In a befitting reply to critics of Indian Supreme Court on its progressive quotient, a bench consisting of Justice K S Radhakrishnan and Justice A K Sikri has come out with a judgment which may not be well received by Indian Moral police. It is also a great reprieve to those who are shocked by its regressive judgment and dismissal of review in the case of same sex relationship.
A two Judge- Bench of the Supreme Court re-iterated that 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. The Bench was hearing an appeal against the High Court Order which refused to quash criminal proceedings initiated against the publication of said picture.
A German magazine by name “STERN” having worldwide circulation published an article with a picture of Boris Becker, a world renowned Tennis player, posing nude with his dark-skinned fiancée by name Barbara Feltus, a film actress, which was photographed by none other than her father. The article states that, in an interview, both Boris Becker and Barbaba Feltus spoke freely about their engagement, their lives and future plans and the message they wanted to convey to the people at large, for posing to such photograph. Article picturised Boris Becker as a strident protester of the pernicious practice of “Apartheid”. Further, it was stated that the purpose of the photograph was also to signify that love champions over hatred.
“Sports World”, a widely circulated magazine published in India reproduced the article and the photograph as cover story in its Issue 15 dated 05.05.1993 with the caption “Posing nude dropping out of tournaments, battling Racism in Germany. Boris Becker explains his recent approach to life” – Boris Becker Unmasked.
Anandabazar Patrika, a newspaper having wide circulation in Kolkata, also published in the second page of the newspaper the above-mentioned photograph as well as the article on 06.05.1993, as appeared in the Sports World.
A lawyer practicing at Alipore Judge’s Court, Kolkata, claimed to be a regular reader of Sports World as well as Anandabazar Patrika filed a complaint under Section 292 of the Indian Penal Code against the Appellants herein, the Editor, Publisher and Printer of the newspaper as well as against the Editor of the Sports World, former Captain of Indian Cricket Team, late Mansoor Ali Khan of Pataudi, before the Sub-Divisional Magistrate at Alipore. Complaint stated that as an experienced Advocate and an elderly person, he could vouchsafe that the nude photograph appeared in the Anandabazar Patrika, as well as in the Sports World, would corrupt young minds, both children and youth of this country, and is against the cultural and moral values of our society. The complainant stated that unless such types of obscene photographs are censured and banned and accused persons are punished, the dignity and honour of our womanhood would be in jeopardy. The Magistrate held the accused persons to be examined under Section 251 Cr.P.C. and ordered that they would be put to face the trial for the offence punishable under Section 292 IPC alternatively under Section 4 of the Indecent Representation of Women (Prohibition) Act, 1986.
Aggrieved by this accused persons preferred a Criminal Revision No.1591 of 1994 before the High Court of Calcutta under Section 482 Cr.P.C. for quashing the proceedings in Case No.C.796 of 1993 (corresponding to T.R. No.35 of 1994) pending before the learned Judicial Magistrate Court, Alipore. The High Court, however, did not appreciate all those contentions and declined to quash the proceedings under Section 483 Cr.P.C. Accused persons then preferred an appeal to The Supreme Court against the Order of The High Court.
Allowing the appeal the Supreme Court held as follows;
We have to examine whether the photograph of Boris Becker with his fiancée Barbara Fultus, a dark-skinned lady standing close to each other bare bodied but covering the breast of his fiancée with his hands can be stated to be objectionable in the sense it violates Section 292 IPC.
Applying the community tolerance test, we are not prepared to say such a photograph is suggestive of deprave minds and designed to excite sexual passion in persons who are likely to look at them and see them, which would depend upon the particular posture and background in which the woman is depicted or shown. Breast of Barbara Fultus has been fully covered with the arm of Boris Becker, a photograph, of course, semi-nude, but taken by none other than the father of Barbara. Further, the photograph, in our view, has no tendency to deprave or corrupt the minds of people in whose hands the magazine Sports World or Anandabazar Patrika would fall.
We may also indicate that the said picture has to be viewed in the background in which it was shown, and the message it has to convey to the public and the world at large. The cover story of the Magazine carries the title, posing nude, dropping of harassment, battling racism in Germany. Boris Becker himself in the article published in the German magazine, speaks of the racial discrimination prevalent in Germany and the article highlights Boris Becker’s protests against racism in Germany. Boris Becker himself puts it, as quoted in the said article:
“The nude photos were supposed to shock, no doubt about it....... What I am saying with these photos is that an inter-racial relationship is okay.”
The message, the photograph wants to convey is that the colour of skin matters little and love champions over colour. Picture promotes love affair, leading to a marriage, between a white-skinned man and a black skinned woman.
We should, therefore, appreciate the photograph and the article in the light of the message it wants to convey, that is to eradicate the evil of racism and apartheid in the society and to promote love and marriage between white skinned man and a black skinned woman. When viewed in that angle, we are not prepared to say that the picture or the article which was reproduced by Sports World and the Anandabazar Patrika be said to be objectionable so as to initiate proceedings under Section 292 IPC or under Section 4 of the Indecent Representation of Women (Prohibition) Act, 1986.
We have found that no offence has been committed under Section 292 IPC and then the question whether it falls in the first part of Section 79 IPC has become academic. We are sorry to note that the learned Magistrate, without proper application of mind or appreciation of background in which the photograph has been shown, proposed to initiate prosecution proceedings against the Appellants. Learned Magistrate should have exercised his wisdom on the basis of judicial precedents in the event of which he would not have ordered the Appellants to face the trial. The High Court, in our view, should have exercised powers under Section 482 Cr.P.C. to secure the ends of justice.
Writing the Judgment on behalf of the Bench, Justice Radhakrishnan has inclined to set aside the Criminal proceedings initiated against the appellants holding that the publication of said picture does not amount to any offence as alleged by the Prosecution.
One would appreciate the court for taking such bold and contemporary thinking. This judgment reminds the readers that Supreme Court does not have monolithic views on issues of social morality and it depends progressive outlook of individual judges.