Section 292 of the IPC vs. Fundamental Right to Freedom of Expression in context of the recent case of Malayalam Magazine featuring a woman breastfeeding.

March 2, 2018

When the Indian population is suffering from stunting, malnourishment, hunger, high under one and under five mortality rates etc as per various governmental and non-governmental reports and Indian government is promoting breastfeeding through schemes like "MAA" and by celebrating National Breastfeeding Week from 1st to 7th August 2017, the recent case in the court of Kollam Judicial magistrate attempts to gag the civil society movement for promotion of breastfeeding by alleging it to be obscene and lascivious. The case opens the debate between Governmental priorities and Civil societies Fundamental right to freedom of expression on one hand and Section 292 of the IPC on the another. It rests on the previous verdicts of Supreme court and the reading by Judicial magistrate to establish harmony between the conflicting positions of the Fundamental right and IPC.

Background of the story:

 

A criminal case has been filed under section 292 of the IPC against "Grihalakshmi" magazine for publishing the picture of a breastfeeding women in the cover page of its latest edition with the caption, "“Mothers tell Kerala :- Don’t stare, we want to breastfeed”. Pained by this publication, Advocate Vinod Mathew Wilson filed the case in the court of Kollam Judicial magistrate. The case alleges that the picture is lascivious in nature i.e. it is attempting to reveal an overtly sexual intent. 

 

Legal Points to understand the case:

 

Section 292 of IPC: Sale, etc., of obscene books, etc. 

 

The complaint alleges commission of offences punishable under Sections 3 and 4 of the Indecent Representation of Women(Prohibition) Act, 1986. According to Section 2(c) of the Act,

 

indecent representation of women” means the depiction in any manner of the figure of a woman, her form or body or any part thereof in such a way as to have the effect of being indecent, or derogatory to, or denigrating, women, or is likely to deprave, corrupt or injure the public morality or morals.

 

Section 3 prohibits advertisement with indecent representation of women and Section 4 prohibits publication of books with indecent representation.  The offence is punishable with a maximum punishment of imprisonment up to two years and fine up to two thousand rupees for first time offence.

Supreme Court reading of Section 292 of IPC in Aveek Sarkar & Another vs. State of West Bengal and others

 

 

Aveek Sarkar case background:

 

The case was filled for publication of the above pic by Sports World and Anandbazar patrika of Boris Becker and his fiance Barbara Feltus portraying nude. Article picturised Boris Becker as a strident protester of the pernicious practice of “Apartheid”. A lawyer practicing in Allipore Judge's court filed a complaint against the publishers and editors of the above said periodicals under section 292 of the IPC. He alleged that the picture would corrupt young minds, both children and youth of this country, and is against the cultural and moral values of our society.

 

Supreme Court quashed the case and held that a picture of nude/seminude woman, as such, cannot be called as obscene unless it has the tendency to arouse feeling or revealing an overt sexual desire. This can be checked by the Supreme court by the application of "Community tolerance test"

 

Application of Aveek Sarkar case verdict in the recent Malayalam Magazine case:

 

If we apply the same test, we can see that the aim of the Malayalam Magazine has not been to arouse feeling or reveal and overt sexual desire but to promote Breastfeeding which is considered as the solution for various health issues that our young population is facing.Also, on January 2, 2018, Madras High Court had posed 15 question to the Centre which seek to declare Breastfeeding Obligatory and declare Newborns right to Mother's milk Fundamental right.

Breastfeeding leads to various benefits like the ones given below.
 

Benefits of Breastfeeding:

  1. Breastfeeding lowers your baby's risk of developing asthma or allergies.

  2. Babies who are breastfed exclusively for the first 6 months, have fewer ear infections, respiratory illnesses, and bouts of diarrhoea.

  3. According to some studies, breastfeeding has been linked to higher IQ scores among children.

  4. The physical closeness, skin-to-skin touching, and eye contact deepens the bond between a mother and child.

  5. Breastfed infants are more likely to gain the right amount of weight as they grow, rather than becoming overweight.

Indian Government Programmes for promotion of Breastfeeding:

  1. MAA : Mothers absolute affection.:

    • The goal of the MAA Programme is to enhance optimal breastfeeding practices, which includes early initiation of breastfeeding within one hour of birth, exclusive breastfeeding for the first six months, and continued breastfeeding for at least two years, along with feeding of safe and appropriate nutritious food on completion of six months.

  2. Breasfeeding week was celebrated from 1st to 7th August 2017

 

 

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