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Aveek Sarkar & Anr vs State Of West Bengal And Anr on 3 February, 2014
23. The Supreme Court of Canada in Regina v. Butler (1992) 1 SCR 452, held that the dominant test is
the “community standards problems test”. The Court held that explicit sex that is not violent and
neither degrading nor dehumanizing is generally tolerated in the Canadian society and will not qualify
as the undue exploitation of sex unless it employs children in its production. The Court held, in order
for the work or material to qualify as ‘obscene’, the exploitation of sex must not only be a dominant
characteristic, but such exploitation must be “undue”. Earlier in Towne Cinema Theatres Ltd. v. The
Queen (1985) 1 SCR 494, the Canadian Court applied the community standard test and not Hicklin
test.
COMMUNITY STANDARD TEST:
24. We are also of the view that Hicklin test is not the correct test to be applied to determine “what is
obscenity”. Section 292 of the Indian Penal Code, of course, uses the expression ‘lascivious and
prurient interests’ or its effect. Later, it has also been indicated in the said Section of the applicability
of the effect and the necessity of taking the items as a whole and on that foundation where such items
would tend to deprave and corrupt persons who are likely, having regard to all the relevant
circumstances, to read, see or hear the matter contained or embodied in it. We have, therefore, to apply
the “community standard test” rather than “Hicklin test” to determine what is “obscenity”. A bare
reading of Subsection (1) of Section 292 , makes clear that a picture or article shall be deemed to be
obscene (i) if it is lascivious; (ii) it appeals to the prurient interest, and (iii) it tends to deprave and
corrupt persons who are likely to read, see or hear the matter, alleged to be obscene. Once the matter is
found to be obscene, the question may arise as to whether the impugned matter falls within any of the
exceptions contained in Section. A picture of a nude/seminude 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 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/seminude woman is depicted. Only those sexrelated 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.
MESSAGE AND CONTEXT
25. We have to examine the question of obscenity in the context in which the photograph appears and
the message it wants to convey. In Bobby Art International & Ors. v. Om Pal Singh Hoon (1996) 4
SCC 1, this Court while dealing with the question of obscenity in the context of film called Bandit
Queen pointed out that the socalled objectionable scenes in the film have to be considered in the
context of the message that the film was seeking to transmit in respect of social menace of torture and
violence against a helpless female child which transformed her into a dreaded dacoit. The Court
expressed the following view :
“First, the scene where she is humiliated, stripped naked, paraded, made to draw water
from the well, within the circle of a hundred men. The exposure of her breasts and genitalia
to those men is intended by those who strip her to demean her. The effect of so doing upon
her could hardly have been better conveyed than by explicitly showing the scene. The
object of doing so was not to titillate the cinemagoer’s lust but to arouse in him sympathy
for the victim and disgust for the perpetrators. The revulsion that the Tribunal referred to
was not at Phoolan Devi’s nudity but at the sadism and heartlessness of those who had
stripped her naked to rob her of every shred of dignity. Nakedness does not always arouse
the baser instinct. The reference by the Tribunal to the film “Schindler’s List” was apt.
There is a scene in it of rows of naked men and women, shown frontally, being led into the
gas chambers of a Nazi concentration camp. Not only are they about to die but they have
been stripped in their last moments of the basic dignity of human beings. Tears are a likely
reaction; pity, horror and a fellow feeling of shame are certain, except in the pervert who
might be aroused. We do not censor to protect the pervert or to assuage the susceptibilities
of the oversensitive. “Bandit Queen” tells a powerful human story and to that story the
scene of Phoolan Devi’s enforced naked parade is central. It helps to explain why Phoolan
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