Let’s take you back to 1974, when Pooja Bedi’s mother Protima Bedi was captured running naked on Mumbai’s Juhu beach for a newly launched magazine. Even though the idea behind the streaking was to show freedom and liberation, the act raised quite a lot of eyebrows and stirred up a controversy.
In 1995, Milind Soman, Madhu Sapre and six others were charged for obscenity over a photoshoot for a shoe brand ad. The case went on for years until they were acquitted after the court ruled that it was impossible to label the ad as obscene.
Likewise when Mamta Kulkarni posed topless for a magazine cover in 2005, she was exonerated by the Bombay High Court in the case filed against her. Shilpa Shetty is still pursuing the 2007 obscenity case involving Hollywood actor Richard Gere where he had planted a kiss on the actress’ cheek and sent a shockwave through traditional Indian households.
When Twinkle Khanna unzipped hubby Akshay Kumar’s pants at a fashion event in 2009, the couple was arrested on the charges of ‘obscenity in public’ after a social activist filed a complaint. Akshay and Twinkle not only had to apologise in public, but the latter had to pay a fine of Rs 500 to get bail. On the other hand, Akki walked with a clean chit, irrespective of the fact that he was the one to insist on the unzipping!
In 2020, Poonam Pandey and her then husband Sam Bombay were charged by the Goa police for shooting an obscene video at the state-owned Chapoli dam in Canacona area. The said matter is pending adjudication.
In this week’s #BigStory, we decode the buzz word of the week ‘obscenity’ through the lens of legal experts and also seek perspectives from professional photographers, filmmakers and artistes. Read on.
‘Obscenity’ as per the law
The word ‘obscenity’ is so vague that it has no absolute definition under the Indian Penal Code or the Information Technology Act. Lawyer Ameet Naik of Naik Naik & Co states that the word ‘Obscene’ under Black Law dictionary is interpreted as having subjective connotations. He says, “While there are several cases where offences relating to obscenity have been alleged against celebrities in relation to ad films, videos, print advertisement etc, the courts have taken a lenient view while considering what amounts to “obscenity” under law. The courts have acknowledged that obscenity is quite subjective and is required to be considered on a case to case basis.”
Obscenity on social media
Different social media platforms have their own detailed community and content guidelines to prevent instances of ‘obscenity’. Ameet Naik points out Instagram guidelines that state “there are times when people might want to share nude images that are artistic or creative in nature, but for a variety of reasons, we don’t allow nudity on Instagram. This includes photos, videos, and some digitally-created content that show sexual intercourse, genitals and close-ups of fully-nude buttocks”.
Advocate Zameer Nathani has defended several legal matters against Ekta Kapoor and Balaji Telefilms, including the obscenity cases filed during the release of Vidya Balan’s ‘The Dirty Picture’. He points out another important discussion that has not been addressed yet, when it comes to Ranveer’s case. “One has to consider the impact of the nude or semi-nude photos on the minds of the youth or children, especially minors, who would have access to the same due to the digital world we live in. All this will culminate into the registering of an offence under various sections of the Indian Penal Code. Since the semi-nude photo is available on the internet or through digital media, the Information Technology law also will be applicable,” he says.
The laws governing obscenity explained!
Now, we’ve understood ‘obscenity’ is a subjective matter and the Indian courts have had a lenient stance in cases involving nudity or obscenity. What may seem to be obscene to a person may not be obscene at all to another. “The obvious test of obscenity is whether there is a tendency to deprave and corrupt those minds that are open to such immoral influences and into whose hands, a publication of this sort, may fall. The answer to this, may be yes for some, and it can be no for another section of people. The test of obscenity would further depend on how the minds of the young of either gender, or even older people will react to thoughts of a most impure and libellous character,” explains Zameer Nathani.
According to Section 292 of the Indian Penal Code, any individual whose photo may tend to deprave and corrupt other persons having regard to all relevant circumstances including advertising, uploading etc. can be liable for the offence.
Section 293 of the IPC prohibits the sale and distribution of obscene objects to young people (young person is any person under the age of 20 years).
Article 19 of Constitution of India states that there is an exception against complete protection on the freedom of speech and expression in favour of laws like Indian Penal Code etc., which impose restrictions in the interests of public decency or morality.
Section 67 of the Information Technology Act outlines punishment for publishing/transmitting obscene material in electronic form i.e. uploading the photograph on a social media site or electronic transmission of or publication of sexually explicit material.
“Additionally, the National Human Rights Commission, State Human Rights Commission and the Courts including High Courts and Supreme Court of India can take suo moto cognisance calling for an investigation into the matter if it can be deemed that an offence has been made,” adds Nathani. The punishment can vary depending on the nature of the offences, leading to imprisonment and/or fine.
Actress Shilpa Shetty recently moved court seeking discharge from the 2007 obscenity case involving Richard Gere. Her lawyer Prashant Patil explains, “Richard Gere kissed her on her cheek which is not even close to what we discussed about obscenity. But again the intention was a social campaign for AIDS awareness. They wanted to pass on a social message through a Hollywood actor that kissing on cheeks does not spread AIDS.”
Zameer also recalls ‘The Dirty Picture’ case, which created enormous legal issues on obscenity. “A case was filed making Ekta Kapoor, Balaji Telefilms, Vidya Balan etc. as parties and alleging that the hoardings and posters were corrupting the minds of people and causing harm to society including a unique case where the petitioner said that some motorists ended up in accidents watching the objectionable posters of the actress Vidya Balan and the court directed the police to register an FIR under Sections 292 of the Indian Penal Code,” he shares.
Does Ranveer’s photoshoot amount to an offence?
Shilpa Shetty’s lawyer Prashant Patil simplifies stating that there are three influences – one is the Indian Penal Code, two is the indecent representation of Women (Prohibition) Act, and third is the Information and Technology Act. “The intention behind the act is important. For example, a person is expressing nudity out of his own consent, say, to spread a social message. Then the court says it will not amount to any of these offences because the message is important. When it comes to the three Acts, one has the freedom and the fundamental right to express their emotions the way they want, with clothes or without. Whether posting nudes on social media will amount to offence under any of these acts? The answer is no, until and unless an allegation is made that the man did it to outrage the modesty of a woman and he did so intentionally. That is not the case here (In Ranveer’s case), so IPC is ruled out. If we look at the Information and Technology Act, again the offence is when sexually explicit content involving two people is shared with intent. So Ranveer’s case does not come under obscenity. If this petitioner directly approaches the Supreme Court, it will be clubbed and quashed,” he says.
However Zameer has a different opinion. He terms Ranveer’s photoshoot as semi-nude and not nude. Weighing in on the case, he says, “The semi-nude photoshoot could prove dangerous not only for Ranveer Singh but also for the photographer and all others involved, as it is not only an offence of obscenity, but also its impact on young minds or effect on children who would be exposed to such a photograph. An ‘offence against the social fabric and culture of the society’ can be classified as various offences under Indian Penal Code from the perspective of obscenity to public nuisance, to a information technology law violation as the photo was uploaded on digital platforms and made accessible to all. The other disadvantage in such matters is that there is a lack of protection under the Constitution of India on freedom of speech and expression. There is an exception in favour of laws etc, that imposes restrictions in the interests of public decency or morality.”
Does Ranveer’s nude photoshoot amount to “obscenity” as per Indian law or would it fall under a grey area? “It would be subject to interpretation and societal conditions. A matter which may have been considered obscene fifty years ago, with changing social values, norms, dissemination of knowledge, technological progress may now not be considered the same,” says lawyer Ameet Naik..
The creative perspective
Nudity as a form of art finds its place in various disciplines, be it painting, sculpting, photography and filmmaking. When Ranveer faced backlash, filmmaker Faraz Arif Ansari posted a nude photoshoot picture of himself on Instagram in solidarity. He feels there is a massive lack of embracing individuality in our country today. “There seems to be in place a system that is catered to create everything out of moulds and hence, a lack of originality is celebrated. It also shows how much we have spiraled away from our own selves that when we see a person expressing their individuality, celebrating their truth, it ends up being offensive rather than being applauded. Appealing has been made into appalling. I feel the lack of our own exposure and understanding of art is also to be blamed for this,” he tells ETimes.
Pooja Bedi has quite a few bold photoshoots to her credit, just like mother Protima Bedi. “Those were clearly more permissive times than these,” she recalls, adding, “My mom’s streaking made a bold statement about sexuality, patriarchy, personal liberation, shackles of society, breaking conventions and directly impacted the rights of women to set themselves free. My Kamasutra advertisement was super sensual, it won awards and got people talking about sex and safe sex which was a taboo topic at the time. Let’s first understand that erotica and nudity is age old and very much a part of OUR Indian culture. Our Indian culture is our tribals and their attire, our temples like Khajuraho filled with nude and erotic carvings, our naked Naga babas that roam freely on our streets, the nude sculptures of our goddesses, to the world’s greatest bible on sex, the Kamasutra! This regressive morality being displayed and absurd moral policing is not protecting our Indian culture or roots. It’s actually upholding the direct influence of British morality thrust upon us by their rule and our desire to emulate everything about them including their fair skin.”
Renowned film photographer Rakesh Shreshtha has worked with the likes of Mamta Kulkarni, Kangana Ranaut and others. “When Mamta Kulkarni did that topless shoot for Stardust, these NGOs kept rambling for a few days until the matter died down on its own. If Ranveer is lying naked on a rug without showing his private parts, what is the big deal? Today semi porn, soft porn everything is easily available on social media. So what is the point of these objections on this photoshoot?” he questions.
Ashmit Patel resonates as he thinks there is nothing wrong with the photoshoot. “It’s for a magazine and it’s his prerogative what he wants to do with his body. In the past when Hollywood celebrities have done it, we have lauded them and called it creativity and all, but when our celebs do it, they call it obscene. That’s double standards. If you don’t like it, don’t watch it.”
“For me, all art is born out of an immensely deep need to create something from your soul. Something so pure that will be everlasting, something that will last longer than our limited time on this planet. Art is created to make people feel, to connect them with themselves, to heal, to make people question, to help them find answers, to help them find themselves and their truths, to create a world that is embracing and accepting of each other, irrespective of our differences. That is the purpose of art at least for me. That is why I create. We as a generation have forgotten how to love. Art must remind us of that. Always,” Faraz Arif Ansari ends on a beautiful note.