As an old proverb goes ‘beauty is in the eye of the beholder’. So is obscenity.
In 2018, the Kerala High Court in a case had refused to categorize the picture of a woman breastfeeding an infant as “obscene”. In a similar case in 2016, the Madras High Court refused to misclassify a book, titled One Part Woman, as prurient on the grounds that: “Art is often provocative and is not meant for everyone, nor does it compel the whole society to see it… a book is not to be read like a statute to come to a conclusion.”
This reflects the fact that neighbouring India has come a long way in terms of its softer obscenity laws which are closely interlinked to the (qualified if not absolute) fundamental rights of freedom of speech and expression.
This must also take us back in time and remind us that the controversial yet liberal writers like Manto, Sajjad Zaheer, Mahmud-uz-Zafar, Rashid Jahan and Ismat Chughtai had been subjected to the worst kind of societal wrath and legal persecution in post-colonial Pakistan. Facing prosecution for a book written on the lives and struggle of sex-workers, Manto is known to have vehemently opposed the allegations of profanity: “Why would I want to take the clothes off a society, civilisation and culture that is, in any case, naked?”
Today, students, activists, reformers take pride in being part of many organizations, such as the Progressive Students Collective or the Progressive Feminist Movement (identified by the Aurat Marches). However, one of the earliest liberal movements, influenced by western intellectuals in art, was the Indian Progressive Writers’ Association. Those were the times when artistic expression was put through the worst kind of victimization. Just like Manto, Ismat Chughtai’s short story Lihaaf ended up in a legal controversy for profanity as it dealt with the subjects of homosexuality and paedophelia. The content she wrote through metaphors almost a century ago is now the concern of much activism.
The origins of the laws on obscenity can be traced back to the English case Regina v. Hicklin (1868) (now known as the Hicklin test). The case dealt with the publishing of a pamphlet, titled The Confessional Unmasked, which dealt with the subject of adultery. CJ Cockburn adjudged it as an attack on Catholicism and opined that its author and readers “would be of a mischievous and demoralizing character”. The yardstick of the Hicklin test was the expression of the transgressing author/artist, regardless of what his intention was.
Later on, the American case of Roth v. United States (1957) introduced the Roth Test on determining obscenity. This was a milder interpretation and it defined obscene materials as those which were intended to purposefully arouse immoral thoughts in the minds of those most negatively affected by such content. The Roth test aligned the explanation of obscenity with “community standards”.
Analysts and philosophers of “law and morality” now assert that such a test of obscenity is unconvincing in modern jurisprudence for those who possess intellect and reason. In fact it exhibits the judge’s vulnerability and sensitivity to his personal (moral and religious) values. It also shows that such a legal or moral interpretation of obscenity favours the adjudicator’s beliefs. For example, if the judge’s nurtured value is religion, then it supports fundamentalism. If the nurtured value is ethics and morality then it tilts towards puritanism.
In the context of art and literature, section 292 of the Pakistan Penal Code (PPC) is the primary penal provision that deals with the subject of obscenity in Pakistan. It is no surprise then that the Hicklin test has moulded this section which has impacted and censured creative expression in our country and other common law jurisdictions (excluding the US). Regrettably, section 292 fails to provide the definition of obscenity and just like the Hicklin test, its interpretation is open to the adjudicator.
Article 19 of our constitution deals with the freedom of speech, expression and press. These are subject to many reasonable restrictions out of which public order, decency or morality are most ambiguous and open to a much wider interpretation. These may vary for different sections of our society (or rather the different adjudicators’ schools of thought). For example, modernists, formalists, humanists, realists, fundamentalists, liberals and so on.
When viewed from a feminist perspective, obscenity would constitute a degraded or subjugated or objectifying depiction of females. If understood through an absolutist perspective, obscenity cannot have a single and universal interpretation or meaning because it is deeply linked to the culture, society or religion of a certain time and place. Therefore an objective, reasonable or impartial perspective of obscenity as interpreted by the law is just a myth. In fact, unnecessary moral policing in any religion, culture or society with the backing of the law on creative arts is undesirable and unjustified.
It is at least agreeable that there is no consensus on a single method or test to gauge obscenity or define reasonable restrictions placed on it as these are evolving and shifting perspectives. The tests of obscenity remain vague and their struggles with the freedom of expression will likely continue as humanity evolves.
In 2018, the Kerala High Court in a case had refused to categorize the picture of a woman breastfeeding an infant as “obscene”. In a similar case in 2016, the Madras High Court refused to misclassify a book, titled One Part Woman, as prurient on the grounds that: “Art is often provocative and is not meant for everyone, nor does it compel the whole society to see it… a book is not to be read like a statute to come to a conclusion.”
This reflects the fact that neighbouring India has come a long way in terms of its softer obscenity laws which are closely interlinked to the (qualified if not absolute) fundamental rights of freedom of speech and expression.
This must also take us back in time and remind us that the controversial yet liberal writers like Manto, Sajjad Zaheer, Mahmud-uz-Zafar, Rashid Jahan and Ismat Chughtai had been subjected to the worst kind of societal wrath and legal persecution in post-colonial Pakistan. Facing prosecution for a book written on the lives and struggle of sex-workers, Manto is known to have vehemently opposed the allegations of profanity: “Why would I want to take the clothes off a society, civilisation and culture that is, in any case, naked?”
In a similar case in 2016, the Madras High Court refused to misclassify a book, titled One Part Woman, as prurient on the grounds that: “Art is often provocative and is not meant for everyone, nor does it compel the whole society to see it… a book is not to be read like a statute to come to a conclusion.”
Today, students, activists, reformers take pride in being part of many organizations, such as the Progressive Students Collective or the Progressive Feminist Movement (identified by the Aurat Marches). However, one of the earliest liberal movements, influenced by western intellectuals in art, was the Indian Progressive Writers’ Association. Those were the times when artistic expression was put through the worst kind of victimization. Just like Manto, Ismat Chughtai’s short story Lihaaf ended up in a legal controversy for profanity as it dealt with the subjects of homosexuality and paedophelia. The content she wrote through metaphors almost a century ago is now the concern of much activism.
The origins of the laws on obscenity can be traced back to the English case Regina v. Hicklin (1868) (now known as the Hicklin test). The case dealt with the publishing of a pamphlet, titled The Confessional Unmasked, which dealt with the subject of adultery. CJ Cockburn adjudged it as an attack on Catholicism and opined that its author and readers “would be of a mischievous and demoralizing character”. The yardstick of the Hicklin test was the expression of the transgressing author/artist, regardless of what his intention was.
Later on, the American case of Roth v. United States (1957) introduced the Roth Test on determining obscenity. This was a milder interpretation and it defined obscene materials as those which were intended to purposefully arouse immoral thoughts in the minds of those most negatively affected by such content. The Roth test aligned the explanation of obscenity with “community standards”.
Analysts and philosophers of “law and morality” now assert that such a test of obscenity is unconvincing in modern jurisprudence for those who possess intellect and reason. In fact it exhibits the judge’s vulnerability and sensitivity to his personal (moral and religious) values. It also shows that such a legal or moral interpretation of obscenity favours the adjudicator’s beliefs. For example, if the judge’s nurtured value is religion, then it supports fundamentalism. If the nurtured value is ethics and morality then it tilts towards puritanism.
In the context of art and literature, section 292 of the Pakistan Penal Code (PPC) is the primary penal provision that deals with the subject of obscenity in Pakistan. It is no surprise then that the Hicklin test has moulded this section which has impacted and censured creative expression in our country and other common law jurisdictions (excluding the US). Regrettably, section 292 fails to provide the definition of obscenity and just like the Hicklin test, its interpretation is open to the adjudicator.
In the context of art and literature, section 292 of the Pakistan Penal Code is the primary penal provision that deals with the subject of obscenity in Pakistan…. It fails to provide the definition of obscenity and just like the Hicklin test, its interpretation is open to the adjudicator.
Article 19 of our constitution deals with the freedom of speech, expression and press. These are subject to many reasonable restrictions out of which public order, decency or morality are most ambiguous and open to a much wider interpretation. These may vary for different sections of our society (or rather the different adjudicators’ schools of thought). For example, modernists, formalists, humanists, realists, fundamentalists, liberals and so on.
When viewed from a feminist perspective, obscenity would constitute a degraded or subjugated or objectifying depiction of females. If understood through an absolutist perspective, obscenity cannot have a single and universal interpretation or meaning because it is deeply linked to the culture, society or religion of a certain time and place. Therefore an objective, reasonable or impartial perspective of obscenity as interpreted by the law is just a myth. In fact, unnecessary moral policing in any religion, culture or society with the backing of the law on creative arts is undesirable and unjustified.
It is at least agreeable that there is no consensus on a single method or test to gauge obscenity or define reasonable restrictions placed on it as these are evolving and shifting perspectives. The tests of obscenity remain vague and their struggles with the freedom of expression will likely continue as humanity evolves.