Apoorva Arora & Others v. State (Government of NCT of Delhi) & Another
2024 INSC 223 : Criminal Appeals arising out of SLP (Crl.) Nos. 5463-5464/2023 etc.
Information Technology Act, 2000 – Sections 67 & 67A – Obscenity – Sexually Explicit Content – Web Series – Freedom of Speech and Expression – Community Standards Test – Distinction between Vulgarity and Obscenity – Quashing of FIR.
A. OBSCENITY – TEST FOR DETERMINATION
For determining obscenity under Section 67 of the Information Technology Act, the Court must apply the contemporary community standards test and evaluate the work as a whole. The inquiry is whether the material is lascivious, appeals to prurient interest, or tends to deprave and corrupt persons likely to read, see or hear it. Mere indecency, vulgarity or bad taste is insufficient. (Paras 10–29, 34)
Held: Obscenity must be judged by statutory parameters and not by subjective notions of decency or propriety. (Paras 34–35)
B. VULGARITY AND PROFANITY – DISTINGUISHED FROM OBSCENITY
Profanities, swear words, vulgar expressions and abusive language may be offensive, distasteful, uncivil or shocking, but they do not automatically become obscene. Obscenity requires a tendency to arouse sexual or lustful thoughts and appeal to prurient interests. (Paras 35–37)
Held: Vulgarity and profanity are not synonymous with obscenity. (Paras 35–36)
C. COMMUNITY STANDARDS TEST
The proper standard is that of an ordinary reasonable person applying contemporary community standards and not that of hypersensitive, susceptible or impressionable individuals. (Paras 27, 32, 39)
Held: Material cannot be adjudged by the standards of a particularly sensitive viewer or impressionable mind. (Paras 39–40)
D. WORK AS A WHOLE – CONTEXTUAL EVALUATION
While examining allegations of obscenity, the Court must consider the work in its entirety and thereafter examine the allegedly offending portions in the context of the overall theme, purpose and message of the work. (Paras 18–20, 36–37)
Held: Isolated words or expressions cannot be divorced from the context of the larger work. (Paras 36–37)
E. LITERAL MEANING OF EXPLETIVES – IRRELEVANCE
The literal sexual meaning of swear words and expletives cannot be mechanically relied upon to infer obscenity. Courts must examine the actual context in which such words are used and their effect on an ordinary viewer. (Para 37)
Held: Expletives used as expressions of anger, frustration, excitement or emotion do not become obscene merely because their literal meaning may refer to sexual acts. (Para 37)
F. FREEDOM OF SPEECH – ARTISTIC EXPRESSION
Criminal law relating to obscenity must be applied cautiously so that artistic creativity, dramatic expression and freedom of speech are not disproportionately curtailed. (Paras 42–43)
Held: Availability of content containing profanities on digital platforms cannot be regulated by incorrectly branding it as obscene. (Para 42)
G. SECTION 67A IT ACT – SEXUALLY EXPLICIT ACT OR CONDUCT
Section 67A is attracted only where the material contains sexually explicit acts or conduct. Mere use of swear words, profanities or vulgar language does not satisfy the statutory requirement of sexually explicit acts or conduct. (Paras 44–47)
Held: In absence of any allegation regarding sexually explicit acts or conduct, Section 67A is wholly inapplicable. (Paras 45–46)
H. WRONG LEGAL TEST – HIGH COURT'S ERROR
The High Court erred by examining whether the language used in the web series met standards of civility, decency and linguistic morality rather than determining whether the content satisfied the statutory ingredients of obscenity under Section 67. (Paras 33–35, 40–41)
Held: The High Court asked the wrong legal question and consequently arrived at an erroneous conclusion. (Paras 33–34)
I. COURTROOM DECORUM – NOT TEST OF OBSCENITY
The legality of artistic content cannot be tested on the basis of whether it can comfortably be played in open court without offending judicial decorum. (Para 41)
Held: Standards of courtroom propriety are not the benchmark for determining obscenity under criminal law. (Para 41)
J. QUASHING OF FIR – WHEN WARRANTED
Where the allegations in the complaint, even if accepted in entirety, do not disclose the ingredients of offences under Sections 67 or 67A of the Information Technology Act, the FIR is liable to be quashed. (Paras 48–49)
Held: Since neither obscenity nor sexually explicit content was disclosed, continuation of criminal proceedings amounted to abuse of process. (Paras 48–49)
RATIO DECIDENDI
- Obscenity under Section 67 IT Act requires material to be lascivious, appeal to prurient interest or tend to deprave and corrupt.
- Profanity, vulgarity and swear words by themselves do not constitute obscenity.
- Material must be judged from the perspective of an ordinary reasonable person applying contemporary community standards.
- The work must be considered as a whole and not through isolated passages.
- Literal sexual meanings of expletives cannot determine obscenity.
- Section 67A requires depiction or existence of sexually explicit acts or conduct and cannot be invoked merely because vulgar language is used.
- Courts must balance obscenity regulation with constitutional protection of artistic expression and free speech.
- FIRs are liable to be quashed when basic statutory ingredients of Sections 67 and 67A are absent. (Paras 30–49)
IMPORTANT LEGAL PROPOSITIONS
Distinction between Vulgarity and Obscenity
"Vulgarity and profanities do not per se amount to obscenity." (Para 35)
"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." (Para 35)
Wrong Question, Wrong Answer
The Supreme Court held that the High Court erred in treating the issue as one of linguistic morality and civility instead of applying the statutory test of obscenity.
Held: "The High Court embarked on a wrong journey and arrived at the wrong destination." (Para 34)
HELD
Appeals Allowed.
The judgment of the Delhi High Court was set aside. FIR No.403/2023 registered at Police Station Mukherjee Nagar, Delhi under Sections 67 and 67A of the Information Technology Act against the actors, writers, creators and producers of the web series College Romance was quashed.
The Supreme Court held that:
- the alleged content was not obscene within the meaning of Section 67 IT Act;
- the material did not contain any sexually explicit act or conduct attracting Section 67A IT Act; and
- continuation of criminal proceedings was unwarranted. (Paras 43–49)
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