The Kerala High Court has refused to categorise a magazine cover with a woman breastfeeding her baby as obscene, noting that ‘shocking one’s morals’ is an ‘elusive concept,’ and that 'one man’s vulgarity is another man’s lyric.’ Grihalakshmi magazine courted controversy over its March 2018 cover featuring a woman breastfeeding a baby.

No obscenity

The Bench, comprising two male justices, Chief Justice Antony Dominic and Justice Dama Seshadri Naidu, observed: '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.’ Petitioner Felix M.A. had contended that the magazine cover violated provisions of the Protection of Children from Sexual Offences Act and Rules, as well as Section 45 of the Juvenile Justice Act. He had also alleged violation of provisions of the Indecent Representation of Women (Prohibition) Act, 1986, and Article 39(e) and (f) of the Constitution of India. The Court, however, did not agree with the petitioner’s allegations.

Slippery slope

Apart from citing the Kama Sutra, the Court also cited legal scholars Abhinav Chandrachud’s book Republic of Rhetoric: Free Speech and the Constitution of India, in particular ‘a provocatively titled chapter ‘Obscenity Lies in the Crotch of the Beholder.’ Mr Chandrachud wondered whether sexually arousing material be banned merely because somebody might get addicted to sex? Noting other legal but addictive products such as cigarettes, alcohol and chocolates, he wrote ‘to censor pornography because it degrades women sends us down the path of a slippery slope.’

Chained to the past

Justice Dama Sheshadri Naidu, who wrote the judgment explained: '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, “cultural memory pacifies the past, leaving us with pale souvenirs whose bloody origins have been bleached away.”’

Contemporary Community-Standards test

Relying on Aveek Sarkar v. State of West Bengal, the court accepted the ‘Contemporary Community-Standards test’ that contemporary national standards prevail and not that of a group of sensitive persons. The Supreme Court had explained: '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.”

Petition dismissed

Dismissing the petition, the court stated ‘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.’