Section 296 BNS (Bharatiya Nyaya Sanhita): Obscene acts and songs

Section 296 BNS 2023 deals with obscene acts and songs in public places. It forbids performing obscene acts or uttering obscene words or songs in or near public spaces with the intention to annoy others. The offence is punishable with up to three months imprisonment, fine up to Rs. 1,000 or both. Examples include public nudity, lewd gestures or singing obscene songs in parks or streets.

The criminal justice system of India was overhauled on 1st July 2024 with the introduction of the BNS, BNSS and BSA. These new laws replaced the IPC, CrPC and Indian Evidence Act to modernize the legal framework. Explore other important Judiciary Notes.

Section 296 BNS: Obscene acts and songs

Whoever, to the annoyance of others

(a) does any obscene act in any public place; or 

(b) sings, recites or utters any obscene song, ballad or words, in or near any public place, 

shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to one thousand rupees, or with both.

Note: “The information provided above 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.”

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Section 296 Bharatiya Nyaya Sanhita 2023 replaces the previous Section 294 of Indian Penal Code (IPC), 1860. It criminalizes performing obscene acts, singing obscene songs or uttering obscene words in or near any public place, causing annoyance to others. The aim is to maintain public decency and moral order in spaces accessible to the public.

The provision shows the societal need to uphold public morality and ensure that public spaces are free from vulgar, sexually explicit or indecent acts or language that can cause discomfort, annoyance or embarrassment to individuals.

• Obscene Acts refer to gestures, performances or behavior that is sexually suggestive, vulgar or offensive to public sensibilities.
• Obscene Songs or Words include singing, reciting, or uttering ballads or language with explicit sexual content or vulgarity audible in public places.
• Annoyance is the main ingredient of Section 296 BNS. The act must cause irritation, discomfort or embarrassment to others present.

Section 296 BNS 2023 Essential Elements

For an offence to be punishable under Section 296 BNS 2023 certain important elements must be present. The elements ensure that the act falls under the scope of public indecency and targeting behaviors that disrupt public order.

• Performance of an Obscene Act: It involves engaging in indecent gestures, nudity or any behavior that is considered sexually offensive or provocative.
• Singing or Uttering Obscene Songs, Ballads or Words: It refers to the act of performing or speaking vulgar or sexually explicit material in public spaces.
• The act must occur in or near a public place which is easily accessible to the general public.
• The act or utterance under Section 296 BNS must cause annoyance, discomfort, or disturbance to others in the vicinity.
• The act must be voluntary though strict intent may not always be necessary. Accidental acts or private conversations that are unintentionally heard in public may not be considered offences under the Section 296 Bharatiya Nyaya Sanhita, 2023.

Section 296 BNS 2023 addresses actions that create public disturbances through indecent or obscene conduct. The following are examples where such conduct might be considered an offence under this section:

• Example 1: A street performer uses vulgar dance moves involving sexually suggestive gestures in a public market causing embarrassment among shoppers.
• Example 2: A man loudly sings songs with explicit sexual lyrics while traveling in a public bus, disturbing fellow passengers.

Both individuals will be liable under Section 296 Bharatiya Nyaya Sanhita 2023 for causing public annoyance through obscene acts or songs.

Section 296 BNS: Nature and Scope

Section 296 BNS 2023 focuses on maintaining public decency by punishing obscene acts and language in public spaces. It empowers the legal authorities to act swiftly against disturbances. Now, the question arises whether Section 296 BNS bailable or not?

• Cognizable: Police can arrest without a warrant based on direct observation or a credible complaint.
• Section 296 BNS Bailable: The accused has the right to secure bail as a matter of entitlement.
• Non-Compoundable: Once proceedings are initiated under Section 296 Bharatiya Nyaya Sanhita 2023, the case cannot be withdrawn or settled privately.
• Triable by Any Magistrate: Cases under Section 296 BNS can be heard and decided by any Magistrate for quicker resolution.

The scope of BNS Section 296 revolves around safeguarding the decorum of public spaces by penalizing obscene acts that may disturb societal harmony. It mainly encompasses conduct in public areas while offering limited intervention in private matters unless public interest is affected.

• Public Spaces: Section 296 BNS 2023 applies specifically to actions or language in public areas like streets, parks, markets and transport hubs.
• Private Acts: It generally excludes acts within private premises unless they cause annoyance or discomfort to the public.
• Protecting Public Order: It focuses on preventing public disturbances caused by indecent exposure, behavior, or vulgar expressions.

Section 296 BNS Punishment aims to balance deterrence with fairness, reflecting the offence's public order nature.

• Imprisonment: Up to 3 months for engaging in obscene acts or language in public.
• Fine: A fine of up to Rs. 1,000 may be imposed.

Laws Regulating Obscenity in India

The laws governing obscenity in India aim to regulate and prevent the distribution or display of content that could harm public morals or decency. These laws cover various aspects, including public behavior, digital content and protection of vulnerable groups. The following are key provisions related to obscenity:

• Section 294 BNS 2023: Previously Section 292 of Indian Penal Code, this provision bans the sale, advertisement and public display of obscene material including digital content. It defines obscenity as content that is sexually suggestive, designed to provoke sexual thoughts, or likely to harm public morals. First-time offenders can face up to 2 years in prison and a Rs 5,000 fine while repeat offenders may receive up to 5 years in prison and a Rs. 10,000 fine.
• Section 296 BNS: It criminalizes the performance of obscene acts in public including the singing, reciting or uttering of obscene songs, ballads, or words in public, or doing so in a manner that annoys others.
• Section 67 of the Information Technology Act, 2000: This section penalizes the publication or transmission of obscene material online, with a definition of obscenity similar to that in Section 294 of the BNS. It prescribes harsher penalties, including up to 3 years in prison and a fine of up to ₹5 lakh for first-time offenders.
• Indecent Representation of Women (Prohibition) Act, 1986: The Indecent Representation of Women Prohibition Act prohibits the portrayal of women in an indecent, derogatory or degrading manner, aiming to protect public morality.
• POCSO Act, 2012: The Protection of Children from Sexual Offences Act prohibits the creation, storage, sharing or access to child sexual content online, imposing strict penalties for offenders.

Judicial Interpretation of Obscenity in India

The concept of obscenity in India has developed through various judicial interpretations, influenced by both domestic and international precedents. These interpretations have transformed the standards used to determine what constitutes obscene content. The following are important developments in the judicial interpretation of obscenity:

• Hicklin Test (1868, UK): The test was established in the case of Regina v. Hicklin. This test focused on whether the content had the potential to corrupt those ‘open to immoral influences.’ It did not take into account the artistic or literary value of the material leading to a low threshold for obscenity especially regarding impressionable audiences.
• Ranjit D. Udeshi v. State of Maharashtra (1964): The Supreme Court of India in Ranjit D. Udeshi case upheld the Hicklin test while ruling that Lady Chatterley’s Lover was obscene which reinforced the impact of the test in Indian obscenity law.
• Roth v. United States (1957): This case rejected the Hicklin test and introduced the "community standards test" which determined obscenity based on whether the content, taken as a whole, appealed to prurient interests and violated contemporary community standards.
• Aveek Sarkar v. State of West Bengal (2014): The Supreme Court embraced the community standards test and highlighted that isolated passages should not be used to judge obscenity. The Court quashed charges against a magazine for publishing a nude photo of tennis player Boris Becker. It stated that it did not arouse lust but conveyed an artistic and social message.
• College Romance Web Series Case (2024): In this case, the Supreme Court quashed obscenity charges under Section 292 of IPC and Section 67 of IT Act. The Court held that the use of explicit language alone does not qualify as obscenity if it does not arouse sexual desire.

Section 296 of BNS: Recent Judicial Developments and Trends

In recent trends, there has been growing attention on the regulation of online content especially regarding obscenity and its impact on society. The following developments reflect the evolving landscape of digital content regulation in India.

1. Uday Mahurkar and Ors. v. Union of India (2024): Recently, a PIL was filed to regulate ‘obscene’ content on OTT platforms like Netflix and Amazon Prime. The Court expressed reluctance to intervene and cited that the matter should be handled by the executive.

• The Court refrained from judicial interference.
• Emphasis on executive responsibility in regulating digital content.
• Growing concern over OTT platforms' content.

1. Maharashtra Cyber Police Case (2024): The Maharashtra Cyber Police filed First Information Reports against India’s Got Latent hosts Samay Raina and Ranveer Allahbadia for allegedly transmitting obscene content. The case highlighted the increasing complexities of regulating online obscenity in India.

Section 296 BNS 2023 vs Section 292 IPC 1860 Comparison

The comparison between Section 294 IPC and Section 296 BNS 2023 highlights the similarities and updates made in the re-codified BNS 2023. Both sections address similar offences, the BNS introduces more modern language and structure.

Aspect	Section 294 IPC	Section 296 BNS
Offence	Obscene acts and songs in public causing annoyance	Same
Punishment	Up to 3 months or fine or both	Same
Terminology	Focused on "sings, recites, or utters"	"Songs, ballads, or words" updated language

Conclusion

Section 296 BNS 2023 criminalizes obscene acts and the utterance of obscene songs or words in public places. The provision aims to maintain public decency. It punishes such acts with imprisonment for up to three months, fine of up to Rs. 1,000, or both. The law reflects a modernized approach compared to Section 294 IPC. This provision targets actions that cause discomfort or annoyance to others and ensuring public spaces remain free from vulgar or sexually explicit behavior.