Aveek Sarkar v. State of West Bengal

In 1993 a photograph taken from the German magazine Stern was published in India. It first appeared on 5 May in Sports World magazine and then on 6 May in the Kolkata newspaper Anandabazar Patrika. Aveek Sarkar was the editor of Anandabazar Patrika. The editor of Sports World was the former cricket captain Mansur Ali Khan Pataudi, and a complaint was filed against him too.

The photograph showed tennis player Boris Becker in a nude pose with his fiancee, Barbara Feltus, a Black actress. Becker was using his hands to cover his partner's body. Its main message was that love rises above the boundaries of colour and race. It was a statement against the racism widespread in Germany at that time.

A Kolkata lawyer filed a complaint under Section 292 IPC. He said the photograph was obscene and sent the wrong message to Indian society. Criminal proceedings followed. The Magistrate refused to drop them and the Calcutta High Court refused to quash them, so the matter reached the Supreme Court.

1. Was the photograph obscene under Indian law?

2. Should the Hicklin test still be followed?

3. While deciding whether something is obscene, should its context, such as its social message, be taken into account?

4. Should artistic and journalistic freedom be protected, or should morality be given preference?

Appellants (Aveek Sarkar and others): The photograph was not obscene at all. It carried a message against racism and promoted love and equality, not lust. It was taken from an international magazine, Stern, and was published in good faith. Context matters, and seen in context there is nothing obscene in it. Obscenity should be judged by the contemporary moral standards of today's community.

Complainant and respondents (State of West Bengal and others): The complainant lawyer said the photograph was obscene and lascivious. He argued that it would corrupt the minds of children and young people and went against the cultural and moral values of society. Before the Supreme Court, the respondents mainly argued that good faith and public good were questions of fact. Such questions could be settled only by evidence at trial, so the proceedings should not be quashed at this stage.

The Supreme Court held that it was wrong to look at a photograph in isolation. Its full context, caption and message had to be understood. This photograph was published with the message that love triumphs over hatred, so its message was love and equality, not lust.

Justice K. S. Radhakrishnan stated that a photograph of a nude or semi-nude woman is not obscene merely for that reason. Obscenity arises only when the material is designed to arouse sexual excitement in the viewer and corrupt the mind.

The Court rejected the Hicklin test altogether and adopted the community standards test. The question is what an average, reasonable Indian reader today would find acceptable, not what could influence the weakest mind in society. The Court also said that the law must evolve with society, and something considered obscene in one era may be acceptable under today's standards.

Holding that the photograph was not obscene, the Court quashed the criminal proceedings. This gave strong protection to free speech and editorial independence.

Section 292, Indian Penal Code (sale, distribution or publication of obscene material), now Section 294, B.N.S.; Section 4, Indecent Representation of Women (Prohibition) Act, 1986; Section 79, Indian Penal Code (described in the lecture as dealing with acts done in good faith); Section 482, Code of Criminal Procedure (inherent power of the High Court to quash proceedings), now Section 528, B.N.S.S.; Article 19(1)(a), Constitution of India; Article 19(2), Constitution of India

This is the leading modern case on obscenity in India. It replaced the 1868 English Hicklin test, which the Supreme Court had adopted in Ranjit D. Udeshi (1964), with the community standards test. It also made contextual analysis compulsory.

It shows the balance between freedom of expression and morality. It protects artists, journalists and the media who use controversial material responsibly and in context.

According to the lecture, courts today apply the same test to films, web series and literature. The test still applies even though Section 292 IPC is now Section 294 B.N.S.

It fits into the free-speech line of cases with Shreya Singhal and Anuradha Bhasin. In all of them, restrictions on speech must be tied to a concrete ground under Article 19(2) and read narrowly.

Hypothetical: Zoya edits a city magazine. She publishes an award-winning international photograph showing a partially unclothed couple of different races embracing, with the caption 'Love has no colour'. The accompanying article is about racial discrimination.

Farhan files a complaint under Section 294 B.N.S., claiming that the photograph could corrupt young readers. Following Aveek Sarkar, the court would not look at the image in isolation or ask how it might affect the most impressionable reader. It would look at the caption, the article and the overall anti-racism message, and ask how an average, reasonable reader today would see it.

The image is not designed to arouse sexual excitement, so it would likely be held not obscene. Zoya could ask the High Court under Section 528 B.N.S.S. to quash the proceedings.