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Obscenity Through the Legal Lens: A Comprehensive Primer (Part II)

-Dr. Abhimanyu Chopra, Aman Choudhary and Kushagra Jain*

 

[This is the Second part of the two-part contribution discussing the evolution of the offence of obscenity from the Indian Penal Code to the recent amendments to the IT Act. For a discussion on the evolution of the offence of obscenity under the Indian Penal Code, now the Bhartiya Nyaya Sanhita (“BNS”) vis-à-vis the development of the ‘community standards’ test as well as the self-regulatory dichotomy of OTT and social media content, please see Part I.]

 

    I.    OFFENCE OF ‘OBSCENITY’ IN CYBERSPACE

 

With the advent of the internet and the resultant promulgation of the IT Act, the offence of publishing and/or transmitting such obscene material in electronic form is now dealt with/regulated by Section 67 of the IT Act. Pertinently, Section 67 of the IT Act takes largely from Section 292 of the IPC, and in essence, both the statutes define ‘obscene’ to be material that is (a) lascivious, (b) appeals to the prurient interest, or (c) depraves and corrupts persons who are likely, in the given circumstances, to read, see, or hear the matter contained therein.

 

A classic instance was that of the popular ‘AIB Roast,’ which was a one-of-a-kind entertainment roast-centric comedy spectacle held for the first time in India that was also broadcast over the internet using OTT platforms and YouTube. While the event was enjoyed by millions from the comfort of their homes, it resulted in the registration of an FIR against various participant artists alleging the commission of an offence under Section 67 as well as Section 67A of the IT Act, despite there being a disclaimer highlighting the use of profanity and harsh language. Pertinently, the Bombay High Court, while granting anticipatory bail to the artists, opined that the language used by the artists may have been vulgar, indecent, and/or riddled with profanity, although it distinguished the same from the contours of ‘obscenity’[1].

 

It is pertinent to note that while the IPC, as well as the IT Act, deal with the offence of obscenity, the IT Act, being a special law specifically providing for offences over the internet, prevails over the IPC and governs matters involving publishing and/or transmission of obscene material via electronic records. The SC promulgated that the IT Act squarely governs the offences that relate to electronic records and further, owing to Sections 67, 67A, and 67B, provides a comprehensive framework for dealing with online obscenity, whilst at the same time conferring safeguards/protection to intermediaries under Section 79. Further, the operation of the IT Act over the IPC concerning offences of obscenity is advanced by Section 81 of the IT Act, which stipulates that the IT Act overrides conflicting provisions in other laws for electronic records. Thus, encompassing electronic dissemination of information that may be considered as obscene and subject to the rigours of Section 67 of the IT Act.

 

It is interesting to note that neither the IT Act nor the IPC gives any meaning to the terms “lascivious” or “prurient.” Black’s Law Dictionary defines the term ‘lascivious’ as “tending to excite lust; lewd; indecent; obscene”[2]. Similarly, the term ‘prurient’ has been defined as ‘characterized by or arousing inordinate or unusual sexual desire.’

 

In view of the authors, there are no straightjacket, uniform standards and/or  hard and fast rules for determining what is lascivious or prurient, nor can there be, as the same evolves year to year and generation to generation. To aptly put, reference to the word ‘lust’ is a feeling that is, by its very inherent nature,  which may differ from person to person and from situation to situation. Recognising the same, the Indian judiciary has held that the concept of obscenity differs from country to country and person to person, and therefore, the same is dependent on the standards in contemporary society. Moreover, the idea as to what is to be obscene has varied from age to age, region to region, and even from person to person, depending upon the particular social conditions, and there cannot be an immutable standard for moral values.

 

This view was taken in the case of Ajay Goswami v. Union of India (2007), wherein the Supreme Court addressed significant concerns regarding the exposure of minors to sexually exploitative material. The court's ruling in the aforesaid judgment underscores the importance of considering artistic, literary, or social merit when evaluating material that may contain elements of obscenity. By emphasizing the need to assess the work from the perspective of an “ordinary man,” the court aimed to establish a common standard for judging obscenity. This standard seeks to prevent hypersensitivity from influencing judgments and encourages a balanced approach that considers the overall context of the material in question. Additionally, the ruling highlights the importance of evaluating the material as a whole rather than isolating specific elements. This holistic approach ensures a more comprehensive understanding of the content and its potential impact.

 

Another challenge that arises for consideration is what would be the standards that are likely to be kept in mind by the authorities in determining whether any information or material in the electronic form is lascivious or appeals to the prurient interest. For this, it would be proper to examine the trends of judicial pronouncements made by the Supreme Court and various High Courts on numerous occasions while dealing with the ingredients of Section 292 of the IPC.

 

 II.    JUDICIAL INTERPRETATION OF ‘OBSCENITY’ UNDER SECTION 67 OF IT ACT

 

The next consideration that engages one’s mind is whether the principles of law laid down by the different pronouncements detailed above under Section 292 of the IPC could fairly and materially be made applicable to the offence under Section 67 of the IT Act while having been given in the context of the actual/ real/ physical realm and not in the context of virtual/cyber space.

 

Before the insertion of Chapter XI in the IT Act, the Arjika case[3] marked a significant instance concerning obscenity in cyberspace. Herein, the police filed charges under Section 292 of the IPC following a tip-off from Interpol regarding a website hosting child pornography. Despite lacking physical control over the website’s content, the accused was implicated based on negligence for breaching an agreement prohibiting pornographic content on the hosted sites. This case highlighted the jurisdictional complexities of cyberspace, setting a precedent for future legal considerations in cases involving obscenity in the cyberspace including but not limited to implications of the Information Technology Act beyond territorial bounds.

 

Whilst the Community Standards Test qua Section 292 of IPC developed leaps and bounds by way of the aforementioned jurisprudence, the Supreme Court in Director General, Directorate General of Doordarshan v. Anand Patwardhan (2006) introduced a specific test for obscenity in electronic media (given that this judgment was passed prior to the insertion of Chapter XI of the IT Act). The Supreme Court focused on contemporary sensibilities and the overall value of the work and established a three-prong test viz., (i) does the work appeal to prurient interest based on contemporary standards?; (ii) does it depict sexual conduct offensively?; and (iii) does it lack serious artistic, political, or social value?

 

Even after the amendments in the IT Act, it has still not defined what is deemed to be ‘obscene,’ ‘lascivious,’ or ‘prurient’ and sufficient to attract the offence under Section 67 of the IT Act. Therefore, it is left to the subjective interpretation of the relevant content by the viewer (including the courts) to ascertain what can be termed to be ‘obscene’ in the context of the peculiar facts and circumstances in each and every case.

 

The Madhya Pradesh High Court in the case of Ekta Kapoor vs. State of Madhya Pradesh (2021) (“Ekta Kapoor Case”) is noteworthy as in the said case the High Court, while accepting and remaining cognizant of the fact that the Indian audiences have ‘come of age’ from the times of two flowers cuddling each other, prima facie held one of the episodes in a certain web series namely ‘XXX Uncensored,’ to be obscene and squarely attracting the offence under Section 67 of the IT Act as it involved scenes wherein a medical practitioner has been shown to be satiating his lust from his own patient/client. The following paragraphs further depict the view taken by the SC in the Ekta Kapoor Case, wherein it distinguishes material that may appear to be obscene to a hypersensitive individual and material that is patently obscene:

 

71. The Indian audiences have of course come of age from the times of two flowers cuddling each other symbolizing male and female union to more explicit manners of displaying such activity. Still, the acceptable norms of permissiveness in the society cannot be equated with declining moral values. What is patently obscene from an ordinary person's point of view, would remain to be so for all times to come. There is always a thin line between what are acceptable limits of display of physical intimacy and obscenity.”

 

It is interesting to note that while the said decision was challenged before the SC, it has only granted an interim stay on arrest, and the challenge remains pending.

 

III.    SUPREME COURT’S VIEW IN THE RECENT TVF JUDGMENT

 

Now we come to the La raison principale, the TVF Judgement passed by the Division Bench of the Hon’ble Supreme Court, which chartered and navigated through the law and jurisprudence revolving around obscene material and set forth dicta qua the scope, purview, and expanse of the offences under the aegis of the IT Act and the IPC.

 

By way of background, the TVF Judgment arose out of the Hon’ble High Court of Delhi’s decision to uphold the registration of an FIR, which was made against certain excerpts of an episode in a web series named ‘College Romance’ (“Web Series”) that as per the complainant. comprised expletives and profane language and were construed to be obscene and sexually explicit. To succinctly explain, the High Court, in its judgment by referencing specific excerpts of one of the episodes of the Web Series considered them to be obscene and vulgar and also considered that as the web series was freely available in cyberspace, it would also hamper the impressionable minds of minors.

 

However, the Supreme Court after taking cognizance of the facts and circumstances of the matter adjudicated over four aspects of the High Court’s view i.e., a) the High Court incorrectly framed wrong question for inquiry; b) error is in the finding of the High Court that the language is full of swear words, profanities, and vulgar expletives and thereby, per se ‘obscene’; c) the High Court erred in its legal approach while assessing whether the material is obscene as it did not objectively consider the context of the content; d) lastly, applying the wrong standard or perspective for determining obscenity, over the offences for production, transmission, and online publication of obscene and sexually-explicit material under Sections 67 and 67A of the IT Act. It succulently encapsulated the standard for charting out an offence of obscenity, “At the outset, the enquiry under Section 292 of the IPC or under Section 67 of the IT Act does not hinge on whether the language or words are decent, or whether they are commonly used in the country. Rather, from the plain language of the provision, 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.

 

Ultimately, the Supreme Court held that “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’”. The Supreme Court was also of the view that the Web Series must be assessed as a whole, considering the intent of the creator behind the content, the value ascribed to the same, and the possible influence on the minds of the consumer/reader. It further held that the work cannot be read in isolation, nor can the literal meanings of words be read without ignoring the larger narrative, or the context in which the same have been used. Based on the aforesaid, the Supreme Court held that the Web Series could not be deemed to be obscene, holding that the usage of the sexually explicit language does not arouse sexual feelings or lust in any viewer of ordinary prudence and common sense.

 

IV.    CONCLUSION

 

The verdict in the TVF Judgment, whilst embracing a more progressive and liberal stance with the evident intent to protect and balance the freedom of free speech and expression, acknowledges evolving social standards, recognising that what was once deemed obscene may not hold true today. Further, the Supreme Court, by way of the evolving jurisprudence, impresses upon the need to assess the entirety of a work, including its plot, themes, and messages, to determine obscenity. Context is crucial in this evaluation, as understanding the creator’s intended message helps discern whether the language serves a narrative purpose or is gratuitously offensive.

 

Pertinently, the shift from the Hicklin Test to the Community Standards Test and thereafter to the Contemporary Community Standards Test signifies an evolving jurisprudence in relation to literal interpretations and subjective sensitivities of the content in question.

 

Nevertheless, balancing artistic expression vis-à-vis obscenity concerns remains a nuanced challenge for the courts, given the wide import of the provision, the lack of defined terms under the provision, and the major hurdle being the subjective interpretation of the content by different judicial minds. In the author’s view, the TVF Judgment is a step in the right direction and would certainly contribute to this evolving legal landscape.

 

Ultimately, the concept of obscenity is as elusive as it is pervasive, resting not merely in the content itself but in the eye and mind of the beholder. As society evolves, so too must our understanding of what constitutes obscenity. Perhaps the real question we must ask ourselves is not just what we find obscene, but why and how this shapes the laws that govern us. In the end, is it the law that defines obscenity, or is it our collective conscience? Which maybe the Supreme Court considers in the Ekta Kapoor Case, which is still pending determination.


 

[1] Rohan Joshi & Ors. vs. State of Maharashtra, Order dated February 16, 2015, Criminal Writ Petition No. 628 of 2015.

[2] Brian A. Garner, Black's Law Dictionary (8th ed. 2004) 2572.

 

*This article has been authored by Dr. Abhimanyu Chopra, Aman Chaudhary and Kushagra Jain. The authors Dr. Abhimanyu Chopra (Partner), Aman Chaudhary (Senior Associate) and Kushagra Jain (Associate) are with AZB & Partners. Views expressed here are those of the authors.

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