Case Brief: Aveek Sarkar v. State of West Bengal
Citation: (2014) 4 SCC 257
Court: Supreme Court of India.
Bench: K. S. Radhakrishnan, A.K. Sikri
Theme: What is the meaning of obscenity and how intention plays a vital role in such cases.
Subject: Indian Penal Code
• A German magazine named “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 named Barbara Feltus, a film actress, which was photographed by her father. The article states of an interview where 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 through that photograph. Article picturizes Boris Becker as a strident protester of the pernicious practice of “Apartheid”. It was stated that the purpose of the photograph was also to signify that love champions over hatred.
• “Sports World”, a widely circulated magazine published in India reproduced the article and the photograph as cover story in its Issue 15 dated 05.05.1993 with the caption “Posing nude dropping out of tournaments, battling Racism in Germany. Boris Becker explains his recent approach to life” – Boris Becker Unmasked.
•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.
•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.
1. Should that photograph be regarded as obscene?
2. Was its effects taken as a whole tend to deprave and corrupt persons who are
Likely to read it?
1. The Nude photograph that appeared in the Anandbazar 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.
2. Against the dignity and honour of our womanhood by indecent Representation of Women under Section 4 of the Indecent Representation of Women(Prohibition)Act,1986.
3. It was intentionally done by both the accused i.e. Ananda Bazar Patrika and Sports World for sale of their papers and magazines published, printed and publicly exhibited and circulated.
4. Since the photograph gives a sexual titillation and its impact is moral degradation and would also encourage the people commit sexual commit sexual offences.
1. 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 a 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 you be justified by law, in doing it.
2. The Article only promoted the battle against Racism in Germany.
The photograph was not considered as obscene and following are the reasons cited by them set aside the criminal proceedings initiated against the Appellants.
1. They said that we are in the year 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 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.
2. Hicklin test was not regarded as the correct test to be applied to determine “what is obscenity”. Section 292 of the Indian Penal Code uses the expression ‘lascivious and prurient interests’ or its effect. They applied 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.
3. A picture of a nude/semi-nude woman cannot be called as obscene unless it has the tendency to arouse feeling or revealing an overt sexual desire. 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.
4. 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.
5. Hence under Section 292 they found that no offence has been omitted and thus the photograph was not considered to be as obscene and they set aside the criminal proceedings against the appellant.
Present Status of the Judgement:
The Judgement that has been made in the case i.e. Aveek Sarkar v. State of West Bengal i.e the rejection of the Hicklin Test of obscenity and regarding that a photograph is obscene if it provokes sexual desire and the background of the photograph should be taken into consideration like in this case its aim was to promote love affair and that colour of skin matters little and love champions over love. Because the definition of obscenity changes with time. Therefore, no offence was found under Article 292 and that judgement is still being followed till today and has not yet been overruled.
One Conclusion can be definitely drawn from this case that people are different from the way they think, because When Boris Becker through this photograph wanted to promote that in case of love, colours matters little through his nude pictures posing with his fiancée but at the same time when he was promoting this, to the lawyer it seemed to be completely vulgar. So this case points out the main difference in the thinking of the people. And the judgement clearly indicates that intention matters a lot in cases like this and the background of that pictures matter a lot as well.
Contributed by: Sajal Nidhi Bara (Student, National University of Study and Research in Law, Ranchi)