Global Freedom of Expression

Sarkar v. West Bengal

Closed Expands Expression

Key Details

  • Mode of Expression
    Press / Newspapers
  • Date of Decision
    February 3, 2014
  • Outcome
    Acquittal
  • Case Number
    (2014) 4 S.C.C. 257
  • Region & Country
    India, Asia and Asia Pacific
  • Judicial Body
    Supreme (court of final appeal)
  • Type of Law
    Criminal Law, Constitutional Law
  • Themes
    Indecency / Obscenity
  • Tags
    Sexuality, Content-Based Restriction, Publisher, Media Ownership

Content Attribution Policy

Global Freedom of Expression is an academic initiative and therefore, we encourage you to share and republish excerpts of our content so long as they are not used for commercial purposes and you respect the following policy:

  • Attribute Columbia Global Freedom of Expression as the source.
  • Link to the original URL of the specific case analysis, publication, update, blog or landing page of the down loadable content you are referencing.

Attribution, copyright, and license information for media used by Global Freedom of Expression is available on our Credits page.

Case Analysis

Case Summary and Outcome

The Supreme Court of India ruled that the semi-nude picture of Boris Becker and his fiancée Barbara Feltus was not obscene, after applying the community standards test. The appeal was brought by a complaint filed against the newspaper and magazine that published a photograph of renowned tennis player Boris Becker posing nude with his fiancée Barbara Feltus, covering her breasts with his hand. The Court reasoned that the photograph was not obscene because it did not excite sexual passion or tended to deprave or corrupt the minds of people in whose hands the magazine or newspaper may have fallen.


Facts

A German magazine published a photograph of Boris Becker, a renowned tennis player, posing nude with his dark-skinned fiancée Barbara Feltus, an actress, covering her breasts with his hand. The picture was taken by Feltus’ father. The article that contained the photograph portrayed Becker as an opponent of racial discrimination, and signified a choice of love over hatred. A newspaper and magazine circulated in India republished the article with the photograph.

A complaint was filed against the newspaper and magazine under Section 292 of the Indian Penal Code (IPC) that punished distribution of obscene materials, and under Section 4 of the Indecent Representation of Women (Prohibition) Act, 1986, which prohibited publication of indecent representations of women.


Decision Overview

K. S. Radhakrishnan, J., delivered the opinion of the Court. The Court rejected the Hicklin’s test in favor of the community standards test. The Hicklin’s test of obscenity examined whether the tendency of the material is to deprave and corrupt minds that are open to immoral influences, and into whose hands the material may fall. This test allowed the material to be judged on the basis of isolated parts of the work by their influence on the most susceptible readers. The Court recognized that the concept of obscenity may change with time.

The Court noted that that regard must be given to contemporary mores and national standards, and not the standard of sensitive persons. A bare reading of IPC Section 292 showed that a matter is obscene “(i) if it is lascivious; (ii) it appeals to the prurient interest, and (iii) it tends to deprave and corrupt persons who are likely to read, see or hear the matter.” A picture of a nude/semi-nude woman “cannot per se be called obscene unless it has the tendency to arouse feeling or revealing an overt sexual desire. The picture should be suggestive of [a] deprave[d] mind and designed to excite sexual passion in persons who are likely to see it, which will depend on the particular posture and the background in which the nude/semi-nude woman is depicted. Only those sex-related materials which have a tendency of exciting lustful thoughts can be held to be obscene, but the obscenity has to be judged from the point of view of an average person, by applying contemporary community standards.”

The Court then had to examine the context in which the photograph appeared and the message it sought to convey. Applying the community standards test, the Court held that the photograph was not obscene within the meaning of Section 292 of the IPC. It did not excite sexual passion or tended to deprave or corrupt the minds of people in whose hands the magazine or newspaper may have fallen. Further, the photograph and the article in which it appeared conveys the message of racial equality and promoted love and marriage between persons of different racial backgrounds. Accordingly, the Court found no offense under Section 292 of the IPC or Section 4 of the Indecent Representation of Women (Prohibition) Act, 1986.


Decision Direction

Quick Info

Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Expands Expression

The Court rejected the narrower Hicklin’s test and adopted the more expansive community standards test as the test for obscenity.

Global Perspective

Quick Info

Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.

Table of Authorities

National standards, law or jurisprudence

  • India, Udeshi v. State of Maharashtra, [1965] 1 S.C.R. 65
  • India, Kakodar v. State of Maharashtra, (1969) 2 S.C.C. 687
  • India, Bose v. Mitra, (1985) 4 S.C.C. 289
  • India, Khushboo v. Kanniammal, (2010) 5 S.C.C. 600
  • India, Bobby Art Int'l v. Hoon, (1996) 4 S.C.C. 1
  • India, Goswami v. Union of India, (2007) 1 S.C.C. 143
  • India, Penal Code, sec. 292

Other national standards, law or jurisprudence

  • U.K., R v. Penguin Books Ltd., [1961] Crim. LR 176
  • U.K., R v. Hicklin, [1868] L.R. 3 Q.B. 360
  • Can., Brodie v. The Queen, [1962] S.C.R. 681
  • Can., R v. Butler, [1992] 1 S.C.R. 452
  • Can., Towne Cinema Theatres Ltd. v. The Queen, [1985] 1 S.C.R. 494
  • U.S., Roth v. United States, 354 U.S. 476 (1957)

Case Significance

Quick Info

Case significance refers to how influential the case is and how its significance changes over time.

The decision establishes a binding or persuasive precedent within its jurisdiction.

Indian Supreme Court decisions are binding on all courts within the territory of India.

The decision was cited in:

Official Case Documents

Official Case Documents:


Reports, Analysis, and News Articles:


Have comments?

Let us know if you notice errors or if the case analysis needs revision.

Send Feedback