# Apoorva Arora & Anr. Etc v. State (Govt. of NCT of Delhi) & Anr

- **Citation:** 2024 INSC 223
- **Court:** Supreme Court of India
- **Decided:** 2024-03-19
- **Case number:** Criminal Appeal No. 1694-1695 of 2024
- **Bench:** A.S. Bopanna, Pamidighantam Sri Narasimha
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/apoorva-arora-anr-etc-v-state-govt-of-nct-of-delhi-anr-37698
- **Pages:** 34

## Headnote

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 - "obsceni

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* 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.
Digital Supreme Court Reports
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.
Digital Supreme Court Reports
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
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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.
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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
[2024] 3 S.C.R.
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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.
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(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.