From Hicklin To Hashtag: The Changing Legal Framework Of Obscenity In India
- IJLLR Journal
- Feb 1
- 2 min read
Ayushi Gupta, USLLS, Guru Gobind Singh Indraprastha University
ABSTRACT
In India, the legal definition of what is obscene has transformed from the colonial ‘Hicklin test’ of 1868 to what we see in today’s digital and online age. In the provisions 294-296 of Bharatiya Nyaya Sanhita 2023, which have replaced Sections 292-294 of the Indian Penal Code, India has attempted to modernise its statutory framework on obscenity. Yet still at the core of what is defined as “obscene” material, we find colonial and moralist concepts.
This research paper looks at whether the BNS is a sign of a doctrinal realignment or just a semantic shift, especially in the issue of digital content, social media discourse, and artistic expression. The paper looks at how legal doctrine, social morality, and technological change play into a shifting definition of what is considered to be “obscene” in a constitutional democracy. It also examines not just formal statutory language but also how courts include majoritarian anxieties, gendered assumptions, and heteronormative values in the application of obscenity standards. The paper looks at judicial trends from the case of Ranjit Udeshi v State of Maharashtra to that of Aveek Sarkar v State of West Bengal, and also the outgrowth of what came post-BNS, to see how Indian courts balance free speech as guaranteed in Article 19(1)(a) against that of public decency and constitutional morality. Also, to analyse the U.S. Miller Test and the E.U. digital regulations to put forth a rights-based and context-sensitive framework for regulation of obscenity, which at the same time is in tune with India’s democratic and constitutional values in the digital age.
Keywords: Hicklin test, constitutional morality, obscenity law, BNS 2023, digital content regulation.
