In a landmark judgement, the Supreme Court has held that vulgarity and profanity cannot be equated with obscenity. It overruled a judgement of the Delhi high court and dismissed the FIR filed against The Viral Fever and Contagious, the producers of YouTube web series College Romance, its actors, casting director, creator and writers under sections 67 and 67A of the Information Technology Act, 2000.
The apex court’s order comes as a breath of fresh air for content creators as it upholds the fundamental right to freedom of speech and expression and holds that the applicability of sections 67 and 67A of the IT Act relating to obscenity has to be viewed in the context of each case and not in isolation.
The Delhi high court dismissed a petition under section 482 of the Code of Criminal Procedure, 1973, filed by the producers of the web series, for quashing the orders of the additional chief metropolitan magistrate and additional sessions judge, directing registration of FIR against them. The producers went in appeal in the SC. The apex court allowed the appeal and set aside the judgement of the high court, and quashed the FIR bearing no. 403/2023 dated 16 April, 2023 at Mukherjee Nagar police station in Delhi against the producers and others under sections 67 and 67A of the IT Act.
Facts of the case: A complaint was filed by a person that episode 5 of season 1 of the web series had vulgar and obscene language in its title and various portions of the episode, constituting an offence under sections 292, 294 and 509 of the Indian Penal Code, sections 67 and 67A of the IT Act, and sections 2(c) and 3 of the Indecent Representation of Women (Prohibition) Act, 1986. On March 13, 2019, the complainant filed an application before the additional chief metropolitan magistrate, seeking registration of FIR. Although the investigating officer filed a report on April 9, 2019 that no cognisable offence was made out and that there was no obscenity in the allegedly offending content, the ACMM on September 17, 2019 allowed the complainant’s application and directed the registration of FIR against the producers and others under sections 292 and 294 of the IPC and sections 67 and 67A of the IT Act as the vulgar language used was prima facie capable of appealing to prurient interests of the audience and was, therefore, obscene.
The producers filed a revision petition before the additional sessions judge who by order dated November 10, 2020 partially modified the ACMM’s order and directed the registration of FIR only under sections 67 and 67A of the IT Act. The producers then filed a petition under section 482 Cr. PC before the Delhi high court for quashing the abovementioned orders. But the petition was dismissed by the HC vide judgement dated March 6, 2023. Pursuant to the directions of the Delhi high court, an FIR was registered under sections 67 and 67A of the IT Act on April 16, 2023. The appeal in the SC was filed against the dismissal and consequent direction to register FIR under sections 67 and 67A of the IT Act.
Ameet Naik of Naik Naik & Company along with senior counsels Harish Salve and Mukul Rohatgi appeared for TVF and Contagious.