The Telegraph
Friday , February 7 , 2014
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Message rider to ‘smut’
- SC quashes obscenity case against Sports World

New Delhi, Feb. 6: The Supreme Court has ruled that a picture has to be viewed in the background in which it is depicted, and the message it has to convey to the public should be kept in mind while determining whether it is obscene.

With this ruling, the apex court has quashed a 1993 criminal case filed against a Calcutta magazine for publishing a semi-nude photograph of tennis ace Boris Becker and his then fiancée, actress Barbara Feltus.

Far from the photograph being obscene, its publication needs to be appreciated as the idea was to protest against racism and promote love and marriage between a white man and a black woman, a two-judge bench said.

It also underlined the importance of deciding such matters “by applying contemporary community standards”.

The Sports World, a sports magazine that was published by the ABP Group that also owns The Telegraph, had reproduced the photograph and an accompanying article, published by German magazine Stern at a time Becker and Feltus were facing racist abuse over their relationship.

It was Feltus’s father who took the photograph, according to Stern. The article said that, in an interview, Becker and Feltus had said the objective behind the picture was to protest against “apartheid” and convey that love triumphs over hatred.

A Calcutta advocate had filed the obscenity case against Aveek Sarkar, chief editor of the ABP Group of publications, and the printer and publisher of Sports World under Section 292 of the Indian Penal Code and the Indecent Representation of Women (Prohibition) Act.

Sarkar moved the apex court after Calcutta High Court in 2004 declined to interfere with the trial in an Alipore judicial magistrate’s court.

The apex court bench of Justices K.S. Radhakrishnan and A.K. Sikri upheld the appeal and ruled that a picture or article can be deemed obscene only if it is lascivious, appeals to prurient interests and tends to deprave and corrupt those likely to read, see or hear it.

“A picture of a nude/semi-nude woman… cannot per se be called obscene…. 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 standard(s),” the court said.

The judgment noted that Becker was covering Feltus’s breasts with his hands.

“Applying the community tolerance test, we are not prepared to say such a photograph is suggestive of depraved minds and designed to excite sexual passion… which would depend upon the particular posture and background,” it said.

“Further, the photograph, in our view, has no tendency to deprave or corrupt the minds of people in whose hands the magazine… would fall.”

The court then elaborated on the social message conveyed by the picture, noting that Sports World’s cover itself carried these words: “Posing nude, dropping out of tournaments, battling racism in Germany, Boris Becker explains his recent approach to life”.

The bench said: “Boris Becker himself puts it, as quoted in the said article: ‘The nude photos were supposed to shock, no doubt about it.... What I am saying with these photos is that an inter-racial relationship is okay’.”

It added: “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… and to promote love and marriage between a white-skinned man and a black-skinned woman.”

In the judgment, passed on Monday and uploaded on the apex court website on Thursday, the bench expressed dismay at the magistrate and the high court for entertaining the complaint and refusing to quash the proceedings.

“We are sorry to note that the learned magistrate, without proper application of mind or appreciation of background in which the photograph has been shown, proposed to initiate prosecution proceedings against the appellants,” the court said.

“Learned magistrate should have exercised his wisdom on the basis of judicial precedents in the event of which he would not have ordered the appellants to face the trial. The high court, in our view, should have exercised powers under Section 482 CrPC (for quashing) to secure the ends of justice.”