Supreme Court of India
AVEEK SARKAR & ANR.versusSTATE OF WEST BENGAL & ORS.
- Citation
- 2014 INSC 75
- Decided
- 3 February 2014
- Disposal
- Appeal(s) allowed
- Bench
- K S RADHAKRISHNAN
Holding
The photograph, when examined in its anti‑racist context, does not satisfy the test of obscenity and the criminal proceedings under Section 292 IPC and the Indecent Representation of Women Act must be quashed.
Summary
The appellants, editors and publishers of Sports World magazine and Anandabazar Patrika, reproduced a semi‑nude photograph of tennis player Boris Becker and his fiancée Barbara, originally published in the German magazine STERN, which was intended to protest apartheid and promote interracial love. A lawyer filed a complaint alleging that the image was obscene under Section 292 of the IPC and Section 4 of the Indecent Representation of Women (Prohibition) Act, 1986, leading the magistrate to issue summons and the High Court to refuse to quash the proceedings. The appellants sought relief under Section 482 of the CrPC, arguing that the photograph was not obscene when viewed in its social and political context and that Section 79 IPC provided a defence. The Supreme Court held that obscenity must be assessed using contemporary community standards, not the outdated Hicklin test, and that the photograph, taken in the context of an anti‑racist message, did not have the tendency to deprave or corrupt. Consequently, the Court set aside the criminal proceedings and allowed the appeal, directing that the matter be quashed under Section 482 CrPC.
Issues considered
- The applicability of the 'obscenity' test under Section 292 IPC to the reproduced photograph and article.
- Whether the Hicklin test or the contemporary community standards test should govern the determination of obscenity.
- Whether the defence under Section 79 IPC (import of a non‑banned foreign publication) bars prosecution.
- Whether the magistrate and High Court erred in refusing to quash the proceedings under Section 482 CrPC.
- The relevance of the photograph's message and context in assessing its alleged obscene nature.
Legislation cited
- Code of Criminal Procedure, 1973s. 482
- Indecent Representation of Women (Prohibition) Act, 1986s. 3, s. 4, s. 6
- Indian Penal Code, 1860s. 292, s. 79
Subjects
obscenitySection 292 IPCIndecent Representation of Women Actcommunity standards testSection 482 CrPCfreedom of speechmedia lawracial discriminationnuditycontemporary standards
Judgment
[2014] 2 S.C.R. 263
AVEEK SARKAR & ANR. A
v.
STATE OF WEST BENGAL & ORS.
(Criminal Appeal No. 902 of 2004)
FEBRUARY 03, 2014
B
[K.S. RADHAKRISHNAN AND A.K. SIKRI, JJ.]
CODE OF CRIMINAL PROCEDURE, 1973: s.482 -
Quashing of proceedings - German magazine published an
article with a picture of world renowned Tennis player, posing C
nude and covering the breast of his dark-skinned fiancee with
his hands which was photographed by none other than her
father - The couple spoke against apartheid and proclaimed
that true love has no boundaries - The article reproduced in
Indian magazine and newspaper - Criminal proceedings o
under ss. 292, /PC and ulss. 3, 4 and 6 of Indecent
Representation of Women (Prohibition) Act, 1986 against the
editor and publisher of magazine and newspaper - High Court
declining to quash the proceedings - On appeal, Held: While
judging as to whether a particular photograph, an article or E
book is obscene, regard must be had to the contemporary
values and national standards and not the standard of a group
of susceptible or sensitive persons - Hicklin test is not the
correct test to be applied to determine ''what is obscenity" -
Those sex-related materials which have a tendency of F
"exciting lustful thoughts" can be held to be obscene,
however, obscenity has to be judged from the point of view of
an average person, by applying contemporary community
standards - 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 message it G
conveyed was eradicate evil of racism and apartheid in the
society and promote love and marriage between white
skinned man and a black skinned woman - When viewed in
263
H
264 SUPREME COURT REPORTS [2014) 2 S.C.R.
A that angle, the picture or the article cannot be said to be
objectionable so as to initiate proceedings u/s. 292 /PC or ul
s.4 of the Act, 1986 - Magistrate, without appreciation of
background in which the photograph was shown, proposed to
initiate prosecution proceedings against the appellants - High
8 Court should have exercised powers uls. 482 to secure the
ends of justice - Criminal proceedings initiated against the
appellants set aside - Indecent Representation of Women
(Prohibition) Act, 1986 - ss.3, 4, 6 - Penal Code, 1860 - s.292.
A German magazine published an article with a
C picture of world renowned Tenn.is player (Boris), posing
nude and covering the breast of his dark-skinned fiancee
(Barbara) with his hands which was photographed by
none other than her father. The couple spoke freely
against apartheid and proclaimed that true love has no
D boundaries. The article stated that the purpose of the
photograph was also to signify that love champions over
hatred. The article was reproduced in "Sports World", a
widely circulated magazine published in India and then
in Anandabazar Patrika, a newspaper having wide
E circulation in Kolkata.
A Kolkata lawyer filed a complaint under Section 292,
IPC before the Magistrate against the appellants, the
Editor and the Publisher and Printer of the newspaper as
F well as against the Editor of the Sports' World. The
complaint stated that the· nude photograph would have
effect to corrupting young minds, both children and
youth of this country, and was against the cultural and
moral values of our society and that unless such types
of obscene photographs are censured and banned and
G accused persons are punished, the dignity and honour
of our womanhood would be in jeopardy. The
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
H
AVEEK SARKAR & ANR. v. STATE OF WEST 265
BENGAL & ORS.
Representation of Women (Prohibition) Act, 1986, since A
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 Magistrate
held that a prima facie case was made out against the
accuse'd persons under Section 292 IPC and issued B
summons against all the accused persons.
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 news item in the C
Sports World as well as in the Anandabazar Patrika 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, IPC states that nothing is an offence which is done D:
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
E
The Magistrate held the accused pel'Sons should 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 F
(Prohibition) Act, 1986. The appellants filed application
before the High Court under Section 482 Cr.P.C. for
quashing the proceedings. Before the High Court, it was
pointed out that the Magistrate had not properly
appreciated the fact that there was no ban in importing G
the German sports magazine 'STERN" into India.
Consequently, reproduction of any picture would fall
within the general exception contained in Section 79 IPC.
Referring to the picture, it was pointed out that the picture
only demonstrated the protest lodged by the tennis H
266 SUPREME COURT REPORTS [2014] 2 S.C.R.
A player as well as his fiancee against 'apartheid" and
those facts were not properly appreciated by the
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
B 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. The High Court declined
to quash the proceedings against which the instant
appeal was preferred.
c Allowing the appeal, the Court
HELD:
TEST OF OBSCENITY AND COMMUNITY STANDARDS
D 1.1. The Constitution Bench in the year 1965 in
*Ranjit D. Udeshi 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 .
E referred to several examples of changing notion of
obscenity. Again in the year 1969, in Chandrakant
Kalyandas Kakodar, this Court reiterated the principle that
the standards of contemporary society in India are also
fast changing. Again in 2010, the principle of
F contemporary community standards and social values
were reiterated in S. Khushboo. [Para 12, 13, 14] [278-A-
B, D, F]
1.2. In Ranjit D. Udeshi, the Court highlighted the
G 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, IPC and the Court
he!d. that the Penal Code does not define the word
obscene and this delicate task of how to distinguish
H between that which is artistic and that which is obscene
AVEEK SARKAR & ANR. v. STATE OF WEST 267
BENGAL & ORS.
has to be performed by courts, and in the last resort by A
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. 8
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 C
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. Applying 0
this test, to the book "Lady Chatterley's Lover", this Court
in Ranjit D. Udeshi 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 E
no social gain to the public which could be said to
preponderate the book must be held to satisfy the test
of obscenity. [paras 15, 16] [278-F-H; 279-A-E]
1.3. The novel "Lady Chatterley's Lover" which came F
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. This
case is of the year 1994, but it is 2014 now and while
judging as to whether a particular photograph, an article G
or book is obscene, regard must be had to the
contemporary values and national standards and not the
standard of a group of susceptible or sensitive persons.
[para 17, 19] [279-F; 281-F]
Samaresh Bose v. Amal Mitra (1985) 4 SCC 289: 1985 H
'
268 SUPREME COURT REPORTS (2014] 2 S.C.R.
A (3) Suppl. SCR 17; S. Khushboo V. Kanniammal (2010) 5
SCC 600: 2010 (5) SCR 322 ; Ranjit D. Udeshi v. State of
Maharashtra AIR 1965 SC 881: 1970 ( 2) SCR 80;
Chandrakant Kalyandas Kakodar v. State of Maharashtra
1969 (2) SCC 687: 1970 (2) SCR 80 • relied on,
B R. v. Penguin Books Ltd. (1961 Crl. Law Review 176.
referred to.
HICKLIN TEST:
c 2. In the United Kingdom, way back in 1868, the
Court laid down the Hicklin test in Regina v. Hicklin .
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
D 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, the Supreme Court of United States
directly dealt with the issue of obscenity as an exception
E 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
F 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. In Canada also, the majority held
in Brodie v. The Queen that D.H. Lawrence's novel "Lady
G Chatterley's Lover'' was not obscene within the meaning
of the Canadian Criminal Code. The Supreme Court of
Canada in Regina v. Butler held that the dominant test is
the "community standards problems test". The Court held
that explicit sex that is not violent and neither degrading
H nor dehumanizing is generally tolerated in the Canadian
AVEEK SARKAR & ANR. v. STATE OF WEST 269
BENGAL & ORS.
society and will not qualify as the undue exploitation of A
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 B
Queen, the Canadian Court applied the community
standard test and not Hicklin test. [paras 20-23] [281-G;
282-B-H; 283-A]
Brodie v. The Queen 1962 SCR 681; Regina v. Butler C
(1992) 1 SCR 452; Towne Cinema Theatres Ltd. v. The
Queen (1985) 1 SCR 494 - relied on.
Regina v. Hicklin (1868 LR. 2 Q.B. 360); Roth v. United
States 354 U.S. 76 (1957) - referred to.
D
COMMUNITY STANDARD TEST:
3. Hicklin test is not the correct test to be applied to
determine "what is obscenity". Section 292, IPC, of
course, uses the expression 'lascivious and prurient
interests' or its effect. Later, it has also been indicated in E-
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 F
contained or embodied in it. Therefore, the "community
standard test" is to be applied rather than "Hicklin test"
to determine what is "obscenity". A bare reading of Sub·
section (1) of Section 292 would make clear that a picture
or article shall be deemed to be obscene (i) if it is G
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 H
270 SUPREME COURT REPORTS [2014] 2 S.C.R.
A of the exceptions contained in Section. A picture of a
nude/semi-nude woman, as such, cannot per se be called
ob~cene 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
B 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,
c but the obscenity has to be judged from the point of view
of an average person, by applying contemporary
community standards. [para 24) [283-B-G]
MESSAGE AND CONTEXT
0 4. Applying the community tolerance test, the
photograph is not suggestive of deprave minds and
designed to excite sexual 1passion in persons who are
likely to look at them and see. t,hem, which would depend
upon the particular posture ahd background in which the
E woman is depicted or shown. Breast of Barbara Fultus
was 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
had no tendency to deprave or corrupt the minds of
people in whose hands the magazine Sports World or
F Anandabazar Patrika would fall. 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
G Germany. Boris Becker himself in the article published in
the German magazine, spoke of the racial discrimination
prevalent in Germany and the article highlighted his
protests against racism in Germany. The message, the
photograph wants to convey is that the colour of skin
H matters little and love champions over C\llour. Picture
AVEEK SARKAR & ANR. v. STATE OF WEST 271
BENGAL & ORS.
promotes love affair, leading to a marriage, between a A
white-skinned man and a black skinned woman.
Therefore, the photograph and the article in the light of
the messag~ it wanted 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 B
black skinned woman. When viewed in that angle, the
picture or the article which was reproduced by Sports
World and the Anandabazar Patrika cannot be said to be
objectionable so as to initiate proceedings under Section
292 IPC or under Section 4 of the Indecent c
Representation of Women (Prohibition) Act, 1986. No
offence was committed under Section 292 IPC and then
the question whether it falls in the first part of Section 79
- IPC has become academic. The Magistrate, without
proper application of mind or appreciation of background
0
in which the photograph was shown, proposed to initiate
prosecution proceedings against the appellants. The
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.
E-
.The High Court should have exercised powers under
· Section 482 Cr.P.C. to secure the ends of justice. The
criminal proceedings initiated against the appellants are
set aside. [Paras 27-31] [285-D-H; 286-B-G]
Bobby Art International & Ors. v. Om Pal Singh Hoon F
(1996) 4 SCC 1: 1996 (2) Suppl. SCR 136 ; Ajay Goswami
v. Union of India (2007) 1 SCC 143: 2006 (10) Suppl. SCR
770 • relied on.
Case Law Reference:
G
1970 (2) SCR 80 relied on Para 10
1970 (2) SCR 80 relied on Para 10
1985 (3) Suppl. SCR 17 relied on Para 14
H
272 SUPREME COURT REPORTS [2014] 2 S.C.R.
A 2010 (5) SCR 322 relied on Para 14
1962 SCR 681 relied on Para 22
(1992) 1 SCR 452 relied on Para 22
(1985) 1 SCR 494 relied on Para 23
B
196 (2) Suppl. SCR 136 relied on Para 25
2006 (10) Suppl. SCR 770 relied on Para 26
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
c No. 902 of 2004.
From the Judgment and Order dated 17.03.2004 of the
High Court at Calcutta in Criminal Revision No. 1591 of 1994.
Pradeep Ghosh, Amar Dave, Abhishek Roy and Kartik
D Bhatnagar (for Manik Karanjawala) for the Appellants.
Mohit Paul, Shagun Matta, (for Anip Sachthey), V.D.
Khanna for the Respondents.
~E The Judgment of the Court was delivered by
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 fiancee by name
F 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
G 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.
H 2. "Sports World", a widely circulated magazine published
AVEEK SARKAR & ANR. v. STATE OF WEST 273
BENGAL & ORS. [K.S. RADHAKRISHNAN, J.]
in India reproduced the article and the photograph as cover A
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 B
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 c
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
0
the Indian Penal Code against the Appellants herein, the Editor
and the Publisher and Printer of the n.ewspaper 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 E
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 F
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 :
G
" ......... 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
H
274 SUPREME COURT REPORTS [2014] 2 S.C . R.
A 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
B 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
c 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
D following order in Criminal Case Ref. Case No.C.796 of 1993
'Complainant is presenf. He is examined and discharged.
No other PWs are present. It appears that a prima facie
E 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
F 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
G 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
H
AVEEK SARKAR & ANR. v. STATE OF WEST 275
·BENGAL & ORS. [K.S. RADHAKRISHNAN, J.]
in Germany. Further, it was pointed out that the said magazine A
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 8
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 C·
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 o
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 l.P.C. At present having regard to the E
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 l.P.C."
8. The Magistrate after holding so, held the accused F
persons to be examined i.mder 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. G
· 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) H-
276 SUPREME COURT REPORTS [2014] 2 S.C.R.
A 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
B 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,
C 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 fiancee 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
D 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,
,E 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,
F 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, cannotI be said to
be per se "obscene" within the meaning of Se~tion 291(1) IPC
so as to remand a trial of the Appellants in respect of the
G 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
cqmmunity and the prevalent norms of acceptability/
susceptibility of the community, in relation to matters in issue.
H In support of this contention, reliance was placed on the
AVEEK SARKAR & ANR. v. STATE OF WEST 277
BENGAL & ORS. [K.S. RADHAKRISHNAN, J.]
Constitution Bench judgment of this Court in Ranjit D. Udeshi A
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 68 7. Few other
judgments were also referred to in support of his contention.
Learned senior counsel also pointed out that the learned B
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 c
that the Courts below have not properly appreciated the scope
of Section 79. IPC and thaUhe 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 0
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. E
11. Shri Mohit Paul, learned counsel, appearing for the
Respondents, submitted that the Courts below were justifiedjn
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 F
and the ~vidence 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 G
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.
H
278 SUPREME COURT REPORTS [2014] 2 S.C.R.
A TEST OF OBSCENITY AND COMMUNITY STANDARDS
12. Constitution Bench of th is 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
8
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
C 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
D Kakodar (supra), this Court reiterated the principle as follows:-
"The standards of contemporary society in India are also
fast changing. "
E 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
F 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 :
G
"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
H test must obviously be of a general character but it must
AVEEK SARKAR & ANR. v. STATE OF WEST 279
BENGAL & ORS. [K.S. RADHAKRISHNAN, J.]
admit of a just application from case to case by indicating A
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 B
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 c
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 D
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. E
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 obsceoity ls left to the Jury. Byrne, J., learned Judge F
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 G
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
H
280 SUPREME COURT REPORTS [2014) 2 S.C.R.
A 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
B 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
c 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
D
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 j!Jl'Y were satisfied beyond reasonable doubt
that the book was obscene, they must then consider the
E 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
F 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."
G
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
H
AVEEK SARKAR & ANR. v. STATE OF WEST 281
BENGAL & ORS. [K.S. RADHAKRISHNAN, J.]
that it could be considered to be obscene. Reference to A
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 B
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 c
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 disgustand revulsion. The mere fact that
0 ,
the various affairs and episodes with emphasis on sex 1
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 E
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 F
must be had to the contemporary mores and national standards.
and not the standard of a group of susceptible or sensitive
persons.
HICKLIN TEST:
G
20. In the United Kingdom, way back in 1868, the Court
laid down the Hicklin test in Regina v. Hicklin (1868 LR. 2
Q.B.360), and held as follows :-
"The test of obscenity is whether the tendency of the matter H
282 SUPREME COURT REPORTS [2014) 2-S.C.R.
-A 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
8
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
C 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
D 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.
E
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.
F 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
G 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·
H Theatres Ltd. v. The Queen (1985) 1 SCR 494, the Canadian
AVEEK SARKAR & ANR. v. STATE OF WEST 283
BENGAL & ORS. [K.S. RADHAKRISHNAN, J.]
Court applied the community standard test and not Hicklin test. A
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 B
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 C
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 o
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 E
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 F
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 G
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 H
284 SUPREME COURT REPORTS [2014] 2 S.C.R.
A 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
8 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.
c 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
D 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
E 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
F
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
G 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
H
AVEEK SARKAR & ANR. v. STATE OF WEST 285
BENGAL & ORS. [K.S. RADHAKRISHNAN; J.]
indignities upon her." A
[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 B
(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 C
Becker with his fiancee Barbara Fultus, a dark-skinned lady
standing close to each other bare bodied but covering the
breast of his fiancee 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 D
a photograph is suggestive of deprave minds and designed
to excit~ 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 E
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. F
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 G
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: H
286 SUPREME COURT REPORTS [2014] 2 S.C.R.
A . "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.
8 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 tp convey, that is
c 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
0 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 .
E 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
F 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.
G 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.
D.G. Appeal allowed.
H
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