AVEEK SARKAR and Anr vs STATE OF WEST BENGAL and Anr. (2014) 4 SCC 257: Case ANALYSIS

The facts of the case are as follows:

The magazine STERN had published a picture of Boris Becker and his dark-skinned fiancée Barbara Feltus posing nude, clicked by her father. The article contained their interview in which they talked about apartheid and how love conquers over hatred. Both Sports World and Anandbazarpatrika circulated this article. A complaint was filed under section 292 of the IPC against editors of both and printer of the latter. It was argued that it obscene and lascivious, that it would corrupt young minds and was against cultural/moral values of society.

The complaint also included Section 4 of the Indecent Representation of Women (Prohibition) Act, 1986, since the photograph prima facie gave a sexual titillation and its impact was moral degradation and would encourage the people to commit sexual offences.

The HC while reviewing the lower court’s decision held that it would not amount to obscenity. There is no specific definition of obscenity under section 292, because of which “…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 message being conveyed through the portrayal is of utmost importance when deciding the obscenity of an act, was also held in the Bobby International[1] case. Therefore, it had to be viewed as promoting love and standing against discriminatory colourist and racist practices. It referred to the Ranjit Udeshi case and reiterated that the concept of obscenity changes over time. 

This was the case which led to the development of the Community Standards test, as against the Hicklin test that was previously used. This test is more applicable in India because it takes into consideration changing times and interpretations. Further, in a constantly changing society it was not right to use a single standardized test to judge what is obscene.[2] The court also held that what needs to be taken into consideration are the contemporary national standards and not that of a group of sensitive persons.

The Hicklin test, the first test to determine obscenity, was laid down in the case of Regina vs Hicklin[3] (1868). It followed the contextual approach. To decide what is obscene, it should be viewed as a whole,not in parts.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.

Kherode chadra[4] (1911) case further stressed upon the exception to obscenity-religious purposes(in this case)It was held that the book Natu-Chori, which vividly described Radha in a nude position, was a text for religious purposes and would fall under exceptions.

In Ranjit Udeshi[5] case (1965), the appellants were prosecuted u/s 292 for selling copies of Lady Chatterley’s lover. It was argued that S.292 was violative of the right of speech and expression and that the book was not obscene when considered as a whole. The court held that the mentality of the writer was not to sexualize the minds of people, but he had an indifferent perspective to sex and had normalized it in his works.

A work of art is not obscene, merely because it deals with sex and/or nudity.should not be destroyed if the interest of the society requires it preserved. The situation at hand must be viewed as a whole, and that artistic and literary merits must be weighed against the context in which obscenity occurs and the purpose it seeks to serve

It was noted that the Hicklin test is outdated and needs to be revisited.

Aveek Sarkar case is the most recent case of obscenity. (2014) and led to the development of the community standards test. (explained above)

[1] Bobby Art International, Etc vs Om Pal Singh Hoon & Ors (1996) 4 SCC 1

[2]Bag A, “Obscenity and the Law in India: Moving from Hicklin Test to Community Standards” (iPleadersAugust 2, 2014) <https://blog.ipleaders.in/obscenity-and-the-law-in-india-moving-from-hicklin-test-to-community-standards/&gt; accessed December 11, 2020

[3] Regina vs Hicklin 1868] LR 3 QB 360

[4] Kherode Chandra Roy Chowdhury vs Emperor (1912) ILR 39 Cal 377

[5] Ranjit D. Udeshi vs State Of Maharashtra 1965 AIR 881

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

If you are interested in participating in the same, do let me know.

Do follow me on FacebookTwitter  Youtube and Instagram.

The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.

If you would also like to contribute to my website, then do share your articles or poems at adv.aishwaryasandeep@gmail.com

We also have a Facebook Group Restarter Moms for Mothers or Women who would like to rejoin their careers post a career break or women who are enterpreneurs.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.