* Author
[2024] 3 S.C.R. 1147 : 2024 INSC 223
Apoorva Arora & Anr. Etc.
v.
State (Govt. of NCT of Delhi) & Anr.
(Criminal Appeal No. 1694-1695 of 2024)
19 March 2024
[A.S. Bopanna and Pamidighantam Sri Narasimha,* JJ.]
Issue for Consideration
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 u/ss.67 and 67A of the Information
Technology Act, 2000.
Headnotes
Information Technology Act, 2000 – ss.67, 67A – Penal Code,
1860 – s.292 – “obscenity” – Test for – Complaint filed that
Season 1, Episode 5 of the web-series ‘College Romance’,
titled ‘Happily F****d Up’, had vulgar and obscene language
in its title and various portions constituting offence inter alia
u/ss.292, 294, 509, Penal Code, 1860 and ss.67, 67A, IT Act –
High Court dismissed the petition filed by appellants (actors,
creators etc. of the web-series) for quashing the orders of
ACMM and ASJ directing registration of FIR against them,
and directed registration of FIR u/ss.67 and 67A, IT Act –
Correctness:
Held: High Court purportedly applied the community standard
test – However, it incorrectly framed the question for inquiry as to
whether the language employed in the episode was contemporarily
used by the youth and whether it met the threshold of decency
– Enquiry u/s.292, IPC or under s.67, IT Act does not hinge on
whether the language or words are decent, or whether they are
commonly used in the country – Rather, 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 – High Court found that the language was full of
swear words, profanities, and vulgar expletives that could not be
heard in open court and held that the content was obscene as
it would affect and tend to deprave and corrupt impressionable
1148 [2024] 3 S.C.R.
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minds – Specific material which it found to be obscene, was “foul,
indecent and profane” language – High Court equated profanities
and vulgarity with obscenity, without undertaking a proper or
detailed analysis into how such language, by itself, could be sexual,
lascivious, prurient, or depraving and corrupting – Vulgarity and
profanities do not per se amount to obscenity – Obscenity relates
to material that arouses sexual and lustful thoughts, which is not
at all the effect of the abusive language or profanities employed
in the episode – While the literal meaning of the terms used may
be sexual in nature and 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 – By taking the literal meaning of these words, High
Court failed to consider the specific material (profane language)
in the context of the larger web-series and by the standard of an
“ordinary man of common sense and prudence” – When the use
of such language is noticed in the context of the plot and theme of
the web-series, a light-hearted show on the college lives of young
students, it is clear that the use of these terms was not related
to sex and did not have any sexual connotation – Neither did the
creator of the web-series intend for the language to be taken in its
literal sense nor is that the impact on a reasonable viewer – There
was a clear error in the legal approach adopted by the High Court
in analysing and examining the material to determine obscenity
– Standard for determination cannot be an adolescent’s or child’s
mind, or a hypersensitive person susceptible to such influences –
High Court incorrectly used the standard of “impressionable minds”
to gauge the effect of the material and thus erred in applying the
test for obscenity correctly – No offence made out u/ss.67, 67A, IT
Act – Judgment of High Court set aside – FIR registered against
appellants u/ss.67 and 67A, IT Act, quashed. [Paras 33-35, 37,
39, 48 and 49]
Information Technology Act, 2000 – ss.67 – Penal Code, 1860
– s.292 – “obscenity” defined in s.292 and s.67 – Difference:
Held: “Obscenity” has been similarly defined in s.292 and s.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 s.67 is a special provision that applies
[2024] 3 S.C.R. 1149
Apoorva Arora & Anr. Etc. v. State (Govt. of Nct of Delhi) & Anr.
when the obscene material is published or transmitted in the
electronic form – Since, in the present case, the alleged offending
material is a web-series, the case is considered u/s.67, IT Act but
the same test for obscenity as laid down u/s.292 will apply since
the provisions are similarly worded in that respect. [Para 12]
Penal Code, 1860 – s.292 – “Obscenity” – Material if obscene
– Process and method to objectively judge – Discussed.
Information Technology Act, 2000 – s.67A – ‘sexually explicit
act or conduct’ – s.67A when not attracted:
Held: Facts of the present case do not attract s.67A as the
complainant’s grievance was about excessive usage of vulgar
expletives, swear words, and profanities – There was no allegation
of any ‘sexually explicit act or conduct’ in the complaint and as
such, s.67A does not get attracted – High Court did not give any
reason whatsoever on how s.67A was attracted to the facts of
the present case – Offence of s.67A not made out. [Para 45, 46]
Penal Code, 1860 – s.292 – “Obscenity” – Hicklin test;
“Community Standard Test” – Discussed – Precedents on
s.292 traced.
Information Technology Act, 2000 – ss.67A, 67 – “explicit”,
“act”, “conduct” – ‘obscenity’:
Held: s.67A criminalises 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 s.67 – Thus, there
could be a connect between s.67A and s.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. [Para 47]
Case Law Cited
Sharat Babu Digumarti v. Government (NCT of Delhi)
[2016] 8 SCR 1015 : (2017) 2 SCC 18 : 2016 INSC
1131; Aveek Sarkar v. State of West Bengal [2014] 2
1150 [2024] 3 S.C.R.
Digital Supreme Court Reports
SCR 263 : (2014) 4 SCC 257 : 2014 INSC 75; Samaresh
Bose v. Amal Mitra [1985] Suppl. 3 SCR 17 : (1985)
4 SCC 289 : 1985 INSC 205; Bobby Art International
v. Om Pal Singh Hoon [1996] Suppl. 2 SCR 136 :
(1996) 4 SCC 1 : 1996 INSC 595; K.A. Abbas v. Union
of India [1971] 2 SCR 446 : (1970) 2 SCC 780 : 1970
INSC 200; Ramesh s/o Chotalal Dalal v. Union of India
[1988] 2 SCR 1011 : (1988) 1 SCC 668 : 1988 INSC
44; Sakshi v. Union of India [2004] Suppl. 2 SCR 723 :
(2004) 5 SCC 518 : 2004 INSC 383; Sanjay Dutt v.
State through CBI, Bombay (II) [1994] Suppl. 3 SCR
263 : (1994) 5 SCC 410 : 1994 INSC 371; Girdhari Lal
Gupta v. D.H. Mehta (1971) 3 SCC 189 : 1970 INSC
164; Union of India v. Rajiv Kumar [2003] Suppl. 1
SCR 597 : (2003) 6 SCC 516 : 2003 INSC 320; US
Technologies International (P) Ltd. v. Commissioner
of Income Tax [2023] 4 SCR 382 : (2023) 8 SCC 24 :
2023 INSC 329; Devidas Ramachandra Tuljapurkar
v. State of Maharashtra [2015] 7 SCR 853 : (2015) 6
SCC 1 : 2015 INSC 414; Ranjit D. Udeshi v. State of
Maharashtra [1965] 1 SCR 65 : AIR 1965 SC 881, 1964
INSC 171; Shri Chandrakant Kalyandas Kakodkar v.
State of Maharashtra [1970] 2 SCR 80 : (1969) 2 SCC
687 : 1969 INSC 202; Director General, Directorate
General of Doordarshan v. Anand Patwardhan [2006]
Suppl. 5 SCR 403 : (2006) 8 SCC 433 : 2006 INSC
558; Ajay Goswami v. Union of India [2006] Suppl.
10 SCR 770 : (2007) 1 SCC 143 : 2006 INSC 995; S.
Khushboo v. Kanniammal [2010] 5 SCR 322 : (2010) 5
SCC 600 : 2010 INSC 247; N. Radhakrishnan v. Union
of India [2018] 11 SCR 1 : (2018) 9 SCC 725 : 2018
INSC 784; NS Madhanagopal v. K. Lalitha [2022] 15
SCR 649 : 2022 SCC OnLine SC 2030 : 2022 INSC
1323 – referred to.
Vijesh v. State of Kerala 2021 SCC OnLine Ker 854;
Pramod Anand Dhumal v. State of Maharashtra (2021)
SCC OnLine Bom 34; Majeesh K. Mathew v. State of
Kerala 2018 SCC OnLine Ker 23374; Ritesh Sidhwani
v. State of U.P. 2021 SCC OnLine All 856; Jaykumar
Bhagwanrao Gore v. State of Maharashtra 2017 SCC
OnLine Bom 7283; G. Venkateswara Rao v. State of
AP Writ Petition 1420 of 2020; Jaykumar Bhagwanrao
[2024] 3 S.C.R. 1151
Apoorva Arora & Anr. Etc. v. State (Govt. of Nct of Delhi) & Anr.
Gore v. State of Maharashtra 2017 SCC OnLine Bom
7283; Pramod Anand Dhumal v. State of Maharashtra
2021 SCC OnLine Bom 34; Ekta Kapoor v. State of
MP 2020 SCC OnLine MP 4581 – referred to.
Roth v. United States 354 US 476 (1957); R v. Butler
(1992) 1 SCR 452 – referred to.
List of Acts
Information Technology Act, 2000; Penal Code, 1860; Code of
Criminal Procedure, 1973; Indecent Representation of Women
(Prohibition) Act, 1986.
List of Keywords
Web-series; Publication and transmission of obscene and sexually
explicit content; Obscenity; Expletives; Vulgar expletives; Profane
language; Profanities; Sexually explicit content; Obscene language;
Swear words, Foul indecent language; Hicklin test; “Community
standard test”; Quashing.
Case Arising From
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos.
1694-1695 of 2024
From the Judgment and Order dated 06.03.2023 of the High Court of
Delhi at New Delhi in CRLMC Nos. 2399 and 2215 of 2020
With
Criminal Appeal Nos. 1697, 1696 and 1698 of 2024
Appearances for Parties
K.M.Nataraj, A.S.G., Mukul Rohatgi, Sajan Poovayya, Mrs. Madhavi
Divan, Harish Salve, Sr. Advs., Ameet Naik, Mahesh Agarwal,
Ankur Saigal, Ms. Madhu Gadodiaya, Ms. S. Lakshmi Iyer, Chirag
Nayak, Ms. Sanjanthi Sajan Poovayya, Abhishek Kakker, Devansh
Srivastava, Ms. Raksha Agarwal, Ms. Kajal Dalal, E. C. Agrawala,
Ms. Madhu Gadodia, Harshvardhan Jha, Raghav Shankar, Mrs.
Yugandhara Pawar Jha, Sujoy Mukherjee, Ms. Tarini Kulkarni, Aman
Pathak, Ms. Pallavi Mishra, Shreekant Neelappa Terdal, Sharath
Nambiar, Sanjay Kr.Tyagi, Sridhar Potaraju, Ms. Nidhi Khanna,
Karthik Jasra, Dr. Arun Kumar Yadav, Arvind Singh, Advs. for the
appearing parties.
1152 [2024] 3 S.C.R.
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Judgment / Order of the Supreme Court
Judgment
Pamidighantam Sri Narasimha, J.
1. Leave granted.
2. The appellants/accused are the actors, casting director, script writers,
creator of the web-series ‘College Romance’1
, and the media company
that owns the YouTube channel on which the web-series was hosted2
.
They are sought to be investigated and prosecuted for production,
transmission, and online publication of obscene and sexually-explicit
material under Sections 67 and 67A of the Information Technology
Act, 20003
. The appellants’ petition under Section 482 of the Code of
Criminal Procedure, 19734
for quashing the orders of the Additional
Chief Metropolitan Magistrate and Additional Sessions Judge directing
registration of FIR against them was dismissed by the High Court
by the order impugned before us.5
Having considered the matter in
detail and for the reasons to follow, we have allowed the appeal, set
aside the judgment of the High Court, and quashed the FIR bearing
number 403/2023 dated 16.04.2023 at PS Mukherjee Nagar, Delhi
against the appellants under Sections 67 and 67A of the IT Act.
3. Facts: The short facts leading to filing of the present appeal are as
follows:
3.1 A complaint was filed by respondent no. 2 before the Assistant
Commissioner of Police that Season 1, Episode 5 of the webseries, titled ‘Happily F****d Up’, has vulgar and obscene
language in its title and various portions of the episode,
constituting an offence under Sections 292, 294 and 509 of the
Indian Penal Code6
, Sections 67 and 67A of the IT Act, and
Sections 2(c) and 3 of the Indecent Representation of Women
1 TVF Media Labs Private Ltd.
2 Contagious Online Media Network Pvt Ltd.
3 ‘IT Act’ hereinafter.
4 ‘CrPC’ hereinafter.
5 In Criminal Miscellaneous Case No. 2399 of 2020, Criminal Miscellaneous Case No. 2215 of 2020
and Criminal Miscellaneous Case No. 2214 of 2020, judgment dated 06.03.2023 (‘Impugned judgment’
hereinafter).
6 ‘IPC’ hereinafter.
[2024] 3 S.C.R. 1153
Apoorva Arora & Anr. Etc. v. State (Govt. of Nct of Delhi) & Anr.
(Prohibition) Act, 19867
. On 13.03.2019, the complainant filed
an application under Section 200 read with Section 156(3) of
the CrPC before the ACMM seeking registration of FIR. The
Investigating Officer conducted an enquiry and filed an Action
Taken Report on 09.04.2019 stating that no cognisable offence
is made out and in fact, there is no obscenity in the allegedly
offending content.
3.2 However, the ACMM, by order dated 17.09.2019, allowed the
complainant’s application and directed the registration of an FIR
against the appellants under Sections 292 and 294 of the IPC
and Sections 67 and 67A of the IT Act as the vulgar language
used is prima facie capable of appealing to prurient interests
of the audience and is hence obscene.
3.3 The appellants filed a revision petition before the Additional
Sessions Judge, who by order dated 10.11.2020 partially
modified the order of the ACMM and directed the registration
of FIR only under Sections 67 and 67A of the IT Act by relying
on the decision of this Court in Sharat Babu Digumarti v.
Government (NCT of Delhi)8
.
3.4 The appellants then filed a petition under Section 482 CrPC
before the High Court for quashing the above-mentioned orders,
which came to be dismissed by the judgment dated 06.03.2023,
impugned herein. Against the dismissal and the consequent
direction to register FIR under Sections 67 and 67A of the IT
Act, the present appeals are filed by all the accused/appellants.
3.5 Pursuant to the directions of the High Court, an FIR was
registered under Sections 67 and 67A of the IT Act against the
appellants on 16.04.2023.
4. Reasoning of the High Court: The High Court, while dismissing the
petition for quashing, held that the object of Sections 67 and 67A of
the IT Act is to punish the publication and transmission of obscene and
sexually explicit material in the cyber space. It relied on the ‘community
standard test’ to determine whether the material is obscene, as laid
7 ‘IRWP Act’ hereinafter.
8 [2016] 8 SCR 1015 : (2017) 2 SCC 18 : 2016 INSC 1131
1154 [2024] 3 S.C.R.
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down by this Court in Aveek Sarkar v. State of West Bengal 9 and
followed in decisions of various High Courts10. By applying this test, the
High Court held as follows: First, applying the standard of a common
prudent man, it found that the episode did not use civil language
and there was excessive use of profanities and vulgar expletives,
and a clear description and reference to sexually explicit acts. The
determination of how the content impacts a common man must be
determined in the Indian context, as per Indian morality, keeping in
mind contemporary standards of civility and morality.11 In the allegedly
offending portion (in Season 1, episode 5 from 5:24 to 6:40 minutes
and 25:28 to 25:46 minutes), the male protagonist in a conversation
with the female protagonist uses terms describing male and female
genitalia and sexual acts, thereby making them sexually explicit and
arousing prurient feelings. While the female protagonist is heard
objecting to the language and expressing disgust over it, she does so
by repeating the same to the male protagonist. The male protagonist
then uses more vulgar expletives and indecent language, which is
repeated by the female protagonist in a later part of the episode.
The High Court held that the depiction of a sexually explicit act is not
necessarily through filming but can also be through spoken language.
It was found that the persons who are likely to be affected or persons
whom such content can deprave or corrupt are impressionable minds
in the present case, as there is no disclaimer or warning that classifies
the web-series as being suitable only for persons who are 18 years
or above. The content crossed the threshold of decency considering
its availability to the public, including children. Further, the Court felt
that the episode could not be heard in the courtroom without shocking
or alarming the people and to maintain the decorum of language.
5. Second, a representation that the language used in the episode is the
one used in the country and by its youth in educational institutions is
not protected under the guarantee of freedom of speech under Article
19(1)(a). Third, that the online content curator and the intermediaries
9 [2014] 2 SCR 263 : (2014) 4 SCC 257 : 2014 INSC 75
10 G. Venkateswara Rao v. State of AP in Writ Petition 1420 of 2020; Jaykumar Bhagwanrao Gore v. State
of Maharashtra 2017 SCC OnLine Bom 7283; Pramod Anand Dhumal v. State of Maharashtra 2021 SCC
OnLine Bom 34; Ekta Kapoor v. State of MP 2020 SCC OnLine MP 4581, as cited in paras 23-26 of the
impugned judgment.
11 In para 37 of the impugned judgment, the High Court relied on Samaresh Bose v. Amal Mitra [1985]
Suppl. 3 SCR 17 : (1985) 4 SCC 289 : 1985 INSC 205 where it was held that the regard must be given
to contemporary morals and national standards in judging whether content is obscene.
[2024] 3 S.C.R. 1155
Apoorva Arora & Anr. Etc. v. State (Govt. of Nct of Delhi) & Anr.
are in violation of the Information Technology (Intermediary Guidelines
and Digital Media Ethics Code) Rules, 2021 as the content has not
been correctly classified as ‘A-rated’ and there is no warning regarding
the use of profanities and expletives. Lastly, the Court took note that
vulgar language, profanities, and swear words must be regulated
in the public domain and on social media platforms as they are a
threat to impressionable minds like children of tender age. Further,
a representation that the use of such language in general parlance
is the “new normal” is a distortion of facts as it is still not spoken
in the presence of the elderly, women and children, or at religious
places. To maintain linguistic morality, the sanctity and reverence of
languages must be protected.
6. The High Court also rejected the appellants’ contention that the
mandatory procedure under Section 154(3) of the CrPC, which is
an important procedural safeguard, was not followed before resort to
Section 156(3). The High Court preliminarily negatived this submission
by holding that Section 154(3) only uses the term “may” and not
“shall”, and that the complainant anyways approached the ACP,
Cyber Cell, North District, who is the authority higher to the SHO.
7. Submissions of the Appellants: We heard Mr. Mukul Rohatgi, Mr.
Harish Salve, Ms. Madhavi Divan, Mr. Sajan Poovayya, Sr. Advocates.
Learned senior counsels for the appellants have argued that the
allegedly offending portions of Season 1, Episode 5 of the webseries do not meet the threshold for obscenity and that the High
Court has erred in characterising the material as obscene. Further,
these portions do not contain any sexually explicit act and as such
no offence under Sections 67 or 67A of the IT Act is made out.
Elaborating their submissions, the appellants’ argued:
7.1 Section 67 of the IT Act, that criminalises the publication and
transmission of obscene material in electronic form, covers
material which is lascivious or appeals to the prurient interest
or if its effect is such as to tend 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. As
per Aveek Sarkar (supra), the determination of whether some
material is obscene must be made by the ‘community standard
test’ by considering the work as a whole and then looking at
the specific material that has been alleged to be obscene in
1156 [2024] 3 S.C.R.
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the context of the whole work. The web-series is a romantic
comedy that traces the life of a group of friends who are in
college. Its intention is to paint a relatable picture of college life
in a cosmopolitan urban setting. There are two specific portions
that have been alleged to be obscene. The first segment is
where the male protagonist, named Bagga, indiscriminately
uses expletives that are heard by the female protagonist, named
Naira. Naira objects to the use of such language and points out
that the literal meaning of the terms is absurd. Bagga states
that these terms are not meant to be taken literally and are
a part of common parlance. Naira reiterates her disapproval
and threatens Bagga with consequences if he continues to
speak in such a manner. Bagga ‘inadvertently’ uses another
expletive, due to which Naira leaves from there. In the second
segment, Naira and Bagga are with a wider group of friends
where Naira is incensed by the statements of another friend
and angrily uses the same expletives as Bagga, at which Bagga
is delighted. Learned senior counsel has argued that when
these scenes are considered individually and in the context of
the web-series as a whole, they are not obscene. They only
portray the absurdity of the literal meaning of these terms and
show their inevitable presence in common language, including
by those who disapprove of their use.
7.2 Relying on Samaresh Bose v. Amal Mitra12 and Bobby Art
International v. Om Pal Singh Hoon13, learned senior counsel
has argued that while the alleged portions are vulgar, vulgarity
does not equate to obscenity. Mere words cannot amount to
obscenity unless they involve lascivious elements that arouse
sexual thoughts and feelings, which is not the effect of the
scenes in the present case.
7.3 The effect of the words must be tested from the standard of an
“ordinary man of common sense and prudence”14, “reasonable,
strong-minded, firm and courageous” person and not from the
perspective of a hypersensitive person or a weak and vacillating
12 [1985] Suppl.. 3 SCR 17 : (1985) 4 SCC 289 : 1985 INSC 205
13 [1996] Suppl. 2 SCR 136 : (1996) 4 SCC 1 : 1996 INSC 595
14 K.A. Abbas v. Union of India [1971] 2 SCR 446 : (1970) 2 SCC 780 : 1970 INSC 200
[2024] 3 S.C.R. 1157
Apoorva Arora & Anr. Etc. v. State (Govt. of Nct of Delhi) & Anr.
mind15. The terms used in the allegedly offending portions do
not refer to any sexually explicit act and are not obscene as per
the community standard test. Therefore, no offence of obscenity
is made out under Section 67 of the IT Act.
7.4 Learned senior counsel has also argued that the scenes do
not contain any sexually explicit act or conduct, as is required
for an offence under Section 67A. Relying on various cases
by this Court,16 they argue that the words in a penal provision
must be strictly interpreted. The term ‘sexually explicit act or
conduct’ does not cover profanities/ expletives/ swear words,
even if the literal meaning of these terms refers to sexual acts.
The literal meaning is not intended through the common usage
of these words. Rather, they are an expression of emotions
such as frustration, rage, and anger.
7.5 Learned senior counsel has also relied on the 50th Standing
Committee Report on the 2006 Amendment Bill to the IT Act that
introduced the provision, and various High Court decisions,17
to argue that the intention of Section 67A is to criminalise the
publication and transmission of pornographic material that
depicts sexual acts or contains sexually explicit conduct that
falls short of actual depiction of sexual acts. Since the alleged
segments in this case only contain expletives and do not contain
any explicit visual or verbal depiction of sexual activity, there
is no offence under Section 67A.
7.6 It is of course rightly argued that the right to freedom of speech
under Article 19(1)(a) protects artistic creativity and expression.
7.7 Lastly, the learned senior counsel has argued that a higher
threshold of tolerance must apply in the present case as the
web-series is a form of “pull media”. In pull media, the consumer
15 Ramesh s/o Chotalal Dalal v. Union of India [1988] 2 SCR 1011 : (1988) 1 SCC 668 : 1988 INSC 44
16 Sakshi v. Union of India [2004] Suppl. 2 SCR 723 : (2004) 5 SCC 518 : 2004 INSC 383; Sanjay Dutt v.
State through CBI, Bombay (II) [1994] 3 SCR 263 : (1994) 5 SCC 410 : 1994 INSC 371; Girdhari Lal
Gupta v. D.H. Mehta, (1971) 3 SCC 189 : 1970 INSC 164; Union of India v. Rajiv Kumar [2003] Suppl. 1
SCR 597 : (2003) 6 SCC 516 : 2003 INSC 320; US Technologies International (P) Ltd. v. Commissioner
of Income Tax [2023] 4 SCR 382 : (2023) 8 SCC 24 : 2023 INSC 329
17 Vijesh v. State of Kerala, 2021 SCC OnLine Ker 854; Pramod Anand Dhumal v. State of Maharashtra,
(2021) SCC OnLine Bom 34; Majeesh K. Mathew v. State of Kerala, 2018 SCC OnLine Ker 23374;
Ritesh Sidhwani v. State of U.P., 2021 SCC OnLine All 856; Jaykumar Bhagwanrao Gore v. State of
Maharashtra, 2017 SCC OnLine Bom 7283
1158 [2024] 3 S.C.R.
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has more choice in deciding whether or not they wish to view
some particular content. Unlike television or radio, where
obscene material may be publicly broadcasted and there is
little to no choice to the users in terms of what content is made
available, the consumption of pull media over the internet gives
the viewer complete control and decision-making over what
they watch. Therefore, the web-series is only available and
accessible to those persons who wish to view it, and hence a
higher threshold of obscenity must be applied to “pull content”.
8. Submissions of the complainant: We have heard learned counsel Mr.
Arvind Singh, advocate-in-person, who is the complainant (respondent
no. 2). He has argued that the present case is not fit for quashing.
The alleged content of the web-series falls within the purview of
Sections 67 and 67A of the IT Act and also offends Sections 3
and 4 of the Indecent Representation of Women (Prohibition) Act,
1986, which the High Court has failed to consider. Relying on the
community standard test and the judgments of this Court in Aveek
Sarkar (supra) and Devidas Ramachandra Tuljapurkar v. State of
Maharashtra18, learned counsel has argued that the abovementioned
portions of the web-series are obscene and sexually explicit. First,
the material appeals to prurient interest in sex, as determined by the
average person applying contemporary community standards. The
titles of the episodes and the plot revolves around college students
engaging in sexual activity. The content of the episodes also uses
sexually explicit language and expletives, which cannot be termed
as the “new normal”. Second, the material portrays sexual conduct
in a patently offensive way. Third, the material lacks serious literary,
artistic, political or scientific value. Fourth, the material tends to
arouse sexually impure thoughts. Fifth, the material is not in the
larger interest of public good or in the interest of art, literature,
science and therefore, the obscenity is not justified. Learned counsel
has also pointed out that the material in the present case is freely
available on the internet and is accessible to any person, including
children and hence must be regulated in the interests of public order,
morality, and decency.
9. Analysis: The central issue is whether the use of expletives and
18 [2015] 7 SCR 853 : (2015) 6 SCC 1 : 2015 INSC 414
[2024] 3 S.C.R. 1159
Apoorva Arora & Anr. Etc. v. State (Govt. of Nct of Delhi) & Anr.
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. We will examine each of these
provisions in the context of ‘obscenity’ for the purpose of Section
67 and ‘sexually explicit material’ for the purpose of Section 67A.
A. Whether the material is ‘obscene’:
10. We will first deal with the contention that the material is obscene.
Section 67 of the IT Act is as follows:
“67. Punishment for publishing or transmitting obscene
material in electronic form.–Whoever publishes or
transmits or causes to be published or transmitted in the
electronic form, any material which is lascivious or appeals
to the prurient interest or if its effect is such as to tend
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, shall be punished
on first conviction with imprisonment of either description
for a term which may extend to three years and with fine
which may extend to five lakh rupees and in the event of
second or subsequent conviction with imprisonment of
either description for a term which may extend to five years
and also with fine which may extend to ten lakh rupees.”
11. This Court has laid down the meaning, test, standard, and method
for determining whether some material is obscene in the context of
Section 292 of the IPC.
12. Section 292 defines ‘obscene’ as a book, pamphlet, paper, writing,
drawing, painting, representation, figure or any other object that is
lascivious, appeals to the prurient interest, or has such effect, if
taken as a whole, that tends to deprave and corrupt persons who are
likely to read, see or hear the matter contained in it. The provision
criminalises the sale, distribution, public exhibition, circulation, import,
export, etc of obscene material. The provision excludes such material
when the publication is justified as being for public good on the
ground that it is in the interest of science, art, literature, or learning
or other objects of general concern; such material is kept or used for
bona fide religious purposes; it is sculptured, engraved, painted or
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represented on or in ancient monuments and temples. The relevant
portion of Section 292 has been extracted for reference:
“292. Sale, etc., of obscene books, etc.—(1) For the
purposes of sub-section (2), a book, pamphlet, paper,
writing, drawing, painting, representation, figure or any
other object, shall be deemed to be obscene if it is
lascivious or appeals to the prurient interest or if its effect,
or (where it comprises two or more distinct items) the effect
of any one of its items, is, if taken as a whole, such as
to tend 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.”
It is evident that “obscenity” has been similarly defined in Section
292 and Section 67 as material which is:
i. lascivious; or
ii. appeals to the prurient interest; or
iii. 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 Act20 but the same test for obscenity as laid down under
Section 292 will apply since the provisions are similarly worded in that
respect. In this context we will examine how obscenity is understood.
13. Recounting the development through judicial precedents: This Court
upheld the constitutional validity of Section 292 as a reasonable
restriction on free speech and applied the Hicklin test21 to determine
whether the book ‘Lady Chatterley’s Lover’ was obscene in the
decision of Ranjit D. Udeshi v. State of Maharashtra.22 As per the
19 Sharat Babu Digumarti (supra)
20 ibid.
21 (1868) LR 3 QB 360
22 [1965] 1 SCR 65 : AIR 1965 SC 881 : 1964 INSC 171
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Apoorva Arora & Anr. Etc. v. State (Govt. of Nct of Delhi) & Anr.
Hicklin test, a material is obscene if it has the tendency to deprave and
corrupt the minds of those who are open to such immoral influences
and into whose hands the publication is likely to fall:23
“… I think the test of obscenity is this, whether the tendency
of the matter charged as obscenity is to deprave and
corrupt those whose minds are open to such immoral
influences, and into whose hands a publication of this
sort may fall … it is quite certain that it would suggest to
the minds of the young of either sex, or even to persons
of more advanced years, thoughts of a most impure and
libidinous character.”
14. This test lays emphasis on the potentiality of the material to deprave
and corrupt by immoral influences.24 To determine this, the Court
must apply itself to consider each work at a time. It must take an
overall view of the obscene matter in the setting of the whole work
but also consider the obscene matter by itself and separately to
find out whether it is so grossly obscene and it is likely to deprave
and corrupt. A mere stray word or insignificant passage would not
suffice to qualify the material as obscene.25 The Court also clarified
that sex and nudity in art and literature cannot in and of themselves
be regarded as evidence of obscenity without something more.26
Sex must be treated in manner that is offensive to public decency
and morality, when judged by our national standards, and must be
likely to pander to lascivious, prurient, sexually precocious minds,
and appeal to or have the tendency to appeal to the “carnal side of
human nature” for it to be obscene.27
15. The Court also emphasised its role in maintaining a delicate balance
between protecting freedom of speech and artistic freedom on the
one hand, and public decency and morality on the other. It held that
when art and obscenity are mixed, the art must be so preponderating
that the obscenity is pushed into the shadows or is trivial and
23 ibid, para 14
24 ibid, para 19
25 ibid, 20, 21
26 ibid, para 16
27 ibid, paras 21 and 22
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insignificant and can be overlooked.28 Similarly, if the matter has a
preponderating social purpose and gain that overweighs the obscenity
of the content (such as medical textbooks), then such material is
constitutionally protected by freedom of speech and cannot be
criminalised as obscene.29
16. The Court followed the Hicklin test and Ranjit Udeshi (supra) in Shri
Chandrakant Kalyandas Kakodkar v. State of Maharashtra30 but it
also introduced certain caveats and refined the test to some extent.
Considering the material in that case, a Marathi short story Shama,
the Court held that the story read as a whole does not amount to
pornography or pander to the prurient interest. Even if the work is
not of high literary quality and is immature and of bad taste, there
was nothing that could deprave or corrupt those in whose hands it
is likely to fall, including adolescents.31 The Court also cautioned
that the standard for the artist or the writer is not that the adolescent
mind must not be brought in contact with sex or that the work must
be expunged of all references to sex, irrespective of whether it is the
dominant theme.32 The test for obscenity was stated as: “What we
have to see is that whether a class, not an isolated case, into whose
hands the book, article or story falls suffer in their moral outlook or
become depraved by reading it or might have impure and lecherous
thoughts aroused in their minds.”
33
17. In KA Abbas v. Union of India34 the Court summarised the test and
process to determine obscenity as follows:
“(1) Treating with sex and nudity in art and literature
cannot be regarded as evidence of obscenity without
something more.
(2) Comparison of one book with another to find the
extent of permissible action is not necessary.
28 ibid, para 21
29 ibid, paras 9, 22, and 29
30 [1970] 2 SCR 80 : (1969) 2 SCC 687 : 1969 INSC 202
31 ibid, paras 9 and 10
32 ibid, para 12
33 ibid, para 12
34 (1970) 2 SCC 780, para 48
[2024] 3 S.C.R. 1163
Apoorva Arora & Anr. Etc. v. State (Govt. of Nct of Delhi) & Anr.
(3) The delicate task of deciding what is artistic and
what is obscene has to be performed by courts and
in the last resort, by the Supreme Court and so, oral
evidence of men of literature or others on the question
of obscenity is not relevant.
(4) An overall view of the obscene matter in the setting
of the whole work would of course be necessary but
the obscene matter must be considered by itself and
separately to find out whether it is so gross and its
obscenity is so decided that it is likely to deprave or
corrupt those whose minds are open to influence of
this sort and into whose hands the book is likely to fall.
(5) The interests of contemporary society and particularly
the influence of the book, etc., on it must not be
overlooked.
(6) Where obscenity and art are mixed, art must be so
preponderating as to throw obscenity into shadow or
render the obscenity so trivial and insignificant that it
can have no effect and can be overlooked.
(7) Treating with sex in a manner offensive to public
decency or morality which are the words of our
Fundamental Law judged by our national standards
and considered likely to pender to lescivious, pourlent
or sexually precocious minds must determine the
result.
(8) When there is propagation of ideas, opinions and
informations or public interests or profits, the interests
of society may tilt the scales in favour of free speech
and expression. Thus books on medical science with
intimate illustrations and photographs though in a
sense immodest, are not to be considered obscene,
but the same illustrations and photographs collected
in a book form without the medical text would certainly
be considered to be obscene.
(9) Obscenity without a preponderating social purpose or
profit cannot have the constitutional protection of free
speech or expression. Obscenity is treating with sex
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in a manner appealing to the carnal side of human
nature or having that tendency. Such a treating with
sex is offensive to modesty and decency.
(10) Knowledge is not a part of the guilty act. The offender’s
knowledge of the obscenity of the book is not required
under the law and it is a case of strict liability.”
18. In Samaresh Bose (supra), which has been relied on by the appellants,
this Court differentiated vulgarity from obscenity. The material in
question in this case was a Bengali novel titled ‘Prajapati’. The
Court noted that while slang and unconventional words had been
used in the book along with suggestions of sexual acts, there was
no description of any overt act of sex. The words are vulgar and
create a feeling of disgust and revulsion and may shock the reader
but this does not necessarily amount to obscenity, which is the
tendency to deprave and corrupt.35 It held that the use of slang and
unconventional words; an emphasis on sex; a description of female
bodies; and narrations of feelings, thoughts and actions in vulgar
language in the novel do not render the material obscene.36 Further,
a mere reference to sex is insufficient for obscenity and does not
make a material unsuitable for adolescents.37
19. The Court also summarised the process that must be followed to
objectively assess whether some material is obscene. It held that
the judge must first place himself in the position of the author to
understand his perspective and what he seeks to convey and whether
it has any literary or artistic value. The judge must then place himself
in the position of a reader of every age group in whose hands the
book (or material) is likely to fall and determine the possible effect or
influence of the material on the minds of such persons. The relevant
portion reads:
“29. …As laid down in both the decisions of this Court
earlier referred to, “the question whether a particular article
or story or book is obscene or not does not altogether
depend on oral evidence, because it is the duty of the court
35 Samaresh Bose (supra), para 35
36 ibid, para 35
37 ibid, para 35
[2024] 3 S.C.R. 1165
Apoorva Arora & Anr. Etc. v. State (Govt. of Nct of Delhi) & Anr.
to ascertain whether the book or story or any passage or
passages therein offend the provisions of Section 292 IPC”.
In deciding the question of obscenity of any book, story or
article the court whose responsibility it is to adjudge the
question may, if the court considers it necessary, rely to an
extent on evidence and views of leading literary personage,
if available, for its own appreciation and assessment and
for satisfaction of its own conscience. The decision of the
court must necessarily be on an objective assessment of
the book or story or article as a whole and with particular
reference to the passages complained of in the book,
story or article. The court must take an overall view of
the matter complained of as obscene in the setting of
the whole work, but the matter charged as obscene must
also be considered by itself and separately to find out
whether it is so gross and its obscenity so pronounced
that it is likely to deprave and corrupt those whose minds
are open to influence of this sort and into whose hands
the book is likely to fall. Though the court must consider
the question objectively with an open mind, yet in the
matter of objective assessment the subjective attitude of
the Judge hearing the matter is likely to influence, even
though unconsciously, his mind and his decision on the
question. A Judge with a puritan and prudish outlook may
on the basis of an objective assessment of any book or
story or article, consider the same to be obscene. It is
possible that another Judge with a different kind of outlook
may not consider the same book to be obscene on his
objective assessment of the very same book. The concept
of obscenity is moulded to a very great extent by the
social outlook of the people who are generally expected
to read the book. It is beyond dispute that the concept of
obscenity usually differs from country to country depending
on the standards of morality of contemporary society in
different countries. In our opinion, in judging the question
of obscenity, the Judge in the first place should try to
place himself in the position of the author and from the
viewpoint of the author the Judge should try to understand
what is it that the author seeks to convey and whether
what the author conveys has any literary and artistic
1166 [2024] 3 S.C.R.
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value. The Judge should thereafter place himself in the
position of a reader of every age group in whose hands
the book is likely to fall and should try to appreciate what
kind of possible influence the book is likely to have in the
minds of the readers. A Judge should thereafter apply his
judicial mind dispassionately to decide whether the book in
question can be said to be obscene within the meaning of
Section 292 IPC by an objective assessment of the book
as a whole and also of the passages complained of as
obscene separately. In appropriate cases, the court, for
eliminating any subjective element or personal preference
which may remain hidden in the subconscious mind and
may unconsciously affect a proper objective assessment,
may draw upon the evidence on record and also consider
the views expressed by reputed or recognised authors
of literature on such questions if there be any for his
own consideration and satisfaction to enable the court
to discharge the duty of making a proper assessment.”
20. The Court then applied this test to the novel in question. By placing
themselves in the position of the author and judging the work from
his perspective, the Court found that his intention was to expose
social evils and ills, for which the author has used his own technique.
Similarly, the Court placed itself in the position of the readers who
are likely to read the book. It held that the book was likely to be
read by readers of “both sexes and all ages between teenagers and
the aged” and found that while it may create a sense of shock and
disgust, no reader would be depraved, debased, or encouraged to
lasciviousness by reading the book.38
21. In Bobby Art International (supra) the question before the Court was
whether certain scenes from the film ‘Bandit Queen’ that depicted
rape and nudity were obscene. Here, obscenity was not considered
under Section 292 but under the 1991 Guidelines for Censor Board
certification under the Cinematograph Act, 1952.39 The Court did not
38 ibid.
39 The relevant guidelines, as extracted in Bobby Art International (supra), are as follows:
“15. The guidelines earlier issued were revised in 1991. Clause (1) thereof reads thus:
“1. The objectives of film certification will be to ensure that—
(a) the medium of film remains responsible and sensitive to the values and
standards of society;
[2024] 3 S.C.R. 1167
Apoorva Arora & Anr. Etc. v. State (Govt. of Nct of Delhi) & Anr.
cite or follow the Hicklin test as laid down in Ranjit Udeshi (supra) and
Chandrakant Kalyandas (supra). Instead, it relied on the Guidelines
and laid down the test for obscenity as follows:
“22. The guidelines aforementioned have been carefully
drawn. They require the authorities concerned with film
certification to be responsive to the values and standards of
society and take note of social change. They are required
to ensure that “artistic expression and creative freedom
are not unduly curbed”. The film must be “judged in its
entirety from the point of view of its overall impact”. It must
also be judged in the light of the period depicted and the
contemporary standards of the people to whom it relates,
but it must not deprave the morality of the audience. Clause
2 requires that human sensibilities are not offended by
vulgarity, obscenity or depravity, that scenes degrading
or denigrating women are not presented and scenes of
sexual violence against women are avoided, but if such
scenes are germane to the theme, they be reduced to a
minimum and not particularised.”
22. The Court first considered the plot and theme of the film as a whole
and then considered the individual scenes of nudity and rape. Judging
the work as a whole and the alleged offending material specifically, the
Court held that the scenes are likely to evoke tears, pity, horror, and
shame. Only a perverted mind might be aroused in such a situation,
(b) artistic expression and creative freedom are not unduly curbed;
(c) certification is responsive to social change;
(d) the medium of film provides clean and healthy entertainment; and
(e) as far as possible, the film is of aesthetic value and cinematically of a good
standard.”
Clause (2) states that the Board of Film Censors shall ensure that—
“2. (vii) human sensibilities are not offended by vulgarity, obscenity or depravity;
***
(ix) scenes degrading or denigrating women in any manner are not presented;
(x) scenes involving sexual violence against women like attempt to rape, rape or
any form of molestation or scenes of a similar nature are avoided, and if any such
incident is germane to the theme, they shall be reduced to the minimum and no
details are shown;
***”
Clause (3) reads thus:
“3. The Board of Film Certification shall also ensure that the film—
(i) is judged in its entirety from the point of view of the overall impact; and
(ii) is examined in the light of the period depicted in the film and the contemporary
standards of the country and the people to which the film relates, provided that the
film does not deprave the morality of the audience.”
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and the purpose of censorship is not to protect the pervert or assuage
the susceptibilities of the over-sensitive.40 Further, the use of swear
words and expletives that are heard everyday was also held to be
harmless.41 The Court rather emphasised the overarching social
purpose and message of the film – to condemn rape and violence
against women by showing the trauma and emotional turmoil of a
victim of rape and to evoke sympathy for her and disgust for the
rapist.42 Thus, the material was held as not being obscene.
23. Similarly, in Director General, Directorate General of Doordarshan
v. Anand Patwardhan43, the Court applied the test of ‘contemporary
community standards’ to determine whether a documentary is obscene
for the purpose of certification and telecast on Doordarshan. A threeprong test for obscenity was formulated as follows:
“(a) whether “the average person, applying contemporary
community standards” would find that the work, taken
as a whole, appeals to the prurient interest;
(b) whether the work depicts or describes, in a patently
offensive way, sexual conduct specifically defined by
the applicable state law; and
(c) whether the work, taken as a whole, lacks serious
literary, artistic, political, or scientific value.” 44
24. The Court relied on Ramesh v. Union of India,
45 where it was held
that the effect of the words must be judged from the standards of a
reasonable, strong-minded, firm and courageous person, and not from
the perspective of weak and vacillating minds or those who sense
danger in every hostile point of view.46 Considering the documentary
as a whole to determine its message, which cannot be conveyed by
watching only certain bits, it was held that the film portrays social evils
and does not seek to cater to the prurient interests of any person.47
40 ibid, paras 27 and 28
41 ibid, para 29
42 ibid, paras 28, 31, 33
43 [2006] Suppl. 5 SCR 403 : (2006) 8 SCC 433 : 2006 INSC 558
44 ibid, para 32
45 [1988] 2 SCR 1011 : (1988) 1 SCC 668 : 1988 INSC 44
46 Directorate General of Doordarshan (supra), para 37
47 ibid, para 38
[2024] 3 S.C.R. 1169
Apoorva Arora & Anr. Etc. v. State (Govt. of Nct of Delhi) & Anr.
25. The law on determining obscenity has been summarised and
reiterated in Ajay Goswami v. Union of India48 where the Court cited
both Indian precedent and American jurisprudence. The principles
that can be culled out from the judgment are as follows:
i. Obscenity must be judged with regard to contemporary mores
and national standards.49
ii. The work must be judged as a whole and the alleged offending
material must also be separately examined to judge whether
they are so grossly obscene that they are likely to deprave and
corrupt the reader or viewer.50 There must be a clear and present
danger that has proximate and direct nexus with the material.51
iii. All sex-oriented material and nudity per se are not always
obscene.52
iv. The effect of the work must be judged from the standard of
an average adult human being.
53 Content cannot be regulated
from the benchmark of what is appropriate for children as
then the adult population would be restricted to read and see
only what is fit for children.54 Likewise, regulation of material
cannot be as per the standard of a hypersensitive man and
must be judged as per an “ordinary man of common sense
and prudence”.55
v. Where art and obscenity are mixed, it must be seen whether
the artistic, literary or social merit of the work overweighs its
obscenity and makes the obscene content insignificant or
trivial. In other words, there must be a preponderating social
purpose or profit for the work to be constitutionally protected
as free speech. Similarly, a different approach may have to
be used when the material propagates ideas, opinions, and
information of public interest as then the interest of society will
48 [2006] Suppl. 10 SCR 770 : (2007) 1 SCC 143 : 2006 INSC 995
49 ibid, para 67
50 ibid, para 68
51 ibid, para 70
52 ibid, paras 7 and 61
53 ibid, para 7
54 ibid, para 62
55 ibid, para 71
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tilt the balance in favour of protecting the freedom of speech
(for example, with medical textbooks).56
vi. The Court must perform the task of balancing what is artistic and
what is obscene. To perform this delicate exercise, it can rely
on the evidence of men of literature, reputed and recognised
authors to assess whether there is obscenity.57
26. In S. Khushboo v. Kanniammal,
58 the issue pertained to quashing of
FIR filed against the appellant, inter alia under Section 292 of the
IPC, for an interview in a magazine where she called for the social
acceptance of premarital sex, especially in live-in relationships, and
cautioned women to take adequate protection to prevent unwanted
pregnancies and sexually transmitted infections. The Court held that
no offence was made out under Section 292 as the content is not
lascivious (i.e., expressing or causing sexual desire); does not appeal
to the prurient interest (i.e., excessive interest in sexual matters); and
does not have the effect of tending to deprave and corrupt persons
who are likely to read, hear, or see the material.59 It was reiterated
that mere reference to sex does not make the material obscene
without examining the context of such reference.60 The Court held that
obscenity must be gauged with respect to “contemporary community
standards that reflect the sensibilities as well as the tolerance levels
of an average reasonable person.”61 In this case, the appellant had
not described any sexual act or said anything that arouses sexual
desire in the mind of a reasonable and prudent reader to make the
content obscene.62 Hence the FIR was quashed by this Court.
27. A Division Bench of this Court in Aveek Sarkar (supra) also quashed
an FIR under Section 292 against the magazine cover of Sports World
and Anandbazar Patrika that carried the image of Boris Becker, a
tennis player, posing nude with his fiancée, who are an interracial
couple. The Court held that while judging a photograph, article or
56 ibid, para 66
57 ibid, para 69
58 [2010] 5 SCR 322 : (2010) 5 SCC 600 : 2010 INSC 247
59 ibid, para 24
60 ibid, para 25
61 ibid, para 27
62 ibid, para 28
[2024] 3 S.C.R. 1171
Apoorva Arora & Anr. Etc. v. State (Govt. of Nct of Delhi) & Anr.
book to be obscene, “regard must be had to the contemporary
mores and national standards and not the standard of a group of
susceptible or sensitive persons”.63 The Court held that the Hicklin
test must not be applied as it “judged for obscenity based on isolated
passages of a work considered out of context and judged by their
apparent influence on most susceptible readers, such as children
or weak-minded adults.”64 Even in the United States, where the test
was first formulated, the courts no longer apply the Hicklin test and
instead apply the test formulated in Roth v. United States65 where
the US Supreme Court held that sex-related material is obscene
only when it has the tendency of exciting lustful thoughts when
judged from the perspective of an average person by applying the
community standards test. Similarly, in Canada, the dominant test
is the ‘community standards problem test’ as per which a work
qualifies as obscene when the exploitation of sex is its dominant
characteristic and such exploitation is undue.66 Taking note of these
jurisprudential developments, the Court in Aveek Sarkar markedly
moved away from the Hicklin test to the “community standard test”
where the material is considered as a whole to determine whether
the specific portions have the tendency to deprave and corrupt.67
28. Applying this test, it was held that a picture of a nude/semi-nude
woman is not per se obscene unless it arouses sexual desire or
overtly reveals sexual desire or has the tendency of exciting lustful
thoughts.68 In the present case, the posture and the background of
the woman posing with her fiancée, whose photograph was taken
by her father, does not have the tendency to deprave or corrupt
those in whose hands the magazine would fall when considered in
light of the broader social message of the picture against apartheid,
racism, and to promote love and marriage across race.69 We may
note that this Court followed the community standards test in Devidas
Ramachandra Tuljapurkar (supra).
63 Aveek Sarkar (supra), para 18
64 ibid, para 20
65 354 US 476 (1957)
66 R v. Butler, (1992) 1 SCR 452 (Can SC) as cited in Aveek Sarkar (supra), para 22
67 Aveek Sarkar (supra), para 23
68 ibid, para 23
69 ibid, paras 27 and 28
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29. Lastly, in N. Radhakrishnan v. Union of India,
70 it was again held that
the Court must not be guided by the sensitivity of a pervert viewer
and the setting of the whole work, its purpose, and the constituent
elements of the character must be kept in mind while judging for
obscenity.71
30. Application of the principles in the above-referred precedents to the
facts of the present case: The purpose of elaborately tracing the
precedents on Section 292 is to identify the essential content of the
offence of obscenity, the test and the standard by which the allegedly
offending material must be judged, and the oral and documentary
evidences and the process that the court must rely on and follow
for arriving at its conclusion.
31. For applying the test for obscenity to the allegedly offending portions
of the web-series, it is important to take note of the approach adopted
by the High Court.
32. The High Court purportedly applied the community standard test
as laid down in Aveek Sarkar (supra) to arrive at its conclusion.72 It
correctly states the position of law that to determine whether certain
content is obscene, the standard of determination is that of an ordinary
common person and not a hypersensitive person.73
33. Wrong question, wrong answer: However, the High Court has
incorrectly framed the question for inquiry. The issue framed by
the High Court is whether the language employed in the episode is
contemporarily used by the youth and whether it meets the threshold
of decency. The High Court has framed the question for inquiry in
the following terms:
“29. As stated above, this Court had watched a few
episodes of the web series “College Romance” and the
episode in question to decide the case more effectively
and fairly. The intent behind watching the said web series
was to analyze fairly as to whether the contention raised
on behalf of the petitioners that the language used in the
70 [2018] 11 SCR 1 : (2018) 9 SCC 725 : 2018 INSC 784
71 ibid, para 33
72 Impugned judgment, paras 21 and 22
73 ibid, para 28
[2024] 3 S.C.R. 1173
Apoorva Arora & Anr. Etc. v. State (Govt. of Nct of Delhi) & Anr.
web series is “in language”, or is “language used by new
generation in colleges”, or “the students in law colleges
and the younger generation in colleges uses this language
only”, is without merit or not.
30. This Court also wanted to test/examine the test of
a common prudent man in practicality, acting itself as a
common prudent person, so as to check as to whether such
language, in fact, can be heard by a common prudent man
without being embarrassed or finding it against decency
or against the concept of decency…”
(emphasis supplied)
34. From a plain reading of Section 67 and the material that is
characterised as ‘obscene’ therein, it is clear that the High Court
posed the wrong question, and it has naturally arrived at a wrong
answer. At the outset, the enquiry under Section 292 of the IPC
or 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.74 The High Court embarked
on a wrong journey and arrived at the wrong destination.
35. Profanity is not per se obscene: The second threshold error is in the
finding of the High Court that the language is full of swear words,
profanities, and vulgar expletives that could not be heard in open
court and also that it is not the language of the youth. Based on
this finding, the High Court has held that the content is obscene as
it “will affect and will tend to deprave and corrupt impressionable
minds”. In its own words, the High Court held:
“30. …this Court found that the actors/protagonists in
the web series are not using the language used in our
country i.e. civil language. The Court not only found
excessive use of “swear words”, “profane language” and
“vulgar expletives” being used, it rather found that the
web series had a series of such words in one sentence
74 Section 67, IT Act; Ranjit Udeshi (supra)
1174 [2024] 3 S.C.R.
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with few Hindi sentences here and there. In the episode
in question, there is clear description and reference to a
sexually explicit act. The Court had to watch the episodes
with the aid of earphones, in the chamber, as the profanity
of language used was of the extent that it could not have
been heard without shocking or alarming the people
around and keeping in mind the decorum of language
which is maintained by a common prudent man whether in
professional or public domain or even with family members
at home. Most certainly, this Court notes that this is not
the language that nation’s youth or otherwise citizens of
this country use, and this language cannot be called the
frequently spoken language used in our country.
36. When the entire content of the series is seen in the
light of above, it would lead any common person to a
conclusion that the language used in the web series is
foul, indecent and profane to the extent that it will affect
and will tend to deprave and corrupt impressionable minds.
Therefore, on the basis of this finding it can be held that
the content of the web series will certainly attract the
criminality as envisaged under Section 67 of the Information
Technology Act.”
(emphasis supplied)
The specific material which the High Court found to be obscene,
i.e., that which tends to deprave and corrupt impressionable minds,
was “foul, indecent and profane” language. Nothing more. The High
Court has equated profanities and vulgarity with obscenity, without
undertaking a proper or detailed analysis into how such language,
by itself, could be sexual, lascivious, prurient, or depraving and
corrupting. It is well-established from the precedents cited that
vulgarity and profanities do not per se amount to obscenity.75 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
75 Samaresh Bose (supra), para 35; Bobby Art International (supra), para 29; NS Madhanagopal v. K.
Lalitha, [2022] 15 SCR 649 : 2022 SCC OnLine SC 2030 : 2022 INSC 1323
[2024] 3 S.C.R. 1175
Apoorva Arora & Anr. Etc. v. State (Govt. of Nct of Delhi) & Anr.
or profanities that have been employed in the episode. Rather, such
language may evoke disgust, revulsion, or shock.76 The reality of
the High Court’s finding is that once it found the language to be
profane and vulgar, it has in fact moved away from the requirements
of obscenity under Section 67 of the IT Act. The High Court failed
to notice the inherent contradiction in its conclusions.
36. No objective consideration: Third, the High Court has erred in the
legal approach followed by it while assessing whether the material
is obscene. In Samaresh Bose (supra), this Court has laid down,
in great depth and detail, the process and method that must be
followed to objectively judge whether the material is obscene.77
The court must consider the work as a whole and then the specific
portions that have been alleged to be obscene in the context of the
whole work to arrive at its conclusion.78 Further, the court must first
step into the position of the creator to understand what he intends
to convey from the work and whether it has any literary or artistic
value. It must then step into the position of the reader or viewer who
is likely to consume the work and appreciate the possible influence
on the minds of such reader.79 However, the High Court has not
followed this judicial process before arriving at its conclusion, which
is as follows:
“43. Coming back to case at hand, the specific complaint
of petitioner is that in Episode 05 of Season 01, airtime
starting from 5 minutes and 24 seconds onwards upto 6
minutes and 40 seconds as well as from 25 minutes and
28 seconds upto 25 minutes and 46 seconds, the language
of male and female protagonist is full of obscenity, vulgar
words and expletives, without there being any warning or
filter imposing restriction of age of viewers to whom the
content should be visible. The language used in Episode
05 of Season 01 was heard by this Court, and the level
of obscenity of the language and sentences used was
such that this Court cannot reproduce it in the judgment
76 Samaresh Bose (supra), para 35
77 Samaresh Bose (supra), para 29
78 ibid; Ranjit Udeshi (supra), paras 20 and 21
79 Samaresh Bose (supra), para 29
1176 [2024] 3 S.C.R.
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itself for the purpose of adjudication. The language used
in the web series at the abovementioned time referred to
a sexually explicit act in spoken language. It is not just an
expletive, but is profane and vulgar language being used
referring to a sexually explicit act which certainly cannot
be termed common or commonly accepted language.
Rather the female protagonist in the series itself is heard
objecting to the male protagonist and expressing her
disgust over use of this language by repeating the same
language herself to the male protagonist. In answer to that,
the male protagonist further uses more vulgar expletives
and indecent language which is bound to disgust a normal
prudent man, if heard in public. Later in the said episode,
the female protagonist uses the same obscene, sexually
explicit language to others and the male protagonist is
seen enjoying and appreciating her conduct. The male
protagonist uses words describing male and female
genitalia and sexual act, thus by words, painting pictures
of sexually explicit act which brings it under ambit of
arousing prurient feelings by so doing. There’s no escape
from the same by saying that the said act was not done,
shown or filmed. Depiction does not connote filming alone
but conveying by a medium, which in this case is spoken
language. Therefore, the content as discussed above will
attract the criminality as laid down under Section 67 as
well as 67A of IT Act.”
(emphasis supplied)
37. It is evident from the above passages that 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. By taking the literal
meaning of these words, the High Court failed to consider the specific
material (profane language) in the context of the larger web-series
and by the standard of an “ordinary man of common sense and
prudence”. When we notice the use of such language in the context
[2024] 3 S.C.R. 1177
Apoorva Arora & Anr. Etc. v. State (Govt. of Nct of Delhi) & Anr.
of the plot and theme of the web-series, which is a light-hearted
show on the college lives of young students, it is clear that the use
of these terms is not related to sex and does not have any sexual
connotation. Neither did the creator of the web-series intend for the
language to be taken in its literal sense nor is that the impact on
a reasonable viewer who will watch the material. Therefore, there
is a clear error in the legal approach adopted by the High Court in
analysing and examining the material to determine obscenity.
38. 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 sensitivity and discomfort of the High Court is
evident when it held:
“29. …The Court had to watch the episodes with the aid
of earphones, in the chamber, as the profanity of language
used was of the extent that it could not have been heard
without shocking or alarming the people around and keeping
in mind the decorum of language which is maintained by
a common prudent man whether in professional or public
domain or even with family members at home…”
39. Application of wrong standard: The last issue is that of the standard or
perspective used by the High Court to determine obscenity. It is wellsettled that the standard for determination cannot be an adolescent’s
or child’s mind, or a hypersensitive person who is susceptible to
such influences.80 However, the High Court has incorrectly used the
standard of “impressionable minds” to gauge the effect of the material
and has therefore erred in applying the test for obscenity correctly.81
40. 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, as explained earlier, is based on irrelevant
considerations.
80 Chandrakant Kalyandas (supra), para 12; Samaresh Bose (supra), para 35; Ajay Goswami (supra);
Aveek Sarkar (supra), para 20
81 Impugned judgment, paras 35, 36 and 74
1178 [2024] 3 S.C.R.
Digital Supreme Court Reports
41. 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.
42. 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.
43. For the reasons stated above, we are of the opinion that the High
Court was not correct in its conclusion that the web-series has
obscene content and that therefore the provisions of Section 67 of
the IT Act are attracted.
B. Whether the material is ‘sexually explicit’ for the purpose
of Section 67A:
44. Section 67A of the IT Act criminalises the publication and transmission
of sexually explicit content. The provision is as follows:
“67A. Punishment for publishing or transmitting
of material containing sexually explicit act, etc., in
electronic form.–Whoever publishes or transmits or causes
to be published or transmitted in the electronic form any
material which contains sexually explicit act or conduct shall
be punished on first conviction with imprisonment of either
description for a term which may extend to five years and
with fine which may extend to ten lakh rupees and in the
event of second or subsequent conviction with imprisonment
of either description for a term which may extend to seven
years and also with fine which may extend to ten lakh rupees.”
45. The High Court has not given any reason whatsoever on how Section
67A is attracted to the facts of the present case. In our opinion, the
offence of Section 67A is not at all made out.
[2024] 3 S.C.R. 1179
Apoorva Arora & Anr. Etc. v. State (Govt. of Nct of Delhi) & Anr.
46. 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.
47. Section 67A criminalises 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.
C. Quashing the FIR:
48. 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. Equally, 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. It is settled that a court must
exercise its jurisdiction to quash an FIR or criminal complaint when
the allegations made therein, taken prima facie, do not disclose the
commission of any offence.82
49. In view of the above, we allow the appeals against the judgment of
the High Court dated 06.03.2023 in Criminal Miscellaneous Case
No. 2399 of 2020, Criminal Miscellaneous Case No. 2215 of 2020
and Criminal Miscellaneous Case No. 2214 of 2020, and set aside
the judgment of the High Court, and quash FIR 403/2023 registered
82 State of Haryana v. Bhajan Lal, (1992) SCC Supp (1) 335, 1992 INSC 357; State of AP v. Golconda Linga
Swamy, (2004) 6 SCC 522, 2004 INSC 404; Zandu Pharmaceutical Works Ltd v. Mohd Sharaful Haque,
(2005) 1 SCC 122, 2004 INSC 628
1180 [2024] 3 S.C.R.
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at Police Station Mukherjee Nagar, Delhi dated 16.04.2023 under
Sections 67 and 67A of the IT Act against the appellants herein.
50. Pending applications, if any, shall stand disposed of.
Headnotes prepared by: Divya Pandey Result of the case:
Appeals allowed.
