A nude or semi-nude picture of a woman cannot be called obscene per se unless it is designed to excite sexual passion or reveal an overt sexual desire, the Supreme Court has held.
Quashing a case against a newspaper for publishing a nude photo of German tennis legend Boris Becker with his fiancee in 1993, a bench of justices K S Radhakrishnan and A K Sikri said only those sex-related materials can be held to be obscene which have a tendency of exciting lustful thoughts.
“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 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,” it said.
“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,” it said.
The bench said the photograph, in which Becker had posed nude with his dark-skinned fiancee Barbara Feltus as a mark of protest against the practice of apartheid, wants to convey message to eradicate racism and to promote love.
“The message the photograph wants to convey is that the colour of skin matters little and love champions over colour. The picture promotes love affair, leading to a marriage, between a white-skinned man and a black skinned woman,” the bench said.
“When viewed in that angle, we are not prepared to say that the picture or the article which was reproduced by Sports World and the Anandabazar Patrika be said to be objectionable,” it said. The picture was first published in the German magazine Stern and then in the Sports World and the Anandabazar Patrika in 1993.