The Article 19(1)(a) of the Indian Constitution grants the citizen of India freedom of speech and expression; however, this fundamental right is not absolute as it is subject to the grounds given under Article 19(2). The one such ground given under Article 19(2) of the Indian Constitution is morality and decency. The tooth to the Article 19 has been provided by Section 292, 293 and 294 of Indian Penal Code which penalises sale, distribution, taking part in business of obscene representation; further, Section 67 and 67A of the Information Technology Act, 2000 punishes obscene representation through electronic form. The term obscenity has not been defined in any of the aforementioned provisions. The Supreme Court of India earlier adopted the English Common Law Hicklin test for determining obscenity in the case of Ranjit D. Udeshi v. The State of Maharashtra 1965 AIR 881 wherein it laid down that the content will be obscene if it

· "Depraves and corrupts those whose minds are open to such immoral influences.

· That which suggests thoughts of a most impure and libidinous character.

· That which is hard-core pornography.

· That which has a substantial tendency to corrupt by arousing lustful desires.

· That which tends to arouses sexually impure thoughts.

· That which passes the permissive limits judged of from our community standards."

However, in the case of Aveek Sarkar v. State of West Bengal (2014) 4 SCC 257 Supreme Court declined the Hicklin test and adopted the Roth test for the determination of obscenity which states that "the question of obscenity must be seen in the context in which the photograph appears and the message it wants to convey. The correct test to determine obscenity would be, Community Standards Test i.e. Roth test and not Hicklin Test and check on obscenity the material in question to be 'taken as a whole', if it appears to be lascivious and tends to deprave the person who reads, see or hear that material, then only that material can be said to be obscene." Although, considering either the Hicklin test or Roth test pornography falls within the ambit of obscenity and hence banned in India.

In the present ongoing Raj Kundra Case, the businessman Raj Kundra has been booked under Section 34, 292, 293, 420 of Indian Penal Code, 1860; Section 67 and 67A of Information Technology Act,2000 and also under Indecent Representation of Women (Prohibition) Act.

The fact of the case goes back to February 4th, 2021 wherein Mumbai police arrested five artistes for allegedly forcing women to act in porn movies. These women were aspiring actresses who were promised opportunities in web series, later on the day of shooting, the scripts were altered and they were threaten to shoot for porn movies and if they refused then were asked to pay the hefty cost for shooting preparation. These movies were shot in a rented bungalow on the outskirts of Mumbai. After, the movies were shot, it were promoted on social media platforms and uploaded on OTT platform called "Hotshots" similar to that of other OTT platforms with subscription. The Arms Prime Pvt Ltd. was founded by Raj Kundra which developed the said app. The app was then sold for $25,000 to Kenrin Ltd., a Londonbased company run by Kundra’s cousin Pardeep Bakshi. Kundra resigned from Arms Prime Media in December 2019, however, he used to control the app’s whole functioning through three WhatsApp groups. Furthermore, the police investigation has so far two components; one was pursuing individuals who created the pornographic shows, while the other focused on the ones who broadcasted the clips. The executive of one such UK based production house was Umesh Kamat which has alleged ties with Raj Kundra.

The business tycoon Raj Kundra has been charged for sale and distribution of obscene acts under the provisions of Indian Penal Code, Information Technology Act and Indecent Representation of Women (Prohibition) Act. The relevant provisions of Indian Penal Code and Information Technology Act are as follows:

"292 Of Indian Penal Code, 1860

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, 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 person, 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, 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 im-prisonment of either description for a term which may extend to two years, and with fine which may extend to two 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 five thousand rupees.

66A of the Information Technology Act, 2000

Punishment for sending offensive messages through communication service, etc. : Any person who sends, by means of a computer resource or a communication device,-

(a) any information that is grossly offensive or has menacing character; or

(b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device; or

(c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages, shall be punishable with imprisonment for a term which may extend to three years and with fine.

Explanation: For the purpose of this section, terms "electronic mail" and "electronic mail message" means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, image, audio, video and any other electronic record, which may be transmitted with the message."

The facts discovered during the investigation by the police and charges imposed it could be inferred that Raj Kundra is charged for sale and distribution of the obscene content. The company which created the app was the founded by Mr. Kundra and despite resigning from the company he remotely controlled the functioning of the company. Furthermore, the company which earned profits from the app, had connections with the said businessman. In India, pornography is illegal by virtue of its being obscene. The term obscene had been given the meaning by Supreme Court of India in various judgments as stated earlier. Therefore, the sale, distribution, import, export advertisement etc., basically any activity related to any kind of pornographic content has be prohibited in the nation. Currently, Raj Kundra is in judicial custody. The final outcome of the case is yet to be declare