Case Summary and Outcome

The Supreme Court of India held that the web series College Romance, despite its use of expletives and profane language, does not violate Sections 67 and 67A of the Information Technology Act. The case arose from a complaint alleging that the series violated the IT Act and the Indecent Representation of Women (Prohibition) Act due to its explicit content. Aggrieved by the complaint and the subsequent First Information Report (FIR), the Appellants sought to quash the complaint in the Delhi High Court, which dismissed their petition. Upon appeal, the Supreme Court criticized the High Court’s reasoning, clarifying that while the series may be vulgar or distasteful, it does not meet the legal standards for obscenity or sexually explicit material. The Court clarified that obscenity under the law requires content to be lascivious, appeal to prurient interests, or tend to deprave and corrupt those likely to view it. Profanity alone, the Court emphasized, does not meet this threshold. Additionally, the Court found that the High Court’s reliance on “impressionable minds” as a standard was inappropriate, as legal obscenity must be judged by the perspective of the average viewer, not a hypersensitive or overly impressionable audience. In conclusion, the Supreme Court quashed the FIR against the Appellants, underscoring the importance of a nuanced approach to regulating content while protecting artistic freedom.

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Facts

The Appellants are the actors, casting director, scriptwriters, and creator of the web series College Romance. On September 6, 2018, Episode 05 of Season 01 of the web series,  titled “Happily fucked up,” was published and was made available to viewers on YouTube. Several complaints were lodged against the Appellants, alleging that the web series specifically Episode 05, contained explicit and indecent content, violating the provisions of Sections 292 & 294 of the Indian Penal Code (IPC), Sections 67 and 67A of the Information, and Technology Act (IT Act), and Sections 2(c), 3, and 4 of the Indecent Representation of Women Prohibition Act. The complainants contended that the series lacked age restrictions on YouTube and failed to provide any legal disclaimer warning viewers of its explicit content, accusing it of promoting internet obscenity for financial gain.

On September 17, 2019, the Additional Chief Metropolitan Magistrate (North), Rohini District Court, New Delhi (ACMM), found a prima facie case under Sections 292 and 294 of IPC and Sections 67 and 67A of the IT Act and instructed the police to register a First Information Report (FIR) against the Appellants following an investigation. Aggrieved with the ACCMM order, the Appellants filed a Revision Petition before the Additional Sessions Judge (ASJ). The ASJ altered the ACMM’s order, directing the police to register an FIR exclusively under section 67A of the IT Act while dropping the other IPC sections. The Appellants, aggrieved by the ASJ Order filed a Petition under Section 482 of the Code of Criminal Procedure before the High Court of Delhi, seeking quashing of the FIR.

Justice Swarna Kanta Sharma of the Delhi High Court adjudicated a case concerning the web series College Romance, focusing on whether it violated Sections 67 and 67A of the IT Act. The Appellants argued that the impugned orders were invalid due to non-compliance with Section 154(3) of the CrPC and insufficient explanation of Section 67A’s applicability. They also contended that the series did not contain sexually explicit material as required by Section 67A. The State, however, maintained that compliance with Section 154(3) was mandatory and defended the impugned orders as legally sound, emphasizing the inappropriate nature of the content rather than the lack of disclaimers.

The High Court reviewed several episodes of College Romance and found the language used—characterized by excessive profanity and sexually explicit references—to be highly inappropriate and likely to “deprave and corrupt impressionable minds.” The High Court applied judicial precedents and dictionary definitions of terms like “obscene,” “vulgar,” and “profane” to conclude that the content crossed the boundaries of public decency. The series was found to not meet acceptable standards and was deemed to propagate a harmful portrayal of language and behavior.

The Delhi High Court applied the “community standard test” to assess whether the web series College Romance was obscene under Section 67 of the IT Act. The Court found that the series employed excessive profanities and vulgar language, with explicit references to sexual acts, which, when viewed from the perspective of a common prudent person in the Indian context, crossed the threshold of decency. The language used in the series was deemed inappropriate for general audiences, including minors, as there were no content warnings or age restrictions, and was likely to corrupt impressionable minds. The Court also noted that the series’ portrayal of language was not representative of common usage in India and rejected the argument that such language is protected under freedom of speech.

The Court found that the online content curators violated the IT Rules 2021 by failing to classify the series correctly and provide appropriate content warnings. The procedural argument by the Appellants regarding non-compliance with Section 154(3) of the CrPC was dismissed, as the Court determined that Section 154(3) used the term “may” and was thus not a strict procedural requirement. The Court emphasized the need to regulate vulgar language in the public domain to maintain societal standards of decency and linguistic morality. 

In its decision, the High Court underscored the importance of adhering to decency standards and protecting societal values from degrading content. It found that the series violated the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 due to the absence of appropriate content warnings and classifications. Consequently, the Court upheld the order of the ASJ, concluding that College Romance failed the test of public decency and did not align with societal norms or the expectations of viewers.

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Decision Overview

Justice Pamidighantam Sri Narasimha and Justice A.S. Bopanna of the Supreme Court decided upon the case. The primary issue before the Court was, whether the use of expletives and profane language in the titles and content of the episodes of the web series College Romance constitutes an offense of publication and transmission of obscene and sexually explicit content under Sections 67 and 67A of the Information Technology Act.

The Appellant contended that the allegedly offending portions of Season 1, Episode 5 of the web series do not meet the threshold for obscenity under Section 67 of the IT Act. They contended that the scenes in question, where expletives are used, do not involve any sexually explicit acts and should be viewed within the context of the entire web series, which is a romantic comedy about college life. The Appellant highlighted that the use of vulgar language does not equate to obscenity unless it arouses sexual thoughts or feelings, which is not the case here. The terms used in the scenes are common expressions of emotions like frustration and anger, not intended to be taken literally or sexually. [para. 7]

Further, the Appellant argued that the scenes do not contain any sexually explicit acts as required under Section 67A of the IT Act, and therefore, no offense is made. They emphasized that the web series is “pull media,” where viewers actively choose to watch the content, suggesting a higher threshold for determining obscenity. They also referred to the right to freedom of speech under Article 19(1)(a), protecting artistic creativity and expression, and referenced legal precedents to support their claim that the material is not obscene when viewed through the lens of community standards and the ordinary person’s perspective. [para. 7]

The Complainant argued that the content of the web series fell within the scope of Sections 67 and 67A of the IT Act and also violated Sections 3 and 4 of the Indecent Representation of Women (Prohibition) Act, 1986. Relying on the “community standard test,” the Complainant contended that the relevant portions of the web series were obscene and sexually explicit. First, the content appealed to a prurient interest in sex, as determined by the average person applying contemporary community standards. Additionally, the episode titles and plot focused on college students engaging in sexual activities, with the episodes using sexually explicit language and expletives, which the Complainant argued could not be considered the “new normal.” Second, the material portrayed sexual conduct in a patently offensive way. Third, it lacked serious literary, artistic, political, or scientific value. Fourth, it tended to arouse sexually impure thoughts. Fifth, the material was neither in the larger public interest nor beneficial to art, literature, or science, and therefore, its obscenity was unjustified. The Complainant also stressed the unrestricted access children and adults had to the web series, arguing that it needed to be regulated in the interest of public order, morality, and decency.

On the question of content being ‘obscene’

The Supreme Court began by critically examining the High Court’s approach to determining obscenity. While the High Court claimed to apply the “community standard test” from Aveek Sarkar v. State of West Bengal, the Supreme Court found a fundamental flaw in its application. The High Court framed the inquiry around whether the language used is “contemporarily used by the youth” and meets “the threshold of decency.” [para. 33] This framing, the Supreme Court argues, misses the essence of the obscenity test under Section 67 of the IT Act. The Court emphasized that the correct inquiry should focus on 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.” [para. 34] This misframing of the question led the High Court to, as the Supreme Court put it, embark “on a wrong journey and arrived at the wrong destination.” [para. 34]

The Court held that the High Court erred in its reasoning in equating profanity with obscenity. The Supreme Court clarified that “vulgarity and profanities do not per se amount to obscenity.” [para. 35] The Court referred to Samaresh Bose v. Amal Mitra and Bobby Art International v. Om Pal Singh Hoon and emphasized that while profane language may be “distasteful, unpalatable, uncivil, and improper,” it is not sufficient to be classified as obscene. [para. 35] The Court held that the distinction is crucial, as it separates content that may be offensive or distasteful from that which is legally obscene. The Court elaborates that while profane language may be “distasteful, unpalatable, uncivil, and improper,” these characteristics alone are insufficient to classify content as obscene under the law. [para. 35] 

The Supreme Court meticulously outlined the proper legal approach to assessing obscenity, drawing heavily from the precedent set in Samaresh Bose v. Amal Mitra. This approach involves a multi-faceted examination: considering the work as a whole, examining specific portions in context, understanding the creator’s intent, and assessing the potential influence on likely viewers. [para. 36] The Court noted that the High Court’s analysis lacked this comprehensive approach, instead focusing narrowly on the language used without proper contextualization. The Court held that this failure to follow the established legal framework for assessing obscenity undermines the validity of the High Court’s conclusion.

The Supreme Court emphasized the critical importance of context in determining obscenity. It notes that while the literal meaning of certain terms used in the web series may be sexual, “their usage does not arouse sexual feelings or lust in any viewer of ordinary prudence and common sense.” [para. 37] The Court observed that in the context of a “light-hearted show on the college lives of young students,” such language does not carry a sexual connotation but rather expresses “emotions of anger, rage, frustration, grief, or perhaps excitement.” [para. 37]

The Supreme Court further identified another significant error in the High Court’s reasoning i.e., the standard used to determine obscenity. The Court referred to cases including Chandrakant Kalyandas Kakodkar v. State of Maharashtra and Aveek Sarkar v. State of West Bengal, and reiterated that the standard for assessing obscenity cannot be that of “an adolescent’s or child’s mind or a hypersensitive person who is susceptible to such influences”. [para. 39] The High Court’s use of the standard of “impressionable minds” is therefore deemed inappropriate and a misapplication of the established test for obscenity. 

Furthermore, the Supreme Court criticized the High Court’s approach concerning maintaining linguistic purity and civility. It stated that such considerations are irrelevant to the determination of obscenity under Section 67 of the IT Act. [para. 40] Thus the Court focused on the legal definition of obscenity rather than broader societal or cultural norms about language use. Furthermore, the Court rejected the notion that content must be appropriate for a Courtroom setting to be considered legal, arguing that such an approach “unduly curtails the freedom of expression.” [para. 41] 

In addressing the High Court’s anxiety about the free availability of the web series to youth, the Supreme Court provided a nuanced analysis of the balance between content regulation and freedom of expression. While acknowledging the legitimacy of such concerns, the Court held that regulating content containing profanities by criminalizing it as obscene is “a disproportionate and excessive measure that violates freedom of speech, expression, and artistic creativity.” [para. 42] 

The Court, based on a comprehensive examination of the legal framework for determining obscenity, highlighted the importance of context in assessing language use, and the potential implications of overly broad interpretations of obscenity laws. The Court emphasized the need for a holistic approach to determining obscenity, one that considers the creator’s intent, the overall impact of the work, and the standards of the average viewer rather than focusing solely on isolated instances of profane language.

In conclusion, the Supreme Court’s decision emphasizes the need for a holistic approach to determining obscenity, one that considers the creator’s intent, the overall impact of the work, and the standards of the average viewer rather than focusing solely on isolated instances of profane language. The Court’s reasoning consistently prioritizes the protection of freedom of expression while maintaining safeguards against truly obscene content.

On the question of content being “sexually explicit”

The Court analyzed whether Section 67A of the Information Technology Act applies to the complainant’s grievance, which concerns excessive use of vulgar expletives and profanities but does not involve any allegations of “sexually explicit act or conduct.” [para. 46-47] The Court Clarified that Section 67A criminalizes the publication or transmission of material in electronic form that contains sexually explicit acts or conduct. Although the terms “explicit,” “act,” and “conduct” are broad and open to interpretation, they must be understood within the context of obscenity as defined under Section 67. The Court further explained that sexually explicit content, even if not lascivious or appealing to prurient interests, could be presented in a way that does not tend to deprave or corrupt, such as in artistic or devotional forms. [para. 47]  Moreover, the Court held that the Delhi High Court failed to present any reason whatsoever on how Section 67A is attracted to the facts of the present case. Therefore, the offense of Section 67A is not at all made out. [para. 44-45]

The Court concluded that no offense under Sections 67 or 67A of the IT Act was made based on the allegations in the complaint. The complaint did not demonstrate any publication or transmission of material in electronic form that was obscene, lascivious, or appealing to prurient interests, nor did it show any material containing sexually explicit acts or conduct. The Court emphasized that when the allegations in an FIR or criminal complaint, taken at face value, do not disclose the commission of any offense, it is within the Court’s jurisdiction to quash such FIR or complaint.

Thus, the Court allowed the appeals against the High Court’s judgment dated March 6, 2023, in the relevant Criminal Miscellaneous Cases. It set aside the High Court’s judgment and quashed the FIR registered at Police Station Mukherjee Nagar, Delhi, under Sections 67 and 67A of the IT Act against the Appellants.

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