The case of Aveek Sarkar v. State of West Bengal, decided on February 3, 2014, is a (liberal) step ahead by the Indian higher judiciary in interpreting obscenity. The criminal case, filed under sections 292 of the IPC and 4 of the Indecent Representation of Women (Prohibition) Act, 1986, was filed by a Kolkata-based advocate objecting to the publication of a photograph of Boris Becker with his fiancee, Barbara Feltus. The photograph, in which Becker and Feltus pose with the former’s arms covering the latter’s breasts, was initially published in a German magazine, and later reproduced by Sports World, an Indian magazine and Anandabazar Patrika, a newspaper in Kolkata.
The complaint, filed against the editors, publisher and printer of the two publications, claimed that the photograph was in derogation of the values of our society and would corrupt the minds of the viewers. The Judicial Magistrate Court and the High Court of Calcutta found the evidence sufficient to proceed with the trial of the accused.
In the appeal filed in the Supreme Court, the advocate for the appellant submitted that the photograph and the interview of Mr. Becker were clearly aimed at attacking the practice of apartheid and discrimination based on the colour of skin. He put forth that looking at the background and circumstances along with the photograph would put it firmly outside the concept of obscenity.
The accused also sought to use the defence of section 79, IPC that provides that if an act is done by a person who is justified by law, or who due to a mistake of fact believes that she’s justified in law, the act is not an offence. This defence was claimed to be applicable as the German magazine, Stern, that originally published the photograph, was not banned in India. On the other hand, the counsel for the Respondent submitted that the questions of good faith and public were matters of evidence and hence their determination would require a trial.
Relying on the cases of Ranjit Udeshi v. State of Maharashtra (which famously held that the novel, Lady Chatterley’s Lover – authored by DH Lawrence – was obscene) and S. Khushboo v. Kanniammal (2010) 5 SCC 600 (which held that actress Khushboo was not guilty of obscenity when she pointed out the prevalence of pre-marital sex in Indian society), the Court discussed the importance of interpretation of the question of obscenity with regard to “contemporary community standards”.
in doing so, the Court moved away from the heretofore popular Hicklin Test given in Regina v. Hicklin (1868 L.R. 2 Q.B. 360( to the effect that:
“The test of obscenity is whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall.”
This test was interpreted to mean that obscenity of a publication could be determined by judging isolated parts of the work taken out of context. The Court, noting the departure of American and Canadian Supreme Courts from the Hicklin Test, adopted the new test of “community standard test”.
The Court based this test on a strict interpretation of section 292 and gave the following requirements to determine obscenity of a publication:
(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.
The Court then compared the present case to that of Bobby Art International & Ors. v. Om Pal Singh Hoon (1996) 4 SCC 1 which held that the film, Bandit Queen, was not obscene despite the frontal nudity of a female child. The Court compared the two fact situations on the basis of the message conveyed. The Court stated that similar to the film, which sought to draw sympathy and understanding to Phoolan Devi’s vendetta against society, the photograph of Becker and Feltus meant to oppose the concept of apartheid and promote equality of races.The Court drew this message from Becker’s interview itself:
“The nude photos were supposed to shock, no doubt about it…. What I am saying with these photos is that an inter-racial relationship is okay.”
Stating that the photograph could not be said to have the tendency to deprave the minds of the viewers, the Court held that there was no violation of sections 292, IPC and quashed the criminal case against all the accused.
The Court held that:
“Applying the community tolerance test, we are not prepared to say such a photograph is suggestive of deprave minds and designed to excite sexual passion in persons who are likely to look at them and see them, which would depend upon the particular posture and background in which the woman is depicted or shown.”
The latter part of the above text that states that, “the particular posture and background in which the woman is depicted” is a vital factor, seems slightly ominous. It is difficult to construe exactly how a change in ‘posture’ or ‘background’ of the photograph – both visual, not contextual aspects – would alter the nature of the message conveyed by it. Such an interpretation opens the possibility of future benches exercising their own perceptions and morality in determining obscenity.
While pointing out the pitfall of individual construction, it is important to mention that one of the big positives of this judgment is the keenness of the Court to use the jurisprudence of more liberal countries such as the USA and the Canada in order to set the threshold for controversial concepts like obscenity. Moreover, the Court sought to make the determination of obscenity keeping in view the constitutional right of expression and was hence able to balance individual rights against society’s ‘good’.
In conclusion, this case marks a positive step in the progress of the Indian high judiciary towards the morality of the future.
You may find the full text of this judgment, Criminal Appeal No. 902 of 2004, on SCCOnline.co.in and Indiankanoon.org.