Brief Facts
- The case arises from the content of the web series College Romance, particularly an episode titled “Happily F**d Up” from Season 1. A complaint was lodged alleging that the episode contained profane, obscene, and vulgar language, which was accessible to a wide audience, including minors. Based on the complaint, the Magistrate directed the registration of an FIR under Sections 292 of the Indian Penal Code and Sections 67 and 67A of the Information Technology Act, 2000, which deal with the publication and transmission of obscene and sexually explicit material in electronic form.
- The order of the Magistrate was challenged before the Sessions Court, which partially allowed the appeal by dropping the IPC charge under Section 292 but retained the charges under Sections 67 and 67A of the IT Act. The Appellants then approached the High Court seeking to quash the FIR. However, the Delhi High Court rejected their petition, holding that 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.
- Hence the present Appeal.
Issues
- Whether the use of expletives and profane language in the titles and content of the episodes of the web-series ‘College Romance’ constitutes an offence of publication and transmission of obscene and sexually explicit content under Sections 67 and 67A of the IT Act?
Held
- The Supreme Court allowed the Appeal and quashed the FIR against the Appellants as 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 and 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. The findings of the court are as under:
- The Supreme Court discarded the approach of the High Court on following major counts:
- High Court has incorrectly framed the question for inquiry.
- Profanity is not per se obscene.
- No objective consideration
- Application of wrong standards
Whether the material is obscene?
- It is evident that “obscenity” has been similarly defined in Section 292 and Section 67 as material which is:
- lascivious; or
- appeals to the prurient interest; or
- its effect tends 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.
However, the difference between them is only that Section 67 is a special provision that applies when the obscene material is published or transmitted in the electronic form.19 Since the alleged offending material is a web-series, the case must be considered under Section 67 of the IT Act but the same test for obscenity as laid down under Section 292 will apply since the provisions are similarly worded in that respect.
- The High Court has made several remarks on the need to maintain linguistic purity, civility, and morality by retaining the purity of language and deprecating the representation of expletives-filled language as the “new normal”. The real test is to examine if the language is in anyway obscene under Section 67 of the IT Act. The approach adopted by the High Court is based on irrelevant considerations.
- 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.
Provisions of section 67A are not attracted
- 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.
- Section 67A criminalizes publication, transmission, causing to publish or transmit – in electronic form – any material that contains sexually explicit act or conduct. 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.
- Thus, there could be a connect between Section 67A and Section 67 itself. For example, there could be sexually explicit act or conduct which may not be lascivious. Equally, such 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.
Relevant Para No.
- 31 to 48