Introduction 

• This is a landmark judgment which lays down the contemporary community standards test for obscenity.  
• The Judgment was delivered by a 2- judge consisting of Justice AK Sikri and Justice KS Radhakrishnan. 

Facts  

• In the present case there was a German Magazine “STERN” having worldwide circulation. 
• There was an article published in the magazine with a picture of Boris Becker, a world renowned Tennis player, posing nude with his dark-skinned fiancée by name Barbara Feltus, a film actress. 
• The article picturises Boris Becker as a strident protester of apartheid. Further, it was asserted that the purpose of the photograph was to signify that love champions over hatred. 
• “Sports World” is a widely circulated magazine published in India which reproduced the article and the photograph as cover story. 
• Anandabazar Patrika, a newspaper having wide circulation in Kolkata, also published in the second page of the newspaper the above-mentioned photograph. 
• A lawyer practising in Kolkata claiming to be a regular reader of Sports World as well as Anandabazar Patrika filed a complaint under Section 292 of the Indian Penal Code, 1860 (IPC). 
• The Magistrate held that the accused persons should be put to trial for offence under Section 292 of IPC alternatively under Section 4 of the Indecent Representation of Women (Prohibition) Act, 1986 (IRW). 
• The Appellants preferred criminal revision before the High Court for quashing of the proceedings pending before the Magistrate. 
• The matter was hence before the Supreme Court. 

Issue Involved  

• Whether offence under Section 292 of IPC and Section 4 of the IRW has been committed in the present facts? 

Observation 

• The Court observed the evolution of test regarding obscenity as follows: 
  • In the United Kingdom way back in 1868 laid down the Hicklin test. In the case of R v. Hicknlin (1868) the Court laid down the test: 
    • The test of obscenity is whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall. 
  • In United States, in the case of Roth v. United States (1957)  the above test was however rejected.  
    • The Court held in this case 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.
• The Supreme Court in this case held that in India also Hicklin test is not correct test to determine “what is obscenity”. 
• The Court held that a bare reading of Sub-section (1) of Section 292 , makes clear that a picture or article shall be deemed to be obscene (i) if it is lascivious; (ii) it appeals to the prurient interest, and (iii) it tends to deprave and corrupt persons who are likely to read, see or hear the matter, alleged to be obscene. 
• The Court further held 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 Court held that 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. 
• The Court held that 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 finally held that in the present facts it cannot be said that the photograph has no tendency to deprave or corrupt the minds of people. 
• Hence, the Court refused to initiate proceedings under Section 292 of IPC and Section 4 of the IRW.

Conclusion

• This is a landmark judgment dealing with the law governing obscenity in India. 
• The Court in this case evolved the contemporary community standards tests in order to ascertain obscenity.