Freedom of digital expression upheld: SC rules profanity is not per se obscenity

The Supreme Court, connected 19.03.2024, successful a landmark determination connected integer escaped speech, the limits of transgression prosecution of online content, and the doctrine of obscenity, ruled that a usage of vulgar language, curse words, and profanities successful the lack of immoderate different factors does not magnitude 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 seat of Justice A.S. Bopanna and Justice Pamidighantam Sri Narasimha successful Apoorva Arora and Anr. v. State (Govt. of NCT of Delhi) and Anr.Factual Background:The contention arose from Season 1, Episode 5 of the web-series College Romance, which was hosted connected YouTube. A ailment was filed earlier the ACP that Season 1, Episode 5 of the web-series, titled ‘Happily F****d Up’, has vulgar and obscene connection successful its rubric and assorted portions of the episode, constituting an offence nether 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 exertion earlier the ACMM seeking registration of FIR.

On this the Investigating Officer conducted an enquiry and filed an Action Taken Report connected 09.04.2019 stating that nary cognizable offence is made retired and successful fact, determination is nary obscenity successful the content.However, the ACMM, by bid dated 17.09.2019, allowed the complainant’s exertion and directed the registration of an FIR against the appellants. The appellants filed a revision petition earlier the Sessions Court, who by bid dated 10.11.2020 partially modified the bid of the ACMM and directed the registration of FIR lone nether Sections 67 and 67A of the IT Act.Aggrieved by this order, the appellants filed a petition nether Section 482 CrPC earlier the High Court for quashing the abovementioned orders.The Delhi High Court, portion dismissing the petitions for quashing, held that the connection employed successful the occurrence was indecent, profane, and incapable of being heard successful unfastened tribunal without embarrassment, thus, exceeded the decency and morality limits. The High Court, citing what it called the assemblage standards test, concluded that the recurrent usage of intersexual expletives and different slang phrases, could beryllium depraving and corrupting to impressionable minds, particularly children and teenagers.The High Court reasoned that:

On this basis, the High Court refused to interfere and confirmed the order, which resulted successful the authoritative registration of FIR No. 403/2023, which became the taxable substance of situation earlier the Supreme Court.Submission connected behalf of the Appellants:The elder counsel representing the appellants submitted that the objectionable sections of the occurrence failed to conscionable the statutory threshold of obscenity. It was argued that:

The appellants further placed reliance connected 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 successful person, the complainant said that the worldly was openly disposable to underage children and utilized sexually colored curse words, which went beyond the boundaries of decency. It was submitted that:

Supreme Court’s ObservationsThe Supreme Court thoroughly reviewed the conception of obscenity, legislative model progressive successful the exertion of the Sections 67 and 67A successful the Information Technology Act and the judicial standards that were established successful the exertion of Section 292 successful the Indian Penal Code.

The Court yet recovered that the Delhi High Court had erred connected a ineligible crushed successful its effort to picture the contented of the web-series arsenic obscene.Language Should Deprave and Corrupt To Be Obscene.At the outset, the Supreme Court disapproved the precise formulation of the contented by the High Court and held that the contented of the connection utilized successful the occurrence whether commonly spoken by the younker oregon whether it crossed the threshold of decency was fundamentally misplaced, which inevitably led to an incorrect conclusion. The Court observed that the enquiry nether Section 67 of the IT Act does not beryllium connected whether the connection is civil, decent, oregon commonly used. Instead, the statutory trial is whether the worldly is lascivious, appeals to prurient interest, oregon tends to deprave and corrupt the minds of those apt to brushwood it.The Court observed:“The enquiry nether Section 67 of the IT Act does not hinge connected whether the connection oregon words are decent, oregon whether they are commonly utilized successful the country… Rather, from the plain connection of the provision, the enquiry is to find whether the contented is lascivious, appeals to prurient interests, oregon tends to deprave and corrupt the minds of those successful whose hands it is apt to fall.”Profanity and Vulgarity Are Not Per Se ObsceneThe Supreme Court further held that the High Court had committed a superior doctrinal mistake by equating profanity and vulgarity with obscenity without undertaking immoderate substantive investigation into whether specified connection was sexual, lascivious, prurient, oregon susceptible of corrupting minds.The Court relying connected earlier precedents, reiterated that vulgar oregon distasteful expressions, by themselves, bash not fulfill the threshold of obscenity.The Court emphatically observed:“It is well-established from the precedents cited that vulgarity and profanities bash not per se magnitude to obscenity.”The Court elaborated that portion a idiosyncratic whitethorn find abusive connection unpleasant oregon improper, this is not capable to marque it arsenic obscene by the transgression law. Obscenity is associated with intersexual arousal and a lustful effect arsenic opposed to daze oregon disgust. The Court did enactment that abusive connection tin origin revulsion oregon embarrassment but does not ever effect successful intersexual thoughts.The judgement recorded:“While a idiosyncratic whitethorn find vulgar and expletive-filled connection to beryllium distasteful, unpalatable, uncivil, and improper, that by itself is not capable to beryllium ‘obscene’. Obscenity relates to worldly that arouses intersexual and lustful thoughts, which is not astatine each the effect of the abusive connection oregon profanities… Rather, specified connection whitethorn evoke disgust, revulsion, oregon shock.”Contextual and Objective Evaluation Is RequirementOne of the top criticisms that were issued by the Supreme Court was that the High Court had provided a literal and decontextualized mentation to the words utilized successful the web-series.

The Supreme Court stressed that the close judicial methodology would necessitate the investigation of the enactment arsenic a whole, keeping successful caput the volition of the creator, the thematic background, and the content that an mean spectator mightiness person utilizing his/her communal consciousness and prudence.

Rather, the High Court singled retired circumstantial words and gave them their dictionary definition, retired of discourse of the storytelling of a light-hearted assemblage comedy.The Supreme Court noted:“By taking the literal meaning of these words, the High Court failed to see the circumstantial worldly successful the discourse of the larger web-series and by the modular of an ‘ordinary antheral of communal consciousness and prudence’.”The Court clarified that the usage of slang and expletives successful the bid was reflective of emotions specified arsenic frustration, anger, oregon excitement alternatively than intersexual intent oregon stimulation.

The Supreme Court besides recovered that the High Court’s reasoning lacked objectivity and was influenced by idiosyncratic discomfort alternatively than established ineligible principles.The Court determined that the ineligible trial of obscenity indispensable not beryllium applied connected the crushed of children, adolescents oregon hypersensitive people; alternatively it indispensable beryllium tested connected the crushed of a typical, tenable big who tin usage communal prudence. In addition, the appropriateness of works of creation successful the courtroom mounting ought not to beryllium a yardstick utilized successful the determination of transgression liability since it volition represent an unwarranted imposition connected the state of creation and expression.Section 67A Not AttractedThe Court was of the presumption that the specified utterance of profanities oregon intersexual slangs without immoderate statement oregon illustration of an explicit intersexual enactment oregon behaviour is not taxable to the provisions of Section 67A.The Court besides recognized the favoritism betwixt accepted broadcast media and online “pull media”, observing that integer platforms let viewers to voluntary entree and conscious choice.

Thus, requiring a comparatively higher threshold of tolerance earlier transgression instrumentality is invoked.After considering the statutory provisions, precedents and factual matrix, the Supreme Court held that the allegations made successful the ailment adjacent construed virtually did not uncover immoderate offence committed successful usurpation of immoderate of the Sections successful 67 oregon 67A of the Information Technology Act.The Court reaffirmed the rule that the transgression activities cannot beryllium allowed to proceed erstwhile the cardinal elements of the projected transgression offence are missing. In enactment with this, the appeals were allowed and the judgement of the Delhi High Court was acceptable speech and the FIR No. 403/2023 that was filed astatine Police Station Mukherjee Nagar, Delhi was quashed by the Supreme Court. The Court decided that the exertion of the penal provisions successful the lawsuit successful question was an unnecessary criminalization of creator look and that the ongoing prosecution volition pb to an abusive usage of the ineligible 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 simply a Delhi-based Advocate practicing earlier the courts of Delhi NCR.)