By Thishya Weragoda and Nethmini Medawala With the widespread circulation of a pornographic video that was shot near a waterfall in Sri Lanka, which was widely known as the “Pahanthudawa incident”, the discussion on obscenity in Sri Lanka resurfaced. The couple involved received a one-month imprisonment and were subjected to an immediate fine as local law enforcement was focused on punishing these two individuals as they could “potentially tarnish the reputation of Sri Lanka”. In the immediate aftermath, with the gatekeepers of tradition and culture up in arms, the Ministry of Justice moved to obtain Cabinet approval to gazette the draft Bill to deal with “obscene publications produced through Information Technology and other media”. The Bill received the almost instant nod of the Cabinet of Ministers on 5 October 2021. Considering the speed in which this entire process was completed, no public consultation was done, and there was no accountability and transparency as to whether any relevant stakeholder was consulted. The Bill was then gazetted on 27 December 2021, last Monday, with a view to repeal the current law on obscene publications. It was said to be done with the purpose of protecting women and children from the widespread online violence and sexual harassment. However, the Ministry of Justice, just two days later, last Wednesday (29 December), issued a press statement rescinding the Bill, considering the objections raised by the civil society actors, artists, and other stakeholders. The Ministry, in its statement, further stated that a consultative process will be undertaken with the civil society, Bar Association of Sri Lanka (BASL), Criminal Law Reform Committee, and other interested parties, before the current Bill is resubmitted for approval. Justice Minister Ali Sabry PC, at a public gathering, went on to say that the Bill was withdrawn due to its shortcomings and that it was a mistake to have published the same in the gazette. The move to rescind the Bill in its current form should be appreciated, and is a welcome step towards a consultative law-making process. All relevant stakeholders now have the opportunity to engage with the process to ensure that the fundamental freedoms of especially the marginalised groups are protected and strengthened. The laws that have any relevance to adult content in Sri Lanka can be found under the provisions of the Vagrants Ordinance No. 4 of 1841, Obscene Publication Ordinance No. 4 of 1921, and the Penal Code, all enacted when Sri Lanka (then Ceylon) was a British colony. At the time, with the influence of the Victorian era ideals, the British State focused on surveilling, censoring, restricting, and regulating any gender or sexual expression within all its colonies. The Obscene Publications Ordinance essentially criminalises trade, distribution, and the production or possession of “obscene writings, drawings, prints, paintings, printed matter, pictures, posters, emblems, photographs, cinematograph films, video cassettes, or any other obscene objects”. The purported ultimate objective was to save the subjects of the British Empire from being immoral and immodest and make them cultured via institutional, legal, and structural changes. The existence of a law of this nature has a direct impact on the right to freedom of expression and right to freedom of thought and conscience enshrined in the Constitution of Sri Lanka, as the State has a minimal role in setting up the boundaries of these fundamental principles of what makes Sri Lanka a democracy and a free country. In order for laws to be valid and relevant, they should evolve with society to correspond to the thinking of the context. The father of modern law Charles Montesquieu in his book “The Spirit of the Laws”, argued that political institutions needed, for their success, to reflect the social and geographical aspects of the community. None of the laws that govern obscenity in Sri Lanka provides a definition of the word. The rationale being that the term is given the leniency to be interpreted according to contemporary societal thinking. The Black’s Law Dictionary defines “obscene” in vague terms as “extremely offensive under contemporary community standards of morality and decency” and “grossly repugnant to the generally accepted notions of what is appropriate”. It also defines “indecency” as “the state or condition of being outrageously offensive, especially in a “vulgar or sexual way”. The “Hicklin test”, devised in 1868 England, permitted a conviction for purveyors of obscenity if a publication had a mere tendency to arouse lustful thoughts in the minds of the most susceptible, usually youthful, readers. For the first time in 1913, the US courts questioned the applicability of this test to the morality of present times. However, over a series of judgements that criticised the Hicklin test, the US completely scrapped the test in Roth vs. the United States, decided in 1957. In Roth vs. the United States, it was held that: “The early leading standard of obscenity allowed material to be judged merely by the effect of an isolated excerpt upon particularly susceptible persons. Some American courts adopted this standard but later decisions have rejected it and substituted this test; whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest. The Hicklin test, judging obscenity by the effect of isolated passages upon the most susceptible persons, might well encompass material legitimately treating with sex, and so it must be rejected as unconstitutionally restrictive of the freedoms of speech and press. On the other hand, the substituted standard provides safeguards adequate to withstand the charge of constitutional infirmity.”  The Supreme Court went on to hold that: “However, sex and obscenity are not synonymous. Obscene material is material which deals with sex in a manner appealing to prurient interest. The portrayal of sex, e.g., in art, literature, and scientific works, is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press. Sex, a great and mysterious motive force in human life, has indisputably been a subject of absorbing interest to mankind through the ages; it is one of the vital problems of human interest and public concern.” In Roth, the trial judge, addressing the jury had stated as: “The test is not whether it would arouse sexual desires or sexual impure thoughts in those comprising a particular segment of the community, the young, the immature, or the highly prudish or would leave another segment, the scientific or highly educated or the so-called worldly-wise and sophisticated indifferent and unmoved… The test in each case is the effect of the book, picture, or publication considered as a whole, not upon any particular class, but upon all those whom it is likely to reach. “In other words, you determine its impact upon the average person in the community. The books, pictures, and circulars must be judged as a whole, in their entire context, and you are not to consider detached or separate portions in reaching a conclusion. You judge the circulars, pictures, and publications which have been put in evidence by present-day standards of the community. You may ask yourselves if it offends the common conscience of the community by present-day standards.” As explained above, this case set a new standard to determine obscenity where the average person applying “contemporary community standards” would feel that the dominant theme of the material taken as a whole appealed to a prurient interest in sex. This was further developed in Miller vs. California in 1973. In Miller vs. California in 1973, the Supreme Court held: “The basic guidelines for the trier of fact must be:

1. Whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest
2. Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law
3. Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value”

The Supreme Court goes on to highlight that the “community standards” do not refer to a national standard: “‘The average person, applying contemporary community standards’ is to be certain that, so far as material is not aimed at a deviant group, it will be judged by its impact on an average person, rather than a particularly susceptible or sensitive person – or indeed a totally insensitive one.” Defining the contemporary community standards is left to the judiciary, and as the US Supreme Court once said in Mishkin vs. State of New York, it is an irksome and inevitably unpopular and unwholesome task of finally deciding by a case-by-case, sight-by-sight, personal judgment of the members of this Court what pornography (whatever that means) is too hardcore for people to see or read. Coming back to the Sri Lankan context, which has a heritage of over 2,500 years including artistic nudity (such as Sigiriya frescoes and Isurumuniya Lovers) narratives of kings and harems of the past to custom of polygamy and polyandry, it is inconceivable to imagine that sex, sexual activities, and depictions are considered obscene or immoral. The findings in De Brun vs. Dharmabandu shed light on the attitude of Sri Lankan courts in the mid-20th Century. It was held that a document or publication may be considered as obscene, if in the mind of the person who refers to it, presumes it to be so. It is quite regrettable that Georges vs. Velupillai and De Bruin vs. Dharmabandu are the only authorities on the matter of discussing what obscenity is, and it is high time that the courts revisit this issue as a matter of general and public importance. The danger in assessing whether a publication is obscene based on an unintended audience is rather serious. For example, all sexual acts or depictions thereof are not per se obscene. The law on obscene publications should not be utilised to identify the “public” as the public at large but the intended audience. If the law was to be interpreted in any other way, the most regressive and conservative of the society would have a veto on what the rest of society is entitled to see, watch, and think of. In the modern day where outrageous sexual conduct between consenting adults per se is not considered as taboo, it is unwholesome to consider it as obscene or corrupting or depraving the morals of the general public. In Sri Lanka, the Supreme Court in Sanath Wimalasiri vs. OIC Maradana, held inter alia that: “The contemporary thinking, that consensual sex between adults should not be policed by the state nor should it be grounds for criminalisation appears to have developed over the years and may be the rationale that led to repealing of the offence of gross indecency and buggery in England.” It is evident that when assessing the issue of public morality and decency, the Supreme Court of Sri Lanka too has considered and accepted that “contemporary thinking” needs to be considered. The thinking of the apex court in this case requires to be transposed to other litigation in minor courts in relation to sex, and sexual conduct. It is rather unfortunate that Sri Lanka is still prosecuting consenting adults under the Obscene Publications Ordinance in defence of the Victorian era ideals introduced by the colonial rulers whilst the laws in those countries are now very much more liberalised holding inter alia that those Victorian era ideals are archaic. It is a common and accepted fact that sexual desire forms a part of thought and conscience of individuals. In terms of the Sri Lankan Constitution, all persons enjoy the freedom of thought and conscience as a fundamental right (Article 10 of the Constitution) which for obvious reasons, cannot be restricted in any manner or form whatsoever. A necessary corollary, citizens have a right to freedom of expression (Article 14[1]), subject to the limitations provided in the Constitution itself (Article 15[7]). In a society where the Constitution provides for the protection and promotion of personal autonomy in deciding a person’s preferences including sexual orientation and desires, the question arises as to what extent and how should the State interfere with such rights. Then the question arises as to how or why any restriction on the freedom of thought, consciences, and speech should be imposed in relation to pornography. In Fernando vs. Sri Lanka Broadcasting Corporation (1996) Fernando J. held inter alia that: “Article 10 denies the government the power to control men’s minds, while Article 14(1) (a) excludes the power to curb their tongues. And that may explain and justify differences in regard to restrictions: e.g. that less restrictions are permissible in regard to possession of obscene material for private use than for distribution. In our Constitution no restrictions are permitted in relation to freedom of thought, while Article 15 permits some on freedom of speech.” And quoting from Stanley vs. Georgia, the Court went on to hold: “Whatever the power of the state to control public dissemination of ideas inimical to the public morality, it cannot constitutionally premise legislation on the desirability of controlling a person’s private thoughts…given the present state of knowledge, the State may no more prohibit mere possession of obscene matter on the ground that it may lead to antisocial conduct than it may prohibit possession of chemistry books on the ground that they may lead to the manufacture of homemade spirits.” In the Sri Lankan context, it has to be noted that there have been several attempts by the Police to arrest consenting adults for viewing pornography in their personal space or possessing pornography in personal digital devices. Indiscriminate prosecutions, in the local context, have serious repercussions on the dignity and reputation of those arrested and prosecuted under the Obscene Publication Ordinance. Courts should not mechanically accept any admission of guilt by any persons who are charged under the particular provisions of the Obscene Publications Ordinance and proceed to assess whether there is any fundamental basis to arrest and produce before court any person who had pornography for his or her personal consumption and not commercial gain. In assessing whether possession for personal consumption is prohibited under the Sri Lankan statutes, it is essential to analyse Section 2(2)(a) of the Obscene Publications Ordinance. In any assessment of a person committing an offense under this section, firstly, the court must be satisfied that the material concerned is “obscene”, and not merely a depiction of sexual conduct. Secondly, if such material meets such a threshold of “obscenity”, it must be either made, produced, or in possession for such stated purposes or otherwise for purposes of, or by way of trade or for distribution or public exhibition. This aspect of the section makes it amply clear that it is commercial exploitation that is being targeted and not mere possession for private consumption or circulation. In addition to making clear provisions identify obscenity and its effect on public, during the consultative process to repeal the Obscene Publications Ordinance, it is pertinent to make provisions in a manner in which the new law protects the right to the freedoms of thought, and expression, including artistic and creative expression. Artistic and creative expression plays an important role in individual lives, the development of culture, and the functioning of democratic societies. Art and entertainment can also highlight injustices and inspire opposition to it. This Bill should in no way attempt to suppress or attack artistic expression, censor dissent, or silence women and persons belonging to minority groups in the guise of obscenity. In a society where democracy and rule of law are eroding, religious leaders determining what the law ought to be with increased militarisation, even laws drafted in “good faith” have been continually abused. Precautions must be taken to make sure the same doesn’t happen in the implementation of the proposed Bill, once finalised. (The authors are Attorneys-at-Law of the Supreme Court of Sri Lanka)