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.
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 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.
“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.”