The Fear of Sexuality in the Indian Judicial Discourse- Sexuality as an Art

This article was written by Aditya Bansal, a student of Jindal Global Law School.

While Article 19(1)(a) of the Constitution of India guarantees the freedom of speech and expression to all citizens of India[1], Article 19(2) confines this freedom within the boundaries of “sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.”[2] With that being said, one would observe the ambiguity attached to the terms of the restrictions. This essay will focus on the element of ‘decency and morality’, by analysing its judicial construction in terms of censorship of movies, on the grounds of ‘obscenity’. It will reveal how even though Indian courts have been liberal in their interpretation of ‘nudity’ in terms of a social message being conveyed, the censorship and banning of films with ‘obscenity’ has been up the rise. Sexuality is being hushed, and shoved behind the doors of households. It is argued that the courts restrain art, by drawing such boundaries, reflecting the fear of sexuality which is inherent in the society.

The essence of this essay can be well established in the contradiction which remains unnoticed between the name of the leading movie production and distribution company of the country, ‘Eros International,’ and the chains of censorship which make an attempt to confine art to an ambiguous ‘morality’. This Indian based company has found a name in the origin of ‘erotic’ and the Freudian name to ‘libido’, while the Constitution struggles to keep sexuality distinct from eroticism, on the movie screens.

Two decades back, in 1996, when ‘Bandit Queen’ was released by Bobby Art International, in order to add a new dimension to the life of the dangerous dacoit, Phoolan Devi, a writ petition had been filed to ban the film, as it had scenes of nudity which were ‘obscene’ and it ‘went beyond the limits of decency, and lowered the prestige and position of women in general […]’[3]. To understand the reasoning of the court better, it becomes important to understand the plot of the film. The film revolves around a lower-caste girl, who had been subjected to sexual violence since a very young age. Such oppression turned into fierce vindication in her adult years, leading to her becoming a vicious criminal. The film was termed ‘indecent’ and ‘obscene’ on the basis of the following scenes and elements of the film: (i) a scene showing full-frontal nudity of the actress, since her character was stripped naked, and made to fetch water from the well, as a form of violence and torture; (ii) the bare posterior of Phoolan Devi’s rapist; and (iii) the swear words used in the film.

Bharucha J. viewed these elements under a rather liberal lens, and in his judgement, stated the importance of such scenes, in order to bring about the desired reactions of sympathy and anger in the audience. The naked parade of Phoolan Devi would have lost its essence to the audience, if the nudity wasn’t present; the crudity of the rape was depicted by the fiercely moving bare posterior of the rapist; and the backward and crass set-up of the society would have been impossible to depict without the crassness of language. The purpose of bringing forth the nature of such scenes in such prominence was to move the audience, and fill them with disgust and resentment for the patriarchal nature of the society, which is more often than not taken for granted. Without tears, disgust, anger, and a few goose-bumps, a society cannot expect to come to a realization about something so inherent in its framework. Bringing out such emotions is the work of the film-maker, and (s)he should have full legitimacy and freedom over his/her creative instincts.[4]

The case also engaged with a case from 1970, where Hidayatullah J. expressed his dissatisfaction with the concept of censorship. He stated that sex and obscenity are not synonymous, and the role of the censor-board is only to ensure that sex does not become an instrument of commerce.[5]  One may infer that interpretation of ‘decency and morality’ has been to curtail any negative form of sexual objectification, and not to put art to a regressive halt.

Two decades apart from each other, Kenneth Clark and John Berger argue that nakedness and nudity are two completely different things. While Clark attaches a negative connotation of embarrassment to nakedness[6], Berger glorifies nakedness, relating it to self-determination and liberation[7]; however, both the theories had a similar meaning to nakedness, which was to be merely stripped off one’s clothes. On the other hand, Clark romanticizes nudity, giving it the pedestal of a muse, and Berger states that one goes from naked to nude the moment it is seen as an ‘object’. Therefore, in 1972, Berger put forth the concept of ‘sexual objectification’. [8]

Berger explains sexual objectification of nakedness to nudity, when a person’s[9] naked body is viewed by the spectator in light of his/her own desires, and not as an expression of the person’s own feelings.[10]  This directly implies that any form of art which uses nakedness as its subject, is bound to use a nude body as its object. The question then arises that at what point does sexual objectification become so dangerous that the spectator’s desires over-power the emotions of the person whose nakedness is being objectified for the purpose of art.

Hidayatullah J., in the case of K.A. Abbas, made an attempt to draw a line between artistic sexuality and corrupted sexual objectification by the means of commercialization. It is logical to assume the commercialization of nudity would exploit artistic liberty, by putting a naked body forth in a manner, which deprives the body of its human character, reducing it to a mere sexual object, for the sake of profits. This essay shall elaborate on this crumbling difference between the two by drawing a comparison between two movies which were brought in front of the Indian censor-board, and to establish that the law is being used to process its fear of empowering sexuality and sexual agency, under the garb of ‘morality’.

Fifty Shades of Grey

An adaption of the erotic novel written by E.L. James was released in 2015, all around the globe. The movie revolves around the relationship between a college graduate and a young businessman. By mutual consent, they enter into a sexual relationship based on BDSM (Bondage/Discipline, Domination/Submission, and Sadism/Masochism). There are several erotic scenes in the movie, and therefore, the censor-board bans it on the grounds of ‘decency and morality’.

It is argued that consensual sex between two adults does not depict any form of ‘indecency’ or ‘immorality’. While the movie had its own issues at the level of glorification of abusive relationships and the ramifications which may follow, the job of the censor-board, as defined by Hidayatullah J., was to act as scissors, when sex becomes obscene[11]– i.e. goes beyond the naked interpretation of life. However, BDSM is a common lifestyle adapted by several consenting adults, and should not be termed as ‘obscene’ because of the sexuality attached to it.

As for the test of objectification, the movie was of an erotic form of art. Even though it denoted the submission of a woman’s sexuality to a dominating man, it was from her own sexual agency and consent. Her nudity was essential in the portrayal of such sexuality, and she wasn’t reduced to merely their bodies or the sex they had. Eroticism, as an art form can get extremely superficial, but when the point of the art form is to portray a certain sexual relationship, the individuality of the characters out-power the desires of the spectator. Here, it wasn’t the nudity, but the art form being commercialized. The banning of this film reflects how the society fears sexuality to be glorified.

Kya Kool Hai Hum-3

This Bollywood flick went through over 200 cuts by the Censor-board, but still managed to be passed with an ‘A’ certificate, and was screened throughout the country. The distinction between this movie and Fifty Shades of Grey is that of demeaning, sexual objectification. The movie is full of several misogynistic sexual innuendoes, and the reduction of the female actresses to their bodies. The poster of the movie shows the men holding cylindrical objects near their crotch area, behind a curtain, to make their silhouettes appear to be penises, while the silhouette of bikini-clad woman, who is bending down behind the curtain can be seen. The image tries to portray two men flashing their penises to a woman.

The movie glorifies viewing a woman as merely a sexual object, not only stripping her off her clothes, but also of her identity. Here, the character’s identity is lost somewhere between her over-emphasized breasts and the sexual innuendoes passed at her, satisfying the spectators desires, instead of the character’s identity or agency. This is where the fear of sexuality should arise- where eroticism translates to misogyny, and the loss of human identity.

The taboo of sex gets diminished to merely catering to the immature minds of young adults, who like sexual jokes. Is it then the fear of female sexual agency which is greater than the fear of merely sexuality? Or is it that misogyny is so deeply entrenched in our society, that the portrayal of such sexuality is not seen as obscene?

The banning of Fifty Shades of Grey and the passing of Kya Kool Hai Hum reflects the hypocritical stance held against ‘morality and decency’ in the country. It would not be redundant to mention the advertisements, where overly-sexualized women are commercialized in order to sell perfumes, deodrants, soaps, and even cold-drinks. The 109th Law Commission Report of 1985 addressed this problem, recommending a more comprehensive understanding of the words ‘indecent’ and ‘obscene’. [12] However, such recommendations were in vain. The society does not want to engage in the question of sexuality, and does not want a dialogue which makes censorship on the basis of obscenity less arbitrary.

Going back to the case of Bandit Queen in 1996- even though it was a brilliant judgement keeping its context in mind, providing artistic freedom to the filmmakers to incorporate sex in their films to make a ‘social’ point, it failed to set grounds for allowing sexuality to be incorporated in films to make an ‘artistic’ or merely a ‘sexual’ point, with the simultaneous consciousness of the other aspects of human nature which should be inculcated in an art form.

Sex is a taboo, which is immediately equated as immoral. Such a construction of ‘immorality’ is rather problematic and hypocritical, considering the importance of sex in the continuation of human race. Human beings derive their sexuality from their ‘sex drive’ or ‘libido’ which is a natural adaptation made by all living organisms, to ensure that they engage in frequent coitus to reproduce. With that being said, not only does sex have an important role biologically, its psychological impacts are tremendous. Sigmund Freud goes as far as relating the process of one’s development to one’s sexuality. He claims that an infant is also sexually (sub)conscious, and the catering of this sexual consciousness by proper parenting, is what forms the infant’s personality in his formative years.[13] However, with the passing down of the taboo through centuries, sex has not only lost its naturalness, but also its exclusivity from obscenity in the minds of people. The judiciary upholds such repression of sexuality, by avoiding the question of artistic sexuality, at all. Artistic sexuality must be engaged with, while the idea of sexuality is embraced by the society as something as natural as eating or sleeping, and not as a taboo to be condemned.

[1] Indian Const. Part III, Article 19(1)(A).

[2] Id, Article 19(2).

[3] Bobby Art International Etc. v. Om Pal Singh &Ors., AIR 1996 SC 1846.

[4] Id.

[5] K.A. Abbas v. Union of India, (1970) 2 SCC 780.

[6] Kenneth Clark,The Nude: A Study in Ideal Form (New York: Pantheon Books)(1956).

[7]John Berger, Ways of Seeing (Penguin Books, 1990) (1972).

[8] Id.

[9] Even though Berger spoke of merely female objectification, this essay shall broaden Berger’s view to all people, irrespective of their gender.

[10] John Berger, Ways of Seeing (Penguin Books, 1990) (1972).

[11] K.A. Abbas v. Union of India, (1970) 2 SCC 780.

[12] Justice K.K. Matthew, Law commission Of India- One Hundred Ninth Report on Obscene and Indecent Advertisements and Displays: Sections 292-293, Indian Penal Code (January 1985).

[13]Sigmund Freud, On Sexuality (London 1991).

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