India is a land where ridiculous criminal cases abound, thanks to a toxic combination of police forces who either don't understand the law or face political pressure to file pointless cases, and the zealotry of Indian citizens to take offence at things which have nothing to do with them.
The FIR against Bollywood actor Ranveer Singh for his recent photoshoot with Paper Magazine is not even the most absurd case to hit the headlines recently.
After all, it has just been days since Mohammed Zubair was able to get bail in a case where the Uttar Pradesh Police accused him of inciting hatred between communities by pointing out literal hate speeches, and the Supreme Court decided to transfer all the cases against him in UP for his tweets because the criminal process was being "relentlessly" used to target him.
It is understandable why the case has generated heated discussion online, with those who filed the complaint facing flak for their decision to make Ranveer Singh's body a national issue. Singh is a flamboyant actor who has starred in many big blockbusters, he has a unique fashion sense, he's married to another famous actor in Deepika Padukone.
The photoshoot he'd done had already generated a buzz, and so it was little surprise that the media ran the story about the FIR in Mumbai which claimed that it amounted to obscenity and insulting women's sentiments.
Not only was the news of the FIR reported, it spawned primetime TV debates, led to a re-examination of similar cases for obscenity against celebrities, and a number of articles (including this one) explaining the legal issues.
While it is difficult to find fault with the media for doing so, there is perhaps a question to be asked about why a case like this is being given any credibility whatsoever by treating it as anything other than a farce.
Because that is exactly what this is, as any lawyer worth their salt will tell you.
The Indian Law on Obscenity
Despite a healthy amount of nudity and sex-related content in India's cultural and historical heritage, social attitudes and the law are decidedly Victorian when it comes to the question of obscenity.
The Indian Penal Code (IPC) does not exactly define what is obscene, but nonetheless includes provisions punishing the sale and publishing of obscene content, and the performance of obscene acts in public places.
Among these, Sections 292 and 293 of the IPC have been invoked in the FIR against Ranveer Singh by the Mumbai Police.
Section 292 says that writings/pictures/other content, shall be deemed to be obscene if "it is lascivious or appeals to the prurient interest or if its effect ... is, if taken as a whole, such as to tend to deprave and corrupt" persons who are likely to read, see or hear the content in question.
Section 67 of the IT Act, also invoked in the FIR, uses the same wording to deal with publishing such content on the internet.
The language used by the legislations doesn't exactly make things clear, and so the courts have had to step in to provide tests to decide what is obscene or not.
The original test for deciding on obscenity settled on by the Supreme Court of India was the 'Hicklin Test,' derived from an English case, R vs Hicklin in 1868.
The Hicklin Test would have one look at a particular piece of content in isolation and see if it included anything which would, if viewed by anyone, have the potential to deprave and corrupt them.
The standpoint to be used here was not a reasonable adult, but any person who might be open to immoral influence, including children or old people, and changes in cultural circumstances (including other similar books/art) would be irrelevant.
This was not exactly a very sensible test to follow, as was seen in the Supreme Court's 1969 Ranjit Udeshi judgment, where it upheld a ban on DH Lawrence's book, Lady Chatterley's Lover.
The legacy of the Hicklin Test in India has meant a string of nonsensical cases against artists and celebrities, from MF Husain to Shilpa Shetty.
Thankfully, the Supreme Court abandoned the Hicklin Test in 2014 in the Aveek Sarkar case, instead adopting the 'community standards' test laid down by the US Supreme Court in the Roth vs United States case of 1957.
The Aveek Sarkar case arose out of a photograph of former tennis star Boris Becker posing nude with his fiancee, who belonged to a different ethnicity, and was meant to be a message against racism.
Originally published in international publications, the photo was published in an Indian magazine and newspaper, which was seized on by a busybody as a threat to Indian culture and social values etc etc.
After rejecting the Hicklin Test, the apex court explained how obscenity should be understood as follows:
"A picture of a nude/semi-nude woman, as such, cannot per se be called obscene unless it has the tendency to arouse feeling or revealing an overt sexual desire. The picture should be suggestive of deprave mind and designed to excite sexual passion in persons who are likely to see it, which will depend on the particular posture and the background in which the nude/semi-nude woman is depicted. Only those sex-related materials which have a tendency of “exciting lustful thoughts” can be held to be obscene, but the obscenity has to be judged from the point of view of an average person, by applying contemporary community standards."
The court referred to the case before it regarding the Bandit Queen movie, where even though there were scenes of torture and sexual violence, these were crucial elements in the story of how Phoolan Devi became the person she was, and so the court had not allowed a ban on the film.
The Supreme Court also noted that in another 2007 case, when examining the scope of Section 292 of the IPC, it had held that "the commitment to freedom of expression demands that it cannot be suppressed, unless the situations created by it allowing the freedom are pressing and the community interest is endangered."
The apex court found that the photo of Becker and Barbara Feltus, where both were nude but Feltus' breasts were covered by Becker's arm, could not be said to deprave minds and was not designed to excite sexual passion in those who saw it.
The message and context of the images has to also be considered when deciding whether something was obscene. The anti-racism message of the photos of Becker and his fiancee was also considered relevant by the top court.
As has been pointed out previously by lawyer and constitutional scholar Gautam Bhatia, the Supreme Court's adoption of the community standards test in Aveek Sarkar is not perfect.
It not only failed to account for additional aspects that were included in the US Supreme Court's judgment in the Roth vs United States case that the material had to be "patently offensive" and have no redeeming features, it also failed to incorporate the subsequent decisions of the US Supreme Court in 1966 and 1973 which liberalised the test further.
Despite this, it is difficult to see how the Ranveer Singh photoshoot could be found to be obscene under the test now adopted by the Supreme Court.
There is no full frontal nudity in the images, and there have been multiple photoshoots of women with similar aesthetics and depictions of nudity and semi-nudity, which show that community standards are not intolerant of such images.
It has to be remembered that even under old Hicklin Test regime, nudity in and of itself is not obscene. Following the Aveek Sarkar case, the courts will look at the posture of the subject of the image, the way in which the subject has been portrayed, and then see whether there is obscenity at play.
None of the photos in the Paper Magazine shoot that have been published online show any sexual aggression, or suggestive poses, or winks to pornography, and therefore the courts are almost certain to find there is no violation of Section 292 here.
It could even be argued that by doing a photoshoot of this nature as a man, Ranveer Singh is breaking down gender stereotypes and ideas of toxic masculinity, lending a social message to the shoot – all of which only makes the case against him less likely to succeed.
Why This is Farcical & Needs to be Treated as Such
It is perhaps with this knowledge in mind, that an obscenity charge is unlikely to succeed, that the complaint against the actor also argued that it insulted women's sentiments.
The Mumbai Police dutifully obliged this nonsensical claim by slapping Section 509 of the IPC in the FIR, ie an insult to the 'modesty of a woman'.
The inclusion of this provision only reinforces how pointless this case is, because there is literally nothing in the images that can be said to be a gesture to insult women. Singh makes no sexually suggestive gestures, is not wearing any clothing or tattoos that denigrate women, and nor does he make any comments in the interview or captions to the images, that say anything at all about women.
The mere depiction of a nude body cannot be considered an insult to the modesty of a woman. Flashing a woman would certainly meet that definition, but despite the attempt of the activist who was one of the complainants against Singh to say you can seen his private parts when you zoom in (raising more serious questions about why such detailed magnification was being sought), there is no frontal nudity in the images.
So if the case has no real legal hopes, why has it been filed?
We will not be able to get absolute clarity about the thoughts of the two people who filed official complaints with the Mumbai Police, but it would not be unreasonable to say that this might have something to do with how their names have made it to the news.
Filing a case like this doesn't just get 15 seconds of fame: you also get invited on primetime TV shows, and get covered by the newspapers and all the digital media sites. Thanks to the internet, your name will go down for posterity in connection with this.
While most of us would be appalled at the idea that we will forever be associated with a case like this, in certain circles, the complainants will be celebrated and will gain credibility.
And this is why the media needs to rethink how it looks at cases like this.
When it is clear that there is no real merit to a criminal case, there is little reason to give it any credibility by extensively reporting on it as a serious matter.
Sure, if the person against whom the case has been filed is a dissident, or a member of an underprivileged community, or is being targeted by state agencies, or is someone without resources, then comprehensive takedowns are important for the media to do.
But when there is no political involvement or support for the case, there is no chance of arrest since the offences are all bailable, and where the person is a rich and influential actor who not only has moral support from his peers but the money to hire the best lawyers, then such cases should be allowed to remain in the obscurity they deserve.
Giving them prominence and even treating them with seriousness only encourages more people to file frivolous cases like this against celebrities, and maybe even in the future against less famous people.
There is perhaps a degree of hypocrisy to say this after explaining why legally the case does not stand, but the idea here is to make sure that the fiasco is understood to be exactly what it is.
If there is to be a point to the media coverage of this case, it should perhaps be to point out the flaws in the Aveek Sarkar judgment, and remind the courts and the legislature of the need to do more to protect freedom of expression in this country.
If this matter does end up reaching the Bombay High Court or the Supreme Court, it will be a good opportunity to ensure that the additional prongs of the Roth test on obscenity are included in the community standards test, or that the court adopt an even more progressive test for future cases that precludes the registration of FIRs and the initiation of the criminal process on the basis of inane complaints.
Beyond that, however, this sordid tale will only be a pathetic little footnote in the history of this country's ridiculous cases, and the importance given to it should be commensurate with that status.
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