A nude or semi-nude picture of a woman cannot be called obscene per se unless it is designed to excite sexual passion or reveal an overt sexual desire, the Supreme Court has held.
Quashing a case against a newspaper for publishing a nude photo of German tennis legend Boris Becker with his fiancee in 1993, a bench of justices K S Radhakrishnan and A K Sikri said only those sex-related materials can be held to be obscene which have a tendency of exciting lustful thoughts.
"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 suggestive of deprave mind and 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," it said.
Obscenity, it said, has to be judged from an average person point of view as the concept of obscenity would change with the passage of time and what might have been obscene at one point of time would not be considered as obscene at a later period.
"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," it said.
The bench said the photograph, in which Becker had posed nude with his dark-skinned fiancee Barbara Feltus as a mark of protest against the practice of apartheid, wants to convey message to eradicate the evil of racism and to promote love.
"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," the bench said.
"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," the bench said.
"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," it said.
The picture was first published in the German magazine Stern and then in the Sports World and the Anandabazar Patrika in 1993.
A lawyer in Kolkata then filed a complaint against the Editor, the Publisher and the Printer of the newspaper as well as against the Editor of Sports World, the late Mansoor Ali Khan Pataudi, before a magistrate who summoned them.
The newspaper and others then approached the Calcutta High Court which refused to quash the proceeding forcing them to move the apex court.
The apex court, however, quashed the proceedings in the trial court saying that the photograph is not obscene and it should 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.
"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," it said.
The bench said the magistrate should have applied his mind and appreciated the background in which the photograph has been shown.
"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," it said.