under the IT Act makes obscenity under section 67 a cognisable offence, meaning that the police are allowed to start an investigation and make arrests without requiring the permission of a magistrate. In light of the many ambiguities surrounding obscenity laws, and of the widely reported misuse of the section, it deserves to be asked whether the threshold for arrests under the section should not be increased. Although the Supreme Court’s adoption in 2014 of the community standards test over the Hicklin test, in Aveek Sarkar v. State of West Bengal,83 has been widely received as a positive evolution, it does not, so far, seem to have dramatically challenged either the assumptions that underlie the framing of the law or the way it has been applied by police forces across the country. Established in the English case Regina v. Hicklin84 in 1868, the Hicklin test as formulated by the presiding judge defined the test of obscenity as follows: “whether the tendency of the matter charged as obscenity 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.”85 For decades, this test was prominently used in Indian courts of law, most famously to ban Lady Chatterley’s Lover in India. In Aveek Sarkar v. State of West Bengal, the Supreme Court for the first time formulated what it called a “contemporary community standards” test: A picture of a nude/seminude woman, as such, cannot per se be called obscene unless it has the tendency to arouse feeling or revealing an overt sexual desire. The picture should be suggestive of deprave mind [sic] and designed to excite sexual passion in persons who are likely to see it, which will depend on the particular posture and the background in which the nude/semi-nude woman is depicted. Only those sex-related materials which have a tendency of “exciting lustful thoughts” can be held to be obscene, but the obscenity has to be judged from the point of view of an average person, by applying contemporary community standards. As Gautam Bhatia has noted, the judgment was significant for its emphasis on the importance of the background and context in which nude imagery is placed: nudity as such is finally no longer 83 (2014) 4 SCC 257. 84 L.R. (1868) 3 Q.B. 360. 85 Quoted in Mazzarella, W. (2011). The Obscenity of Censorship: Rethinking a Middle-class Technology. In A. Baviskar and R. Ray (Eds.), Elite and Everyman: The Cultural Politics of the Indian Middle Classes. New Delhi: Routledge. necessarily deemed obscene. Also important is that the Court notes, following the 1957 US Supreme Court case of Roth v. United States, that the community standards to be applied should be contemporary: not the standards from India’s idealised, mythical golden age, but of today’s real-life fleshand-blood people, should be determining.86 Where the judgment remains weak, however, is that it allows for the criminalisation of speech on the grounds of obscenity merely because, following the application of contemporary community standards, an image that contains nudity or semi-nudity is believed to arouse sexual desire or passion. While Roth v. United States also required the material to be “patently offensive” and “of no redeeming social value”, these additional standards were not referenced in the Indian Supreme Court’s ruling.87 As a consequence, in a country where even mere suggestion is often believed to be inducing passion, much power remains with the eye of the beholder where the right to sexual expression is concerned – as the continuing arrests under this provision make clear. Perhaps the Court’s decision should not be surprising, however. After all, more stringent standards might have run contrary to section 67A of the IT Act, which explicitly criminalises depictions of sexually explicit acts: 67A. Punishment for publishing or transmitting of material containing sexually explicit act, etc., in electronic form.— Whoever publishes or transmits or causes to be published or transmitted in the electronic form any material which contains sexually explicit act or conduct shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to ten lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees. The limitations that apply to section 67 of the IT Act apply here as well, i.e. material that is “in the interest of science, literature, art or learning or other objects of general concern” or has a “bona fide heritage or religious purpose” cannot be criminalised. However, all other depictions of sexually explicit acts are criminalised by section 67A, whether or not 86 Bhatia, G. (2014, 7 February). Obscenity: The Supreme Court Discards the Hicklin Test. Indian Constitutional Law and Philosophy. https://indconlawphil.wordpress.com/2014/02/07/ obscenity-the-supreme-court-discards-the-hicklin-test 87 Ibid. 64 / Unshackling Expression