The naked truth: What do Indian laws say about nudity and obscenity?

The law hasn't clearly explained what can or cannot be regarded as obscene; none of its provisions establish a link between nudity and obscenity

The Kerala High Court on Monday said that the mere sight of the naked upper body of the woman should not be deemed to be sexual by default and the depiction of the naked body of a woman cannot per se be termed obscene, indecent, or sexually explicit. The ruling came in a case against a 33-year-old women's rights activist, who was chargesheeted in 2020 under various sections of the Protection of Children from Sexual Offense (POCSO) Act, IT Act, and Juvenile Justice Act for allowing her two minor children to paint on the semi-nude upper part of her body.

The high court ruling brings into the spotlight laws around nudity and obscenity in India. Only last year, An FIR was registered against Ranveer Singh for posing nude for pictures for a magazine. There too, the complainant had argued India is a land of culture and such photos could negatively impact children.

But what does India’s law have to say about public nudity?

There are two specific colonial-era provisions that deal with obscenity under the Indian Penal Code. Section 292 of IPC deals with the publication, sale (including import and export), exhibition, etc of things considered to be obscene. The section prescribes punishment of up to two years and a fine of up to Rs 2,000 on the first conviction. For the second conviction, one can be jailed for up to five years and fined Rs 5,000.

Section 293 of IPC deals with who can be booked for this offence. This section says anyone who offers or attempts to sell, rent, distribute, display, or circulate any obscene item to anyone under the age of 20 shall be punished. The maximum punishment for the first conviction is imprisonment for three years and a fine of up to Rs 2,000 and for the second conviction, it is seven years with a fine of up to Rs 5,000.

The next provision, Section 294 of IPC, defines what can be considered an obscene act. The section says whoever, to the annoyance of others, (a) does any obscene act in any public place, or (b) sings, recites or utters any obscene song, ballad or words, in or near any public place, shall be punished with imprisonment that may extend to three months, or with fine, or with both.

However, none of them clearly explain what may be called “obscene.” In fact, none of the sections identify nudity as a criterion related to obscenity. Further while Section 292 says, for a book or object to be obscene, it must be lascivious or prurient or have the effect of depraving or corrupting someone. However, the terms “lascivious” and “prurient” have not been clearly defined, leaving room for interpretation by the judiciary.

Two cases stand out as examples of how the Supreme Court has sought to define obsecenity. In 1964, in the “Ranjit Udeshi vs State of Maharashtra” case, the Supreme Court had to rule whether D H Lawrence’s novel, Lady Chatterley’s Lover, was obscene. Ranjit Udeshi was one of the four partners of a firm that owned a bookstore. All the partners were prosecuted under section 292 of IPC, for selling copies of the allegedly obscene book. Udeshi challenged the conviction in SC, which rejected the challenge.

To resolve this, the Supreme Court referred to the Victorian Era Hicklin’s test. To pass the Hicklin test, the matter charged as obscene must deprive and corrupt those, whose minds are open to such immoral influences and into whose hands a publication of this sort may fall.

However, in the Aveek Sarkar case of 2014, the Supreme Court did away with the Hicklin test. The German magazine Stern published an article with a picture of famous Tennis player Boris Becker, posing nude with his fiancée and film actress Barbara Feltus. The photograph, which was taken by none other than her father, was reproduced by the Anandabazar Patrika. Aveek Sarkar, a lawyer practicing at Alipore Judge’s Court, Kolkata, filed a complaint under Section 292 IPC. Here the SC adopted the American Roth test. As per this test, obscenity was to be evaluated like an average person would, applying contemporary community standards. Thus the court ruled in favour of Sarkar.

The Kerala HC’s decision therefore comes as a breath of fresh air, and a step away from these two precedents. “The male body is displayed in the form of six-pack abs, biceps etc. We often find men walking around without wearing shirts. But these acts are never considered to be obscene or indecent. When the half-nude body of a man is conceived as normal and not sexualised, a female body is not treated in the same way. The intention of the petitioner in making and uploading the video was to expose this double standard prevailing in society,’’ said the court.  

Samarjit G Pattnaik, Partner at legal firm Karanjawala & Co, also points out that the decision in fact upholds women’s fundamental rights. He says, “The Kerala High Court should be commended for making it clear that women have a right to bodily autonomy. The judge in this instance found that it was acceptable for a mother to allow her children to paint her body. If their rights were not acknowledged, it would simply be a violation of women's fundamental rights, which are protected by the constitution under articles 14, 15, 19, and 21.”