The Supreme Court on March 19 quashed criminal proceedings against The Viral Fever (TVF) in a case against the creator’s web series ‘College Romance’ observing that the language and contents of the contested episodes in the series do not amount to publication and transmission of obscene, or sexually explicit, content.
Justices A.S. Bopanna and Pamidighantam Sri Narasimha set aside a March 2023 judgment by the Delhi High Court, which upheld that the language used in the web series ‘College Romance’ is “profane”, “obscene” and has the capacity to “corrupt” young minds.
A recap of the case:
The case dates back to 2018 when a complaint was filed against Episode 05 of Season 01 of College Romance, titled ‘Happily Fucked Up’, which was published on YouTube. The show ‘College Romance’ is available to watch on OTT platforms, YouTube, TVF Web Portal and other applications.
The complainant alleged that the language used in the episode, and then in the whole series, was “obscene’ and “vulgar” and portrayed women in “indecent form”. This, the complainant said, was in violation of Sections 292 and 294 of Indian Penal Code (IPC), Section 67 and 67A of Information and Technology Act, 2000 (IT Act) and Sections 2 (c), 3 and 4 of Indecent Representation of Women Prohibition Act, 1986.
The Supreme Court was hearing an appeal by TVF challenging the March 2023 Delhi HC order. The HC had directed the Delhi Police to register an FIR against the show’s director and actors under Section 67 (Publishing or transmission of obscene material in electronic form) and 67A (Publishing or transmission of material with sexually explicit act in electronic form) of the Information Technology Act.
What did the Supreme Court observe?
Referring to previous judgments made by the Supreme Court in matters related to Section 292 of the IPC (dealing with sale of obscene material), and Section 67 of the IT Act, the Supreme Court looked at the HC’s approach to identify the essential alleged obscene content, the test and standard by which the content was judged, and the process relied upon by the Court to determine the charges.
1. Decency and common language cannot be a threshold for determining obscenity: The top Court observed that in determining whether the language used in the web series is common among the youth and whether it meets the threshold of decency, the High Court posed an incorrect question for inquiry. Whereas, the Court observed that Section 67 of the IT Act demands inquiry into 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”.
2. ‘Profanity is not per se obscene’: Justice Swarana Kanta Sharma of the Delhi HC had remarked that the court had to watch the episodes with earphones in the chamber because of the “profanity of the language used” and that it was capable of depraving young impressionable minds. The Supreme Court observed that the language was nothing more than “foul, indecent and profane” and that profanity and vulgarity cannot be equated with obscenity.
“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 that have been employed in the episode,” the top Court noted. The justices also stated that the HC had in fact moved away from the requirements of obscenity under Section 67 of the IT Act.
3. The HC was not objective in analysing the case:
The Supreme Court observed that the HC had erred in its legal approach for determining whether the material is obscene. According to the Supreme Court, the HC must consider the work as a whole, step into the creator’s and reader’s position and then determine specific portions to arrive at a conclusion.
“…the High Court has taken the meaning of the language in its literal sense, outside the context in which such expletives have been spoken. While the literal meaning of the terms used may be sexual in nature and they may refer to sexual acts, their usage does not arouse sexual feelings or lust in any viewer of ordinary prudence and common sense. Rather, the common usage of these words is reflective of emotions of anger, rage, frustration, grief, or perhaps excitement,” the Court observed.
The Court is of the view that the High Court had failed to consider the contested portions in context of the larger series and by the standard of an “ordinary man of common sense and prudence”. It further added that neither did the creator intend for the language to be taken in a literal sense not is that the impact of the material on a reasonable viewer.
“Furthermore, the objectivity with which a judicial mind is expected to examine the work in question was completely lost when the High Court evidently could not extricate itself from the courtroom atmosphere,” the Court added.
4. The HC had applied wrong standard for determining obscenity:
The Delhi HC had remarked that the profane language in the series can affect, deprave, and “corrupt” “young impressionable minds”. Whereas, the Supreme Court observed that the HC has erred in applying the test for obscenity stating that the standard for determination cannot be an “adolescent’s or child’s mind, or a hypersensitive person who is susceptible to such influences”.
The HC also stated that the HC’s observations are based on “irrelevant considerations” such as “linguistic purity, civility, and morality”.
“Similarly, the metric to assess obscenity and legality of any content cannot be that it must be appropriate to play in the courtroom while maintaining the court’s decorum and integrity. Such an approach unduly curtails the freedom of expression that can be exercised and compels the maker of the content to meet the requirements of judicial propriety, formality, and official language. Here again, the High Court committed a serious error in decision-making,” the Court noted.
Acknowledging the concern that that web-series is freely available on the internet without any restriction for those below 18 years of age, the Court highlighted that availability of such content 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,” the Court added.
5. Section 67A cannot be applied in this case: The Court maintained that there is no allegation of any ‘sexually explicit act or conduct’ in the complaint and hence, Section 67A cannot be applied here. The Court opined that while the three expressions “explicit”, “act”, and “conduct” can have wider meanings, the phrase may have to be seen in the context of ‘obscenity’ as provided in Section 67.
“…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,” the Supreme Court concluded.
Also Read:
- Obscene, Profane Language In ‘College Romance’ Corrupts Young Minds: Indian Court On TVF Web Series
- ULLU Ordered To Take Down Content: Can Self-Regulatory Bodies Order OTT Platforms To Do So?
- Netflix Takes Down CBFC-Approved Film ‘Annapoorani’ Strengthening Concerns Of Rising OTT Censorship In India
- Allahabad HC Restrains Al Jazeera From Releasing A Documentary Film On Indian Muslims Fearing “Evil Consequences”
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