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
- Is the photograph obscene?
- Does it tend to deprave and corrupt those who are likely to read it?]
CONTENTIONS
Respondent's side:
- The photograph corrupts young minds and violates cultural and moral values.
- It represents an indecent representation of women, violating the Indecent Representation of Women (Prohibition) Act, 1986.
- It was intentionally published to boost sales.
- The photograph encourages sexual offenses.
Appellant's side:
- The magazine was never considered obscene, and its entry into India was not banned.
- 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.