Supreme Court Delivers Landmark Ruling on Digital Free Speech and Obscenity
In a historic judgment that clarifies the boundaries of criminal prosecution for online content, the Supreme Court of India has ruled that the mere use of vulgar language, swear words, and profanities—without additional factors—does not amount to obscenity under Indian law. The landmark decision was delivered on March 19, 2024, by a bench comprising Justice A.S. Bopanna and Justice Pamidighantam Sri Narasimha in the case Apoorva Arora and Anr. v. State (Govt. of NCT of Delhi) and Anr.
Case Background: The 'College Romance' Controversy
The legal dispute originated from Season 1, Episode 5 of the popular web series College Romance, which was hosted on YouTube. The episode, titled 'Happily F****d Up', became the subject of a complaint alleging that its title and various portions contained vulgar and obscene language. The complainant argued this constituted offenses under Sections 292 of the Indian Penal Code (obscenity), Sections 67 and 67A of the Information Technology Act, and related provisions of the Indecent Representation of Women (Prohibition) Act, 1986.
Following an application filed on March 13, 2019, the Investigating Officer conducted an enquiry and submitted an Action Taken Report on April 9, 2019, stating that no cognizable offense was made out and that the content was not obscene. However, the Additional Chief Metropolitan Magistrate (ACMM), in an order dated September 17, 2019, directed the registration of an FIR against the appellants—the actors, writers, and producers of the series.
The appellants filed a revision petition before the Sessions Court, which partially modified the ACMM's order on November 10, 2020, directing FIR registration only under Sections 67 and 67A of the IT Act. Dissatisfied, the appellants approached the Delhi High Court under Section 482 of the Criminal Procedure Code seeking to quash these orders.
Delhi High Court's Stance and Subsequent Appeal
The Delhi High Court dismissed the petitions, holding that the language used in the episode was indecent, profane, and exceeded decency and morality limits. Applying what it termed the community standards test, the court concluded that recurrent use of sexual expletives and slang phrases could deprave and corrupt impressionable minds, especially children and teenagers. The High Court cited several reasons:
- Explicit verbal references to sexual organs and acts in the episode.
- Absence of clear age-classification, disclaimer, or viewing restrictions, which aggravated potential harm.
- Depiction of such language on a public platform normalized vulgarity as the "new normal."
- Freedom of speech under Article 19(1)(a) does not extend to obscene and morally degrading content.
This led to the registration of FIR No. 403/2023 at Police Station Mukherjee Nagar, Delhi, which was subsequently challenged before the Supreme Court.
Appellants' Submissions and Legal Arguments
Senior counsel representing the appellants, including Mr. Mukul Rohatgi and Mr. Sajan Poovayya, argued that the objectionable sections failed to meet the statutory threshold of obscenity. Key points included:
- Vulgarity does not equate to obscenity, and mere swear words cannot be criminalized.
- The High Court erred by isolating dialogues rather than evaluating the work in its entirety.
- The content contained no sexually explicit acts, rendering Section 67A of the IT Act inapplicable.
- The web-series is a romantic comedy depicting city college life, with language used for conversational realism, not to evoke sexual desire.
- Online streaming is "pull media," where viewers voluntarily access content, warranting a higher tolerance threshold.
- Criminal prosecution would have a chilling effect on Article 19(1)(a) rights and artistic creativity.
The appellants relied on precedents such as 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.
Supreme Court's Observations and Legal Analysis
The Supreme Court conducted a thorough review of the concept of obscenity, the legislative framework under Sections 67 and 67A of the IT Act, and judicial standards under Section 292 of the IPC. The court found that the Delhi High Court had committed a legal error in classifying the content as obscene.
Language Must Deprave and Corrupt to Be Obscene
The Supreme Court disapproved of the High Court's formulation of the issue, stating that focusing on whether the language was commonly spoken by youth or crossed decency thresholds was misplaced. Instead, the statutory test under Section 67 of the IT Act hinges on whether material is lascivious, appeals to prurient interest, or tends to deprave and corrupt 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 Obscene
The Supreme Court held that the High Court committed a serious doctrinal error by equating profanity and vulgarity with obscenity without analyzing whether such language was sexual, lascivious, prurient, or capable of corrupting minds. Relying on earlier precedents, the court reiterated that vulgar or distasteful expressions alone do not meet the obscenity threshold.
The judgment stated: "It is well-established from the precedents cited that vulgarity and profanities do not per se amount to obscenity." The court elaborated that while abusive language may be unpleasant or improper, this is insufficient to brand it as obscene under criminal law. Obscenity is associated with sexual arousal and lustful effects, not mere shock or disgust.
Contextual and Objective Evaluation Is Required
The Supreme Court criticized the High Court for providing a literal and decontextualized interpretation of the words used in the web-series. Emphasizing the correct judicial methodology, the court stressed that analysis must consider the work as a whole, including the creator's intention, thematic background, and the impression on an average viewer using common sense and prudence.
The 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'." It clarified that slang and expletives in the series reflected emotions like frustration or anger, not sexual intent.
Section 67A Not Attracted
The Supreme Court ruled that mere profanities or sexual slangs, without description or illustration of explicit sexual acts, do not attract Section 67A of the IT Act. The court also recognized the distinction between traditional broadcast media and online "pull media," noting that digital platforms allow voluntary access, thus requiring a higher tolerance threshold before invoking criminal law.
Final Ruling and Implications
After considering statutory provisions, precedents, and the factual matrix, the Supreme Court held that the complaint allegations, even construed literally, did not reveal any offense under Sections 67 or 67A of the IT Act. The court reaffirmed that criminal proceedings cannot continue when fundamental elements of the alleged offense are absent.
Consequently, the appeals were allowed, the Delhi High Court's judgment was set aside, and FIR No. 403/2023 was quashed. The Supreme Court decided that applying penal provisions in this case constituted unnecessary criminalization of artistic expression and that ongoing prosecution would amount to an abusive use of the legal process.
This landmark ruling reinforces the principle that profanity is not per se obscene and underscores the importance of protecting digital free speech and artistic creativity within the bounds of law.
