LexAPOORVA ARORA & ANR. ETC. versus STATE (GOVT. OF NCT OF DELHI) & ANR.
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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 te
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