An episode of YouTube comedy show India’s Got Latent has stirred controversy for some crass jokes made by Ranveer Allahbadia, the podcaster and social media celebrity who was appearing as a member of a guest jury on the show owned and published by comedian Samay Raina.
Concerns regarding the limits upto which the freedom of speech and expression can be enjoyed have taken over the entire media. Meanwhile, multiple first information reports (FIRs) have been registered by law enforcement agencies against the show’s organisers and participants. YouTube has taken down the episode which was at the centre of the controversy on directions from the government. The rest of the episodes have been taken down by the show’s owner and publisher Raina himself.
The fundamental right to freedom of speech and expression under Article 19(1)(a) of the Constitution is subject to reasonable restrictions under Article 19(2). The government can curb speech in the interests of “the sovereignty and integrity of India, the security of the State, friendly relations with Foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence”. Tracing their justification from the expression “public order, decency or morality” used in Article 19(2), various provisions of the Indian Penal Code (IPC) and the Information Technology Act penalise circulation of obscene material in different forms and through different media.
The article discusses how the freedom of speech and expression has been interpreted by the Indian courts from time to time, especially in the context of artistic expression. The endeavour is to reach a conclusion as to whether prosecution will be viable in the present case or not. While the judgments are many, only a few are discussed for the sake of brevity.
The Supreme Court in Apoorva Arora and Anr. v. State (Govt. of NCT of Delhi) & Anr dealt with a challenge to the Delhi High Court’s decision refusing to quash a magistrate order which had directed registration of FIR against the makers of TVF’s YouTube series ‘College Romance’ for alleged vulgar, obscene and sexually-explicit language. The FIR was ordered to be registered under Sections 292/294/509 of IPC and Sections 67/67A of IT Act. While allowing the appeal and quashing the High Court and magistrate order, the Supreme Court made an in-depth analysis of the meaning and connotation of ‘obscenity’ based on its previous judgments. As per these verdicts, the following must be considered while labelling something as ‘obscene’ so as to render it liable for prosecution:
Material is obscene if it is (i) lascivious or (ii) appeals to the prurient interests or (iii) 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. This is based on reading of text of S. 67 IT Act, which is similar to the language employed in S. 292 IPC.
The test for obscenity is “whether a class, not an isolated case, into whose hands the book, article or story falls suffer in their moral outlook or becomes depraved by reading it or might have impure and lecherous thoughts aroused in their minds.” This was held in Shri Chandrakant Kalyandas Kakodkar v. State of Maharashtra.
It is well-established that vulgarity and profanity do not per se amount to obscenity. 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 cannot be the simple effect of all abusive language, profanities and vulgarities.
Some words and ideas may be vulgar and evoke a feeling of disgust, repulsion and shock in the mind of the reader. But this does not necessarily amount to obscenity, which is the tendency to deprave and corrupt. This is based on Samaresh Bose v. Amal Mitra.
Court must not be guided by the sensitivity of a pervert viewer. Rather, the setting of the whole work, its purpose, and the constituent elements of the character must be kept in mind while judging for obscenity. This was held in N. Radhakrishnan v. Union of India. Further, a similar conclusion was reached in Ramesh v. Union of India, wherein 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. The standard for determination cannot be an adolescent’s or child’s mind, or a hypersensitive person who is susceptible to such influences.
The work must be judged by employing the “community standards test” which requires the material to be considered as a whole to determine whether the specific portions have the tendency to deprave and corrupt. The “Hicklin test” which is used to check obscenity based on isolated passages of a work and by its apparent influence on most susceptible readers, such as children or weak-minded adults, stands discarded. The move from the “Hicklin test” to the “community standards test” was made in Aveek Sarkar v. State of West Bengal.
Considering the aforementioned factors, the Supreme Court in Apoorva Arora (supra) reached the conclusion that the web-series in question was a light-hearted show on the college lives of young students. The use of vulgar, profane and allegedly obscene language did not have any sexual connotation capable of depraving or corrupting. 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. The FIRs were thus quashed.
The Delhi High Court in MF Husain v. Raj Kumar Pandey dealt with pleas filed by the celebrated artist against summoning orders and arrest warrants issued by trial courts in connection with cases registered against him for offences under S. 292 IPC (sale, etc., of obscene books, etc.), 294 IPC (obscene acts and songs) and section 298 (uttering, words, etc., with deliberate intent to wound the religious feelings of any person). At the centre of the controversy was his painting Bharat Mata, depicting India in the avatar of a naked woman. Allowing the petitions and quashing the summons, the High Court held:
“117. Every time an artist portrays something different, something which is an unpopular view point, it may accompany discomfort and unpleasantness but that in itself cannot be a ground to curb the artistic freedom and quickly go on to label it as obscene. There might be people who may actually get offended by those of Hussain's paintings or others but the right course of action for them, is to simply shrug it off or protest peacefully. In my considered view, criticism of art may be there. Rather, there are many other more appropriate avenues and fora for expression of differences of opinion within a civil society. But criminal Justice system ought not to be invoked as a convenient recourse to ventilate any and all objections to an artistic work...Such a pernicious trend represents a growing intolerance and divisiveness within the society which pose a threat to the democratic fabric of our nation…”
The Madras High Court in S Tamilselvan & Ors v. Government of Tamil Nadu dealt with a challenge to the binding nature of an unconditional public apology which was extracted from the author of novel Mathorubagan by the local administration. In a specific part of the novel, the author had described an ancient Hindu temple wherein the rules of sexual conduct are relaxed for one night and all consenting men and women may engage in sexual activity irrespective of their marital status for the purpose of conceiving a child. The writing was labelled as obscene by the administration, which had then forced the author to issue an unconditional public apology, which he did. The High Court, while declaring the apology to have no binding force or obligation, observed:
"We observed that reading of the novel does not create an appeal to the prurient interests or can be said to be lascivious or tending to deprave or corrupt. The necessary test of the various provisions of the Indian Penal Code, including Section 292, can hardly be said to have satisfied the prerequisite before one proceeds to prosecute the author/publisher.”
In Ashutosh Dubey v. Netflix, the Delhi High Court held,
"It is a known fact that a stand-up comedian to highlight a particular point exaggerates the same to an extent that it becomes a satire and a comedy. People do not view the comments or jokes made by stand-up comedians as statements of truth but take them with a pinch of salt with the understanding that it is an exaggeration for the purposes of exposing certain ills or shortcomings...”
While the Indian Constitution guarantees the right to freedom of speech and expression, comedians and artists often face legal challenges due to religious, political and moral sensitivities of the people. Fortunately, the courts have generally protected free speech and expression unless it directly incites violence or hatred. In the present case, the context and setting in which the joke/comment was made was purely light-hearted comedy. The requisite ingredient for obscenity, which is arousal of lustful and sexual thoughts, was absent from the point of view of a ‘reasonable, strong-minded, firm and courageous person’.
On paying deeper attention to Allahbadia’s joke/comment, the only emotion which a reasonable person can feel is that of ‘disgust’. The joke/comment is not capable of arousing lustful and sexual thoughts. On a lighter note, the complainant would have to first establish his own perversity and that he experienced lustful and sexual thoughts on hearing Allahbadia’s joke/comment. If he does so, he will undoubtedly, and for the right reasons, be labelled a pervert and not a reasonable man. Therefore, the present case is simply not a case where prosecution will be viable.
Vasu Bhushan is a lawyer based in New Delhi.