Centre for Internet & Society

In the legal discourse, pornography as a category is absent, except as an aggravated form of obscenity. Does this missing descriptive category assist in the rampant circulation of pornography, either online or offline? Rather than ask that question, Namita Malhotra, in this second post documenting her CIS-RAW project, explores certain judgments that indeed deal with pornographic texts and uncovers the squeamishness that ensures that pornography as an object keeps disappearing before the law.


When Justicia, blindfolded, cannot see the profane …

In the legal discourse, pornography as a category is absent, except as an aggravated form of obscenity (1). Does this missing descriptive category assist in the rampant circulation of pornography, either online or offline? Rather than ask that question, I would like to explore certain judgments that indeed deal with pornographic texts and uncover the squeamishness that ensures that pornography as an object keeps disappearing before the law.

For instance, in the case of Fatima Riswana V. Chennai & Ors. (2)  both the public prosecutor and counsel for the petitioners applied to the court for transfer to another (male) judge, to save the District Lady Judge from embarrassment. The order for transfer was passed, so that the District Lady Judge does not have to view certain CDs that are part of the evidence. The justification for this is that the 'said trial would be about the exploitation of women and their use in sexual escapades by the accused, and the evidence in the case is in the form of CDs, viewing of which would be necessary in the course of the trial; therefore, for a woman Presiding Officer it would cause embarrassment'.

This is a rather obvious case, where explicit and pornographic material is made to disappear before the eyes of the law, gesturing towards the larger complicity that allows society and law to create a ruckus about Richard Gere and Shilpa Shetty’s kiss, HBO's English movie channel, dance bars and other such aspects of the sleazy modernity that we inhabit (3), but simultaneously is oblivious to circulation of pornography, both online and offline.

In a rather confrontational visual juxtaposition, I place Savita Bhabhi alongside Husain’s Mother India, to be able to ask several questions, including the question of which one’s existence has been more threatened by the law. There is almost no doubt about it; Savita Bhabhi’s chequered career as a slutty housewife has been marred only by two scandals (and several almost patriotic accounts of India having finally arrived (4)) – once when a child sent an MMS about his teacher and it made references to Savita Bhabi, which led to some mention of action that might be taken against the website (5), and another time when Karan Johar (Mid Day, Delhi – 31 March 2009) remarked that one of the characters, Jeet, has a look similar to that given to Amitabh Bachchan in 'Kabhi Alvida Naa Kehna', and this might be a case of copyright infringement. Neither of these have resulted in any serious charge against the alleged anonymous producers, Indian Porn Empire, or what is more probable, the blocking of the website regardless of whether the producers/creators can be found and prosecuted. However Husain’s untitled painting, which surfaced on a website for an auction for victims of a Kashmir earthquake in 2006 (two years after it was first sold by the painter), was dragged to court on serious charges of obscenity, which fortunately led to a rather progressive judgment on obscenity by the Delhi High Court.

Returning to the two images of nude women, obscenity law in India has laid down that “nudity in art and literature is not per se evidence of obscenity”. As stated in the judgment that dealt with the circulation of Hussain’s untitled painting (later titled 'Bharat Mata') 'the work as a whole must be considered, the obscene matter must be considered by itself and separately to find out whether it is so gross and its obscenity so decided that it is likely to deprave and corrupt those whose minds are open to influences of this sort'.  What renders an object obscene is the transaction rather than the text -- a transaction involving the depiction-consumption of the female body , and the sexualisation of the viewer who in turn sexualises the object. It is not just that the painting/image may already be sexualized but also that the public is in turn sexualised by looking at it (and sexualises it with its gaze), thus making them vulnerable to the perversion that is modernity itself and the pornographic gaze (Nitya Vasudevan and Namita A. Malhotra, State of Desire - Unpublished article). To put it simply, the anxiety of the state is not just about the object, but also about its circulation in the public, and the meanings it acquires through these series of transactions.

Legal and public discourse is often obsessed with the various meanings that become possible because of the placing of this naked body - or the transactions of this naked body with the context, background, narrative that it is placed in. Though seemingly sexualised already as a naked body (this can be refuted not only by the Indian court but various examples in art, religious architecture, etc.) the meanings it may carry are further complicated when it is placed in a pornographic comic online, bearing a crown and saying 'I will be Miss India', or as a faceless hazy outline in the foreground of the map of India. Hussain’s depiction of the naked woman on the map of India, embodying India (in pain or anger) carries many jostling, conflicting meanings. Inspite of the furore over the painting, the High Court finally held that the painting was not obscene, stating that the intention of the painter was to evoke sympathy for a woman – indeed a nation – in distress (6) . However what is intriguing, is that Savita Bhabi’s body, her markings of Indian-ness, her poses and postures are not examined to that extent either by the court or the public.

Pornography, as obscenity in its aggravated form or explicit depiction of sexual acts without a relevant or coherent narrative, has been dropped from both legal discourse and academic and cultural analysis--is it possible to surmise that this has happened because it can be read as a blank slate, a place where meanings cannot be read, felt or inferred? Pornographic movies are spliced into mainstream films, circulate surreptitiously through video stores, piracy markets or though online spaces that cannot be easily accessed because of regulations and filters in most places –- colleges, homes, schools, offices, cybercafes (7) etc. Can we surmise that the transaction of the sexualized gaze with the obscene object has been, in this way, so removed from public gaze that it does not merit discomfort and anxiety for the state or public, unless it nefariously slips into public discourse (DPS MMS, Noida MMS, Mysore Mallige)? As long as it is a secretive (even if mass) consumption, it does not disturb the heternormative familiar and familial in the manner that an object whose obscenity is not quite obvious or clear does – for example, HBO's English movie channel (8).

In this context, let us look at an excerpt from the progressive judgment on Hussain’s painting, which demonstrates the extent to which the court has to read the meanings of an image to determine whether it is obscene or not, but simultaneously, by not ever having to interact with a pornographic text, the court (or the public) does not have to see that there are many meanings embedded in such an image as well.

'One of the tests in relation to judging nude/semi nude pictures of women as obscene is also a particular posture or pose or the surrounding circumstances which may render it to be obscene, but in the present painting, apart from what is already stated above, the contours of the woman’s body represent nothing more than the boundaries/map of India.

Even if a different view had to be taken that if the painter wanted to depict India in human form, it may have been more appropriate to cloth the woman in some manner may be by draping a sari or by a flowing cloth etc., but that alone cannot be made a ground to prosecute the painter. There can be a numbers of postures or poses that one can think of which can really stimulate a man’s deepest hidden passions and desires. To my mind, art should not be seen in isolation without going into its onomatopoetic meaning and it is here I quote Mr. Justice Stewart of the US Supreme Court in Jacobellis v. Ohio 378 U.S. 184 (1964) who defined ‘obscenity’ as, “I will know it when I see it”. The nude woman in the impugned painting is not shown in any peculiar kind of a pose or posture nor are her surroundings so painted which may arouse sexual feelings or that of lust in the minds of the deviants in order to call it obscene. The placement of the Ashoka Chakra or the States in the painting is also not on any particular body part of the woman which may be deemed to show disrespect to the Ashoka Chakra/States and the same was conceded by the learned counsel for the respondent during the course of the arguments advanced.

It is possible that some persons may hold a more orthodox or conservative view on the depiction of Bharat Mata as nude in the painting but that itself would not suffice to give rise to  a  criminal prosecution of  a person  like  the petitioner who may have more liberal thoughts in respect of mode and manner of depiction of Bharat Mata.' (9)

A body that doesn’t carry inscriptions of cities on different body parts, but is definitely inscribed as Indian is that of Savita Bhabi – from the mangalsutra that never comes off even during doggy-style sex, the sari that slips off rather easily, the bindi, the gestures and mannerisms, to the stories that place her in sexual encounters with familiar people – the bra salesman, the old boyfriend, the cousin, the doctor, the woman colleague, the boss, the aging star and many others.

Savita Bhabhi thus carries as many confusing, jostling meanings as a pornographic text. For instance, she refers to recession and aspirations to become Miss India. She ventures into the fantasy world of her fans, since many of her stories are drawn from their stories on the Savita Bhabi website and fansite –- whether these stories are make-believe or true is irrelevant. These resonances of the text beyond mere sexual arousal are obvious.  Even if one were to ignore Linda Williams (10) and inferences from Foucault that pornography becomes one of the many forms in which knowledge of pleasure is organised, it is obvious that from varied perspectives within film studies and legal studies, pornography merits examination. Williams' point also seems to provide some insight into why pornographic circulation doesn't merit much anxiety from the state or in the law; if pornography is organised in consonance with the heteronormative familiar and familial and accessible primarily by men, then maybe it is not such a big surprise that the state or the law is not really invested in controlling pornography, since pornography itself is controlling modes of sexuality and/or sexual expression.

Returning to the comparison, Hussain's untitled nude body on the map of India is literally marked. She carries these inscriptions -- Gujarat on one breast, Bangalore between her thighs, Chennai on her calves, Goa on her hip. Savita Bhabi is marked by her sari, her bindi, her blouse, her aesthetic sense, her fantasies of film stars, her stories of encounters in dressing rooms and myriad other recognizable details -- that mark her as Indian, or at least as living in India, in an Indian (albeit a privileged fair North Indian) body. However, it is Husain's untitled painting -- not called Bharat Mata (and the painting doesn't seem to signify a maternal relation but that of a wounded woman or pained woman) -- that goes to court on charges of obscenity.

Before looking at the few judgments that deal with the actual pornographic text, I take a detour to look at another iconic female figure -- that of Justice. Though clothed, she is blindfolded, so as to be able to discern even a fraction of a slip in the scales of justice; visual cognition would not be sufficient for her to recognise such a slip. As explained by Costas Douzinas, ('The Legality of the Image, lecture – December, 1999), ‘Justice must be blindfolded to avoid the temptation of facing the concrete person and putting individual characteristics before the abstract logic of the institution'. Martin Jay traces the trajectory of how justice became blindfolded through the ages, in the article 'Must Justice Be Blind' (11). Justice was initially wide-eyed and alert; she was blindfolded by the Fool in a period when corruption of the rulers was rampant; she was immortalised by Vermeer as staring at empty scales; and in a transitory state before being completely blinded she had two heads, with a pair of eyes that could see, and a pair that was blindfolded -- shielded, maybe, from the profane and from embarrassment.

I look at this blindness of the judicial system that allows pornography to circulate, while pinning down the obscene and examining minutely its various meanings. The obscene ('Satyam Shivam Sundarmam', 'Prajapati' – a Bengali magazine which carries short stories, 'Lady Chatterley’s Lover', 'Bandit Queen') is examined firstly, for whether it is so gross, though grossness or vulgarity as such is not enough to establish obscenity. And secondly, for whether it has the tendency to deprave and corrupt those whose minds are open to such influences and into whose hands -- or rather, vision -- such an object might fall (this is what allows for the circulation in limited publics -- adult audiences, time slots on television). 

Hard and Near Hard Pornography: Close Encounters of the Law with the Profane

In the case of Anonymous vs. the Commissioner Of Police (12), yet another encounter takes place between the embarrassed law and the pornographic text. The excerpt below describes the encounter of two women advocates asked by the court to examine what movies are being exhibited at a specific theatre. In the peculiar clash of social mores, that ensure who has access to pornography, and the law, that ensures equal access to all legally sanctioned media to everyone, the movie theatre was held responsible for violating the fundamental right of women to have access to their premises -- and thus access to pornography.

'We approached the booking counter of Rs. 20/- and asked for tickets. The booking clerk first informed us that it is an English movie and it is not meant for ladies to view. When we insisted for tickets, he asked us to come inside the booking room from the main entrance of the theatre. When we were entering the theatre, the gate-man informed us that ladies are not permitted as it is a "SEX MOVIE".

However, we walked into the booking room. Booking clerk issued us Box-A tickets and further asked us to see the Manager before taking seats. We did not see the Manager but directly went to Box-A and took seats. Even the Box-A doorman asked us to leave the theatre advising us that we being ladies cannot see it as the movie is a "SEX MOVIE". When the movie began at 12.00 P.M. simultaneously the Manager along with two men switched on the lights in Box-A and asked us to leave the hall immediately. Since he repeatedly insisted us to leave, we both came out of Box-A. On coming out we enquired as to why we should not see the movie, to which the Manager replied that it is a "BF". On asking for further clarification of "BF", the Manager stated that it means "BLUE FILM". When we asked him to identify himself, he informed us that he is Mr. Prasad, Manager of the Theatre, as such he has every right to ask us to leave. When we asked as to how it was not advertised that the movie is meant for men only, he retorted that "It is understood that whenever English movies are played in this theatre, ladies are strictly not permitted." As such we were forced to leave the theatre immediately.'

The question before the court was whether the films exhibited in this theatre were being exhibited in accordance with  the censor certificate or whether there was any tampering; whether there was any other device or contrivance to interpolate or intermingle blue films with any otherwise innocent-looking film. Here, though the court had taken it upon itself to address the pornographic text, it ran into a series of complications when merely trying to access the text or the evidence itself, as two women advocates were sent to determine if there was an illegal film exhibition taking place. Pornography seems to be continuously disappearing even on the rare occasion when it is addressed directly by the court, especially in the court's attempt to precisely locate the moment of transaction of the gaze with the pornographic object.

The court, when allowed to examine the film exhibited, found that it was 'a hotch potch of short films, advertisement films, party propaganda films, Hindi and Telugu feature film bits'. (13) The court finally located the pornographic segments (squeezing breasts in a tub, cunnilingus, brutal murder scene) and the court’s comment was that 'normal scenes were replaced by sexy scenes'. The recommendation of those who examined the films that were ostensibly being spliced into Secret Games 3 and Dark Dancers is that, 'The only course proper is not to permit entry into the country for such films which prima facie may be classified hard or near-hard'. Though the term near-hard is amusing and unique classification of pornography, maybe it's a Freudian slip by a judicial system caught between disgusted arousal and embarrassment.

Finally, in this judgment, the court had to acknowledge its own blindness  -- that there is ‘some hole somewhere in the system so that even excised portions by the Censor Board of the films have found their way to the theatres’, including portions that were never passed through the censor certification process at all.

Whose Hard-On (or Near Hard-On) Are We Looking for: The Law in Its Search for the Profane


In 2005, two teenagers frolicking were captured on a mobile phone camera, and the clip circulated first through mobile phones and then subsequently on the internet. The clip sparked off a phenomenon of hidden camera and mobile phone clips -- a booming pornographic enterprise now on the internet. For a split second, it seemed as though any kind of desire could become pornographic, captured in an ubiquitous medium and transmitted throughout the country. That thrill and anxiety was possibly grasped at slightly in Anurag Kashyap’s Dev.D, where Chanda -- the prostitute, or the other of the good girl -- is the one depicted as the unknown girl who was part of the MMS clip. Very few films have been able to grasp the visceral embarrassment and immediacy of desire as Dev.D does, and it is possibly not the story of Chanda, but that of Paro that achieves this. Paro, who sends nude pictures of herself across continents; Paro, the cyber-sexer; Paro, the entirely relatable slut who cycles with a mattress across fields of mustard in small town Punjab because she desires sex.

After three and a half years (countless MMSs, one movie reference, and a few academic articles later) the court passes judgment in this case – of who possibly can be held liable for the circulation of the MMS clip online, and specifically its sale on Bazee.com (an eBay subsidiary) by an IIT student (Avnish Bajaj vs State on 29/5/2008 by Muralidhar J.). In this case, it is not the pornographic text that keeps slipping and eluding the grasp of the court; the problem is in the inability, especially in the age of the internet, to fix the transactions around such an object that is rapidly changing hands and circulating at an exponential speed through the internet.

The court is in a bind -- the wrong person is accused. Not the corporate body of Bazee but the CEO of Bazee himself (the boy is a juvenile so is facing lesser charges in the juvenile court). The court has the responsibility to fix the blame of the circulation of the obscene object on Avinash Bajaj, without being able to establish that there is any knowledge on his part about the existence of the clip. Though the court was able to establish that there was negligence on the part of Bazee in running the website (in spite of notification, the clip remained on sale for a whole working day after the complaint), and that the filters used by Bazee were obviously inadequate to control what is sold through the website, it was still not possible to find the CEO liable for obscenity charges. If the company had been charged, this would have been possible. Eventually, even though obscenity as a charge couldn’t stick, similar provisions in the IT Act (Section 67 read with Section 85) were used to charge Avinash Bajaj himself, as opposed to Bazee (the corporate body or the company itself). 

Here again the court is forced to confront a pornographic text only in instances where there has been a public furore around it, and the eventual judgment is not likely to be able to even remotely address the phenomenon of MMS clips and hidden camera footage from cybercafes and hostels that has been spawned as a result of this incident. The slippery transaction of the gaze with the pornographic object is difficult to fix though in a different way from the earlier judgment – here the pornographic nature of the text is understood rather than examined, more for its violation of privacy than actual elements of obscenity. But it is still hard to determine for the law, especially with the internet, how and by whom has circulation of the pornographic object has taken place and to fix these transactions to ensure legal culpability.

*****
Curiously this tale of women advocates and judges as representatives of law and justice, who are averting their gaze from the pornographic text or find that the text is constantly eluding their legal stare, must deal in its closure with the figure of the male judge. Anne McClintock’s male judge in her article ‘Screwing the System’ (14) is a judge who gets a hard-on each time he sentences a prostitute -- a judge who otherwise pays to be beaten by the very same prostitutes. The Hidayatullah paradox of obscenity law is that the judge who decides on obscenity has to decide on the basis of whether he is affected, or rather aroused -- and if he is turned on, then how is he any longer the reasonable judge, or even the 'reasonable man' who can be expected to pass judgment with the dispassionate authority of law? The work of both Shrimoyee N. Ghosh (on the dance bar judgment) and Lawrence Liang (on cinema and the law) on the relation between law and affect, gestures towards an interesting puzzle for us to consider here: if we could look into the eyes of justice, if she were not blindfolded, what would we see? And is the purpose of the blindfold indeed to prevent us from observing the affective life of law itself – its arousal, disgust and embarrassment?

 

Endnotes:

1.  Ranjit Udeshi v. State of Maharashtra. Only in the recent fairly progressive judgment on Hussain’s painting, that held eventually after examining it, that it was not obscene, was there an attempt at giving some distinction to the category of pornography apart from it being an aggravated form of obscenity and to say that it, as a class of objects, images, paintings, videos, is designed for sexual arousal, while other material which may or may not be obscene is meant to have other meanings. Such reading of the author’s intentions is a convoluted way of restating Justice Potter’s statement – 'I know it (hard core), when I see it'.
2.  Fatima Riswana v. State Rep. By A.C.P., Chennai & Ors.Case No.: Appeal (crl.) 61-62 of 2005
3.  -'…in a clear shift of subject matter, what we are now seeing is an explicitly politicized moral censor looking at all this—looking not so much at the sex industry as at society-in-general, at society itself now theatricalised into a morbid stage of sleaze'. Ashish Rajadhyaksha, in his essay ‘Is Realism Pornographic?,’ which deals with the writings of Pramod Navalkar, former Minister for Culture in Maharashtra, points to how explicit or hard-core pornography does not seem to be the concern as much as a whole range of practices attached to the phenomenon of modernity
4. Anastasia Guha, The Beatitudes Of A Bountiful Bhabhi, Tehelka, Vol 5, Issue 19, Dated May 17, 2008. Available online at http://www.tehelka.com/story_main39.asp?filename=hub170508the_beatitudes.asp
5.  Savitha Bhabi threatened, http://infotech.indiatimes.com/quickiearticleshow/3476748.cms
6.  For instance, the court held that in Bandit Queen, the nudity during the sequence of rape and torture of Phoolan Devi is necessary in the narrative and essential for the impact and the moral that the story is trying to convey – her anger with the upper caste feudal landlords and her quest for justice become identifiable for the viewer, and hence the nudity is in fact necessary in the story, and has no ‘tendency to deprave or corrupt’.
7.  The regulation of cybercafes takes place in a manner reminiscent of how cinema spaces such as movie theatres were sought to be regulated by the colonial law. Current laws demand placing of computers so monitors face outward, use of identity cards for every visit, data retention for at least a month for most users, etc.
8.  Though the latter might be a valid assumption (and certainly beneficial for us) it is an assumption whose presumptuous certainties are shaken in the age of the internet, especially that primarily men access pornography and cyber sex through these newly opening up online spaces.
9. Maqbool Fida Husain v. Raj Kumar Pandey CRL. REVISION PETITION No. 114/2007. Decided on 08-05-2008

10.  Williams, Linda. Hard Core: Power, Pleasure and the Frenzy of the Visible. Berkeley: University of California Press, 1989
11.  Costas Douzinas, Lynda Nead (Eds), Law and the Image: the Authority of Art and the Aesthetics of Law. University of Chicago Press, 1999
12.  Anonymous Letter-Un-Signed vs The Commissioner Of Police And Others on 26 December, 1996
13.  For a judicial system that is invested in narrative film or narrative structure for reasons of copyright law (see generally Anne Baron, The Legal Property of Film) or for aesthetic reasons, as is evident from the judgment in Bandit Queen (that held nudity when she was paraded naked in front of the villagers to not be obscene because those scenes are needed for a narrative impact – for people to feel moved and disgusted by Phoolan Devi’s plight) it must also be a different kind of horror to find films chopped up into twenty sundry pieces, the last piece thrown somewhere else.
14.  Anne McClintock, Screwing the System: Sexwork, Race and the Law, Boundary 2, Vol. 19, No. 2, Feminism and Postmodernism (Summer, 1992), 70-95.