Critical Comment on Kerala HC’s Judgment

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As is the nature of Fundamental Rights, granted under the constitution, that one cannot be held to be more important than the other. However, the freedom of speech and expression enjoys a special place among all of the rights. One of the most persistent hurdles in exercising of this right has been what can be considered obscene and the contours of “public decency and morality”. Recently a judgment by the Hon’ble Kerala High Court came into light in which declared that an image of a woman breastfeeding a child is not obscene. The present article firstly delves into the development of jurisprudence related to obscenity, following which the case at hand is discussed and then finally proceed to suggestion and conclusion.

What can be considered as obscene, indecent and thus has the effect of morally corrupting the society has always been a subjective question, as with the passage of time the general consciousness of the society also develops. Thus, always making it a live issue, as what has been obscene in past can be considered not so in the present, or what for a man is art can be obscene and immoral for the other, or vice versa.

For the Supreme Court, the opportunity to discuss the dimensions of obscenity and public decency first came in the case of Ranjit D. Udeshi v. State of Maharashtra [AIR 1965 SC 881]. The court defined that obscenity means that something is offensive to modesty or decency; lewd, filthy, and repulsive. Here following the Hicklin’s test (as developed by the House of Lords) the SC held that a work would be dealt as obscene if it tends to corrupt and deprive the people who were most likely to be corrupted or deprived by such a work (or “the most vulnerable constituency test”). The court held that in order to check whether the work is obscene or not, it should be looked as the whole and not in particular bits and pieces, thus distinguishing from a more strict English law approach.

In the later case of Bobby Art International v. Om Pal [(1996) 4 SCC 1], the SC held that merely nakedness does not arouse the baser instincts, reaffirming that the work must be seen as a whole, thus imputing importance to the artistic merit of the work. Later in D.G. Doordarshan v. Anand Patwardhan [2005 SC], the court replaced “the most vulnerable constituency test” the test of an average, reasonable and strong-minded reader.

Later in the case of Aveek Sarkar v. State of West Bengal [2014 SC] in which a magazine depicted a nude picture of Boris Becker had his fiance which was published and widely circulated in magazines. The court moved from “the most vulnerable constituency test” to the “contemporary community standards” test. The Supreme Court held that even though the picture depicted a woman and man nude, but the message it conveyed should be taken into consideration i.e. a step against racial discrimination, and hence it cannot be considered obscene or representing women in an indecent manner.

Taking the development in the jurisprudence of the law related to obscenity it can be safely said that in present times merely a picture depicting a woman or a man nude or showing certain body parts cannot be termed as obscene and the intent behind the picture is to be taken into consideration.

The case before the Kerala High Court came into being when a magazine carrying a cover page photo of a mother depicting a mother breastfeeding her baby, exposing her bosom was published. It was alleged that such a portrayal of woman attracted penal provisions of Indecent Representation of Women (Prohibition) Act, 1986 (IRWA) and Prevention of Children from Sexual Offences Act (POCSO) as well as Article 39 (e) and (f) of the Constitution of India.

The High Court after taking into consideration the previous judgements from the Supreme Court as well as the texts by Gautam Bhatia and Abhinav Chandrachud held that the picture on the cover page is not obscene. While arriving at this conclusion the court laid down several examples and illustrations on how the past cannot be used as a viable tool to determine what is decent and what is not.

However, what seems striking is that the judgment does not deal with the offence which may be attracted by Sec. 3(c) of the POCSO Act which deals with the offence of penetrative sexual assault. Breastfeeding of a child whether can be considered as a penetrative sexual assault or not could have been set to rest by the Hon’ble High Court in this case. Since the same has been not done, whether the act of breastfeeding of a child can constitute an offence under POCSO remains as a live moot question; though being a very far-fetched one.

Another area where the judgment seems lacking is the fact that despite noting how Roth’s test (which was adopted in Aveek Sarkar case) has been modified by the US Courts in later cases, the High Court instead of appreciating and accommodating those changes settles for the test. However, it can be taken into consideration that the judgment is a step forward in as much as it sees the changes made in Roth’s test itself.

If the aspects of morality and obscenity are to be taken into consideration, the High Court correctly observed that “obscenity lies in the eyes of the beholder” and “Shocking one’s morals” is an elusive concept, amorphous and protein. What may be obscene to some may be artistic to other; one man’s vulgarity is another man’s lyric” thus continuing forward with the array of progressive judgments. Despite the very few shortcomings noted the judgment is and should be welcomed as a step forward.

At the end quoting from the judgment “One man’s pride is another man’s shame.”

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