SEXUAL HEALTH AND HUMAN RIGHTS A legal and ... - The ICHRP

looked for. It may however be said at once that sex and nudity in art and
literature cannot be regarded as evidence of obscenity without something
more.”763
In the present case the film depicted trafficking of girls, venereal disease, HIV/AIDS, cancer
of reproductive and sexual organs and pregnancy all of which the court held were valid and
could not be considered obscene. However, in relation to different sexual postures the court
found that deletion of these scenes was valid as they could create “lasciviousness or lustful
thoughts” particularly in adolescents. 764
In a more recent case, Ajay Goswami v. Union of India 765 the Supreme Court of India
considered a case where the petitioner invoked the Indecent Representation of Women
(Prohibition) Act and the Indian Penal Code and sought the imposition of fetters on
newspapers in India which printed material that was unsuitable for the reading by minors.
The court found that if such material was felt to be obscene the aggrieved person already had
several remedies to pursue under the gamut of laws addressing obscenity. Further fetters in
the forms of guidelines were unnecessary.
In relation to the argument of the petitioner that minors would have access to inappropriate
material, the court held,
“We are able to see that respondent Nos. 3 & 4 [Ed - the newspapers] are
conscious of their responsibility towards children but at the same time it would be
inappropriate to deprive the adult population of the entertainment which is well
within the acceptable levels of decency on the ground that it may not be
appropriate for the children. An imposition of 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 will be deprived of reading their share of their
entertainment which can be permissible under the normal norms of decency in
any society.”
Dismissing the petition, the court reiterated certain principles that have been followed by
Indian courts in a series of judgments to deem a material as obscene: that an ordinary person
(and not a hypersensitive one) applying contemporary community standards finds the
material taken as a whole to be of prurient interest, that the work depicts sexual conduct
specifically in a patently offensive manner and whether the material taken as a whole lacks
serious literary, artistic, political or scientific value.
In Maqbool Fida Hussein v. Raj Kumar Pandey 766, the Delhi High Court deliberated on
whether a painting which depicted India as a nude woman fell within the obscenity
prohibition in Indian law. For present purposes it is pertinent to note certain observations of
the bench, which reflect a more progressive, balanced view between the freedom of speech
and expression and obscenity standards. The court observed that:
763 Ibid.
764 Ibid.
765 2007 (1) SCC 143
766 2008 CriLJ 4107
162