From novels to condom packets: How India keeps getting it wrong with the obscenity law

Graphics on consumer goods are all the rage this season, as the powers that be get their heads in a muddle on what the citizens of India can and cannot see. After the brouhaha over what goes on a cigarette carton, condom packs in the news. The Supreme Court order asking Maninder Singh, the Additional Solicitor General of India no less, to study if graphics on condom and other contraceptive packs breach obscenity laws, might seem bizarre. However, it is hardly the first time any sign of modernity—which includes condom packs if not the thing itself—has run into trouble with India’s colonial era obscenity law. 

The law is part of the original Indian Penal Code (IPC), Delhi High court advocate Gautam Bhatia told dna, older than even sedition. Doyens of Urdu literature, Sadat Hasan Manto and Ismat Chughtai were well acquainted with it, having been charged for their writings. Decades later, in 2006, MF Husain was charged with “hurting people’s sentiments” with his nudes of Hindu deities, till the Delhi high court quashed three criminal proceedings against him in 2009. 

Tamil actress Kushboo found herself facing 22 complaints of obscenity across Tamil Nadu in 2005, after she supported a woman’s right to premarital sex in a magazine interview. Though the Supreme Court in 2010 dismissed all charges against her, it seems the very thought of sex, and anything remotely in its orbit, must outrage one or the other set of people. 

In 2015, actress Sunny Leone had to depose before the police after a Mumbai housewife filed obscenity charges against her for her website content, and in 2014 Telugu actor Ram Charan Teja was booked for posters of his film. More famously, the makers of the film Phoolan Devi found themselves on the wrong side of this law for scenes depicting nudity and violence. In 1996, the Supreme Court decided in favour of the filmmakers saying “Nakedness does not always arouse baser instinct.” 

Though it might grace the bookshelves of thousands, Lady Chatterley's Lover by DH Lawrence remains banned in India under obscenity laws. It was when a bookseller Ranjit Udeshi, was charged with selling this novel in 1964, that obscenity got legally codified in Indian law. 

The PIL to have garnered most eyeballs recently, asking the apex court to direct the government to ban all pornography in India, is pending in court. Filed by advocate Kamlesh Tiwari, this PIL is in Bhatia's words “dangerous” as it gives the Supreme Court an open to decide and monitor free speech.

Fitting then that the definition of obscenity in India has been set at anything that appeals to  “prurient” interests, as Bhatia explains. Bhatia, whose recent book Offend, Shock, or Disturb: Free Speech under the Indian Constitution, delves further into the matter, said this happened when the Supreme Court abruptly decided on it to determine what is obscenity, ditching its Victorian-era favourite Hicklin test (brought about during the Udeshi case) for the ‘50s USA Roth test during the Aveek Sarkar vs State of West Bengal, in 2014. A bit better, but still five decades behind time. 

The reason India’s top lawyer has to devote six weeks studying condoms is also due to a PIL lodged in the Madras High Court in 2008, against the racy images on condom packets. Condom manufacturers have fought the case on grounds of free speech. “A legal tool to expand rights,” said Bhatia on the proliferation of such PILS, “is now being used to restrict them