The ability of an individual to seclude himself/herself or any information about themselves and thereby reveal that information selectively is called privacy.
The extent and content of what is considered private vary among cultures and individual. The degree to which private information is exposed in a society depends on how the society will receive this information and to what extent they accept or reject it and differs between places and over time. Privacy is a civil liberty essential to individual freedom and dignity.
The term 'obscenity' means any act, work or any statement which strongly provokes the morality and affects the decency of the society. Any work of literature, art or science can be termed as obscene if it misdirects or corrupts individual mind or his morality. The Government can reasonably restrict one's freedom of speech and expression on the ground of obscenity and decency. In matter of morality and obscenity, Courts do not always reflect contemporary standards and perceptions though they purport to do so.
'Obscenity', 'indecency' and 'immorality' are equivocal concepts. The standards set for these vary from one society to another. Judges, despite valiant efforts, have failed to evolve a satisfactory definition of obscenity. Obscenity thus becomes a subject of constitutional debate since it delineates well the clash between the right of individual to unreservedly express his opinions and the obligation of the State to shield the ethics. The ambit of indecency and obscenity is illustrated in number of Indian case laws. Sections 292 to 296 of the Indian Penal Code (IPC) prohibit the sale or distribution of the obscene matter or the doing of obscene act in public.
In Ranjit D. Udeshi vs. State of Maharashtra AIR 1965 SC 881, the Appellant, a bookseller, was prosecuted under Section 292 of the IPC for selling and keeping the famous 'Lady Chatterley's Lover' which was considered obscene by the Supreme Court. The Appellant was held guilty on the ground that Article 19(2) restricts the right to freedom of speech and expression on the grounds of decency and morality. The Court used the Hicklin Test which is as follows: "Whether the tendency of the matter charged as obscene is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall"1. The Court using the Hicklin Test held the novel to be obscene.
The Supreme Court in Aveek Sarkar v.state of West Bengal 2005 (2) CHN 694 has held that a photograph of Boris Becker and his fiancee, in the nude, is not 'obscene' within the meaning of S. 292 of the IPC. This judgment is particularly significant because it expressly rejects the Hicklin Test, the rule for determining obscenity that the Court has regularly used in its history.
Right to Privacy is an essential fundamental right of an individual and is protected under Article 21 of the Indian Constitution. The higher judiciary of the country has recognized the right to privacy as a right 'implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21'. Reading of the obscene books is an integral and fundamental right of one's privacy. If an individual wants to read or access obscene book in his private sphere, the law should not criminalize him. It is the right of individual to access books if he is using it without affecting the society morality or decency.
This right can be read into the right to life under Article 21 of the Constitution. It recognizes that we all have a right to read and possess an obscene book and can read them in our private sphere without the community interference. The individual lacks an intention/guilty mind to sell or distribute the obscene books in public and thereby violating the decency and morality of the society. By making a distinction between 'constitutional' and 'public morality', the law should clearly state that the right to liberty, dignity and privacy of individuals cannot be restrained based on the notion of 'public morality'. The Court in applying the laws should protect the rights of an individual who is reading obscene books without influencing or corrupting public morals. It is the duty of the state to protect and give support to an individual excising his right of privacy. The right to receive information and thoughts, irrespective of their social worth, is fundamental to our free society.
Moreover, the law should not prosecute an individual for mere possession of printed or obscene matter in the privacy of his own home. For also fundamental is the right to be free, except in very limited circumstances, from unwanted governmental intrusions into one's privacy. Whatever the justifications may be for other statutes regulating obscenity, we do not think they reach into the privacy of one's own home. The State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. The Government should not have the power to control men's minds.
The law is concerned with publishing and filming of the obscene materials under Article 19(2) which may corrupt public morality but in the context of private consumption of the books the law should not criminalize an individual who is accessing the books. If the word 'obscenity' is given as wide meaning there is a danger that many literary works will not be available to the public. The publishers and booksellers may withhold a publication from being circulated for the fear that they might end up committing an offence under the eye of the law. Such self-censorship of books and publications would affect the right of the public to have access to works of art and literature.