Is Profane Language 'Obscene' & 'Sexually Explicit' As Per Sec.67/67A IT Act? Supreme Court Reserves Judgment In 'College Romance' Case

The matter was heard by a bench of Justice AS Bopanna and Justice PS Narasimha. The bench had earlier agreed to examine the legal issue whether use of profane language falls under Section 67/67A of the IT Act.

Section 67A of the IT Act, prescribes punishment for a person who publishes or transmits in electronic form material containing ‘sexually explicit act or conduct’. Section 67 IT penalises transmission of 'obscene' materials through electronic form.

Senior Advocate Mukul Rohatgi appearing for the makers argued that no offence is made out under Section 67A of the IT Act. He argued that 67A would not apply to profane language.  "67A talks about sexually explicit act, which will have to be something akin to pornography. 67B is for child pornography. This is the scheme of the Act. It has nothing to do with profanity. As the FIR only discloses profanity, Section 67 and 67 A are not attracted" he argued. 

"It is a matter of common knowledge that people speak to each other like this. These are connotations of normal life, this is not some moral lecture. What is obscene and what is not, also differs from different points of views. The Court must consider what the author is trying to depict. These are depictions, it is not a question of morality"  Rohatgi said in Court. 

Senior Advocate Harish Salve also appearing for the makers argued that the series was only depicting everyday life of youngsters. “For youngsters today, it is not a big deal to use such language. Some complainant comes along, living in his own fantasy land saying this is all wrong. That is not what freedom of speech is about, “ he said.

Salve relied on the 1996 Supreme Court judgment Bobby Art International vs Om Pal Singh Hoon, in which the Court set aside the decision of the Delhi High Court which had restrained the screening of the movie 'Bandit Queen'. The Supreme Court in this case had held that the screening of the film cannot be prohibited merely because it depicts obscene and graphic events.

Salve said that scene complained about does not depict any sexual act but only involves use of profane language. "The complainant says that this shows our children in a bad light. But that is the fundamental right of free speech. Showing people in a good light or good light..those are subjective standards and cannot be the basis of content control,” he argued.

“We are not living in the Victorian era” he said. 

Senior Advocate Sajan Poovayya appearing for the scriptwriter informed the Court that even though writer was not involved in publishing, transmitting or producing the series, he has been named in the FIR. "Effectively, now I can’t even write a script, because if it ultimately becomes a movie and somebody transmits or publishes it I am made liable" he said. 

On the applicability of the provisions of the IT Act, he said "we can’t blur the difference between Section 67 and 67A. If we bring in issues of obscenity, profanity etc. in 67A, then we don’t need 67 at all. If there is an ocular depiction, then fine. If it's a verbal depiction, 67A cannot be attracted at all". 

The Counsel appearing for the Delhi Police argued that even if the community standards test is applied, the show will fail. "Nobody uses such language in college, home or anywhere else" he said.

"The entire web series is around sexual activity, and about youngsters having sexual desires. They are promoting that it is okay to be like this. This is what is happening with stand up comedy in India also. Bandit queen was certified by the censor board. But we are talking about a web series, where there is no regulation as such. This kind of content is increasing so much that the I&B Ministry has issued a notification to control such content. The makers have a moral responsibility. What they are trying to do is directly move to American society where everything is allowed. Tomorrow I can say anything and they cannot arrest me, that is what they are asking" he said. 

Background

In March 2023, the Delhi High Court had ruled that the language used in web series “College Romance” does not pass "morale decency community test" of a common man and transgresses into the area of obscenity. The High Court had said that the use of vulgar language in public domain and social media platforms which are open to children of tender age needs to be taken seriously.

The High Court was hearing petitions moved by TVF Media Labs Pvt. Ltd., Casting Director of web series 'College Romance' and its lead actors against the orders passed by the sessions court and ACMM for registration of FIR against them. The High Court had upheld the registration of FIR against them under Section 67 and 67A of the IT Act.

“Most certainly, this Court notes that this is not the language that nation’s youth or otherwise citizens of this country use, and this language cannot be called the frequently spoken language used in our country", the High Court had said.

“Therefore, on the basis of this finding it can be held that the content of the web series will certainly attract the criminality as envisaged under Section 67 of the Information Technology Act", the High Court had held.

“The web series does deprave the morality of the impressionable minds. Though it may be argued that the State cannot prescribe morality and Court cannot indulge in moral policing in the name of Indian values, this Court holds that when the self regulatory bodies do not do their duty and allow such content to be served indiscriminately to the people of all ages and the law does not define or provide specific remedy, the people have to turn to the Courts only.” The High Court said in its ruling.

Case Title: TVF Media Labs Pvt. Ltd. v. State (Govt. Of NCT Of Delhi) SLP(Crl) No. 5532/2023