TVF Web Series College Romance's Language Does Not Pass 'Community Test Of Common Man', Transgresses Into Area Of Obscenity: Delhi High Court
Observing that the challenge for enacting appropriate law or guidelines to regulate content on social media and OTT platforms needs urgent attention, the Delhi High Court has ruled that the language used in TVF web series “College Romance” does not pass "morale decency community test" of a common man and transgresses into the area of obscenity. Justice Swarana Kanta Sharma said that the...
Observing that the challenge for enacting appropriate law or guidelines to regulate content on social media and OTT platforms needs urgent attention, the Delhi High Court has ruled that the language used in TVF web series “College Romance” does not pass "morale decency community test" of a common man and transgresses into the area of obscenity.
Justice Swarana Kanta Sharma said that the use of vulgar language in public domain and social media platforms which are open to children of tender age needs to be taken seriously.
“The individualistic choice which is not the choice of the majority of people of this country cannot be portrayed as choice of that majority and to be broadcasted on the ground or assumption that youth of this country speak such foul or profane language,” the court said.
It held that "individualism of choice" of using profane language has to give way to the "majoritism of people" who want to speak and hear civil language free of expletives for themselves and for their children.
“When examined in the practical light of common man, this Court reaches a conclusion that the majority of this country cannot be said to be using such vulgar, profane, indecent, swear words and expletives as projected in the web series in question in day-to-day spoken language with each other even in educational institutions,” it said.
The court was hearing petitions moved by TVF Media Labs Pvt. Ltd., Casting Director of web series 'College Romance' and its lead actors against the orders passed by the sessions court and ACMM for registration of FIR against them.
The complainant had alleged that the web series contains vulgar and obscene material and depicts women in indecent form in violation of sections 292 and 294 of Indian Penal Code, section 67 and 67A of Information and Technology Act and sections 2 (c), 3 and 4 of Indecent Representation of Women Prohibition Act.
The ACMM vide order dated September 17, 2019, directed the concerned SHO to register FIR against the petitioners under appropriate provision of law after conducting investigation into the allegations of the complainant.
In the revision petition filed by petitioners before sessions court, the ASJ vide order dated November 11 , 2020, modified the ACMM’s order to the extent that FIR be registered only under section 67A of Information & Technology Act and rest of the sections related to IPC be dropped.
Justice Sharma said that the court watched a few episodes of the web series and the particular episode in question to decide the case more effectively and fairly.
“After watching few episodes of the series as well as the episode in question, this Court found that the actors/protagonists in the web series are not using the language used in our country i.e. civil language. The Court not only found excessive use of ‘swear words’, ‘profane language’ and ‘vulgar expletives’ being used, it rather found that the web series had a series of such words in one sentence with few Hindi sentences here and there. In the episode in question, there is clear description and reference to a sexually explicit act,” the court observed.
It said that the court had to watch the episodes with the aid of earphones, in the chamber, as the profanity of language used was "of the extent that it could not have been heard without shocking or alarming the people around" and keeping in mind the decorum of language which is maintained by a "common prudent man", whether in professional or public domain or even with family members at home.
“Most certainly, this Court notes that this is not the language that nation’s youth or otherwise citizens of this country use, and this language cannot be called the frequently spoken language used in our country,” it said.
The court observed that when the entire content of the web series is seen, it would lead any common person to a conclusion that the language used in the web series is foul, indecent and profane to the extent that it will affect and will tend to deprave and corrupt impressionable minds.
“Therefore, on the basis of this finding it can be held that the content of the web series will certainly attract the criminality as envisaged under Section 67 of the Information Technology Act,” it observed.
Furthermore, the court observed that the obscenity of the spoken language in the case and the “gross indecency” with which the characters in the series conduct themselves in terms of the spoken language will show that the “threshold of decency is crossed” and the “alleged private choice of individuals” enters the public domain due to its availability to the public including children.
“The community standard cannot be the standard of a particular local territory but is essentially in the national context. The fact that the words used in the web series are of nature that cannot even be reproduced in the judgment even for the purpose of adjudication is a pointer towards the extent of profanity of the language used by the web series,” it said.
On the language used in the specific episode of the web series, the court said that the profane and vulgar language being used while referring to a sexually explicit act certainly cannot be termed common or commonly accepted language.
“The male protagonist in this case who uses such language has been referred to as ‘Bagga’. The bug of obscene, profane and bad language of ‘Bagga’ cannot be allowed to pollute the language of people,” it said.
Referring to IT Rules of 2021, the court said that the online content curator and intermediaries are in clear violation of the guidelines as neither there was any classification nor any warning regarding the profanity of language or excessive use of expletives.
“A perusal of the above guidelines will also show that if the content of the present web series is examined in the light of contemporary moral and civil standards of the country, this Court reaches conclusion that the majority of people of this country do not use such language and are offended and disgusted with excessiveness of profanity, vulgarity and obscenity of the language used which is being served to everyone who cares to watch content on YouTube or other platforms without any certification and hindrances,” it said.
Observing that the obscenity in the web series and the fact that it is available to the public at large is sufficient to warrant criminal prohibition, Justice Sharma said that the content and its availability to the public at large cannot be weighed or seen in the context of tolerance of the community "who has been tolerating use of such expletives in spoken language by few in public to some extent."
“The fluency with which the profane language is spoken, full of expletives, is being projected as if it is the general spoken language. If the argument of the petitioner is accepted, it will amount to holding that a language fluent in profanity and expletives is the ‘new in’ and the ‘new normal language’ and ‘expletive free language’ is the new abnormal’,” it said.
It added that the importance and a sense of reverence to one’s mother tongue and language is close to the heart of the citizen concerned and to use such language and argue that this is accepted by the masses as the spoken language, since it has undergone changes and has now emerged in the form presented in the web series, will be travesty of justice to the people of this country who love the languages they speak.
“Rather, terming this language as spoken language of this country will be permitting people to disrespect the language,” it said.
Justice Sharma added that the attitudinal changes can be brought about by exposure to such obscene language to the impressionable minds and the society will be unable to maintain a certain standard of values integral to a decent society.
“The loss of civility and use of profanity and obscenities cannot be allowed to go to the extent of causing loss of civility at the national level as this web series is available in other languages too including Marathi, Kannada, Tamil, Telugu, Bengali, Malyalam, etc. This Court is of the firm view that profanity in language is not the popular culture of this country and public and citizens at large perceive the words spoken in the web series as taboo and utterly obscene and sexually explicit as described by words,” the court said.
It added: “The web series does deprave the morality of the impressionable minds. Though it may be argued that the State cannot prescribe morality and Court cannot indulge in moral policing in the name of Indian values, this Court holds that when the self regulatory bodies do not do their duty and allow such content to be served indiscriminately to the people of all ages and the law does not define or provide specific remedy, the people have to turn to the Courts only.”
Observing that the courts cannot do moral policing nor do the courts ever want to, the bench said that jurisprudence of judicial restraint, however, cannot remain separate from the civil social sciences "and the orders and judgments in different cases, different situations and situations arising for the first time cannot be subject to straight jacket formula and be condemned as moral policing."
“The use of profanity is also a moral issue and the society has to deal with it by its own means too. However, when the content is shown through social media, the sheer enormous power of electronic media and its reach to people of all ages will certainly invite attention of the Court, law enforcement and law making authorities to regulate it. One cannot lean in favour of unrestricted, unfettered freedom of profane, indecent and obscene speech and expression by way of web series without classification of the same,” it said.
It added: “Every language has its linguistic history and people who speak the said language attach pride with it. Only because a group of persons, due to every individual’s choice, use foul language and excessive expletives in the original language, as in the present case Hindi, it cannot be said that with time, the language has lost its originality or civility and has adopted the profanity and obscenity as its core content.”
Observing that the web series does not mirror the actual college life or society, the court said that though the moral or linguistic choices as well as choice and freedom to watch any entertainment channel lies with every individual of this country, the foul expletive profanities and obscene languages and swear words used in the web series cannot take shelter under argument of new generation using such language.
“The youth of this country is the most valuable asset of this country who carries on its able shoulders, the responsibility of maintaining the magnificence of the valuable culture including the linguistic pride of this country, and a web series cannot be allowed to run unhindered taking shade and safety of arguments that no law makes it punishable or some people use such language which has tendency to corrupt the young minds, and project that the young generation speaks such language,” it said.
The court said that the use of profanity and words which are taboo in general parlance in the web series on the pretext that this is how the new generation behaves and speaks or communicates, is not the mirror of such social realities and is certainly distorted.
“Spoken language with passage of time can be recreated through repetition and over a period of time, some of its character may change. Media plays an influential role in putting forth such changes at times, however, they cannot be allowed to legitimize offensive language including swearing and profane words in the garb of change of language with passage of time,” it said.
It added: “University of Delhi has its own glorious history, majesty, respect and heritage. The college students cannot be said to be using the language used in this web series since the limits of decency, civilized behavior and civilized language are recognized and still cared and valued by the new generation. Just because a few people may be using such language, they cannot be allowed to corrupt the minds which are impressionable and be told that this is ‘in-thing’, ‘the new ok’, or ‘new normal’ language in the colleges.”
The court said that by way of the judgment it is not creating any new law, rather it wants to ensure that by way of rigorous process of legal reasoning and having regard to written provisions of available laws, case laws and societal affirmed values, it is able to point out the wrong doers and bring them within the ambit of law.
“…Court is of the view that though it is correct that the legitimacy of judiciary may depend on justification of its decision which should be based on law and the task of judges is to do justice and enforce laws, at the same, the judges cannot close their eyes to situations where the law may be silent or unclear and taking advantage of that some acts may be committed which may run counter to fundamental assessments of morality and decency of just Indian society,” it said.
It added: “This is not law making in the legislative sense, but essentially legitimate judicial work for which this Court is bound by its solemn oath to the Constitution of India. Even if a judgment triggers a debate in the society about an issue at the heart of a societal problem, it will serve the ends of justice i.e. the ultimate goal of a judge.”
The court thus upheld that order of the ASJ to the extent whereby it held that section 292 and 294 IPC are not made out and 67A IT Act is made out. However, the bench said, it is modified to the extent of dropping offence under Section 67 of the IT Act
“Resultantly, the order of the learned ACMM is upheld to the extent of registration of FIR under Section 67 and 67A of IT Act. It is clarified that the direction to register FIR in the present case does not include a direction to arrest any of the accused/petitioner,” it said.
The court added that in case the specific episode is still posted on any YouTube channel without classification, appropriate remedial steps will be taken by YouTube, as per law, rules and guidelines of the IT Act issued by Ministry of Information and Technology from time to time
“In the light of above, this Court draws the attention of the Ministry of Information and Technology to the situations which are fast emerging on a daily basis and to take steps for enforcing stricter application of its rules qua the intermediaries as notified in Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 and make any laws or rules as deemed appropriate in its wisdom, in light of the observations made in this judgment,” it said.
The court ordered that a copy of the judgment be forwarded to the Secretary, Ministry of Electronics and Information Technology, Government of India, and concerned officials of YouTube India.
Title: TVF MEDIA LABS PVT LTD & ORS v. STATE (GOVT.OF NCT OF DELHI) & ANR.
Citation: 2023 LiveLaw (Del) 210