Shahnaz Anklesaria
Expressions of obscenity in Indian media have hit women hard, for obscenity, as I understand it, includes the depiction of gender violence, the abuse of one sex by another, the treating of a person's body as cheap merchandise or as a target for sexual abuse. Almost always, it is women who provide the subject material for such expression.
Besides being so packaged for male consumption, women are also the worst victims of the effect such obscene material has on the human mind. They are portrayed in such material, not as persons but as objects which provoke specific responses from the viewer or reader. Besides undermining the woman viewer or reader's self-esteem, the debasing of women into sex objects results in obscenity spilling over from the screen or book into reality, and in the perpetration of crimes like bride burning, sexual harassment, and rape.
Yet nowhere does Indian legislation acknowledge the impact of obscenity on women. Nor is gender violence clearly incorporated into the legal definitions of obscenity. Our laws and their subsequent legal interpretations are concerned with preserving public morality which, it is feared, will be affected by obscenity. (That feminists begin with the assumption that public morality is a codification of male values which sustain a culture of male dominance, is a dimension we will not consider for the moment.)
Existing Laws
Although our laws reveal a concern about the effects of obscene material on the minds of the young, none of them contains any specific indication that women are the material for obscene expressions and, ultimately, the target of the violence that is the result of the impact of obscenity on the public mind. Any discussion of whether existing laws are adequate for tackling obscene expressions in Indian media must begin with the above focus. Let us now see how existing legislation views obscenity.
Sections 292-4 of the Indian Penal Code define obscenity. Section 292 states '... a book, pamphlet, paper, writing, drawing, painting, representation figure or any object shall be deemed to be obscene if it is lascivious or appeals to the prurient interest or if its effect... if taken as a whole, is 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'.
The law, thus, gives obscene material three characteristics: lasciviousness, appealing to prurient interest, and tending to deprave and corrupt persons likely to read, see or hear such material. The law also clearly states that even if a part of a book or film, etc., has material which can be so defined as obscene, action can be taken against its author. The definitions, then, as they stand in law are broad enough to appeal to the conservative (male) puritan who sees sex as 'obscene' and the liberal (male) who does not.
Constitutionally, Article 19(1) of the Indian Constitution enshrines free speech and expression as a fundamental right of all Indian citizens. Yet it is not an unfettered right. Article 19(2) imposes reasonable restrictions on this right in the interest of, among other factors, public morality and decency. The right to free speech and expression, cannot then permit obscene expressions. But here too, the underlying emphasis is on the protection of public morality and decency—not on women.
I emphasise this absence of the gender issue in our legislation because I suspect that what women find obscene may not be seen as such by the judiciary. Since the law does not clearly define obscenity as it relates to and affects women, we have to hope and trust that the judiciary is aware of gender violence, and will translate this awareness into its judgements.
A quick overview of case law on obscenity, however, shows that the judiciary, past and present, has subscribed to the 'sex is dirty' theory. Its major and overriding concern has been with public morality; concern for the effect of obscene material on the status of women, and an understanding of the linkages to be found between crimes against women and the impact of obscene materials on the perpetrators of such crimes have found no expression in Indian case law.
Case Laws and Interpretation in Practice
The landmark judgement on obscenity which still provides the final word in court on the subject was passed in 1956 by the Indian Supreme Court. The issue concerned the publication of the book, Lady Chatterley's Lover by D.H. Lawrence within India (Ranjit D. Udeshi vs. State of Maharashtra AIR 1965 SC 881: 1965). The judgement both distinguishes between obscenity and pornography and describes when the depiction of sex becomes obscene and why. Pornography 'denotes writings and pictures intended to arouse sexual desire'. Obscenity may include writings not intended to do so. Both offend against public decency and morals but pornography is obscenity in a more aggravated form. The definition of hard pornography is 'libidinous writings of high erotic effect, unredeemed by anything literary or artistic and intended to arouse sexual feeling'. The judgement further states that where obscenity and art are 'mixed' art must either be so preponderant as to 'throw the obscene material into a shadow', or the obscene so trivial and insignificant that it can have no effect and may be overlooked.
The test of obscenity remains the effect of the publication (or material) in question on the minds of the young. Here the learned court has relied on an 1868 English judgement which states: 'The test of obscenity is this: whether the... tendency of the matter charged as obscene is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall…' If the publication suggests thoughts of a most 'impure and libidinous' character, then it must be called obscene and banned (R.vs. Hicklin 1863(3) QB 360: 37LJMC 89).
The Courts are restricting the term obscene to sexual immorality only. The true test is not to find out what depraves the morality in any way but what leads to depraving only in one way — by exciting sensual desires and lascivious thoughts. The effect produced on an ordinary member of society has to be ascertained. ... (Srikant Halder vs State AIR 1952 Cal 214).
So far, no case has been filed against any obscene material on the grounds that it is anti-woman or that it damages one sex in any way.
Why, in the face of such legal interpretations, do I not recommend more stringency within sections of the Indian Penal Code dealing with obscenity? The case of Indian cinema may provide some answers.
In 1983, the Union Ministry of Information and Broadcasting in its amended guidelines to the Board of Censors, clearly stated that: 'Visuals or words depicting women in ignoble servility to man or glorifying such servility as a praiseworthy quality in women are not to be presented.' Such a clear guideline ought to include within its scope all the obscenities of those long-drawn out sequences in Indian films which are preludes to rape, the numerous brothel scenes and even those innumerable instances of defiant daughters and erring wives being thrown out of their homes for daring to defy male authority. In fact, every film in India would then come within the ambit of the Board of Censors.
So why do these guidelines rarely work? Not only because the censors, being human, are part of the dominant male Indian ethos which accepts that obeying the dictates of tyrannical fathers or husbands is a woman's bounden duty and not 'servility'. They are ineffective because the government has hamstrung the censors with so many detailed instructions about what should not be permitted on the screen and because it interferes directly in the entire workings of film censorship. Few censors consequently dare to assert their own assessment of a film for fear of provoking reprisal. It is a typical instance of government interference and over-caution destroying independent analysis. It is the Central Government which under Section 3 of the 1952 Indian Cinematographic Act constituted a 10 member Central Board of Censors. Officials of these Boards are assisted by advisory panels — and Section 5 of the above Act permits the Central Government to appoint members to these Boards. Besides controlling the formation of the Board of Censors, the government also has the final say in film censorship: under Section 6(1) of the Act, appeals against the decisions of the Board lie with the Central Government. At any stage, it can call for the record of proceedings which may already be passed by the Board. It can rescind the Board's decision and pass its own judgement.
A Working Group appointed by the Union Government in 1980 to formulate a National Film Policy, criticised this form of control over the Board's workings. It said that such government control 'opens avenues for political pressure to be brought on the Censor Board and negates the very idea of having an independent body of eminent people to deal with sensitive subjects like censorship'. In addition to such direct control a long list of guidelines has, as the group describes it, 'hamstrung', the working of the Board. For example, films cannot be certified for exhibition if they, or any part of them, are against the interests of the sovereignty and integrity of the country; the security of the state; public order, decency or morality; or involve defamation or contempt of court or are likely to incite commission to an offence. In addition to this are a long list of more 'specific' guidelines.
A strict interpretation of the application of the General Principles will result in almost all films being refused a certificate — this was the considered view of the only official report on the effects of film censorship, made at the instance of the government in 1969. Popularly known as the Khosla Committee Report, the report of the Enquiry Committee on Film Censorship came down heavily against the Central Government for controlling the Board of Censors in this manner. Laws dealing with film censorship should merely state that films must not be repugnant to the Constitutional provisions of the 'reasonable restrictions' in Article 19(2) of the Constitution.
On the issue of obscenity, the Khosla Committee dealt specifically with nudity and kissing — both of which are banned in Indian films. Holding that if, in the telling of a story, it is logical or relevant or necessary to depict a passionate kiss or a nude female figure, there should be no question of excluding a shot, provided the theme is handled with delicacy and feeling aiming at aesthetic expression and avoiding all suggestions of unnecessary prurience or lasciviousness.
The 1980 Working Group later agreed with this. Both Committees felt that appointments to the Board of Censors should not be made on considerations of political patronage as they had hitherto been. If certain criteria of professional qualifications are laid down and adhered to in the creation of an independent body, then such people should be given complete responsibility to handle censorship, without what the Khosla Committee called 'the handicaps of unreasonable inhibitions or an obsession with every petrified moral value'.
However, neither the Khosla Committee's nor the Working Group's equally excellent recommendations provided any reference on the impact of existing Indian cinema on the status or image of women in India. Both groups have taken a liberal view of what is 'moral' or 'immoral' and have refused to succumb to prudery. Yet what is obscene is still being defined from a male, albeit liberal perspective.
What is to be Done?
It is time for women's groups to examine and expose existing inadequacies in the obscenity laws as they relate to media. However, it is important that this examination be made in the context of freeing media from the stranglehold that chauvinistic government control has imposed on it. Discussions on obscenity laws almost always veer towards 'plugging existing loopholes' in the laws and stricter censorship, perhaps of a different kind. The example provided by the inept workings of the Board of Film Censors must not be forgotten.
What we must guard against is being seen as supporters of the 'sex is dirty' theory, a theory which has always resulted in women's bodies being seen as evil, as 'tempting' men who then 'succumb and fall', and which has inhibited women from expressing their sexuality in their own terms. In a conservative society like India, women concerned with social change must make their stand on the sex issue clear, when discussing obscenity.
Creating watchdog bodies to monitor the quality and content of existing media and then protesting against expressions of obscenity could also be considered by women's organisations. The Committee on the Portrayal of Women in the Media has made a good beginning and one of their demonstrations outside a cinema hall in Delhi against the showing of anti-women films drew wide attention. Sustained action such as this would certainly focus attention on the issue. Existing bodies like the Press Council of India can be approached with complaints of offensive publications. Though it does not have police powers, its powers of censure are considerable.
The potential of existing media to correct itself has not even begun to be explored. The Union Ministry of Social Welfare has agreed to consider funding films made on the issues facing Indian women today. Much more effort needs to be directed towards creating challenging films which can then be screened both through the expanding television network and other outlets.
Finally, women need to examine the Indian Constitution itself to see if, in its present form, it protects them. Although women played a heroic role in the struggle for independence, and accomplished women lawyers existed at that time, they had no direct part to play in the drawing up of the Constitution. The time has come to see if Article 19(2) needs further examination and whether some of the existing 'reasonable restrictions' can be re-framed to include the gender issue.