Vulgarity And Profanities Do Not Per Se Amount To Obscenity: SC Quashes Criminal Cases Against Artists Of Web-Series ‘College Romance’
The Supreme Court quashed the criminal cases under Sections 67 and 67A of the Information Technology Act, 2000 (IT Act) against the artists of the web-series ‘College Romance’.
The Court observed that vulgarity and profanities do not per se amount to obscenity.
The two-Judge Bench comprising Justice A.S. Bopanna and Justice P.S. Narasimha held, “It is well-established from the precedents cited that vulgarity and profanities do not per se amount to obscenity.75 While a person may find vulgar and expletive-filled language to be distasteful, unpalatable, uncivil, and improper, that by itself is not sufficient to be ‘obscene’. Obscenity relates to material that arouses sexual and lustful thoughts, which is not at all the effect of the abusive language or profanities that have been employed in the episode. Rather, such language may evoke disgust, revulsion, or shock.76 The reality of the High Court’s finding is that once it found the language to be profane and vulgar, it has in fact moved away from the requirements of obscenity under Section 67 of the IT Act. The High Court failed to notice the inherent contradiction in its conclusions.”
The Bench also observed that the availability of content that contains profanities and swear words cannot be regulated by criminalising it as obscene.
Senior Advocates Mukul Rohatgi, Harish Salve, Madhavi Divan, and Sajan Poovayya appeared for the appellants while ASG K.M. Nataraj appeared for the respondents. Advocate-in-person Arvind Singh was the complainant.
Factual Background -
The appellants/accused were the actors, casting director, script writers, and creator of the web-series ‘College Romance’, and the media company that owned the YouTube channel on which the web-series was hosted. They were sought to be investigated and prosecuted for production, transmission, and online publication of obscene and sexually-explicit material under Sections 67 and 67A of IT Act. The appellants’ petition under Section 482 of the Code of Criminal Procedure, 1973 (CrPC) for quashing the orders of the Additional Chief Metropolitan Magistrate and Additional Sessions Judge directing registration of FIR against them was dismissed by the High Court.
The High Court, while dismissing the petition for quashing, held that the object of Sections 67 and 67A of the IT Act is to punish the publication and transmission of obscene and sexually explicit material in the cyber space. It relied on the ‘community standard test’ to determine whether the material is obscene, as laid down by the Supreme Court in Aveek Sarkar v. State of West Bengal (2014) 4 SCC 257, 2014 INSC 75 and followed in decisions of various High Courts. By applying this test, the High Court found that the episode did not use civil language and there was excessive use of profanities and vulgar expletives, and a clear description and reference to sexually explicit acts.
The Supreme Court in the above regard noted, “… the High Court has erred in the legal approach followed by it while assessing whether the material is obscene. In Samaresh Bose (supra), this Court has laid down, in great depth and detail, the process and method that must be followed to objectively judge whether the material is obscene. The court must consider the work as a whole and then the specific portions that have been alleged to be obscene in the context of the whole work to arrive at its conclusion. Further, the court must first step into the position of the creator to understand what he intends to convey from the work and whether it has any literary or artistic value. It must then step into the position of the reader or viewer who is likely to consume the work and appreciate the possible influence on the minds of such reader.”
The Court further observed that while the literal meaning of the terms used may be sexual in nature and they may refer to sexual acts, their usage does not arouse sexual feelings or lust in any viewer of ordinary prudence and common sense.
“Rather, the common usage of these words is reflective of emotions of anger, rage, frustration, grief, or perhaps excitement. By taking the literal meaning of these words, the High Court failed to consider the specific material (profane language) in the context of the larger web-series and by the standard of an “ordinary man of common sense and prudence”. When we notice the use of such language in the context of the plot and theme of the web-series, which is a light-hearted show on the college lives of young students, it is clear that the use of these terms is not related to sex and does not have any sexual connotation", it added.
The Court said that neither did the creator of the web-series intend for the language to be taken in its literal sense nor is that the impact on a reasonable viewer who will watch the material and therefore, there is a clear error in the legal approach adopted by the High Court in analysing and examining the material to determine obscenity.
“Furthermore, the objectivity with which a judicial mind is expected to examine the work in question was completely lost when the High Court evidently could not extricate itself from the courtroom atmosphere. … The last issue is that of the standard or perspective used by the High Court to determine obscenity. It is well-settled that the standard for determination cannot be an adolescent’s or child’s mind, or a hypersensitive person who is susceptible to such influences. However, the High Court has incorrectly used the standard of “impressionable minds” to gauge the effect of the material and has therefore erred in applying the test for obscenity correctly”, it also noted.
The Court emphasised that the metric to assess obscenity and legality of any content cannot be that it must be appropriate to play in the courtroom while maintaining the court’s decorum and integrity.
“The High Court has also expressed concern and anxiety about the free availability of the web-series on the internet to the youth and that it was not classified as being restricted to those above the age of 18 years. While such anxiety is not misplaced, the availability of content that contains profanities and swear words cannot be regulated by criminalising it as obscene. Apart from being a non-sequitur, it is a disproportionate and excessive measure that violates freedom of speech, expression, and artistic creativity”, it remarked.
The Court held that there is no allegation of any ‘sexually explicit act or conduct’ in the complaint and as such, Section 67A does not get attracted and that a sexually explicit act or conduct presented in an artistic or a devotional form may have exactly the opposite effect, rather than tending to deprave and corrupt a person.
“No offence of publication or transmission of any material in electronic form, which is obscene, lascivious, or appealing to prurient interest, and/or having the effect of tending to deprave and corrupt persons, as provided under Section 67 of the IT act, is made out. Equally, no case of publication or transmission of material containing sexually explicit act or conduct, as provided under Section 67A, is made out from the bare reading of the complaint”, it concluded.
Accordingly, the Apex Court allowed the appeals and set aside the judgment of the High Court.
Cause Title- Apoorva Arora & Anr. Etc. v. State (Govt. of NCT of Delhi) & Anr. (Neutral Citation: 2024 INSC 223)
Appearance:
Appellants: Senior Advocates Mukul Rohatgi, Harish Salve, Madhavi Divan, Sajan Poovayya, Advocates Mahesh Agarwal, Ameet Naik, Ankur Saigal, S. Lakshmi Iyer, Madhu Gadodiaya, Chirag Nayak, Sanjanthi Sajan Poovayya, Madhu Gadodiaya, Misha Rohatgi, Devansh Srivastava, Raksha Agarwal, Kajal Dalal, Abhishek Kakker, Raksha Agarwal, Pallavi Mishra, Sujoy Mukharji, Tarini Kulkarni, AOR E. C. Agrawala, Advocates Ameet Naik, Raghav Shankar, Madhu Gadodia, Harshvardhan Jha, AOR Yugandhara Pawar Jha, Advocates Sujoy Mukherjee, Tarini Kulkarni, Pallavi Mishra, and Aman Pathak.
Respondents: ASG K M Nataraj, AOR Shreekant Neelappa Terdal, Advocates Sarath Nambiar, Sanjay Kr. Tyagi, Sridhar Potaraju, Nidhi Khanna, Karthik Jasra, Arun Kr. Yadav, Arvind Singh, Indira Bhakar, Vinayak Sharma, Vatsal Joshi, Chitransh Sharma, Anuj Srinivas Udupa, Satvika Thakur, Yogi Rajpurohit, Aayush Saklani, Shubham Mishra, AOR Mukesh Kumar Maroria, Advocates V V V Pattabhi Ram, Prashant Rawat, Purnendu Bajpai, Rajat Nair, and Khushboo Aggarwal.