Information Technology Act, 2000 – Sections 67 and 67A – The appellants, involved in the creation of the web-series ‘College Romance,’ are accused of publishing obscene content under Sections 67 and 67A of the IT Act, leading to an FIR against them – “FIR Quashed, Content Upheld: Supreme Court Rejects Charges Against “College Romance” webseries for Vulgarity”

SUPREME COURT OF INDIA

DIVISION BENCH

APOORVA ARORA AND ANOTHER ETC — Appellant

Vs.

STATE (GOVT. OF NCT OF DELHI) AND ANOTHER. — Respondent

( Before : A.S. Bopanna and Pamidighantam Sri Narasimha, JJ. )

Criminal Appeal No(s)……2024 (Arising Out of SLP(Crl.) No(s). 5463-5464 of 2023 with Criminal Appeal No(s). ….2024 (Arising out of SLP (Crl.) No. 6786 of 2023; Criminal Appeal No(S)…..2024; (Arising out of SLP (Crl.) No. 5532 of 2023) Criminal Appeal No(s)…..2024 (Arising out of SLP (Crl.) No. 8385-8387 of 2023

Decided on : 19-03-2024

“FIR Quashed, Content Upheld: Supreme Court Rejects Charges Against “College Romance” webseries for Vulgarity”

Information Technology Act, 2000 – Sections 67 and 67A – The appellants, involved in the creation of the web-series ‘College Romance,’ are accused of publishing obscene content under Sections 67 and 67A of the IT Act, leading to an FIR against them – The primary legal issue is whether the content of the web-series is obscene or sexually explicit as per the IT Act, warranting the registration of an FIR – The appellants argue that the content is not obscene, does not contain sexually explicit acts, and falls within the scope of artistic expression protected under Article 19(1)(a) – The complainant contends that the language used in the web-series is obscene and tends to deprave and corrupt impressionable minds, thus violating Section 67 of the IT Act – The court applies the ‘community standard test’ to determine obscenity and concludes that profanity alone does not constitute obscenity unless it arouses sexual thoughts – The court analyzes the provisions of Sections 67 and 67A of the IT Act, emphasizing the need for material to be lascivious or appeal to prurient interests to be considered obscene – The High Court dismissed the appellants’ petition to quash the FIR, applying the ‘community standard test’ to deem the content obscene and sexually explicit, warranting investigation and prosecution – The High Court has not provided any explanation for why Section 67A is not attracted to the present case – The complainant’s complaint is about excessive usage of vulgar expletives, swear words, and profanities, and there is no allegation of sexually explicit act or conduct – Section 67A criminalizes the publication, transmission, or transmission of material containing sexually explicit act or conduct – The expressions “explicit”, “act”, and “conduct” can have wide meanings, but they may have to be seen in the context of ‘obscenity’ as provided in Section 67 – Sexually explicit acts or conduct may not be lascivious or appeal to prurient interests – The Supreme Court allowed the appeal, set aside the High Court’s judgment, and quashed the FIR against the appellants, concluding that the content did not meet the threshold for obscenity under the IT Act.

JUDGMENT

Pamidighantam Sri Narasimha, J. – Leave granted.

2. The appellants/accused are the actors, casting director, script writers, creator of the web-series College Romance[1], and the media company that owns the YouTube channel on which the web-series was hosted[2]. They are sought to be investigated and prosecuted for production, transmission, and online publication of obscene and sexually-explicit material under Sections 67 and 67A of the Information Technology Act, 2000[3]. The appellants petition under Section 482 of the Code of Criminal Procedure, 1973[4] for quashing the orders of the Additional Chief Metropolitan Magistrate and Additional Sessions Judge directing registration of FIR against them was dismissed by the High Court by the order impugned before us.[5] Having considered the matter in detail and for the reasons to follow, we have allowed the appeal, set aside the judgment of the High Court, and quashed the FIR bearing number 403/2023 dated 16.04.2023 at PS Mukherjee Nagar, Delhi against the appellants under Sections 67 and 67A of the IT Act.

3. Facts: The short facts leading to filing of the present appeal are as follows:

4. Reasoning of the High Court: The High Court, while dismissing the petition for quashing, held that the object of Sections 67 and 67A of the IT Act is to punish the publication and transmission of obscene and sexually explicit material in the cyber space. It relied on the community standard test to determine whether the material is obscene, as laid down by this Court in Aveek Sarkar vs. State of West Bengal[9] and followed in decisions of various High Courts[10]. By applying this test, the High Court held as follows: First, applying the standard of a common prudent man, it found that the episode did not use civil language and there was excessive use of profanities and vulgar expletives, and a clear description and reference to sexually explicit acts. The determination of how the content impacts a common man must be determined in the Indian context, as per Indian morality, keeping in mind contemporary standards of civility and morality.[11] In the allegedly offending portion (in Season 1, episode 5 from 5:24 to 6:40 minutes and 25:28 to 25:46 minutes), the male protagonist in a conversation with the female protagonist uses terms describing male and female genitalia and sexual acts, thereby making them sexually explicit and arousing prurient feelings. While the female protagonist is heard objecting to the language and expressing disgust over it, she does so by repeating the same to the male protagonist. The male protagonist then uses more vulgar expletives and indecent language, which is repeated by the female protagonist in a later part of the episode. The High Court held that the depiction of a sexually explicit act is not necessarily through filming but can also be through spoken language. It was found that the persons who are likely to be affected or persons whom such content can deprave or corrupt are impressionable minds in the present case, as there is no disclaimer or warning that classifies the web-series as being suitable only for persons who are 18 years or above. The content crossed the threshold of decency considering its availability to the public, including children. Further, the Court felt that the episode could not be heard in the courtroom without shocking or alarming the people and to maintain the decorum of language.

5. Second, a representation that the language used in the episode is the one used in the country and by its youth in educational institutions is not protected under the guarantee of freedom of speech under Article 19(1)(a). Third, that the online content curator and the intermediaries are in violation of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 as the content has not been correctly classified as A-rated and there is no warning regarding the use of profanities and expletives. Lastly, the Court took note that vulgar language, profanities, and swear words must be regulated in the public domain and on social media platforms as they are a threat to impressionable minds like children of tender age. Further, a representation that the use of such language in general parlance is the “new normal” is a distortion of facts as it is still not spoken in the presence of the elderly, women and children, or at religious places. To maintain linguistic morality, the sanctity and reverence of languages must be protected.

6. The High Court also rejected the appellants contention that the mandatory procedure under Section 154(3) of the CrPC, which is an important procedural safeguard, was not followed before resort to Section 156(3). The High Court preliminarily negatived this submission by holding that Section 154(3) only uses the term “may” and not “shall”, and that the complainant anyways approached the ACP, Cyber Cell, North District, who is the authority higher to the SHO.

7. Submissions of the Appellants: We heard Mr. Mukul Rohatgi, Mr. Harish Salve, Ms. Madhavi Divan, Mr. Sajan Poovayya, Sr. Advocates. Learned senior counsels for the appellants have argued that the allegedly offending portions of Season 1, Episode 5 of the web-series do not meet the threshold for obscenity and that the High Court has erred in characterising the material as obscene. Further, these portions do not contain any sexually explicit act and as such no offence under Sections 67 or 67A of the IT Act is made out. Elaborating their submissions, the appellants argued:

8. Submissions of the complainant: We have heard learned counsel Mr. Arvind Singh, advocate-in-person, who is the complainant (respondent no. 2). He has argued that the present case is not fit for quashing. The alleged content of the web-series falls within the purview of Sections 67 and 67A of the IT Act and also offends Sections 3 and 4 of the Indecent Representation of Women (Prohibition) Act, 1986, which the High Court has failed to consider. Relying on the community standard test and the judgments of this Court in Aveek Sarkar (supra) and Devidas Ramachandra Tuljapurkar v. State of Maharashtra[18], learned counsel has argued that the abovementioned portions of the webseries are obscene and sexually explicit. First, the material appeals to prurient interest in sex, as determined by the average person applying contemporary community standards. The titles of the episodes and the plot revolves around college students engaging in sexual activity. The content of the episodes also uses sexually explicit language and expletives, which cannot be termed as the “new normal”. Second, the material portrays sexual conduct in a patently offensive way. Third, the material lacks serious literary, artistic, political or scientific value. Fourth, the material tends to arouse sexually impure thoughts. Fifth, the material is not in the larger interest of public good or in the interest of art, literature, science and therefore, the obscenity is not justified. Learned counsel has also pointed out that the material in the present case is freely available on the internet and is accessible to any person, including children and hence must be regulated in the interests of public order, morality, and decency.

9. Analysis: The central issue is whether the use of expletives and profane language in the titles and content of the episodes of the web-series College Romance constitutes an offence of publication and transmission of obscene and sexually explicit content under Sections 67 and 67A of the IT Act. We will examine each of these provisions in the context of obscenity for the purpose of Section 67 and sexually explicit material for the purpose of Section 67A.

10. We will first deal with the contention that the material is obscene. Section 67 of the IT Act is as follows:

11. This Court has laid down the meaning, test, standard, and method for determining whether some material is obscene in the context of Section 292 of the IPC.

12. Section 292 defines obscene as a book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object that is lascivious, appeals to the prurient interest, or has such effect, if taken as a whole, that tends to deprave and corrupt persons who are likely to read, see or hear the matter contained in it. The provision criminalises the sale, distribution, public exhibition, circulation, import, export, etc of obscene material. The provision excludes such material when the publication is justified as being for public good on the ground that it is in the interest of science, art, literature, or learning or other objects of general concern; such material is kept or used for bona fide religious purposes; it is sculptured, engraved, painted or represented on or in ancient monuments and temples. The relevant portion of Section 292 has been extracted for reference:

It is evident that “obscenity” has been similarly defined in Section 292 and Section 67 as material which is:

However, the difference between them is only that Section 67 is a special provision that applies when the obscene material is published or transmitted in the electronic form.[19] Since the alleged offending material is a web-series, the case must be considered under Section 67 of the IT Act[20] but the same test for obscenity as laid down under Section 292 will apply since the provisions are similarly worded in that respect. In this context we will examine how obscenity is understood.

13. Recounting the development through judicial precedents: This Court upheld the constitutional validity of Section 292 as a reasonable restriction on free speech and applied the Hicklin test[21] to determine whether the book Lady Chatterleys Lover was obscene in the decision of Ranjit D. Udeshi vs. State of Maharashtra.[22] As per the Hicklin test, a material is obscene if it has the tendency to deprave and corrupt the minds of those who are open to such immoral influences and into whose hands the publication is likely to fall:[23]

14. This test lays emphasis on the potentiality of the material to deprave and corrupt by immoral influences.[24] To determine this, the Court must apply itself to consider each work at a time. It must take an overall view of the obscene matter in the setting of the whole work but also consider the obscene matter by itself and separately to find out whether it is so grossly obscene and it is likely to deprave and corrupt. A mere stray word or insignificant passage would not suffice to qualify the material as obscene.[25] The Court also clarified that sex and nudity in art and literature cannot in and of themselves be regarded as evidence of obscenity without something more.[26] Sex must be treated in manner that is offensive to public decency and morality, when judged by our national standards, and must be likely to pander to lascivious, prurient, sexually precocious minds, and appeal to or have the tendency to appeal to the “carnal side of human nature” for it to be obscene.[27]

15. The Court also emphasised its role in maintaining a delicate balance between protecting freedom of speech and artistic freedom on the one hand, and public decency and morality on the other. It held that when art and obscenity are mixed, the art must be so preponderating that the obscenity is pushed into the shadows or is trivial and insignificant and can be overlooked.[28] Similarly, if the matter has a preponderating social purpose and gain that overweighs the obscenity of the content (such as medical textbooks), then such material is constitutionally protected by freedom of speech and cannot be criminalised as obscene.[29]

16. The Court followed the Hicklin test and Ranjit Udeshi (supra) in Shri Chandrakant Kalyandas Kakodkar v. State of Maharashtra[30] but it also introduced certain caveats and refined the test to some extent. Considering the material in that case, a Marathi short story Shama, the Court held that the story read as a whole does not amount to pornography or pander to the prurient interest. Even if the work is not of high literary quality and is immature and of bad taste, there was nothing that could deprave or corrupt those in whose hands it is likely to fall, including adolescents.[31] The Court also cautioned that the standard for the artist or the writer is not that the adolescent mind must not be brought in contact with sex or that the work must be expunged of all references to sex, irrespective of whether it is the dominant theme.[32] The test for obscenity was stated as: “What we have to see is that whether a class, not an isolated case, into whose hands the book, article or story falls suffer in their moral outlook or become depraved by reading it or might have impure and lecherous thoughts aroused in their minds.”[33]

17. In KA Abbas v. Union of India[34] the Court summarised the test and process to determine obscenity as follows:

18. In Samaresh Bose (supra), which has been relied on by the appellants, this Court differentiated vulgarity from obscenity. The material in question in this case was a Bengali novel titled Prajapati. The Court noted that while slang and unconventional words had been used in the book along with suggestions of sexual acts, there was no description of any overt act of sex. The words are vulgar and create a feeling of disgust and revulsion and may shock the reader but this does not necessarily amount to obscenity, which is the tendency to deprave and corrupt.[35] It held that the use of slang and unconventional words; an emphasis on sex; a description of female bodies; and narrations of feelings, thoughts and actions in vulgar language in the novel do not render the material obscene.[36] Further, a mere reference to sex is insufficient for obscenity and does not make a material unsuitable for adolescents.[37]

19. The Court also summarised the process that must be followed to objectively assess whether some material is obscene. It held that the judge must first place himself in the position of the author to understand his perspective and what he seeks to convey and whether it has any literary or artistic value. The judge must then place himself in the position of a reader of every age group in whose hands the book (or material) is likely to fall and determine the possible effect or influence of the material on the minds of such persons. The relevant portion reads:

20. The Court then applied this test to the novel in question. By placing themselves in the position of the author and judging the work from his perspective, the Court found that his intention was to expose social evils and ills, for which the author has used his own technique. Similarly, the Court placed itself in the position of the readers who are likely to read the book. It held that the book was likely to be read by readers of “both sexes and all ages between teenagers and the aged” and found that while it may create a sense of shock and disgust, no reader would be depraved, debased, or encouraged to lasciviousness by reading the book.[38]

21. In Bobby Art International (supra) the question before the Court was whether certain scenes from the film Bandit Queen that depicted rape and nudity were obscene. Here, obscenity was not considered under Section 292 but under the 1991 Guidelines for Censor Board certification under the Cinematograph Act, 1952.[39] The Court did not cite or follow the Hicklin test as laid down in Ranjit Udeshi (supra) and Chandrakant Kalyandas (supra). Instead, it relied on the Guidelines and laid down the test for obscenity as follows:

22. The Court first considered the plot and theme of the film as a whole and then considered the individual scenes of nudity and rape. Judging the work as a whole and the alleged offending material specifically, the Court held that the scenes are likely to evoke tears, pity, horror, and shame. Only a perverted mind might be aroused in such a situation, and the purpose of censorship is not to protect the pervert or assuage the susceptibilities of the over-sensitive.[40] Further, the use of swear words and expletives that are heard everyday was also held to be harmless.[41] The Court rather emphasised the overarching social purpose and message of the film – to condemn rape and violence against women by showing the trauma and emotional turmoil of a victim of rape and to evoke sympathy for her and disgust for the rapist.[42] Thus, the material was held as not being obscene.

23. Similarly, in Director General, Directorate General of Doordarshan v. Anand Patwardhan[43], the Court applied the test of contemporary community standards to determine whether a documentary is obscene for the purpose of certification and telecast on Doordarshan. A three-prong test for obscenity was formulated as follows:

24. The Court relied on Ramesh v. Union of India,[45] where it was held that the effect of the words must be judged from the standards of a reasonable, strong-minded, firm and courageous person, and not from the perspective of weak and vacillating minds or those who sense danger in every hostile point of view.[46] Considering the documentary as a whole to determine its message, which cannot be conveyed by watching only certain bits, it was held that the film portrays social evils and does not seek to cater to the prurient interests of any person.[47]

25. The law on determining obscenity has been summarised and reiterated in Ajay Goswami v. Union of India[48] where the Court cited both Indian precedent and American jurisprudence. The principles that can be culled out from the judgment are as follows:

26. In S. Khushboo v. Kanniammal,[58] the issue pertained to quashing of FIR filed against the appellant, inter alia under Section 292 of the IPC, for an interview in a magazine where she called for the social acceptance of premarital sex, especially in live-in relationships, and cautioned women to take adequate protection to prevent unwanted pregnancies and sexually transmitted infections. The Court held that no offence was made out under Section 292 as the content is not lascivious (i.e., expressing or causing sexual desire); does not appeal to the prurient interest (i.e., excessive interest in sexual matters); and does not have the effect of tending to deprave and corrupt persons who are likely to read, hear, or see the material.[59] It was reiterated that mere reference to sex does not make the material obscene without examining the context of such reference.[60] The Court held that obscenity must be gauged with respect to “contemporary community standards that reflect the sensibilities as well as the tolerance levels of an average reasonable person.”[61] In this case, the appellant had not described any sexual act or said anything that arouses sexual desire in the mind of a reasonable and prudent reader to make the content obscene.[62] Hence the FIR was quashed by this Court.

27. A Division Bench of this Court in Aveek Sarkar (supra) also quashed an FIR under Section 292 against the magazine cover of Sports World and Anandbazar Patrika that carried the image of Boris Becker, a tennis player, posing nude with his fiancee, who are an interracial couple. The Court held that while judging a photograph, article or book to be obscene, “regard must be had to the contemporary mores and national standards and not the standard of a group of susceptible or sensitive persons”.[63] The Court held that the Hicklin test must not be applied as it “judged for obscenity based on isolated passages of a work considered out of context and judged by their apparent influence on most susceptible readers, such as children or weak-minded adults.”[64] Even in the United States, where the test was first formulated, the courts no longer apply the Hicklin test and instead apply the test formulated in Roth v. United States[65] where the US Supreme Court held that sex-related material is obscene only when it has the tendency of exciting lustful thoughts when judged from the perspective of an average person by applying the community standards test. Similarly, in Canada, the dominant test is the community standards problem test as per which a work qualifies as obscene when the exploitation of sex is its dominant characteristic and such exploitation is undue.[66] Taking note of these jurisprudential developments, the Court in Aveek Sarkar markedly moved away from the Hicklin test to the “community standard test” where the material is considered as a whole to determine whether the specific portions have the tendency to deprave and corrupt.[67]

28. Applying this test, it was held that a picture of a nude/semi-nude woman is not per se obscene unless it arouses sexual desire or overtly reveals sexual desire or has the tendency of exciting lustful thoughts.[68] In the present case, the posture and the background of the woman posing with her fiancee, whose photograph was taken by her father, does not have the tendency to deprave or corrupt those in whose hands the magazine would fall when considered in light of the broader social message of the picture against apartheid, racism, and to promote love and marriage across race.[69] We may note that this Court followed the community standards test in Devidas Ramachandra Tuljapurkar (supra).

29. Lastly, in N. Radhakrishnan v. Union of India,[70] it was again held that the Court must not be guided by the sensitivity of a pervert viewer and the setting of the whole work, its purpose, and the constituent elements of the character must be kept in mind while judging for obscenity.[71]

30. Application of the principles in the above-referred precedents to the facts of the present case: The purpose of elaborately tracing the precedents on Section 292 is to identify the essential content of the offence of obscenity, the test and the standard by which the allegedly offending material must be judged, and the oral and documentary evidences and the process that the court must rely on and follow for arriving at its conclusion.

31. For applying the test for obscenity to the allegedly offending portions of the web-series, it is important to take note of the approach adopted by the High Court.

32. The High Court purportedly applied the community standard test as laid down in Aveek Sarkar (supra) to arrive at its conclusion.[72] It correctly states the position of law that to determine whether certain content is obscene, the standard of determination is that of an ordinary common person and not a hypersensitive person.[73]

33. Wrong question, wrong answer: However, the High Court has incorrectly framed the question for inquiry. The issue framed by the High Court is whether the language employed in the episode is contemporarily used by the youth and whether it meets the threshold of decency. The High Court has framed the question for inquiry in the following terms:

34. From a plain reading of Section 67 and the material that is characterised as obscene therein, it is clear that the High Court posed the wrong question, and it has naturally arrived at a wrong answer. 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.[74] The High Court embarked on a wrong journey and arrived at the wrong destination.

35. Profanity is not per se obscene: The second threshold error is in the finding of the High Court that the language is full of swear words, profanities, and vulgar expletives that could not be heard in open court and also that it is not the language of the youth. Based on this finding, the High Court has held that the content is obscene as it “will affect and will tend to deprave and corrupt impressionable minds”. In its own words, the High Court held:

The specific material which the High Court found to be obscene, i.e., that which tends to deprave and corrupt impressionable minds, was “foul, indecent and profane” language. Nothing more. The High Court has 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. It is well-established from the precedents cited that vulgarity and profanities do not per se amount to obscenity.[75] 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. Obscenity relates to material that arouses sexual and lustful thoughts, which is not at all the effect of the abusive language or profanities that have been employed in the episode. Rather, such language may evoke disgust, revulsion, or shock.[76] The reality of the High Courts finding is that once it found the language to be profane and vulgar, it has in fact moved away from the requirements of obscenity under Section 67 of the IT Act. The High Court failed to notice the inherent contradiction in its conclusions.

36. No objective consideration: Third, the High Court has erred in the legal approach followed by it while assessing whether the material is obscene. In Samaresh Bose (supra), this Court has laid down, in great depth and detail, the process and method that must be followed to objectively judge whether the material is obscene.[77] The court must consider the work as a whole and then the specific portions that have been alleged to be obscene in the context of the whole work to arrive at its conclusion.[78] Further, the court must first step into the position of the creator to understand what he intends to convey from the work and whether it has any literary or artistic value. It must then step into the position of the reader or viewer who is likely to consume the work and appreciate the possible influence on the minds of such reader.[79] However, the High Court has not followed this judicial process before arriving at its conclusion, which is as follows:

37. It is evident from the above passages that the High Court has taken the meaning of the language in its literal sense, outside the context in which such expletives have been spoken. While the literal meaning of the terms used may be sexual in nature and they may 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, the 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 we notice the use of such language in the context of the plot and theme of the web-series, which is a light-hearted show on the college lives of young students, it is clear that the use of these terms is not related to sex and does 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 who will watch the material. Therefore, there is a clear error in the legal approach adopted by the High Court in analysing and examining the material to determine obscenity.

38. Furthermore, the objectivity with which a judicial mind is expected to examine the work in question was completely lost when the High Court evidently could not extricate itself from the courtroom atmosphere. The sensitivity and discomfort of the High Court is evident when it held:

39. Application of wrong standard: The last issue is that of the standard or perspective used by the High Court to determine obscenity. It is well-settled that the standard for determination cannot be an adolescents or childs mind, or a hypersensitive person who is susceptible to such influences.[80] However, the High Court has incorrectly used the standard of “impressionable minds” to gauge the effect of the material and has therefore erred in applying the test for obscenity correctly.[81]

40. The High Court has made several remarks on the need to maintain linguistic purity, civility, and morality by retaining the purity of language and deprecating the representation of expletives-filled language as the “new normal”. The real test is to examine if the language is in anyway obscene under Section 67 of the IT Act. The approach adopted by the High Court, as explained earlier, is based on irrelevant considerations.

41. Similarly, the metric to assess obscenity and legality of any content cannot be that it must be appropriate to play in the courtroom while maintaining the courts decorum and integrity. Such an approach unduly curtails the freedom of expression that can be exercised and compels the maker of the content to meet the requirements of judicial propriety, formality, and official language. Here again, the High Court committed a serious error in decision making.

42. The High Court has also expressed concern and anxiety about the free availability of the web-series on the internet to the youth and that it was not classified as being restricted to those above the age of 18 years. While such anxiety is not misplaced, the availability of content that contains profanities and swear words cannot be regulated by criminalising it as obscene. Apart from being a non-sequitur, it is a disproportionate and excessive measure that violates freedom of speech, expression, and artistic creativity.

43. For the reasons stated above, we are of the opinion that the High Court was not correct in its conclusion that the web-series has obscene content and that therefore the provisions of Section 67 of the IT Act are attracted.

B. Whether the material is sexually explicit for the purpose of Section 67A:

44. Section 67A of the IT Act criminalises the publication and transmission of sexually explicit content. The provision is as follows:

45. The High Court has not given any reason whatsoever on how Section 67A is attracted to the facts of the present case. In our opinion, the offence of Section 67A is not at all made out.

46. The facts of the present case certainly do not attract Section 67A as the complainants grievance is about excessive usage of vulgar expletives, swear words, and profanities. There is no allegation of any sexually explicit act or conduct in the complaint and as such, Section 67A does not get attracted.

47. Section 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 Section 67. Thus, there could be a connect between Section 67A and Section 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.

C. Quashing the FIR:

48. No offence of publication or transmission of any material in electronic form, which is obscene, lascivious, or appealing to prurient interest, and/or having the effect of tending to deprave and corrupt persons, as provided under Section 67 of the IT act, is made out. Equally, no case of publication or transmission of material containing sexually explicit act or conduct, as provided under Section 67A, is made out from the bare reading of the complaint. It is settled that a court must exercise its jurisdiction to quash an FIR or criminal complaint when the allegations made therein, taken prima facie, do not disclose the commission of any offence.[82]

49. In view of the above, we allow the appeals against the judgment of the High Court dated 06.03.2023 in Criminal Miscellaneous Case No. 2399 of 2020, Criminal Miscellaneous Case No. 2215 of 2020 and Criminal Miscellaneous Case No. 2214 of 2020, and set aside the judgment of the High Court, and quash FIR 403/2023 registered at Police Station Mukherjee Nagar, Delhi dated 16.04.2023 under Sections 67 and 67A of the IT Act against the appellants herein.

50. Pending applications, if any, shall stand disposed of.