AVEEK SARKAR v. STATE OF WEST BENGAL

Areen Asif

Jindal Global Law School

The case of Aveek Sarkar v. State of West Bengal is a landmark ruling as it redefined the approach of the Indian judiciary to obscenity laws. The case deals with a publication in Sports World Magazine 1993, which reproduced an article from the German magazine Stern. The publication was that of Boris Becker, a well-known white tennis player posing nude with his dark-skinned fiancée Barbara Feltus. He covered his fiancee's breast with his hands, and the photograph was taken by her father. The message that he meant to convey through that picture was to eradicate the evil of racism and apartheid in society and to promote love and marriage between interracial people. 

The case was filed by a lawyer under erstwhile section 292 of the Indian Penal Code (IPC) or section 294 of Bharatiya Nyaya Sanhita (BNS) claiming the publication to be obscene and against the moral and cultural ethos of the country. The court ruled that the publication was not obscene. To judge the standard of obscenity, the court applied the Community Standard Test and discarded the Hicklin test, which till this case was used as a benchmark to determine the application of obscenity laws in India. 

Judicial Reasoning: The shift from Hicklin to Community Standard 

The judgment can be seen as progressive and gave a purposive interpretation of the image rather than relying on traditional and archaic standards of Victorian morality. It gave a more nuanced understanding of the application of obscenity laws by applying the more liberalized community standard test. Obscenity has to be judged in the context of contemporary mores and national standards, and not the standard of a group of susceptible people.

While the shift from the archaic Hicklin test to the community standard test is celebrated, it can be criticized on various grounds. There is no particular definition of what constitutes community standards. It brings into a subjective interpretation of what can be judged as community standards, and the geographical extent of the determination of such a community remains unclear. 

The court in this case marks a significant shift from the Hicklin test, which determined obscenity based on what could deprave and corrupt young minds. The Supreme Court, after almost fifty years, expressed its disapproval of the Hicklin Test, which was upheld in Ranjit Udeshi’s case in 1965. To justify its reasoning, the court applied the Roth v. United States case. But as Gautam Bhatia writes, the community standard test was just one part of the three-pronged test in Roth v. United States. The first part of the test was based on community standards, the second part was based on the material having to be “patently offensive” and the third part was that it should be of “no redeeming social value”. The second and the third parts are absent from the court’s reasoning, and leaving both parts is all the more conspicuous as it seems to suggest that a particular work that tends to arouse overt sexual desire can be criminalized, which makes it all the more dangerous than vague. It can lead to significant censorship of freedom of speech and expression. Therefore, the court places excessive reliance on foreign jurisprudence and legal norms without accurately applying the test in those foreign jurisdictions. 

A much better approach would have been applying the harm-based test laid down by the Canadian court in R. v. Butler and the South African court case in De Reuck v. DPP, which interprets harm-protecting established constitutional values like dignity and equality. The case did not make community standard tests as sole criteria but made actual harm a mandatory requirement for material to be classified as obscene. As Gautam Bhatia writes, Butler tried to make some protection against the tyranny of the majoritarian view, which in most cases tends to conform with the society. 

Feminist Critique: Reinforcing Traditional Gender Norms

Aveek Sarkar v. State of West Bengal did have an impact on freedom of expression and censorship laws in India, especially when it comes to the obscenity laws. However, other implications are to be taken into account. As Lathika Vashisht in her article ‘Law and Obscene Image’ argues, the image got protection only because it fits into a heteronormative framework. It is entrenched within familial ideology – a wife who is covered by the arms of her husband. The court, through its purposive interpretation of the image, seems to strip it of its erotic content and aims to legitimize the image by giving it a purpose which is a protest against racism and apartheid. The case, however, continues to maintain the status quo of the dominant sexual normative order. As Lathika Vashisht argues, the judgment “reproduces femininity, but erases the feminine ……..Barbara Feltus is bound to be erased like the image between her husband-to-be and her father.”

Vashisht is also of the opinion that the interpretation of erotic images is a form of interpretative violence, as it tends to determine what will be legally permissible and eliminates any possibility of recognizing the subjectivity of erotic images within the law. The legal interpretation excludes the understanding of the primordial, the mythical, the emotional, and the artistic. There is a repression of the image, the emotions, and the feminine in modern law, and legal scholars like Peter Goodrich and Pierre Legendre call this “unconsciousness of law”.

Post-colonial feminist scholars would critique the judgment as it reinforces traditional gender roles and family ideology and fails to recognize female sexual agency. It reinforces the image of the woman as being protected by the husband-to-be and father. Vashisht also argues that erotic justice would essentially begin with the recognition that not all sexual imagery is inherently sexist or misogynist, but rather it plays a significant role in challenging the dominant sexual normative framework. 

Vashisht critiques both cultural feminists like Carol Gilligan and dominant feminists like Catherine Mackinnon for reducing women to either loving, caring, sacrificing givers, or perpetual victims. What is rather required is “feminine sexual difference” to let women decide their sexual agency and to move beyond traditional definitions of femininity. 

The reasoning given by the court in Aveek Sarkar’s case can also be criticized in that often law gives interpretation based on pure rationality. However, in this case, the court used “love” to legitimize the otherwise controversial content, and this reasoning based on emotions is often selective and lacks uniformity. Such selective reasoning is often used to enforce traditional and cultural values.

Selective Interpretation: Erasure of Female Agency

Another criticism of the law in its interpretation is the selective visibility approach, with certain aspects of relationships like heterosexuality, love, and marriage being made highly visible, whereas other aspects of femininity, and eroticism are rendered invisible. This selective visibility is based on traditional and contextual interpretations of law. The selective visibility approach also reflects the power dynamics in social hierarchies where male authoritative figures like fathers and husbands in the present case are made visible, whereas female agency like that of Barbara is rendered invisible. 

The analysis of this case perfectly demonstrates that even seemingly progressive judgments can reinforce traditional gender roles and sexual normative frameworks. The current legal interpretative discourse lacks a framework for interpreting visual content. There is a need for a better framework to bridge the gap between visible and legal understanding of obesity. In the current digital age, there is all the more requirement for new interpretative tools to approach digital content. Reforms both at the procedural and substantive level are required to develop a better understanding of legal rationality in obscenity laws. Along with this, a better recognition and understanding of emotions in law is required for legal analysis. 

Conclusion

Thus, the Aveek Sarkar case is a critical point in the development of obscenity laws in India and attempts to move away from a strict interpretation of Victorian morality to a more contextual and liberal approach. By abandoning the archaic Hicklin test for the Community Standard Test, the Supreme Court recognized the changing cultural and moral fabric of the country. But this change has its limitations. The vagueness of the definition and scope of community standards is open to subjective interpretation, which can result in unpredictable legal decisions. Further, the court's resort to foreign jurisprudence, without entirely adopting the multi-pronged approach of tests such as Roth v. United States, is problematic in terms of the selective application of legal principles. 

In addition, feminist analysis identifies the implicit promotion of classical gender roles within the judgment, whereby the presentation of women is still bound up in heteronormative familial configurations. Legal arguments over obscenity remain conflicted over finding an equilibrium between freedom of expression and regulation of morals. The case calls for an even more sensitive legal framework—yet one that also takes harm-based readings into account while accepting the difficulties in gender, sexuality, and image representation within contemporary society. As artistic and media forms develop digitally, so should legal understandings, protecting freedom of expression without perpetuating old social hierarchies.

References:

1. Aveek Sarkar v State of West Bengal (2014) 4 SCC 257.

2. Latika Vashist, ‘Law and the Obscene Image: Reading Aveek Sarkar v. State of West Bengal’ published in Journal of Indian Law and Society, Vol 5 accessed from https://docs.manupatra.in/newsline/articles/Upload/303F3641-0F3D-4604-91CF-7B15660AA720.pdf

3. ‘Law of Obscenity and Freedom of Expression: Where to Draw the Line’ (SCC Online Blog, 21 July 2022) https://www.scconline.com/blog/post/2022/07/21/law-of-obscenity-and-freedom-of-

4. expression-where-to-draw-the-line/ accessed 3rd November, 2024

5. Gautam Bhatia, ‘Obscenity: The Supreme Court Discards the Hicklin Test’ (Indian Constitutional Law and Philosophy, 7 February 2014) https://indconlawphil.wordpress.com/2014/02/07/obscenity-the-supreme-court-discards-the-hicklin-test/ accessed 3rd November, 2024