Delhi High Court: In a petition filed by TVF Media Labs Private Limited, the single judge bench of Swarana Kanta Sharma, J., while upholding the order passed by Additional Sessions Judge, Rohini District Court, New Delhi (‘ASJ’) which charged the petitioner under the provision of the Information Technology Act, 2000 (‘IT Act’) and directed to register a First Information Report (‘FIR’) against the petitioner, stated that the use of vulgar language in public domain and social media platform which are open to children of tender age needs to be taken seriously
Factual Matrix
In the matter at hand, the petition was filed under Section 482 of the Code of Criminal Procedure, 1973 seeking quashing of the order dated 10.11.2020 passed by the ASJ and the order dated 17.09.2019 passed by the Additional Chief Metropolitan Magistrate (North), Rohini District Court, New Delhi (‘ACMM’) wherein it was observed that the case under Sections 292 and 294 of the Penal Code, 1860 (‘IPC’) and Section 67 and 67-A of IT Act was prima facie made out and the concerned Station House Officer was directed to register FIR against the petitioners under appropriate provision of law after conducting investigation into the allegations of the complainant.
The petitioner is the owner of the web series titled ‘College Romance’ broadcasted on various internet platforms such as YouTube, TVF Web Portal and Mobile Applications. The complainant contended that the web series contains vulgar and obscene material which depicts women in indecent form, which is in violation of the provisions of Sections 292 and 294 of IPC, Section 67 and 67-A of IT Act and Section 2(c), 3 and 4 of Indecent Representation of Women Prohibition Act, 1986.
It was contended that though vulgar words had been used throughout the entire web series ‘College Romance’, Episode 05 of Season 01 of the said web series had crossed all the limits of vulgarity and internet obscenity, in the name of entertainment and with the motive of financial gains which was available to be viewed by everyone in India on YouTube without give any legal disclaimer or warning against age appropriate content.
The petitioner being aggrieved by the order passed by ACMM, filed a revision petition before ASJ who modified the order stating that the Sections 292 and 294 of IPC cannot exist together with Section 67-A of the IT Act, thus FIR was to be registered only under Section 67-A of the IT Act and the other Sections were to be dropped.
Issue
Whether this Court, in the facts and circumstances of the case, will hold a view that the content of the web series ‘College Romance’ is obscene and that the order of learned ASJ directing registration of FIR against the petitioners under Section 67-A of IT Act only, is correct in law?
Court Analysis
The Court navigated through Section 67 and 67-A of the IT Act and stated that the object behind the enactment was to punish the acts of publishing or transmitting obscene material in electronic form.
The Court stated that to decide whether the content was obscene or not, the test as per judicial precedents had to be that of an ordinary common person and not a hypersensitive person. Therefore, the Bench watched a few episodes of the web series to decide the case more effectively and fairly, acting itself as a common prudent person and accordingly stated that the actors or protagonists in the web series were not using the language used in our country i.e. civil language.
The Court exclaimed that it had to watch the episodes with the aid of earphones, in the chamber, as the profanity of language used was of the extent that it could not have been heard without shocking or alarming the people around and keeping in mind the decorum of language whether in professional or public domain or even with family members at home.
“The language used was not the language that the nation’s youth or otherwise citizens of this country use, and this language cannot be called the frequently spoken language used in our country.” emphasised the Court.
The Court observed that the people who were likely to be affected or corrupted, were of the impressionable minds, since there was no warning or disclaimer that this series was to be viewed by persons who were 18 years or above.
“The fact that the words used in the web series are of nature that cannot even be reproduced in the judgment even for the purpose of adjudication is a pointer towards the extent of profanity of the language used by the web series.” observed the Court.
The Court vociferated that in the name of individual freedom, such language cannot be permitted to be served to the general public and be represented to the world at large as if this was the language that this country and youth in educational institutions speaks. Therefore, the Court opined that the concern of the complainant was not devoid of merit.
“While balancing observations with the fundamental rights prescribed under the Constitution of India, the obscenity depicted in the web series has no cogent justification in the name of being the new language of the youth and accepted by the masses.” observed the Bench.
The Court noted that the male protagonist uses words describing male and female genitalia and sexual act, thus by words, painting pictures of sexually explicit act which brings it under ambit of arousing prurient feelings by so doing. Therefore, the said content would attract the criminality under Section 67 and 67-A of IT Act.
The Court points towards the legal duty of the online content curator to ensure that the transmitted material aligns with the expectations of the intended audience. Additionally, the content must not cross the fine line between acceptable standards of decency and vulgar language, in order to prevent any legal transgressions.
The Bench further stated that TVF Media Labs Pvt. Ltd was involved in creation of episodes of the subject web series, which was streamed on various platforms such as Sony Liv, YouTube, including TVF Play (an OTT Platform) which clarified that the ‘online content curator’ as well as the intermediaries were in clear violation of the guidelines.
The Court clarified that while it was aware that it cannot ensure by way of orders, nor there can be any scheme by way of which a perfect society of perfect individuals can be brought about, however, the scheme of the law and rules have to be appropriately tailored to ensure that without there being infringement of fundamental rights, there was no degrading and depravity caused by use of unhindered obscenity, profanity and foul language in free for all social media platforms.
The Court was of the view that it had to strike a delicate balance between free speech and freedom of expression and transmitting to all, without classification of the content, which maybe obscene, profane, lascivious, sexually explicit in spoken language.
“Words and languages are very powerful medium and needless to say, words have the power to paint and draw a picture at the same time.” stated the Bench.
Accordingly, upheld the order passed by ASJ to the extent whereby it was held that section 292 and 294 IPC were not made out and 67-A of the IT Act would be sustained. Further clarified that the direction to register FIR did not include a direction to arrest any of the accused or petitioner.
[TVF Media Labs Private Limited v. State (Govt of NCT of Delhi), 2023 SCC OnLine Del 1382]
Advocates who appeared in this case :
For the petitioner- Advocate Vinayak Mehrotra;
For the Respondent- Additional Public Prosecutor Naresh Kumar Chahar.
