Comment on Aveek Sarkar & Another v. State of West Bengal & Others

The case under comment is a judgment penned down by Justice K.S. Radhakrishnan for the Supreme Court bench with Justice A.K. Sikri on 3^rd February 2014.

The facts of the case was that, 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 Barbara 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" and also stated that the purpose of the photograph was 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 5^th May 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". Anand baza rPatrika, a newspaper having wide circulation in Kolkota also published in the second page, the above-mentioned photograph as well as the article on 6^th May 1993, as appeared in the Sports World.

A practising lawyer at Alipore Court, Kolkota, claimed to be a regular reader of Sports World as well as Anand bazar Patrika filed a complaint under section 292 of Indian Penal Code against the Appellants, the Editor, Printer and Publisher of the newspaper as well as 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. The complaint stated that as an experienced Advocate and an elderly person, he could vouchsafe that the nude photograph appeared in the AnandbazarPatrika 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. Also stated that unless such type 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 deposed before the Magistrate Court that the photograph of world class lawn Tennis player Boris Becker and his girl friend German Film actress Miss Barbara have been published in an inter-twined manner wherein Boris Becker placed the hand upon the breast of Miss Barbara, which is absolutely obscene and lascivious in nature and is a criminal offence. The obscene and nude photographs published by the accused persons created very bad impact in the mind of himself as well as the society of different age group. The learned Magistrate found that a prima facie case is made out against the accused persons under section 292 of IPC. The complainant also urged to prosecute the accused persons 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 filed an application for dropping the proceedings stating that there was no illegality in reproducing the news item and photograph as appeared in "STERN" published in Germany as the same magazine was never banned in India and was never considered as 'obscene', especially  when section 79 of IPC 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.

But the Magistrate Court after seeing the photographs and hearing the arguments on either side held the accused persons to be examined  under section 251 Cr.P.C and ordered that they would be put to trial for the offence punishable under section 292 IPC and section 4 of the Indecent Representation of Women (prohibition) Act, 1986. The accused persons filed a criminal revision before the High Court of Calcutta for quashing the proceedings before the Magistrate Court. But the High Court declined to quash the proceedings, against which the present appeal.

Before the Supreme Court, the learned counsel  for the appellants 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 and also contended that the Magistrate Court 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 and pointed out that photograph is in no way vulgar or lascivious.

Supreme Court of India examined the above contentions with the test of 'obscenity and community standards' as explained in its earlier decisions, viz.

1. RanjitD.Udeshi v. State of Maharshtra, wherein the appellant, partners of a book-stall named Happy Book Stall were found in possession for the purpose of sale, copies of the unexpurgated edition of Lady Chatterley's Lover, was convicted under section 292 of IPC with a fine of Rs.20/- with one week's simple imprisonment in default by the Additional Chief Presidency Magistrate, III Court, Esplanade, Bombay. On dismissal of revision petition by the High Court an appeal was filed before the Supreme Court. On 19.8.1964, Justice Hidayatullah for the 5 Judges bench wrote the judgment, which was the first case before the Supreme Court invoking the constitutional guarantee against the operation of the law regarding obscenity and the book is one from an author of repute and the centre of many controversies.  Court found that the Indian Penal Code borrowed the word 'obscene' from the English Statute. The Indian 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. The test which we evolve 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. It is not necessary that the angles and saints of Michaelangelo should be made to wear breeches before they can be viewed. If the rigid test of treating with sex as the minimum ingredient were accepted hardly any writer of fiction today would escape the fate Lawrence had in his days. Half the book-shops would close and the other half would deal in nothing but moral and religious books which Lord Campbell boasted was the effect of his Act. In our opinion, the test to adopt in our country (regard being had to our community mores) is that obscenity without a preponderating social purpose or profit cannot have the constitutional protection of free speech and expression, and obscenity is treating with sex in a manner appealing to the carnal sides of human nature, or having that tendency. Such a treating with sex is offensive to modesty and decency but the extent of such appeal in a particular book etc. are matters for consideration in each individual case.  There is no loss to society if there was a message in the book. The divagations with sex are not a legitimate embroidery but they are the only attractions to the common man. When everything said in its favourwe find the in treating with sex the impugned portions viewed separately and also in the setting of the whole book pass the permissible limits judged of from our communitystandards and as there is no social gain to us which can be said to preponderate, we must hold the book to satisfy type test we have indicated above and dismissed the appeal.
2. S.Khushboo v. Kanniammal, where in the appellant expressed her personal opinion in India Today for social acceptance of pre-marital sex and 23 complaints filed against her  under sections 499, 500 and 505 IPC and sections 4 & 5 of Indecent Representation of Women (Prohibition) Act,1986. The appellant approached the Madras High Court for quashing the criminal proceedings instituted against her but the High Court refused to quash, hence this appeal. It was contended before the Supreme Court that the appellant had made a fair and reasonable comment as a prudent person, and therefore, the opinion expressed  is fully protected under Art.19(1)(a) of the Constitution of India which guarantees freedom of speech and expression to all citizens. Supreme Court  examined numerous decisions, both Indian and foreign country which mandates that 'obscenity' should be gauged with respect to contemporary community standards that reflect the sensibilities as well as the tolerance levels of an average reasonable person. In the present case the appellant has merely referred to the increasing incidence of pre-marital sex and called for its social acceptance. At no point of time appellant described the sexual act or said anything that could arouse sexual desires in the mind of a reasonable and prudent reader and concluded that the complaints filed against the appellant do not support or even draw a prima facie case for any of the statutory offences as alleged. Therefore the appeals are allowed and criminal proceedings are hereby quashed.
3. Bobby Art International, etc. v. Om Pal Singh Hoon and others,  whereinthe A certificate awarded to 'Bandit Queen', a film deals with the life of Phoolan Devi was challenged and to restrain its exhibition in India. The examining Committee of the Censor Board referred it to the Revising Committee and they granted 'A'certificate  subject to certain modifications, against that an appeal was filed before the Appellate Tribunal.  Tribunal ordered that " the film portrays the trials and tribulations and the various humiliations (mental and physical) heaped on Phoolan Devi from childhood onwards, which out of desperation and misery drove her to dacoity and the revenge which she takes on her tormentors and those who had humiliated and tortured and had physically abused her. Phoolan Devi's pent-up, anger, emotions and revulsion were demonstrated in the scene, and was also shown her naked being paraded in the village after being humiliated. The Tribunal observed that these visuals could but create sympathy towards the unfortunate woman inparticular and revulsion against the perpetrators of crimes against women in general. The sequence was an integral part of the story. It was not sensual or sexual and was intended to, as indeed it did, create revulsion in the minds of the average audience towards the tormentors and oppressors of women. Tribunal observed that 'to delete or even to reduce these climatic visuals would be a sacrilege' quoting the film " Schindler's List", wherein 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 they are 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". The Tribunal granted "A" certificate and the film 'Bandit Queen'was screened for the 27^th International Film Festival of India with the permission of the Ministry of Information and Broadcasting, and was open to public viewing at various theatres in the country from 25^th Jan 1996 onwards. On 27^th Jan 1996, the first respondent filed a writ seeking to quash the certificate granted to the film and to restrain its exhibition in India. The Single Judge allowed the writ and quashed the certificate. Division Bench also upheld the view of the Single Bench. Whereas the Supreme Court of India opined that the Tribunal had viewed the film in true perspective and had in compliance with the requirements of the guidelines, granted the "A" certificate. The High Court ought not to have entertained the writ petition impugning the grant of the certificate. Supreme Court held, '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 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" and allowed the appeal with cost and restored the "A" certificate issued by the Appellate Tribunal.

By applying the 'Community mores and Standards' as explained in Ajay Goswami v. Union of India Supreme Court in this case examined the photograph of Boris Becker and Barbara Fultus, a dark-skinned lady standing close to each other bare bodied and  held that "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. Breasts 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 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 Anand bazar Patrika would fall".

Supreme Court made it clear that "the said photograph 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 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. "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 reproduced by Sports World or Anand- bazar Patrika be said to be objectionable so as to initiate proceedings under 292 IPC or under section 4 of the Indecent Representation of Women (Prohibition) Act, 1996, hence allowed the appeal and set aside the criminal proceedings initiated against the appellants.Justice V.R. Krishna Iyer  in his inimitable style has stated in Raj Kapoor and Others v. State and Others "The world's greatest paintings, sculptures, songs and dances, India's lustrous heritage, the Konaraks and Khajurahos, lofty epics, luscious in patches, may be asphyxiated by law, if prudes and prigs and State moralists prescribe paradigms and proscribe heterodoxies. It is plain that the procedural issue is important and the substantive issue portentous".

The judgment of the Supreme Court of India is unique, for the bench observed the photograph and the article through the prism of an avant-gardist connoisseur discerning art-cum-message vis-a-vis obscenity/indecent representation. It snubbed the cliché of corrupting the mind of youth/children, denigrating the cultural and moral values of the country and jeopardizing the dignity and honourof womanhood. One could observe with great pride the enlightened stance of the Summit Court as it traversed countless miles from 1964 to 2014 i.e. when Ranjit D. Udeshi v. State of Maharashtra was decided, wherein the appellants were convicted for keeping copy of 'Lady Chatterley's Lover' in India. (But in England the jury acquitted the publishers as the publication did not fall foul of obscenity test).

Dr. Mariamma.A.K is the Principal of Balaji Law College, Pune