Content Regulation / Censorship, Gender Expression, Indecency / Obscenity
The State v. Momar Sowe and Alieu Sarr
Closed Expands Expression
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The Kerala High Court dismissed a petition claiming that a magazine cover depicting a woman breastfeeding her child was obscene and in violation of a number of laws that protect women and children. The Kerala High Court could find nothing obscene in the picture and noted that what may be obscene to some may be artistic to others. It went on to note how the legal test for obscenity had evolved over time to take into account changing societal mores. It concluded that the contemporary legal test for obscenity set by the Supreme Court of India was applicable, which looked at whether “the work, taken as a whole, appeals to the prurient interest”. The Kerala High Court found that, given the context of the picture, it could not be considered obscene under this test.
This case arose from a writ petition that was filed by a citizen, Felix M. A., complaining about a magazine cover that displayed a photograph of a mother exposing her breast to feed her baby. The photograph was accompanied by the caption “[d]on’t stare, we have to breastfeed” (as translated from Malayalam in the judgment).
Felix M.A. filed the petition in the public interest, averring that the magazine cover was obscene and against public morality. He further stated that the cover violated provisions of the Protection of Children from Sexual Offences Act, the Juvenile Justice Act, and the Indecent Representation of Women (Prohibition) Act.
Chief Justice Antony Dominic and Justice Dama Seshadri Naidu of the Kerala High Court (Court) decided the case, finding no basis to the claim that the cover was obscene and a violation of the Protection of Children from Sexual Offences Act, the Juvenile Justice Act, and the Indecent Representation of Women (Prohibition) Act. The Court could find nothing obscene in the picture or the caption and observed that “‘[s]hocking one’s morals’ is an elusive concept, amorphous and protean. What may be obscene to some may be artistic to other[s]; one man’s vulgarity is another man’s lyric”. [para. 3]
The Court made observations about the presence of nudity in sacred spaces in India and noted academic criticism of the laws on obscenity as failing to sufficiently protect freedom of expression. It noted that the right to freedom of expression under Article 19 of the Constitution of India could be subject to reasonable restrictions which are necessary in the interest of maintaining public order, decency or morality. It went on to note, however, that public decency and morality are elastic concepts. In this context, the Court opined that the “effort to define, to confine, or even to subjugate ‘obscenity’ has never been smooth. Rather, the Constitutional Courts have decided to adopt the changing mores of the marching civilization and the changing societal sensitivities. They have begun to view ‘obscenity’ from a prism of ‘reality’.” [para. 13]
The Court noted that, over the years, the Supreme Court of India had “progressively relaxed the rigours of the standards concerning obscenity and immorality.” [para. 20] It found that the test adopted by the Supreme Court had shifted from the old “tendency to deprave or corrupt” test (commonly referred to as the Hicklin test) to the test of whether “the work, taken as a whole, appeals to the prurient interest”. The Court referred to this latter test as the “contemporary community standards test” for obscenity. The Court concluded that the picture at issue did not meet this test, taking into account the picture’s particular posture and its background setting (mother feeding a baby). It, therefore, dismissed Felix M.A.’s petition.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case expands expression by recognizing that nudity, by itself, cannot be considered obscene and that the context must be taken into account to determine whether the work appeals to the prurient interest. In this case, an image of a woman breastfeeding could not be considered obscene. The Kerala High Court was bound by the test adopted by the Supreme Court of India on obscenity, which was the “contemporary community standards test”. This test was formulated by the United States Supreme Court in Roth v. United States. The US Supreme Court has since moved on from this test to apply the higher test of “patent offensiveness” in obscenity cases (see Miller v. California). It is unfortunate that the Kerala High Court was unable to travel further and apply the “patent offensiveness” test here, which would have been more protective of freedom of expression.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
The judgment is of the Kerala High Court and, therefore, persuasive before other High Courts. It also binds all lower courts and future benches of the Kerala High Court. However, the standard applied for obscenity is one adopted by the Supreme Court and all other courts in India would be bound to apply the same standard.
Let us know if you notice errors or if the case analysis needs revision.