Recently, we have seen a surfeit of criminal cases involving alleged obscenity in public. Despite the fundamental right to freedom of speech and expression enshrined in article 19(1) (a) of the constitution of India, noted artists and actors have been charged under section 292 of the Indian Penal Code. Indian law on obscenity is often misused in the pursuit of moral interests.
Rights v morals
Typical of this is a case against one of India’s famous contemporary artists, MF Husain, for his painting of Bharat Mata or Mother India. Dismissing the case the court said, “A painter has his own perspective of looking at things, and it cannot be the basis of initiating criminal proceedings against him.” Another example is the writ petition to quash the certificate of exhibition awarded to the film Bandit Queen, which was based on a book that has been freely available since 1991. A single judge of Delhi High Court quashed the certificate and on appeal a division bench of the same court upheld the quashing. However, the Supreme Court reversed the decision, holding that the censor board, which is an expert body capable of judging public reactions to the film, had viewed the film in “true perspective” and granted the film an “A” certificate and its decision should be followed.
An exception to the fundamental right of free speech and expression guaranteed under article 19(1)(a) of the constitution are laws that impose reasonable restrictions in the interest of decency and morality. These vague and changeable notions differ between societies and depend on the cultural values and moral standards that shape the history and society of a country.
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Mohit Wadhwa is an associate at Lall Lahiri & Salhotra, an IP boutique based in Gurgaon.
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