How cultural panel can mute vulgar songs

Devinder Singh and Amaninder Pal

A debate has been sparked by the Punjab Government's decision to set up a Punjab Cultural Commission, which will be empowered to the extent of recommending registration of FIR against singers singing vulgar songs. There are arguments about the proposed commission's relevance and whether it will be able to accomplish its task, as also about its implication vis-à-vis the question of freedom of speech and expression. 

Some say that such a commission will curtail citizens' (read singers/lyricists) right of freedom of expression, enshrined in Article 19(1) (a) of the Constitution. But, Article 19 (2) invites restrictions whenever any of the eight different grounds mentioned in Article 19(2) demands so. 

Let's visualise the right to freedom of speech as a door, which swings around eight hinges, which are fitted in such a fashion that the loosening of any hinge halts the door's movement. Decency and morality are two such hinges. Thus, any song that fails the test of decency and morality can be lawfully muted by the state. However, what is decency and morality? Or, what is vulgarity and obscenity? And who will judge it? 

For some, Tasleema Nasreen's novels or MF Husain's paintings may be the pieces reflecting human genius. However, for others it may be no more than pieces of immoral writings and obscene paintings. The same is true for what is being sung by many popular singers of Punjab. 

Black's Law Dictionary defines obscenity as character or quality tending to corrupt the public merely by its indecency or lewdness. Not long ago, in public perception, obscenity was nothing more than the acts/materials loaded with element of sex. However, while deciding John Calder Publications versus Powell in 1965, the English court had observed that "obscenity and depravity are not confined to sex."

Sections 292 to 294 of the Indian Penal Code list punishment for committing, promoting and propagating obscenity. Sub-section(1) of section 292 states: "a book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object, shall be deemed to be obscene if it is lascivious or appeals to the prurient interest or if its effect, or (where it comprises two or more distinct items) the effect of any one of its items, is, if taken as a whole, such as to tend to deprave and corrupt person…"

However, the code stops short of defining obscenity/vulgarity.  The point  often debated on what is obscene is whether scholarship of intellectual elite should prevail or the opinion held by an average person. And, what criteria should be adopted to declare anything obscene/vulgar?

The Supreme Court encountered this question in 1965 in Ranjit Udeshi vs State of Maharashtra, wherein partners, who owned a bookstall in Mumbai, were held guilty under section 292 for selling unexpurgated copy of DH Lawrence's Lady Chatterley's Lover. It was argued that section 292 was in direct conflict with Article 19(1). But the court upheld bookstall owners' conviction and validity of section 292, but not before dealing with the issue of obscenity in detail. The judges emphasised on the Hicklin test, laid down by English court in 1868 in Regina vs Hicklin, whereby, "The test of obscenity is whether the tendency of the matter charged as obscene 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."

The judges also observed that "…setting of the whole book pass the permissible limits judged of from our community standards…." By doing so, they touched upon the significant principle of "contemporary community standards" laid down by US court in Roth versus United States (1957). 

Since then, various courts have preferred to rely on the concept of "contemporary community standards" test to decide cases related to the offence of obscenity.  

In 2014, the apex court had upheld this concept while deciding Aveek Sarkar  and others vs State of West Bengal and others, wherein an Indian magazine and newspaper reproduced the controversial photograph of legendary tennis player Boris Becker posing nude with his dark-skinned fiancée. The court observed that "we are not prepared to say such a photograph is suggestive of deprave minds and designed to excite sexual passion in persons who are likely to look at them and see them…" 

It added, "We should therefore, appreciate the photograph and the article in the light of the message it wants to convey, that is to eradicate the evil of racism and apartheid in the society and to promote love and marriage between a white-skinned man and a black-skinned woman.” 

Then in 2015 while deciding Devidas Ramachandra Tuljapurkar vs State Of Maharashtra, wherein the matter was related to a poem about Mahatma Gandhi in which obscene remarks were made, the top court affirmed that obscenity has to be judged from the point of view of an average person and by applying contemporary community standards, which vary from time to time. The court stated, "We accept the proposition that there should not be narrow or condensed interpretation of freedom of speech and expression, but that does not mean that there cannot be any limit." 

Hence, the top court has repeatedly affirmed that anything which the contemporary community and average members of that community, who possess average wisdom and rationality, feel obscene should be categorised as obscene. And in such cases, putting restrictions on individuals' freedom of expression will not be illegal.  

Now, give a thought to lewd and double-meaning songs nowadays being played. Do they pass the "average person" and "contemporary community standards" test? If not, shouldn't they be termed as obscene? If so, then why can't playing of such songs be restricted under Article 19 (2)?  

Punjab is witnessing a cultural and literary downslide. The land of social reformers, spiritual teachers, great Gurus, sufis, poets and writers has not witnessed literary dip, the kind of which it is passing through now. 

True, culture or literature of any social group evolves from the prevailing morals of that society. It will be a utopia to wish that songs of classical literary quality are heard in a society whose values are changing. Such cultural deprivation is the result of systemic failures that can only be addressed at the macro level. Bodies like cultural commissions cannot inculcate healthy moral values in society, which serve as foundation for a healthy literature. But such commissions, if they work honestly, can check the flood of bawdy renditions, which are contributing to the erosion of our rich value system and morals. Its members will need to perform their duties without letting their subjectivities and political biases influence their decisions.   

Devinder Singh
Professor, Department of Laws, 
Panjab University, Chandigarh

Amaninder Pal
Law student