Giving to the 154-year-old 'obscenity' provision in , the Supreme Court has ruled that a woman's nude picture in a publication could not per se be termed obscene under IPC or Indecent Representation of Women (Prohibition) Act, 1986.
"A picture of a nude or , as such, cannot per se be called obscene unless it has the tendency to arouse the feeling or revealing an overt sexual desire," ruled a bench of Justices K S Radhakrishnan and .
The bench struck down the prosecution initiated against two publications for re-publishing an article with a picture of Boris Becker posing nude with his dark-skinned film actress fiancee Barbara Feltus, originally published by German magazine 'Stern' in 1993. The photograph was taken by the actress' father and it was meant to portray Becker as a strident protester of "apartheid".
Justice Radhakrishnan, who authored the judgment, said while judging whether an article or book was obscene, the courts must keep in mind the "contemporary more and national standards and not the standard of a group of susceptible or sensitive persons".
"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," the bench said.
"Only those sex-related materials which have a tendency of 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," the court said, reminding the courts that in this case "we are in 2014 and not in 1994".
Till now, a UK court's Hicklin Test, laid down way back in 1868, held the field in determining what constituted obscenity. The UK court had said, "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."
Rejecting the 146-year-old test, Justices Radhakrishnan and Sikri said, "We are of the view that Hicklin Test is not the correct test to be applied to determine 'what is obscenity'... We have to apply the 'community standard test' rather than 'Hicklin Test' to determine what is obscenity."
Quashing the prosecution initiated against a sports magazine and a daily by a Kolkata court on the complaint of an advocate, the bench said, "Applying the community standard test we are not prepared to say such a photograph is suggestive of depraved minds and designed to excite sexual passion in persons who are likely to look at them and see them.
"Breast of Barbara Feltus 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. The photograph, in our view, has no tendency to deprave or corrupt the minds of people in whose hands the magazine or the daily would fall.
"We may 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 message the photograph wants to convey is that the colour of the skin matters little, and love champions over colour. The picture promotes love affair, leading to a marriage, between a white-skinned man and a black-skinned woman."
The Supreme Court regretted the prosecution proceedings initiated by the magistrate without proper application of mind or appreciation of background in which the photograph has been shown.
If nudity alone were to be the criterion to declare something obscene or objectionable, then any number of great works of art -- including Michelangelo's David and the sculptures of Khajuraho -- would fail to pass muster. Clearly, it is the context in which a visual is set and the message it seeks to convey that determines whether or not it is obscene. The Supreme Court has correctly appreciated this point and deserves praise for its broadminded and sensible verdict. It should also encourage authorities to take a zero-tolerance approach towards hyper-active moral policing.