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Case Name - Aveek Sarkar v. State of West Bengal
Citation - (2014) 4 SCC 257
Relevant Act and Sections -
Court - Supreme Court of India.
Parties involved -
Appellant - Aveek Sarkar
Respondent - State of West Bengal
Bench - K. S. Radhakrishnan, A.K. Sikri
Facts
The world-famous German magazine "STERN" published an article featuring Boris Becker, the world-famous tennis player, posing naked with his dark-skinned fiancée Barbara Feltus, a film actress, who was photographed by her father. The article says that there was a conversation in which both Boris Becker and Barbaba Feltus spoke openly about their involvement, their lives and their future plans, and the message they wanted to convey to the general public about the image. The article portrays Boris Becker as a clever defender of the dangerous practice of "apartheid". It was said that the purpose of the image was to show that the heroes of love are more hateful.
"Sports World", a widely-issued magazine across India, also produced an article and photo as a cover story in Issue 15 of 05.05.1993 with the caption "Nudity comes out of competitions, anti-racism in Germany. Boris Becker describes his latest way of life" - Boris Becker Unmasked.
Anandabazar Patrika, a widely distributed newspaper in Kolkata, also published on page two of the newspaper the above-mentioned photo and article on 06.05.1993, as it appeared in Sports World.
A lawyer practising in the Alipore Magistrate's Court, Kolkata, claims to be a regular Sports World and Anandabazar Patrika reader filed a complaint under Section 292 of the Indian Penal Code against the appellant.
Issues
Should that photograph be considered offensive?
Were the negative effects severe enough to corrupt and deprave the individuals who are most likely to read the magazine?
Arguments Of Respondents
The Nude photo from the Anandbazar Patrika and The Sports World can corrupt the minds of young people, children, and youth of this country and contradict the moral and cultural teachings of the society.
Contrary to the dignity and respect of our womanhood through the disrespectful representation of women under Section 4 in The Indecent Representation of Women (Prohibition) Act, 1986.
It was deliberately done by both accused, namely Ananda Bazar Patrika and Sports World, to sell their papers and magazines published, printed and displayed, and distributed.
As the photo gives rise to sexual orientation and its effects are morally degrading and can also encourage people to commit sexual offences.
Arguments Of Appellants
It was pointed out that this magazine has never been banned from entering India and has never been considered 'obscene, especially when Section 79 of the Indian Penal Code states that no offence is committed by a person who is justified by law or who by reason of a mistake of fact and not the reason of a mistake of law in good faith, believes himself you be justified by law, by doing. This document has only promoted the war against racism in Germany.
Judgment
They said we are in the year 2014, and while judging whether a particular image, article or book is a disgrace, it should be based on modern national norms and standards and not the level of the party involved or critical of the people. Hicklin's experiment wrote that the book should be judged on the basis of obscenity based on specific passages of work that are considered out of context and judged on its perceived impact on many vulnerable readers, such as children or mentally challenged adults.
The Hicklin test was not considered a test that should be used to detect "what is obscene". Section 292 of the Indian Penal Code uses the term 'violent and evil interests' or its consequence. They used "standard public testing" rather than "Hicklin test" to find out what "obscene" is. The blank reading of Subsection (1) of Section 292 stipulates that a photograph or article shall be deemed to be defamatory (i) if it is offensive; (ii) incites rotten interest, and (iii) tends to corrupt people who may read, see or listen to the matter, which is suspected to be obscene.
The image of a nude woman cannot be called obscene unless it has a tendency to arouse or arouse strong sexual desire. Only those sexually explicit material that has the potential for "obscene jesting" can be degraded. Still, pornography should be judged from the standpoint of the average person, using modern social norms.
The message, the image you want to convey, is that skin colour is more important, and you like a master than colour. The image promotes romance, which leads to marriage, between a man with white skin and a black woman with skin.
Therefore, under Section 292, they found that no offence had been committed and therefore the image could be considered offensive, and they set aside criminal charges against the applicant.
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