How Laws Treats Obscenity, Profanity in India

Syllabus: GS2/Polity and Governance

Context

• Noida Police registered a Zero FIR against a woman over remarks made about the Prime Minister during a protest at Delhi’s Jantar Mantar.

About

• The FIR invokes Sections 352, 353(1) and 356(1) of the Bharatiya Nyaya Sanhita (BNS), covering insult, public mischief and defamation.
• Section 352 requires proof that the accused intended, or knew it was likely, that the insult would provoke an actual breach of public peace and not simply that someone felt insulted.
• Public mischief under Section 253is aimed at incitement: mutiny within the armed forces, fear likely to push people toward offences against the state, or enmity between communities.
  • This is a considerably higher bar than sharp criticism of a leader. 
• Defamation, too, carries long-standing exceptions for good-faith comment on a public figure’s conduct in their public role.
• The case has triggered a public debate, veering into moralistic notions about profanity, especially against public leaders.

Obscenity Laws in India

• The legal framework regulating obscenity in online content is under the Bharatiya Nyaya Sanhita (BNS), 2023, and the Information Technology Act, 2000.
• Definition: Any content shall be deemed to be obscene if it is lascivious or appeals to the prurient interest, or if its effect tends to deprave and corrupt persons likely to read, see or hear the content. 
• Public Spaces: It prohibits obscene acts and songs in public spaces. The maximum punishment for the person convicted under this charge is three-month jail and a fine.
• Online Content: Section 294 of BNS, 2023 criminalises the sale, import, export, advertisement, and display of obscene materials, including online content. 
  • It specifically targets “lascivious” material or content that “appeals to the prurient interest” or is excessively sexual in nature. 
  • The penalty can include up to two years imprisonment and a fine of up to Rs 5,000 for first-time offenders.
• Section 67 of the IT Act criminalises the publication or transmission of obscene material in electronic form.
  • This provision is similar to the definition under Section 294 of the BNS, carries a more stringent punishment of up to three years imprisonment and a fine of up to Rs 5 lakh for a first-time offence.

Related SC Judgments  

• Hicklin Test: Until 2014, the judiciary used the Hicklin test to determine if something is obscene or not.
  • The Hicklin Test was established in English Law after the case of Regina vs Hicklin (1868). 
  • According to it, a work can be considered obscene if any portion of it is found to “deprave and corrupt those whose minds are open to such influences”.
• In 2014, the SC did away with the Hicklin Test while hearing the case of Aveek Sarkar & Anr vs State Of West Bengal and Anr.
  • The court held that while judging as to whether a particular photograph, an article or book is obscene, regard must be had to the contemporary mores and national standards and not the standard of a group of susceptible or sensitive persons.

Profanity or vulgarity as a crime

• In 2024, a ban was sought on TVF’s web series because the content was seen as obscene under the Information Technology Act.
  • The SC, however, quashed the FIR, holding that vulgarity and profanity are not, by themselves, the same as obscenity.
  • While the literal meaning of the terms used may be sexual in nature, their usage does not arouse sexual feelings in any viewer of ordinary prudence and common sense. 
  • Rather, the common usage of these words is reflective of emotions of anger, rage, frustration, grief, or perhaps excitement.

Conclusion

• In 2025, the Telangana High Court held that social media posts might be harsh, or even use nasty language, but cannot attract Sections 352 or 353 if there is no real threat to public order.
• Court rulings on this issue frequently state that for an utterance to be considered obscene, it must be shown that it was lascivious. 
  • Lascivious is an adjective that means feeling, showing, or expressing a strong, often inappropriate desire for sex. 
• Anything that falls short of that yardstick is likely not to be considered “obscene” in criminal law.

Source: TH