"One Man's Vulgarity Is Other Man's Lyric": Kerala HC Refuses To Declare 'Breastfeeding Woman On Magazine's Cover' As Obscene

The Kerala High Court recently refused to categorize a magazine cover with a woman breastfeeding her baby as obscene, noting that "shocking one's morals" is an "elusive concept", and that "one man's vulgarity is another man's lyric".The Bench comprising then Chief Justice Antony Dominic and Justice Dama Seshadri Naidu observed, "We do not see, despite our best efforts, obscenity in the picture, nor do we find anything objectionable in the caption, for men. 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. Even the sections relied on by Felix [the petitioner] fail to convince us that the respondent publishers have committed any offence, much less a cardinal one, affecting the Society's moral fabric, and offending its sensibilities."The Petitioner, Felix M.A. had contended that the magazine cover violated provisions of the Protection of Children from Sexual Offences Act and Rules, as well as Section 45 of the Juvenile Justice Act. He had also alleged violation of provisions of the Indecent Representation of Women (Prohibition) Act, 1986, and Article 39(e) and (f) of the Constitution of India.The Court, however, did not agree with the petitioner's allegations. To drive home the point, the Court began by emphasizing on the point that Indian art has long appreciated and celebrated the beauty of human body. It in fact took note of the paintings in Ajanta, and the Kamasutra to highlight the maturity of the Indian psyche."Throughout their long history, the arts of India—both visual and literary—have consistently celebrated the beauty of the human body, notes the much-acclaimed travel-writer, William Dalrymple. Indeed, the whole tradition of yoga, he continues, was aimed at perfecting and transforming the body, with a view, among the higher adepts, to making it transcendent, omniscient, even god-like.'One Man's Vulgarity Is Other Man's Lyric': Kerala HC Refuses To Declare 'Breastfeeding Woman On Magazine's Cover' As Obscene | Live Law https://t.co/8em8iCfHTf via @livelawindia— William Dalrymple (@DalrympleWill) June 23, 2018 The body, in other words, is not some tainted appendage to be whipped into submission, but potentially the vehicle of divinity. In this tradition, the sensuous and the sacred are not opposed. They are one, and the sensuous is seen as an integral part of the sacred. The gods were always depicted as super-humanly beautiful, for if the image was not beautiful then the deities could not be persuaded to inhabit the statue. We could not express better than what Dalrymple has said in his lyrical prose.Kama Sutra—the Aphorisms of Love—composed by Vatsyayana many millennia ago, is the first scientific treatise in the world on eroticism," it observed.The Court went on to quote passages from books authored by Advocates and legal scholars Abhinav Chandrachud and Gautam Bhatia. Citing Mr. Chandrachud's book Republic of Rhetoric: Free Speech and the Constitution of India, it noted,"In a provocatively titled chapter—Obscenity Lies in the Crotch of the Beholder—of his book Republic of 'Rhetoric: Free Speech and the Constitution of India', by Abhinav Chandrachud wonders whether sexually arousing material be banned merely because somebody might get addicted to sex? After all, there is much in the modern world, he answers, which is addictive, yet legal: cigarettes, alcohol, even chocolates, present easy examples. He then cautions that "to censor pornography because it degrades women sends us down the path of a slippery slope.""The Court took note of Mr. Bhatia's book 'Offend, Shock, Or Disturb: Free Speech Under the Indian Constitution' as well, wherein the latter had asserted that decency and morality cannot be equated with public decency and morality. In the book, Mr. Bhatia had opined that Article 19(2) has "no public interest exception," for the rights of free expression, assembly, and association—19(1)(a), (b), and (c)—are far too important to be subjected to a general public interest."Our 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'. So our journey on this interpretative path has not come to an end, as yet", said the Court.Gautam Bhatia and Abhinav Chandrachud are both brilliant scholars and it is great to see that judges are reading their work! https://t.co/t6dBYu2kL8— Ramachandra Guha (@Ram_Guha) June 21, 2018 Justice Dama Sheshadri Naidu, who wrote the judgment for the bench continued:"We cannot, as a nation—people of all shades of faith and belief— afford to chain ourselves to the past, glorious it may have been. That glory, in fact, was a change and almost an abomination for those living then. Only from the prism of the present, that past...

"One Man's Vulgarity Is Other Man's Lyric": Kerala HC Refuses To Declare 'Breastfeeding Woman On Magazine's Cover' As Obscene

Apoorva Mandhani

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