19 March 2024 3:47 PM GMT
The Supreme Court on Tuesday (March 19) quashed the pending criminal case of obscenity against the makers of the Web Series named "College Romance".
Reversing the findings of the Delhi High Court which had refused to quash the obscenity case against the lead casts and makers of the web series, the Bench Comprising Justices A.S. Bopanna and P.S. Narasimha held that vulgarity and profanities do not per se amount to obscenity.
The Supreme Court held that the High Court, while analyzing and examining the language used in the web series, erred in construing the language as obscene to be punishable under Section 67 of the Information Technology Act, 2000 ("IT Act").
"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. 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 Judgment authored by Justice P.S. Narasimha said.
"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. 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 court added.
Background
In March 2023, upholding the registration of an FIR against the accused under Sections 67 and 67A of the IT Act, the Delhi High Court ruled that the language used in the web series "College Romance" did not pass the "morale decency community test" of the ordinary man and crossed the line into obscenity. The High Court stated that the use of obscene language in public places and on social media platforms accessible to children of a young age must be addressed seriously.
Aggrieved by the High Court's ruling, actors Apoorva Arora, Gagan Arora and Simarpreet Singh and the makers approached the Supreme Court for quashing of the criminal proceedings under Section 67/67A of the Information Technology Act.
Section 67A of the Information Technology Act, 2000, prescribes punishment for a person who publishes or transmits in electronic form material containing a 'sexually explicit act or conduct'. Section 67 IT penalizes transmission of 'obscene' materials through electronic form.
Supreme Court's Observation
1. Every Language Wouldn't Be Termed As Obscene Under Section 67 IT Act Unless Deprave and Corrupt the Minds Of People
The High Court framed the issue of whether the language employed in the episode is contemporarily used by the youth and whether it meets the threshold of decency.
The Supreme Court disapproved of the approach undertaken by the High Court while applying the test for obscenity to the allegedly offending portions of the web series. The Court remarked that the High Court posed a wrong question which yielded a wrong answer.
The judgment stated : "The enquiry 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 as tested by the High Court. 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.”
2. Profanity and Vulgarity Need Not To Be Equated With Obscenity
The Court noted that the High Court has equated profanities and vulgarity with obscenity, without undertaking a proper or detailed analysis into how such language, by itself, could be sexual, lascivious, prurient, or depraving and corrupting.
Rejecting such an approach, the court observed that "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.Rather, such language may evoke disgust, revulsion, or shock. 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 court observed.
The Court found that the literal meaning of the language used in the web series was taken outside the context in which such expletives have been spoken.
"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.", the court said.
The Supreme Court termed the approach adopted by the High Court, as explained earlier, is based on irrelevant considerations while deciding the language used in the web series as profane.
"The real test is to examine if the language is in anyway obscene under Section 67 of the IT Act.", the court clarified.
No objective test by the High Court
The Supreme Court opined that the High Court's approach lacked objectivity.
"the High Court has taken the meaning of the language in its literal sense, outside the context in which such expletives have been spoken. While the literal meaning of the terms used may be sexual in nature and they ay 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".
Also, the High Court took a wrong standard of "impressionable minds" to ascertain the impact. The standard for determination cannot be an adolescent's or child's mind, or a hypersensitive person who is susceptible to such influences.
"Similarly, 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 Court observed.
Conclusion
Based on the above premise, the court concluded that "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."
Further, for offence under Section 67A IT Act, the Supreme Court held "the facts of the present case certainly do not attract Section 67A as the complainant's grievance is about excessive usage of vulgar expletives, swear words, and profanities. There is no allegation of any 'sexually explicit act or conduct' in the complaint and as such, Section 67A does not get attracted."
Accordingly, the appeal was allowed, setting aside the impugned order of the High Court which refused to quash the pending criminal case against the Appellants.
Case Title: APOORVA ARORA & ANR. ETC. VERSUS STATE (GOVT. OF NCT OF DELHI) & ANR
Citation : 2024 LiveLaw (SC) 243