Jun 27, 2024 05:28 UTC
| Updated:
Jun 27, 2024 at 05:28 UTC
Study Notes: Hicklin Test
Introduction
Article 19(1)(a) guarantees every citizen the right to freely express themselves. This means people can speak their mind, share ideas, write, paint, and express themselves in any peaceful way they choose. It’s like saying everyone has the freedom to be themselves and share what’s important to them without fear. However, Article 19(2) of the Indian Constitution allows for legislative limitations on the right to free expression in the sake of decency or morality. The word obscene comes from the Latin word “obscenus”, which means foul, repulsive, or detestable. Obscenity can be considered as displeasing content that has the ability to morally degrade individuals. The Oxford dictionary defines obscene as offensive or disgusting by accepted standards of morality and decency. Although, despite having a dictionary definition, the precise interpretation of ‘obscene’ remains unclear and ambiguous. Obscenity is often defined differently around the globe influenced by norms and the historical evolution of cultures.
To deal with this arguable term obscenity the Hicklin test was introduced which states that material could be deemed obscene if it had the tendency to deprave and corrupt those whose minds were open to such immoral influences, particularly children and vulnerable individuals.
Historical Background
The modern English law of obscenity began with the Obscene Publications Act 1857, also known as Lord Campbell’s Act. Lord Campbell, the Chief Justice of Queen’s Bench, introduced the bill, which provided for the seizure and summary disposition of obscene and pornographic materials. The Act also granted authority to issue search warrants for premises suspected of housing such materials.
Later named for Benjamin Hicklin, a nineteenth-century court recorder in London, England, the Hicklin Test is an obscenity standard that originated in an English case known as Regina v. Hicklin[1].
In this case, a pamphlet intended to reveal the supposed depravity and abuses of the Roman Catholic Church during the confessional process was claimed to be obscene. The court established the “Hicklin test” to address the issue of obscenity, ruling that the perpetrator’s motive was irrelevant. The test for obscenity centered on the material’s impact on the most susceptible minds. In other words, if the material had a tendency to corrupt or deprive those likely to read it, it was considered obscene.
And Lord Chief Justice Alexander Cockburn, writing for the Court of Queen’s Bench, supplied a broad definition of obscenity, based on ascertaining “whether the tendency of the matter is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall.”
Hicklin Test is made up of six major components, which are as follows:
a) The “tendency to deprave and corrupt, or to suggest to readers thoughts of a most impure and libidinous character.”
b) The effect on minds vulnerable to immoral influences, without regard for the reasonable person criterion, but rather any individual who may come into contact with the information.
c) The assumption of the wrongdoer’s purpose based on the language used, independent of the wrongdoer’s true objective, which may lead to difficulty even for people with social or challenging motives.
d) Ignore present conditions or the sort of literature popular at the moment.
e) Consideration of the public’s access to the disputed content.
f) The capacity to individually evaluate any piece, part, or passage of the material and consider the whole work obscene based on that evaluation.
Essential elements of Hicklin Test
The Hicklin Test determined obscenity based on the impact of isolated passages upon the most susceptible members of society, including children. Here are the main essentials of the Hicklin Test:
1. Tendency to Deprave and Corrupt: Under the Hicklin Test, material was considered obscene if it had the tendency to “deprave and corrupt” those whose minds were open to such immoral influences, particularly children and individuals with impressionable minds.
2. Isolated Passages: Instead of considering the work as a whole, the Hicklin Test focused on isolated passages or excerpts. If any part of the material had the potential to corrupt or deprave susceptible individuals, the entire work could be deemed obscene.
3. Standards of the Most Vulnerable: The test didn’t consider the standards of the average person or the community at large. Instead, it focused on the potential impact on the most vulnerable members of society.
Indian Legislations Dealing with Obscenity
India has a complex framework of laws designed to regulate obscenity, rooted in its cultural values, and historical context. These legislations are aimed at balancing the protection of public morality and decency with the freedom of expression. The primary statutes addressing obscenity include the Indian Penal Code (IPC), the Information Technology Act, and various other specific legislations.
Indian Penal Code, 1860
Sections 292 of IPC criminalises sale, distribution, import/export, publicly display and even possession of obscene material. It states that a material is obscene if it is lascivious, or appeals to prurient interest, or tends to deprave and corrupt those likely to encounter it.
Section 293 further reinforces this by imposing harsher penalties for the sale and distribution of obscene materials to young persons under the age of 20. Section 294 penalizes obscene acts and songs in public places, making it an offence to engage in any obscene act in any public place or to sing, recite, or utter any obscene song, ballad, or words in or near any public place.
Bhartiya Nyaya Sanhita, 2023
From 1st July 2024 Bhartiya Nyaya Sanhita will be implemented replacing Indian Penal Code, 1860 (IPC). The new Act includes provisions concerning obscenity in Sections 294, 295, and 296. These sections address obscene material, including content in electronic form.
Indecent Representation of Women (Prohibition) Act, 1986
This Act targets the indecent representation of women in advertisements, publications, writings, paintings, and figures. It prohibits any form of representation that is derogatory to women or is likely to deprive, corrupt, or injure public morality or morals. Section 3 and section 4, in particular, prohibit advertisement, creation and publication of material containing indecent representation of women. The law was enacted to curb the objectification and exploitation of women through obscene representations in various media.
Cinematography Act 1952
The Central Board of Film Certification is authorized by this Act to oversee and accredit motion pictures to guarantee that no objectionable or obscene material is included in them.
Information Technology Act, 2000
With the advent of the internet, the scope of obscenity law expanded under the Information Technology Act, 2000. Section 67 of the IT Act specifically addresses the publication and transmission of obscene material in electronic form. This includes the distribution and publication of pornographic content online, with provisions for imprisonment and fines.
Section 67A and 67B of the IT Act impose stricter penalties for publishing or transmitting material containing sexually explicit acts or conduct and material depicting children in sexually explicit acts, respectively. These sections aim to tackle the challenges posed by the digital age, where obscene content can be easily disseminated online.
Application of Hicklin Test in Indian Scenario and its Criticism
Due to its very restrictive and limited approach, the Hicklin Test has drawn a lot of criticism. Regardless of whether they were likely to come into touch with the publication or not, the test’s focus was on how it affected the most vulnerable people of society. This method disregarded the overall aesthetic or literary value of the piece as well as its context. For the following grounds, the Indian Supreme Court dismissed the Hicklin Test:
a) Outdated and Victorian-era Standard: The Hicklin test originated in 19th-century England and focuses on the effect of potentially corrupting material on vulnerable or sensitive individuals.
Hicklin test was discussed in India for the first time in Ranjit D. Udeshi v. State of Maharashtra[2]. The partners of a bookstore were prosecuted under section 292 of the IPC for selling copies of an obscene book, Lady Chatterley’s Lover, by DH Lawrence. The Supreme Court upheld the constitutionality of Section 292 of IPC and adopted the Victorian-era Hicklin test. Applying this standard, Lady Chatterley’s Lover was determined to be obscene as it was found to contain material that had potential to corrupt sensitive minds.
b) Restriction on Freedom of Expression: Hicklin test restricts freedom of expression guaranteed under Article 19(1)(a) of the Indian Constitution, as it allows for censorship based on the effect on sensitive individuals rather than broader societal norms. Hicklin test faced significant criticism in India because it could effectively categorize almost any unconventional material as obscene thus curbing freedom of Speech and Expression.
This was recognized in K.A. Abbas v. Union of India[3], where the censorship of a film on the grounds of obscenity by the Central Board of Film Certification was challenged, arguing that it violated the right to free speech and expression. While the Apex Court upheld the necessity of censorship, it also recognized the limitations of the Hicklin test and emphasized a more balanced approach, taking into account community standards and artistic merit.
Again, in Samaresh Bose v. Amal Mitra[4], the Calcutta High Court emphasized the need to interpret obscenity laws in the context of contemporary Indian values, moving away from strict adherence to the Hicklin test.
c) International Standards: Hicklin test does not align with international standards of freedom of expression and obscenity laws, which have evolved to focus more on broader societal impact rather than individual sensitivities.
In Bobby Art International v. Om Pal Singh Hoon[5] the Supreme Court of India acknowledged the importance of considering international standards when evaluating obscenity. It noted the global perspective on freedom of expression and social issues in media, stating that artistic works should be judged in their entirety and context. The Court highlighted that the focus should be on the overall impact and message of the work, ensuring that significant artistic and social value is not unjustly censored, aligning with contemporary international standards.
d) Evolution of Societal Norms: Indian society has evolved significantly since the introduction of the Hicklin test, with changing cultural and social values that are not adequately reflected in Victorian-era standards.
In Ajay Goswami v. Union of India[6], the Delhi High Court examined how the Hicklin test applies in contemporary India. This case contributed to the ongoing evolution of obscenity laws in India by reaffirming the need for a balanced approach that respects both freedom of expression and societal interests in morality and decency, stressing that any limits on speech must be reasonable and justified. Furthermore, the Court ruled that when evaluating a publication accused of containing obscene content, it should be assessed as a whole, with each component examined to determine if it is grossly obscene and has the potential to corrupt.
e) Subjectivity and Lack of Clarity: The Hicklin test’s reliance on subjective interpretations of what may corrupt or deprive individuals leads to inconsistent application and uncertainty in legal rulings.
For all these reasons, in Aveek Sarkar v. State of West Bengal[7], the Supreme Court decisively dismissed Hicklin’s obscenity test in favor of community standard test and stated that the concept of obscenity evolves over time. The court emphasized the importance of considering contemporary societal norms and national standards, rather than the sensitivities of specific individuals. The Community standards test was endorsed, focusing on whether the overall theme or content of a work breaches prevailing community standards.
Today, contemporary community standard approach is adaptable to evolving social contexts and is perceived as more equitable and reasonable in determining what constitutes obscenity.
Difference between Hicklin Test and Community Standard Test
| Criteria | Hicklin Test | Community Standard Test |
| Focus | The Hicklin Test focuses on the potential of isolated passages or elements within a work to corrupt or deprave susceptible individuals, particularly children and those with impressionable minds. | The Community Standard Test, such as the one articulated in the Miller Test, focuses on the prevailing attitudes and values of the local community in determining whether material is obscene. |
| Criteria | It evaluates material based on its tendency to “deprave and corrupt” and doesn’t necessarily consider the work as a whole. Obscenity is determined by the impact on the most vulnerable members of society rather than the standards of the community at large. | It typically involves evaluating material based on whether it violates community standards regarding what is considered obscene, indecent, or offensive. This may include considerations of artistic, literary, political, or scientific value. |
| Scope | It is a more subjective and broad approach, often criticized for its lack of consideration for the work’s overall context, artistic merit, or contemporary societal standards. | The Community Standard Test is more objective in that it considers the standards of the community as a whole, rather than focusing on the potential impact on vulnerable individuals. It also considers the work as a whole, rather than isolated passages. |
Conclusion
In conclusion, the Hicklin Test relies on the potential corruptive impact of isolated elements within a work, particularly on vulnerable individuals, while the Community Standard Test assesses material based on its conformity to the prevailing standards of the community regarding obscenity, considering the work as a whole.
[1] 11 Cox C.C. 19 (1868).
[2] (1965) 1 S.C.R. 65.
[3] (1970) 2 S.C.C. 780.
[4] 1986 AIR 967.
[5] (1996) 4 SCC 1.
[6] (2007) 1 SCC 143.
[7] (2014) 4 S.C.C. 257.
