Just now, in Aveek Sarkar v. State of West Bengal, the Supreme Court has held that a photograph of Boris Becker and his fiancee, in the nude, is not “obscene” within the meaning of S. 292 of the Indian Penal Code. This judgment is particularly significant because it expressly rejects the Hicklin Test, the archaic 1868 rule for determining obscenity, that the Court has regularly used in its history – most notably, to uphold the ban on Lady Chatterly’s Lover in Ranjit Udeshi’s Case. Interestingly, by citing a number of countries where Lady Chatterly’s Lover was not found obscene, the Court seems – at least implicitly – to be expressing its disapproval of Udeshi, almost fifty years after it was decided (paragraphs 16, 17 and 22).
In contrast to the Hicklin Test, which was focused on individual or isolated aspects of an entire work that could be deemed obscene, as well as its impact on “vulnerable” sections of society, the Court adopts what it called the “community standards” test:
“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 (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.” (Paragraph 24)
While welcome in that the Supreme Court gets rid of the Hicklin Test at last, the judgment is also problematic in many respects. First, the Court cites the 1957 US Supreme Court case of Roth v. United States, and its use of the phrase “contemporary community standards” has been lifted from Roth – but the test in Roth itself was superseded twice over – first in 1966, by Memoirs v. Massachusetts, and then in 1973, by Miller v. California, neither of which are cited by the Court.
More troublingly, however, Roth did not just speak about community standards test, but actually laid down a three-pronged test. Community standards constituted the first prong, but under the second prong, the material had to be “patently offensive”, and under the third prong, “of no redeeming social value” (Memoirs and Miller saw a liberalization of the third prong). The second and third parts of the Roth test are conspicuously absence from the Court’s judgment – in essence, it seems to be saying that if (on applying community standards), a particular work “has a tendency to arouse feeling or reveal an overt sexual desire“, it can be criminalized as obscene. This is worse than vague. On what ground does the Court hold sexual arousal to be something that ought to be criminalised? Additionally, the last Roth ground is crucial, because it is on the social value prong that works of art, literature, sculpture etc., that would otherwise be deemed obscene, are spared. The Court has referred to social value elsewhere, notably in Udeshi itself, and so its absence in this judgment, that otherwise rejects the foundation of Udeshi, leaves the law of obscenity in a state of flux.
The Court also cites the Canadian case of R v. Butler in its support for the community standards test, but regrettably, doesn’t do much with it. This is a pity, because Butler restricted itself to outlawing “undue exploitation of sex”, which in turn it defined as either sex with violence, or that was “degrading or dehumanizing”. In this way, unlike in the US, while Butler made community standards relevant in its obscenity enquiry, it did not make them dispositive. This, naturally, is extremely important, because in determining “community standards”, time and time again we have seen that the Courts simply adopt the dominant majority’s publicly affirmed views, and thus a fortiori exclude alternative, marginalized and minority ways of thinking, especially about sexual matters. Butler tries to provide at least some protection against this tyranny of the majority.
Nonetheless, today’s decision is an important step forward. The Hicklin test is now gone. Furthermore, in focusing so closely upon contemporary community standards, the Court will hopefully henceforth close its doors to claims based upon an idealized, purified (and imaginary) vision of “Indian culture and values”, a monolithic, eternal entity, whose proscriptions tend to match the views of its most extreme advocates. And lastly, by referring to both Roth and Butler with approval, the very incompleteness of today’s decision leaves it open to revision in light of these cases in a more specific and meaningful way. There is a long way to go before India’s obscenity laws are truly speech-protective, but perhaps we have at last stopped moving backwards.