adminMorning Health Talk:
New Delhi, June 24, 2018:
KERALA HIGH COURT HELD THAT IMAGE OF MOTHER FEEDING THE BABY IS NOT PRURIENT OR OBSCENE: In the matte title “Felix MA versus P. V. Gangadharan, Writ Petition No. 7778/2018”, the Hon’ble High Court of Kerala at Ernakulam has vide judgment dated 08.03.2018 has held that the image of the mother breast feeding the baby is not prudient or obscene.
The writ petition was filed by the petitioner against the cover page of the magazine depicting a mother feeding her baby exposing her bosom.
A Malayalam magazine, Grihalakshmi had published the image in a bid to normalise the idea of breastfeeding children. The cover image featured a woman model breastfeeding a baby, with a caption which translates to “Don’t stare, we have to breastfeed.”
According to the petitioner, it offends Sections 3(c) and 5(j), III of Protection of Children from Sexual Offences Act and Rules, as well as Section 45 of the Juvenile Justice Act. He has also roped in Sections 3 and 4 of Indecent Representation of Women (Prohibition) Act, 1986, and Article 39(e) and (f) of the Constitution of India.
The Hon’ble High Court of Kerala held that:
“3. “Shocking one’s morals” is an elusive concept, amorphous and protean. What may be obscene to some may be artistic to other; one man’s vulgarity is another man’s lyric, so to say. Therefore, we can only be subjective about Ex. P1 magazine cover depiction.
4. 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.
5. Even the sections relied on by Felix fail to convince us that the respondent publishers have committed any offence, much less a cardinal one, affecting the Society’s moral fabric, and offending its sensibilities.”
However, before parting with the case, the Court indulged in a brief discussion on the subjective nature of concepts such as morality and obscenity, noting that,
“The earliest case to book judicial bounds to nebulous concept of obscenity was Regina v. Hicklin decided by the House of Lords in 1868. Justice Cockburn, in that case, defined the test to be whether the tendency of the matter, charged as obscenity, is to declare incorrect those whose minds are open to such immoral influences and into whose hands a publication of this ought may fall. Indeed, obscenity is a weapon of cultural regulation. Either the U.K. or the U.S.A. or India, for that matter any common law Country, one other shape the entire jurisprudence of obscenity: Lady Chatterley’s Lover by D.H. Lawrence.
We cannot, as a nation—people of all shades of faith and belief— afford to chain ourselves to the past, glorious it may have been. That glory, in fact, was a change and almost an abomination for those living then. Only from the prism of the present, that past appears to be glorious. Who knows what we detest now, as our ancestors did then, as decadence may be its very glory, viewed from a distant tomorrow. No nation desiring progress could afford to have its people chained to the past. Even water stagnant stinks, flowing fascinates. As Steven Pinker observes, “[C]ultural memory pacifies the past, leaving us with pale souvenirs whose bloody origins have been bleached away.”
Indeed, the Supreme Court has been frequently called upon to examine the nuances of this nebulous ‘obscenity’: Chandrakant Kalyandas Kakodar Vs. State of Maharashtra; Samaresh Bose Vs. Amal Mitra, and Khushboo Vs. Kanniammal. In all these cases, it has progressively relaxed the rigours of the standards concerning obscenity and immorality. Pertinently, Kushboo echoes Justice Brandeis’s view in Whitney v. California that the remedy for falsehood is ‘more speech, not enforced silence’.
In Aveek Sarkar Vs. State of West Bengal, the Supreme Court, perhaps for the first time, abandoned Hicklin test. Citing the examples of several countries where Lady Chatterley’s Lover had been held not to be obscene, the Court held that the Hicklin test is not the correct test to be applied to determine what is obscene. Instead, the Court cited the 1957 American case of Roth Vs. United States 21. It then went on to observe thus: 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.
On this point, whether Aveek Sarkar is the first case to veer away from Hicklin test, Abhinav Chandrachud, in an equally-illuminating book, Nation of Rhetoric, presents an alternative view. According to the learned author, the Hicklin test was formally abandoned by the Supreme Court in that case. But, in truth, courts in India had repeatedly modified, he goes on to observe, the Hicklin test and the judgment of the Supreme Court in Aveek Sarkar did not modify the Hicklin test any further than what the court’s previous judgments had already done.
Nevertheless, post Aveek Sarkar, we have the “Contemporary Community-Standards test,” a test adapted from Roth, and it represents a shift from the old ‘tendency to deprave or corrupt’ test to whether ‘the work, taken as a whole, appeals to the prurient interest.’ Granted, even this newfound test was soon abandoned. In Memoirs v. Massachusetts, and in Miller v. California. Miller, in fact, the US Supreme Court has refined the obscenity test and introduced the patent-offensiveness test.
We travel no further. We reckon Aveek Sarkar squarely answers the petitioner’s allegation. Going by the contemporary community standards —and without troubling ourselves with patent offensiveness—we may observe that, given the picture’s particular posture and its background setting (mother feeding the baby), as depicted in the magazine, it is not prurient or obscene; nor even suggestive of it. We, therefore, dismiss the writ petition.”
(Dr KK Aggarwal and Ira Gupta)
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Dr KK Aggarwal
Padma Shri Awardee
Vice President CMAAO
President HCFI
HealthySoch
