INTRODUCTION
As the digital landscape continues to evolve, Over-The-Top (OTT) platforms have emerged as the new frontier of media consumption, offering unparalleled freedom and diversity of content. However, with this expansion comes the inevitable clash between artistic expression and societal norms as creators push the boundaries of established artistic norms in re characterizing what is the ‘new normal’. The Supreme Court of India in a recent landmark decision in Apoorva Arora and Anr versus State (Govt. of NCT of Delhi) and Another¹, undertook the very task of distinguishing between the profane and obscene in a case pertaining to a web series ‘College Romance’ and its episode titled ‘Happily F***** Up’

The Supreme Court heard the aforementioned case for setting aside the judgment of the Hon’ble Delhi High Court which had upheld the order of the Learned Additional Chief Metropolitan Magistrate, directing the registration of a FIR against the Appellants for an offence punishable under Sections 67 and 67A of the Information Technology Act, 2000. The Supreme Court was pleased to set aside the judgement of the High Court and quash the FIR against the Appellants for offences punishable under Section 67 and 67A of the Information Technology Act, 2000.

BRIEF FACTS OF THE CASE

• The complaint was filed by Respondent No.2 against the Appellants (writers, directors, script writers, actors and creators of the web series) before the Assistant Commissioner of Police stating that an episode in the web series ‘College Romance’ titled ‘Happily F***** Up’ contained obscene and vulgar content in its title and in the episode itself, constituting an offence punishable under Sections 292, 294 and 509 of the Indian Penal Code, 1860, Sections 67 and 67A of the Information Technology Act 2000 and Sections 2(c) and 3 of the Indecent Representation of Women (Prohibition) Act 1986. The police had initially refused to register a complaint resulting in the Respondent No. 2 filing a complaint under Section 200 read with Section 156(3) of the Criminal Procedure Code, 1973, before the Learned Additional Chief Metropolitan Magistrate seeking registration of the FIR.
• The Learned Additional Chief Metropolitan Magistrate directed the police to register an FIR for offences punishable under Sections 292 and 294 of the Indian Penal Code, 1860, Sections 67 and 67A of the Information Technology Act 2000, as the Learned ACMM held that the vulgar language used in the episode was prima facie capable of appealing to the ‘prurient’ interests of the audience and was therefore obscene.
• The Appellants filed a revision petition before the Hon’ble High Court of Delhi which partially modified the order of the ACMM following the Supreme Court decision in Sharat Babu Digumarti v Government (NCT of Delhi)² removing the offences under the Indian Penal Code, 1860, as the same are superseded by the Information Technology Act, 2000. The Appellants then filed a petition under Section 482 of the CrPC before the Hon’ble High Court of Delhi for quashing of the order of the ACMM and Hon’ble High Court. The Hon’ble High Court was pleased to dismiss the petition and directed the registration of an FIR for offences punishable under Sections 67 and 67A of the Information Technology Act, 2000.
• The present appeal was filed by the Appellants against the judgement of the Hon’ble High Court upholding the order of the ACMM directing registration of the FIR.

ISSUE
Whether the use of expletives and profane language in the titles and content of the episode of the web series ‘College Romance’ constitutes an offence of publication and transmission of obscene and sexually explicit content under Section 67 and 67 of the Information Technology Act, 2000.

REASONING OF THE HIGH COURT
The reasoning of the Hon’ble High Court in upholding the order of the ACMM and directing registration of an FIR against the Appellants is briefly summarized as follows :

• The Hon’ble High Court applied the “Community Standard Test” as laid down in Aveek Sarkar v State of West Bengal³ in order to determine whether the content in question fell within the ambit of sexually explicit as stated in Section 67 of the Information and Technology Act, 2000:
  • The Hon’ble High Court applied the standard of a common prudent man and found that the episode did not use civil language and there was excessive use of profanities and vulgar expletives and description and reference to sexually explicit acts. The Hon’ble Court opined that the determination of how the content impacts a common man must be determined in the Indian context.
  • The Hon’ble Court held that the episode and speech there in was not protected under Article 19(1)(a) of the Constitution of India that is freedom of speech as the series is based in a college and therefore a representation of the youth of the nation as a whole.
  • The Hon’ble High Court further rejected the argument that the use of profanities amongst the youth of the nation was a “new normal” stating that profanities were still not used by “elderly, women and children and in religious places.” The High Court observed that to maintain linguistic morality, the sanctity and reverence of language must be protected.

APPELLANT’S SUBMISSIONS
The Appellants submitted that the Hon’ble High Court had erred in characterizing the content as obscene and that the contents did not fall under the category of sexually explicit act and no offence for the same was made out under Section 67 or 67A of the Information Technology Act, 2000.

• The Appellants submitted that the scenes in question when seen as a whole in context of the web series are only there for artistic expression of the common usage of the profane words in everyday language.
• The Appellants relied on Samresh Bose v Amal Mitra⁴ and Bobby Art International v Om Pal Singh Hoon⁵ wherein the Supreme Court held that mere words cannot amount to obscenity unless they involve lasciviousness or arouse sexual thoughts and feelings, which was not the present case.
• The “ordinary man” in the community standards test ought to be a reasonable strongminded and courageous person and cannot be somebody who is hypersensitive or of a weak and vacillating mind.
• The Appellants submitted that the words in the statute that is Section 67 of the Information Technology Act, 2000, must be interpreted strictly. The phrase used in the statute is “sexually explicit act or conduct” and the same does not cover profanities or swear words, even if the literal meaning of these words refer to sexual acts. The literal meaning of such words is not intended in common parlance. Therefore the scene in question did not fall under the ambit of the Information Technology Act, 2000.
• The Appellants relying on the 50th Standing Committee Report on the 2006 Amendment to the Information Technology Act, 2000, submitted that the intention of Section 67A of the Information Technology Act, 2000, is to criminalize publication and transmission of pornographic material that depicts sexual acts or contains sexually explicit conduct that falls short of actual sexual acts. Since the alleged content only contains use of expletive words, they do not fall under the ambit of Section 67A of the Information Technology Act, 2000.
• Lastly the Appellants submitted that the web series is in the form of “pull media” wherein the consumer has the choice as to whether or not consume such media. The web series is only made available to watch for those people who wish to watch it and therefore a higher threshold of obscenity must be applied to pull media.

RESPONDENT’S SUBMISSIONS
The Complainant argued that the case was not fit for quashing as the alleged content of the web-series falls within the ambit of Section 67 and 67A of the Information Technology Act, 2000, and also offends Sections 3 and 4 of the Indecent Representation of Women (Prohibition) Act, 1986, which the High Court had failed to consider. The Complainant submitted the following:

• The material appealed to prurient interest in sex, as determined by the average person applying contemporary community standards. The title of the impugned episode and plot of the series as a whole revolved around college students engaging in sexual activity, the same could not be termed as “the new normal”.
• The material portrayed sexual activity in a patently offensive way.
• The material lacked serious literary, artistic, political or scientific value.
• The material tends to arouse sexually impure thoughts.
• 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.
• Since the material is freely available online to all persons including children and hence must be regulated in the interests of public order, morality, and decency.

COURT’S DECISION

1. WHETHER THE MATERIAL IS OBSCENE
   The Supreme Court had laid down the meaning, test, standard, and method for determining whether some material is obscene in the context of Section 292 of the Indian Penal Code, 1860. The Court held that ‘obscenity’ has been defined similarly in Section 292 of the Indian Penal Code, 1860 and Section 67 of the Information Technology Act, 2000, 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. The Supreme however distinguished the two sections on the grounds that Section 67 of the Information and Technology Act, 2000, applies only when the obscene material is published in electronic form.
   
   Jurisprudence of obscenity
   • The Supreme Court first analyzed the Hicklin Test based on common law and applied in Ranjit D. Udeshi versus State of Maharashtra⁶ laying emphasis on the potentiality of the material to deprave and corrupt by immoral influences. To determine the same the Supreme Court observed that it must apply itself to consider each and every work at a time and must look at the work as whole and not mere words or phrases.
   • In the case of Shri Chandrakant Kalyandas Kakodkar versus State of Maharashtra⁷ the Supreme Court added certain caveats to the Hicklin Test and refined the test to a certain extent. The Supreme Court while dealing with a case of a literary work held that the story as a whole did not amount to pornography or pander to prurient interest in order to be characterized as obscene.
   • In Samaresh Bose the Supreme Court differentiated vulgarity from obscenity. The Court noted that even if words are vulgar and create a feeling of disgust the same is not obscene. The Court further held that a mere reference to sex is insufficient for obscenity and does not make material unsuitable for adolescents.
   • The Supreme Court relying on Samaresh Bose emphasized that it was the duty of the Judge to enter into the shoes of the author to understand the literary and artistic value of the objectionable material. The Judge must then put themselves in the shoes of the reader or consumer of the material of every age group to determine the possible effect or influence of the material on the minds of such persons.
   • The Supreme Court while analyzing the Bobby Art Judgement distinguished the same by stating that in the case of movies and cinematographically films, the Censor Board certification and Cinematograph Act, 1952, had already laid down guidelines and therefore the same would supersede Section 292 of the Indian Penal Code, 1860.
   • The Supreme Court summarized the jurisprudence and observations with respect to characterization of obscenity in the case of Ajay Goswami versus Union of India⁸ wherein the court citing both Indian and American Jurisprudence laid down the following:
     • Obscenity must be judged with regard to contemporary morals and national standards.
     • The work must be judged as a whole and also with respect to the specific obscene part. There must also be a clear and present danger to society that has proximate and direct nexus with the material.
     • All sex oriented material and nudity per se are not always obscene.
     • The effect of the work must be judged from the perspective of an average adult human being. Content cannot be regulated basis what is appropriate for children. Content cannot be viewed from the perspective of a hypersensitive man but must be done so from the perspective of a ordinary man of common sense and prudence.
     • When art and obscenity are mixed, it must be seen whether the artistical, literary or social merit outweighs the obscene to claim protection under freedom of speech.
     • 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.
   Error by the High Court
   The Supreme Court broke down the judgement of the High Court with respect to the authorities cited above and stated the following:
   • The Supreme Court held that “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 The High Court embarked on a wrong journey and arrived at the wrong destination.”
   • The Supreme Court held that the High Court had erred in equating profanity and vulgarity with per se obscenity. The Supreme Court held that ‘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’. Therefore the Supreme Court held that profanity is not per se obscenity.
   • The Supreme Court held that the High Court had failed to objectively consider the material at hand. The Supreme Court emphasized on the need for the judge to personally put themselves in the mind of the author and the reader to objectively determine whether the material was obscene. The Court must also determine the obscenity of a material based on the perspective of an ordinary man of common sense and prudence and not that of a child.
   • The Supreme Court also observed that the High Court had failed to be objective as it had failed to remain neutral by refusing to play the episode in court in order to maintain the sanctity of the court atmosphere.
2. WHETHER THE MATERIAL WAS SEXUALLY EXPLICIT FOR THE PURPOSE OF SECTION 67A OF THE INFORMATION TECHNOLOGY ACT, 2000.
   The Supreme Court underscored that the mere use of vulgar language or profanities does not meet the threshold for invoking Section 67A of the Information Technology Act, 2000, which specifically necessitates the presence of sexually explicit acts or conduct. Moreover, the Supreme Court suggested a correlation between Section 67A and Section 67 of the Information Technology Act, 2000, indicating that the understanding of "sexually explicit act or conduct" must be viewed within the framework of obscenity laws. The Supreme Court further highlighted that while such acts typically cater to lasciviousness or prurient interests, exceptions exist, particularly when presented in an artistic or devotional manner, which may have an opposing effect. Ultimately, the Supreme Court held that the facts of the case at hand did not fulfill the criteria for invoking Section 67A of the Information Technology Act, 2000, as the complaint lacked allegations of sexually explicit acts or conduct in the content in question.
3. QUASHING OF THE FIR
   The Supreme Court held that no case of publication or transmission of any material in electronic form which is obscene as provide under Section 67 of the Information Technology Act, 2000, is made out. Equally no case for publication or transmission of material containing sexually explicit act or conduct as provided under Section 67A of the Information Technology Act, 2000, is made out from a bare reading of the complaint. Therefore, the Supreme Court held that it must exercise its jurisdiction to quash the FIR or criminal complaint when the allegations made therein, taken prima facie, do not disclose the commission of any offence.

HELD
The Court allowed the appeals against the judgment of the High Court and set aside the order upholding the order of the ACMM and quashed the FIR filed against the Appellants under Sections 67 and 67A of the Information Technology Act, 2000.

By - Parshva Shah