Has Smut Come of Age?

While there are laws dealing with obscenity, OTT platforms with frontal nudity and lesbian and homosexual acts seem to have democratised it. Social change is liberalising views on it

 

Col R Hariharan | Columns| Magazine| India Legal |October 27, 2023 

https://www.indialegallive.com/magazine/obscenity-laws-kamasutra-gita-govinda-ott-nudity/

The Nagpur bench of the Bombay High Court recently held that wearing short skirts, dancing provocatively or making gestures cannot be considered obscene acts as per Section 294 of the Indian Penal Code (IPC) 1860. 

In Lalita Bais & Ors vs State of Maharashtra, Justices Vinay Joshi and Valmiki Sa Menezes, while quashing an FIR against five individuals booked for watching a dance performance by women wearing short clothes, preferred “taking a progressive view in the matter” and were “unwilling to leave such a decision in the hands of police officials”.

They added: “We often witness this manner of dress in films that pass censorship or at beauty pageants held in broad public view, without causing annoyance to any audience. Surely the provisions of Sec 294 of the IPC (obscenity) would not apply to this situation.”

The judgment validates Yale Law School professor Grant Gilmore’s observation in his book The Ages of American Law: “Law reflects but in no sense determines the moral worth of a society. The better the society, the less law there will be. In heaven there will be no law, and the lion shall lie down with the lamb.”

Of course, this was not the first time the courts or society tried to come to terms with “obscenity”. Theoretically, it should not be difficult in the land where Vatsyayana wrote the world’s oldest sex manual Kamasutra. Across India, sculptors of yore immortalised Kamasutra in stone on the walls of temples such as in  Khajuraho. The Bhakti cult classic Jayadeva’s Gita Govinda visualised the deep spiritual state of longing as intense love of the gopis (cowherd maidens) for Krishna. In 19th century Avadh, the kotha (bordello) culture was accepted as the hallmark of high society. Actually, India that was Bharat, with diverse religions, races, languages and cultural traditions left it to local communities to observe decency, rather than codifying obscenity.

However, the advent of British colonialism governed by Christian moral principles, based on the story of Adam and Eve, codified obscenity in the Indian Penal Code 1860 (IPC) under Sections 292, 293 and 294. 

Section 292 says that any content would be considered obscene if it strikes at the lascivious, voyeuristic, salacious or lustful interests of a person and consequently depraves or sexually corrupts a person likely to read, see or hear it. Section 293 deals with the offence of publication, selling, distributing, exhibiting and circulating obscene objects. Section 294 deals with obscene acts and songs to the annoyance of others and in public places.

Since then, there have been a number of enactments to tackle obscenity in keeping with society’s quest for protecting gender equity and children’s rights. Young Persons (Harmful Publications) Act, 1956, seeks to punish a person who advertises or makes known by any means whatsoever that harmful publications can be procured from or through any person.

The Indecent Representation of Women (Prohibition Act), 1986, was enacted to punish coarse representation of women in advertisements. It refers to “the illustration in any other manner of the figure of women; her form or any other part indecently or outrageous to or denigrating women, or is likely to deprive, corrupt or injure the public virtue or morals”. One has to pity law enforcing officers saddled with the task of going through the semantic jugglery of words “deprive, corrupt or injure the public virtue or morals” to file a chargesheet under this Section.

Advances in communication technology have opened up new avenues of legal quest to save public morals from obscenity. Information technology domains are now universally accessible and are being brought to account for the legality of their contents. There is an ongoing struggle for governments everywhere, including India, on how to tame the IT giants to conform to country-specific laws.  

Information Technology (Amendment) Act, 2008, Section 67(A) seeks to punish publication of sexual content on a social media site. Perhaps Section 67(B) of the amendment seeks to arm the war against child pornography. It makes it clear that not only publication and viewing, but also possession of such pornographic material is punishable. The Protection of Children from Sexual Offences Act, 2012 (POCSO) specifically addresses the offence of sexting a minor or sending them obscene content in the form of pictures, videos, films, etc.

But the advent of OTT platforms revolutionised access of the common man to international media, particularly movies. I am reliving my juvenile fascination for Wild West movies to watch John Wayne, grunting his dialogue even as he puts a bullet in the forehead of villains like Lee Van Cleef or Eli Wallach. Who can forget the wiry Clint Eastwood, chewing a cigar, shooting his way through The Good, the Bad and the Ugly?  

That is not all. Mothers, who in yesteryears frowned upon sleeveless blouses in the 60s (remember Waheeda Rehman’s Bollywood quote on the subject), are casually accepting their daughters appearing in string bikinis in pro­vocative poses in Instagram. The generation that was aghast at the partial nudity displayed by Zeenat Aman in Satyam Shivam Sundaram in the 70s is seen dozing off in front of scenes of frontal nudity, lesbian and homosexual acts on OTTs as part of their afternoon fare.

Obscenity, it seems, has come of age. With the introduction of 3D technology in the coming years, judges are going to find it more and more difficult to legally define obscenity. Society’s increasing acceptance of yesterday’s obscene scenes as current day norms on OTT platforms raises a few questions. Is obscenity getting democratised, thanks to the electronic technology revolution in the media? It would appear so. Or is it social evolution that is coming to terms with the human body? Probably, it is the technology revolution, aided by electronic media that is hastening the change in social perceptions of obscenity. In other words, the dynamics of social change is “liberalising” views on obscenity. 

Will smut gain acceptance in popular media? I hope not, because it will make the scribe’s job more difficult. Novelist Ernest Hemingway vocalised the problem of writers on obscenity: “Here is the piece. If you can’t say fornicate, can you say copulate or if not that, can you say cohabit? If not that, I would have to say consummate I suppose. Use your own good taste and judgment.” That is sound advice. 

—The writer is a retired military intelligence specialist on South Asia associated with the Chennai Centre for China Studies

Sri Lanka: BRI dynamics & Politics of Cabinet reshuffle

Col R Hariharan | Sri Lanka Perspectives October 2023 | South Asia Security Trends November 2023 | www.security-risks.com

China’s Indian Ocean priorities

The month had been a busy one for President Ranil Wickremesinghe. He probably clocked more air mileage during October than any other president did before him. He travelled across continents to fulfil overseas engagements. As the Presidential Secretariat note on the 3^rd Belt and Road Initiative (BRI) Forum says President Wickremesinghe attended the opening ceremony “in a show of solidarity.” During the visit, he met with President Xi Jinping, who assured China would provide “friendly, practical and timely support for Sri Lanka’s debt optimization programme.” China seems to have timed its decision to restructure Sri Lanka’s debts on the eve of the visit of the Sri Lanka head of state.

President Xi Jinping in his address at the inauguration of the meeting announced eight major steps China will take to support “the joint pursuit of high-quality BRI cooperation.” These steps include creating an international multilateral network, supporting “a global open economy”, practical cooperation strategies, promoting green development, fostering opportunities for science and technology innovation, enhancing interpersonal relations and encouraging “unbreakable ties among member countries.” In other words, creating a new world order as visualised by President Xi.

These steps are likely to increase the strategic importance of Sri Lanka for China. In particular, Sri Lanka will occupy a central role in building a multidimensional Belt and Road connectivity network to integrate ports, shipping and trading services under the Silk Road Maritime. Similarly, Sri Lanka is likely to be geographically indispensable in building of the New International Land-Sea Trade Corridor and the Air Silk Road. China will remove all restrictions.

President Wickremesinghe in his bilateral meeting with the Chinese President, expressed Sri Lanka’s hope to establish a maritime economic corridor linking China, Myanmar, Sri Lanka and South Africa. It is interesting to note President Xi Jinping acknowledged the challenging nature of this endeavour and encouraged President Wickremesinghe to take the lead. It will be interesting to see how and when President Wickremesinghe proceeds to walk the talk and handle India’s reaction to it. 

The arrival of Shi Yan 6, the Chinese geophysical and seismic research ship, in Colombo Port on October 28 has to be viewed in the context of China’s growing strategic interest in Indian Ocean. India and the US had been expressing their concerns over the visit of Chinese dual use research ships ever since the research vessel Yuan Wang 5 visited Sri Lanka last year. Sri Lanka is reported have requested China to postpone the visit of Shi Yan 6 to November. Apparently, China has turned down the request. The Ministry of Foreign Affairs said the vessel has been authorised to carry out two-day survey of the Western waters off Colombo. A team of scientists from the National Aquatic Resources Research and Development Agency (NARA) is joining the Chinese researchers on board the vessel.

Of equal interest is the arrival of warships of other navies to Sri Lanka around the same time. Republic of Korea’s naval ship ROKS ‘Kwanggaeto the Great’ arrived at Colombo port on October 26 on a formal visit. The Korean warship was to depart the island on October 28. Japan Maritime Self-Defense Force (JMSDF) destroyer Akebono (DD 108) also arrived at the Trincomalee harbour on an official visit on October 28. The warship was to leave on October 31, to take part in an exercise with Sri Lankan Naval ship off Trincomalee.

President Wickremesinghe’s tight ropewalk to balance the relations with India and China is likely to get tougher when President Xi Jinping starts implementing the eight major steps referred to “the joint pursuit of high-quality BRI cooperation.” The strategic ripples that surrounded the visit of Chinese maritime research ship Shi Yan 6 to Colombo during the month is perhaps the forerunner of the strategic conundrum Sri Lanka will be facing in the coming months, if not years.  

Politics of cabinet rejig

On the home front, President Wickremesinghe carried out the much- awaited Cabinet reshuffle. He replaced the controversial health minister Keheliya Rambukwella, who survived a no confidence motion against him after allegations of incompetence and corruption in procurement of medicines surfaced. In his place, the President appointed the better qualified Dr Ramesh Pathirana as Minister for Health. He will be the minister for health in addition to the portfolio of industries he is already holding. Similarly, Minister for Agriculture Amaraweera will now hold the additional portfolio of plantation industries. The President’s reshuffle exercise seems to have satisfied neither the ruling Sri Lanka Podujana Peramuna (SLPP) nor the opposition parties. SLPP General Secretary Sagara Kariyawasam expressing the party’s disappointment, criticised the President for ignoring the SLPP’s significant support while allocating ministerial berths. It is possible the President may carry out yet a minor cabinet reshuffle to retain SLPP support.

However, Rambukwella, despite the allegations of corruption, has been retained as Minister for Environment. This sends a strong message that his continued influence within the party and the government.

Election schedule

President Wickremesinghe fulfilled yet another popular expectation with the announcement of election schedule at the UNP convention. As per the schedule the presidential and the parliamentary elections will be held in 2024, followed by provincial council elections in 2025. His speech at the convention convened to rejuvenate the party as “smart” one, was probably a curtain raiser of his election agenda.

He explained the dire circumstances in which he became President and listed his achievements. The seasoned leader sent an ominous warning of the future. He said “We must confront this reality and seek answers. Some parties advocate for constitutional changes, while others call for reforms in the presidency and government. They request a change in leadership. However, I want to convey one thing: I cannot rejuvenate this country without the support of other political parties….” A month more and Sri Lanka will usher in an election year. As mandated in the Constitution, presidential elections are scheduled for the second half. The second tranche of the IMF’s Extended Fund Facility (EFF) is expected anytime now. The budget is less than two weeks away. A nation waits in suspense…”

Suspense indeed, not for the people, but for the political class (including the SLPP), who are probably in a tizzy to find a suitable challenger to take on Wickremesinghe seeking one more term.

On the economic front, the good news is the International Monetary Fund (IMF) has given a conditional nod to the staff level agreement for Sri Lanka to gain access to SDR 254 million (about $330 million), subject to the approval of the IMF Executive Board. The two IMF conditions are: a) implementation of all prior actions b) completion of financing assurances on debt restructuring in a timely manner. These are more easily said than done. Anti-Corruption Act was passed in July 2023 to comply with IMF conditions; however, cases of corruption continue to be reported in media. Two crypto fund companies have been approved to operate in the special economic zone of Colombo Port City. World over crypto fund operations have been mired in cases of money laundering. Enforcing anti-corruption mandate is going to be a little more difficult with homegrown access to crypto operations in SEZ, outside the pale of laws of the land.   

Col R Hariharan, a retired MI specialist on South Asia and terrorism, served as the head of intelligence of the Indian Peace Keeping Force in Sri Lanka 1987-90. He is associated with the Chennai Centre for China Studies. Email: haridirect@gmail.com  Website: https://col.hariharan.info]