Import of Obscene goods – Who decides obscenity ? Customs?
Tomorrow we are carrying a case where the Tribunal upheld the confiscation of certain obscene goods. A lady Member of the Film Certification Board had opined that the goods were not obscene, but the Tribunal held that her opinion was given without taking into consideration the provisions of the Customs Act.
Is obscenity different under the Customs Act or do we have a National obscenity policy?
What is obscene ?
A statute of a Baby Ganesh in a crawling position – Is it Obscene? Customs thought so; the Commissioner (Appeals) did not and the CESTAT agreed. [2006-TIOL-2006-CESTAT-DEL]
In his famous Novel, “The Seven Minutes”, Irving Wallace brings this out in a masterly way.
The story goes like this:-
The book, “Seven Minutes” is being tried in the Court as obscene. An average American Lady is presented as a witness who affirms that the book is indeed obscene. The defence lawyer tells her that he would read to her some excerpts from recent translations or renderings of four popular books, all written by famous authors. As he finished reading each of the four excerpts, she was to tell him whether in her opinion it is or is not obscene.
He started.
Story No.1 – "There was but one point forgot in this treaty, and that was the manner in which the lady and myself should be obliged to undress and get to bed ..." '
'Not obscene,' said the witness
Story No.2 :- "She undressed brutally, ripping off the thin laces of her corset so violently that they would whistle round her hips like a gliding snake. She went on tiptoe, barefooted, to see once more that the door was locked, then with one movement, she would let her clothes fall at once to the ground; - then, pale and serious, without a word, she would throw herself against his breast with a long shudder."
'Not obscene.' declared the witness.
Story No.3 :- "The manager looked at his lovely prize, so beautiful, so winsome, so difficult to be won, and made strange resolutions. His passion had gotten to that stage now where it was no longer colored with reason. He did not trouble over little barriers of this sort in the face of so much loveliness. He would accept the situation with all its difficulties; he would not try to answer the objections which cold truth thrust upon him. He would promise anything, everything, and trust to fortune to disentangle him. He would make a try for Paradise ..." '
'Not obscene, not at all.', declared the Average Lady.
Story No.4 :- “Actually, these passages are too lengthy to quote from in detail. If you don't mind, I'll take the liberty of synopsizing some of the passages” – “We have here a young man who is married to a young woman, but he has been unable to consummate their marriage. The young man dies and his wife is widowed. Now the brother of the dead young man appears before the widow, determined to impregnate her. Either before or during copulation with her, he has second thoughts about what he is doing. He refrained from giving her his semen, and he masturbates instead. Later we have another adventure in this young widow's life. She is angry at her father-in-law. She wants to expose his own lechery. One day she disguises herself as a prostitute and allows her father-in-law to pick her up and copulate with her. When the father-in-law learns that his widowed daughter-in-law has become pregnant, he wants to punish her, but then he is exposed as the one who made her pregnant.'
'Obscene,' the witness said. 'Utterly and definitely obscene.'
Now the lawyer tells her the source of the extracts which he read out to her.
1. The first extract was the most suggestive passage in Sterne's “A Sentimental Journey through France and Italy”. The witness said the passage was not obscene . But in 1819 the book was declared obscene by the Vatican and banned throughout the world.
2. The second extract was one of the more controversial ones from Flaubert's “Madame Bovary”. In 1856, when Flaubert's book was published in France, it was taken into court on charges of obscenity, and in 1954 it was blacklisted by certain purity groups in the United States. The witness said it was not obscene.
3. The third extract was one of the more suggestive ones from Dreiser's “Sister Carrie”. In 1900 when the book appeared, it was banned in Boston, and to avoid further charges of obscenity it was withdrawn from circulation and suppressed. The witness said it was not obscene.
4. As for the fourth and last book from which was quoted, that extract was taken from a modern translation of the Old Testament of the Holy Bible !' And this was the only extract which the witness found obscene - utterly obscene
In 1928, a book “The Well of Loneliness”, a story about two lesbians, was banned for seven words - "And that night they were not divided." In 2009 the Delhi High Court had held that the ladies were not into any illegal activity.