In the case of Aveek Sarkar & Anr. v. State of West Bengal & Ors., the Supreme Court of India held that a photograph published in a magazine, showing a woman and a man partially nude, did not amount to obscenity under Section 292 of the Indian Penal Code. The Court emphasized that obscenity must be
Citation: [2014] 2 S.C.R. 263
Date of judgment: 3rd February, 2014
Court: Supreme Court of India
Bench: K.S. Radhakrishnan (J) and A.K. Sikri (J)
Facts
- A German magazine by name “STERN” having worldwide circulation published an article with a picture of Boris Becker, a world-renowned Tennis player, posing nude with his dark-skinned fiancée Barbara Feltus, a film actress, which was photographed by none other than her father.
- Article picturises Boris Becker as a protester of the evil practice of “Apartheid”. Further, it was stated that the purpose of the photograph was also to signify that love champions over hatred.
- “Sports World”, a widely circulated magazine published in India reproduced the article and the photograph as cover story in its Issue 15 dated 05.05.1993. Similarly, Anandabazar Patrika, a newspaper having wide circulation in Kolkata, also published the above-mentioned photograph as well as the article on 06.05.1993, as appeared in the Sports World.
- A lawyer practicing at Alipore Judges Court, Kolkata filed a complaint under Section 292 of the Indian Penal Code as well as Section 4 of the Indecent Representation of Women (Prohibition) Act, 1986 against the Appellants herein, before the Sub-Divisional Magistrate at Alipore.
- Complaint stated that the nude photograph appearing in the Anandabazar Patrika, as well as in the Sports World, would corrupt young minds, both children and youth of this country, and is against the cultural and moral values of our society.
Decision of the Sub – Divisional Magistrate, Alipore
The Court observed that the Section 292 does not define the word ‘obscene’, but with the materials on record, it has the effect of depriving and debauching the mind of the persons into whose hands it may come. So, the accused persons are not entitled to get the benefit of Section 79 I.P.C.
Hence, the court held that the accused persons to be examined under Section 251 Cr.P.C. for the offence punishable under Section 292 IPC as well as under Section 4 of the Indecent Representation of Women (Prohibition) Act, 1986.
Decision of the High Court
The High Court did not appreciate any contention and declined to quash the proceedings under Section 483 Cr.P.C.
Judgment
The Supreme Court held that no offence has been committed under Section 292 IPC and the question whether it falls in the first part of Section 79 IPC has become academic. Therefore, appeal was allowed and the criminal proceedings against the appellants were set aside.
Key legal Issues discussed
- Whether the Hicklin test is the correct test to determine “what is obscenity”?
No
Court observed that it would be preferable to apply the “community standard test” rather than “Hicklin test” to determine the question of “obscenity”. A bare reading of Section 292(1), makes clear that a picture or article shall be deemed to be obscene:
(i) if it is lascivious;
(ii) it appeals to the prurient interest, and
(iii) it tends to deprave and corrupt persons who are likely to read, see or hear the matter, alleged to be obscene.
Only those sex-related materials which have a tendency of “exciting lustful thoughts” can be held to be obscene, but the obscenity has to be judged from the point of view of an average person, by applying contemporary community standards.
- Whether the photograph in the context of the message it conveys could be held as obscene?
No
The Court stated that in the context of the message, the photograph wants to convey that the colour of skin matters little and love champions over colour. Picture promotes a love affair, leading to a marriage, between a white-skinned man and a black skinned woman.
Referring to Bobby Art International & Ors. v. Om Pal Singh Hoon[1], it was pointed out that the so-called objectionable scenes in the film have to be considered in the context of the message that the film was seeking to transmit in respect of social menace of torture and violence against a helpless female child which transformed her into a dreaded dacoit.
Similarly in Ajay Goswami v. Union of India[2], the court while examining the scope of Section 292 IPC held that the commitment to freedom of expression demands that it cannot be suppressed, unless the situations created by it allowing freedom are pressing and the community interest is endangered.
So, applying the community tolerance test, the photograph has no tendency to deprave or corrupt the minds of people in whose hands the magazine Sports World or Anandabazar Patrika would fall; depending upon the posture and background in which the woman is depicted or shown.
Therefore, we should appreciate the photograph and the article in light of the message it wants to convey, that is to eradicate the evil of racism and apartheid in the society and to promote love and marriage between white skinned man and a black skinned woman.
[1] (1996) 4 SCC 1.
[2] (2007) 1 SCC 143.
