As the beauty lies in the beholder’s eye, so does obscenity : One Man’s Vulgarity Is Other Man’s Lyric

Felix M. A. vs P. B. Gangadharan

Kerala HC

08/03/2018

W.P.(C) No. 7778 of 2018

About/from the judgment:

The High Court refused to categorize a magazine cover with a woman breastfeeding her baby as obscene, noting that “shocking one’s morals” is an “elusive concept”, and that “one man’s vulgarity is another man’s lyric”.

 

The Bench observed, “We do not see, despite our best efforts, obscenity in the picture, nor do we find anything objectionable in the caption, for men. We looked at the picture with the same eyes we look at the paintings of artists like Raja Ravi Varma. As the beauty lies in the beholder’s eye, so does obscenity, perhaps.

 

The Petitioner, Felix M.A. had contended that the magazine cover violated provisions of the Protection of Children from Sexual Offences Act and Rules, as well as Section 45 of the Juvenile Justice Act. He had also alleged violation of provisions of the Indecent Representation of Women (Prohibition) Act, 1986, and Article 39(e) and (f) of the Constitution of India.

 

The Court relied on the judgment in the case of Aveek Sarkar v. State of West Bengal, wherein the Supreme Court had accepted the “Contemporary Community-Standards test”, asserting that the decisions in such cases must be taken keeping in mind the contemporary national standards and not that of a group of sensitive persons.

 

The Supreme Court had explained, “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 [sic] 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.

 

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 Apex Court then had cited the 1957 American case of Roth v. United States, wherein it was observed that sex and obscenity are not to be seen as synonyms. It was held that only those sex-related materials which had the tendency of exciting lustful thoughts were found to be obscene and the same has to be judged from the point of view of an average person by applying contemporary community standards.

Read the Judgment

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