AVEEK SARKAR vs. STATE OF WEST BENGAL

1 REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPEAL NO.902 OF 2004 Aveek Sarkar & Anr. .. Appellants Versus State of West Bengal & Ors. .. Respondents J U D G M E N T K. S. RADHAKRISHNAN, J. JUDGMENT 1. A German magazine by name “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 by name Barbara Feltus, a film actress, which was photographed by none other than her father. The article states that, in an interview, both Boris Becker and Barbaba Feltus spoke freely about their Page 1 2 engagement, their lives and future plans and the message they wanted to convey to the people at large, for posing to

Further, it was stated that the purpose of the photograph was also to signify that love champions over hatred. 2. “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. 3. Anandabazar Patrika, a newspaper having wide JUDGMENT 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. 4. A lawyer practicing at Alipore Judge’s Court, Kolkata, claimed to be a regular reader of Sports World as well as Page 2 3 Anandabazar Patrika filed a complaint under Section 292 of the Indian Penal Code against the Appellants herein, the

Indian Cricket Team, late Mansoor Ali Khan of Pataudi, before the Sub-Divisional Magistrate at Alipore. Complaint stated that as an experienced Advocate and an elderly person, he could vouchsafe that the nude photograph appeared in the Anandabazar 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. The complainant stated that unless such types of obscene photographs are censured and banned and accused JUDGMENT persons are punished, the dignity and honour of our womanhood would be in jeopardy. The complainant also deposed before the Court on 10.5.1993, inter alia , as follows : “………That the Accused No.1 and the Accused No.2 both the editors of Ananda Bazar Patrika and Sports World respectively intentionally and deliberately with the help of the Accused No.3 for the purpose of their business, particularly for sale of their papers and Page 3 4

5. The learned Magistrate on 10.5.1993 passed the following order in Criminal Case Ref. Case No.C.796 of 1993 : ‘Complainant is present. He is examined and discharged. No other PWs are present. It appears that a prima facie case is made out against the accused persons under Section 292 IPC. Issue summons against all the accused persons fixing 17.6.1993 for S.P. and appearance. Requisite at one.” JUDGMENT 6. Complainant also urged that the accused persons should not only be prosecuted under Section 292 IPC, but also be prosecuted under Section 4 of the Indecent Representation of Women (Prohibition) Act, 1986, since the photograph prima facie gives a sexual titillation and its Page 4 5 impact is moral degradation and would also encourage the people to commit sexual offences. The accused persons on

reproducing in the Sports World as well as in the Anandabazar Patrika of the news item and photograph appeared in a magazine ‘STERN” published in Germany. Further, 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 any 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 JUDGMENT himself to be justified by law, in doing it. 7. The Court after seeing the photographs and hearing the arguments on either side, held as follows :- “Moreover, until evidence comes in it will not be proper to give any opinion as to the responsibility of the accused persons. But I feel it pertinent to mention that though the Section 292 does not define word ‘obscene’, but my rids of precedents have clustered round on this point and being satisfied with Page 5 6

8. The Magistrate after holding so, held the accused persons to be examined under Section 251 Cr.P.C. and ordered that they would be put to face the trial for the offence punishable under Section 292 IPC alternatively under Section 4 of the Indecent Representation of Women (Prohibition) Act, 1986. JUDGMENT 9. The Appellants herein preferred Criminal Revision No.1591 of 1994 before the High Court of Calcutta under Section 482 Cr.P.C. for quashing the proceedings in Case No.C.796 of 1993 (corresponding to T.R. No.35 of 1994) pending before the learned Judicial Magistrate Court, Alipore. Before the High Court, it was pointed out that the Magistrate had not properly appreciated the fact that there was no ban Page 6 7 in importing the German sports magazine ‘STERN” into India. Consequently, reproduction of any picture would fall within

addressed by the Assistant Editor, Sports World to the Collector, Calcutta Customs and a copy of the letter dated 4.10.1993 sent by the Deputy Collector, Calcutta Customs to the Assistant Editor, Sports World. Referring to the picture, it was pointed out that the picture only demonstrates the protest lodged by Boris Becker as well as his fiancée against ‘apartheid” and those facts were not properly appreciated by the learned Magistrate. Further, it was also pointed out that the offending picture could not be termed as obscene JUDGMENT inasmuch as nudity per se was not obscene and the picture was neither suggestive nor provocative in any manner and would have no affect on the minds of the youth or the public in general. Further, it was also pointed out that the learned Magistrate should not have issued summons without application of mind. The High Court, however, did not appreciate all those contentions and declined to quash the Page 7 8 proceedings under Section 483 Cr.P.C., against which this appeal has been preferred.

as well as the photograph taken, as a whole and in the background of facts and circumstances, cannot be said to be per se “obscene” within the meaning of Section 291(1) IPC so as to remand a trial of the Appellants in respect of the alleged offence under Section 292(1) IPC. The learned counsel pointed out that obscenity has to be judged in the context of contemporary social mores, current socio-moral attitude of the community and the prevalent norms of JUDGMENT acceptability/ susceptibility of the community, in relation to matters in issue. In support of this contention, reliance was placed on the Constitution Bench judgment of this Court in Ranjit D. Udeshi v. State of Maharashtra AIR 1965 SC 881. Reference was also made to the judgment of this Court in Chandrakant Kalyandas Kakodar v. State of Maharashtra 1969 (2) SCC 687. Few other judgments Page 8 9 were also referred to in support of his contention. Learned senior counsel also pointed out that the learned Magistrate

message it had given to the public at large. Learned senior counsel also pointed out that the photograph is in no way vulgar or lascivious. Learned senior counsel also pointed out that the Courts below have not properly appreciated the scope of Section 79 IPC and that the Appellants are justified in law in publishing the photograph and the article which was borrowed from the German magazine. Learned senior counsel also pointed out that such a publication was never found to be obscene even by the State authorities and no FIR JUDGMENT was ever lodged against the Appellants and a private complaint of such a nature should not have been entertained by the learned Magistrate without appreciating the facts as well as the law on the point. Learned senior counsel pointed out that the High Court ought to have exercised jurisdiction under Section 482 Cr.P.C. Page 9 10 11. Shri Mohit Paul, learned counsel, appearing for the Respondents, submitted that the Courts below were justified

trial and the evidence is adduced. Learned counsel pointed out that the question whether the publication of the photograph is justified or not and was made in good faith requires to be proved by the Appellants since good faith and public good are questions of fact and matters for evidence. Learned counsel pointed out that the learned Magistrate as well as the High Court was justified in not quashing the complaint and ordering the Appellants to face the trial. JUDGMENT TEST OF OBSCENITY AND COMMUNITY STANDARDS 12. Constitution Bench of this Court in the year 1965 in Ranjit D. Udeshi (supra) indicated that the concept of obscenity would change with the passage of time and what might have been “obscene” at one point of time would not be considered as obscene at a later period. Judgment refers Page 10 11 to several examples of changing notion of obscenity and ultimately the Court observed as follows :-

This is what this Court has said in the year 1965. 13. Again in the year 1969, in Chandrakant Kalyandas Kakodar (supra), this Court reiterated the principle as follows:- “The standards of contemporary society in India are also fast changing. “ 14. Above mentioned principle has been reiterated in Samaresh Bose v. Amal Mitra (1985) 4 SCC 289 by laying JUDGMENT emphasis on contemporary social values and general attitude of ordinary reader. Again in 2010, the principle of contemporary community standards and social values have been reiterated in S. Khushboo V. Kanniammal (2010) 5 SCC 600. 15. This Court in Ranjit D. Udeshi (supra) highlighted the delicate task to be discharged by the Courts in judging Page 11 12 whether the word, picture, painting, etc. would pass the test of obscenity under Section 292 of the Code and the Court held as follows :

JUDGMENT 16. Applying the above test, to the book “Lady Chatterley’s Lover”, this Court in Ranjit D. Udeshi (supra) held that in treating with sex the impugned portions viewed separately and also in the setting of the whole book passed the permissible limits judged of from our community Page 12 13 standards and there was no social gain to the public which could be said to preponderate the book must be held to

condemned as obscene by this Court was held to be not obscene in England by Central Criminal Court. In England, the question of obscenity is left to the Jury. Byrne, J., learned Judge who presided over the Central Criminal Court in R. v. Penguin Books Ltd. (1961 Crl. Law Review 176) observed as follows :- “In summing up his lordship instructed the jury that: They must consider the book as a whole, not selecting passages here and there and, keeping their feet on the ground, not exercising questions of taste or the functions of a censor. The first question, after publication was: was the book obscene? Was its effect taken as a whole to tend to deprave and corrupt persons who were likely, having regard to all the circumstances, to read it? To deprave meant to make morally bad, to pervert, to debase or corrupt morally. To corrupt meant to render morally unsound or rotten, to destroy the moral purity or chastity, to pervert or ruin a good quality, to debase, to defile. No intent to deprave or corrupt was necessary. The mere fact that the jury might be shocked and disgusted by the book would not solve the question. Authors had a right to express themselves but JUDGMENT Page 13 14

JUDGMENT 18. Later, this Court in Samaresh Bose (supra), referring to the Bengali novel “Prajapati” written by Samaresh Bose, observed as follows :- “35. .................. We are not satisfied on reading the book that it could be considered to be obscene. Reference to kissing, description of the body and the figures of the female characters in the book and suggestions of acts of sex by themselves may not have the effect of depraving, debasing and Page 14 15

We have already indicated, this was the contemporary standard in the year 1985. 19. We are, in this case, concerned with a situation of the JUDGMENT year 1994, but we are in 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: Page 15 16 20. In the United Kingdom, way back in 1868, the Court laid down the Hicklin test in Regina v. Hicklin (1868 L.R. 2 Q.B. 360), and held as follows :- “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.” 21. 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. United States, however, made a marked departure. Of late, it felt that the Hicklin test is not JUDGMENT correct test to apply to judge what is obscenity. In Roth v. United States 354 U.S. 476 (1957), the Supreme Court of United States directly dealt with the issue of obscenity as an exception to freedom of speech and expression. The Court held that the rejection of “obscenity” was implicit in the First Amendment. Noticing that sex and obscenity were held not to be synonymous with each other, the Court held that only Page 16 17 those sex-related materials which had the tendency of “exciting lustful thoughts” were found to be obscene and the

22. In Canada also, the majority held in Brodie v. The Queen (1962 SCR 681) that D.H. Lawrence’s novel “Lady Chatterley’s Lover” was not obscene within the meaning of the Canadian Criminal Code 23. The Supreme Court of Canada in Regina v. Butler (1992) 1 SCR 452, held that the dominant test is the “community standards problems test”. The Court held that explicit sex that is not violent and neither degrading nor JUDGMENT dehumanizing is generally tolerated in the Canadian society and will not qualify as the undue exploitation of sex unless it employs children in its production. The Court held, in order for the work or material to qualify as ‘obscene’, the exploitation of sex must not only be a dominant characteristic, but such exploitation must be “undue”. Earlier in Towne Cinema Theatres Ltd. v. The Queen Page 17 18 (1985) 1 SCR 494, the Canadian Court applied the community standard test and not Hicklin test. COMMUNITY STANDARD TEST: 24. We are also of the view that Hicklin test is not the correct test to be applied to determine “what is obscenity”. Section 292 of the Indian Penal Code, of course, uses the expression ‘lascivious and prurient interests’ or its effect. Later, it has also been indicated in the said Section of the applicability of the effect and the necessity of taking the items as a whole and on that foundation where such items would tend to deprave and corrupt persons who are likely, having regard to all the relevant circumstances, to read, see JUDGMENT or hear the matter contained or embodied in it. We have, therefore, to apply 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 Page 18 19 tends to deprave and corrupt persons who are likely to read, see or hear the matter, alleged to be obscene. Once the

exceptions contained in Section. A picture of a nude/semi- nude woman, as such, cannot per se be called obscene unless it has the tendency to arouse feeling or revealing an overt sexual desire. 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. Only those sex-related materials which have a tendency of “exciting lustful JUDGMENT 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. MESSAGE AND CONTEXT 25. We have to examine the question of obscenity in the context in which the photograph appears and the message it Page 19 20 wants to convey. In Bobby Art International & Ors. v. Om Pal Singh Hoon (1996) 4 SCC 1, this Court while

objectionable scenes in the film have to be considered in the context of the message that the film was seeking to transmit in respect of social menace of torture and violence against a helpless female child which transformed her into a dreaded dacoit. The Court expressed the following view :- “First, the scene where she is humiliated, stripped naked, paraded, made to draw water from the well, within the circle of a hundred men. The exposure of her breasts and genitalia to those men is intended by those who strip her to demean her. The effect of so doing upon her could hardly have been better conveyed than by explicitly showing the scene. The object of doing so was not to titillate the cinemagoer’s lust but to arouse in him sympathy for the victim and disgust for the perpetrators. The revulsion that the Tribunal referred to was not at Phoolan Devi’s nudity but at the sadism and heartlessness of those who had stripped her naked to rob her of every shred of dignity. Nakedness does not always arouse the baser instinct. The reference by the Tribunal to the film “Schindler’s List” was apt. There is a scene in it of rows of naked men and women, shown frontally, being led into the gas chambers of a Nazi concentration camp. Not only are they about to die but they have been stripped in JUDGMENT Page 20 21 their last moments of the basic dignity of human beings. Tears are a likely reaction; pity, horror and a fellow-feeling of shame are certain, except in the pervert who might be aroused. We do not censor to protect the pervert or to assuage the susceptibilities of the over-sensitive. “Bandit Queen” tells a powerful human story and to that story the scene of Phoolan Devi’s enforced naked parade is central. It helps to explain why Phoolan Devi became what she did: her rage and vendetta against the society that had heaped indignities upon her.” [Emphasis Supplied] 26. In Ajay Goswami v. Union of India (2007) 1 SCC 143, while examining the scope of Section 292 IPC and Sections 3, 4 and 6 of the Indecent Representation of Women (Prohibition) Act, 1986, this Court held that the commitment to freedom of expression demands that it cannot be suppressed, unless the situations created by it allowing the JUDGMENT freedom are pressing and the community interest is endangered. 27. We have to examine whether the photograph of Boris Becker with his fiancée Barbara Fultus, a dark-skinned lady standing close to each other bare bodied but covering the breast of his fiancée with his hands can be stated to be Page 21 22 objectionable in the sense it violates Section 292 IPC. Applying the community tolerance test, we are not prepared

likely to look at them and see them, which would depend upon the particular posture and background in which the woman is depicted or shown. Breast of Barbara Fultus has been fully covered with the arm of Boris Becker, a photograph, of course, semi-nude, but taken by none other than the father of Barbara. Further, the photograph, in our view, has no tendency to deprave or corrupt the minds of people in whose hands the magazine Sports World or Anandabazar Patrika would fall. JUDGMENT 28. We may also 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 cover story of the Magazine carries the title, posing nude, dropping of harassment, battling racism in Germany. Boris Becker himself in the article published in the Page 22 23 German magazine, speaks of the racial discrimination prevalent in Germany and the article highlights Boris

“the nude photos were supposed to shock, no doubt about it....... What I am saying with these photos is that an inter-racial relationship is okay.” 29. 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. 30. We should, therefore, appreciate the photograph and the article in the light of the message it wants to convey, JUDGMENT 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 IPC or under Section Page 23 24 4 of the Indecent Representation of Women (Prohibition) Act, 1986.

in the first part of Section 79 IPC 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 JUDGMENT our view, should have exercised powers under Section 482 Cr.P.C. to secure the ends of justice. 32. We are, therefore, inclined to allow this appeal and set aside the criminal proceedings initiated against the Appellants. The Appeal is allowed as above. Page 24 25 ……………………………..J. (K. S. Radhakrishnan) .….………………………...J. (A.K. Sikri) New Delhi, February 03, 2014. JUDGMENT Page 25