The Kerala High Court—in a judgement peppered with affirmative quotes and extracts from constitutional scholars and free speech advocates, who urged the law on obscenity to be freed from its shackles of prudery—has held that the photo of a woman baring a breast and feeding an infant child is not obscene. However, the judgement raises a question: does it really liberalise the law of obscenity? Moreover, even though it followed a Supreme Court which had junked the age-old Hicklin Test for obscenity, does it free an explicit photograph of a woman from the male gaze?

In March 2018, Malayalam women’s magazine Grihalakshmi launched its Women’s Day Special issue with the cover of a woman breastfeeding an infant—one breast exposed and clearly visible—with the caption “Mothers tell Kerala, ‘please don’t stare, we need to breastfeed’”. It evoked myriad reactions, from outrage and moral panic to praise and measured critique. Some citizens (mainly men) were so offended that they filed a slew of criminal cases. According to them, the picture was a cheap gimmick, published with the sole purpose of titillating readers and increasing leadership, and hence the editor and publisher of the magazine were liable for criminal prosecution.

The judgement in question was delivered by the Kerala High Court’s Justice Dama Seshadri Naidu in Writ Petition (Civil) No. 7778 of 2018, in the case of Felix M. A. v P. V. Gangadharan, a case brought by a citizen against Grihalakshmi. Justice Naidu held that no charges of obscenity (under Section 292 of the Indian Penal Code) or indecently representing women were made out, and it could not be even suggested that the picture aimed at arousing lascivious thoughts and prurient interests.

‘One man’s vulgarity is another man’s lyric’

At the outset, Justice Naidu held that the law punishing obscenity is “a weapon of cultural regulation” and it was purely a subjective question: that whether a photograph would be regarded as obscene by one, and aesthetic by another. One individual might look at the explicit photograph with the lens of appreciation of a Raja Ravi Varma painting (Varma’s nude paintings are appreciated the world over), while another might view it from a perspective of arousing baser instincts. “One man’s vulgarity is another man’s lyric,” he said, and asked if the sculptures of the Khajuraho temple or the pictures in the Kamasutra could be regarded as pornographic.

Addressing the complainant’s contention that the photograph of model Gilu Joseph baring a breast had the potential to corrupt public morals, Justice Naidu—affirmatively quoting from constitutional lawyer Gautam Bhatia’s book Offend, Shock or Disturb: Free Speech Under the Indian Constitution—said that in the seminal Ranjit Udeshi case, in which a constitution bench laid down the judicial standard for defining obscenity, the court had erred by uncritically equating decency or morality (which can be used to curtail freedom of expression) with public decency or morality, because constitutional text and history did not support this conflation.

Rejecting the concept of legal moralism—which justifies prohibiting action on the sole ground of immorality, regardless of harm caused, and which contradicts liberal neutrality by privileging certain ways of life over others—and enforcing that privilege through criminal law, Justice Naidu decided to follow the precedent laid down by the Supreme Court in the Aveek Sarkar case.

That case involved Sports World, a magazine published from Calcutta, which had reproduced German magazine Stern’s photo on its cover.  In the photograph, Boris Becker had posed nude with his then fiancée Barbara Feltus; it was his way of protesting against the racial abuse the couple were being subjected to. A solicitous lawyer dragged Sports World to court, alleging that the morals of society and young, impressionable minds were in jeopardy. He cited Section 292 of the IPC which prohibits and penalises any form of expression tending towards prurience and encouraging depravity in the readers or viewers.

The court rejected the contention, holding that the Hicklin Test for determining obscenity has become obsolete, besides imposing unreasonable fetters on the freedom of expression. This test, formulated by the House of Lords in 1868 in Regina vs Hicklin, stipulated that “the test of obscenity is whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall”.

Difficult questions

The Supreme Court adopted the Hicklin test in the Ranjit Udeshi case, in a which a constitution bench had decided the matter. So the question arises as to whether the bench hearing the Aveek Sarkar case—it comprised two judges—had the power to overrule or disagree the judgement of a larger bench. Moreover, as I had argued in 2014, merely because the court adopted the “contemporary community standards” test to determine obscenity, it doesn’t mean society or the judiciary has been rid of comstockery.

In the Aveek Sarkar case, the court held the photograph not to be obscene because Feltus’s breasts were covered by Becker’s arm, and because her father had been the photographer. Naturally, according to the judges, no salacious angle or aspect could be attributed to the photograph. Similarly, in the case of the Grihalakshmi cover, Justice Naidu held that “given the picture’s particular posture and background setting (a mother feeding her baby), it is not prurient or obscene, not even suggestive of it”. The picture had Joseph dressed as a married woman, complete with vermillion in her hair and a mangalsutra round her neck. One wonders: would the judge have been so liberal if the picture was of a young, single woman baring her bosom and staring into the camera?

Moreover, as some social media users had pointed out, Gilu Joseph’s photograph reinforces the male gaze because she was looking determinedly into the camera. It would have sent a far more powerful message if she was looking at the baby instead, or her surroundings; she should not have been conscious of being looked at.

If that is the case, would the court have upheld the magazine’s right to publish an explicit photograph of a woman who, oblivious of her surroundings, was boldly expressing her sexuality? If the answer is in the affirmative, only then Justice Naidu’s ruling can be hailed without any reservation.