Content Regulation / Censorship, Gender Expression, Indecency / Obscenity
The State v. Momar Sowe and Alieu Sarr
Closed Expands Expression
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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.
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.
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 indicates whether the decision expands or contracts expression based on an analysis of the case.
The Court rejected the narrower Hicklin’s test and adopted the more expansive community standards test as the test for obscenity.
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.
Indian Supreme Court decisions are binding on all courts within the territory of India.
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