Obscenity lies in the eyes of beholder: Kerala HC on magazine's breastfeeding cover

Kochi: "What may be obscene to some may be artistic to other; one man's vulgarity is another man's lyric," the Kerala High Court said, dismissing a plea seeking action against a Malayalam fortnightly magazine for featuring a model breastfeeding a baby on its cover page.

"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," a division bench of the High Court comprising Chief Justice Antony Dominic and Dama Seshadri Naidu said in an order.

Though the order was passed in March, it came in the public domain only now.

Justice Dominic has since retired.

In his petition, a man named Felix M A had submitted that the cover page of the magazine offends Section 3(c) and 5(j), III of Protection of Children from Sexual Offences Act and Rules, as well as Section 45 of the Juvenile Justice Act. He also cited sections 3 and 4 of Indecent Representation of Women (Prohibition) Act, 1986, and Article 39 (e) and (f) of the Constitution of India to seek action against the magazine.

"'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 magazine cover depiction," the court said.

It said even the sections relied on by the petitioner failed to convince it that the respondent publishers had committed any offence, much less a cardinal one, affecting the society's moral fabric, and offending its sensibilities.

Observing that Indian psyche has been so mature for ages that it could see the "sensuous even in the sacred", the court said, adding the paintings in Ajanta and the temple architecture were cases in point.

"Kama Sutra -- the Aphorisms of Love -- composed by Vatsyayana many millennia ago, is the first scientific treatise in the world on eroticism," it said.

Citing acclaimed writer William Dalrymple, the court said the arts of India, both visual and literary, had consistently celebrated the beauty of the human body.

Indeed, the whole tradition of yoga was aimed at perfecting and transforming the body, with a view, among the higher adepts, to making it transcendent, omniscient, even god-like.

"The body, in other words, is not some tainted appendage to be whipped into submission, but potentially the vehicle of divinity. In this tradition, the sensuous and the sacred are not opposed. They are one, and the sensuous is seen as an integral part of the sacred," the court said, quoting Dalrymple, a noted writer and art historian. "

We could not express better than what Dalrymple has said in his lyrical prose," the court said, as it threw out the petition.