Free Speech And Obscenity - The Legal Dilemma In India

Author: LawSphereX

Category: General Law

Published: 2026-08-23T19:51:44.888Z

Updated: 2026-08-30T07:09:13.636Z

FREE SPEECH AND OBSCENITY: THE LEGAL DILEMMA

IN INDIA

Anuj Mishra, School of Law, Devi Ahilya Vishwavidyalaya

ABSTRACT

The democracy is built on the principles of free speech and expression. This enables individuals to put forward their view and provide constructive criticism on the government. However, this right is not absolute in India, given under Article 19 of constitution also enables state to restrict rights relating to free speech particularly concerning decency and morality. The obscene content poses a huge problem of determination and create complex problems sometimes limiting artistic expression. This paper explores the nuanced conflict between freedom of speech and the regulation of obscenity, highlighting the legal, constitutional, and judicial dimensions of this dilemma by studying the evolution of judicial standards. The paper attempts to study the efforts of courts in attempting to balance artistic expression and censorship.

Through doctrinal analysis and jurisprudential insights, the paper argues for a more coherent and adaptive legal framework that upholds democratic values without succumbing to arbitrary censorship.

1. Introduction

"Whoever would overthrow the liberty of a nation must begin by subduing the freeness of speech. " as said by Benjamin Franklin. Freedom of speech is the cornerstone of every democratic society on earth. The ability to express oneself freely and obtain information from others is essential to this principle. Autonomy must be established by freedom of speech as it acts as the most crucial protection from oppression. Article 19 of the Indian Constitution safeguards this fundamental right to free speech and expression, which is also backed by the International Human Rights Law, as recognised by the International Covenant on Civil and Political Rights1. However, free speech is not an absolute right, as it comes with certain restrictions under Article 19. However, what may be obscene in violating this right has been a hot topic of debate from the perspective of democracy.

With the advent of social media platforms, the courts have widened the scope of freedom of speech recently, The Madras High Court while specifically dealing with content shared on social media, said: "Can the voices of everyone be strangulated to curb these small groups from spreading unpleasant opinions? The people consuming information on social media are the best judges of these views and opinions. The Constitutional Institutions cannot indulge in a process to influence the views of the people. Actions of the Institution speak for themselves and the views may come and go. "2 By stating, "The choice to consume content is always at the disposal of the viewer," the Madras High Court Favours speech rather than excessive government censorship.

3 The Madras HC statement reminds us that protection of fundamental rights should always be of the outmost priority in efforts to tackle misinformation. Any infringement upon this right will result in silencing genuine voices and will damage democracy and public trust. It is the job of both government and citizens to uphold our constitutional values. The global survey titled 'Who in the World Supports Free Speech? '4 has ranked India 24th out https://www. ohchr. org/en/instruments-mechanisms/instruments/international-covenant-civil-and-politicalrights

2 A. Kamala vs The State Of Tamil Nadu on 18 July, 2024

3 https://internetfreedom.in/curbing-misinformation-or-chilling-free-speech/

4 https://futurefreespeech.org/who-supports-free-speech-findings-from-a-global-survey/

of 33 countries survey contained questions on who supports free speech and such ranking goes to show India’s low efforts to uphold principles of free speech. The survey stated that many Indians considered it very important for the criticism of government and support for criticism of government policies was below the global average. 37 percent of Indians supported that government should be able to prevent people from criticising government policies which was the highest percentage among the countries surveyed.5 This goes to show the lack of awareness regarding protection of free speech in India.

1.1 Background

The first efforts for free speech is said to have been in the late 5th and 6th centuries BC. Roman Republic being first of them to promote free speech in their core ideals with religion. The original documents documenting freedom of speech were created in the early stages of societal development which included the broader notion of freedom of expression which is fundamental for protection of individual liberties. England in the year 1689 became the first ever to give freedom of speech constitutional guarantee by the introduction of Bill of rights which gave absolute right to citizens to express their thoughts and opinions free without fear of retribution or censorship from government. The French revolution also played a crucial role in establishment of freedom of speech in 1789.

The freedom of the press is a crucial pillar for the establishment of sovereignty and autonomy which should not be declined by authorises as stated in Section 12 of the Virginia Bill of Rights,1776. 6 Freedom of speech became an essential feature of democracy by the introduction of Article 19 of UDHR7 which gives every person the right to free expression and liberty to hold opinions without limitation and also to access information or viewpoints through various media irrespective of borders.

1.2 Judicial background

Justice Bhagwati, in Maneka Gandhi v. Union of India8, also pointed out that all democratic societies are fundamentally dependent on unrestricted discussions which is a prime feature for 5 https://www.thehindu.com/news/national/india-ranked-24th-out-of-33-countries-in-free-speechindex/article69345028.ece

6 https://www.archives.gov/founding-docs/virginia-declaration-of-rights

7 https://www.un.org/en/about-us/universal-declaration-of-human-rights

8 1978 SCR (2) 621

correction of governmental actions. Given that democracy is defined as the governance "of the people, by the people, and for the people," it necessitates that every citizen must have the power to engage in democratic processes, having an open dialogue on important issues to make an informed voting decision. Article 19(1) (a) guarantees to Indian citizens the right to freedom of speech and expression. It does not delimit that right in any manner and there is no reason, arising either out of interpretational dogmas or pragmatic considerations, why the courts should strain the language of the Article to cut down the amplitude of that right.

The plain meaning of the clause guaranteeing free speech and expression is that Indian citizens are entitled to exercise that right wherever they choose, regardless of geographical considerations, subject of course to the operation of any existing law or the power of the State to make a law imposing reasonable restrictions in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence, as provided in Article 19(2). As said by Justice Y. V. CHANDRACHUD in the landmark case of Maneka Gandhi v. Union of India9 SC in Mahesh Bhatt v Union of India10 stated that free speech is one of the fundamental pillars of our constitution which should be protected foremost.

For the sustaining of democracy, it is of utmost importance that the citizens are well-informed and educated. Any restrictions on the suppression of dissenting and divergent perspectives or a legislative means to impose restrictions will infringe on the sanctity of free speech.

1.3 Research Objectives

This article seeks to:

1. Examine India's legal and constitutional frameworks pertaining to obscenity and free speech.

2. Assess judicial patterns, paying special attention to significant Supreme Court rulings.

3. Evaluate how obscenity laws are affected by the digital age.

9 https://www.manupatracademy.com/legalpost/manu-sc-0133-1978

10 (2008) 02 DEL CK 0189

1.4 Research Methodology

This research adopts a doctrinal approach, relying on primary legal sources such as constitutional provisions, statutes (IPC, IT Act, etc.), and Supreme Court judgments. Additionally, it references secondary sources including law review articles, commentaries, and comparative legal studies to provide a broader perspective on the issue.

2. Legal Framework

Governing Free Speech and Obscenity in India

2.1 Constitutional Provisions11

The Constitution of India guarantees the right to freedom of speech and expression while permitting reasonable restrictions to safeguard societal interests. the fundamental right to freedom of speech and expression to all citizens of India enabling individuals to express opinions, share ideas, and engage in public debate without unwarranted interference from the state is given under Article 19(1)(a) the state is also empowered to impose reasonable restrictions on this right in the interests of the sovereignty and integrity of India, security of the state, public order, decency, morality, contempt of court, defamation, incitement to an offence, and relations with foreign states. The inclusion of "decency and morality" as grounds for restriction directly relates to laws governing obscenity under Article 19(2)

2.2 Bhartiya Nyaya Sanhita,202312

The BNS contains specific provisions aimed at curbing the dissemination of obscene material and prohibiting indecent public acts that may offend societal morality. BNS defines obscene content and prohibits its sale, distribution, and exhibition under Section 294 It also criminalizes the publication and circulation of any book, pamphlet, paper, drawing, or object that is deemed obsece However, materials with artistic, literary, scientific, or religious value may be exempted.

11 https://legislative.gov.in/constitution-of-india/

12 https://www.mha.gov.in/sites/default/files/250883_english_01042024.pdf

A stricter penalty is also imposed for selling, distributing, or exhibiting obscene material to minors (persons below the age of 18) under Section 295 BNS criminalizes any acts performed in public which maybe deemed as obscene acts, gestures, or songs under Section 296

2.3 Information Technology Act, 200013

The emergence of digital platforms necessitated the regulation of online speech and content, leading to the enactment of the Information Technology (IT) Act, 2000, which includes provision addressing the transmission of obscene material in cyberspace. Any electronic transmission, publication or distribution of obscene content through digital platforms, emails, websites, or social media is penalized under Section 67.

3. Judicial Interpretations of Obscenity

Over time, the judiciary has been instrumental in influencing India's legal view of obscenity, shifting from strict readings to more contextual and flexible approaches. A shift from a rigid moralistic position to a more balanced viewpoint that takes into account artistic, literary, and social circumstances is seen in the development of the legal standards used by Indian courts.

3.1 The Hicklin Test

An Early Judicial Approach One of the first legal criteria used in India to ascertain obscenity was the Hicklin Test, which originated from the English case Regina v. Hicklin (1868)14. Which central issue revolved around whether the publication of pamphlet which contained immoral practices of the Roman Catholic Church and contained obscene material was justified on the grounds of the appellant's good intention to expose such practices. The courts gave a unanimous judgement and stated that the publication of pamphlets was a violation of the law regardless of the person's intent as the effects of publishing had damaged the public morals. This case gave birth to the Hicklin test this test measured obscenity by evaluating whether the material has the ability to deprave and corrupt people whose minds are weak to immoral influences especially the youth and other

13 https://www.indiacode.nic.in/bitstream/123456789/13116/1/it_act_2000_updated.pdf

14 https://eprints.whiterose.ac.uk/124465/2/MullinUnmasking.pdf

vulnerable groups. 15 Ranjit Udeshi v. State of Maharashtra (1965)16: this case involved the conviction of a bookseller for the sale of D. H. Lawrence's novel Lady Chatterley's Lover which contained some obscene contents. The courts there by used the Hicklin test to determine this case. And stated that if any segment of content was obscene the entire work would become questionable regardless of its artistic or literary value. The effects of the Hicklin Test resulted in the excessive suppression of literature, art, and cinema, frequently neglecting the contextual framework, intended purpose, or contemporary significance of the material. The scope of artistic expression was restricted under this repressive rule, as the judiciary prioritized suspected immorality over impacts on free speech and artistic liberty.

The test has also been started to be used as arbitrary censorship in which authorities would ban any work on their subjective moral criteria.

3.2 The Community Standards Test

Shift in Judicial Interpretation After the inadequacies of the Hicklin test the Indian judiciary opted for Community standards test for a more enlightened approach for identifying obscene content. This test takes into account the societal context with taking evolution of moral standards with it. Aveek Sarkar v. State of West Bengal (2014):17 one of the first instances where the Supreme Court deviated from the Hicklin test and opted for the "community standards test" harmonizing interpretation of obscenity to fit prevailing social values. The case involved a photograph that depicted a nude couple which was published in Sports world and was contested as obscene. The court evaluated the image in its entirety instead of its fragments which ensured its artistic, literary and journalistic merits intact.

This judicial decision stated that obscenity should be assessed based on the standards of the average audience rather than isolated moralistic interpretation. The court demanded that any material must be assessed based on the context of its intended purpose and the audience it aims to engage. The community standards test become a landmark step towards progressive transformation in https://www. scconline. com/blog/post/2022/07/21/law-of-obscenity-and-freedom-of-expression-where-todraw-the-line/

16 1965 SCR (1) 65

17 2014 (4) SCC 257

Indian jurisprudence thereby enhancing freedom of expression in literature cinema and media. Furthermore, it laid down the essential groundwork for a more wider comprehension of obscenity, abolished arbitrary censorship from authorities and open interpretation for evolving social norms. By transitioning from the stringent Hicklin Test to the more equitable community standards methodology, Indian courts have undertaken a crucial role in preserving free speech while ensuring that legal frameworks remain pertinent to contemporary realities.

4 Recent Development

Ranveer Allahabadia Case (2025) In 2025, the case involving Ranveer Allahabadia, a well-known Indian YouTuber and podcaster popularly recognized as Beer Biceps, drew considerable attention to the legal interpretations of obscenity in the digital era and started a huge debate on restrictions of freedom of speech and heavy arbitrary censorship by the government. 18 Facts of the Case: Ranveer, having almost 20 million subscribers across 2 YouTube channels, was allegedly making lewd comments during his guest appearance on the YouTube comedy show India's Got Latent and was charged under Section 292 of IPC. This controversy started when Ranveer asked inappropriate questions about observing his parents in intimate situations to one contestant which resulted in public outrage and multiple complaints filed in Maharashtra and Assam.

This incident started multiple discussions on the limits of free speech and censorship of digital content regarding societal norms and ethical standards. Supreme Court's Ruling: Initially, the SC imposed a temporary suspension on Ranveer's podcast and granted him protection from arrest while criticizing his remarks as perverted and disgusting. The courts directed him that his content should meet the standards of decency and morality and should conform to social norms making it suitable for all age groups the courts also directed the central https://www. thehindu. com/news/national/sc-allows-ranveer-allahbadia-to-resume-podcast-says-it-shouldcomply-with-prevailing-standards-of-decency-and-morality/article69285144. ece government to make regulations for digital media content to adhere to the broader issue of obscenity and vulgarity in the digital realm.

4. Challenges

in Defining and Regulating Obscenity

4.1 Subjectivity and Cultural Variations

The concept of obscenity is highly subjective as the meaning of obscenity shifts dramatically from one culture to another which create huge challenges in establishing a uniform legal framework. The subjectivity of meaning shifts in age groups, religions, cultures, professions, and education levels. What one community deems "obscene" may be celebrated in another, resulting in challenging enforcement practices. For example: the portal of nudity in Western art is understood as a vivid form of creative expression while in India it is deemed as obscene according to moral standards.

4.2 Digital Age Complexities

the internet often seen as the safe haven from the scrutiny of government enables individuals to use this platform to escape the restrictions on freedom of speech and do as they please. This platform has rendered conventional obscenity laws increasingly difficult to uphold. The regulatory measures fail to catch up with the rapid evolution of digital creations. The advent of AI and deepfakes has raised a new array of problems in the regulation of obscene content.

4.3 Harmonizing Censorship and Freedom of Expression

the constant clash between censorship and freedom of speech cannot be subdued without proper regulation that clearly defines what may be obscene the arbitrary nature of this law has rendered unnecessary restrictions on individuals with exceptional artistic expression. This tug of war between attempting to reconcile censorship with right to free speech with prohibition on all forms of media ignites frequent discussions about creative liberties some examples include – movies like Lipstick Under My Burkha faced backlash due to accusations of obscenity and public discontent and books like the satanic verses and the Hindus: an alternative history have faced bans or withdrawals owing to controversies surrounding obscenity.

The perpetual battle between the ideals of free speech and the constraints of obscenity laws underscores the necessity for a sophisticated legal structure that honours both creative and personal expression while safeguarding societal norms.

7. Conclusion

The Indian scene reflects a deeper ideological struggle between constitutional liberties and fluctuating societal standards in the evolving landscape of free speech and obscenity. As this paper has explored, the judiciary plays a crucial role in navigating free speech often oscillating between upholding the sanctity of Article 19(1) and enforcement of reasonable restrictions laid out in Article 19(2). From the rigid and outdated Hicklin Test to the more context-sensitive Community Standards Test Indian judiciary has evolved its jurisprudence in interpretation with societal expectations. Yet the rise of social media and digital platforms has reignited the complexities of defining obscenity as it was seen in the recent case of Ranveer Allahabadia case.

With an ever-evolving society the legal system must evolve too with its upholding the fundamental constitutional provisions and prevent all arbitrary censorship as it risks stifling dissent and creativity, weakening the very foundations of a democratic society. Instead, a nuanced and adaptive legal framework is needed—one that respects diversity of thought while protecting vulnerable communities from genuine harm. Hence, the Indian justice system must not focus on suppression of speech but in empowerment of its citizens to engage responsibly, ensuring freedom of speech and making it not just a constitutional promise, but a lived reality