-TEJAL SHRINGARPURE
VEENA BHATE
SAYLEE SALVI
ANINDITA GANGULY
What is meant by Obscenity?
The state or quality of being obscene.
Something that is offensive or repulsive to
the senses
Obscenity is a legal term that applies to
anything offensive to morals and is often
equated with the
term PORNOGRAPHY. Pornography, however, is a
more limited term, which refers to the erotic
content of books, magazines, films, and
recordings. Obscenity includes pornography,
but may also include nude dancing, sexually
oriented commercial telephone messages,
and scatological comedy routines.
292
293
A book, pamphlet, paper, writing, drawing,
painting, representation, figure or any other
object, shall be deemed to be obscene if it is
lascivious or appeals to the prurient interest
or if its effect, or (where it comprises two or
more distinct items) the effect of any one of
its items, is, if taken as a whole, such as to
tend to deprave and corrupt persons who are
likely, having regard to all relevant
circumstances, to read, see or hear the
matter contained or embodied in it.
Whoever sells, lets to hire, distributes,
publicly exhibits or in any manner puts into
circulation, or for purposes of sale, hire,
distribution, public exhibition or circulation,
makes, produces any obscene book,
pamphlet, paper, drawing, painting,
representation or figure or any other obscene
object.
This section does not extend toAny book, pamphlet, paper, writing, drawing,
painting, representation or figure (1) the
publication of which is proved to be justified
as being for the public good; (2) Which is
kept or used bona fide for religious purposes.
Any representation sculptured, engraved,
painted or otherwise represented on or in any
ancient monument, any temple, or on any car
used for the conveyance of idols, or kept or
used for any religious purpose.
Whoever sells, lets to hire, distributes,
exhibits or circulates to any person under the
age of twenty years any such obscene object
as is referred to in the last preceding section,
or offers or attempts so to do, shall be
punished [on first conviction with
imprisonment of either description for a term
which may extend to three years, and with
fine which may extend to two thousand
rupees, and, in the event of a second or
subsequent conviction, with imprisonment of
either description for a term which may
extend to seven years, and also with fine
which may extend to five thousand rupees]
The law covering obscenity is dealt with in
the IPC of 1860.
These laws are relics of the colonial period
and fundamentally at variance with the
constitutional guarantees of freedom of
expression.
These laws relating to obscenity are directly
inherited from British colonialism
Concept of obscenity differs from country to
country depending on the moral standards of
contemporary society.
The system of authoritative materials for
grounding or guiding judicial and administrative
action recognized or established in a politically
organized society.
One of the most controversial issue in obscenity
is balancing the need to protect society
1. Against the potential harm that may flow from
Obscene material.
2. Need to ensure respect for the freedom of
expression and to preserve a free flow of
information and idea.
The law relating to
obscenity is laid down
in section 292 and 293
of the Indian penal
code which came about
by Act 36 of 1969 .
Amendments of 1969 brought about changes
to obscenity law.
Primary object was to prevent circulation of
and traffic in obscene literature .
Specifically to restrict communication of
certain types of materials based on their
content.
The obscenity legislation and jurisprudence prior
to the enactment of Act 36 of 1969 were
concerned with prohibiting ‘immoral influences’
of obscene publications and safeguarding the
moral individual into whose hands such works
could fall.
To impose a certain standard of public and
sexual morality.(On society as a whole)
But at the same time exercise individual
freedoms , which forms the basis of our
constitution.
The concept of obscenity is moulded to a very
great extent by the social outlook of the
people who are generally expected to read
the book.
Changes from person to person
Changes from country to country
1.
Try to place himself in position of author
2.
Viewpoint of the author
3.
Place himself in the position of a reader of
every age group in whose hands the book is
likely to fall.
4.
Understand the influence on the readers.
5.
Thereafter apply his judicial mind.
Defining the concept is very necessary in any law
Interpret obscenity basing on fact and
circumstances
Obscenity law should avoid using vague and
subjective terms, such as ‘indecent’ ‘absence’
and harmful to public moral’
Obscenity restrictions must be aimed at
preventing real harm
Obscenity law not only restricts material
which can be shown to be harmful.
It also means that it predisposes person to
act in an anti-social manner
Example – physical or mental mistreatment of
women by men
Bobby Art International
& others v Om pal
Singh Hoon & others
Citation – 1996 AIR (SC) 1846
Judges – S P Bharucha; B N Kirpal
Facts - A writ petition was filed by the first
respondent to quash the certificate of
exhibition awarded to the film Bandit QUEEN.
The film was based on a book which had
been in a market since 1991 without
objection
The first respondent was president from
Gujjar community
Issues – whether the portrayal of frontal
nudity, rape and violence in the movie ‘Bandit
Queen’, were obscene , indecent and
denigrating to women
Respondent contended that after seeing the film his
fundamental rights were violated
Alleged that the depictions in the movie were
“abhorent and gross and a slur of womanhood in
India.”
Also claimed that a rape scene in the film was
suggestive of the moral depravity of the Gujjar
community because the rapist was Gujjar
Thus, the film depicted the petitioner and his
community as rapists and lower the reputation of the
Gujjar community
The court observed that a film that illustrates
the consequences of a social evil necessarily
must show that social evil
Theme of the film
Scenes of the nudity and rape and use of
expletives, were in aid of the theme and
intended not to arouse prurient or lascivious
thoughts but revulsions against the
perpetrators and pity for the victim
Maqbool Fida Husain V
Raj kumar Pandey
Citation - Crl. Revision Petition No. 114/2007
Facts – M F Hussain painted an art work of a nude
lady in grief without giving it any title. The
untitled painting was sold to a private collector in
2004
In 2006, it was an part of an online charity
auction for victims of the earthquake under the
name ‘Bharat Mata’.
Hussain had no role or involvement in this
auction
Large scale protests against the painting
Apology
Several complaints were filed in different
parts of the country alleging various offences
against MF Hussain.
Arrest warrants
APEX court consented and matter was
consolidated and transferred to the court of
ld.ACMM , Delhi, by way of transfer petitions.
This court issues summons against the
petitioner, M F Hussain, for crimes under
Sectio n 292.
Arguments –
1. The petitioner, M F Husain, argued that, on
the face of it, the painting contained no
material that could be held to be obscene in
terms of the legal definition of obscenity.
2.
He argued that there was nothing in the
painting that could be interpreted to be
lascivious or appealing to the prurient
interest, or tending to deprave or corrupt
persons likely to view the painting, and that
its identity was irrelevant to the alleged
obscenity of the painting.
The petitioner pointed out that as soon as
complaints were filed and protests held
against the painting, he had tendered an
unconditional apology and the painting was
withdrawn from the auction.
The respondents alleged that the petitioner’s
acts had hurt the sentiments of Hindus and
all patriotic Indians. A line had to be drawn
where the average person with morals begins
to feel embarrassed or disgusted at a naked
portrayal of life without the redeeming touch
of art or genuine or social value.
The court held that, on the face of it, the painting
was neither lascivious nor likely to appeal to the
prurient interest – ie, the painting would not
arouse sexual interest in a perverted person and
would not morally corrupt or debase a person
viewing it.
The nude woman was not shown in any peculiar
kind of posture, nor were her surroundings
painted so as to arouse sexual feelings or lust.
The placement of the Ashoka Chakra was also
not on any particular part of the body of the
woman that could be deemed to show disrespect
to the national emblem.
The court pointed out that “...the literature of India,
both religious and secular, is full of sexual allusions,
sexual symbolisms and passages of such frank
eroticism the likes of which are not to be found
elsewhere in world literature”. It went on to state that
“While an artist should have creative freedom, he is
not free to do anything he wants. The line which
needs to be drawn is between art as an expression of
beauty and art as an expression of an ill mind
intoxicated with a vulgar manifestation of counterculture where the latter needs to be kept away from a
civilian society.”
According to the judges, “There are very few people
with a gift to think out of the box and seize
opportunities, and therefore such people’s thoughts
should not be curtailed by the age-old moral
sanctions of a particular section of society having
oblique or collateral motives who express their
dissent at every drop of a hat.”
Samaresh Bose and Another v Amal Mitra and
Another
Samaresh Bose,the first appellent is a famous
Bengali Author of novels and short stories. One of
his work-’Prajapati’was published in Sarodiya
Desh, a journal of Bengali literature with wide
circulation.
Sitangshu Kumar Dasgupta, the second appellant,
was the publisher and the printer of the journal at
the relevant time.
Judges: Amarendra Nath Sen, R S Pathak
On February 2, 1968, Amal Mitra, a young
advocate, made an application in the court of the
Chief Presidency Magistrate at Calcutta and
complained that the novel was found to be
obscene
Both the accused persons were said to have
committed an offence punishable under Section
292 of the Indian Penal Code and under Section
292 read with Section 109 IPC
Both the accused persons were convicted of
charges under Section 292
The magistrate ordered that the offending portions
in the journal be destroyed.
The appellants then filed appeals in the
Calcutta High Court. The appeals were
dismissed and the high court held that the
Chief Presidency Magistrate should also take
appropriate steps to destroy the offending
portions of the journal in respect of the novel
if published in book form
The author and publisher then filed an appeal
in the Supreme Court. The question for
consideration in this appeal was whether the
two appellants could be said to have
committed an offence under Section 292.
In order to decide this, the court looked at
whether or not the novel Prajapati was
The court was faced to decide what ‘constituted’
obscenity and whether the content of the book was
obscene
Whether references to kissing, descriptions of the
body and the figures of female characters in the
book and suggestions of sex acts by themselves
have the effect of depraving and debasing, and
encouraging lasciviousness among, readers of any
age, and must therefore be considered obscene.
The appellants argued that the novel depicts the
feelings, thoughts, actions and life of Sukhen,
the hero of the novel and its main character
Through them,the author has condemned and
criticised various prevalent aspects of life in
various strata of society
If cultured and sophisticated words were used for
the portrayal of the character, the entire
portrayal of Sukhen's character would become
unreal and meaningless.
They argued that the book had a social purpose
to serve and had been written with the primary
object of focusing the attention on the various
ills and maladies ailing society and destroying
the social fabric.
The Supreme Court allowed the appeal and
dismissed the charges of obscenity. It held that
vulgar writing is not necessarily obscene
The court said that although, in some places in the
book there may have been an exhibition of bad
taste, it was up to readers of experience and
maturity to draw the necessary inference. The court
said that it was not sufficient to bring home to
adolescents any suggestion that was depraving or
lascivious
SC held “it cannot be right to insist that the
standard should always be for the writer to see that
the adolescent may not be brought into contact
with sex. If a reference to sex by itself in any novel
is considered to be obscene and not fit to be read
by adolescents, adolescents will not be in a
Avnish Bajaj vs State
Bench: S Muralidhar
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Bazee India Private Ltd. –owner of an online
shopping portal-website http://www.baazee.com
Subsequently , a wholly owned subsidiary of Ebay
Inc. USA, renamed as Ebay India Private Limited
(EIPL)
The website baazee.com provided an online
platform or market where a seller and a buyer
could interact.
To be either a seller or buyer a person had to first
register himself with baazee.com by filling out an
online form giving contact details
For selling, a user had to use his unique ‘bazee id’
to log on and create a ‘listing’, by classifying
the product under a correct ‘category’
and ‘sub category’ for the proposed
product
The seller had to provide a title and a text of
description –brand name, model no. and an image
that depicts the item correctly.
Baazee.com also offered a mode of receiving
payment under 'paisapay'. The user could also opt
for other methods like cheques, demand drafts,
cash on delivery etc.
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BIPL had a Safety and Trust Division which
instituted word and text filters for the site
A Community Watch Programme was also
operational –The users could bring to notice of any
objectionable material being listed.It would be
removed
Once the item was automatically screened by the
filter, the listing was placed on the site with a
unique computer generated item ID
Incase of buying, registered users searched and
selcted the item by clicking ‘Buy Now’.
The method of payment was selected-cheque,
bank transfers,credit cards etc.
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If the buyer opted for a "paisapay" option and
made an online payment, the normal banking
payment gateway got attracted.
Once the payment gateway confirmed the receipt
of the payment then an automated payment
confirmation was sent to the buyer.
Thereafter the buyer received the item, depending
on the product, through email, hand delivery,
courier or post
For this financial arrangement system, the website
had tied up with the –HDFC Bank.
For facilitating this entire transaction BIPL received
a commission which was usually a percentage of
the selling price of the product.
The sequence of events relevant to the present
case unfolded thus.
Ravi Raj, a fourth year student of the Indian
Institute of Technology (IIT) Kharagpur, was
registered as a seller with baazee.com since 21st
July 2004.
In the evening of Saturday 27th November 2004,
Ravi Raj placed on the baazee.com website a listing
offering an MMS video clip for sale at Rs. 125 per
piece.
Adopted fake name-Alice electronics. Gave fake
address.
Included the clip under the category Books and
Magazines and sub-category 'e-books‘ to avoid
detection by the filters
Although baazee.com did have a filter for some of
the words which appear on the website, the listing
nevertheless took place.
The electronic website baazee.com when visited
had the following item description on its site: "Item
27877408 - DPS Girls having fun!!! full video +
Baazee points."
The price was Rs. 125.
. Upon clicking on the item description, the listing
read as under:
“DPS Girls having fun!!! Do you want to see that video clip which has rocked the
whole DELHI and now has become a hot point of discussion in the entire
Nation?YES, Then what are you waiting for!!!!
Just order for this product and it will be delivered to you within few hours.This
video is of a girl of DPS RK PURAM which has been filmed by his boyfriend in
very sexual explicit conditions.
Please note: This video clip of around 2:30 Minutes and will be send to you as an
email attachment.”
The buyer had to pay Rs. 128 per clip which
included a commission of Rs.3 that went to
BIPL.
This was deducted from the amount received
from the buyer and the balance of Rs. 125 per
clip was remitted to the seller by the HDFC bank.
The seller, on receiving confirmation that
payment had been made, would send the video
clip by an email attachment by a zip file with the
description 'dps_rkpuram-sex-scandle.zip'.
Between around 8.30 pm in the evening of
November 27th 2004 when the listing went on
line till around 10 am on 29th November 2004
when the listing was de-activated, eight
transactions of sale of the said video clip took
At around 8.20 pm on Saturday 27th November
2004 information was received on email by a user,
through the community watch programme, that
reported the clip listing on the website to BIPL
This email was assigned to Namrata of BIPL at
around 8.25pm on 27th November 2004 itself. At
around 6:25pm on the next date i.e. 28th
November 2004, which happened to be a Sunday,
it was assigned to Swapna Sawant of the BIPL and
the priority was shifted to the 'high alert' category.
29th November 2004 at 10:10am baazee.com
wrote to Alice Electronics that the listing it had put
up was obscene or pornographic and was closed by
the site
On Monday 29th November at 10:38 am, Swapna
Awant of BIPL wrote to Amit Vohra thanking him
for "spotting this and reporting to us at
Community Watch” and informed him the item had
been closed
The video clip was removed on 29th November
2004 Monday at around 10:38 am.
Meanwhile eight persons with distinct IDs located
in different parts of the country including Calcutta,
Nellore, Pune, Delhi, Banglore and Chennai had
purchased it.
On 9th December 2004 two events took place.
The Crime Branch of Delhi police, on receiving
credible information that the said MMS clip was
sold for Rs. 125 by a website, registered an FIR
On the same day a news item appeared in a Delhi
the newspaper "Today" with the headlines "DPS sex
video at baazee.com".
The police sent notices under Section 91 CrPC to
Sharat Digumarti, the Senior Manager, Trust and
Safety, BIPL and obtained information on the
working of the website.
On 10th December 2004 in response to a query
addressed to baazee.com, Sharat Digumarti
provided "the details of the seller (alice_elec) and
the buyers who purchased this item.“
He stated that they had "already disabled the
ability of the seller and the buyers.
Also the contact details of these users.
On 11th December 2004 the police seized the
printout of e-mails of placement of order to Ravi
Raja and e-mail sent from Ravi Raja’s account
containing an attachment of the clip as a zip file
Sharat Digumarti also furnished details about his
position in the company, the procedure of
transactions on website, and the sum payed to the
seller through the buyers of the clip
He enclosed a note on how the "list of the
suspected and banned words“(120 words) worked
and the process of detection of leakage. He also
gave details of the working of Community Watch.
The Manager, Finance and paisapay of baazee.com
wrote a detailed letter to the police giving
information that a sum of Rs. 3 was exacted for
each piece of clip sold by paisapay
On 17th December 2004, Ravi Raj was arrested at
Kharagpur
Avnish Bajaj was arrested in Mumbai on the same
day
At the conclusion of the investigations, a charge
sheet was filed showing Ravi Raj, Avnish Bajaj and
Sharat Digumarti as Accused Nos. 1,2 and 3
respectively.
Produced before the Metropolitan magistrate on
14th February 2006
The learned magistrate took cognizance of the
offences under Sections 292 and 294 IPC and
Section 67 IT Act.
Avnish Bajaj, the MD of BIPL (EIPL) filed a
petition in the High court quashing this order
of the lower court
ARGUMENTS OF THE PETITIONER
Arguments on behalf of the petitioner were
addressed by Mr. Arun Jaitley and Mr.
Sidharth Luthra, Senior Advocates.
The case against BIPL is not, and cannot
possibly be, in relation to the video clip since
the clip itself was not made available on
baazee. com.
at the highest BIPL was concerned only with
the listing placed on the website which by
itself was not obscene and did not attract the
It was then argued that in any event without
BIPL (EIPL) being made an accused, no
criminal liability attached to the petitioner for
an IPC offence only because he happened to
be the MD of BIPL (EIPL) at the relevant
time.Stated the revenue generated was not
“profit” profit as contemplated by Section 292
IPC
Reasonable care was taken by the website to
immediately remove the video clip once it was
brought to its knowledge that it was
objectionable. Therefore the website acted
diligently and did not commit any illegality.
The charge sheet when read as a whole does not
make out even a prima facie case against the
In relation to Section 67 IT Act, it was argued
- in the absence of the company BIPL (EIPL)
itself being made an accused, no liability
could attach to the petitioner with the aid of
Section 85 IT Act
Although the petitioner as MD was in overall
charge of the policy and planning of the
business, he had no direct role in the placing
of the listing or its filtering and subsequent
removal. This was an automated process and
the work of supervising the placing of listings
on the website had been delegated to specific
individuals like Accused No. 3 Sharat
Digumarti.
State represented by Ms. Mukta GuptaThe offence under Section 292 IPC includes
not only overt acts but illegal omissions. The
failure to have adequate filter in a system
which is entirely automated, entails serious
consequences and a website cannot escape
such legal consequences.
The fact that website earned profits through
the sale is evident from the bank statements
which show Rs.3 earned on each clip
The fact that payment was made to the seller
even as on 27th December 2004 shows that no
That the petitioner was the person in-charge for
especially policy and planning functions
Notwithstanding that the BIPL itself is not
arraigned as an accused, the petitioner can
nevertheless be proceeded against for the role
played by him in the transaction.
For the offence under Section 67 IT Act, it is not
necessary that the company BIPL itself be
accused. in the judgments of the Supreme Court,
what is relevant is whether at the trial a case for
convicting the company for the offences had
been made out
Finally it was submitted that the crime is of an
extremely grave nature and cannot go
unpunished on technicalities. Even if the charge
At this stage the court is only to examine if a prima
facie case is made out and on that test no
interference is called for.
The question that first requires to be addressed is
whether in the facts and circumstances of the case,
as disclosed in the charge sheet, a prima facie case
for offences under Sections 292 and 294 IPC and
Section 67 IT Act is made out. If the answer to this
question is in the affirmative, the further question
that arises is whether a prima facie case has been
made out against the petitioner for those offences.
In the present case, there are two pieces of
material that call for scrutiny. One is the video
clip and the other the listing on the website
baazee.com
It was not argued by learned Counsel for the
petitioner that the video clip in question did
not even prima facie attract the definition of
an obscene object within the meaning of
Section 292 (1) IPC. Prima facie it appears that
the listing itself answered the definition of
obscenity
The listing contained explicit words that left a
The words in very sexual explicit conditions" are
a prominent feature of the listing which invited a
potential buyer to purchase the obscene object .
“This Court is not able to agree with (petitioners)
their submissions that the listing itself was not
even prima facie an obscene material or text.”
It was argued that even then, there was no overt
act done by BIPL in relation to the video clip or
listing
The offence under Section 292 (2) (a) IPC gets
attracted when the prosecution is able to prove
that a person"publicly exhibited or "has in his
possession" the obscene object. Even if Ravi Raj,
and not BIPL, may have inserted the listing, the
website of BIPL certainly "possessed" it. The
In relation to the video clip, the wording of
Section 292(2) (d) IPC is wide enough to include
an attempt at making known "by any means
whatsoever" that "such obscene object can be
procured."
The placing of an advertisement on the website
informing the viewer that an obscene material or
object is available for sale, one click away, is
enough to attract the offence under Section
292(2)(d).
The advertisement might itself have been
inserted by the seller but the website facilitated
the sale by carrying the listing which informed
the potential buyer that such a video clip that is
pornographic can be procured for a price.
In response to the petitioners argument that-that
the prosecution must prove that the person who
sells or keeps for sale any obscene object knows
that it is obscene, before he can be adjudged
guilty.
The court rejecting the argument said that-. The
prosecution need not prove something which the
law does not burden it with.
If this was so, it would place an almost
impenetrable defence in hands of the offenders
The difficulty of obtaining legal evidence of the
offender's knowledge of the obscenity of the
book etc., has made the liability for the act
strict.The law prevents absence of knowledge as
an excuse for the offender/accused
In Ranjit D. Udeshi it was held that the prosecution
did not have to prove that the accused had
knowledge that the contents of the books being
offered for sale were in fact obscene since the
deeming provision in Section 292 (1) IPC stood
attracted. However the prosecution was required to
prove that the accused did intend to sell such
obscene object.
The text of the listing was doubtless ‘obscene’
By not having appropriate filters that could have
detected the words in the listing or the
pornographic content of what was being offered
for sale, the website ran a risk of having imputed
to it the knowledge that such an object was in fact
obscene. Even if the filters failed, the presumption
that the owners of the website were aware of the
Offences under other sectionsUNDER SEC 67 IT ACTThe plain words of the above provision
unambiguously state that the offence stands
attracted when anyone "causes to be published in
the electronic form" any material that is
"lascivious or appeals to the prurient interest" …
Under this section it was established that the
website did prima facie cause publication of the
obscene material.
As far as the offence under Section 294 is
concerned, the learned Counsel for the
prosecution did not dispute the contention of the
learned Counsel for the petitioner that the said
offence was not attracted in the facts of the case.
The question now remains-Is a prima facie case
made out for the offences under Sections 292
IPC and 67 IT Act against the petitioner?
It has been argued by the learned Senior counsel
for the petitioner that nowhere in the charge
sheet is there any allegation that the petitioner
himself facilitated the publishing of the obscene
material or is in any way directly involved in the
transaction
It has been held that a prima facie case is indeed
made out against BIPL. However, for some reason
BIPL has not been arraigned as an accused
, as far as the offence under Section 292 IPC is
concerned, the law as it presently stands does
not envisage an automatic liability attaching to a
Therefore even if at a subsequent stage of the
proceedings BIPL is summoned to face trial for
the IPC offence, that would not, in the absence of
a specific case being made out against the
petitioner in his individual capacity, result in his
being an accused.
THE VERDICT MADE SOME OF THE FOLLOWING
CONCLUSIONSA prima facie case for the offence under Section
292 (2) (a) and 292 (2) (d) IPC is made out
against BIPL now named as EIPL both in respect
of the listing and the video clip respectively.
(c) However, as far as the petitioner Avnish Bajaj is
concerned, since the IPC does not recognise the
concept of an automatic criminal liability attaching
to the director where the company is an accused,
not even a prima facie case for the offence under
Section 292 IPC is made out even when the charge
sheet is read as a whole; it only seeks to implicate
him in his designation as MD of BIPL and not in his
individual capacity.
(d) Therefore, the petitioner will stand discharged
as far as the offences under Sections 292 and 294
IPC are concerned. This will however not affect the
case against the other accused.
A prima facie case for the offence under Section 67
read with Section 85 IT Act is made out against the
petitioner since the law as explained by the
A prima facie case for the offence under Section
67 read with Section 85 IT Act is made out
against the petitioner since the law as explained
by the decisions of the Supreme Court recognises
the deemed criminal liability of the directors
even where the company is not arraigned as an
accused and particularly since it is possible that
BIPL (EIPL) may be hereafter summoned to face
trial.
Bajaj applied a petition in the Supreme court
quashing of the criminal proceedings initiated
against them under Sections 67 and 85 of the
Information Technology Act 2000.
The SC has currently issued a stay on the case
hearing.
