Analysis: The central issue is 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 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':{Para 9}
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 Indian Penal Code.
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 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.14 Since the alleged offending material is a web-series, the case must be considered Under Section 67 of the IT Act15 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 test (1868) LR 3 QB 360 to determine whether the book 'Lady Chatterley's Lover' was obscene in the decision of Ranjit D. Udeshi v. State of Maharashtra MANU/SC/0080/1964 : 1964:INSC:171 : AIR 1965 SC 881. As per the 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:16
... 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.17 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.18 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.19 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.20
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 insignificant and can be overlooked.21 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.22
16. The Court followed the Hicklin test and Ranjit Udeshi (supra) in Shri Chandrakant Kalyandas Kakodkar v. State of Maharashtra MANU/SC/0147/1969 : 1969:INSC:202 : (1969) 2 SCC 687 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.23 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.24 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."25
17. In K.A. Abbas v. Union of India MANU/SC/0053/1970 : 1970:INSC:200 : (1970) 2 SCC 780, para 48 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.
(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 pander to lascivious, prurient 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 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.26 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.27 Further, a mere reference to sex is insufficient for obscenity and does not make a material unsuitable for adolescents.28
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 to ascertain whether the book or story or any passage or passages therein offend the provisions of Section 292 Indian Penal Code". 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 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 Indian Penal Code 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.29
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, 1952.30 The Court did not 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, and the purpose of censorship is not to protect the pervert or assuage the susceptibilities of the over-sensitive.31 Further, the use of swear words and expletives that are heard everyday was also held to be harmless.32 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.33 Thus, the material was held as not being obscene.
23. Similarly, in Director General, Directorate General of Doordarshan v. Anand Patwardhan MANU/SC/3637/2006 : 2006:INSC:558 : (2006) 8 SCC 433, 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 three-prong 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.34
24. The Court relied on Ramesh v. Union of India MANU/SC/0404/1988 : 1988:INSC:44 : (1988) 1 SCC 668, 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.35 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.36
25. The law on determining obscenity has been summarised and reiterated in Ajay Goswami v. Union of India MANU/SC/5585/2006 : 2006:INSC:995 : (2007) 1 SCC 143 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.37
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.38 There must be a clear and present danger that has proximate and direct nexus with the material.39
iii. All sex-oriented material and nudity per se are not always obscene.40
iv. The effect of the work must be judged from the standard of an average adult human being.41 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.42 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".43
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 tilt the balance in favour of protecting the freedom of speech (for example, with medical textbooks).44
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.45
26. In S. Khushboo v. Kanniammal MANU/SC/0310/2010 : 2010:INSC:247 : (2010) 5 SCC 600, the issue pertained to quashing of FIR filed against the Appellant, inter alia Under Section 292 of the Indian Penal Code, 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.46 It was reiterated that mere reference to sex does not make the material obscene without examining the context of such reference.47 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."48 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.49 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 fiancee, who are an interracial couple. The Court held that while judging a photograph, Article or 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".50 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."51 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 States MANU/USSC/0157/1957 : 354 US 476 (1957) 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.52 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.53
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.54 In the present case, the posture and the background of the woman posing with her fiancee, 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.55 We may note that this Court followed the community standards test in Devidas Ramachandra Tuljapurkar (supra).
29. Lastly, in N. Radhakrishnan v. Union of India MANU/SC/0943/2018 : 2018:INSC:784 : (2018) 9 SCC 725, 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.56
IN THE SUPREME COURT OF INDIA
Criminal Appeal Nos. 1694-1695/2024.
Decided On: 19.03.2024
Apoorva Arora and Ors. Vs. State (Govt. of NCT of Delhi) and Ors.
Hon'ble Judges/Coram:
A.S. Bopanna and Pamidighantam Sri Narasimha, JJ.
Author: Pamidighantam Sri Narasimha, J.
Citation: MANU/SC/0218/2024.
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