*Jade Da Silva

The Economic Times

This article examines the enduring entanglement between obscenity law, morality, and judicial interpretation in India, using the Supreme Court’s response to Ranveer Allahbadia’s remarks on the web-show ‘India’s Got Latent’ as a contemporary lens through which the operation of disgust in obscenity jurisprudence can be understood, arguing that the law continues to be shaped by disgust rather than harm, policing sexual expression and collapsing legal judgment into social morality, thereby revealing its subjective and exclusionary foundations.

Introduction

Earlier this year, YouTuber and podcaster Ranveer Allahbadia was at the centre of a huge controversy surrounding an obscene comments made by him on the show India’s Got Latent.

The remark not only led to significant social media backlash but also prompted FIRs to be filed in several states against him and the show’s host, Samay Raina, for ‘promoting obscenity’ under section 294 of the Bhartiya Nyaya Sanhita (BNS) [formerly Section 292 of the Indian Penal Code (IPC)].

Allahbadia approached the Supreme Court for protection in the matter and in directing that no new FIRs be filed, the Supreme Court made several comments deeming his comments to be ‘disgusting’, ‘filthy’, ‘insulting’ and the ‘display of his depraved mind’ whose perversity was a cause of shame to the entire society. The use of this particular language, under the guise of protecting social morality and reconciling social shame is not new to jurisprudence on obscenity but rather is a reproduction of historical and societal patterns with respect to what people, and as a result, the law construct as obscene.

This article proceeds by tracing the jurisprudence of obscenity law in India, beginning with its colonial roots in the Indian Penal Code, its interpretation thereafter through the Hicklin test and its evolution into the community standards test. It then situates these judicial approaches within a broader philosophical framework, drawing on Martha Nussbaum’s argument that disgust plays a central role in shaping legal determinations, highlighting the anxiety of the law to what it deems obscene. In doing so, the article highlights how sexual immorality, often implicitly defined through patriarchal and heteronormative standards, has been mobilized as a basis for both sanction and control. Against this backdrop, the judicial response to Ranveer Allahbadia’s statements functions as a contemporary stage for examining how courts continue to conflate discomfort with obscenity, reinforcing the law’s tendency to police sexuality under the guise of protecting familial and social morality. Taken together, these strands illuminate the enduring entanglement of obscenity law with morality, disgust, and the judicial imagination, and invite a critical reflection on the merits of using the law to regulate such discomfort.

(Yet Another) Colonial Import – Evolving the Hicklin test

The provision itself when introduced in the IPC in 1925 failed to define obscenity, merely stating that content shall be deemed to be obscene if it is ‘lascivious’ or ‘appeals to the prurient interest or if its effect’ or has the tendency to ‘deprave of corrupt persons’ likely to consume such content.

As a result, English cases were relied on to give meaning to the idea of obscenity professed in section 292, most notably among them being the test laid down in R v. Hicklin, where the English court held the test for obscenity to be ‘whether the tendency of the matter so charged was to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall’. A modified version of the infamous Hicklin test came to be adopted by Indian courts in Ranjit Udeshi v. State of Maharashtra.

In Ranjit Udeshi, the owner of a book stall selling the text Lady Chatterley’s Lover was prosecuted under Section 292 of the IPC due to the ‘titillating’ content of the book. The court asserted that Article 19 of the Constitution was subject to reasonable restrictions in the interest of public decency and morality, and therefore the section itself was constitutional.

The court upheld the aspect of the Hicklin test which was to consider obscenity solely in terms of ‘those who were open to such immoral influences’. The intent behind constructing the law as such was not to protect those who could protect themselves, but rather to protect ‘whose prurient minds took delight and secret sexual pleasure from erotic writings.’

However, in a departure from the Hicklin test, the court held that the mere presence of sex and nudity would not be enough to indicate obscenity. Rather, the matter which claimed to be obscene would have to be viewed in the context of the entire work. The only circumstances under which the publication of ‘obscene’ content would be justifiable was for public good. The condemnation of obscenity was posited to depend on the mores of the people and therefore, the propagation of any ideas on a public platform would necessitate that the interests of the society were considered.

Community Standards Test – a just interpretation?

In Aveek Sarkar v. State of West Bengal, the Supreme Court held the Hicklin test as incorrect for determining the obscenity content. Instead, obscenity should be determined from the point of view of an ‘average person’ whilst considering contemporary mores and national standards due to the dynamic nature of social values. The court deliberated on the obscenity of a semi-nude photograph of German tennis player, Boris Becker, with his ‘dark-skinned’ fiancée and actress, Barbara Feltus. The photograph was intended to signal opposition to racism and apartheid. While it was originally published German magazine Stern, it was reproduced in Sportsworld and Anandabazar Patrika, which were circulated in India. The Court replaced the Hicklin test with the community standard test which stated that obscenity would have to be read in the context of the message such obscenity intends to portray. A picture of a nude or semi-nude woman on its own could not be rendered obscene, unless it had the tendency to arouse lustful thoughts in an ‘average person’.

The difference between the Hicklin test and that of community standards primarily lay in who the subject was, from whose perspective obscenity was to be determine – while the former considered only those ‘open to immoral influences’, an uncertain term which imagines a class of persons who might fall within such a description, the latter clarified the litmus test to be the perspective of the ‘average person’. While the community standards test significantly watered down the paternalism perpetuated by the Hicklin test, it articulates no principled method for identifying the relevant ‘community’ or gauging its sentiment, thereby leaving judges to act as de facto moral arbiters, thereby risking the re-inscription of dominant, gendered and heteronormative norms under the guise of contemporary mores.

Morality and the Judicial Gaze – the injustice of community standards

The judgments of the Supreme Court of India broadly define obscenity as some content with the sole purpose of sexually arousing the consumer, with little engagement as to the substance of what is considered ‘sexually arousing’. As the US Supreme Court held in Cohen v. California, ‘one man’s vulgarity is another’s lyric’. A similar position was taken by the Kerala High Court whilst deciding whether a magazine cover of a woman breastfeeding her baby was considered obscene.

According to Ratna Kapur, the judgment in Ranjit Udeshi and the subsequent use of the Hicklin test underscores the deeper attitudes which inform the law of obscenity – that is, any representation of sex and sexuality is not a normal part of our humanity, but rather, an corrupting, poisonous influence from which ‘decent’ or ‘impressionable’ people must be protected. The tests laid down in the case ensured that virtually any sexually explicit representation would be found by the courts to be obscene, making sexual explicitness itself a proxy for obscenity. Even in Allahbadia’s case, the particular placement of sexuality and sexual behaviour within the family unit has remained the primary target for criticism, supporting Karpur’s proposition which places it outside the realm of acceptability.

Martha Nussbaum highlights the role of disgust in law, which invariably shapes conceptions of the obscene. The barriers a society has managed to place between itself, and the ‘disgusting’ has been considered a central determinant of the civilization sought to be achieved by law-making. Obscenity laws, therefore, become a site for penalising any representations that might evoke disgust. The evolution of what the law recognises to be ‘obscene’ underscores the pervasiveness of morality and social context in law. Nussbaum proposes that disgust is socially mediated, and the burden of such thinking often falls hardest upon unpopular groups – women, racial minorities and homosexuals. Such disgust implies a dichotomy between purity and contamination, with unpopular groups becoming a vehicle for a contamination which is actually shared by all people. Moreover, such projections, apart from being irrational, are a part of the systemic subordination faced by these groups.

By employing the vocabulary of social gain, impressionability of prurient minds and an unexplained conception of community standards, the positivist endeavour to separate the law or what ‘is’ from morality or what ‘ought to be’ becomes wholly futile. The existence of such vagaries within the law then, are not flaws, but essential features that regulate speech, expression and behaviour, with obscenity being a projection of how people ought to behave to avoid being penalised.

The protection of collective morality purported by obscenity laws is almost always directed at controlling certain kinds of sexual expression. Within this realm, procreative marriage is deemed to be the ideal form of sex, and anything outside it – recreational, unmarried, homosexual, non-monogamous or queer sex or masturbation, is unnatural, abnormal, disgusting and therefore, sanctionable.

Disgust is frequently the result of socially learned prejudice and thus, laws in response so such disgust subsume this prejudice. In this sense, obscenity law functions less as a neutral adjudicator of harm than as a regulatory mechanism for disgust. Nussbaum even goes so far as to argue that such law incentivises the commission of hate crimes. The juridical vocabulary of obscenity, whether framed through prurience, morality, or community sentiment, renders disgust as not merely a private response but a legally cognizable ground for censorship. Law thereby becomes a tool to police what society finds repulsive, projecting dominant anxieties about sexuality into the realm of sanctionable conduct.

Yet, Nussbaum highlights the unreliability of disgust as the foundation for law as it reflects a fear of contamination and an impulse to exclude, rather than laying out any principled measure of harm caused by conduct deemed to be obscene. If the aim of a constitutional democracy is to secure dignity and liberty, then a jurisprudence rooted in disgust inevitably undermines both. Nussbaum proposes that compassion, rather than disgust, should serve as the guiding effect for law. This would direct attention toward the actual harms suffered by persons, and foster a legal order that safeguards dignity without reinforcing stigma.

When applied to Allahbadia’s case in particular, the persecution of discomfort rather than tangible harm lends support to the arguments put forth by Nussbaum. By penalising any transgression from the normative, obscenity laws stifle dissent, which is foundational to democracy. From Hicklin, where the content in question was a pamphlet exposing the Church of Rome to Rajit Udeshi, wherein the book in question centred around an aristocratic woman’s affair – it is not only the perceived explicitness that becomes contentious, but rather the challenge that poses to normative ideals.

In State of U.P. v. Kunji Lal, the Allahabad High Court found that material having a ‘socially redeeming purpose’ including include sexual advice to married couples, and information on family planning would not be considered obscene. The underlying objective of the material in preserving heterosexual, procreative marriage was deemed to be ‘laudable’ and ‘acceptable’ and therefore was saved from penalisation. The implication clearly was that sexually explicit material is redeemable only when it is deemed by courts to have some social purpose or literary merit, without any engagement with the markers that define the existence of such merit.

Morality in Comedy?

This sanctity accorded by the law to the family unit is an especially pertinent aspect of the judicial and public responses to Ranveer Allahbadia’s joke. In this instance, the remark in question did not vilify sex or even the idea of parents having sex, but rather poked fun at the discomfort society harbours around openly acknowledging sexuality within the family unit. While the joke was arguably crass, it did not incite any real harm, nor was it directed at a particular community so as to be deemed offensive. This test of ‘harm’ flowing from obscene materials was affirmed in Ajay Goswami v. Union of India. However, the court recognised that the potential of content to cause harm to certain sections or age groups (such as children) within a society would not justify broad suppression of speech. Yet, this pertinent distinction was absent from the Supreme Court’s intervention in Allahbadia’s case, and the moment was framed as a grave moral transgression towards the ‘society’ as a homogenous unit, with no enquiry into the intended audience for the content in question.

Ultimately, the perceived tastelessness of Allahbadia’s joke, and indeed the broader comedic tenor of India’s Got Latent, lies in the eye of the beholder. The show caters to a specific audience that willingly chooses to engage with such humour, and the aspect of consent in engaging with such content is notably absent from discourse surrounding this particular controversy. In Bobby Art International v. Om Pal Singh Hoon, a similar test was relied on whilst upholding the producers’ right to freedom of expression in Bandit Queen, wherein it was held that scenes containing nudity and expletives could not be excised merely because they shocked or offended sensibilities. Justice Bharucha emphasised that if such scenes advanced the film’s central message, they should not be censored, and that an ‘A’ rating would suffice as adult citizens could be relied upon to comprehend the message and respond to it intelligently. Recognising the centrality of the audience to which content decisively caters to implies that such an audience, who knowingly choose to access content, assume the responsibility of engagement. Under such circumstances, the state’s role remains limited to ensuring adequate caution rather than suppressing expression altogether.

Allahbadia’s case in particular raises deeper questions about the limits of judicial tolerance toward challenges to dominant cultural constructs – especially that of the sanctity of the family. Allahbadia’s joke may have been in poor taste, but at its core, it unsettled normative ideals of the Indian family – ideals that the law often protects with an air of sanctimony.

Was the reaction proportionate to the offence, especially when the content was part of a voluntary digital space and not broadcast into homes unsolicited? Punishment for obscene content that goes against community sentiments in itself implies a limitation on the fundamental right to free speech, and therefore, such limitations must be tested against the standard of proportionality, requiring a legitimate aim, a rational nexus with that aim, and the use of the least-restrictive means available. While protecting public decency could constitute a legitimate aim, the dearth of such an endeavour and the context within which it operates necessitates deeper engagement. This is because ‘public decency’ itself is a notoriously vague and malleable standard that has been historically entrenched in patriarchal, heteronormative, and conservative values. Moreover, where audiences have voluntarily consented to engage with the content, as in opt-in comedy or digital platforms, less intrusive measures such as age classifications or advisories would constitute far more reasonable regulatory responses, as they restrict access without unreasonably limiting expression, and thus stand in marked contrast to the disproportionate approach of condemning or criminalising the speech itself.  Such blanket condemnation or criminal sanction risks chilling lawful expression and collapsing the nuanced distinction between offence causing acutal harm and mere discomfort.

When obscenity is defined not merely by harm or prurience, but by the discomfort it causes to entrenched institutions, are we still evaluating it by constitutional standards, or by the cultural anxieties of the bench? In Ajay Goswami, the court observed the US Supreme Court decision in United Stated v. Playboy Entertainment Group wherein it was held that prohibition of a particular expression or opinion must be justified by more than a mere desire to avoid the discomfort and unpleasantness accompanying an unpopular viewpoint. Therefore, when read alongside Allahbadia’s statements, the controversy and judicial response therein can be best understood as a reaction born out of discomfort, rather than actual harm. The positivist endeavour to separate law from morality does not conceive that in the implementation of the law itself, there is much room for moral judgments to be made. The ‘community standards test’ laid down in Aveek Sarkar, which continues to be the lens through which obscenity is tested, suffers from the problem of how judge’s should ascertain the moral sentiment of the community. HLA Hart doubts the assumption that immorality jeopardizes the existence of society, holding instead that there is no evidence to show that deviation from accepted sexual morality could be tolerated by law and that such permissiveness would ultimately allow conventional morality evolve. Yet, obscenity laws and the judicial codes that apply them demonstrate the limits of this positivist separation: in practice, determinations of obscenity become saturated with moral judgment, with judges relying on contested notions of decency and civility to police sexuality under the guise of applying neutral legal standards.

Society as a Practical Reality

In A & B v. N.C.T. of Delhi, a young, newly married couple were accused of obscenity under Section 294 of the IPC. In dismissing the FIR filed against the couple, the court stated that an act of affection between a married couple could not be construed as obscene. Even a supposedly ‘progressive’ decision of the court confined itself to expressions of affection within the heterosexual marital bond. Does obscenity then, relinquish itself at the door of such a socially acceptable union?

Similarly,  in the UK in 1986, two gay men were charged with ‘breach of peace’ for kissing and fondling at a public bus stop. In holding them guilty, the court stated that the sexuality of the couple was unrelated to its decision. A criticism that would accrue to such a judgment, that insists on placing itself in a social vacuum, is the denial of the court to engage with cultural meaning in determining appropriateness of behavior.

To deny the relevance of the circumstances surrounding a purportedly obscene act – sexuality, marriage, geography, class, caste – is a refusal to wholly address the practical reality of the law – which is a product of conflict between different institutions and interpreters. The law’s practical reality lie beyond its statutory form, in institutions which product obedience, and shape legitimacy. It is this reality of the law, then, which explains why the same act (of affection, and obscenity) produce different responses depending on the gender, marital status and temporality of those who partake in it. This adjudication of discomfort, in turn, entrenches arbitrariness in the law, as such analyses fails to ground itself in anything other than the variable dictates of social morality. This fails to create any reasonable classification between an obscene and non-obscene act, instead allowing the same act to be judged differently depending on who performs it and in what context. The result is a jurisprudence that collapses into subjectivity, blurring the line between judicial interpretation and the reproduction of prevailing prejudices.

This arbitrariness exposes what Peter Goodrich calls the ‘excluded domains of law’ – the desires, emotions, and anxieties that courts disavow in doctrine but nonetheless, rely upon in practice. Goodrich underscores the potential of these excluded, repressed domains of law to disrupt the complacent truths of modernist jurisprudence. By drawing attention to the desires, emotions, and anxieties that legal theory tends to ignore, he posits the existence of an ‘institutional subconscious’, unsettling the presupposed rationality of legal practice. Normative ideals about morality, sexuality, or civility become embedded in this subconscious, silently shaping interpretation and reinforcing the very repressions that courts and institutions claim to transcend.

The centrality of the interpreter, that is, the judge, in the formation of law makes it necessary to recognize the subjectivity of meaning they give to the law. Especially in India, judges tend to be drawn from only from a select few sections of the population. The sense of what judges consider obscene therefore need not reflect the predominant opinion of what the bulk of society considers obscene. Moreover, the uncritical use of terms like ‘civilised societies’ raises important questions about who defines such a society and who is included within it, risking the reinforcement of existing social hierarchies through the law.

In Apoorva Arora v. State (Govt. NCT of Delhi), the Supreme Court, while quashing the prosecution order for the use of vulgar language in a web series, held that while the literal meaning of the terms alluded to sexual acts, their usage would not arouse sexual feelings in a viewer of prudence. This was relied upon by Allahbadia to argue that mere usage of profanity would not amount to obscenity. However, the court was unyielding in its examination of obscenity through the parameters determined by a civilised society. This shows that the law’s practical reality is not neutral or universal; it is shaped by the normative parameters judges choose to privilege, and in doing so, often excludes other ways of speaking, seeing, and living.

Conclusion

Early jurisprudence on obscenity, such as in Ranjit Udeshi, fixated heavily on ideas of moral absolutism – the notion that the law ought to set a moral standard to protect society from forces of moral corruption. Its evolution into the community standards test in Aveek Sarkar acknowledges the shifting nature of societal morality. This echoes Oliver Wendell Holmes’ proposition that law and society exist in a state of constant flux. On this account, the test has little to do with morality, and more to do with being a useful tool for societal regulation based on the needs of society as a whole.

Sherlock Holmes in Sir Arthur Conan Doyle’s 1902 Novel The Hound of the Baskervilles, when remarking on the quality of a particular painting summed up an idea that has plagued judges, jurists, and scholars since time immemorial: ‘I know what is good when I see it’. In a similar fashion, Justice Stewart of the United States Supreme Court, when presented with the question of defining obscenity stated, “I know it when I see it”. This strikes at the very heart of the jurisprudence of obscenity. Who is the ‘I’ in this case? The judge or the community? Why do they see what they see? Is their gaze the sole repository of cultural meaning, or does it instead expose the anxieities and ideals which become elevated as universal truths? Cases concerning obscenity have historically proven that the law in itself is not an isolated entity, but rather, manipulates itself to fit social context. Ultimately, the court has remained committed to these historical positions in Allahbadia’s case, representing a staunch refusal to separate a truly obscene statement from a questionable joke. Allahbadia’s case especially represents the widening gulf between constitutional and social values: while one promises freedom and individual liberty (albeit, to reasonable restrictions), the other defers to conservative family values as a metric of acceptability.

*Jade da Silva is a fourth-year law student at Jindal Global Law School.