Double Standards: India’s obscenity laws and bodily autonomy

By Nidhi Suresh

WASHINGTON: India has long experienced a tug of war over obscenity laws, which are rooted in concepts of morality and decency. However, the arbitrary and ever-evolving nature of these concepts pose a consistent challenge to the courts. Section 292 of the Indian Penal Code (IPC) defines as obscene any content which “appeals to the prurient interest,” which serves to “deprave and corrupt” those “likely to read, see or hear the content.” Anything deemed legally “obscene” is prohibited from being sold, published, printed or distributed. Obscene acts and songs are also punishable by law.

For example, a female BJP leader, Ritu Tawde, in 2013 proposed a motion banning mannequins modeling lingerie in Mumbai to “prevent the pollution of minds of today’s generation,” calling the models a “public display of obscenity.”

The city rejected the motion, saying there was no legal provision to ban mannequins. Obscenity laws now extend to the digital space as well. According to the Information Technology (IT) Act, anyone who publishes or transmits obscene material online can be punished.

However, what is considered obscene has consistently changed over the years. The subjectivity of the law means interpreting obscenity is often up to a judge who makes an individual determination of whether to deem something moral, corrupting or obscene. The debate around obscenity often surfaces when it is at loggerheads with the freedom of expression and speech. Shreya Munoth, a Delhi-based attorney, told DW that obscenity laws were introduced to India during the British colonial era. She said that Indian courts have occasionally passed progressive judgments on obscenity but “once the machinery of criminal law is put into play, the process itself is the punishment.” Munoth said India has a “restrictive idea” of what entails free speech and expression, and that obscenity laws have often been used to control the bodies of women.

“Courts also take a particularly paternalistic approach to cases, especially when it comes to women. The underlying tone of the courts tend to be that women need to be taken care of by the state,” she said.

In some cases, however, personal freedoms have prevailed. In June 2020, an obscenity case was filed against Rehana Fathima, an activist from India’s southern Kerala state. She had shared a video on Facebook which showed her children painting on her half-naked body. The post was captioned #BodyArtPolitics.

According to Fathima, the video was made to challenge societal values that consider sex and nudity as taboo. The video triggered widespread outrage and Fathima’s acts were called obscene and vulgar. But last month, the Kerala High Court quashed the case against Fathima and made a poignant commentary on the obscenity laws, morality and the female body in India.

“Women are bullied, discriminated against, isolated, and prosecuted for making choices about their bodies and lives,” said Justice Kauser Edappagath in his judgment. He emphasized that bodily autonomy falls within the realm of personal liberty guaranteed by the Indian constitution. He said that nudity cannot be deemed as “obscene or even indecent or immoral.”

“When the half-nude body of a man is conceived as normal and not sexualised, a female body is not treated in the same way,” he said. In addressing obscenity laws and morality in India, Justice Edappagath’s judgment noted that “society’s morality and some people’s sentiments cannot be the reason for instituting a crime and prosecuting a person. An action is permissible if it does not violate any of the laws of the land.”