Wednesday, December 13, 2006

Nudity per se not obscenity: Court

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 blanket ban on the publication of certain photographs and news items etc., will lead to a situation where the newspaper will be publishing material which caters only to children and adolescents" and the adults would be deprived of their share of entertainment permissible under the normal norms of decency in any society, said a Bench consisting of Justices A.R. Lakshmanan and Tarun Chatterjee.
"The incidence of shielding the minors should not be that the adult population is restricted to read and see what is fit for children," the Bench said.
"In view of the availability of sufficient safeguards in terms of various legislation, norms and rules and regulations to protect society in general and children in particular from obscene and prurient contents, we are of the opinion that the writ at the instance of the petitioner is not maintainable,"

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