"Obscenity is a function of culture, a function in mathematical sense, I mean, its value changing with that of the variables on which it depends" – AP Sabine. The statement still holds true to the core. In terms of the social fabric of India, nudity is still seen as a forbidden subject being linked to immorality, indecency, and prurient values.
A lot of hue and cry has been made over Milind Soman recently after Goa Police registered a case against him for allegedly "promoting obscenity" after he recently posted a picture of himself running nude on a beach in the state to mark his birthday.
Goa Suraksha Manch (GSM) registered a case in this aspect and the actor was booked under sections of IPC and the Information and Technology Act. But the matter escalated when Pooja Bedi, extended her support by tweeting, "Absolutely nothing obscene about Milind Soman’s aesthetic pic. The obscenity lies in the minds of a viewer imagining more!... If nudity is a crime all naga babas should be arrested. Smearing ash can’t make it acceptable!"
However, her comments drew flak from a certain segment of citizens for being insensitive leading to the question, whether it is fair to compare nudity and vulgarity of a film artist to the tradition of Naga ascetics? Can the court decide a framework to compare religion with art in a society like ours.
The words 'obscene' and 'obscenity' are not defined clearly in the IPC. Section 292 of IPC only states that if any material taken as a whole, is lascivious or appeals to prurient interest and tends to deprave and corrupts the persons who read, see or hear the matter contained will come under the ambit of obscenity. Further, Section 294 of IPC punishes a person for committing an obscene act in public.
The Information and Technology Act also gives provisions to prohibit obscene content in electronic form. Section 67 of IT Act gives punishment for publishing obscene material in electronic form. It is to be noted that any obscenity in electronic form can only be tried under the IT Act and not under IPC.
In India, the Supreme Court in Aveek Sarkar vs State of West Bengal has held that 'the question of obscenity must be seen in the context in which the photograph appears and the message it wants to convey'.
The Court further clarified that the correct test to determine obscenity would be, Community Standards Test i.e. Roth Test and not Hicklin Test thereby making it clear that in each case related to check on obscenity the material to be ‘taken as a whole’.
Leaving obscenity without a definition, however, seems reasonable, since the flexible nature of the terms makes it difficult to attribute any single objective meaning to the term, but the issue arises when there is a misinterpretation.
Section 294 of IPC restricts obscenity but our Constitution under article 26 allows a citizen to manage its religious matters and at the same time in article 13 promises that laws inconsistent with or in derogation of fundamental rights shall to a certain extent, be declared as void.
Therefore, it can be said that the fundamental rights are higher than other statutory laws and every individual has full liberty to practice and manage own religious rights without the intervention of any institution. Hence, in my opinion, it is not appropriate to compare the nakedness of Naga Sadhus with the nakedness of an actor.
Being a sadhu is about adopting Sanyas, or the way of life where one gives up everything material having no worldly possessions to take up the spiritual life. Clothes are one of the most basic needs and apart from protecting us also denotes our social status.
These sadhus by giving up clothes renounce one of the most basic social statuses which implies a true sign of renunciation. Moreover, even if we seek judicial assistance, it would be somewhat ineffective, as one cannot apply law everywhere. Religious processes which are age-old won’t be the same with alterations.
The Apex Court in 2018 in the judgment of Indian Young Lawyers Association & Ors. vs The State of Kerala & Ors., better known as Sabrimala case gave women the right to enter the temple premises which had been prohibited for a long time.
The reason for prohibition being that Lord Ayyappa is considered a lord as he practised celibacy and hence, women were refrained from viewing him or paying a visit to him in the temple. The Hon’ble Court tried to bring inequality by giving equal opportunity to women but attracted the hatred against the judgment nationwide and as a result, the matter is under review petition.
It can easily be noticed that religious interference is not acceptable by society. The law derives from society, society follow morals and religion tells us about morality. It can easily be noticed that superficial interferences in religious and cultural practices are not acceptable by the society.
It is hence the responsibility of law practitioners to ensure that society upholds the court as the one who understands the depth of the cultural, history and religion. If the society feels aloof from the courts like the one who doesn’t understand the depth of their faith, society will stop putting their trust in the law and courts.
(The author is a TMT lawyer and can be reached at tishyapandey.adv@gmail.com)