatiya Nyaya Sanhita, 2023 (BNS). These sections aim to protect public morality, decorum, and decency by penalizing the dissemination of obscene material and the commission of obscene acts in public spaces. The relevant provisions are primarily contained in BNS Ss. 294, 295, and 296, which fall under Chapter XV: "Offences Affecting the Public Health, Safety, Convenience, Decency and Morals."

The law on obscenity under the BNS is designed to balance the fundamental right to freedom of speech and expression (Article 19(1)(a) of the Constitution) with the reasonable restrictions placed upon it in the interest of public decency and morality (Article 19(2)).

II. Definition of 'Obscenity'-

Unlike the IPC, BNS S. 294 provides an explicit, comprehensive legal definition of 'obscenity' for the purpose of controlling obscene objects and publications.

1. Statutory Definition (BNS S. 294 (1))-

A book, pamphlet, paper, writing, drawing, painting, representation, figure, or any other object (including display of any content in electronic form) shall be deemed to be obscene if:

a. It is lascivious (expressing or suggesting sexual desire).

b. It appeals to the prurient interest (an unhealthy, excessive, or unwholesome interest in sexual matters).

c. Its overall effect (where it comprises two or more parts) is such as to tend to deprave and corrupt persons likely to read, see, or hear the matter contained in it.

2. Judicial Interpretation: The Community Standards Test-

While the statutory definition includes the traditional "deprave and corrupt" language (derived from the archaic Hicklin Test), Indian courts have progressively evolved the judicial standard, particularly after the landmark 2014 Supreme Court judgment in Aveek Sarkar v. State of West Bengal.

The Community Standards Test is the modern approach adopted by Indian courts to determine obscenity:

The Average Person: The material must be judged based on how the average person, applying contemporary community standards, would view the work.

Work as a Whole: The work must be judged on its dominant theme, taken as a whole, not by isolating specific passages or images.

Artistic/Literary Value: If a work, despite containing sexually explicit content, is in the interest of science, literature, art, or learning, it is often exempt from the charge of obscenity.

This minute interpretation ensures that obscenity is distinguished from mere vulgarity, profanity, or satire, focusing instead on content that appeals purely to morbid or lascivious sexual interest.

  • In Ranjit D.Udeshi V/s State of Maharashtra
  • Facts:- Ranjit Udeshi was one of the four partners of a firm owing a bookstall. He was convicted, along with other partners, for being in possession of an obscene book containing obscene matter.
  • Defence: The appellant's defence was that the matter contains art and gives a message; therefore, it cannot be punished under S. 297.
  • Held: The Supreme Court upheld the conviction and held that where ā€˜obscurityā€™ and art are mixed, art must be so preponderating as to throw the obscenity into the shadows or make it overlooked.

III. Different Types of Offences Against Obscenity Prohibited under the BNS-

The BNS regulates the manufacture, distribution, and performance of obscene content across three key sections:

1. Sale, etc., of Obscene Books, etc. (S. 294 (2))-

This section targets the commercial and public dissemination of obscene materials. Accord to it-

    Whoever-

  1. Sells lets to hire, distribute, publicly exhibit or put into circulation, etc., or
  1. Import or export or conveys any obscene objects for any of the purposes aforesaid,
  1. Takes part in or receives profits from the business in the course of which he knows or has reason to believe that any such obscene object was made for any of the aforesaid purposes.
  1. advertises or makes known by any means whatsoever that any person is engaged in, or is ready to be engaged in any act which is an offence under this section,
  1. Offers or attempts to do any act which is an offence under this section.
  • The punishment is imprisonment of up to two years and a fine of up to five thousand rupees on the first conviction. In case of subsequent communication, the punishment is imprisonment up to five years and a fine up to Rs. 10,000/-
  • In fact, obscenity is a question of fact. It needs to be decided by the court.

Exceptions:-

  • The section has provided the following exceptions to the offence: Vis-

i) Public Good:-

  • Any book, pamphlet, paper writing, drawing, painting, representation, or figure, the publication of which is proved to be justified as being for the public good, on the ground that such book, etc., is in the interest of science, literature, Art or learning or other objects of general concern are exempted.

ii) Religious Purpose:-

  • Any book, pamphlet, etc., which is kept or used bona fide for religious purposes is exempted from S. 292.

iii) Sculpture etc. on Ancient Monuments etc.:-    

  • Any representation sculptured, engraved, painted, or otherwise represented on or in any ancient monument within the meaning of the Ancient Monuments and Archeological Sites and Remains Act. 1958.

iv) On Temple or a Cart:-

  • Any representation sculptured, engraved, etc., on or in any temple, or on any cart (chariot) used for the conveyance of idols, or kept or used for any religious purposes is exempted.

2. Sale, etc., of Obscene Objects to Child (S. 295).-

This section mandates significantly higher penalties when obscene material is targeted toward minors.

Offence Category

Acts Covered

Punishment

Dissemination to Minors

Sells, lets to hire, distributes, exhibits, or circulates any obscene object (referred to in BNS 294) to any child below the age of eighteen years.

First Conviction: Imprisonment up to 3 years, and fine of ā‚¹2,000. Subsequent Conviction: Imprisonment up to 7 years, and fine of ā‚¹5,000.

The higher quantum of punishment reflects the legislative intent to provide enhanced protection for minors from exposure to potentially corrupting material.

3. Obscene Acts and Songs (S. 296)-

This section regulates public conduct rather than published material, focusing on breaches of public peace and decency.

    As per S. 296- Whoever, to the annoyance of others-

(i) does any obscene act in public place, or

(ii) signing, reciting, or uttering any obscene songs, ballad, or words in or near any public place

-punishable with imprisonment up to 3 months or fine up to Rs. 1000 or both.

The most critical element in this section is that the obscene act or song must be performed to the "annoyance of others." This makes the offence subjective and dependent on the perception and discomfort caused to people in the vicinity.

IV. Conclusion:

The Bharatiya Nyaya Sanhita, 2023, maintains the criminalization of obscenity and public indecency, primarily through the renumbered Sections 294, 295, and 296 (corresponding to former IPC 292, 293, and 294). The primary change is the legislative inclusion of electronic content within the definition of obscene objects under BNS 294, adapting the law to modern media.

Crucially, the statutory text of BNS must be read in conjunction with evolving judicial precedents. The law has moved away from the restrictive Hicklin Test to the more contextual Community Standards Test, which ensures that artistic merit, social value, and contemporary societal tolerance levels are considered. The provisions aim to strike a balance: penalizing commercial exploitation of sexually explicit content (especially concerning minors) while simultaneously allowing for robust freedom of expression that is not merely vulgar or provocative but lacks genuine prurient appeal.

***

References-

  • 2. READY RECKONER OF OFFENCES CONVENIENCE, DECENCY AND MORALS
  • 3. ā€œBharatiya Nyaya Sanhitaā€, 2023 A commentary by J,K. Verma.
  • 4. ā€œBharatiya Nyaya Sanhitaā€, 2023 by Devgan,
  • 5. Legal Kart,
  • 6. Corresponding Section Table Of Bharatiya Nyaya Sanhita 2023, (BNS)
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