Raj Kundra’s vulgarity versus porn conundrum

When Raj Kundra was arrested for putting out explicit content on an app, his lawyer argued that he could not be held without bail because these apps streamed content that may be ‘vulgar’ but were not porn! Is that a legally credible defence?

Bear in mind that Kundra was arrested for more than just porn. The complainant accused him of cheating, obscenity and voyeurism under our Penal Code, publishing and transmitting material containing sexually explicit acts through electronic media under our IT Act, and under the Indecent Representation of Women (Prohibition) Act (‘IRWA’) too.

Kundra’s lawyer refuted these allegations on the basis that it is only ‘actual intercourse’ that classifies as porn and anything more restrained would be merely vulgar. Ingenious as it may be, this is not an argument that finds resonance in our penal law. The basic thrust of the allegations against Kundra is the streaming of obscene material through his app, defined in Section 292 as material which is:

“…lascivious or appeals to the prurient interest…..if taken as a whole, such as to tend to deprave and corrupt person, who are likely … to read, see or hear the matter contained or embodied in it”.

You will notice that it is obscenity that is sought to be punished, and not either vulgarity or porn, howsoever defined.

In 1965, obscenity first came up for definitive pronouncement by the Supreme Court in the case of Ranjit D. Udeshi vs State Of Maharashtra. In this case, the accused sold an unexpurgated edition of (what else!) ‘Lady Chatterley's Lover’. In culmination, the Supreme Court adopted the Victorian-era Hicklin test and held that

“the tendency of the matter charged as obscene must be to deprave and corrupt those, whose minds are open to such immoral influences and into whose hands a publication of the sort may fall…In judging a work, stress should not be laid upon a word here and a word there, or a passage here and a passage there. The work as a whole must be considered… In this connection the interests of contemporary society and particularly the influence of the impugned book on it must not be overlooked.”

Over the years, the Supreme Court has successively narrowed the scope of obscenity. A mere five years after approving the Hicklin test, in 1970, the court adopted a far more liberal approach when it ruled on the documentary 'A Tale of Four Cities’. This documentary contained extensive footage from Bombay's red-light district. Was this footage obscene? The Supreme Court didn't think so, observing that,

“Sex and obscenity are not always synonymous and it is wrong to classify sex as essentially obscene or even indecent or immoral.…Therefore it is not the elements of rape, leprosy, sexual immorality which should attract the censor's scissors but how the theme is handled by the producer. We may view a documentary on the erotic tableaux from our ancient temples with equanimity or read the Kamasutra, but a documentary from them as a practical sexual guide would be abhorrent."

The Court later adopted a similar approach in the 1996 case of Bobby Art International vs Om Pal Singh Hoon when Shekhar Kapur's graphic depiction of Phoolan Devi's (1) rape by the dacoit Babu Gujjar and (2) subsequent gang rape and naked parade in Behmai village, come up for adjudication before the court. Was frontal nudity always obscene? Once again, the Supreme Court took the liberal view.

"Nakedness does not always arouse the baser incident. … 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: …We find that the judgment under appeal does not take due note of the theme of the film and the fact that it condemns rape and the degradation of and violence upon women"

Although the court had moved the goalposts from tasteful depiction to contextual relevance, it still took 20 years for the Hicklin test to receive its formal burial. In 2014, the Supreme Court finally adopted the American Roth Test in Aveek Sarkar & Anr vs State Of West Bengal. In this case, the German magazine ‘Stern’ had published a picture of a naked Boris Becker, the tennis legend, with his equally naked dark-skinned girlfriend Barbara Feltus, whose breasts he covered with his hands. The picture is still all over the internet. The Indian magazine “Sports World”, reproduced the article with this photograph in 1993 under the caption “Posing nude, dropping out of tournaments, battling Racism in Germany, Boris Becker explains his recent approach to life”. That upset a venerable member of the Calcutta bar who then filed a complaint under Section 292 of the penal code.

The Supreme Court was not sympathetic, noting that

“regard must be had to the contemporary mores and national standards and not the standard of a group of susceptible or sensitive persons…A picture of a nude/semi-nude woman, cannot per se be called obscene unless it has the tendency to arouse … exciting lustful thoughts. Applying the community tolerance test, the photograph, in our view, has no tendency to deprave or corrupt the minds of people in whose hands the magazine Sports World or Anandabazar Patrika would fall.”

India’s obscenity law saw its next definitive development two years later in the case of the politically scandalous movie 'Udta Punjab'. During the release process, CBFC had ordered 13 different deletions including verbal profanity, public pissing, scenes of intravenous drug use, the inclusion of a common Punjabi homily in the dialogue, indeed the reference to Punjab itself. In Phantom Films Pvt. Ltd. v. CBFC [Bombay High Court order of June 13th, 2016], the court overruled these cuts, observing that

"The human sensibilities are not offended by vulgarity, obscenity or depravity. … The story must be read and considered in its entirety. … If a strata of society habituated to indulge freely in vulgar abuses are shown as indulging in the same without in the slightest manner glorifying them or their language, then, we do not see anything objectionable in the words."

‘Udta Punjab’ represents the culmination of a process that started with ‘Bandit Queen’. From a point in time in 1970 when the Censor Board was mostly concerned with tasteful thematic handling of disquieting subjects, it had reached a point where filmmakers became free to show any subject so long as the protagonists are 'habituated' to them. This is the main reason why OTT movies like ‘Sacred Games’ are able to depict more on-screen brutality than ever before, a process so relentless and unidirectional that its only logical endpoint must inevitably culminate in the removal of all limits. How long is it before our films will literally leave nothing to the imagination?

Given the law as it has now evolved, it would take an extraordinarily optimistic prosecution to believe that it can obtain a conviction against Kundra under Sec 292 IPC.

That takes us to allegations made against Kundra under the IT Act. The test here is transmission of “sexually explicit act or conduct”. Obviously, this is test at loggerheads with depiction of women in a manner that the Supreme Court’s decisions has repeatedly found unexceptional. Is it okay to show Bandit Queen in a theatre but not over the internet? Bandit Queen was shown in theatres, and the full movie is now on Youtube. OTT movies move along the same IT networks that Kundra’s app does: how can the law sustain different standards for them?

Finally, there is the IRWA. This law defines ‘indecent representation’ as “the depiction … of the figure of a woman; her form or body or any part thereof in such way as to have the effect of being indecent, or derogatory to, or denigrating women, or is likely to deprave, corrupt or injure the public morality or morals”.

IRWA dates to 1986, a time when the Hickley test still ruled judicial minds. The cheese has now moved. It is true that the language of this law is far broader than that of Section 292. Still, one would expect that should this law be challenged in a court of law, the results may be much closer to the new jurisprudence on obscenity than it would to the sensibilities of times long past. Any which way I look at it, it seems to me that the state can make an example of Kundra through the debilitating dehumanization of the legal process, but at the end of the day, it would be hard pressed to get a conviction merely because women were shown in various stages of undress, sometimes with suggestive movements and aural stimulation.