Just now, in Aveek Sarkar v.

State of West Bengal, the Supreme Court has held that a

photograph of Boris Becker and his fiancee, in the nude, is not obscene within the meaning
of S. 292 of the Indian Penal Code. This judgment is particularly significant because it expressly
rejects the Hicklin Test, the archaic 1868 rule for determining obscenity, that the Court has
regularly used in its history most notably, to uphold the ban on Lady Chatterlys
Lover in Ranjit Udeshis Case. Interestingly, by citing a number of countries where Lady
Chatterlys Lover was not found obscene, the Court seems at least implicitly to be expressing
its disapproval of Udeshi, almost fifty years after it was decided (paragraphs 16, 17 and 22).
In contrast to the Hicklin Test, which was focused on individual or isolated aspects of an entire
work that could be deemed obscene, as well as its impact on vulnerable sections of society, the
Court adopts what it called the community standards test:

A picture of a nude/seminude woman, as such, cannot per se be called obscene unless it has the
tendency to arouse feeling or revealing an overt sexual desire. The picture should be suggestive
of deprave mind (sic) and designed to excite sexual passion in persons who are likely to see
it, which will depend on the particular posture and the background in which the nude/semi-
nude woman is depicted. Only those sex-related materials which have a tendency of exciting
lustful thoughts can be held to be obscene, but the obscenity has to be judged from the point of
view of an average person, by applying contemporary community standards. (Paragraph 24)
While welcome in that the Supreme Court gets rid of the Hicklin Test at last, the judgment is also
problematic in many respects. First, the Court cites the 1957 US Supreme Court case of Roth v.
United States, and its use of the phrase contemporary community standards has been lifted
from Roth but the test in Roth itself was superseded twice over first in 1966, by Memoirs
v. Massachusetts, and then in 1973, by Miller v. California, neither of which are cited by the
Court.
More troublingly, however, Roth did not just speak about community standards test, but actually
laid down a three-pronged test. Community standards constituted the first prong, but under the
second prong, the material had to be patently offensive, and under the third prong, of no
redeeming social value (Memoirs and Miller saw a liberalization of the third prong). The second
and third parts of the Roth test are conspicuously absence from the Courts judgment in
essence, it seems to be saying that if (on applying community standards), a particular work has
a tendency to arouse feeling or reveal an overt sexual desire, it can be criminalized as obscene.
This is worse than vague. On what ground does the Court hold sexual arousal to be something
that ought to be criminalised? Additionally, the last Roth ground is crucial, because it is on the
social value prong that works of art, literature, sculpture etc., that would otherwise be deemed
obscene, are spared. The Court has referred to social value elsewhere, notably in Udeshi itself,
and so its absence in this judgment, that otherwise rejects the foundation of Udeshi, leaves the
law of obscenity in a state of flux.
The Court also cites the Canadian case of R v. Butler in its support for the community standards
test, but regrettably, doesnt do much with it. This is a pity, because Butler restricted itself to
outlawing undue exploitation of sex, which in turn it defined as either sex with violence, or that
was degrading or dehumanizing. In this way, unlike in the US, while Butler made community
standards relevant in its obscenity enquiry, it did not make them dispositive. This, naturally, is
extremely important, because in determining community standards, time and time again we
have seen that the Courts simply adopt the dominant majoritys publicly affirmed views, and
thus a fortiori exclude alternative, marginalized and minority ways of thinking, especially about
sexual matters. Butler tries to provide at least some protection against this tyranny of the
majority.
Nonetheless, todays decision is an important step forward. The Hicklin test is now gone.
Furthermore, in focusing so closely upon contemporary community standards, the Court will
hopefully henceforth close its doors to claims based upon an idealized, purified (and imaginary)
vision of Indian culture and values, a monolithic, eternal entity, whose proscriptions tend to
match the views of its most extreme advocates. And lastly, by referring to
both Roth and Butler with approval, the very incompleteness of todays decision leaves it open to
revision in light of these cases in a more specific and meaningful way. There is a long way to go
before Indias obscenity laws are truly speech-protective, but perhaps we have at last stopped
moving backwards.

obscenity and vulgarity.

Definition of obscene :-

The word obscene has not been defined by the Indian Penal Code . only section 292 , 293
and 294 have said that sale , etc., of obscene objects and singing , reciting or uttering in
public obscene song , ballad or words to the annoyance of others are punishable .

Honble Supreme Court of India has defined the offence of obscene in the Ranjit D.
Udeshis case by observing that what has to be considered as obscene or indecent has
changed from time to time and may not exactly be the same in different countries .Where
obscenity and art are mixed , art must be so prepondering as to throw the obscenity into a
shadow or the obscenity so trivial and insignificant that it can have no effect and may be
overlooked .Mere incorporation of sex and nudity in art and literature can not , by itself ,
be regarded as evidence of obscenity into the shadow , or obscenity should be so
insignificant that it can have no effect and can be overlooked. A balance should be
maintained between freedom of speech and expression and public decency and morality
and when the latter is substantially transgressed the former must give way.

Definition of vulgarity :-
The word vulgar has also not been defined by the Indian Penal Code . It has been
observed by the Honble Supreme Court of India , in the case of Samaresh Bose v. Amal
Mitra on a question arose over a Bengali novel Prajapati that a what arouses a feeling
of disgust and revulsion and also boredom but does not have the effect of depraving ,
debasing and corrupting the morals of any reader of the novel is Vulgarity.

Difference between obscenity and vulgarity.

Honable Supreme Court of India has pointed out the distinctions between obscenity and
vulgarity in the famous case of Samaresh Bose v. Amal Mitra on the question arose over
a Bengali novel Prajapati as follows :-
i) A vilgar writing is not necessarily obscene. Vulgarity arouses a feeling of disgust and
revulsion and also boredom but does not have the effect of depraving , debasing and
corrupting the morals of any reader of the novel. Whereas obscenity has the tendency to
deprave and corrupt those whose minds are open to such immoral influences .