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4. Today Indian art is confidently coming of age. Every form of stylistic expression in the visual arts, from naturalism to abstract expressionism derives its power from the artist's emotional connection to his perceptual reality. The Nude in contemporary art, a perennial art subject, considered to be the greatest challenges in art has still not lost its charm and focuses on how the human form has been re-interpreted by the emerging and influential artists today. The paintbrush has become a powerful tool of expression as the pen is for some, and has thus occasionally come under the line of fire for having crossed the 'Lakshman Rekha' and for plunging into the forbidden, which is called 'obscene', 'vulgar', 'depraving', 'prurient' and 'immoral'.3 No doubt this form of art is a reflection of a very alluring concept of beauty and there is certainly something more to it than pearly 'flesh'4 but what needs to be determined is which art falls under the latter category.

13. The Supreme Court in the case of Memoirs v. Massasuchette 383 U.S. 413 further explained the meaning of the term "obscenity" in the following words:

Under this definition, as elaborated in subsequent cases, three elements must coalesce: it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.

16. In Mishkin v. New York 383 U.S 502 the Court removed the test of the average person by saying that if the material is designed for a deviant sexual group, the material can be censored only if it appeals to the prurient interest in sex of the members of that group when taken as a whole.

17. The United States of America has recently enacted a statute regulating obscenity on the internet i.e. Communication Decency Act, 1996 (CDA) which prohibits, knowingly sending or displaying of "patently offensive" material depicting or describing sexual or excretory activities or organs, in any manner that is available to a person under 18 years of age using an "interactive computer service". The constitutionality of this statute came to be challenged before the Supreme Court in the case of Reno v. ACLU 117 S. Ct. 2329 (1997) wherein it was argued that the aim of the Government while enacted the said statute was protecting the children from harmful material. The Supreme Court observed that the words of the statute were vague and uncertain. It further held that the provisions of CDA lacked the precision that the First Amendment requires when a statute regulates the content of speech. The governments' interest in protecting children from exposure to harmful material was held not to justify "an unnecessarily broad suppression of speech addressed to adults". The court observed that the undefined terms "patently offensive" and "indecent" were wide enough to cover large amounts of non-pornographic material with serious educational value. In relation to the internet the "community standards" criterion was held to mean that any communication available to a nation wide audience will be judged by the standards of the community most likely to be offended by the message, though in the case of New York v. Ferber 458 U.S 747 child pornography was recognized as an exception to freedom of speech guaranteed under the American Constitution.

28. Thus, it is clear that the Hicklin's Test has been applied to determine obscenity in England since its evolution. The Courts in the United States of America have given up the Hicklins Test, but the Indian law on obscenity is more or less based on it. In addition to this, law on obscenity in India also panders to the test of 'lascivious and prurient interests' as taken from the American law.

India

29. The general law of obscenity in India can be found in Section 292 of the Indian Penal Code, 1860 which reads as under: