'X', a photographer displays a nude photograph of a young female... What offence 'X' has committed?.....

Question: 'X', a photographer displays a nude photograph of a young female film artist in his studio. What offence 'X' has committed? If tried in a court, what arguments would you present in his defence? [JJS 2018]

Find the answer to the mains question of IPC only on Legal Bites. ['X', a photographer displays a nude photograph of a young female film artist in his studio. What offence 'X' has committed? If tried in a court, what arguments would you present in his defence?]

Answer

As per the facts of the proposition, because ‘X’ a photographer is involved in displaying a nude photograph of a young female film artist in his studio, he has committed the offence of obscenity under Section 292 of the Indian Penal Code (IPC), 1860.

Section 292 incorporates the act of sale, distribution, public exhibition, or circulation of obscene material as an offence.  As per the precedents of the Hon’ble Court, an object is termed “obscene” if it tends to deprave and corrupt the mind of the audience who are likely to read, see, or hear the matter contained in it.

The provision lays down the punishment for committing the offence of obscenity as:

“For the first conviction, imprisonment up to two years and a fine up to two thousand rupees. For subsequent convictions, imprisonment up to five years and a fine up to five thousand rupees.”

The potential defence arguments that could be put up before the Hon’ble Court on behalf of ‘X’ are as follows:-

(A) The display of the picture was merely the artistic and creative Expression of ‘X’. It is imperative to keep in mind the context in which the photograph is displayed to the audience. If the photograph was part of an artistic exhibition or had artistic value, it might not be considered obscene.

(B) Consent of the female young artist whose picture is being displayed can ‘mitigate’ the intensity of the offence committed by X because it won’t amount to a violation of the privacy of the concerned subject or will be termed as an obscene display by him.

(C) The defence counsel must prove that mala fide intention was absent on the part of ‘X’ concerning displaying obscenity in public that tends to deprave or corrupt the mind of the audience. The intention was merely to showcase his talent and artistic expression.

(D) Under Article 19(1)(a) of the Constitution of India, every citizen has the right to freedom of speech and expression so it can also be argued that displaying the photograph falls under the fundamental right of ‘X’, provided it is in consonance of the reasonable restrictions laid down under Article 19(2).

Reliance is placed on the landmark judgement of Aveek Sarkar v. State of West Bengal, (2014) 4 SCC 257, wherein the Hon’ble Supreme Court has held that the test of obscenity has to be judged by contemporary community standards and should not be based on a subjective perception of obscenity. The photograph must be viewed in its entirety and in the context in which it was published.