(1) For the purposes of sub-section (2), a book, pamphlet, paper, writing, drawing, painting, representation, figure, or any other object, including display of any content in electronic form, shall be deemed to be obscene if it is lascivious or appeals to the prurient interest, or if its effect, or (where it comprises two or more distinct items) the effect of any one of its items, is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.
(2) Whoever—
(a) sells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation, or for purposes of sale, hire, distribution, public exhibition or circulation, makes, produces or has in his possession any obscene book, pamphlet, paper, drawing, painting, representation or figure, or any other obscene object whatsoever in whatever manner; or
(b) imports, exports or conveys any obscene object for any of the purposes aforesaid, or knowing or having reason to believe that such object will be sold, let to hire, distributed or publicly exhibited or in any manner put into circulation; or
(c) takes part in or receives profits from any business in the course of which he knows or has reason to believe that any such obscene objects are, for any of the purposes aforesaid, made, produced, purchased, kept, imported, exported, conveyed, publicly exhibited or in any manner put into circulation; or
(d) advertises or makes known by any means whatsoever that any person is engaged or is ready to engage in any act which is an offence under this section, or that any such obscene object can be procured from or through any person; or
(e) offers or attempts to do any act which is an offence under this section,
shall be punished on first conviction with imprisonment of either description for a term which may extend to two years, and with fine which may extend to five thousand rupees, and, in the event of a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and also with fine which may extend to ten thousand rupees.
Exception. — This section does not extend to—
(a) any book, pamphlet, paper, writing, drawing, painting, representation, or figure—
(i) the publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, writing, drawing, painting, representation, or figure is in the interest of science, literature, art, or learning, or other objects of general concern; or
(ii) which is kept or used bona fide for religious purposes;
(b) any representation sculptured, engraved, painted, or otherwise represented on or in—
(i) any ancient monument within the meaning of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (24 of 1958); or
(ii) any temple, or on any car used for the conveyance of idols, or kept or used for any religious purpose.
Simplified Explanation
Section 294 of the Bhartiya Nyaya Sanhita, 2023 (BNS) addresses the sale, distribution, and circulation of obscene materials. It criminalizes the creation, possession, or distribution of material that is deemed obscene in nature, with specific provisions for penalties and exceptions.
Here’s a detailed explanation of this section:
1. Definition of Obscene Material (Sub-section 1)
- Obscene material is defined broadly in the section to include:
- Books, pamphlets, papers, writings, drawings, paintings, representations, figures, or any other physical or electronic object.
- An object is considered obscene if it:
- Lascivious (i.e., sexually suggestive).
- Appeals to prurient interest, meaning it has the tendency to provoke excessive sexual desire.
- Tends to deprive and corrupt individuals who are likely to encounter it, considering the context (e.g., a child or impressionable adult reading, seeing, or hearing the content).
2. Offenses and Penalties (Sub-section 2)
This sub-section outlines several actions related to obscene material, and criminalizes them:
- (a) Selling, renting, distributing, publicly exhibiting, or circulating any obscene material in any form.
- (b) Importing, exporting, or conveying obscene material with the intention of sale, distribution, or exhibition.
- (c) Participating in or benefiting from any business that involves the production, sale, or distribution of obscene materials.
- (d) Advertising or promoting the availability of obscene materials or offering to engage in any act of obscene conduct.
- (e) Attempting to do any act that would be considered an offense under this section.
Punishments
- First Conviction:
- Imprisonment: The offender can be sentenced to up to 2 years.
- Fine: A fine of up to 5,000 rupees.
- Second or Subsequent Convictions:
- Imprisonment: The offender can be sentenced to up to 5 years.
- Fine: A fine of up to 10,000 rupees.
This creates a graduated penalty structure, meaning repeat offenders face significantly higher penalties.
3. Exceptions (Sub-section 3)
This section does not apply to certain materials under specific conditions:
- Scientific, literary, artistic, or learning purposes: If the material is justified as being in the public good for scientific, literary, artistic, or learning purposes, or for general public concern, it is exempted. For example, books or materials that serve educational or artistic purposes may be excluded.
- Religious Material: Items used bona fide for religious purposes are not considered obscene, such as religious texts or items used in worship.
- Historical or Religious Representations: The section excludes representations that are:
- Found on ancient monuments as defined in the Ancient Monuments and Archaeological Sites and Remains Act, 1958.
- Found in temples or on carriages used for religious idols, or any religious object.
4. Purpose of Section 294
The goal of this section is to:
- Prevent the circulation of harmful or obscene content that could adversely affect public morals, particularly the public’s sense of decency and mental health.
- Criminalize the distribution of materials that are deemed morally corrupting, especially those that cater to sexual desires or promote harmful, degrading behavior.
- Ensure that exemptions exist for content that serves positive societal roles like education or religion.
5. Examples of Offenses Under Section 294
Here are a few examples where Section 294 might apply:
- Example 1: A bookstore is caught selling pornographic magazines. The owner could be punished for selling obscene material under sub-section (a).
- Example 2: A website that distributes explicit sexual content or sells obscene films could be penalized under sub-sections (b), (c), or (d), depending on the business operations.
- Example 3: A person advertises or promotes a website where people can purchase explicit content. The person involved in the advertisement could be punished under sub-section (d).
- Example 4: If a person imports obscene videos with the intent to distribute them, they could be punished under sub-section (b).
6. Conclusion
Section 294 is designed to curb the spread of obscene materials that have the potential to harm public decency, particularly content that is lascivious or that promotes immoral or corrupt behavior. It sets out strict penalties for those who sell, distribute, produce, or possess obscene content, with specific exceptions for materials related to public good, religion, or cultural heritage. This section is vital for maintaining public order, protecting vulnerable groups, and ensuring that materials circulating in society align with acceptable moral standards.
