Guest Post: Obscenity and the TVF Judgment

(This is a guest post by Yogesh Byadwal)

On 06.03.2023, in a batch of petitions led by TVF Media Lab v. State (Govt. of NCT of Delhi (TVF), a Single Judge Bench of the Delhi High Court held that a prima facie was made out against the Petitioner under Sections 67 & 67A of the Information Technology Act, 2000 (IT Act), and not only under Section 67, partly reversing the impugned judgment. The court applied the ‘contemporary community standards test’, as laid down by the Supreme Court in Aveek Sarkar & Anr v. State Of West Bengal (where that Court had discarded the 'Hicklin' Test) to decide whether the content of the web series in question was ‘obscene’.

In TVF, the court interpreted the ‘community standards test’ to mean:

“The approach of this Court for applying the test of a common man and how the content will affect him and what his reaction will be, has to be in the Indian context as the Indian morality and values can only be judged in the Indian context, keeping in mind the contemporary standards of civility and morality.”

It noted 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.”

Based on these findings, it concluded that:

“When the entire content of the series is seen in the light of above, 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.”

I argue, that the court applied the ‘community stands test’ incorrectly by not reasoning within the two prongs of the community test. In my opinion, the reasoning employed, in a regressive manner, shifts the obscenity standard back to the Hicklin Test which was discarded in Aveek Sarkar. I conclude suggesting adoption of a new standard for determining obscenity in light of the progress made as regards the Roth Test in American jurisprudence. 

Community Standards Test: A Step Back?

The community standards test was laid down in Roth v. US which was later adopted by the court in Aveek Sarkar, although in a limited manner. The part adopted by the Indian Supreme Court read:

“The standard for judging obscenity, adequate to withstand the charge of constitutional infirmity, is whether, to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest.”

Therefore, the test has two prongs:

1. The material must be taken as whole taking into relevant circumstances
2. The dominant theme of the material must appeal to prurient interest of an average person of the community

As regards first prong, the court in TVF ignored it. The case was decided on basis of particular scenes in Episode 5 of Season 1 of the series. Precisely, objection was raised to airtime starting from 5 minutes 24 seconds to 6 minutes 40 seconds as well as from 25 minutes and 28 seconds to 25 minutes and 46 seconds. The court decided the obscenity of the web series by solely relying on 96 seconds of clip of the series. Whether the court would still have decided the series as obscene after relying on the dominant theme of the series is different question of law. 

However, the court never considered the dominant theme of the series relying on each episode of the series. The reasoning used by the court is reminiscent of the Hicklin Test. As Gautam Bhatia writes, under the test acontextual ‘matter’ was obscene if any part of it could be demonstrated, to the satisfaction of the judges, to have a tendency to deprave or corrupt. In this case also, the court undertook an acontextual analysis of the content by observing that other episodes contained excessive use of ‘swear words’, ‘profane language’ and ‘vulgar expletives’ which is not ‘civil language’. Nothing else detailed is discussed about the episodes or overall theme. On the other hand, the judgement focuses in detail on the impugned airtime in episode 5 to decide the obscenity of the series. The court conveniently ignores the rigour of the test while acknowledging its existence. 

On the second prong, the court in TVF did not test the material against the prurient interest of an average person. Rather, the tone of the judgement is fixated on the ‘youth’ and ‘impressionable minds’. The court observed:

"The content is to be read with regard to the circumstances of the content itself and is also with regard to the persons who will read, see or hear such content. In the case at hand, the content in question is the content of the web series ‘College Romance’ and the persons who are likely to be affected or the persons to whom such content can deprave and corrupt, in the present circumstances are the impressionable minds."

Further, it noted:

"The power of obscenity and sexual explicitness of language used in this web series … has a definite effect of depraving and corrupting the minds of people, especially the impressionable minds … The web series does deprave the morality of the impressionable minds."

An argument of this sort is similar to the Hicklin test which was discarded by in Aveek Sarkar. The court concluded, as noted above, the web series would attract Section 67 as language used in the web series tend to deprave and corrupt impressionable minds. A conclusion that the content is obscene because it has a capacity to corrupt ‘impressionable minds’ is in direct conflict with the community standards test. The test should not be from the point of view of people most likely to get depraved or corrupted (most vulnerable constituency test) but from the point of view of a person of average understanding. 

The court in order to get around the conflict observes that the language is obscene even when judged from an average person's perspective:

"In the episode in question, there is clear description and reference to a sexually explicit act. 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." 

However, I submit, this is not the proper way to decide the ‘community standards’. The setting of the court is obviously much more decorous from the setting of a private space. It is incomprehensible and inexcusable to speak expletives in a court room which obviously demands a higher sense of propriety. This obviously raises the standards for decency to a much higher level. However, in private space, the threshold for decency is much lower. 

It is not uncommon to find videos on public domain which constantly employ ‘reproachful language’ to evoke humour. Seldom are any cases filed against such videos and rarely are they punished. Therefore, it leads one to believe that there is a sense of tolerance, if not acceptance, of the kind of language used in the particular case. However, in a patronising fashion, the court tries to brush off these claims by claiming without substantiation 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."

The Way Forward 

Aveek Sarkar while adopting the Roth test ignored that it was three pronged. As Bhatia points out, community standards constituted the first prong, under the second prong the material had to be “patently offensive”, and under the third prong, “of no redeeming social value”. Therefore, the threshold for deciding obscenity under Roth was much higher than what Aveek Sarkar understood the law. 

This test has since been replaced by the Miller Test (Miller v. California) which requires the material to fulfil three conditions:

1. Whether ‘the average person, applying contemporary community standards’ would find that the work, ‘taken as a whole,’ appeals to ‘prurient interest’

2. Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and 

3. Whether the work, ‘taken as a whole,’ lacks serious literary, artistic, political, or scientific value.

As Bhatia writes, the last ground is crucial, because it is on the social value prong that works of art, literature, sculpture etc., that would otherwise be deemed obscene, are not. 

Obscenity standards in India must be re-looked from the point of view of freedom of speech. The right under Article 19(1) will have no meaning if the courts can curtail speech on the ground that it offends majority views. Obscenity standards must therefore progress in a manner which allows marginalised and unpopular opinions to be transmitted without imposition of majority standards as far as possible.