While mincing just no words in observing that the use of vulgar language in public domain and on social media platforms needs to be taken seriously as they are open to children of tender age, the Delhi High Court in a most learned, laudable, landmark and latest judgment titled TVF Media Labs Pvt Ltd & Ors vs State (Govt of NCT of Delhi & Anr) in CRL.M.C. 2214/2020 & connected matters in Neutral Citation No. 2023/DHC/001676 that was reserved on February 22 and then finally pronounced on March 6, 2023 has said unequivocally that the issue of enactment of appropriate law or guidelines to regulate content on social media and OTT platforms needs urgent attention. It must be noted that Hon’ble Ms Justice Swarana Kanta Sharma was particularly very critical of the language used in TVF web series College Romance observing that it does not pass morale decency community test of a common man and transgresses into the area of obscenity. The court said that the use of obscene words and foul language on social media platforms have to be regulated when it crosses a particular line as it can be a true threat to impressionable minds and cannot receive constitutional protection of free speech.

At the very outset, this enlightening judgment authored by the single Judge Bench comprising of Hon’ble Ms Justice Swarana Kanta Sharma sets the ball in motion by first and foremost putting forth in para 1 that:
The instant petitions under Section 482 of the Code of Criminal Procedure, 1973 (‘Cr.P.C.’) have been filed seeking quashing of the order dated 10.11.2020 passed in Criminal Revision No. 260/2019 titled TVF Media Labs Pvt. Ltd. & Ors. vs. State & Ors. by learned Additional Sessions Judge, Rohini District Court, New Delhi, (hereinafter ‘ASJ’) and order dated 17.09.2019 passed in Criminal Complaint No. 1396/2019 titled Arvind Kumar vs. TVF Media by learned Additional Chief Metropolitan Magistrate (North), Rohini District Court, New Delhi (hereinafter ‘ACMM’).

As we see, the Bench then spells out in para 2 stating that:
This judgment shall govern the disposal of CRL.M.C. 2214/2020, CRL.M.C. 2399/2020 & CRL.M.C. 2215/2020 arising out of common set of facts, contentions and prayer. The petitioner no.1 in CRL.M.C. 2214/2020 is TVF Media Labs Pvt. Ltd. (hereinafter ‘TVF’), a company incorporated under the provisions of the Companies Act, 2013 and petitioner no. 2 and 3 are Directors and Shareholders of petitioner no. 1. Whereas, petitioner no. 1 in CRL.M.C. 2399/2020 is the female protagonist and petitioner no. 2 is male protagonist in the web series titled ‘College Romance’. The petitioner in CRL.M.C. 2215/2020 is the Casting Director of the said web series. Since the present petitions arise out of the same set of facts and contentions and the issue before this Court in all the petitions is also common, the same are being decided through this common judgment.

Simply put, the Bench then mentions in para 3 that:
The brief facts of the present case are that petitioner/TVF Media Ltd. is owner of web series titled ‘College Romance’ which is being broadcasted primarily on various internet platforms such as YouTube, TVF Web Portal and Mobile Applications.

To put things in perspective, the Bench envisages in para 4 that:
It is the alleged case of complainant that the said web series contains vulgar and obscene material and depicts women in indecent form in violation of the provisions of Sections 292/294 of Indian Penal Code (‘IPC’), 1860, Section 67/67A of Information and Technology Act, 2000 (‘IT Act’) and Sections 2 (c), 3 and 4 of Indecent Representation of Women Prohibition Act, 1986. It is the case of the complainant that petitioner is also the owner-cum-manager of popular YouTube channel known as ‘Timeliners’, on which indecent content had been broadcasted and published for consumption by general public without any warning to the effect that the content is for adult consumption only.

To be sure, the Bench points out in para 20 that:
At the outset, a perusal of the order of both the Courts below reveal that the orders have been passed primarily on the findings that after going through the web series, particularly Episode 05 of Season 01, it was observed that all the petitioners herein have used obscene words throughout the episode and since the obscenity pertaining to electronic media can be dealt with only under Section 67 of IT Act, the learned ASJ has held that the FIR be registered under Section 67A of the IT Act, and not under Sections 292 and 294 of IPC as also observed by learned ACMM. The conclusion reached by the learned ASJ that offence under Section 67A of IT Act is made out in the present case, as borne out from the order, is on the premise that the petitioners have indulged in publishing, transmitting material which was lascivious and appealing to the prurient interest and its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear.

It cannot be glossed over that the Bench observes in para 30 that:
This Court also wanted to test/examine the test of a common prudent man in practicality, acting itself as a common prudent person, so as to check as to whether such language, in fact, can be heard by a common prudent man without being embarrassed or finding it against decency or against the concept of decency. 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 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.

Be it noted, the Bench notes in para 47 that:
The present case involves TVF Media Labs Pvt. Ltd. acting as an ‘online content curator’. It is the legal duty of the online content curator to ensure that the transmitted material aligns with the expectations of the intended audience in order to generate anticipated financial gains. Additionally, the content must not cross the fine line between acceptable standards of decency and vulgar language, in order to prevent any legal transgressions.

Truth be told, the Bench concedes in para 48 that:
In the present case, TVF Media Labs Pvt. Ltd is involved in creation of episodes of the web series ‘College Romance’. The said series is streamed on various platforms such as SonyLiv, YouTube, including TVF Play (an OTT Platform) which is owned by petitioner no. 1 in CRL. M.C. 2214/2020. It is, therefore, clear that ‘online content curator’ and intermediaries are also in clear violation of the above-mentioned guidelines as neither there was any classification nor any warning regarding the profanity of language or excessive use of expletives. The web series was available to every age group. Therefore, this web series also stood covered under violation of the Rules of 2021.

Quite clearly, the Bench holds in para 49 that:
It is, therefore, clear that the intermediary i.e. petitioner no. 1 in CRL. M.C. 2214/2020 is in clear violation of these guidelines as neither there was any classification nor any warning regarding the profanity of language, excessive use of expletives as it was free for all channel.

No doubt, the Bench is spot on when it observes in para 50 that:
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.

Most significantly, the Bench mandates in para 57 that:
In case, the web series using such obscene and abusive words and foul language is allowed to be aired/transmitted without setting any boundaries, it will fail to send message that a certain standard of decency and civility is expected from electronic media. As this Court has observed, the impressionable minds consume what they have been served and they will serve the same on the streets, in schools, in their houses and all other places resulting in absence of civilized society. Societal standards fall if no effort is made to ensure that they are upheld. The petty incivilities will certainly lead to declining standard of civility and the fallen language standards will lead to moral depravity. 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, Malayalam, 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.

Equally significant is what is then stated in para 60 that:
This Court is of the opinion that use of vulgar language including profanity and bad words in public domain and in social media platforms which are open to children of tender age needs to be taken seriously. The use of obscene words and foul language in social media platforms have to be regulated when it crosses a particular line, as it can be a true threat to impressionable minds and cannot receive constitutional protection of free speech. While in schools, offices, etc., students can be punished for uttering or using profane speech, the authorities also need to regulate profanity which enters into domain of indecent speech by a broadcast medium.

As a corollary, the Bench holds in para 61 that:
The arguments of the petitioner that it will be unjust to term the contents as obscene merely because the contents depict vulgar language or that such sexual and vulgar content is no more unethical or unaccepted social feature, but represents the present social trend, does not find favour with this Court and the same is liable to be rejected.

Most remarkably, the Bench enunciates in para 77 that:
The Courts are seldom and rarely faced with the situation where the written provisions are unclear or incomplete. Though primarily the role of the judges in our country is to interpret and apply the law and ensure enforcement of constitutional rights and principles, when faced with a situation of unclear or incomplete laws, the Court has to exercise the power of taking recourse to constitutional values with care and objectivity by interpreting, reconciling and thereafter applying the law to the situation in hand. Denying to do justice faced by such situation will amount to permitting injustice to prevail and take shelter under advantage of unclear law and wearing the mask of false legality.

Most fundamentally, the Bench propounds in para 78 that:
As far as the argument as to whether the Courts will be justified into entering the arena of adjudication of deciding a case when the existing codified law does not specifically define certain words is concerned, this 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.

Most precisely, the Bench holds in para 81 that:
The task of the Court in this case has been tough as it had to strike a delicate balance between free speech and freedom of expression and transmitting to all without classification the content which is obscene, profane, lascivious, sexually explicit in spoken language as it conjures with the words ‘sexually explicit acts’. Words and languages are very powerful medium and needless to say, words have the power to paint and draw a picture at the same time.

They are the powerful means of bringing renaissance in history, harm, wound or bring about beautiful changes in the society so that every citizen gets the best and is able to give its best. The power of words is not limited and cannot be defined by way of a judgment.

The power of obscenity and sexual explicitness of language used in this web series therefore, cannot be undermined and it has a definite effect of depraving and corrupting the minds of people, especially the impressionable minds and will require to be confined and subjected to Article 19(2) of the Constitution of India, and at the same time for transmitting such content, the petitioners will be liable to face action under Section 67 and 67A of I.T. Act for the reasons mentioned in the preceding paragraphs.

The order of the learned ASJ is upheld to the extent whereby it has been held that section 292 and 294 IPC are not made out and 67A IT Act is made out however, 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.

For sake of clarity, the Bench clarifies in para 82 that:
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 is worth noting that the Bench directs in para 84 that:
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.

To conclude, this learned judgment delivered by the Delhi High Court definitely deserves to be implemented in totality. The Single Judge Bench of Hon’ble Ms Justice Swarana Kanta Sharma has very commendably underscored the dire need to regulate content with vulgar language on social media, OTT platforms. This definitely must be now promptly done on a war footing.

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh