AVEEK SARKAR V. STATE OF WEST BENGAL(SC) CRIMINAL APPEAL NO. 902 OF 2004

AVEEK SARKAR V. STATE OF WEST BENGAL

(SC) CRIMINAL APPEAL NO. 902 OF 2004

FACTS

• "STERN" magazine, a German publication, featured a nude photograph of Boris Becker, a prominent tennis player, alongside his fiancée, Barbara Feltus.
• The photograph, captured by Feltus' father, appeared in conjunction with an interview where Becker and Feltus discussed their engagement and conveyed a message advocating love prevailing over hatred.
• The article portrayed Becker as a vocal opponent of apartheid, adding a socio-political dimension to the photograph.
• "Sports World," a widely circulated Indian magazine, and "Anandabazar Patrika," a Kolkata-based newspaper with significant readership, reprinted the article and photograph.
• A lawyer practicing at the Alipore Judge’s Court in Kolkata filed a complaint under Section 292 of the Indian Penal Code against the publishers, alleging obscenity in the content. 

 

ISSUES

1. Is the photograph obscene?
2. Does it tend to deprave and corrupt those who are likely to read it?]

 

CONTENTIONS

Respondent's side:

1. The photograph corrupts young minds and violates cultural and moral values.
2. It represents an indecent representation of women, violating the Indecent Representation of Women (Prohibition) Act, 1986.
3. It was intentionally published to boost sales.
4. The photograph encourages sexual offenses.

Appellant's side:

1. The magazine was never considered obscene, and its entry into India was not banned.
2. The article promoted anti-racism, not obscenity.

 

CASE ANALYSIS

• The Supreme Court assessed whether the photograph met the legal threshold for obscenity, considering contemporary standards and the community's perspective. 
• It rejected the Hicklin test, using the "community standard test" to determine obscenity. The court emphasized that a nude photograph is not necessarily obscene unless it arouses sexual desire. 
• It also considered the message of love conveyed by the photograph.

 

JUDGMENT

• The court found no offense under Section 292, as the photograph did not meet the criteria of obscenity (lascivious and prurient interests). 
• It emphasized the changing definition of obscenity and upheld the right to freedom of expression.