Section 294 BNS (Bhartiya Nyaya Sanhita): Sale, etc., of obscene books, etc.

Section 294 of the Bharatiya Nyaya Sanhita (BNS) makes it illegal to deal with obscene content. This means you can't sell, show publicly, or spread around items that are considered obscene, and this includes digital forms of such material. The law under Section 294 BNS defines "obscene" as anything that's sexually suggestive in a crude way, designed to excite lustful desires, or likely to morally harm and corrupt people. Explore other important Judiciary Notes.

Section 294 BNS: Sale, etc., of obscene books, etc.

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,

any book, pamphlet, paper, writing, drawing, painting, representation or figure,

1. 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, 
2. representation or figure is in the interest of science, literature, art or learning or other objects of general concern; or

which is kept or used bona fide for religious purposes;

any representation sculptured, engraved, painted or otherwise represented on or in,

1. any ancient monument within the meaning of the Ancient Monuments and Archaeological Sites and Remains Act, 1958; or
2. any temple, or on any car used for the conveyance of idols, or kept or used for any religious purpose.

Note: “The information provided under Section 294 BNS has been sourced from the official website, i.e., Indian Code. While the content has been presented here for reference, no modifications have been made to the original laws and orders.”

Download Free PDF on Section 294 BNS 2023 PDF

Section 294 of Bharatiya Nyaya Sanhita (BNS) proscribes offences pertaining to the dissemination of obscene materials. The provision specifically criminalizes the acts of selling, exhibiting, or otherwise circulating obscene objects, encompassing content in electronic formats. The definition of obscene material under section 294 BNS characterizes it as that which is inherently lascivious, appeals to a prurient interest, or possesses the propensity to deprave and morally corrupt individuals. This legislative measure aims to curb the proliferation of indecent content deemed harmful to public morality.

Section 294 BNS: Essential Elements

For an offence to be punishable under Section 294 BNS 2023 certain important elements must be present. Mentioned hereinafter are some of the important elements:

1. An Obscene Object: 

This element under Section 294 BNS establishes the subject matter of the offence. The law doesn't limit the form this object can take. It explicitly includes both physical items (like books, magazines, photographs, films, and physical representations) and digital content (text, images, videos, software, etc., stored or transmitted electronically). The key is that it must be something that can be perceived by the senses or accessed digitally for it to fall under section 294 of BNS. This broad definition reflects the evolving ways in which obscene material can be created, stored, and disseminated in the modern age.

2.The Obscene Nature of the Object: 

This is the most crucial and often debated element. Section 294 BNS, like its predecessor Section 292 of the IPC, defines "obscene" through a set of criteria that courts have interpreted by considering contemporary community standards. The three main criteria of this definition are:

• Lascivious: This refers to material that tends to incite lustful thoughts or desires. Section 294 of BNS goes beyond mere sexual content and implies a quality that is lewd, indecent, and designed to create a strong sexual urge in the viewer or reader.
• Appeals to Prurient Interest: "Prurient interest" under Section 294 BNS signifies a shameful or morbid interest in sex, going beyond normal, healthy sexual curiosity. It suggests a fascination with the lewd and disgusting aspects of sexuality. The material under Section 294 of BNS must be primarily intended to arouse this unhealthy interest. Courts often apply the "average person" test, considering whether the material would appeal to the prurient interest of the average person, applying contemporary community standards.
• Tends to Deprave and Corrupt Persons: This refers to the potential of the material to morally corrupt the minds of those who access it. This aspect under Section 294 of BNS focuses on the potential harm the material can cause to societal values and individual morality. The courts consider the likely audience and the potential impact of the material on their moral fabric.

3.Commission of a Prohibited Act: 

This element under Section 294 BNS deals with the specific actions related to the obscene object that constitutes an offence under Section 294 of BNS. The list is exhaustive and covers various stages of the creation, distribution, and consumption cycle of obscene material:

• Sells, Lets to Hire, Distributes, Publicly Exhibits, and Circulates: These actions cover the commercial and non-commercial dissemination of obscene material to others under Section 294 BNS. "Publicly exhibits" implies displaying it in a place where it is likely to be seen by a significant number of people. "Circulates" is a broad term encompassing any act that puts obscene material into wider access.
• Keeps for Sale, Hire, Distribution, Public Exhibition or Circulation: This element under Section 294 BNS criminalizes the possession of obscene material with the clear intention of engaging in any of the other prohibited acts. The prosecution would need to demonstrate this intent, which can be inferred from the quantity of material, the circumstances of its possession, and other relevant factors.

Section 294 BNS essentially retains the core of Section 292 of the Indian Penal Code, with changes being done in the fine amount of the punishment and with inclusion of electronic form of content within the ambit of this section: 

Section 294 BNS: Judicial Interpretation

Judicial interpretation of Section 294 BNS by Indian courts has been definitive factor in determining the ambit of section 294 of BNS, mentioned hereinafter are some of the landmark judgments :

• Samaresh Bose v. Amal Mitra (1985): 

Regarding the novel "Prajapati," the Supreme Court stressed that obscenity under Section 294 BNS is different from just being vulgar. For something to be legally obscene, it must have the potential to harmfully influence morals and not just be crude or offensive. The court also pointed out that what's considered obscene can change depending on a community's social and moral norms and who the intended audience is.

• Shri Chandrakant Kalyandas Kakodkar v. State of Maharashtra (1969): 

This case about a Marathi magazine story saw the Supreme Court reaffirm the "Hicklin test" (later changed by the Aveek Sarkar ruling). The court emphasized that how potentially harmful the material could be to young and easily influenced people is an important factor in deciding if it's obscene.

• Ma Anand Sheela v. State of Gujarat (1988): 

This case involved an Osho follower being prosecuted for distributing literature considered obscene. While the specifics of the material aren't clear in summaries, the case shows how Section 292 IPC now Section 294 BNS was applied to religious or philosophical writings and the possible defenses based on the material's context and purpose.

• Devidas Ramachandra Tuljapurkar v. State of Maharashtra (2015): 

This case looked at obscenity in the context of a play. The Supreme Court discussed how the "community standards" test has evolved and stressed the importance of judging potentially obscene material by considering the whole work and its artistic value.

Conclusion

Section 294 BNS criminalizes the sale, distribution, and possession of obscene materials, now explicitly including digital content. The core definition of obscenity, focusing on lasciviousness, prurient interest, and the tendency to deprave and corrupt, remains central. Section 294 of BNS updates the provision by acknowledging electronic forms of obscenity and revising the punishment, by increasing the fines.