Book Review| Bindal’s latest book offers insight into the contours of obscenity in law and practice, writes Vishavjeet Chaudhary

Latest addition to the landscape of jurisprudence around obscenity laws in India is Saurabh Bindal’s convincing read titled Obscenity: Prevention, Law and Practice. Going against the old adage — to never judge a book by its cover seems like an irresistible comment here. A little under 200 pages, the book undoubtedly packs a punch! It is precise, concise, and certainly convincing.

The author goes straight to the heart of the law and practice. It is in fact quite impressive how he has teased out an incredibly complex area of law that goes to the heart of morality, public opinion, colonial thought, legislative intent, and judicial invention. To comment on all of the above, and more, is a mammoth task but it is almost seamlessly done. The canvass within which the author delivers is clearly defined. It does not promise any grand critique or philosophical exposition of the topic. The text sticks to the legal provisions.

As is noted in the foreword, the test of what is obscene is certainly a complex and loaded question. The law is contained in a plethora of related but sometimes distinct pieces including the Penal Code, 1860, Dramatic Performances Act, 1876, Post Office Act, 1898, the Cinematograph Act, 1952, the Customs Act, 1962, Criminal Procedure Code, 1973, Indecent Representation of Women (Prohibition) Act, 1986, Cable Television Networks (Regulation) Act, 1995, Information Technology Act, 2000, the Protection of Children from Sexual Offences Act, 2012 and intellectual property. This is, of course in tandem with the Hicklin test to the “community standard” test presents more problems than solutions. Thus, to logically segregate the law into bite-size pieces becomes a challenge, nonetheless it is effectively managed.

The flow of the book is very logical and in fact useful — each chapter looks at a particular piece of law/legislation to analyse the contours of obscenity in law and practice. The author’s decision to start off with comparative law (between the tests of obscenity in the United Kingdom, the United States, Canada and India) offers an excellent lens to look at the Indian legal provisions. As the author notes, “… it was the Hicklin test¹ of the UK which laid down the road to test obscenity around the world.” Thus, a comparative and historical appreciation is not only desirable but also somewhat necessary. The author, with commendable simplicity and ease summarises centuries of jurisprudence very briefly and succinctly. This will certainly provide for an enduring beginner’s introduction to the area of law for practitioners, academics, interested parties like policy-makers, and indeed general public who are interested in this subject-matter.

The first chapter traces a brief history of obscenity. The Hicklin test from the UK, the Roth case² from the US and Brodie case³ are discussed briefly to bring forth the legal provision. This serves as a useful background and foundation to assess the subsequent developments and interpretations of the law. With this settled, we then move on to the discussion of the Udeshi case⁴ in the Indian context. This has distilled the reasoning from Lady Chatterley’s Lovers’ case and brought it in line with the Indian context. A discussion of Section 292 IPC ensues with the balancing act provided by Article 19 of the Constitution of India. The difference between obscenity and pornography is also teased out in the case and captured well in the book. The ensuing refining and redrawing of lines in other cases including the popularly known Shama case⁵. The idea that “The requirements of art and literature include within themselves a comprehensive viewing of social life and not only in its ideal form, and the line is to be drawn where the average man begins to feel embarrassed or disgusted at a naked portrayal of life without the redeeming touch of art or genius or social value” is something that binds the quest to find what is “obscene” in the entire book.

This is followed by a discussion of the widely known Satyam, Shivam, Sundaram case⁶. Of note is also the analysis of the Prajapati case⁷ which brought in interesting clauses and tests, including cross-examination of Mr Bose. The relatively recent Khushboo case⁸, Boris Becker case⁹ and Shreya Singhal case¹⁰ are also cited and described. From perspective of artistic freedom, M.F. Husain is discussed in some detail. The case not only received widespread media attention, it also became a symbol of the times in some way reflecting national sentiment and reassessment of the public psyche. A period when mobile phones and internet were on their way in, the case drew much public attention as did the verdict. The writer also goes on to discuss, with impressive brevity, publication of photographs and much debated and contemporary issue of WhatsApp message exchanges. This somehow completes that circle from transition of time periods from speech to written word, to pictures and videos. The idea of obscenity in private spaces and how other jurisdictions have interpreted it certainly deserves attention and analysis.

The second chapter revolves around drama and theatrical performances. It provides a comprehensive description of the UK as well as the Indian statute and case law. The 3rd chapter talks about the law of obscenity under the Post Office Act of 1898. Again the comparison is clearly brought out between foreign and Indian provisions.

The other chapters delve into different areas of law and their interaction with the law around obscenity. The discussion includes the role, powers and challenges available to the Censor Board and the law’s interactions with intellectual property.

The depth and breadth of research and a clear laying down of the legal provisions in the book is massively impressive. The author has covered wide ground with relative ease. Landmark decisions and those of interest are reproduced convincingly under the relevant headings. What is again rather impressive is that there hardly seems any law that obscenity could touch that has not been mentioned. Inclusion, for instance of the Code of Criminal Procedure shows that this is meant to be a handy practitioners’ text and for good reason. It has made a very robust case for being the starting point of research for laws related to obscenity in India. The chapters are logically divided with each being very content rich and law heavy. The text, for most part is informatively descriptive.

The past decade has been one of change, churning and chatter. The law of obscenity and debates around it are as relevant and alive today, as they were during the Roman period. By its inbuilt mechanisms and inbuilt structures, the law must evolve with societal standards. It has a dual function — to mould public mores, standards, perceptions and beliefs and also to reflect them. The law thus needs to be dynamic, responsive, evolving and accommodating. Technology, artificial intelligence and globalisation present challenges as well as opportunities — the law will certainly be a major force and drive but also an institution that provides restraint and reflection.

Mr Bindal’s book is a timely contribution to this area. The brevity, clarity, coherence as well as the breadth, commitment to purpose and simplicity should certainly help this book become an authoritative beginner’s introductory text on the subject-matter. Its simplicity lends itself well to being a text for the beginner and its breadth lends itself well for those who intend to delve deep into the area including practitioners. It is hoped that the future will see an additional text — one that goes beyond this book and actively engages and critiques the law. By its nature, societal standards and the tests for obscenity as well as the media in and on which obscenity can be expressed will change and evolve. The law will have to keep up reflecting, analysing and evolving with the standards. The role of precedent, one assumes, will be limited as each case brings its own intricacies and will fall on its own facts. Thus, teasing out and understanding principles of this area of law becomes paramount.

Shakespeare once wrote, “But in these nice sharp quillets of the law, good faith, I am no wiser than a daw.”¹¹ That remains the case with the ever-changing and ever challenging discourse around laws of obscenity around the world. These “nice sharp quillets” bring perspectives from history, anthropology, sociology, literature and so much more. The dovetailing between freedom of speech on the one hand and restrictions on this freedom on the other provides for an exceptionally interesting, if not challenging legal landscape and the contours to be drawn in this nuanced area. The law of obscenity also has a public-facing function — how it responds and moulds but also where lines of criminality can be drawn. When does art become obscene? When does literature deserve to be confined? When do photographs become pornography? These are all incredibly important and interesting questions without any easy answers. The book provides a gateway to these and more.