Ridima Gupta & Jayesh Ashwin V, Jindal Global Law School, OP Jindal Global University
ABSTRACT
With the advent of time, the ‘community test’ as developed by the Supreme Court of India warrants reform on account of its regressive nature and the absence of cultural consensus within society. The test rests upon the way the majority perceives the material which renders a judgement’s effect limited to the territory occupied by the habitants of a particular place rather than a global standard of what can be accepted as obscene. Therefore, this test fundamentally goes against the ‘Harm Principle’ postulated by John Stuart Mill and recognized by the Supreme Court of India in Navtej Singh Johar vs Union of India1 in 2018. This paper will establish that the most efficacious approach for a diverse society like India would be the adoption of the test of ‘Harm Principle’, akin to the implementation in the jurisprudence of Canada and as opposed to community standard test which can safely be ruled out as archaic and arbitrary. The community standards test is bygone, and it is time to sever, judicially and philosophically its nucleus.
