In mid-March, the Supreme Court (SC) handed down a judgment quashing criminal legal proceedings that had been initiated against the makers of the web-series, College Romance, under the provisions of the Information Technology Act. The criminal complaint had been initially registered in 2019 by an individual, on the purported basis that in an episode of the web-series, characters were depicted engaging in profanities and vulgar language. Despite the police filing a report stating that no case had been made out, the magistrate directed the registration of an FIR against the makers of the series.
After unsuccessful attempts before the trial courts, the series makers eventually approached the Delhi high court, asking that the criminal proceedings be quashed. They argued that — as the name suggested — College Romance was a light-hearted take upon the trials and tribulations in the lives of contemporary college-going students in urban India. The language used was nothing more than a reflection of how such students (sometimes) talk and had to be understood in its context. It was neither “obscene” within the meaning of the law, nor “sexually explicit.”
In a judgment handed down in 2023, the HC, however, refused to entertain the petition and directed the registration of the FIR against the series-makers. The reasoning of the HC was striking. It held that the conversation between two characters that included a description of male and female genitalia, and of sexual acts could “deprave and corrupt” impressionable minds. The HC also noted that in order to assess the language used, it had to watch the series in judicial chambers with headphones, because the language was such that it could not be played aloud in the atmosphere of the courtroom. The court went on to hold that profanities and vulgar language could not be said to be the “new normal”, and that therefore, it was important to preserve “linguistic morality”.
The Supreme Court found that the high court’s reasoning was flawed on every count. In particular, it is important to note that the law on obscenity in India has evolved over the last few decades. In the 1960s, while upholding a ban on the famous book, Lady Chatterley’s Lover, the Supreme Court adopted the Victorian-era “Hicklin test”, which asked whether a particular piece of art had the tendency of corrupting the morals, or depraving the person into whose hands it might fall. Importantly, the Hicklin test was predicated on taking the point of view of precisely that constituency most open to “moral corruption” (whatever that meant). Strikingly, the Supreme Court adopted this century-old test at the precise moment that England, the country of its birth, was moving away from it!
In the intervening years, however, the Supreme Court has incrementally liberalised the law of obscenity, in the context of the right to freedom of speech and expression. It has clarified that the correct test is not that of causing depravity or moral corruption, but whether the piece of art in question is “lascivious”, or appeals solely to the “prurient interest”. One may ask what, particularly, is so wrong with appealing to the prurient interest that the criminal law has to step in, but at the very least, this test (which is drawn from US jurisprudence) is more protective of free speech than the depravity/corruption test. The SC has also held it is the perspective of the “reasonable, strong-minded person” that must be applied to determine the effect that the piece of art has on people.
Applying these tests, it was straightforward for the Supreme Court to find that the high court had committed serious errors in its analysis. As the Supreme Court noted, the high court had asked the “wrong question,” and had therefore arrived at the “wrong answer.” The question was not whether, indeed, the language used in the web series was commonly used by the contemporary youth, or whether the language was so profane that it could not be heard aloud in open court; the question, rather, was whether the series, taken as a whole, was solely intended to appeal to the prurient interest. On this, as the Supreme Court correctly noted, “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’.” Specifically, as the show was “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.”
The high court’s judgment was, therefore, set aside. While, at one level, the Supreme Court’s judgment is a restatement of the basic law on obscenity, it is also important that the law be restated by the Court from time to time, to prevent the frivolous weaponisation of the obscenity law in cases like this.
Gautam Bhatia is a Delhi-based advocate. The views expressed are personal
A restatement of the basic law on obscenity
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01.04.2024
In mid-March, the Supreme Court (SC) handed down a judgment quashing criminal legal proceedings that had been initiated against the makers of the web-series, College Romance, under the provisions of the Information Technology Act. The criminal complaint had been initially registered in 2019 by an individual, on the purported basis that in an episode of the web-series, characters were depicted engaging in profanities and vulgar language. Despite the police filing a report stating that no case had been made out, the magistrate directed the registration of an FIR against the makers of the series.
After unsuccessful attempts before the trial courts, the series makers eventually approached the Delhi high court, asking that the criminal proceedings be quashed. They argued that — as the name suggested — College Romance was a light-hearted take upon the trials and tribulations in the lives of contemporary college-going students in urban India. The language used was nothing more than a reflection of how such students (sometimes) talk and had to be understood in its context. It was neither “obscene” within the meaning of the law, nor “sexually explicit.”
In a judgment handed down in 2023, the HC, however, refused to........
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