Bare Acts? Ranveer Singh case prompts debate on nudity, obscenity and colonial-era laws

The Mumbai Police recently booked Ranveer Singh for offences under the Indian Penal Code dealing with obscenity, among others, after a complainant claimed that he was offended by the Bollywood actor posing nude for a magazine photoshoot.

The case prompts a closer look into the law surrounding obscenity in India, which was introduced in the colonial era, and how the courts have interpreted it as society has evolved.

We also garnered opinions from legal experts on the Ranveer Singh case.

Laws invoked

The following provisions of the Indian Penal Code, 1860 (IPC) and the Information Technology (IT) Act, 2000 have been applied in Singh’s case:

IPC Section 292 is a broad provision of law dealing with the sale of obscene books, etc and attempts to define what can be termed “obscene”.

A “book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object", can be considered obscene “if it is lascivious or appeals to the pruri­ent interest or if its effect, or (where it comprises two or more distinct items) the effect of any one 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, see or hear the matter contained or embodied in it."

Any violation in terms of public display or distribution can land a person in jail if found guilty, attracting a maximum term of two years and a fine.

The act, however, won’t attract punishment if:

Firstly, such material has been justified for public viewing or is in the interest of science, literature, art or learning or other objects of general concern or religious purposes.

Secondly, if the act concerns ancient monuments or religious idols.

IPC Section 293 deals with sale, etc of obscene objects to young persons.

A person can be jailed and fined if he or she “sells, lets to hire, distributes, exhibits or circulates to any person under the age of 20 years any such obscene object as is referred to in the last preceding section, or offers or at­tempts so to do."

The maximum jail term a person can attract for the offence is three years and a fine.

IPC Section 509 - word, gesture or act intended to insult the modesty of a woman.

Under the provision, a person can be jailed and fined for “intending to insult the modesty of any woman” by uttering any word, or making a sound or gesture, or exhibiting any object that intends to intrude upon the privacy of a woman who sees it.

This entails a maximum of three years' simple imprisonment with or without fine.

Besides, Section 67A Information Technology Act, 2000 has been applied by the police.

The provision criminalises an act of publishing or transmitting in electronic form any material that contains sexually explicit act or conduct. A person found guilty of violating it can be jailed for a maximum of five years, besides being fined upto ₹10 lakh.

(Ob)Scenes from the Past

Singh’s case is not the first time an actor has had a brush with these laws. In 2014, a nude poster of Aamir Khan released for his movie PK prompted a civil case, labelling the act as “vulgar and obscene”.

Model and actor Milind Soman had been booked under Section 294 (obscene acts and songs) by the Goa Police after he uploaded an image of him running naked on a beach on Twitter on his 55th birthday in November 2020.

More recently, actor Shilpa Shetty was let off by a Mumbai court in a 2007 obscenity case filed against her after Hollywood actor Richard Gere had publicly kissed her at a promotional event in Rajasthan.

She too had been booked under IPC Sections 292, 293, 294 besides, provisions of Information Technology and the Indecent Representation of Women (Prohibition) Act.

The Obscenity Test

The constitutionality of Section 292 which defines, or perhaps aims to define obscenity, was challenged before the Supreme Court in 1961 (Ranjit D Udeshi v. State of Maharashtra).

A magistrate had convicted and ordered imprisonment and fine against a book publisher for selling DH Lawrence’s book titled Lady Chatterley’s Lover, which was found to have contained “obscene matter”. The Bombay High Court thereafter dismissed his appeal.

Broadly, the Supreme Court had to decide on the validity of Section 292 and the provision’s proper interpretation and application to the offending novel.

In doing so, the Court referred to the 1868 Hicklin case, where a UK court had laid down the test of obscenity for the first time. The test came in form of words from then Chief Justice Cockburn, who said,

“I think the test of obscenity is this, whether the tendency of the matter charged as obscenity 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... it is quite certain that it would suggest to the minds of the young of either sex, or even to persons of more advanced years, thoughts of a most impure and libidinous character.”

The Supreme Court in Udeshi’s case adopted this test, saying it was “uniformly applied in India” and dismissed the challenge.

Courts on obscenity and nudity

The Supreme Court in the Bandit Queen case (Bobby Art International, etc v. Om Pal Singh Hoon & Ors) underscored the interlink between nudity and obscenity in the light of the film’s theme.

“'Bandit Queen' tells a powerful human story and to that story the scene of Phoolan Devi's enforced naked parade is central. It helps to explain why Phoolan Devi became what she did— her rage and vendetta against the society what had heaped indignities upon her.”

In Maqbool Fida Husain v. Rajkumar Pandey, the Delhi High Court in 2008 underlined that any interpretation of ‘obscenity’ in the context of criminal offences must be in consonance with the constitutional guarantee of freedom of expression, which is not confined to the expression of ideas that are conventional or shared by the majority.

While referring to Supreme Court adopting the Hicklin’s test in Udeshi’s case, the High Court highlighted,

“Where art and obscenity are mixed, art must so preponderate as to throw the obscenity out into the shadow or the obscenity so trivial and insignificant that it can have no effect and may be overlooked.”

What do the experts say?

An argument may arise that Singh's nude photoshoot and his uploading the images on social media platforms could be termed as a form of art or artistic expression. In this context, should his act attract condemnation or punitive action for that matter? Is there a need to revisit Section 292 IPC in light of changing mindsets?

Senior Advocate Amit Desai contended that just because a provision dealing with obscenity is of a law of 1860, did not mean that obscenity should not be an offence and had to be struck down.

“Obscenity has a lot of social implications and therefore to suggest that obscenity should not be an offence is not correct in any society—whether of 1860 or 2022,” he said.

Desai emphasised that the provision's language, which was very carefully drafted, contemplated and enabled the test of obscenity that had to be determined with the evolving society.

“And that is why the Section mentions ‘having regard to all relevant circumstances’. Relevant circumstances are also evolving society and evolution of people’s thinking,” he pointed out.

When it comes nudity, Desai said the position was very clear with the Supreme Court having held in some of its judgments that nudity per se was not obscene.

He referred to Ajay Goswami v. Union of India, where the Supreme Court in 2006 outlined that "per se nudity is not obscenity".

The senior criminal lawyer highlighted how context was relevant in such scenarios. He illustrated how naga sadhus present at the Kumbh Mela for the holy dip — showcased widely in the media with frontal nudity— was not an act of obscenity but a spiritual one.

“Therefore, it is all about the context. If it is about the context, in this case, you don’t have frontal nudity. You don’t even have back nudity because you don’t see the private parts or the buttocks. What you are seeing is a human body without clothes,” said Desai, referring to Singh’s case.

Singh, in his view, was positioned carefully so that the act was not intended to appeal to a pruri­ent interest and isn’t lascivious.

"Merely because you see skin, it doesn’t mean it is lascivious. Therefore, it is contextual. When you see a picture— merely because it happens to be a prominent celebrity— doesn’t mean anything in the context of obscenity. If it came to a male model who was not a celebrity, you would have ignored the picture,” argued Desai.

According to Desai, though there was an objective criteria in the law, all objective criteria had a certain amount of subjectivity.

“That’s the reality, otherwise it would have been prescriptive. There is an element of application of mind within the objective criteria. What are those criteria is set out in the Section. How it has to be interpreted is about the evolving society in which you live. It cannot be the test of one individual police officer or a complainant—it is a test of society as a whole,” added Desai.

Elaborating further, he cited actor Khushbu’s case in 2010, when the Supreme Court noted that “obscenity should be gauged with respect to contemporary community standards that reflect the sensibilities as well as the tolerance levels of an average reasonable person.”

The actor was slapped with charges, including for the offence of obscenity, for her views on pre-martial sex.

“You today see that in society and films and everywhere what in the 1940s and 50s was a dance around a flower, today actors have a frontal kiss in a movie. It is contextual,” shared Desai.

Senior Advocate Vikas Phawa argued that Singh's was an artistic expression of how he felt about fashion and nakedness - a perspective on the different facets of nudity of the actor.

"It cannot be said that he is promoting obscenity," said Pahwa.

He further pointed out that a photoshoot for a magazine, even if it manifests nudity, could not attract the offence of obscenity.

“The nude photograph may or may not be considered to be obscene. It is subjective in nature and cannot be presumed to be taken with an objective to deprave or corrupt the mind of the people,” he said.

The senior lawyer highlighted that the concept of obscenity changes with time, and what might have been obscene at one point in time cannot be considered as obscene at a later period. However, he added,

“The right to freedom of speech and expression is not absolute and it thus has to be balanced against the contemporary community standards of morality when it comes to penalising obscene acts or content.”