Quashing the criminal case against various people involved in the making of the web series College Romance, a Supreme Court Bench has pointed out several infirmities in the 2023 Delhi High Court Order in the matter, including conflating all vulgarity with obscenity.
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IN a judgment furthering artistic freedom, the Supreme Court on Tuesday quashed the criminal case against the casting director, actors, scriptwriters and creators of the web series College Romance.
They were sought to be prosecuted for production, transmission and online publication of obscene and sexually explicit material under Sections 67 (punishment for publishing or transmitting obscene material in electronic form) and 67A (punishment for publishing or transmitting of material containing sexually explicit act, etc., in electronic form) of the Information Technology (IT) Act, 2000.
A Bench of Justice A.S. Bopanna and Justice P.S. Narasimha held that vulgarity and profanities do not per se amount to obscenity. The Bench observed that content that contains profanities and swear words cannot be regulated by criminalising it as obscene.
A Bench of Justice A.S. Bopanna and Justice P.S. Narasimha held that vulgarity and profanities do not per se amount to obscenity.
The Bench was ruling against Delhi High Court’s judge Justice Swarana Kanta Sharma’s Order whereby she refused to quash the first information report (FIR) against TVF Media Labs Pvt Ltd, which is the creator, distributor and production company of the web series, along with other individuals associated with the web series.
In her 2023 judgment, Justice Sharma had come down heavily on the web series for the use of language in the series, which she described as “foul, indecent and profane” to the extent that it would “affect and deprave and corrupt impressionable minds”.
She had even asked the Union government to take steps to enforce stricter application of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, and make any laws or rules as deemed appropriate in its wisdom to limit obscene and sexually explicit content in popular entertainment.
Justice Sharma was ruling over a petition challenging the Order of an additional sessions judge (ASJ) directing the registration of an FIR under Section 67A of the (IT Act) against the petitioners.
Justice Sharma upheld the Order of the ASJ, but also added Section 67 of the IT Act to the FIR.
It was this Order which was the subject matter of the appeal before the Supreme Court.
Disapproving the high court’s Order, Justice Narasimha, who authored the judgment, held that the high court had taken a wrong approach in the matter.
The Bench held that through a plain reading of Section 67 of the IT Act and the material that is characterised as ‘obscene’ therein, it was clear that the high court posed the wrong question, and it had naturally arrived at a wrong answer.
The Bench said it is well-settled that the standard for determination cannot be an adolescent’s or child’s mind or the mind of a hypersensitive person who is susceptible to such influences.
The Bench said the enquiry under Section 292 of the IPC or under Section 67 of the IT Act does not hinge on whether the language or words are decent, or whether they are commonly used in the country.
Rather, from the plain language of the provision, the inquiry is to determine whether the content is lascivious, appeals to prurient interests, or tends to deprave and corrupt the minds of those in whose hands it is likely to fall.
The Bench observed so because Justice Sharma, in order to apply the test of a common prudent, herself acted as a common prudent person, to check as to whether such language can be heard by a common prudent man without “being embarrassed or finding it against decency or the concept of decency”.
Criticising the high court’s ruling further, the Bench opined that the high court had applied the wrong standard to determine obscenity. The Bench said it is well-settled that the standard for determination cannot be an adolescent’s or child’s mind or the mind of a hypersensitive person who is susceptible to such influences.
“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,” the Bench held.
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It further held that the high court had erred in the finding that the language was full of swear words, profanities and vulgar expletives that could not be heard in open court and also that it is not the language of the youth.
Based on this finding, the high court had held that the content is obscene as it “will affect and will tend to deprave and corrupt impressionable minds”.
The Bench added that the high court had equated profanities and vulgarity with obscenity, without undertaking a proper or detailed analysis of how such language, by itself, could be sexual, lascivious, prurient, or depraving and corrupting.
“It is well-established from the precedents cited that vulgarity and profanities do not per se amount to obscenity. 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,” the Bench held.
“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,” the Bench held.
The Bench also opined that 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, was not related to sex and does not have any sexual connotation.
“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. Therefore, there is a clear error in the legal approach adopted by the high court in analysing and examining the material to determine obscenity,” the Bench said.
The Bench also said the high court had lost its objectivity with which a judicial mind was expected to examine the work in question when it could not extricate itself from the courtroom atmosphere.
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This was in response to the high court’s observation: “The court had to watch the episodes with the aid of earphones, in the chamber, as the profanity of language used was of the extent that it could not have been heard without shocking or alarming the people around and keeping in mind the decorum of language which is maintained by a common prudent man whether in professional or public domain or even with family members at home.”
The Bench also opined 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.
“Such an approach unduly curtails the freedom of expression that can be exercised and compels the maker of the content to meet the requirements of judicial propriety, formality and official language. Here again, the high court committed a serious error in decision making,” the Bench held.
The Bench thus opined that no case under Section 67 of the IT Act was made out. On the application of Section 67A, the Bench noted that the high court had not given any reason whatsoever on how Section 67A was attracted to the facts of the case.
The Bench added that the facts of the present case certainly do not attract Section 67A as the complainant’s grievance was about excessive usage of vulgar expletives, swear words and profanities.
The Bench also opined 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.
There was no allegation of any ‘sexually explicit act or conduct’ in the complaint and as such, so Section 67A is not attracted.
Clarifying the issue on Section 67A, the Bench said though the three expressions “explicit”, “act”, and “conduct” are open-textured and are capable of encompassing wide meaning, the phrase may have to be seen in the context of ‘obscenity’ as provided in Section 67.
The Bench thus held there could be a connection between Section 67A and Section 67 itself. For example, there could be a sexually explicit act or conduct which may not be lascivious. Equally, such an act or conduct might not appeal to prurient interests.
“On the contrary, 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,” the Bench concluded.
Click here to read the Judgment.
