2014 (2) TMI 1432 - SC - Indian Laws

Nude photography appeared in the Anandabazar Patrika, as well as in the Sports World - seeking censuring of obscene photographs - HELD THAT -It is to be appreciated that 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 which was reproduced by Sports World and the Anandabazar Patrika be said to be objectionable so as to initiate proceedings under Section 292 Indian Penal Code or under Section 4 of the Indecent Representation of Women (Prohibition) Act, 1986. It is found that no offence has been committed under Section 292 Indian Penal Code and then the question whether it falls in the first part of Section 79 Indian Penal Code 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 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 Code of Criminal Procedure to secure the ends of justice. The criminal proceedings initiated against the Appellants set aside - appeal allowed.

Summary

Issues Involved:
1. Obscenity under Section 292 of the Indian Penal Code (IPC).
2. Application of Section 4 of the Indecent Representation of Women (Prohibition) Act, 1986.
3. Relevance of Section 79 IPC (General Exception).
4. Application of contemporary community standards versus the Hicklin test.
5. Judicial precedents on obscenity and freedom of expression.

Detailed Analysis:

1. Obscenity under Section 292 IPC:
The case revolved around the publication of a photograph of Boris Becker and his fianc'ee Barbara Feltus, which was deemed obscene by a complainant. The complainant argued that the photograph, which showed Becker and Feltus nude with Becker's hand covering Feltus' breast, was obscene and could corrupt young minds, thus violating Section 292 IPC.

The Supreme Court analyzed the photograph in the context of contemporary community standards and the message it intended to convey. The Court emphasized that obscenity must be judged based on contemporary social mores and not just isolated passages. The Court concluded that the photograph was not obscene as it did not arouse sexual thoughts but conveyed a message against racism and apartheid.

2. Application of Section 4 of the Indecent Representation of Women (Prohibition) Act, 1986:
The complainant also urged that the accused should be prosecuted under Section 4 of the Indecent Representation of Women (Prohibition) Act, 1986. The Supreme Court held that the photograph did not fall under the definition of indecent representation as it was not intended to arouse sexual desire but to convey a social message.

3. Relevance of Section 79 IPC (General Exception):
The appellants argued that their actions were justified under Section 79 IPC, which exempts acts done in good faith under a mistake of fact. The Supreme Court noted that since no offence was committed under Section 292 IPC, the question of applying Section 79 IPC became academic.

4. Application of Contemporary Community Standards versus the Hicklin Test:
The Supreme Court rejected the Hicklin test, which judged obscenity based on isolated passages and their impact on susceptible readers. Instead, the Court applied the community standards test, which considers the overall context and message of the material. The Court cited various precedents, including Ranjit D. Udeshi v. State of Maharashtra and Samaresh Bose v. Amal Mitra, to emphasize the evolving nature of obscenity standards.

5. Judicial Precedents on Obscenity and Freedom of Expression:
The Court referred to several landmark judgments, including Ranjit D. Udeshi, Chandrakant Kalyandas Kakodar, and S. Khushboo v. Kanniammal, to highlight the delicate balance between freedom of expression and the regulation of obscenity. The Court reiterated that nudity per se is not obscene and must be judged in context.

Conclusion:
The Supreme Court concluded that the photograph and article were not obscene and did not violate Section 292 IPC or Section 4 of the Indecent Representation of Women (Prohibition) Act, 1986. The Court criticized the lower courts for not applying contemporary community standards and judicial precedents properly. The appeal was allowed, and the criminal proceedings against the appellants were set aside.