Freedom of digital expression upheld: Supreme Court rules profanity is not per se obscenity – The Times of India

The Court eventually found that the Delhi High Court had erred on a legal ground in its attempt to describe the content of the web-series as obscene. (AI image)

The Supreme Court, on 19.03.2024, in a landmark decision on digital free speech, the limits of criminal prosecution of online content, and the doctrine of obscenity, ruled that a use of vulgar language, swear words, and profanities in the absence of any other factors does not amount to obscenity. The Court reversed the ruling of the Delhi High Court and cancelled the FIR filed against the actors, writers, and producers of the web-series College Romance noting that “profanity is not per se obscene”.This ruling was delivered by a bench of Justice A.S. Bopanna and Justice Pamidighantam Sri Narasimha in Apoorva Arora and Anr. v. State (Govt. of NCT of Delhi) and Anr.Factual Background:The controversy arose from Season 1, Episode 5 of the web-series College Romance, which was hosted on YouTube. A complaint was filed before the ACP that Season 1, Episode 5 of the web-series, titled ‘Happily F****d Up’, has vulgar and obscene language in its title and various portions of the episode, constituting an offence under Sections 292 (obscenity), Sections 67 and 67A of the IT Act, and allied sections of the Indecent Representation of Women (Prohibition) Act, 1986.On 13.03.2019, the complainant filed an application before the ACMM seeking registration of FIR. On this the Investigating Officer conducted an enquiry and filed an Action Taken Report on 09.04.2019 stating that no cognizable offence is made out and in fact, there is no obscenity in the content.However, the ACMM, by order dated 17.09.2019, allowed the complainant’s application and directed the registration of an FIR against the appellants. The appellants filed a revision petition before the Sessions Court, who by order dated 10.11.2020 partially modified the order of the ACMM and directed the registration of FIR only under Sections 67 and 67A of the IT Act.Aggrieved by this order, the appellants filed a petition under Section 482 CrPC before the High Court for quashing the abovementioned orders.The Delhi High Court, while dismissing the petitions for quashing, held that the language employed in the episode was indecent, profane, and incapable of being heard in open court without embarrassment, thus, exceeded the decency and morality limits. The High Court, citing what it called the community standards test, concluded that the recurrent use of sexual expletives and other slang phrases, could be depraving and corrupting to impressionable minds, especially children and teenagers.The High Court reasoned that:

On this basis, the High Court refused to interfere and confirmed the order, which resulted in the official registration of FIR No. 403/2023, which became the subject matter of challenge before the Supreme Court.Submission on behalf of the Appellants:The senior counsel representing the appellants submitted that the objectionable sections of the episode failed to meet the statutory threshold of obscenity. It was argued that:

The appellants further placed reliance on precedents including Samaresh Bose v. Amal Mitra, Bobby Art International v. Om Pal Singh Hoon, K.A. Abbas v. Union of India, and Aveek Sarkar v. State of West Bengal.Complainant SubmissionsAppearing in person, the complainant said that the material was openly available to underage children and used sexually colored swear words, which went beyond the boundaries of decency. It was submitted that:

Supreme Court’s ObservationsThe Supreme Court thoroughly reviewed the notion of obscenity, legislative framework involved in the application of the Sections 67 and 67A in the Information Technology Act and the judicial standards that were established in the application of Section 292 in the Indian Penal Code. The Court eventually found that the Delhi High Court had erred on a legal ground in its attempt to describe the content of the web-series as obscene.Language Should Deprave and Corrupt To Be Obscene.At the outset, the Supreme Court disapproved the very formulation of the issue by the High Court and held that the issue of the language used in the episode whether commonly spoken by the youth or whether it crossed the threshold of decency was fundamentally misplaced, which inevitably led to an incorrect conclusion. The Court observed that the enquiry under Section 67 of the IT Act does not depend on whether the language is civil, decent, or commonly used. Instead, the statutory test is whether the material is lascivious, appeals to prurient interest, or tends to deprave and corrupt the minds of those likely to encounter it.The Court observed:“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… 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.”Profanity and Vulgarity Are Not Per Se ObsceneThe Supreme Court further held that the High Court had committed a serious doctrinal error by equating profanity and vulgarity with obscenity without undertaking any substantive analysis into whether such language was sexual, lascivious, prurient, or capable of corrupting minds.The Court relying on earlier precedents, reiterated that vulgar or distasteful expressions, by themselves, do not satisfy the threshold of obscenity.The Court emphatically observed:“It is well-established from the precedents cited that vulgarity and profanities do not per se amount to obscenity.”The Court elaborated that while a person may find abusive language unpleasant or improper, this is not enough to brand it as obscene by the criminal law. Obscenity is associated with sexual arousal and a lustful effect as opposed to shock or disgust. The Court did note that abusive language can cause revulsion or embarrassment but does not always result in sexual thoughts.The judgment recorded:“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… Rather, such language may evoke disgust, revulsion, or shock.”Contextual and Objective Evaluation Is RequirementOne of the greatest criticisms that were issued by the Supreme Court was that the High Court had provided a literal and decontextualized interpretation to the words used in the web-series. The Supreme Court stressed that the right judicial methodology would require the analysis of the work as a whole, keeping in mind the intention of the creator, the thematic background, and the impression that an average viewer might have using his/her common sense and prudence. Rather, the High Court singled out specific words and gave them their dictionary definition, out of context of the storytelling of a light-hearted college comedy.The Supreme Court noted:“By taking the literal meaning of these words, the High Court failed to consider the specific material in the context of the larger web-series and by the standard of an ‘ordinary man of common sense and prudence’.”The Court clarified that the usage of slang and expletives in the series was reflective of emotions such as frustration, anger, or excitement rather than sexual intent or stimulation. The Supreme Court also found that the High Court’s reasoning lacked objectivity and was influenced by personal discomfort rather than established legal principles.The Court determined that the legal test of obscenity must not be applied on the ground of children, adolescents or hypersensitive people; rather it must be tested on the ground of a typical, reasonable adult who can use common prudence. In addition, the appropriateness of works of art in the courtroom setting ought not to be a yardstick used in the determination of criminal liability since it will constitute an unwarranted imposition on the freedom of art and expression.Section 67A Not AttractedThe Court was of the view that the mere utterance of profanities or sexual slangs without any description or illustration of an explicit sexual act or behavior is not subject to the provisions of Section 67A.The Court also recognized the distinction between traditional broadcast media and online “pull media”, observing that digital platforms allow viewers to voluntary access and conscious choice. Thus, requiring a comparatively higher threshold of tolerance before criminal law is invoked.After considering the statutory provisions, precedents and factual matrix, the Supreme Court held that the allegations made in the complaint even construed literally did not reveal any offence committed in violation of any of the Sections in 67 or 67A of the Information Technology Act.The Court reaffirmed the principle that the criminal activities cannot be allowed to continue when the fundamental elements of the proposed criminal offence are missing. In line with this, the appeals were allowed and the judgment of the Delhi High Court was set aside and the FIR No. 403/2023 that was filed at Police Station Mukherjee Nagar, Delhi was quashed by the Supreme Court. The Court decided that the application of the penal provisions in the case in question was an unnecessary criminalization of artistic expression and that the ongoing prosecution will lead to an abusive use of the legal process.CRIMINAL APPEAL NO(S). /2024 (ARISING OUT OF SLP (CRL.) NO(S). 5463-5464/2023 APOORVA ARORA & ANR. ETC. versus STATE (GOVT. OF NCT OF DELHI) & ANR. For Petitioner(s) .Mr. Mukul Rohatgi, Sr. Adv. Mr. Sajan Poovayya, Sr. Adv Mr. Mahesh Agarwal, Adv. Mr. Ameet Naik, Adv. Mr. Ankur Saigal, Adv. Ms. S. Lakshmi Iyer, Adv. Ms. Madhu Gadodiaya, Adv. Mr. Chirag Nayak, Adv. Ms. Sanjanthi Sajan Poovayya, Adv. Mr. Madhu Gadodiaya, Adv. Ms. Misha Rohatgi, Adv. Mr. Devansh Srivastava, Adv. Ms. Raksha Agarwal, Adv. Ms. Kajal Dalal, Adv. Mr. Abhishek Kakker, Adv. Mr. Raksha Agarwal, Adv. Ms. Pallavi Mishra, Adv. Mr. Sujoy Mukharji, Adv. Ms. Tarini Kulkarni, Adv. Mr. E. C. Agrawala, AOR Mrs. Madhavi Divan, Sr. Adv. Mr. Harish Salve, Sr. Adv. Mr. Ameet Naik, Adv. Mr. Raghav Shankar, Adv. Ms. Madhu Gadodia, Adv. Mr. Harshvardhan Jha, Adv. Mrs. Yugandhara Pawar Jha, AOR Mr. Sujoy Mukherjee, Adv. Ms. Tarini Kulkarni, Adv. Ms. Pallavi Mishra, Adv. Mr. Aman Pathak, Adv. For Respondent(s) Mr. K M Nataraj, A.S.G. Mr. Shreekant Neelappa Terdal, AOR Mr. Sarath Nambiar, Adv. Mr. Sanjay Kr. Tyagi, Adv. Mr. Sridhar Potaraju, Adv. Ms. Nidhi Khanna, Adv. Mr. Karthik Jasra, Adv. Dr. Arun Kr. Yadav, Adv. Mr. Arvind Singh, Adv. Ms. Indira Bhakar, Adv. Mr. Vinayak Sharma, Adv. Mr. Vatsal Joshi, Adv. Mr. Chitransh Sharma, Adv. Mr. Anuj Srinivas Udupa, Adv. Ms. Satvika Thakur, Adv. Mr. Yogi Rajpurohit, Adv. Mr. Aayush Saklani, Adv. Mr. Shubham Mishra, Adv. Mr. Mukesh Kumar Maroria, AOR Mr. V V V Pattabhi Ram, Adv. Mr. Prashant Rawat, Adv. Mr. Purnendu Bajpai, Adv. Mr. Rajat Nair, Adv. Ms. Khushboo Aggarwal, Adv.(Vatsal Chandra is a Delhi-based Advocate practicing before the courts of Delhi NCR.)