After watching a few episodes of the web series College Romance, a show centred on a group of youngsters, their friendships, relationships, and sex lives, a single-judge bench of the Delhi High Court directed authorities to file a First Information Report (FIR) against its makers and actors, over “profane and vulgar” language. In the verdict pronounced on March 6, Justice Swarana Kanta Sharmaj said that she had to use earphones to watch the show as the “profanity of language” was such that it “could not have been heard without shocking the people around.” The verdict, which strongly chastises the language used in the show, is rooted in paternalism and subjective notions of morality.
College Romance was first uploaded to the YouTube channel The Timeliners in 2018 and is currently streaming on the over-the-top (OTT) platform SonyLIV. Among other things, the complainant highlighted certain portions of the fifth episode of the show’s first season, titled ‘Happily F***ed Up’. The episode shows one of the characters, Naira (Apoorva Arora), objecting to her boyfriend Bagga (Gagan Arora) using certain swear words. Towards the end of the episode, however, she herself ends up using the same expletives in anger. The High Court noted that in the disputed portions, Bagga refers to “a sexually explicit act in spoken language,” and that he later appreciates Naira using the same language with others.
Based on the complaint, earlier in September 2019, an additional chief metropolitan magistrate (ACMM) had directed the Delhi police to register an FIR against the show’s makers and actors under various sections of the Indian Penal Code (IPC), and Sections 67 and 67A (punishment for publishing or transmitting of material containing sexually explicit act) of the Information Technology Act (IT Act). In November 2020, an Additional Sessions Judge modified the Magistrate’s order, dropping the IPC provisions and directing the police to register a case only under Section 67A of the IT Act.
When the accused challenged these orders before the Delhi High Court, it held that they were liable to be prosecuted under Sections 67 and 67A of the IT Act. Among the accused are actors Apoorva Arora and Gagan Arora, the show’s casting director and the shareholders of TVF Media Labs Pvt Ltd which produced the series.
“The words and language used in this web series will certainly be found by many as naturally disgusting, dirty and sexual and these swear words and profanities certainly are not part of standard Hindi or any other Indian language. In Indian society, even today, swear words are not spoken in the presence of the elderly, at religious places, or in front of women or children… Such linguistic decay of Hindi language will go beyond falling standards in society,” the Delhi High Court said in its verdict against the show.
Ironically, though the judgement noted that the government and the courts “cannot indulge in moral policing in the name of Indian values,” it is also full of paternalistic undertones and portrays an impulse to protect culture. It calls for action under Section 67 of the IT Act, which criminalises publishing or transmitting in electronic form “any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend 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”.
A plain reading of the provision would indicate that there is no explicit criminalisation of the use of expletives alone. On the contrary, it is concerned with the regulation of lasciviousness and pruriency. The language of the provision is similar to that of Section 292 (punishment for selling obscene materials) of the IPC which embodies the archaic Hicklin Test of the Victorian era to differentiate between art and obscenity.
While interpreting Section 292 of the IPC, the Supreme Court in the famous case of Samaresh Bose held that the mere use of vulgar language which may shock readers with refined taste, would not fall within its scope. In fact, the apex court pointed out that vulgar language need not necessarily appeal to prurient interests and may instead evoke revulsion and disgust while helping readers understand the nature of the characters in a novel. The distinction between obscenity and mere vulgarity has been recognised by various High Courts as well. In 2019, the Kerala High Court opined that the use of ‘unparliamentary, abusive and unprintable’ words would not attract Section 67 of the IT Act unless they have the effect of appealing to prurient interests.
It is crucial to note that a work alleged to contain obscene material ought to be analysed objectively in its entirety, and not judged from a “depraved” person’s standard. In the context of censorship, the Supreme Court lucidly held as follows: “Our standards must be so framed that we are not reduced to a level where the protection of the least capable and the most depraved amongst us determines what the morally healthy cannot view or read.”
Unfortunately, the Delhi High Court does not comprehensively engage with these principles. Instead, it appears to have been guided by an intent to protect the purity of language and culture, while shielding “impressionable minds” from profanities. This is best reflected in the court’s rebuking of the character Bagga, saying, “The bug of the obscene, profane and bad language of ‘Bagga’ cannot be allowed to pollute the language of people.”
The other provision invoked against the accused is Section 67A of the IT Act, which criminalises publishing or transmitting in electronic form, material which contains ‘sexually explicit acts or conduct’. Strangely, though the High Court clearly noted the absence of sexually explicit scenes, it went on to conclude that the words used by the protagonists qualify as sexually explicit acts or conduct.
The judgement said that Bagga’s words paint pictures of a sexually explicit act, “arousing prurient feelings.” It also said that the accused could not get away by saying that the said act was not done, shown or filmed, but only spoken of. “Depiction does not connote filming alone but conveying by a medium, which in this case is spoken language,” it said.
But the expression ‘sexually explicit acts or conduct’ ought to be understood and interpreted in the context of obscenity and the principles discussed earlier, and not in a manner that proscribes mere reference or description of sexually explicit acts or conduct.
However, in paragraph 71 of the verdict, the High Court observed: “The Indian cinema which has now also extended to such web series and other short films etc. at social media and OTT platforms, undoubtedly is not the same as was in the old films where the romance between two persons was symbolically shown by showing two birds or flowers meeting on the screen”
The court declared that despite this change, “the majority of people in this country” do not use the type of language used in College Romance, and therefore it fails “the test of public decency.” Although it clarified that the judgement does not include a direction to arrest the accused, it added that if the disputed episode was still posted on YouTube without classification that the series is to be viewed only by people who are 18 years or above, the video sharing platform must take appropriate steps as per law.
Paternalistic approaches to the regulation of entertainment invariably fail to regard viewers as autonomous and rational individuals who are perfectly capable of deciding what is good for them. The assumption that the use of expletives and distasteful language would corrupt citizens’ minds is an affront to decisional autonomy. The Delhi High Court’s concern regarding children watching adult content is valid, but this does not justify its interpretation of the penal provisions. It is desirable that judgements predominantly focus on rigorous analysis of the text of the provision and jurisprudence, as opposed to morality and good taste. Judicial attempts to prevent ‘linguistic decay’ and preserve the youth’s morality through criminal law will encourage petulant citizens to file frivolous cases and become arbiters of what is good for others.
Rahul Machaiah is a lawyer from Karnataka. He holds an LLM in Law & Development from Azim Premji University. Views expressed are the author’s own.