No Obscenity in Magazine Cover Showing Women Breastfeeding: Kerala HC

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“We looked at the picture with the same eyes we look at the paintings of artists like Raja Ravi Varma. As the beauty lies in the beholder’s eye, so does obscenity, perhaps.” observed the Hon’ble Court.

A writ petition was adjudicated before a Division Bench of the Hon’ble Kerala High Court comprising of Justice Antony Dominic and Dama Sheshadri Naidu against the cover page of a magazine depicting a mother feeding her baby while exposing her bosom with the caption reading “Don’t stare, we have to breastfeed”. According to the petitioner POSCO Act 2012, Juvenile Justice Act 2015, Indecent Representation of Women (Prohibition) Act 1986 and the Constitution of India get violated in the present case.

In “Renjith D. Udeshi v. State of Maharashtra” AIR 1965 SC 881 the Hon’ble Supreme Court Of India defined obscenity as “offensive to modesty or decency; lewd, filthy, and repulsive“. The court further expounded that  obscenity which is offensive to modesty or decency cannot be claimed to be within the constitutional protection given to free speech or expression.

In “Bobby Art International v. Om Pal” the Supreme Court has observed that nakedness does not always arouse the baser instinct.

The Court, while maintaining that the cover depiction issue has to be viewed subjectively, made some hard-hitting observations in this light:

“A citizen, seemingly sensitive and scrupulous, cries foul at, what he terms, the Society’s moral decadence…”Shocking one’s morals” is an elusive concept, amorphous and protean. What may be obscene to some may be artistic to other; one man’s vulgarity is another man’s lyric, so to say…culture is a loaded label: for some it is a badge of honour, and for others it is a symbol of shame…one man’s pride is another man’s shame”
The Court cited author Abhinav Chandrachud who wonders whether sexually arousing material be banned merely because somebody might get addicted to sex. There is much in the modern world which is addictive, yet legal: cigarettes, alcohol and even chocolates. He cautions that “to censor pornography because it degrades women sends us down the path of a slippery slope.

The Court further cites Gautam Bhatia’s book “Offend, Shock, Or Disturb: Free Speech Under the Indian Constitution” to distinguish “decency or morality” with “public decency and morality“. The freedom of speech and expression has to not be subjected to a general public interest.

The court further cited the 1957 American Case “Roth Vs. United States” 354 US 476 (1957) :
“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…which will depend on the particular posture and the background in which the nude/semi-nude woman is depicted…the obscenity has to be judged from the point of view of an average person, by applying contemporary community standards.”
India adopted its “Contemporary-Community-Standards test” from the aforementioned case to test whether “the work, taken as a whole, appeals to the prurient interest”.
Applying the aforementioned test, the court ruled that the picture’s particular posture and its background setting is not prurient or obscene; nor even suggestive of it.
Read the judgement here.

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