Author: Priyanshi Soni, Karnavati University, United World School of Law, Gandhinagar, India
Linkedin Profile: https://www.linkedin.com/in/priyanshi-soni-8997bb274?utm_source=share&utm_campaign=share_via&utm_content=profile&utm_medium=ios_app
TO THE POINT
Obscene is a term which serves as an offensive and a shocking language. The scope of the word ‘obscene’ is not wide and not yet clear. The material or a photograph to be considered as an obscene material depends upon the case to case in the court. Thus, it is dynamic and fluctuates with time to time. In India, a person who has published any obscene material is punishable under Section 292 Indian Penal Code where the punishment is up to 2 years and a fine, and for subsequent convictions, imprisonment up to 5 years and with a higher fine.
Before the year 2014, the test to find that whether a photograph is considered as an obscene material or not depend on the Hicklin test which was established in the English case of Regina V Hicklin in 1868. This test focused on how to find whether a material is obscene material or not based on the tendency to corrupt the minds of young generations. But this test was not considered as suitable test to measure the obscenity. Thus, in 2014 judgement the Court has rejected the Hicklin test and accepted the new test- Community Standard Test to measure obscenity in the case law of Aveek Sarkar V State of West Bengal (2014).
In Aveek Sarkar V State of West Bengal, various editors and publishers of the newspaper has published the article and the picture of a nude couple – darked skinned women with a white skinned man. An advocate file a suit against the newspaper editor under Section 292 Indian Penal Code and under Section 4 Indecent Representation of Women (Prohibition) Act, 1986. The case then went to 3 Courts – Magistrate Court, High Court and the Supreme Court. However, the case came in the favor of the respondent and no offence was found under any of the Sections mentioned above.
ABSTRACT
The case of Aveek Sarkar v. State of West Bengal (2014) marks a significant turning point in Indian obscenity law and constitutional interpretation. It redefined the legal threshold for what constitutes “obscene” material, moving away from the archaic and restrictive Hicklin test to adopt the more progressive Community Standards Test. This landmark judgment arose from the publication of a photograph featuring interracial nudity, which was intended to convey a social message against racism but was challenged on the grounds of obscenity. The Supreme Court of India, however, emphasized that obscenity must be assessed in the context of the material’s purpose and societal perception, rather than isolated impressions or outdated moral views.
This case is pivotal for reinforcing the right to freedom of speech and expression under Article 19(1)(a) of the Constitution, and for clarifying the scope of reasonable restrictions under Article 19(2). It also delves into concepts like mens rea, public decency, and artistic intent, thereby establishing an evolved and nuanced framework for future adjudication in obscenity-related matters. The Court’s judgment not only quashed the criminal proceedings but also served as a judicial endorsement of progressive social dialogue through media and art.
THE PROOF
Facts of the Case
In 1994, Baris Becker, a world renowned tennis player was posed nude with his dark- skinned fiancée- Barbara Feltus by covering her breast by his palms. This article was published by “STERN” the German magazine in their newspaper. In this interview both of them spoke about their marriage, their love affairs and their future plan and the message they want to convey at large to the public.
This article along with the picture was published by “Sports World”, a widely circulated newspaper in India on their cover page dated 05.05.1993.
The article was again published by Anandabazar Patrika, a widely circulated newspaper in Kolkata dated 06.05.1993.
A lawyer named Aveek Sarkar practicing at Alipore Judge’s Court, Kolkata filed a complained against the publisher and the editor of the newspaper under Section 292 of the Indian Penal Code and under section 4A of the Indecent Representation of Women (Prohibition) Act, 1986 before the Sub-Divisional Magistrate at Alipore
Contentions Advanced by the Party
Appellant:
The appellant argued that there was no harm in publishing the news article in the given newspaper because the entry of the magazine was never banned into India and it cannot consider as “obscene” under Section 79 Indian Penal Code.
The appellant on the side argued that the published article and the picture cannot be defines as obscene under section 291(1) Indian Penal Code and “obscene” has to be judged in context of social norms and social attituded of the society.
He also argued that the Magistrate and the High Court has overlooked that fact or the reason of posing the nude picture and publishing it in the newspaper and also not properly appreciate the scope of Section 79 Indian Penal Code.
Respondent:
They argued that the nude photo published in the article is obscene as it would corrupt the young minds and it is against the social and moral obligations of the society.
The respondent argued that the accused person should not only be prosecuted under Section 292 Indian Penal Code, but also under Section 4 of the Indecent Representation of Women (Prohibition) Act, 1986.
They too argued that the Magistrate and High Court were justified by prosecuting them against the alleged charger and ordering them to face the trials.
Judgement by the Court
Judgement by Magistrate Court
The Magistrate Court held that the accused to be examined under Section 251 Code of Criminal Procedure and also said that they have to face trials under Section 4 of the Indecent Representation of Women (Prohibition) Act, 1986.
The court also said that it was too early to give the accused benefits of Section 79 Indian Penal Code.
Judgement by High Court
Soon, appeal was put forward before the High Court of Calcutta where they argue to quash the proceedings against them by arguing that the Magistrate Court did not focus on the thing that there was no ban in importing the “STERN” magazine into India and the photo published in the newspaper cannot be termed as “Obscene” material because it doesn’t corrupt the minds of young people and the followed generation.
But the High Court did take into the arguments and declined to quash the proceedings under Section 483 Code of Criminal Procedure. 7
Judgement by Supreme Court
No offence has been committed under Section 292 Indian Penal Code and under Section 4 of the Indecent Representation of Women (Prohibition) Act, 1986 and the picture was not considered as a “Obscene” material and they side aside the criminal proceedings against the appellant. The Court also said that the Hicklin Test was not the correct test to define what is obscenity. Instead of this test, the Court focused on Community Standard Test.
The court was also of the view that such a photograph cannot be considered as obscene material unless it is suggestive to deprave or corrupt the young mind. It can only consider as Obscene picture if it arose some lust thoughts or feelings. It also said that the picture has to viewed in the background in which it was published i.e. – the main objective of the photo was to teach us about the Apartheid and racism in the society and to promote love and marriage.
USE OF LEGAL JARGONS
A number of significant legal ideas are intricately woven into the Aveek Sarkar v. State of West Bengal case, particularly those related to criminal law and constitutional rights. “Obscenity,” as defined by Section 292 of the Indian Penal Code, 1860, is one of the key concepts examined in the case. According to this clause, everything that is obscene is defined as lascivious, appealing to the prurient curiosity, or having the potential to corrupt and deprave those who are likely to read, see, or hear it. However, judicial interpretation has led to an evolution in this term. The Supreme Court clearly broke with the previous Hicklin approach in the Aveek Sarkar ruling, which assessed obscenity by considering how isolated passages of a work affected the most vulnerable sections of society, including minors or the morally weak.
The “freedom of speech and expression,” which is protected by Article 19(1)(a) of the Indian Constitution, is another important legal concept at play. Written, artistic, and visual expressions are all protected by this freedom in addition to spoken speech. But according to Article 19(2), this freedom is not unqualified and may be subject to “reasonable restrictions” for the sake of morality, public decency, state security, or incitement to crime. According to the Court’s analysis in Aveek Sarkar, speech restrictions must be carefully considered and cannot be utilized to stifle artistic freedom or social commentary unless the communication in question explicitly breaches one of the particular grounds listed in Article 19(2).
The idea of mens rea, or the mental component of a criminal offense, is equally significant. The purpose of the publication becomes important when discussing obscenity accusations under Section 292 IPC. The necessary criminal intention (mens rea) is not present if the book was created with the objective of informing, teaching, or socially reforming rather than corrupting or arousing sexual impulses. The Supreme Court determined that the publication of the image, which was meant to oppose racial discrimination and advance progressive social goals, did not have any such malevolent motive in the Aveek Sarkar case.
Thus, Obscenity, community standards, freedom of expression, reasonable constraints, mens rea, and prima facie evidence are all legal ideas that together form the legal context in which the Aveek Sarkar ruling was made.
CASE LAWS
Bobby Art International v. Om Pal Singh Hoon:
The case is related to the production of the file named ‘Bandit Queen’ which was related to rape and brutalization. The Supreme Court has later set aside the order of the High Court who has restrict its producer to showcase the movie as it contains obscence material. The court state that the objective of showing such nudity and rape scenes was to deliever the importance of such rape culture and because of it the freedom of speech and expression cannot be curtailed.
Ranjit Udeshi v. State of Maharashtra:
The case is related to obscenity and freedom of speech and expression. A pillar of Indian obscenity law is still the Ranjit D. Udeshi v. State of Maharashtra case. The ruling established a standard for obscenity that would direct the Indian judiciary for many years in addition to confirming the validity of Section 292 IPC. The Court upheld the notion that some types of expression could be restricted in order to preserve morality and public decency by implementing the Hicklin Test.
CONCLUSION
In conclusion, the case takes about the obscene material and the community standard test as a transforming test that serve as a major test and a major change in India after the 2014 judgement. This was one of the landmark Judgement to check whether a material was obscene or not and to elaborate the idea of fundamental right to speech and expression. The case also talks about the fundamental right to speech and expression recognize the importance of individual and diverse society.
The main aim of the photograph in the article was to show their love life and eradication of the Racism in Germany by posing a nude photo between a white-skinned man and a black-skinned women. But this photograph was taken in a different manner by advocate stating that this is an obscene material and can act as a tool to corrupt the minds of young people and young generations. Thus, the thinking of both the married couple and the other people was different in order to interpretate the photograph in the correct manner. Different people have different ability of thinking and the intention varies and the intention and the thinking are the main element that should be considered in any ‘Obscenity’ case if further arose.
FAQS
What is the significance of Aveek Sarkar v State of West Bengal?
It is important because it strengthens the protection of free speech by substituting the modern community standards test for the antiquated Hicklin test in determining obscenity.
What was the legal question in the Aveek Sarkar case?
The core issue was whether the semi-nude photograph constituted “obscenity” under Section 292 IPC and whether the publisher/editor could be held criminally liable.
What is the doctrine of community standard test?
This doctrine is applicable in this case which is used as a doctrine to check the obscenity under Section 292 Indian Penal Code. This doctrine established a new method to check obscenity from the point of view from an average person and not from an emotional or sensitive point of view.
What is the ratio decidendia of the case?
The Supreme Court in this case has rejected the Hicklin test and proposed to use Community Standard test. The court rejected the Hicklin test is to determine the ‘Obscene’ material”. The photograph or article, if published, should be view is the background in which it was shown to considered as a ‘Obscene’ material. The background of uploading the picture or the article should be known to the public at the large that in which context the photo was actually published.
Can nudity ever be legally published under Indian law?
Yes, if it serves an artistic, journalistic, scientific, or educational purpose and does not appeal solely to prurient interest or offend public decency.
