Introduction
India's obscenity laws have a long and controversial history, with roots dating back centuries. From ancient religious texts to British colonialism to modern-day debates over free speech, the regulation of obscenity has been a contentious issue in Indian society. The primary aim of obscenity laws is prevention of the objectification of individuals, particularly women, in media and popular culture. By regulating the display and distribution of sexually explicit material, these laws aim to discourage the use of women's bodies for commercial or entertainment purposes, protect vulnerable populations, promote social norms, and reduce the normalization of harmful behavior in society. This is where the Broken Windows Theory [“BWT”] plays a crucial role. In light of this theory, this article aims to analyze whether obscenity laws in India effectively reduce heinous crimes such as trafficking, rape, and murder by restricting exposure to immorality and indecency.
Criminalizing Obscenity: Legislative framework on Obscenity in India
The laws governing obscenity in India encompass both general and special laws. Under the Section 292 of the Indian Penal Code (IPC), 1860, the sale and publication of obscene materials is prohibited; Section 293 prohibits the distribution of obscene materials, and Section 294 criminalizes performance of obscene acts and songs in public. The Bharatiya Nyaya Sanhita, 2023 replaces the IPC with updated provisions, including Section 294, which bans the creation or sale of obscene materials, including electronic content, Section 295, which addresses the sale of obscene materials to minors, and Section 296, which penalizes obscene public acts. The Information Technology Act, 2000 further tackles obscenity in the digital domain through Sections 67, 67A, and 67B, which penalize the publication or transmission of obscene material, sexually explicit content, and child pornography in electronic form respectively, with escalating penalties for repeat offenses. Other relevant laws include the Indecent Representation of Women (Prohibition) Act, 1986, which outlaws the indecent representation of women in media, and the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954, which prevents the promotion of obscene or indecent advertisements under medical claims. Together, these laws regulate both physical and digital forms of obscenity, ensuring that both physical and electronic content are addressed to maintain public morals and protect individuals from exposure to harmful material. But does censorship reduce criminal tendencies within society? According to the BWT, it does.
The Broken Windows Theory (BWT) in Criminology: Its relevance to Censorship in India
In 1974, Marina Abramović’s ‘Rhythm 0’ experiment invited the audience to use 72 objects, from roses to a loaded pistol, on her as they wished. After six hours of passivity, she was left bloodied and shaken, revealing the dark side of human nature. This experiment starkly illustrated the principle of BWT, showing how small acts of harm can quickly escalate as each subsequent person emulates and exceeds the actions of the one before.
The BWT is a criminological theory that suggests that visible signs of disorder and vandalism, such as broken windows in abandoned buildings or graffiti on walls, can encourages more serious forms of crime and delinquency. A more recent adaptation of this theory, the social disorganization theory by Shaw & McKay, suggests that crime rates persist in certain areas due to the transmission of criminal norms, influencing behavior regardless of the population. Censorship and obscenity laws in India reflect these principles by aiming to uphold societal order and decency to prevent moral decline. Proponents of these laws argue that allowing the unrestricted display and distribution of obscene material can lead to a breakdown of social order, as people may become desensitized to such material and engage in criminal behavior. One claim suggests that the rise in pornography availability in India is linked to the increase in sexual violence and trafficking.
One case study supporting the BWT is Japan. Japan has some of the world's lowest crime rates, according to the ‘Crime Rate by Country 2024’ report released by World Population Review. Japan's impressive crime reduction can be attributed to unique strategies inspired by the BWT. One prominent example is the Beautiful Windows Movement (BWM) in Adachi Ward, Tokyo. This initiative aimed at preventing crime by encouraging local volunteer groups and fostering police collaboration. A key aspect of this movement was the incorporation of Crime Prevention Through Environmental Design (CPTED), which focuses on maintaining well-kept public spaces to deter crime. An interesting parallel can be drawn to when Tokyo removed public trash cans in 1995, following a tragic incident where a doomsday cult used the trash cans to conceal nerve gas, and surprisingly, people adapted to disposing of trash at home, effectively reducing crime rates as well. This seems to suggest that BWT holds some water, but there are holes in the bucket.
Is Obscenity fueling crime, OR is time to Rethink Laws?
Firstly, it is important to consider that the theory itself is disputed, with claims that it originated from a misrepresentation of research. In 1969, Philip Zimbardo’s research laid the groundwork for the controversial BWT, later popularized by James Q. Wilson and George L. Kelling. Using Zimbardo's study as their sole empirical evidence, Wilson and Kelling argued that a single broken window left unrepaired could lead to widespread vandalism. However, Zimbardo’s findings were distorted to achieve this assertion. Far from endorsing the BWT, Zimbardo’s conclusions solely emphasized the role of systemic inequality in fostering crime.
Moreover, Japan's example has its own limitations and external factors contributing to its low crime rate, beyond BWT-inspired initiatives, some of which may not be the most reasonable or democratic. With a 99% conviction rate, as compared to a mere 54.2% in India, Japan's justice system serves as a powerful deterrent to serious crimes. Japan's strong social capital and cultural cohesion contribute to its low incarceration rates. Furthermore, the country enforces the death penalty, but inmates are notified only on the day of execution—a practice much criticized by human rights groups. In contrast, India's legal framework provides death row inmates access to appellate procedures and presidential pardons, offering more avenues for justice and reconsideration. Moreover, Japan’s low wealth inequality sets it apart from countries like India, where economic disparities often play a significant role in driving crime. Another key distinction is Japan's racial homogeneity, with 97% of its population being native-born, a factor often associated with lower crime rates
Several scholars have criticized the BWT for oversimplifying the complex causes of crime and for potentially leading to overly aggressive policing practices that disproportionately impact marginalized communities. Enforcement of obscenity laws may lead to violations of freedom of expression and result in the targeting of marginalized communities such as LGBTQ+ individuals or sex workers. This can ultimately undermine social order and increase crime, achieving the opposite of what it was intended to prevent. Another major issue is that obscenity laws may not be effective in achieving their stated goal since even if the distribution of sexually explicit material is restricted, people may still engage in immoral activities in private, or find alternative means to access such content. Furthermore, obscenity and immorality often rely on subjective or arbitrary definitions.
Most importantly, while some argue that sexually explicit material harms social order, Northeastern University (NEU) researchers find limited empirical evidence to support this claim and no link between neighborhood disorder and lascivious behaviors. In fact, some studies, like of Ferguson and Hartley, suggest that the availability of sexually explicit material may actually have a cathartic effect, reducing the likelihood of criminal behavior. Similarly, a 2013 report by the European Union Agency for Fundamental Rights found no clear link between obscenity and human trafficking, suggesting that obscenity laws may hinder trafficking prevention by creating fear and stigmatization. Even research in India has shown no significant evidence that pornography increases the risk of sexually aggressive behavior.
However, the NEU researchers did observe that living in areas with visible disrepair correlates with higher mental health issues, which, in turn, may contribute to substance abuse and thereafter, crime. Here, it is apt to mention Harcourt, director of the Columbia Center for Contemporary Critical Thought and author of Illusion of Order: The False Promise of Broken-Windows Policing, who argues that disorder and crime share common roots rather than a causal relationship. The relationship between obscenity and crime is less clear than the relationship between disorder and crime.
Conclusion
Therefore, it is crucial to critically assess the impact of obscenity laws in terms of their enforcement and objectives, rather than assuming they will reduce crime based solely on the BWT. While there are conflicting results, certain restrictions—such as those on child pornography under the IT Act—remain essential for protecting privacy and preventing harassment. Although the original rationale for obscenity laws, rooted in British traditions and the BWT, may no longer fully apply, they continue to play an important role in safeguarding societal well-being. However, these laws must be carefully balanced to ensure the protection of marginalized groups from harassment on the pretext of reinforcing the BWT in Indian society.