Morality is an elusive concept; Kerala HC finds no obscenity in image of woman breastfeeding child [Read Judgment]

Morality is an elusive concept; Kerala HC finds no obscenity in image of woman breastfeeding child [Read Judgment]

Meera Emmanuel

The Kerala High Court recently ruled that an image of a woman breastfeeding her child is not obscene to invite censorship.

A Malayalam magazine, Grihalakshmi had published the image in a bid to normalise the idea of breastfeeding children. The cover image featured a woman model breastfeeding a baby, with a caption which translates to “Don’t stare, we have to breastfeed.

Ironically, the petitioner, Felix MA took the view that the image was indecent as far as the woman is concerned, and penetrative sexual assault as far as the child is concerned.

Therefore, he approached the High Court alleging violation of the Protection of Children from Sexual Offences (POCSO) Act, the Juvenile Justice Act and the Indecent Representation of Women Act, in addition to contravening Directive Principles under Article 39 (e) and (f) of the Constitution.

The Bench of Chief Justice Antony Dominic (since retired) and Justice Dama Seshadri Naidu were however not convinced, observing at the outset,

A citizen, seemingly sensitive and scrupulous, cries foul at, what he terms, the Society’s moral decadence.”

The Court ultimately could not detect such moral decadence in the controversial breastfeeding image, for which reason the petition was dismissed.

We do not see, despite our best efforts, obscenity in the picture, nor do we find anything objectionable in the caption, for men. We looked at the picture with the same eyes we look at the paintings of artists like Raja Ravi Varma. As the beauty lies in the beholder’s eye, so does obscenity, perhaps.

Even the sections relied on by Felix fail to convince us that the respondent publishers have committed any offence, much less a cardinal one, affecting the Society’s moral fabric, and offending its sensibilities.

However, before parting with the case, the Court indulged in a brief discussion on the subjective nature of concepts such as morality and obscenity, noting that,

“’Shocking one’s morals’ is an elusive concept, amorphous and protean. What may be obscene to some may be artistic to other; one man’s vulgarity is another man’s lyric, so to say. Therefore, we can only be subjective about Ex.P1 magazine cover depiction.”

As indicated by the following observation, despite various judicial efforts over the years, the idea of what constitutes obscenity for the purpose of legal censorship remains a gray area.

Our effort to define, to confine, or even to subjugate ‘obscenity’ has never been smooth. Rather, the Constitutional Courts have decided to adopt the changing mores of the marching civilization and the changing societal sensitivities. They have begun to view ‘obscenity’ from a prism of ‘reality’. So our journey on this interpretative path has not come to an end, as yet.”

The Court’s deliberations on the subject even throws up questions as to whether we can claim legitimacy for particular norms only because of their ties to one’s culture. As culture evolves, so do acceptable norms. Inter alia, the following observation was made in this regard.

We cannot, as a nation—people of all shades of faith and belief— afford to chain ourselves to the past, glorious it may have been. That glory, in fact, was a change and almost an abomination for those living then.

Only from the prism of the present, that past appears to be glorious. Who knows what we detest now, as our ancestors did then, as decadence may be its very glory, viewed from a distant tomorrow. No nation desiring progress could afford to have its people chained to the past. Even water stagnant stinks, flowing fascinates.

As Steven Pinker observes, ‘[C]ultural memory pacifies the past, leaving us with pale souvenirs whose bloody origins have been bleached away.’…

… We may observe that culture is a loaded label: for some it is a badge of honour, and for others it is a symbol of shame. A white supremacist’s culture is a Blackman’s slavery, apartheid and untouchability being no different. After all, one man’s pride is another man’s shame.”

Reference was made to wide array of literature, including Indian and foreign case laws as well as books such as Abhinav Chandrachud’s Republic of Rhetoric: Free Speech and the Constitution of India and Gautam Bhatia’s Offend, Shock, Or Disturb: Free Speech Under the Indian Constitution.

This in turn prompted the Court to lean in favour of upholding free speech and expression in the instant case, rather than further expand on the definition of obscenity.

The Court noted that the current judicial opinion on the topic was that obscenity would only come into play when it appeals to the prurient interest according to an average person by applying community standards.

This was held in the 2014 case of Aveek Sarkar v State of West Bengal, in which case the Court found no obscenity in a magazine cover featuring a tennis player and his girlfriend in the nude. Applying this standard, the Court concluded,

We travel no further. We reckon Aveek Sarkar squarely answers the petitioner’s allegation. Going by the contemporary community standards —and without troubling ourselves with patent offensiveness—we may observe that, given the picture’s particular posture and its background setting (mother feeding the baby), as depicted in the magazine, it is not prurient or obscene; nor even suggestive of it.

We, therefore, dismiss the writ petition.”

Read Judgment:


 Featured Image sourced from here

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