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The Indian Penal Code, 1860
Article 19 in The Constitution Of India 1949
Section 292 in The Indian Penal Code, 1860
Article 10 in The Constitution Of India 1949
Article 19(2) in The Constitution Of India 1949

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Central India Law Quarterly
Freedom Of Speech And Pornography
FREEDOM OF SPEECH AND PORNOGRAPHY Ankita Lal* This article examines the issues that emerge when society that values free expression is also concerned about pornography. In any country where freedom of expression is regarded as important, whether or not it is Constitutionally guaranteed, or not it is recognised that some balance must be struck between the right to free expression and the right of government to prohibit or restrict the publication and distribution of material deemed harmful to individual citizens or to destroy', In the context of obscenity, immorality and indecency, therefore, the government of a country has been consistently putting "reasonable" restrictions through enactment of various legislations, even though it encroaches upon the fundamental right of freedom of speech and expression guaranteed to the citizens of the country. 2. Our Constitution also, while prescribing certain Fundamental Rights to be enjoyed by every citizen of the country, places some restrictions on these rights in the interest of public order, decency and morality'. 'Pornography' is one such issue which needs due consideration in the contemporary society and its regulation attracts a . huge demand from various groups of people (like feminists, etc.) • II year student of B.A.,L.L.B.(Hon's), National Law School of India University, Bangalore. 1. Information Highway Advisory Council Report, Canada, May, /996. 2. Article 19(2), Constitution of India: Nothingin sub-clause (l) shall effect the operation of any existing law, or prevent the state. from making any existing law, in so far as such law imposes reasonable-restriction on the exercise of the right conferred by the said sub-clause in the interests of publicorder, decency or moarlity . 68 CENTRAL INDIA LAW QUARTERLY 2003 its First Amendment Act. The relevant part of the Amendment it given below: "Congress shall make no law.....abridging the freedom of speech, or of the press". In fact, the fundamentai right to the freedom of speech and expression enshrined in our Constitution has been derived from this provision of the Amendment I of U.S. Constitution. But, unlike Indian Constitution, U.S. Constituti?n does not provide any exceptions to this freedom of speech and expression, though it has been left to the Judiciary to decide if any restrictions necessarily and required to be imposed in certain cases. C. Other Provisions Apart from the Constitutional provision of some countries, there are few Charters and Conventions which have been established for the protection offreedom of speech of the individuals, namely': I. The Canadian Charter of Rights and Freedoms protects the freedom of speech under section2: "Everyone has the following fundamental freedoms: ..... (a) freedom of thought, belief, opinion and expression, including freedom ofthe press and other media of comrnunication'". 2. At an International level, Article 19 of the International Covenant on Civil and Political Rights (ICCPRj protects freedom of speech in the following terms: 7. See generally. Tania Voon, "Online Pornography in Australia: lessons from the First Amendment", UNSW Law Journal. Vo1.24, Issue 1,200 L pp.145,146 8. This section of the Canadian Charter has been made subject to certain restriction prescribed by section I: "The Canadian Charter of Right andfreedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society; Vol. XVI FREEDOM OF SPEECH AND PORNOGRAPHY "(2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek. receive and impart information and ideas of all kinds, regardless or frontiers, either orally, in writing or in print, in the form of fact, or through any other media of his choice?". 3. . Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms protects freedom of expression in a manner broadly similar to that of the ICCPR}o. After reviewing various provisions which protect individuals' right to free speech and expression in society, we find that these provisions do not provide complete freedom to an individual. Certain restriction and limitations to the enjoyment of one's freedom has always been imposed. These restriction have, however, been imposed in the interest of public welfare of the society. For example, restriction in order to maintain public decency and morality in the society, does not allow the publication and propaganda of any obscene material or display of any pornographic movie, etc. This, though, is in the interest of society only, but it hampers individual's right of expression. This point will be discussed, in detail, later. In fact it is difficult to agree with those who try to defend pornography and other obscene materials and behaviour in the light of their freedom to speak and express whatever they wish under the roof of Constitutional provisions. Pornography and access to obscene materials 9. The section 19(2) oflCCPR comes with certain restrictions under section 19 (3): "The exercise of the rights provided for in paragraph 2 of this article [may] be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of other: (b) For the protection of national security or of public order, or of health or morals." 10. However, the Convention specifically states that this is not to prevent states from requiring the licensing of broadcasting, television or cinema enterprises. 72 CENTRAL INDIA LAW QVAItTERLY 2003 Therefore, in the judgment given by Lord Brennan in Roth, the three errors of Hicklin were corrected. He said that a book can be judged obscene only if "the dominant theme of the material taken as a whole" is so judged; only if it is the likely effects of the materials on "the average person" (and not the especially susceptible person) that is taken into account and only if "contemporary community standards are applied to the work".18 This came to be popularly known as Roth's three-pronged test. The test was considered to be more effective than earlier Hicklin's test". B. What Liberals say ... The problem of pornography has ben a central issue within liberals who rely on ideologies of J.S.MiII and Dworkin. John Stuart Mill, in his essay On Liberty. held it to be "inoperative that human beings should be free to form opinions and to express their opinions without reserve". He argued that freedom of expression was justified in the terms of "the permanent interests of man,,20. However, what he meant by these "interests" has still been an issue of debate. In fact, the basic theme of Mill's ideology was that individuals are justified for their own actions and no one should be allowed to interfere in others' activities unless some "harm" is caused to them by such activities of others. Therefore, as Mill said that "no matter how degrading and depraved an activity is, if no one else is affected by it, the fact that others may think that forgoing this activity would make an individual a happier or better person is not sufficient to justify the imposition of sanctions?". J8. Supra, note 14, p. J 73 19. However, Roth's test. was further modified in two later U.S. Supreme Court's decisions, Vi? Miller v. California. (1973) 413 U.S. 15. and. Paris Adult Theatre I v. Slaton. (1973) 415 U.S. 49. see, Ibid. pp. 184-187. 20. Gordon Hawkins, Pornography in a Fee society. Cambridge University Press, Cambridge. New York. 1989. p.IIO 21. Susan M. Easton, Theproblem ofpornography. Routledge. London. 1994, p.2 Vol. XVI FREEDOM OF SPEECH AND PORNOGRAPHY 73 • Mill emphasises the idea of "self-expression". throughout in his writing. He advocates the notion of "personal sovereignty" hut dissents to the idea of "paternalism" and "legal moralism" which allows an authority to interfere with the liberty of individuals. Based on these ideas of Mill, liberals try to argue 10 favour of pornography. They say that it is individual's choice to consume or not to consume pornography. Therefore, no authority should interfere in individual's private sphere and impose restrictions on individual's freedom. The liberals argue for-pornography by applying "consent theory" and saying that sex industryihas relied upon contractual agreements and on the volenti argument that, if individuals consent to an activity which others find offensive, the state should not intervene, provided that consent is freely given." These arguments were further supported by a Report of the Committee on Obscenity and Film Censorship" in 1979. The report, advocating Mill's arguments, maintains that the prohibition of the sale of pornography would be justified only if it is shown beyond reasonable doubt that pornography is harmful. Further, the report says that pornography may be restricted in order to prevent offence to reasonable people or to protect young people from exposure to it. These restriction do not prevent willing consumers of pornography from having access to it. The report also says that it would be a violation of the principles of free expression to restrict publication simply on the ground that they advocated opinions which are offensive to many." 22. Ibid. p.7 23. The Wiliams Report: Report of the Committee on Obscenity and Film Censorship. Cunnd 7772. HMSO; London, 1979. An abridged version of the report was published as-Bernard Williams (ed.), Obscenity and Censorship. Cambridge University Press. Cambridge, 1981. 24. For a critical discussion of the report, see generally, Ronald Dworkin. "Is there a right to Pornography?"; Oxford Journal of Legal Studies. VoU, 1981, pp.I77-212. 76 CENTRAL INDIA LAW QUARTERLY 2003 9. Moreover, the pro-sex feminists argue that laws against pornography or obscenity hinder women's sexual freedom. Further, pornography is free speech- applied to the sexual realm. Therefore, it should have the same legal protection as any other right of the individuals. They also say that law should protect choice and the principle 'a woman's body, a woman's right applies to every peaceful activity a woman chooses to engage in. The law should come into play when a , woman initiates force or has force initiated against her". 10. On the other hand, the "anti-porn feminists" consider pornography as an expression of male Culture through which women are commodified and exploited. They argue that exhibition of pornography degrades a women, where women are depicted as "sex objects". They say that pornography subordinates women in this so-called 'patriarchal' nature of the society and their depiction justifies their alleged enjoyment f that subordination". 11. Anti-pornography feminists allege that feminists who believe women make their own choices about pornography are spreading 'a felicitous lie'. Andrea Dworkin accuses them of running a 'sex protection racket' and maintains that no one who defends pornography can be a feminist". 12. Gender feminism looks at history and sees an uninterrupted oppression of women by men" In Dworkin's view, pornography socialises men to rape-it is the cause of inequality between men and women38• Brownmiller writes that 'rape is nothing more or less than a conscious process of intimidation by which all men keep all women in a state of . fear' 39. Mac Kinnon also agrees and considers pornography-in and of itself-to be an act of sexual violence'". 34. ld. 35. Supra, note 21, p.81. Feminists, therefore, view pornography as an issue of sexual discrimination. 36. Supra, note 31. 37. ld 38. Supra, note 7, p.152. 39 Supra, note 31. 40 /d. Vol. XVI FREEDOM OF SPEi:CH AND PORNOGRAPHY 77 13. However, in response to this pro-sex feminists say that studies and experts disagree that a cause-and-effect relationship can be drawn between men viewing pornography and men attacking women, especially in the form of rape. They further contend that if a woman declares her enjoyment in flaunting her body, anti-porn feminists claim she is not merely a unique human being who reacts from a different background and personality but also that she is psychologically imbalanced and therefore not responsible for her actions. But in fact women consent to do so under no coercion and thus no one can prevent them from doing what they think they should d0 41• 14. But, the anti-porn feminists maintain the argument that pornography is one of the root causes of major sexual abuses and sex crimes taking place in the society. Pornography corrupts one's moral senses and instigates them to participate in various sexual offences. Moreover, men commercialize women's sexuality and market it back to her in the form of pornography. This way, they try to degrade women thus justifying _their subordinate status in the society and therefore capable of being subject to any sexual urge or desire of men, either by coercion or by consent. Anti-porn feminists, hence, show their concern for bringing out strict anti-pornography laws", They prefer a law which should protect virtue and enforce proper behaviour. According to them, such law should come into play whenever there has been a breach of public morality, or a beach of 'women's class interests'. 41. Id. 42. Catherine MacKinnon and Andrea Dworkin drafted and lobbied the first civil-rights model anti-pornography statutes. Enacted in two American cities, Indianapolis and Minneapolis, the ordinances proposes to regulate the distribution and exhibition of pornographic materials, but the Supreme Court of America held them unconstitutional on the first amendment grounds, see, Mariane Wesson, "Sex, Lies and Videiotape: The Pornographer as Censor", 66 Washington Law Rev 913(919), 1991. 80 CENTRAL INDIA LAW QUARTERLY 2003 morals. It is the society which corrupts them and forces them to do all that which they would otherwise never like to do. Pro-sex feminists often talk about women's freedom to live in whatever way they wish to, even if they want to be a "piece of exhibition", a pr-ostitute, or anything else. But they often ignore the reasons for which women ~ant to live in such a lifestyle, if ever. Pornography is often the result of "male-power" exerted on females. It sexualises dominance and submission. Studies have shown that pornography dehumanizes females when men try to intimidate women and use them for their sexual gratification: 'many of the behaviours modelled in pornography do subordinate and violate women, sometimes viciouslyr'", 20. Pro-sex feminists, in fact, give different reasons for women getting involved in pornographic stuff. They say that women involve in porn activities to gain basic sexual information. It also provides them a 'safe' place to experience sexual alternatives and healthy sexual curiosity, etc. Pro-sex feminists advocate their reasoning by saying that females 'fantasize' these acts. 21. It is agreed that women's desires and freedom of expression should not be curbed. But, it is hereby contended that women's sexuality should not be publicised or 'sold'. Women's liberation and their right to express themselves freely should be upheld, but at the same time it should be checked that this right is not used to "instigate" them to do immoral acts and thus make them a 'piece of mockery' in the society. Women are, of course, equal to men in every respect. This right of equality should be emphasised and not that women being made an object of subjugation by enforcing their right to free speech and expression to participate in pornography, which liberals often do. Again, minority rights like rights of prostitutes, gaysllesbians may be upheld, but it would not be acceptable if these people are publicised or their activities being made available for access to everyone, for their personal enjoyment or for corrupting them and instigating them to participate in similar activities. "t« Vol. XVI FREEDOM OF SPEECH AND PORNOGRAPHY 81 22. Pornography derogates womanhood, it corrupts and depraves human beings of their moral senses, it is one of the major causes of sexual offences (Like rape, trafficking of women, sexual harassment, etc.), it is harmful for public morality and decency, etc.- For these reasons it can be justifiably said that pornography should be suppressed but at the same time upholding women's equality and liberty in society, thus in agreement with 'liberal feminists' ideology. HOW TO REGULATE PORNOGRAPHY? 23. Now, the question arises as to how to regulate or ban pornography without infringing upon constitutionally guaranteed rights of individuals (i.e. right to freedom of speech and pornography). Various laws prevalent in India and other nations have been discussed below- A. Indian Position. 1. Constitutional Provision: Article 19(1)(a). Clause (2) of Art. 19 of the Constitution ofIndia imposes certain restrictions on the right enjoyed under sub-clause (a) of clause (I) of the same article. The provision reads as follows: (2) Nothing in sub-clause (a) of clause (l) shall affect the operation of any existing law, or prevent the state from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the sub-clause in the interests of the sovereignty and integrity of India, the security of the state, friendly relations with foreign states, public order, decency and morality, or in relation to contempt of court, defamation. or incitement to an offence. Therefore, as the clause clearly says, a restriction can be imposed on the individuals right to freedom of speech in the interest of public morality and decency. Pornography can also be covered under this provision of the Constitution. 84 CENTRAL INDIA LAW QUARTERLY 2003 as in the case of film 'Bandit Queen', then they may not take it as a message against rape and its perpetrators. They may, rather, enjoy the scenes shown therein and this may arouse their sexual desire to commit similar acts. Then, in that case the effect desired by the movies (as supported by the courts too!) will be reversed! therefore, pornography shown in any form and meant for any purpose is not desirable. The consequences will be same; probably the ratio of those 'affected' may differ. The desired effect, that is, to create an atmosphere against violence, rape, etc. shown in movies may be shown without using obscene scenes, too. The scenes may give an indirect effect as to 'what would be happening' instead showing them expressly in the form of expletive scenes like those of rape, violence, nude woman, etc. This will be "enough" to create the feeling of hatred against the perpetrators of the crime or the crime itself, and sympathy for the victim. 2. Penal Provisions-s.292, IPC. Section 292 of the Indian Penal Code envisages definition of obscenity, which runs as follows: 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 its effect, or (where it comprises two or more distinct items) the effect of any 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 and see or hear the matter contained or embodied in it. This definition literally corresponds to the test of obscenity as laid down in R v. Hicklin5'J. The section makes obscenity an offence and provides for the punishment of two years or more (in case of second subsequent conviction - the punishment will be five years) and a fine. for the commission of such an offence'", 59. Supra, note 6. 60. Section 292. CI.(2). fPC. Vol. XVI FREEDOM OF SPEECH AND PORNOGRAPHY Many cases have evolved in this respect, particularly questioning the validity of the section in view of Art.19( I)(a), Constitution of India. But, in almost all the cases its validity has been upheld. For example. in Ranjit D. Udeshi v. State of Maharashtrd"; it was said that the cherished rights of freedom of speech or expression on which our democracy rests is meant for the expression of free opinions to change political or social conditions or for the advancement of knowledge. But these rights are subject to certain restrictions necessary in the interest of general public and one such is the interest of public decency and morality as embodied in Art.19( I )(2). Constitution ofIndia. Section 292, in fact, does not go beyond 'obscenity' which falls directly within the words "public decency and morality" of Art. 19(2t2• The same opinion was expressed by the courts in the later case of Shankar & Co. v. Madras 63 where section I of Press (Objectionable Matter) Act, 1951 was held not to violate Art.19( I )(a). In another case of Samaresh Bose v. Amal Mitra64,certain guidelines were framed by the Supreme Court, for the judges to keep in mind while judging on question of obscenity. B. American Position. As has already been discussed, the US First amendment Act provides for the protection of freedom of speech of the individuals. However, its being commonly observed that despite the absolutism of its first few words", it has been held that certain laws may be made and 61. Supra, note 15 62. Ibid.. p.885. 63. Supra. note 15. 64. (1985) 4 SCC 289. 65. "Congress shall make no law... ". U.S. Const. Amend. I. AI - - - - - - - - - - - -- - --- -- - - - -- -- - -- - ------ ----- -- --- - --- - - - - -- - - - 88 CENTRAL INDIA LAW QUARTERLY 2003 convicted for the Common Law offence of conspiring with others to corrupt public morals by means of publishing obscene book (under Obscne Publications Act, 1959). He was also convicted for living on the earnings of prostitutes, contrary to sec. 30( J) of Sexual Offences Act, 1956. His conviction was affirmed by the House of Lords. Lord Simond pointed out that it might be desirable to use the conspiracy offence if it was difficult to establish obscenity within the meaning of Obscene Publ ications Act. Somewhat similar facts were presented in Knuller's case also, where magazine contained advertisements for offering to indulge in homosexual activities. Two charges were made - one for conspiring with advertisers to induce readers for participating in such activities and thus corrupting their morals; second was for conspiring with publishers to publish such advertisements in magazine and publicising it, therefore outraging public decency. Conviction under former charge was upheld but not under later. Lord Reid said that there is no such offence as conspiracy to outraging public decency. CONCLUSION 24. Pornography is a matter of deep concern for any democracy . where people enjoy a wide realm of freedom. Freedom of speech, though very essential for a democracy, its unrestricted enjoyment may sometimes prove harmful for the society. Therefore, certain necessary and reasonable restrictions have been imposed on this freedom, by the Constitution and many other laws of the country. 25. Often, forgetting about these exceptions to the right to free speech, liberals argue in favour of pornography for allowing its consumption, since individuals are free in a society to do anything they want under the guardianship of Fundamental Rights granted to them by the indestructible authority of the Constitution. Though, this is true, but a Constitution, certainly, will not allow any such activity which may be Vol. XVI FREEDOM OF SPEECH AND PORNOGRAPHY 89 offensive to the majority of the community and is not in the interest of public morality and decency. Moreover, activities like pornography are not only contrary to public morality, but also stand as a degrading factor for women. Women are depicted as "sex objects" ready for being sexually exploited by the men. They are shown participating in various sexual activities and enjoying them too, which arouses sexual desire among those who watch it and urges them to participate in similar practices. This is a statistically proven fact. This often leads to various sexual crimes like rape, prostitution, etc. Therefore, it is very important to suppress the display and commercialisation of pornography. 26. Further, those who try to uphold the use and propagation of pornography should be suppressed since they are the ones who ignore to foresee the harmful consequences of pornography on society as a whole and women specifically. These people use the weapon of right to free speech and expression to support their unfavourable arguments in favour of pornography. Though this right is important for an individual as any other Fundamental Right but there are restrictions also imposed on its exercise which needs to be observed, in the interest of general public, One such restriction is in the interest of public decency and morality. Pornography is definitely against the moral values of the society. Therefore, its prohibition isjustified under Constitution. 27. Also, women's liberalisation is though favoured in the present society, this should not make women participate in such activities which degrades their womanhood. This may also lead to women's subordination by male gender who will view women as "objects" of exploitation, of fulfil their wicked desires! 28. Thus, to conclude. as pornography degrades womanhood, subordinates them and depraves society of its moral values. it should not be allowed. Constitution specifically provides restriction on any such activity and freedom of speech can be no defence for it. ******