The Hindu : Front Page : Nudity <I>per se</I> not obscenity: Court

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Wednesday, Dec 13, 2006
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Nudity per se not obscenity: Court

Legal Correspondent

"In judging whether a particular work is obscene, regard must be had to contemporary mores and national standards"

NEW DELHI: Nudity per se is not obscenity. While considering whether a picture is obscene or not, it is essential to determine first the quality and nature of the material published and the category of readers, the Supreme Court said on Tuesday.

Dismissing a petition seeking a ban on publication of obscene photographs in newspapers, a Bench comprising Justice A.R. Lakshmanan and Justice Tarun Chatterjee said: "Where art and obscenity are mixed, what must be seen is whether the artistic, literary or social merit of the work in question outweighs its obscene content. In judging whether a particular work is obscene, regard must be had to contemporary mores and national standards."

Writing the judgment, Mr. Justice Lakshmanan quoted a U.S. Supreme Court ruling and said: "Articles and pictures in a newspaper must meet the Miller test's constitutional standard of obscenity in order for the publisher or the distributor to be prosecuted for obscenity. Nudity alone is not enough to make material legally obscene."

"While the Supreme Court of India held `Lady Chatterley's Lover' to be obscene," the Bench said, "in England the jury acquitted the publishers finding that the publication did not fall foul of the obscenity test. This was heralded as a turning point in the fight for literary freedom in the United Kingdom."

"The definition of obscenity differs from culture to culture, between communities within a single culture, and also between individuals within those communities," the judges added. "Many cultures have produced laws to define what is considered to be obscene and censorship is often used to try to suppress or control material that is obscene under these definitions."

A culture of responsible reading should be inculcated in the readers of any news article, the Court observed. A hypersensitive person could subscribe to any newspaper of his choice, which might not be against his standards of morality. The Bench said the Press Council of India had suggested amendments to certain provisions of the Press Council Act to arm the Council with the authority to recommend de-recognition of erring newspapers for government advertisement or withdrawal of the accreditation granted to a journalist. The present scenario provided for a regulatory framework under which punishment was prescribed for the print/electronic media for flouting Press Council standards.

The Bench said the Government should seriously look into the Press Council request and make appropriate amendments in the public interest.

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