Sec. 292 of I.P.C. - Section 4 of the Indecent Representation of Women (Prohibition) Act, 1986, - private complaint against STERN magazine and Anandabazar Patrika -The message,a picture of Boris Becker, a world renowned Tennis player, posing nude with his dark-skinned fiancée by name Barbara Feltus, a film actress- the photograph wants to convey is that the colour of skin matters little and love champions over colour. Picture promotes love affair, leading to a marriage, between a white-skinned man and a black skinned woman.- is not an offence - Lower court and high court failed to consider the settled postilion of law - Apex court quashed the proceedings =
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
by name Barbara Feltus, a film actress, which was photographed by
none other than her father.
The article states that, in an
interview, both Boris Becker and Barbaba Feltus spoke freely about
their engagement, their lives and future plans and the message they
wanted to convey to the people at large, for posing to such a
photograph.
Article picturises Boris Becker as a strident
protester of the pernicious practice of “Apartheid”.
Further, it
was stated that the purpose of the photograph was also to signify
that love champions over hatred.
2. “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 with the caption
“Posing nude dropping out of tournaments, battling Racism in Germany.
Boris Becker explains his recent approach to life” – Boris Becker
Unmasked.
3. Anandabazar Patrika, a newspaper having wide circulation in Kolkata,
also published in the second page of the newspaper the above-mentioned
photograph as well as the article on 06.05.1993, as appeared in the Sports
World. =
Advocate filed a private complaint under sec. 292 I.P.C. and sec.4 of Indecent Representation of Women (Prohibition) Act, 1986.
Complainant also urged that the accused persons should not only be
prosecuted under Section 292 IPC, but also be prosecuted under Section 4 of
the Indecent Representation of Women (Prohibition) Act, 1986, since the
photograph prima facie gives a sexual titillation and its impact is moral
degradation and would also encourage the people to commit sexual offences.
The learned Magistrate on 10.5.1993 passed the following order in
Criminal Case Ref. Case No.C.796 of 1993 :
‘Complainant is present. He is examined and discharged. No other PWs
are present. It appears that a prima facie case is made out against
the accused persons under Section 292 IPC. Issue summons against all
the accused persons fixing 17.6.1993 for S.P. and appearance.
Requisite at one.” =
whether the photograph of Boris Becker with his
fiancée Barbara Fultus, a dark-skinned lady standing close to each other
bare bodied but covering the breast of his fiancée with his hands can be
stated to be objectionable in the sense it violates Section 292 IPC. =
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. Breast of Barbara Fultus has been fully covered with
the arm of Boris Becker, a photograph, of course, semi-nude, but taken by
none other than the father of Barbara. Further, the photograph, in our
view, has no tendency to deprave or corrupt the minds of people in whose
hands the magazine Sports World or Anandabazar Patrika would fall.
28. We may also indicate that the said picture has to be viewed in the
background in which it was shown, and the message it has to convey to the
public and the world at large. The cover story of the Magazine carries the
title, posing nude, dropping of harassment, battling racism in Germany.
Boris Becker himself in the article published in the German magazine,
speaks of the racial discrimination prevalent in Germany and the article
highlights Boris Becker’s protests against racism in Germany. Boris
Becker himself puts it, as quoted in the said article:
“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.”
29. The message, the photograph wants to convey is that the colour of
skin matters little and love champions over colour. Picture promotes love
affair, leading to a marriage, between a white-skinned man and a black
skinned woman.
30. We should, therefore, appreciate the photograph and the article in
the 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. When viewed in that
angle, we are not prepared to say that the picture or the article which was
reproduced by Sports World and the Anandabazar Patrika be said to be
objectionable so as to initiate proceedings under Section 292 IPC or under
Section 4 of the Indecent Representation of Women (Prohibition) Act, 1986.
31. We have found that no offence has been committed under Section 292
IPC and then the question whether it falls in the first part of Section 79
IPC has become academic. We are sorry to note that the learned Magistrate,
without proper application of mind or appreciation of background in which
the photograph has been shown, proposed to initiate prosecution proceedings
against the Appellants. Learned Magistrate should have exercised his wisdom
on the basis of judicial precedents in the event of which he would not have
ordered the Appellants to face the trial. The High Court, in our view,
should have exercised powers under Section 482 Cr.P.C. to secure the ends
of justice.
32. We are, therefore, inclined to allow this appeal and set aside the
criminal proceedings initiated against the Appellants. The Appeal is
allowed as above.
2014 (February part) judis.nic.in/supremecourt/filename=41203 K.S. RADHAKRISHNAN, A.K. SIKRI
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.902 OF 2004
Aveek Sarkar & Anr. .. Appellants
Versus
State of West Bengal & Ors. .. Respondents
J U D G M E N T
K. S. RADHAKRISHNAN, J.
1. 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
by name Barbara Feltus, a film actress, which was photographed by
none other than her father.
The article states that, in an
interview, both Boris Becker and Barbaba Feltus spoke freely about
their engagement, their lives and future plans and the message they
wanted to convey to the people at large, for posing to such a
photograph.
Article picturises Boris Becker as a strident
protester of the pernicious practice of “Apartheid”. Further, it
was stated that the purpose of the photograph was also to signify
that love champions over hatred.
2. “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 with the caption
“Posing nude dropping out of tournaments, battling Racism in Germany.
Boris Becker explains his recent approach to life” – Boris Becker
Unmasked.
3. Anandabazar Patrika, a newspaper having wide circulation in Kolkata,
also published in the second page of the newspaper the above-mentioned
photograph as well as the article on 06.05.1993, as appeared in the Sports
World.
4. A lawyer practicing at Alipore Judge’s Court, Kolkata, claimed to be
a regular reader of Sports World as well as Anandabazar Patrika filed a
complaint under Section 292 of the Indian Penal Code against the Appellants
herein, the Editor and the Publisher and Printer of the newspaper as well
as against the Editor of the Sports World, former Captain of Indian Cricket
Team, late Mansoor Ali Khan of Pataudi, before the Sub-Divisional
Magistrate at Alipore. Complaint stated that as an experienced Advocate
and an elderly person, he could vouchsafe that the nude photograph appeared
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. The complainant stated that
unless such types of obscene photographs are censured and banned and
accused persons are punished, the dignity and honour of our womanhood would
be in jeopardy. The complainant also deposed before the Court on
10.5.1993, inter alia, as follows :
“………That the Accused No.1 and the Accused No.2 both the editors of
Ananda Bazar Patrika and Sports World respectively intentionally and
deliberately with the help of the Accused No.3 for the purpose of their
business, particularly for sale of their papers and magazines
published, printed and publicly exhibited and circulated and also sold
their papers and magazines namely, Anand Bazar Patrika and Sports World
dated 6.5.1993 wherein the photograph of world class Lawn Tennis player
namely, Boris Becker and his girl friend German Film Actress Miss
Barbara have been published in a manner in an inter-twined manner
wherein Boris Becker placed the hand upon the breast of Miss Barbara
which have annexed in my petition with a caption ‘Boris Backer Un-
masked’ which is absolutely obscene and lascivious in nature and which
is a criminal offence. The obscene and about nude photographs show
published by the accused persons in the mind of myself as well as
society of different age group have a very bad impact……..”
5. The learned Magistrate on 10.5.1993 passed the following order in
Criminal Case Ref. Case No.C.796 of 1993 :
‘Complainant is present. He is examined and discharged. No other PWs
are present. It appears that a prima facie case is made out against
the accused persons under Section 292 IPC. Issue summons against all
the accused persons fixing 17.6.1993 for S.P. and appearance.
Requisite at one.”
6. Complainant also urged that the accused persons should not only be
prosecuted under Section 292 IPC, but also be prosecuted under Section 4 of
the Indecent Representation of Women (Prohibition) Act, 1986, since the
photograph prima facie gives a sexual titillation and its impact is moral
degradation and would also encourage the people to commit sexual offences.
The accused persons on 5.3.1993 filed an application before the Court for
dropping the proceedings stating that there was no illegality in
reproducing in the Sports World as well as in the Anandabazar Patrika of
the news item and photograph appeared in a magazine ‘STERN” published in
Germany.
Further, it was pointed out that the said magazine was never
banned entry into India and was never considered as ‘obscene’, especially
when Section 79 of Indian Penal Code states that nothing is an offence
which is done by any person who is justified by law, or who by reason of a
mistake of fact and not reason of a mistake of law in good faith, believes
himself to be justified by law, in doing it.
7. The Court after seeing the photographs and hearing the arguments on
either side, held as follows :-
“Moreover, until evidence comes in it will not be proper to give any
opinion as to the responsibility of the accused persons. But I feel it
pertinent to mention that though the Section 292 does not define word
‘obscene’, but my rids of precedents have clustered round on this point
and being satisfied with the materials on record, pernicious effect of
picture in depraving and debauching the mind of the persons into whose
hands it may come and also for other sufficient reasons to proceed
further this Court was pleased to issue process against the accused
persons under Section 292 I.P.C. At present having regard to the facts
of the case, I find the matter merits interference by not dropping the
proceedings as prayed for. It is too early to say that the accused
persons are entitled to get benefit of Section 79 I.P.C.”
8. The Magistrate after holding so, held the accused persons to be
examined under Section 251 Cr.P.C. and ordered that they would be put to
face the trial for the offence punishable under Section 292 IPC
alternatively under Section 4 of the Indecent Representation of Women
(Prohibition) Act, 1986.
9. The Appellants herein preferred Criminal Revision No.1591 of 1994
before the High Court of Calcutta under Section 482 Cr.P.C. for quashing
the proceedings in Case No.C.796 of 1993 (corresponding to T.R. No.35 of
1994) pending before the learned Judicial Magistrate Court, Alipore.
Before the High Court, it was pointed out that the Magistrate had not
properly appreciated the fact that there was no ban in importing the German
sports magazine ‘STERN” into India. Consequently, reproduction of any
picture would fall within the general exception contained in Section 79
IPC. Reference was also made to letter dated 20th July, 1993 addressed by
the Assistant Editor, Sports World to the Collector, Calcutta Customs and a
copy of the letter dated 4.10.1993 sent by the Deputy Collector, Calcutta
Customs to the Assistant Editor, Sports World. Referring to the picture,
it was pointed out that the picture only demonstrates the protest lodged by
Boris Becker as well as his fiancée against ‘apartheid” and those facts
were not properly appreciated by the learned Magistrate. Further, it was
also pointed out that the offending picture could not be termed as obscene
inasmuch as nudity per se was not obscene and the picture was neither
suggestive nor provocative in any manner and would have no affect on the
minds of the youth or the public in general. Further, it was also pointed
out that the learned Magistrate should not have issued summons without
application of mind. The High Court, however, did not appreciate all
those contentions and declined to quash the proceedings under Section 483
Cr.P.C., against which this appeal has been preferred.
10. Shri Pradeep Ghosh, learned senior counsel, appearing for the
Appellants, submitted that the publication in question as well as the
photograph taken, as a whole and in the background of facts and
circumstances, cannot be said to be per se “obscene” within the meaning of
Section 291(1) IPC so as to remand a trial of the Appellants in respect of
the alleged offence under Section 292(1) IPC. The learned counsel pointed
out that obscenity has to be judged in the context of contemporary social
mores, current socio-moral attitude of the community and the prevalent
norms of acceptability/ susceptibility of the community, in relation to
matters in issue.
In support of this contention, reliance was placed on
the Constitution Bench judgment of this Court
in Ranjit D. Udeshi v. State of Maharashtra AIR 1965 SC 881.
Reference was also made to the judgment of
this Court in
Chandrakant Kalyandas Kakodar v. State of Maharashtra 1969(2) SCC 687.
Few other judgments were also referred to in support of his
contention. Learned senior counsel also pointed out that the learned
Magistrate as well as the High Court have completely overlooked the context
in which the photograph was published and the message it had given to the
public at large. Learned senior counsel also pointed out that the
photograph is in no way vulgar or lascivious. Learned senior counsel also
pointed out that the Courts below have not properly appreciated the scope
of Section 79 IPC and that the Appellants are justified in law in
publishing the photograph and the article which was borrowed from the
German magazine. Learned senior counsel also pointed out that such a
publication was never found to be obscene even by the State authorities and
no FIR was ever lodged against the Appellants and a private complaint of
such a nature should not have been entertained by the learned Magistrate
without appreciating the facts as well as the law on the point. Learned
senior counsel pointed out that the High Court ought to have exercised
jurisdiction under Section 482 Cr.P.C.
11. Shri Mohit Paul, learned counsel, appearing for the Respondents,
submitted that the Courts below were justified in holding that it would not
be proper to give an opinion as to the culpability of the accused persons
unless they are put to trial and the evidence is adduced. Learned counsel
pointed out that the question whether the publication of the photograph is
justified or not and was made in good faith requires to be proved by the
Appellants since good faith and public good are questions of fact and
matters for evidence. Learned counsel pointed out that the learned
Magistrate as well as the High Court was justified in not quashing the
complaint and ordering the Appellants to face the trial.
TEST OF OBSCENITY AND COMMUNITY STANDARDS
12. Constitution Bench of this Court in the year 1965 in Ranjit D. Udeshi
(supra) indicated that the concept of obscenity would change with the
passage of time and what might have been “obscene” at one point of time
would not be considered as obscene at a later period. Judgment refers to
several examples of changing notion of obscenity and ultimately the Court
observed as follows :-
“…. The world, is now able to tolerate much more than formerly, having
coming indurate by literature of different sorts. The attitude is not
yet settled…..”
This is what this Court has said in the year 1965.
13. Again in the year 1969, in Chandrakant Kalyandas Kakodar (supra),
this Court reiterated the principle as follows:-
“The standards of contemporary society in India are also fast changing.
“
14. Above mentioned principle has been reiterated in
Samaresh Bose v. Amal Mitra (1985) 4 SCC 289 by laying emphasis on contemporary social
values and general attitude of ordinary reader. Again in 2010, the
principle of contemporary community standards and social values have been
reiterated in S. Khushboo V. Kanniammal (2010) 5 SCC 600.
15. This Court in Ranjit D. Udeshi (supra) highlighted the delicate task
to be discharged by the Courts in judging whether the word, picture,
painting, etc. would pass the test of obscenity under Section 292 of the
Code and the Court held as follows :
“The Penal Code does not define the word obscene and this delicate task
of how to distinguish between that which is artistic and that which is
obscene has to be performed by courts, and in the last resort by the
Supreme Court. The test must obviously be of a general character but
it must admit of a just application from case to case by indicating a
line of demarcation not necessarily sharp but sufficiently distinct to
distinguish between that which is obscene and that which is not. None
has so far attempted a definition of obscenity because the meaning can
be laid bare without attempting a definition by describing what must be
looked for. It may, however, be said at once that treating with sex and
nudity in art and literature cannot be regarded as evidence of
obscenity without something more. The test of obscenity must square
with the freedom of speech and expression guaranteed under our
Constitution. This invites the court to reach a decision on a
constitutional issue of a most far reaching character and it must
beware that it may not lean too far away from the guaranteed freedom.”
16. Applying the above test, to the book “Lady Chatterley’s Lover”,
this Court in Ranjit D. Udeshi (supra) held that in treating with sex the
impugned portions viewed separately and also in the setting of the whole
book passed the permissible limits judged of from our community standards
and there was no social gain to the public which could be said to
preponderate the book must be held to satisfy the test of obscenity.
17. The novel “Lady Chatterley’s Lover” which came to be condemned as
obscene by this Court was held to be not obscene in England by Central
Criminal Court. In England, the question of obscenity is left to the
Jury. Byrne, J., learned Judge who presided over the Central Criminal
Court in R. v. Penguin Books Ltd. (1961 Crl. Law Review 176) observed as
follows :-
“In summing up his lordship instructed the jury that: They must
consider the book as a whole, not selecting passages here and there
and, keeping their feet on the ground, not exercising questions of
taste or the functions of a censor. The first question, after
publication was: was the book obscene? Was its effect taken as a whole
to tend to deprave and corrupt persons who were likely, having regard
to all the circumstances, to read it? To deprave meant to make morally
bad, to pervert, to debase or corrupt morally. To corrupt meant to
render morally unsound or rotten, to destroy the moral purity or
chastity, to pervert or ruin a good quality, to debase, to defile. No
intent to deprave or corrupt was necessary. The mere fact that the jury
might be shocked and disgusted by the book would not solve the
question. Authors had a right to express themselves but people with
strong views were still members of the community and under an
obligation to others not to harm them morally, physically or
spiritually. The jury as men and women of the world, not prudish but
with liberal minds, should ask themselves was the tendency of the book
to deprave and corrupt those likely to read it, not only those reading
under guidance in the rarefied atmosphere of some educational
institution, but also those who could buy the book for three shillings
and six pence or get it from the public library, possibly without any
knowledge of Lawrence and with little knowledge of literature. If the
jury were satisfied beyond reasonable doubt that the book was obscene,
they must then consider the question of its being justified for public
good in the interest of science, literature, art or learning or other
subjects of general concern. Literary merits were not sufficient to
save the book, it must be justified as being for the public good. The
book was not to be judged by comparison with other books. If it was
obscene then if the defendant has established the probability that the
merits of the book as a novel were so high that they outbalanced the
obscenity so that the publication was the public good, the jury should
acquit.”
18. Later, this Court in Samaresh Bose (supra), referring to the Bengali
novel “Prajapati” written by Samaresh Bose, observed as follows :-
“35. .................. We are not satisfied on reading the book that
it could be considered to be obscene. Reference to kissing, description
of the body and the figures of the female characters in the book and
suggestions of acts of sex by themselves may not have the effect of
depraving, debasing and encouraging the readers of any age to
lasciviousness and the novel on these counts, may not be considered to
be obscene. It is true that slang and various unconventional words have
been used in the book. Though there is no description of any overt act
of sex, there can be no doubt that there are suggestions of sex acts
and that a great deal of emphasis on the aspect of sex in the lives of
persons in various spheres of society and amongst various classes of
people, is to be found in the novel. Because of the language used, the
episodes in relation to sex life narrated in the novel, appear vulgar
and may create a feeling of disgust and revulsion. The mere fact that
the various affairs and episodes with emphasis on sex have been
narrated in slang and vulgar language may shock a reader who may feel
disgusted by the book does not resolve the question of
obscenity...............”
We have already indicated, this was the contemporary standard in the year
1985.
19. We are, in this case, concerned with a situation of the year 1994,
but we are in 2014 and while judging as to whether a particular photograph,
an article or book is obscene, regard must be had to the contemporary mores
and national standards and not the standard of a group of susceptible or
sensitive persons.
HICKLIN TEST:
20. In the United Kingdom, way back in 1868, the Court laid down the
Hicklin test in Regina v. Hicklin (1868 L.R. 2 Q.B.
360), and held as follows :-
“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.”
21. Hicklin test postulated that a publication has to be judged for
obscenity based on isolated passages of a work considered out of context
and judged by their apparent influence on most susceptible readers, such as
children or weak-minded adults. United States, however, made a marked
departure. Of late, it felt that the Hicklin test is not correct test to
apply to judge what is obscenity. In Roth v. United States 354 U.S. 476
(1957), the Supreme Court of United States directly dealt with the issue of
obscenity as an exception to freedom of speech and expression. The Court
held that the rejection of “obscenity” was implicit in the First Amendment.
Noticing that sex and obscenity were held not to be synonymous with each
other, the Court held that only those sex-related materials which had the
tendency of “exciting lustful thoughts” were found to be obscene and the
same has to be judged from the point of view of an average person by
applying contemporary community standards.
22. In Canada also, the majority held in Brodie v. The Queen (1962 SCR
681) that D.H. Lawrence’s novel “Lady Chatterley’s Lover” was not obscene
within the meaning of the Canadian Criminal Code
23. The Supreme Court of Canada in Regina v. Butler (1992) 1 SCR 452,
held that the dominant test is the “community standards problems test”.
The Court held that explicit sex that is not violent and neither degrading
nor dehumanizing is generally tolerated in the Canadian society and will
not qualify as the undue exploitation of sex unless it employs children in
its production. The Court held, in order for the work or material to
qualify as ‘obscene’, the exploitation of sex must not only be a dominant
characteristic, but such exploitation must be “undue”. Earlier in Towne
Cinema Theatres Ltd. v. The Queen (1985) 1 SCR 494, the Canadian Court
applied the community standard test and not Hicklin test.
COMMUNITY STANDARD TEST:
24. We are also of the view that Hicklin test is not the correct test to
be applied to determine “what is obscenity”.
Section 292 of the Indian
Penal Code, of course, uses the expression ‘lascivious and prurient
interests’ or its effect. Later, it has also been indicated in the said
Section of the applicability of the effect and the necessity of taking the
items as a whole and on that foundation where such items would tend to
deprave and corrupt persons who are likely, having regard to all the
relevant circumstances, to read, see or hear the matter contained or
embodied in it.
We have, therefore, to apply the “community standard test”
rather than “Hicklin test” to determine what is “obscenity”. A bare
reading of Sub-section (1) of Section 292 , 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.
Once the matter is found to be obscene, the question may arise as
to whether the impugned matter falls within any of the exceptions contained
in Section.
A picture of a nude/semi-nude woman, as such, cannot per se be
called obscene unless it has the tendency to arouse feeling or revealing an
overt sexual desire.
The picture should be suggestive of deprave mind and
designed to excite sexual passion in persons who are likely to see it,
which will depend on the particular posture and the background in which the
nude/semi-nude woman is depicted.
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.
MESSAGE AND CONTEXT
25. We have to examine the question of obscenity in the context in which
the photograph appears and the message it wants to convey.
In Bobby Art
International & Ors. v. Om Pal Singh Hoon (1996) 4 SCC 1,
this Court while
dealing with the question of obscenity in the context of film called Bandit
Queen 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. The
Court expressed the following view :-
“First, the scene where she is humiliated, stripped naked, paraded,
made to draw water from the well, within the circle of a hundred men.
The exposure of her breasts and genitalia to those men is intended by
those who strip her to demean her. The effect of so doing upon her
could hardly have been better conveyed than by explicitly showing the
scene. The object of doing so was not to titillate the cinemagoer’s
lust but to arouse in him sympathy for the victim and disgust for the
perpetrators. The revulsion that the Tribunal referred to was not at
Phoolan Devi’s nudity but at the sadism and heartlessness of those who
had stripped her naked to rob her of every shred of dignity. Nakedness
does not always arouse the baser instinct. The reference by the
Tribunal to the film “Schindler’s List” was apt. There is a scene in it
of rows of naked men and women, shown frontally, being led into the gas
chambers of a Nazi concentration camp. Not only are they about to die
but they have been stripped in their last moments of the basic dignity
of human beings. Tears are a likely reaction; pity, horror and a fellow-
feeling of shame are certain, except in the pervert who might be
aroused. We do not censor to protect the pervert or to assuage the
susceptibilities of the over-sensitive. “Bandit Queen” tells a powerful
human story and to that story the scene of Phoolan Devi’s enforced
naked parade is central. It helps to explain why Phoolan Devi became
what she did: her rage and vendetta against the society that had heaped
indignities upon her.”
[Emphasis Supplied]
26. In Ajay Goswami v. Union of India (2007) 1 SCC 143, while examining
the scope of Section 292 IPC and Sections 3, 4 and 6 of the Indecent
Representation of Women (Prohibition) Act, 1986, this Court held that the
commitment to freedom of expression demands that it cannot be suppressed,
unless the situations created by it allowing the freedom are pressing and
the community interest is endangered.
27. We have to examine
whether the photograph of Boris Becker with his
fiancée Barbara Fultus, a dark-skinned lady standing close to each other
bare bodied but covering the breast of his fiancée with his hands can be
stated to be objectionable in the sense it violates Section 292 IPC.
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. Breast of Barbara Fultus has been fully covered with
the arm of Boris Becker, a photograph, of course, semi-nude, but taken by
none other than the father of Barbara. Further, the photograph, in our
view, has no tendency to deprave or corrupt the minds of people in whose
hands the magazine Sports World or Anandabazar Patrika would fall.
28. We may also indicate that the said picture has to be viewed in the
background in which it was shown, and the message it has to convey to the
public and the world at large. The cover story of the Magazine carries the
title, posing nude, dropping of harassment, battling racism in Germany.
Boris Becker himself in the article published in the German magazine,
speaks of the racial discrimination prevalent in Germany and the article
highlights Boris Becker’s protests against racism in Germany. Boris
Becker himself puts it, as quoted in the said article:
“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.”
29. The message, the photograph wants to convey is that the colour of
skin matters little and love champions over colour. Picture promotes love
affair, leading to a marriage, between a white-skinned man and a black
skinned woman.
30. We should, therefore, appreciate the photograph and the article in
the 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. When viewed in that
angle, we are not prepared to say that the picture or the article which was
reproduced by Sports World and the Anandabazar Patrika be said to be
objectionable so as to initiate proceedings under Section 292 IPC or under
Section 4 of the Indecent Representation of Women (Prohibition) Act, 1986.
31. We have found that no offence has been committed under Section 292
IPC and then the question whether it falls in the first part of Section 79
IPC has become academic. We are sorry to note that the learned Magistrate,
without proper application of mind or appreciation of background in which
the photograph has been shown, proposed to initiate prosecution proceedings
against the Appellants. Learned Magistrate should have exercised his wisdom
on the basis of judicial precedents in the event of which he would not have
ordered the Appellants to face the trial. The High Court, in our view,
should have exercised powers under Section 482 Cr.P.C. to secure the ends
of justice.
32. We are, therefore, inclined to allow this appeal and set aside the
criminal proceedings initiated against the Appellants. The Appeal is
allowed as above.
eard Hear……………………………..J.
(K. S. Radhakrishnan)
.….………………………...J.
(A.K. Sikri)
New Delhi,
February 03, 2014.
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
by name Barbara Feltus, a film actress, which was photographed by
none other than her father.
The article states that, in an
interview, both Boris Becker and Barbaba Feltus spoke freely about
their engagement, their lives and future plans and the message they
wanted to convey to the people at large, for posing to such a
photograph.
Article picturises Boris Becker as a strident
protester of the pernicious practice of “Apartheid”.
Further, it
was stated that the purpose of the photograph was also to signify
that love champions over hatred.
2. “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 with the caption
“Posing nude dropping out of tournaments, battling Racism in Germany.
Boris Becker explains his recent approach to life” – Boris Becker
Unmasked.
3. Anandabazar Patrika, a newspaper having wide circulation in Kolkata,
also published in the second page of the newspaper the above-mentioned
photograph as well as the article on 06.05.1993, as appeared in the Sports
World. =
Advocate filed a private complaint under sec. 292 I.P.C. and sec.4 of Indecent Representation of Women (Prohibition) Act, 1986.
Complainant also urged that the accused persons should not only be
prosecuted under Section 292 IPC, but also be prosecuted under Section 4 of
the Indecent Representation of Women (Prohibition) Act, 1986, since the
photograph prima facie gives a sexual titillation and its impact is moral
degradation and would also encourage the people to commit sexual offences.
The learned Magistrate on 10.5.1993 passed the following order in
Criminal Case Ref. Case No.C.796 of 1993 :
‘Complainant is present. He is examined and discharged. No other PWs
are present. It appears that a prima facie case is made out against
the accused persons under Section 292 IPC. Issue summons against all
the accused persons fixing 17.6.1993 for S.P. and appearance.
Requisite at one.” =
fiancée Barbara Fultus, a dark-skinned lady standing close to each other
bare bodied but covering the breast of his fiancée with his hands can be
stated to be objectionable in the sense it violates Section 292 IPC. =
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. Breast of Barbara Fultus has been fully covered with
the arm of Boris Becker, a photograph, of course, semi-nude, but taken by
none other than the father of Barbara. Further, the photograph, in our
view, has no tendency to deprave or corrupt the minds of people in whose
hands the magazine Sports World or Anandabazar Patrika would fall.
28. We may also indicate that the said picture has to be viewed in the
background in which it was shown, and the message it has to convey to the
public and the world at large. The cover story of the Magazine carries the
title, posing nude, dropping of harassment, battling racism in Germany.
Boris Becker himself in the article published in the German magazine,
speaks of the racial discrimination prevalent in Germany and the article
highlights Boris Becker’s protests against racism in Germany. Boris
Becker himself puts it, as quoted in the said article:
“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.”
29. The message, the photograph wants to convey is that the colour of
skin matters little and love champions over colour. Picture promotes love
affair, leading to a marriage, between a white-skinned man and a black
skinned woman.
30. We should, therefore, appreciate the photograph and the article in
the 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. When viewed in that
angle, we are not prepared to say that the picture or the article which was
reproduced by Sports World and the Anandabazar Patrika be said to be
objectionable so as to initiate proceedings under Section 292 IPC or under
Section 4 of the Indecent Representation of Women (Prohibition) Act, 1986.
31. We have found that no offence has been committed under Section 292
IPC and then the question whether it falls in the first part of Section 79
IPC has become academic. We are sorry to note that the learned Magistrate,
without proper application of mind or appreciation of background in which
the photograph has been shown, proposed to initiate prosecution proceedings
against the Appellants. Learned Magistrate should have exercised his wisdom
on the basis of judicial precedents in the event of which he would not have
ordered the Appellants to face the trial. The High Court, in our view,
should have exercised powers under Section 482 Cr.P.C. to secure the ends
of justice.
32. We are, therefore, inclined to allow this appeal and set aside the
criminal proceedings initiated against the Appellants. The Appeal is
allowed as above.
2014 (February part) judis.nic.in/supremecourt/filename=41203 K.S. RADHAKRISHNAN, A.K. SIKRI
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.902 OF 2004
Aveek Sarkar & Anr. .. Appellants
Versus
State of West Bengal & Ors. .. Respondents
J U D G M E N T
K. S. RADHAKRISHNAN, J.
1. 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
by name Barbara Feltus, a film actress, which was photographed by
none other than her father.
The article states that, in an
interview, both Boris Becker and Barbaba Feltus spoke freely about
their engagement, their lives and future plans and the message they
wanted to convey to the people at large, for posing to such a
photograph.
Article picturises Boris Becker as a strident
protester of the pernicious practice of “Apartheid”. Further, it
was stated that the purpose of the photograph was also to signify
that love champions over hatred.
2. “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 with the caption
“Posing nude dropping out of tournaments, battling Racism in Germany.
Boris Becker explains his recent approach to life” – Boris Becker
Unmasked.
3. Anandabazar Patrika, a newspaper having wide circulation in Kolkata,
also published in the second page of the newspaper the above-mentioned
photograph as well as the article on 06.05.1993, as appeared in the Sports
World.
4. A lawyer practicing at Alipore Judge’s Court, Kolkata, claimed to be
a regular reader of Sports World as well as Anandabazar Patrika filed a
complaint under Section 292 of the Indian Penal Code against the Appellants
herein, the Editor and the Publisher and Printer of the newspaper as well
as against the Editor of the Sports World, former Captain of Indian Cricket
Team, late Mansoor Ali Khan of Pataudi, before the Sub-Divisional
Magistrate at Alipore. Complaint stated that as an experienced Advocate
and an elderly person, he could vouchsafe that the nude photograph appeared
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. The complainant stated that
unless such types of obscene photographs are censured and banned and
accused persons are punished, the dignity and honour of our womanhood would
be in jeopardy. The complainant also deposed before the Court on
10.5.1993, inter alia, as follows :
“………That the Accused No.1 and the Accused No.2 both the editors of
Ananda Bazar Patrika and Sports World respectively intentionally and
deliberately with the help of the Accused No.3 for the purpose of their
business, particularly for sale of their papers and magazines
published, printed and publicly exhibited and circulated and also sold
their papers and magazines namely, Anand Bazar Patrika and Sports World
dated 6.5.1993 wherein the photograph of world class Lawn Tennis player
namely, Boris Becker and his girl friend German Film Actress Miss
Barbara have been published in a manner in an inter-twined manner
wherein Boris Becker placed the hand upon the breast of Miss Barbara
which have annexed in my petition with a caption ‘Boris Backer Un-
masked’ which is absolutely obscene and lascivious in nature and which
is a criminal offence. The obscene and about nude photographs show
published by the accused persons in the mind of myself as well as
society of different age group have a very bad impact……..”
5. The learned Magistrate on 10.5.1993 passed the following order in
Criminal Case Ref. Case No.C.796 of 1993 :
‘Complainant is present. He is examined and discharged. No other PWs
are present. It appears that a prima facie case is made out against
the accused persons under Section 292 IPC. Issue summons against all
the accused persons fixing 17.6.1993 for S.P. and appearance.
Requisite at one.”
6. Complainant also urged that the accused persons should not only be
prosecuted under Section 292 IPC, but also be prosecuted under Section 4 of
the Indecent Representation of Women (Prohibition) Act, 1986, since the
photograph prima facie gives a sexual titillation and its impact is moral
degradation and would also encourage the people to commit sexual offences.
The accused persons on 5.3.1993 filed an application before the Court for
dropping the proceedings stating that there was no illegality in
reproducing in the Sports World as well as in the Anandabazar Patrika of
the news item and photograph appeared in a magazine ‘STERN” published in
Germany.
Further, it was pointed out that the said magazine was never
banned entry into India and was never considered as ‘obscene’, especially
when Section 79 of Indian Penal Code states that nothing is an offence
which is done by any person who is justified by law, or who by reason of a
mistake of fact and not reason of a mistake of law in good faith, believes
himself to be justified by law, in doing it.
7. The Court after seeing the photographs and hearing the arguments on
either side, held as follows :-
“Moreover, until evidence comes in it will not be proper to give any
opinion as to the responsibility of the accused persons. But I feel it
pertinent to mention that though the Section 292 does not define word
‘obscene’, but my rids of precedents have clustered round on this point
and being satisfied with the materials on record, pernicious effect of
picture in depraving and debauching the mind of the persons into whose
hands it may come and also for other sufficient reasons to proceed
further this Court was pleased to issue process against the accused
persons under Section 292 I.P.C. At present having regard to the facts
of the case, I find the matter merits interference by not dropping the
proceedings as prayed for. It is too early to say that the accused
persons are entitled to get benefit of Section 79 I.P.C.”
8. The Magistrate after holding so, held the accused persons to be
examined under Section 251 Cr.P.C. and ordered that they would be put to
face the trial for the offence punishable under Section 292 IPC
alternatively under Section 4 of the Indecent Representation of Women
(Prohibition) Act, 1986.
9. The Appellants herein preferred Criminal Revision No.1591 of 1994
before the High Court of Calcutta under Section 482 Cr.P.C. for quashing
the proceedings in Case No.C.796 of 1993 (corresponding to T.R. No.35 of
1994) pending before the learned Judicial Magistrate Court, Alipore.
Before the High Court, it was pointed out that the Magistrate had not
properly appreciated the fact that there was no ban in importing the German
sports magazine ‘STERN” into India. Consequently, reproduction of any
picture would fall within the general exception contained in Section 79
IPC. Reference was also made to letter dated 20th July, 1993 addressed by
the Assistant Editor, Sports World to the Collector, Calcutta Customs and a
copy of the letter dated 4.10.1993 sent by the Deputy Collector, Calcutta
Customs to the Assistant Editor, Sports World. Referring to the picture,
it was pointed out that the picture only demonstrates the protest lodged by
Boris Becker as well as his fiancée against ‘apartheid” and those facts
were not properly appreciated by the learned Magistrate. Further, it was
also pointed out that the offending picture could not be termed as obscene
inasmuch as nudity per se was not obscene and the picture was neither
suggestive nor provocative in any manner and would have no affect on the
minds of the youth or the public in general. Further, it was also pointed
out that the learned Magistrate should not have issued summons without
application of mind. The High Court, however, did not appreciate all
those contentions and declined to quash the proceedings under Section 483
Cr.P.C., against which this appeal has been preferred.
10. Shri Pradeep Ghosh, learned senior counsel, appearing for the
Appellants, submitted that the publication in question as well as the
photograph taken, as a whole and in the background of facts and
circumstances, cannot be said to be per se “obscene” within the meaning of
Section 291(1) IPC so as to remand a trial of the Appellants in respect of
the alleged offence under Section 292(1) IPC. The learned counsel pointed
out that obscenity has to be judged in the context of contemporary social
mores, current socio-moral attitude of the community and the prevalent
norms of acceptability/ susceptibility of the community, in relation to
matters in issue.
In support of this contention, reliance was placed on
the Constitution Bench judgment of this Court
in Ranjit D. Udeshi v. State of Maharashtra AIR 1965 SC 881.
Reference was also made to the judgment of
this Court in
Chandrakant Kalyandas Kakodar v. State of Maharashtra 1969(2) SCC 687.
Few other judgments were also referred to in support of his
contention. Learned senior counsel also pointed out that the learned
Magistrate as well as the High Court have completely overlooked the context
in which the photograph was published and the message it had given to the
public at large. Learned senior counsel also pointed out that the
photograph is in no way vulgar or lascivious. Learned senior counsel also
pointed out that the Courts below have not properly appreciated the scope
of Section 79 IPC and that the Appellants are justified in law in
publishing the photograph and the article which was borrowed from the
German magazine. Learned senior counsel also pointed out that such a
publication was never found to be obscene even by the State authorities and
no FIR was ever lodged against the Appellants and a private complaint of
such a nature should not have been entertained by the learned Magistrate
without appreciating the facts as well as the law on the point. Learned
senior counsel pointed out that the High Court ought to have exercised
jurisdiction under Section 482 Cr.P.C.
11. Shri Mohit Paul, learned counsel, appearing for the Respondents,
submitted that the Courts below were justified in holding that it would not
be proper to give an opinion as to the culpability of the accused persons
unless they are put to trial and the evidence is adduced. Learned counsel
pointed out that the question whether the publication of the photograph is
justified or not and was made in good faith requires to be proved by the
Appellants since good faith and public good are questions of fact and
matters for evidence. Learned counsel pointed out that the learned
Magistrate as well as the High Court was justified in not quashing the
complaint and ordering the Appellants to face the trial.
TEST OF OBSCENITY AND COMMUNITY STANDARDS
12. Constitution Bench of this Court in the year 1965 in Ranjit D. Udeshi
(supra) indicated that the concept of obscenity would change with the
passage of time and what might have been “obscene” at one point of time
would not be considered as obscene at a later period. Judgment refers to
several examples of changing notion of obscenity and ultimately the Court
observed as follows :-
“…. The world, is now able to tolerate much more than formerly, having
coming indurate by literature of different sorts. The attitude is not
yet settled…..”
This is what this Court has said in the year 1965.
13. Again in the year 1969, in Chandrakant Kalyandas Kakodar (supra),
this Court reiterated the principle as follows:-
“The standards of contemporary society in India are also fast changing.
“
14. Above mentioned principle has been reiterated in
Samaresh Bose v. Amal Mitra (1985) 4 SCC 289 by laying emphasis on contemporary social
values and general attitude of ordinary reader. Again in 2010, the
principle of contemporary community standards and social values have been
reiterated in S. Khushboo V. Kanniammal (2010) 5 SCC 600.
15. This Court in Ranjit D. Udeshi (supra) highlighted the delicate task
to be discharged by the Courts in judging whether the word, picture,
painting, etc. would pass the test of obscenity under Section 292 of the
Code and the Court held as follows :
“The Penal Code does not define the word obscene and this delicate task
of how to distinguish between that which is artistic and that which is
obscene has to be performed by courts, and in the last resort by the
Supreme Court. The test must obviously be of a general character but
it must admit of a just application from case to case by indicating a
line of demarcation not necessarily sharp but sufficiently distinct to
distinguish between that which is obscene and that which is not. None
has so far attempted a definition of obscenity because the meaning can
be laid bare without attempting a definition by describing what must be
looked for. It may, however, be said at once that treating with sex and
nudity in art and literature cannot be regarded as evidence of
obscenity without something more. The test of obscenity must square
with the freedom of speech and expression guaranteed under our
Constitution. This invites the court to reach a decision on a
constitutional issue of a most far reaching character and it must
beware that it may not lean too far away from the guaranteed freedom.”
16. Applying the above test, to the book “Lady Chatterley’s Lover”,
this Court in Ranjit D. Udeshi (supra) held that in treating with sex the
impugned portions viewed separately and also in the setting of the whole
book passed the permissible limits judged of from our community standards
and there was no social gain to the public which could be said to
preponderate the book must be held to satisfy the test of obscenity.
17. The novel “Lady Chatterley’s Lover” which came to be condemned as
obscene by this Court was held to be not obscene in England by Central
Criminal Court. In England, the question of obscenity is left to the
Jury. Byrne, J., learned Judge who presided over the Central Criminal
Court in R. v. Penguin Books Ltd. (1961 Crl. Law Review 176) observed as
follows :-
“In summing up his lordship instructed the jury that: They must
consider the book as a whole, not selecting passages here and there
and, keeping their feet on the ground, not exercising questions of
taste or the functions of a censor. The first question, after
publication was: was the book obscene? Was its effect taken as a whole
to tend to deprave and corrupt persons who were likely, having regard
to all the circumstances, to read it? To deprave meant to make morally
bad, to pervert, to debase or corrupt morally. To corrupt meant to
render morally unsound or rotten, to destroy the moral purity or
chastity, to pervert or ruin a good quality, to debase, to defile. No
intent to deprave or corrupt was necessary. The mere fact that the jury
might be shocked and disgusted by the book would not solve the
question. Authors had a right to express themselves but people with
strong views were still members of the community and under an
obligation to others not to harm them morally, physically or
spiritually. The jury as men and women of the world, not prudish but
with liberal minds, should ask themselves was the tendency of the book
to deprave and corrupt those likely to read it, not only those reading
under guidance in the rarefied atmosphere of some educational
institution, but also those who could buy the book for three shillings
and six pence or get it from the public library, possibly without any
knowledge of Lawrence and with little knowledge of literature. If the
jury were satisfied beyond reasonable doubt that the book was obscene,
they must then consider the question of its being justified for public
good in the interest of science, literature, art or learning or other
subjects of general concern. Literary merits were not sufficient to
save the book, it must be justified as being for the public good. The
book was not to be judged by comparison with other books. If it was
obscene then if the defendant has established the probability that the
merits of the book as a novel were so high that they outbalanced the
obscenity so that the publication was the public good, the jury should
acquit.”
18. Later, this Court in Samaresh Bose (supra), referring to the Bengali
novel “Prajapati” written by Samaresh Bose, observed as follows :-
“35. .................. We are not satisfied on reading the book that
it could be considered to be obscene. Reference to kissing, description
of the body and the figures of the female characters in the book and
suggestions of acts of sex by themselves may not have the effect of
depraving, debasing and encouraging the readers of any age to
lasciviousness and the novel on these counts, may not be considered to
be obscene. It is true that slang and various unconventional words have
been used in the book. Though there is no description of any overt act
of sex, there can be no doubt that there are suggestions of sex acts
and that a great deal of emphasis on the aspect of sex in the lives of
persons in various spheres of society and amongst various classes of
people, is to be found in the novel. Because of the language used, the
episodes in relation to sex life narrated in the novel, appear vulgar
and may create a feeling of disgust and revulsion. The mere fact that
the various affairs and episodes with emphasis on sex have been
narrated in slang and vulgar language may shock a reader who may feel
disgusted by the book does not resolve the question of
obscenity...............”
We have already indicated, this was the contemporary standard in the year
1985.
19. We are, in this case, concerned with a situation of the year 1994,
but we are in 2014 and while judging as to whether a particular photograph,
an article or book is obscene, regard must be had to the contemporary mores
and national standards and not the standard of a group of susceptible or
sensitive persons.
HICKLIN TEST:
20. In the United Kingdom, way back in 1868, the Court laid down the
Hicklin test in Regina v. Hicklin (1868 L.R. 2 Q.B.
360), and held as follows :-
“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.”
21. Hicklin test postulated that a publication has to be judged for
obscenity based on isolated passages of a work considered out of context
and judged by their apparent influence on most susceptible readers, such as
children or weak-minded adults. United States, however, made a marked
departure. Of late, it felt that the Hicklin test is not correct test to
apply to judge what is obscenity. In Roth v. United States 354 U.S. 476
(1957), the Supreme Court of United States directly dealt with the issue of
obscenity as an exception to freedom of speech and expression. The Court
held that the rejection of “obscenity” was implicit in the First Amendment.
Noticing that sex and obscenity were held not to be synonymous with each
other, the Court held that only those sex-related materials which had the
tendency of “exciting lustful thoughts” were found to be obscene and the
same has to be judged from the point of view of an average person by
applying contemporary community standards.
22. In Canada also, the majority held in Brodie v. The Queen (1962 SCR
681) that D.H. Lawrence’s novel “Lady Chatterley’s Lover” was not obscene
within the meaning of the Canadian Criminal Code
23. The Supreme Court of Canada in Regina v. Butler (1992) 1 SCR 452,
held that the dominant test is the “community standards problems test”.
The Court held that explicit sex that is not violent and neither degrading
nor dehumanizing is generally tolerated in the Canadian society and will
not qualify as the undue exploitation of sex unless it employs children in
its production. The Court held, in order for the work or material to
qualify as ‘obscene’, the exploitation of sex must not only be a dominant
characteristic, but such exploitation must be “undue”. Earlier in Towne
Cinema Theatres Ltd. v. The Queen (1985) 1 SCR 494, the Canadian Court
applied the community standard test and not Hicklin test.
COMMUNITY STANDARD TEST:
24. We are also of the view that Hicklin test is not the correct test to
be applied to determine “what is obscenity”.
Section 292 of the Indian
Penal Code, of course, uses the expression ‘lascivious and prurient
interests’ or its effect. Later, it has also been indicated in the said
Section of the applicability of the effect and the necessity of taking the
items as a whole and on that foundation where such items would tend to
deprave and corrupt persons who are likely, having regard to all the
relevant circumstances, to read, see or hear the matter contained or
embodied in it.
We have, therefore, to apply the “community standard test”
rather than “Hicklin test” to determine what is “obscenity”. A bare
reading of Sub-section (1) of Section 292 , 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.
Once the matter is found to be obscene, the question may arise as
to whether the impugned matter falls within any of the exceptions contained
in Section.
A picture of a nude/semi-nude woman, as such, cannot per se be
called obscene unless it has the tendency to arouse feeling or revealing an
overt sexual desire.
The picture should be suggestive of deprave mind and
designed to excite sexual passion in persons who are likely to see it,
which will depend on the particular posture and the background in which the
nude/semi-nude woman is depicted.
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.
MESSAGE AND CONTEXT
25. We have to examine the question of obscenity in the context in which
the photograph appears and the message it wants to convey.
In Bobby Art
International & Ors. v. Om Pal Singh Hoon (1996) 4 SCC 1,
this Court while
dealing with the question of obscenity in the context of film called Bandit
Queen 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. The
Court expressed the following view :-
“First, the scene where she is humiliated, stripped naked, paraded,
made to draw water from the well, within the circle of a hundred men.
The exposure of her breasts and genitalia to those men is intended by
those who strip her to demean her. The effect of so doing upon her
could hardly have been better conveyed than by explicitly showing the
scene. The object of doing so was not to titillate the cinemagoer’s
lust but to arouse in him sympathy for the victim and disgust for the
perpetrators. The revulsion that the Tribunal referred to was not at
Phoolan Devi’s nudity but at the sadism and heartlessness of those who
had stripped her naked to rob her of every shred of dignity. Nakedness
does not always arouse the baser instinct. The reference by the
Tribunal to the film “Schindler’s List” was apt. There is a scene in it
of rows of naked men and women, shown frontally, being led into the gas
chambers of a Nazi concentration camp. Not only are they about to die
but they have been stripped in their last moments of the basic dignity
of human beings. Tears are a likely reaction; pity, horror and a fellow-
feeling of shame are certain, except in the pervert who might be
aroused. We do not censor to protect the pervert or to assuage the
susceptibilities of the over-sensitive. “Bandit Queen” tells a powerful
human story and to that story the scene of Phoolan Devi’s enforced
naked parade is central. It helps to explain why Phoolan Devi became
what she did: her rage and vendetta against the society that had heaped
indignities upon her.”
[Emphasis Supplied]
26. In Ajay Goswami v. Union of India (2007) 1 SCC 143, while examining
the scope of Section 292 IPC and Sections 3, 4 and 6 of the Indecent
Representation of Women (Prohibition) Act, 1986, this Court held that the
commitment to freedom of expression demands that it cannot be suppressed,
unless the situations created by it allowing the freedom are pressing and
the community interest is endangered.
27. We have to examine
whether the photograph of Boris Becker with his
fiancée Barbara Fultus, a dark-skinned lady standing close to each other
bare bodied but covering the breast of his fiancée with his hands can be
stated to be objectionable in the sense it violates Section 292 IPC.
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. Breast of Barbara Fultus has been fully covered with
the arm of Boris Becker, a photograph, of course, semi-nude, but taken by
none other than the father of Barbara. Further, the photograph, in our
view, has no tendency to deprave or corrupt the minds of people in whose
hands the magazine Sports World or Anandabazar Patrika would fall.
28. We may also indicate that the said picture has to be viewed in the
background in which it was shown, and the message it has to convey to the
public and the world at large. The cover story of the Magazine carries the
title, posing nude, dropping of harassment, battling racism in Germany.
Boris Becker himself in the article published in the German magazine,
speaks of the racial discrimination prevalent in Germany and the article
highlights Boris Becker’s protests against racism in Germany. Boris
Becker himself puts it, as quoted in the said article:
“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.”
29. The message, the photograph wants to convey is that the colour of
skin matters little and love champions over colour. Picture promotes love
affair, leading to a marriage, between a white-skinned man and a black
skinned woman.
30. We should, therefore, appreciate the photograph and the article in
the 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. When viewed in that
angle, we are not prepared to say that the picture or the article which was
reproduced by Sports World and the Anandabazar Patrika be said to be
objectionable so as to initiate proceedings under Section 292 IPC or under
Section 4 of the Indecent Representation of Women (Prohibition) Act, 1986.
31. We have found that no offence has been committed under Section 292
IPC and then the question whether it falls in the first part of Section 79
IPC has become academic. We are sorry to note that the learned Magistrate,
without proper application of mind or appreciation of background in which
the photograph has been shown, proposed to initiate prosecution proceedings
against the Appellants. Learned Magistrate should have exercised his wisdom
on the basis of judicial precedents in the event of which he would not have
ordered the Appellants to face the trial. The High Court, in our view,
should have exercised powers under Section 482 Cr.P.C. to secure the ends
of justice.
32. We are, therefore, inclined to allow this appeal and set aside the
criminal proceedings initiated against the Appellants. The Appeal is
allowed as above.
eard Hear……………………………..J.
(K. S. Radhakrishnan)
.….………………………...J.
(A.K. Sikri)
New Delhi,
February 03, 2014.
