Information Technology Act, 2000; Section 67 – Indian Penal Code, 1860; Section 292- “Obscenity” has been similarly defined in Section 292 and Section 67 as material which is: i. lascivious; or ii. appeals to the prurient interest; 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. 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- The law on determining obscenity has been summarised and reiterated in Ajay Goswami v. Union of India : i. Obscenity must be judged with regard to contemporary mores and national standards. 49 ii. The work must be judged as a whole and the alleged offending material must also be separately examined to judge whether they are so grossly obscene that they are likely to deprave and corrupt the reader or viewer.50 There must be a clear and present danger that has proximate and direct nexus with the material. iii. All sex-oriented material and nudity per se are not always obscene.52 iv. The effect of the work must be judged from the standard of an average adult human being. Content cannot be regulated from the benchmark of what is appropriate for children as then the adult population would be restricted to read and see only what is fit for children. Likewise, regulation of material cannot be as per the standard of a hypersensitive man and must be judged as per an “ordinary man of common sense and prudence”Where art and obscenity are mixed, it must be seen whether the artistic, literary or social merit of the work overweighs its obscenity and makes the obscene content insignificant or trivial. In other words, there must be a preponderating social purpose or profit for the work to be constitutionally protected as free speech. Similarly, a different approach may have to be used when the material propagates ideas, opinions, and information of public interest as then the interest of society will tilt the balance in favour of protecting the freedom of speech (for example, with medical textbooks). vi. The Court must perform the task of balancing what is artistic and what is obscene. To perform this delicate exercise, it can rely on the evidence of men of literature, reputed and recognised authors to assess whether there is obscenity (Para 10-25)
Information Technology Act, 2000; Section 67 – Indian Penal Code, 1860; Section 292- 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, 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 – Vulgarity and profanities 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 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 -the standard for determination cannot be an adolescent’s or child’s mind, or a hypersensitive person who is susceptible to such influences -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 court’s 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- The process and method that must be followed to objectively judge whether the material is obscene: 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. 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- 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. (Para 34-36)
Information Technology Act, 2000; Section 67A – 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 – When there is no allegation of any ‘sexually explicit act or conduct’ in the complaint but only about about excessive usage of vulgar expletives, swear words, and profanities, Section 67A does not get attracted. (Para 46-47)
Code Of Criminal Procedure, 1973; Section 482 – 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.(Para 48)