Obscenity and Freedom of Speech: Supreme Court Quashes FIR Against ‘College Romance’ Makers (2024)

Introduction

Date of the Judgment: 19 March 2024
Citation: 2024 INSC 223
Judges: A.S. Bopanna, J. and Pamidighantam Sri Narasimha, J.

Can a web series that uses profanity be considered obscene and thus violate the law? The Supreme Court of India recently addressed this question in a case involving the web series ‘College Romance’. The court examined whether the use of expletives and vulgar language in the series amounted to obscenity under the Information Technology Act, 2000 (IT Act). The judgment clarifies the boundaries between vulgarity and obscenity, and emphasizes the importance of artistic freedom.

The bench, consisting of Justices A.S. Bopanna and Pamidighantam Sri Narasimha, delivered the judgment, with the opinion authored by Justice Pamidighantam Sri Narasimha.

Case Background

The case began with a complaint filed by a private individual (respondent no. 2) against the web series ‘College Romance’. The complainant alleged that Season 1, Episode 5 of the series, titled ‘Happily F****d Up’, contained vulgar and obscene language, thus violating several laws. The complaint was filed before the Assistant Commissioner of Police, alleging violations under Sections 292, 294, and 509 of the Indian Penal Code (IPC), Sections 67 and 67A of the IT Act, and Sections 2(c) and 3 of the Indecent Representation of Women (Prohibition) Act, 1986 (IRWP Act).

The complainant sought the registration of a First Information Report (FIR) through an application under Section 200 read with Section 156(3) of the Code of Criminal Procedure, 1973 (CrPC). Initially, the Investigating Officer concluded that no cognizable offense was made out. However, the Additional Chief Metropolitan Magistrate (ACMM) directed the registration of an FIR against the appellants under Sections 292 and 294 of the IPC and Sections 67 and 67A of the IT Act. The Additional Sessions Judge partially modified this order, directing the FIR to be registered only under Sections 67 and 67A of the IT Act.

The appellants, who include the actors, casting director, scriptwriters, and the media company that owns the YouTube channel hosting the series, then approached the High Court seeking to quash the orders. The High Court dismissed their petition, leading to the present appeal before the Supreme Court.

Timeline:

Course of Proceedings

The Additional Chief Metropolitan Magistrate (ACMM) initially directed the registration of an FIR against the appellants under Sections 292 and 294 of the IPC and Sections 67 and 67A of the IT Act. The ACMM found that the vulgar language used in the web series was prima facie capable of appealing to the prurient interests of the audience, thus constituting obscenity.

The Additional Sessions Judge partially modified the ACMM’s order, directing the registration of an FIR only under Sections 67 and 67A of the IT Act. This decision relied on the Supreme Court’s ruling in Sharat Babu Digumarti v. Government (NCT of Delhi), which held that the IT Act applies to online publications.

The High Court dismissed the appellants’ petition under Section 482 of the CrPC, upholding the lower court’s direction to register an FIR. The High Court applied the ‘community standard test’ as laid down in Aveek Sarkar v. State of West Bengal, and held that the language used in the web series was obscene, sexually explicit, and could deprave impressionable minds. The High Court also noted that the content was not classified as ‘A-rated’ and lacked warnings about the use of profanities.

Legal Framework

The core legal provisions at the heart of this case are Sections 67 and 67A of the Information Technology Act, 2000.

Section 67 of the IT Act states:

“67. Punishment for publishing or transmitting obscene material in electronic form .–Whoever publishes or transmits or causes to be published or transmitted in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description for a term which may extend to three years and with fine which may extend to five lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to five years and also with fine which may extend to ten lakh rupees.”

This section criminalizes the publication or transmission of obscene material in electronic form. The key elements are that the material must be lascivious, appeal to prurient interests, or have the effect of depraving and corrupting those who are likely to access it.

Section 67A of the IT Act states:

“67A. Punishment for publishing or transmitting of material containing sexually explicit act, etc., in electronic form .–Whoever publishes or transmits or causes to be published or transmitted in the electronic form any material which contains sexually explicit act or conduct shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to ten lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees.”

This section criminalizes the publication or transmission of material containing sexually explicit acts or conduct in electronic form.

These provisions must be interpreted in light of Article 19(1)(a) of the Constitution of India, which guarantees the right to freedom of speech and expression. However, this right is subject to reasonable restrictions under Article 19(2), which includes public order, decency, and morality. The challenge is to balance the protection of free speech with the need to regulate obscene and sexually explicit material.

Arguments

The appellants, represented by senior advocates Mr. Mukul Rohatgi, Mr. Harish Salve, Ms. Madhavi Divan, and Mr. Sajan Poovayya, argued that the allegedly offending portions of the web series do not meet the threshold for obscenity under Section 67 of the IT Act. They contended that the scenes do not contain any sexually explicit act or conduct as required for an offense under Section 67A of the IT Act.

The appellants’ main arguments include:

• Obscenity Test: The appellants argued that the determination of obscenity must be made using the ‘community standard test’ as per Aveek Sarkar (supra), considering the work as a whole. They submitted that the web series is a romantic comedy portraying college life and that the specific portions cited were not obscene when viewed in context.
• Vulgarity vs. Obscenity: Relying on Samaresh Bose v. Amal Mitra and Bobby Art International v. Om Pal Singh Hoon, the appellants argued that vulgarity does not equate to obscenity. Mere words, unless lascivious and arousing sexual thoughts, do not amount to obscenity.
• Standard of Assessment: The effect of the words must be tested from the standard of an “ordinary man of common sense and prudence” as per K.A. Abbas v. Union of India, and not from a hypersensitive person’s perspective.
• No Sexually Explicit Act: The appellants argued that Section 67A requires a ‘sexually explicit act or conduct’, which the profanities in the series do not constitute. They relied on the 50th Standing Committee Report on the 2006 Amendment Bill to the IT Act and various High Court decisions to argue that Section 67A is intended to criminalize pornographic material depicting sexual acts.
• Freedom of Speech: The appellants emphasized that Article 19(1)(a) protects artistic creativity and expression.
• Pull Media: They argued that a higher threshold of tolerance should apply as the web series is a form of “pull media” where the consumer has more choice in deciding whether to view the content.

The complainant, Mr. Arvind Singh, argued that the web series falls within the purview of Sections 67 and 67A of the IT Act and Sections 3 and 4 of the IRWP Act. He contended that the material appeals to prurient interest, portrays sexual conduct offensively, lacks serious literary, artistic, political, or scientific value, and tends to arouse sexually impure thoughts.

The complainant relied on the community standard test and the judgments in Aveek Sarkar (supra) and Devidas Ramachandra Tuljapurkar v. State of Maharashtra, arguing that the content is obscene and sexually explicit. He also pointed out that the material is freely available on the internet, accessible to children, and must be regulated in the interest of public order, morality, and decency.

Submissions of Parties

Issues Framed by the Supreme Court

The central issue framed by the Supreme Court was:

• Whether the use of expletives and profane language in the titles and content of the episodes of the web-series ‘College Romance’ constitutes an offense of publication and transmission of obscene and sexually explicit content under Sections 67 and 67A of the IT Act.

Treatment of the Issue by the Court

The following table demonstrates how the Court decided the issues:

Authorities

The Supreme Court considered several cases and legal provisions to arrive at its decision. These are categorized below:

Judgment

The Supreme Court analyzed the submissions of both parties and the relevant legal precedents. The Court concluded that the High Court erred in its assessment of the web series and its language.

The Court also analyzed how it viewed the authorities cited:

• Sharat Babu Digumarti v. Government (NCT of Delhi)*: Acknowledged as establishing the applicability of the IT Act to online content, but distinguished on facts.
• Aveek Sarkar v. State of West Bengal*: Followed for the community standard test, but found that the High Court misapplied the test.
• Ranjit D. Udeshi v. State of Maharashtra*: Discussed for the Hicklin test, but noted that the court has moved away from it.
• Shri Chandrakant Kalyandas Kakodkar v. State of Maharashtra*: Used to highlight that the standard for the artist or the writer is not that the adolescent mind must not be brought in contact with sex.
• K.A. Abbas v. Union of India*: Used to summarize the test and process to determine obscenity.
• Samaresh Bose v. Amal Mitra*: Heavily relied upon to differentiate between vulgarity and obscenity.
• Bobby Art International v. Om Pal Singh Hoon*: Used to emphasize that the purpose of censorship is not to protect the pervert or assuage the susceptibilities of the over-sensitive.
• Director General, Directorate General of Doordarshan v. Anand Patwardhan*: Discussed to highlight the three-prong test for obscenity.
• Ramesh v. Union of India*: Referred to highlight that the effect of the words must be judged from the standards of a reasonable, strong-minded, firm and courageous person.
• Ajay Goswami v. Union of India*: Cited to summarize the principles for determining obscenity.
• S. Khushboo v. Kanniammal*: Used to emphasize that obscenity must be gauged with respect to contemporary community standards.
• Devidas Ramachandra Tuljapurkar v. State of Maharashtra*: Noted that the court followed the community standards test in this case.
• N. Radhakrishnan v. Union of India*: Used to reiterate that the court must not be guided by the sensitivity of a pervert viewer.
• State of Haryana v. Bhajan Lal*: Cited to emphasize that a court must exercise its jurisdiction to quash an FIR when the allegations do not disclose the commission of any offense.
• State of AP v. Golconda Linga Swamy*: Cited to emphasize that a court must exercise its jurisdiction to quash an FIR when the allegations do not disclose the commission of any offense.
• Zandu Pharmaceutical Works Ltd v. Mohd Sharaful Haque*: Cited to emphasize that a court must exercise its jurisdiction to quash an FIR when the allegations do not disclose the commission of any offense.

What weighed in the mind of the Court?

The Supreme Court’s decision was heavily influenced by the following factors:

• Distinction between Vulgarity and Obscenity: The Court emphasized that vulgar language and profanities do not automatically equate to obscenity. Obscenity, as defined under Section 67 of the IT Act, involves material that is lascivious, appeals to prurient interests, or tends to deprave and corrupt.
• Contextual Analysis: The Court stressed the importance of considering the context in which the language was used. The literal meaning of expletives may refer to sexual acts, but their common usage often expresses emotions like anger, frustration, or excitement, not sexual arousal.
• Objective Assessment: The Court highlighted that the assessment of obscenity must be objective, based on the standard of an “ordinary man of common sense and prudence,” and not on the sensitivities of a hypersensitive person or child.
• Freedom of Expression: The Court reiterated the importance of protecting artistic creativity and freedom of expression under Article 19(1)(a) of the Constitution.
• Misapplication of Community Standard Test: The Court found that the High Court misapplied the community standard test by focusing on whether the language was “decent” or “commonly used,” rather than on whether it was lascivious or had the tendency to deprave and corrupt.
• No Sexually Explicit Act or Conduct: The Court held that Section 67A of the IT Act was not attracted because the web series did not contain any sexually explicit act or conduct.

The following table ranks the sentiment analysis of the reasons given by the Supreme Court:

The ratio of fact to lawin the judgment was approximately 40% fact and 60% law. The Court spent considerable time discussing the facts of the case, including the specific language used in the web series, and then applied the relevant legal principles.

Here is a flowchart illustrating the Court’s decision-making process:

Final Decision

The Supreme Court allowed the appeal, set aside the judgment of the High Court, and quashed the FIR registered against the appellants. The Court held that the language used in the web series did not meet the threshold for obscenity or sexually explicit content under Sections 67 and 67A of the IT Act.

The Court emphasized that vulgarity and profanity are not equivalent to obscenity. It also noted that the High Court had misapplied the community standard test by focusing on whether the language was decent or commonly used, rather than on whether it was lascivious or had the tendency to deprave and corrupt.

The Supreme Court also reiterated that the effect of the words must be judged from the standards of a reasonable, strong-minded, firm and courageous person, and not from the perspective of a hypersensitive individual.

Implications

This judgment has significant implications for freedom of speech and expression in the digital space. It clarifies the boundaries between vulgarity and obscenity, emphasizing that the mere use of expletives does not automatically constitute an offense under the IT Act.

Key implications include:

• Protection of Artistic Freedom: The judgment reinforces the importance of protecting artistic creativity and freedom of expression. It signals that content creators can use strong language to express emotions or tell stories without fear of being prosecuted for obscenity, as long as the content does not meet the threshold for lasciviousness, prurient appeal, or depravity.
• Contextual Analysis: The Court’s emphasis on contextual analysis means that the language used must be viewed within the larger context of the work. This approach allows for a more nuanced understanding of content and prevents knee-jerk reactions to isolated instances of profanity.
• Objective Standard: The judgment underscores the need for an objective standard for assessing obscenity, based on the perspective of a reasonable person, rather than the sensitivities of a hypersensitive individual or child.
• Limits of the IT Act: The ruling clarifies the limits of Sections 67 and 67A of the IT Act. It indicates that these sections are not intended to criminalize all forms of vulgar language, but only material that is genuinely obscene or sexually explicit.
• Community Standards: The correct application of the community standard test, as emphasized by the Court, ensures that the assessment of obscenity is grounded in contemporary societal norms.
• Quashing of FIRs: The judgment provides a basis for quashing FIRs that are based on allegations of obscenity where the material does not meet the legal threshold.

Conclusion

The Supreme Court’s decision in the ‘College Romance’ case is a landmark judgment that reinforces the importance of freedom of speech and expression in the digital age. By quashing the FIR against the makers of the web series, the Court has clarified that vulgarity and profanity do not automatically equate to obscenity under the IT Act.

The judgment emphasizes the need for contextual analysis, objective assessment, and the correct application of the community standard test when determining obscenity. It also underscores the importance of protecting artistic creativity and ensuring that the legal provisions are not used to stifle legitimate forms of expression.

This case serves as a reminder that the law must be interpreted in a way that balances the need to regulate obscene material with the constitutional right to freedom of speech and expression. The Supreme Court’s decision is a significant victory for content creators and a step forward in promoting a more tolerant and nuanced approach to online content.