The Kerala High Court in Adv. Preetha K.K Vs. State of Kerala has held that nudity by itself will not legally fulfil the requirement of obscenity as envisaged in Sec.292 and Sec.294 (a) of the I.P.C. and that vulgarity is different from obscenity.
Justice Alexander Thomas observed that there is world of difference between “vulgarity” and “obscenity” on the other hand and that even exposure of nudity by itself cannot lead to imputation of obscenity, etc.
The gist of the allegations is that the accused persons, who are women, by standing at Shanmugham Road at Ernakulam, in front of Swapnil Flat, had raised slogans against the atrocities of offences committed towards women and that they had exposed nudity and had caused obstruction to the commuters and vehicles and thereby committed the offences under Sections 143, 147, 149, 238 & 294(a) of the Indian Penal Code, 1860 read with Section 118(a) of the Kerala Police Act, 2011.
It is now well settled by various rulings of the court that since provisions contained in Secs.292, 293 and 294 of the I.P.C. come under same Chapter, the word “obscenity” appearing in Sec. 294 is to be understood as conceived for the purpose in Sec.292 of the I.P.C. and that to attract the offence under Sec.294 of the Act, the test of obscenity is whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and that it must be capable of arousing sexually impure thoughts and must certainly involve some grave lascivious elements arousing sexual thoughts or feelings or it must have the effect of depraving persons and defiling morals by sex appeal or lustful desires.
After evaluating the entire facts and circumstances of this case, the High Court ruled that by no stretch of imagination can it be held that the accused have in any way committed an act, which amounts to a lascivious act or which appeals to the prurient interest or that it tended to deprave, corrupt and defile the morals of any persons, so as to attract the vital elements of obscenity as contemplated in Secs.292 and 294(a) of the I.P.C.