Community Standards Test for Obscenity

The contemporary community standards test asks whether allegedly obscene material would be regarded as obscene by the standards of present-day society, rather than by unusually sensitive or morally rigid persons. The material is assessed from the perspective of an average reasonable person, as a whole and in its context, including its purpose, message and likely audience.

Constitutional and statutory setting

Speech and expression are protected by Article 19(1)(a), but Article 19(2) permits reasonable restrictions in the interests of decency or morality. Section 294 of the Bharatiya Nyaya Sanhita, 2023 covers material that is lascivious, appeals to prurient interest, or tends to deprave and corrupt persons likely to encounter it.

• The statutory exceptions protect material justified as being for the public good in the interests of science, literature, art, learning or other objects of general concern, as well as bona fide religious material.

Judicial formulation of the test

In Aveek Sarkar v. State of West Bengal (2014), the Supreme Court adopted the contemporary community standards approach and rejected the old Hicklin test, which examined whether isolated material could corrupt particularly susceptible persons.

• The impugned work must be considered as a whole, not through detached words, passages or images.
• Nudity or sexual content is not obscene by itself; its context, treatment and overall effect are decisive.
• The inquiry focuses on whether the material appeals to prurient interest or has a tendency to deprave and corrupt its probable audience, judged by contemporary standards.
• Artistic, literary, political or social purpose is relevant when evaluating the dominant effect of the material.

Practical implications

The test is contextual and changes with social attitudes, but it does not mean that courts merely count popular opinion. They make an objective judicial assessment of the material, its setting and its likely audience.

• Vulgarity, offensiveness or profanity does not automatically amount to legal obscenity unless the required sexual or prurient character and harmful tendency are established.
• The test balances freedom of expression with the constitutionally permitted restriction based on decency or morality.

How UPSC asks this