Kerala HC: As beauty lies in the beholder’s eye, so does obscenity

Kerala High Court:  In its well-wrought judgment, the Division Bench comprising of Antony Dominic, C.J. and Dama Seshadri Naidu, J. observed that “shocking one’s morals” is an elusive, amorphous and protean concept in following words: “What may be obscene to some may be artistic to other; one man’s vulgarity is another man’s lyric, so to say.”

In this case, the petitioner fouled at and drew the Court’s attention to the cover page of a magazine depicting a mother feeding her baby, exposing her bosom. The caption in translation read “Don’t stare, we have to breastfeed.” The petitioner contended that the over page offended Sections 3(c) and 5(j), III of the Protection of Children from Sexual Offences Act and Rules, as well as Section 45 of the Juvenile Justice Act. He has also roped in Sections 3 and 4 of the Indecent Representation of Women (Prohibition) Act, 1986, and Article 39(e) and (f) of the Constitution.

Speaking for the Bench, Naidu, J. observed that Indian psyche has been so mature for ages that it could see the sensuous even in the sacred by giving example of the paintings in Ajanta. The Court while quoting William Dalrymple agreed that sensuous and sacred are one and the sensuous is seen as an integral part of the sacred. Court referred to Renjith D. Udeshi v. State of Maharashtra, AIR 1965 SC 881 wherein context of Article 19(2), the Supreme Court has defined obscenity to mean offensive to modesty or decency; lewd, filthy, and repulsive. The High Court noted that Article 19(2) aims at maintaining only public order, decency, or morality, the last two of which are elastic. Article 19(1) has no public interest exception. Court opined that obscenity is a weapon of cultural regulation.

After referring to various other judgments, the Court finally directed the course of its discussion to Aveek Sarkar v. State of West Bengal, (2014) 4 SCC 257 where the Apex Court had said that 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 depravity of 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 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.

By applying the same test, the Court concluded that the petitioner had failed to convince that the respondent publishers had committed any offence affecting the society’s moral fabric, and offending its sensibilities. [Felix M.A. v. P.B. Gangadharan, W.P.(C) No. 7778 of 2018, dated 08.3.2018]

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