A Bench of the Supreme Court comprising Justices K S Radhakrishnan and A K Sikri recently decided that a picture of Boris Becker, a world renowned Tennis player, posing nude with his dark-skinned fiancée was not prosecutable as obscene under Section 292 of the IPC or under Section 4 of the Indecent Representation of Women (Prohibition) Act, 1986. Justice Radhakrishnan speaking for the Bench ruled that nudity per se cannot be equated with obscenity. The photograph and the article objected to should be appreciated in context and in light of the message sought to be conveyed, namely, 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. The photograph, according to the Bench, wanted to convey that colour of skin matters little and love champions over colour.
The question whether nudity and depiction of sexual activity falls foul of the law came up before the Supreme Court in 1980 where the issue considered was when a film can be publicly exhibited or be branded as obscene. Justice Krishna Iyer observations in that case are pertinent. “Art, morals and law’s manacles on aesthetics are a sensitive subject where jurisprudence meets other social sciences and never goes alone to bark and bite because State-made strait-jacket is an inhibitive prescription for a free country unless enlightened society actively participates in the administration of justice to aesthetics. The world’s greatest paintings, sculptures, songs and dances, India’s lustrous heritage, the Konaraks and Khajurahos, lofty epics, luscious in patches, may be asphyxiated by law, if prudes and prigs and State moralists prescribe paradigms and prescribe heterodoxies.”
The issue of nudity arose before the Supreme Court in case of the movie Bandit Queen with reference to the scene of bandit Phoolan Devi’s enforced naked parade. The court stressed that nudity cannot be viewed in isolation and nakedness does not always arouse the baser instinct. The object of the nude scene “was not to titillate the cinemagoer’s lust but to arouse in him sympathy for the victim and disgust for the perpetrators”. The court stressed that the scene focused on the trauma and emotional turmoil of the victim to evoke sympathy for her and disgust for the rapist. The court observed that “tears are a likely reaction; pity, horror and a fellow-feeling of shame are certain, except in the pervert who might be aroused” and concluded with an important observation: “We do not censor to protect the pervert or to assuage the susceptibilities of the over-sensitive.”
In its recent judgment, the Supreme Court has taken the view 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 picture should be 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 also reaffirmed the principle that in judging whether a particular photograph, an article or book is obscene, regard must be had to contemporary mores and not to the standards of a group of susceptible or hypersensitive persons.
This judgment encapsulates the spirit of liberalism. It is a salutary antidote to self-appointed guardians of morality and intolerant groups who tend to enforce their concept of morality often by violent means on other broad-minded citizens. The judgment does not promote sexual immorality as wrongly alleged but it is a commendable vindication of the fundamental right of freedom of expression guaranteed by our Constitution.
Sorabjee is a former Attorney General of India