Apoorva Arora & Anr. Etc. vs State (Govt. of NCT of Delhi) & Anr.

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 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 tends to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it – However, the difference between them is only that s.67 is a special provision that applies when the obscene material is published or transmitted in the electronic form – Since, in the present case, the alleged offending material is a web-series, the case is considered u/s.67, IT Act but the same test for obscenity as laid down u/s.292 will apply since the provisions are similarly worded in that respect. [Para 12] Penal Code, 1860 – s.292 – “Obscenity” – Material if obscene – Process and method to objectively judge – Discussed. Information Technology Act, 2000 – s.67A – ‘sexually explicit act or conduct’ – s.67A when not attracted:

Held: Facts of the present case do not attract s.67A as the complainant’s grievance was about excessive usage of vulgar expletives, swear words, and profanities – There was no allegation of any ‘sexually explicit act or conduct’ in the complaint and as such, s.67A does not get attracted – High Court did not give any reason whatsoever on how s.67A was attracted to the facts of the present case – Offence of s.67A not made out. [Para 45, 46] Penal Code, 1860 – s.292 – “Obscenity” – Hicklin test; “Community Standard Test” – Discussed – Precedents on s.292 traced.

Information Technology Act, 2000 – ss.67A, 67 – “explicit”, “act”, “conduct” – ‘obscenity’:

Held: s.67A criminalises publication, transmission, causing to publish or transmit in electronic form any material that contains sexually explicit act or conduct – Though the three expressions “explicit”, “act”, and “conduct” are open-textured and are capable of encompassing wide meaning, the phrase may have to be seen in the context of ‘obscenity’ as provided in s.67 – Thus, there could be a connect between s.67A and s.67 itself – For example, there could be sexually explicit act or conduct which may not be lascivious – Equally, such act or conduct might not appeal to prurient interests – On the contrary, a sexually explicit act or conduct presented in an artistic or a devotional form may have exactly the opposite effect, rather than tending to deprave and corrupt a person. [Para 47]