"Publishing nude photos per se need not be an obscene act"

Only those sex-related materials which have tendency of "exciting lustful thoughts" can be held obscene: court

Publishing the picture of a nude or semi-nude woman per se cannot be called obscene unless it has the tendency to “excite lustful thoughts,” the Supreme Court has held.

A Bench comprising Justice K.S. Radhakrishnan and Justice A.K. Sikri set aside criminal proceedings initiated against Aveek Sarkar, Editor, Printer and Publisher of Anandabazar Patrika of Kolkata, for reproducing the nude photograph of tennis player Boris Becker and his fiancée Barbara Feltus in the Sports World magazine.

The Bench allowed appeals filed by Mr. Sarkar and two others against a Calcutta High Court judgment, which upheld a trial court’s order that they should face trial.

The Supreme Court said: “The picture should be suggestive of a depraved 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.”

Only those sex-related materials which had a tendency of “exciting lustful thoughts” could be held to be obscene, but obscenity had to be judged from the point of view of an average person, by applying contemporary community standards.

Writing the judgment, Justice Radhakrishnan said: “We have to examine whether the photograph of Boris Becker with Barbara Fultus, a dark-skinned lady standing close to each other bare-bodied but covering the breast of [his] fiancée with his hands can be stated to be objectionable in the sense it violates Section 292 IPC. 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 in persons who are likely to look at them and see them.”

Further, the Bench said, “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.”

“We may also indicate that the picture has to be viewed in the background in which it was shown. The message the photograph wants to convey is that the colour of skin matters little, and love champions over colour. The picture promotes love affair, leading to a marriage, between a white-skinned man and a dark-skinned woman,” the Bench said.