Obscenity in court | Pakistan Press Foundation (PPF)

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Obscenity in court

By: Waqqas Mir

While gentlemen with beards approach our Supreme Court often, it is rare that a model/Bollywood diva’s legs force Lady Justice to peek. Ms Katrina Kaif’s legs, in ways she may never have imagined, have made it to the Supreme Court of Pakistan. The issue in question: obscenity on television. The purported evidence, as ever, is eye-catching.

Obscenity, as Manto’s spirit would testify, is hard to define but is often tailored to convenience. How does one define obscenity especially when one Qazi Hussain Ahmad and a retired justice are complaining about it?

“I know it when I see it” is one of the most celebrated and ambiguous sentences ever uttered by a judge. Justice Potter Stewart of the Supreme Court of the United States (SCOTUS) pronounced these words in a moment of limited eloquence, while trying to define hard-core pornography. Could the same test be treated as valid for “obscenity”? If your answer is yes, then you aren’t helping. By asking others to rely on your reaction you are conceding that, in an overwhelming majority of cases, obscenity is highly subjective.

Another major problem: how do we come up with a shared standard for “obscenity” without curbing free speech?

The fact that the Supreme Court has taken suo motu notice of the issue complicates matters. Usually the “state-action” requirement means that people aggrieved by the state’s action against allegedly obscene material approach the courts to claim redress. In the weighing scales are considerations of freedom of expression too. Here the Supreme Court is acting on its own. The issue should never have been before the Supreme Court. Even if people approached it, the Court should have exercised restraint. The pitfalls are too great. Why should an all-male bench from one of the most conservative professions in the world get to define a word that requires the voice of the people?

The Court already seems to have accepted that there is obscenity on TV requiring a crackdown of sorts. This, I submit, is unfortunate. Of course obscenity should be regulated and it doesn’t always fall under the definition of constitutionally protected speech but it is not ideal for courts to jump upon an opportunity to get involved with these matters. The relevant legislation (PEMRA Ordinance, 2002) and Code of Conduct prohibit obscenity. They also provide for a complaint mechanism that anyone (including people like Qazi Hussain) can use to bring certain matters to the attention of Council of Complaints in each province and the federal capital.

Those approaching the Supreme Court with this could have adopted a more democratic way but they chose not to. Why? My feeling is because they did not want to be losers in a democracy and feared that they may not get their way. Hence the natural choice: approach a more conservative forum — the Supreme Court.

Courts in the US have defined obscenity only as a matter of last resort. The “Miller test” refers to patently offensive sexual conduct as among the ingredients as well as contemporary community standards. Furthermore, the work (taken as a whole) has to lack serious literary, artistic, political or scientific value. Pakistani courts have stressed community standards too without emphasizing the sexual conduct requirement. The bar here will be lower. In many cases Pakistani and Indian courts have followed standards laid down in the colonial era — standards that didn’t trust the capacity or ability of local communities to absorb unconventional modes of expression. But it is about time we move on from that. Katrina Kaif’s legs will not cause the collapse of this society. Many other things will and maybe our Honourable Supreme Court should pay attention to those. This country did not break up in two and its integrity is not threatened by female flesh.

Violent images without prior warning probably do more harm to susceptible viewers than female flesh. A case for a proper “ratings” mechanism is stronger than one for identifying obscenity. And no, the rating mechanism isn’t the apex court’s job either. It is up to us to exert pressure on PEMRA and the channels till they respond. We may not always get our way but that is democracy. Anyone who wants to escape “obscene” ads on TV can simply switch to religious channels during ads. I mean where does this stop? Will reproductive health advice be considered obscene too? There are people who want that. And they aren’t afraid of approaching the Supreme Court either.

What about a woman’s choice to wear a sleeveless shirt to a TV show? What if she wears an outfit that completely covers her body but shows off her curves? What about the hypocrisy of not applying the same standards to men? Is a shot of actor Abid Ali sitting on a charpoy in a vest smoking hookah in a dhoti obscene or not? And I hope no one thinks that the solution is to ban it all.

My point, I suppose, is that there are no easy and clear answers. But three gentlemen on a bench, no matter how learned, are not the best source of an answer. A better answer can and will come forward if you and I join in the conversation and make our views known. Those who don’t want to watch a Veet ad or a couple holding hands can simply change the channel. If a family isn’t comfortable watching something it has a simple choice — don’t watch it. The rest of the country doesn’t have to suffer. By entertaining such petitions, the Supreme Court is treading a dangerous path. If we don’t speak now, our voices might be gagged for good.

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