"It is not necessary that the angels and saints of Michael Angelo should be made to wear breeches before they can be viewed."
- Justice M. Hidayatullah in Ranjit D. Udeshi v. State of Maharashtra1
In 1964, the Supreme Court of India in the above case held that sellers of the famous D.H. Lawrence novel, Lady Chatterley's Lover, could be prosecuted under the Indian Penal Code 1860 for obscenity. However, the court also observed that courts must apply themselves to consider each work at a time and noted that "condemnation of obscenity depends as much upon the mores of the people as upon the individual".
Fifty years later, in 2014, the Supreme Court was hearing an appeal2 in a case filed against publishers of a magazine which had carried a photo of Boris Becker, the worldrenowned tennis player, posing nude with his dark-skinned fiancée Barbara Feltus, a film actress, as a part of an article which discussed racial discrimination. The court quashed the criminal proceedings against the publishers and observed that "while judging as to whether a particular photograph, an article or book is obscene, regard must be had to the contemporary mores and national standards and not the standard of a group of susceptible or sensitive persons."
With this food for thought, we present to you Volume XXII of IndusLaw's The Recap, your round-up of legal updates for the media & entertainment and gaming industries. This edition covers updates from the months of March and April 2024. In line with our discussion in these opening paragraphs, a key theme of the updates for the month of March is the debate and jurisprudence on obscenity – ranging from the Supreme Court's judgment on the web series 'College Romance', to the blocking orders issued by the central government against multiple OTT streaming apps for allegedly obscene content, and the NCPCR's reservations in relation to the content on the 'Ullu' app. The updates from April, on the other hand, are more eclectic developments, comprising inter alia of the highly discussed misleading advertisements case against Patanjali; content takedown on the social media platform 'X' in light of the ongoing Lok Sabha elections 2024 and WhatsApp's submissions to the Delhi HC in the "first originator" case.
MEDIA AND ENTERTAINMENT UPDATES
Supreme Court quashes obscenity case against web series 'College Romance'
The Supreme Court ("SC") on March 19, 2024 quashed the criminal case filed against popular Indian web content company 'The Viral Fever' ("TVF") and some actors in relation to alleged obscene content in the web series, "College Romance". TVF and the actors of the said web series had approached the SC in appeal against a Delhi High Court ("Delhi HC") decision of March 2023 which had directed registration of FIR against them under Sections 67 and 67A of the Information Technology Act, 2000 ("IT Act, 2000").
The initial complaint filed with the Delhi Police had alleged that the web series contained vulgar and obscene language, constituting offenses under various sections of the Indian Penal Code, 1860 ("IPC"), IT Act, 2000 and the Indecent Representation of Women (Prohibition) Act, 1986 ("IRWA, 1986"). TVF and the actors had approached the Delhi HC for quashing this complaint, but the Delhi HC dismissed the petition and directed registration of FIR under Sections 67 and 67A of the IT Act, 2000.
The SC differed with the Delhi HC judgment and held that "profanity is not per se obscene". The SC stated that the Delhi HC equated profanities with obscenity, without undertaking a proper or detailed analysis into how such language, by itself, could be sexual, lascivious, prurient, or depraving and corrupting. The SC further stated that 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'. The SC held that 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 impugned web series. The SC also reiterated that the standard for determination of obscenity cannot be an "adolescent's or child's mind, or a hypersensitive person who is susceptible to such influences". The Delhi HC was found to have incorrectly used the standard of "impressionable minds" to gauge the effect of the material and therefore, erred in applying the test for obscenity.
The SC's judgment is available here.
A detailed report on this case by Medianama can be read here.
SC takes actions against Patanjali Ayurved in misleading advertisements case, and questions governmental authorities for inaction
In the case of Indian Medical Association v. Union of India,3 the Indian Medical Association ("IMA") filed a petition against Patanjali Ayurved Ltd ("Patanjali") for violating the Drugs & Other Magic Remedies Act, 1954 ("DMR Act"), and the Consumer Protection Act, 2019, by publishing advertisements and making false statements against allopathy and spreading false rumors about COVID-19 vaccines. On November 21, 2023, the SC imposed a temporary ban on Patanjali's advertisements and issued them a notice for publishing misleading claims and advertisements against modern medicine systems. In its order, the SC warned Patanjali that it would impose costs ranging up to INR 1 (one) crore for making a false claim regarding any product that could potentially cure any diseases. Patanjali gave an undertaking to the SC that it would restrain from publishing any such misleading advertisements or making any casual statements to ensure compliance with the SC's order.
Soon after the SC passed the order, the Managing Director and Co-founder of Patanjali namely Acharya Balakrishna and Baba Ramdev made false claims in a press conference. Subsequently, they also published advertisements claiming Patanjali has permanent cures for diseases including diabetes, blood pressure, asthma, arthritis, and glaucoma, most of which are covered under the Schedule of the DMR Act. Following the above infractions by Patanjali, on February 27, 2024, the SC issued a contempt notice to Patanjali, Acharya Balakrishna and Baba Ramdev to show cause why action should not be taken against them for contempt of the SC's order passed in November 2023. Following the issue of the contempt notice, the SC was informed on March 19, 2024, that Patanjali had failed to reply to the contempt notice.
Noting the same, the SC passed an order seeking the personal appearance of Acharya Balakrishna and Baba Ramdev. Upon appearance, Baba Ramdev and Acharya Balakrishna filed their replies, apologizing for their statements. However, in their affidavits, they argued that the DMR Act was an 'archaic' law and has not been amended in light of recent scientific evidence supporting ayurvedic medicines. Additionally, they also claimed that their media department inadvertently published the impugned advertisements as they were unaware of the SC's order passed in November 2023. The SC refused to accept their apologies, stating that they were not 'unqualified' or 'unconditional'. The SC also remarked that non-observance of the law due to it being archaic was not acceptable, especially, given that the advertisements issued by Patanjali were in blatant violation of the said Act. Thereafter, Baba Ramdev and Acharya Balakrishna expressed an unconditional apology for publishing misleading advertisements and making comments against allopathic medicines in breach of their undertaking to the SC.
They also agreed with the SC to issue a public apology for their actions. Following this undertaking, Patanjali published advertisements apologizing for the "mistake of publishing advertisements and holding a press conference even after our advocates made a statement in the apex court". However, the SC objected to the small size of the apology issued in the newspapers. A day after the SC's objection, the company issued another 'bigger' apology in approximately 300 (three hundred) newspapers on April 24, 2024, titled "unconditional public apology" on behalf of the company, Baba Ramdev, and Acharya Balakrishna. In subsequent hearings, the SC also questioned IMA on inflated billing and prescription of expensive medicines by the doctors, in cahoots with pharmaceutical companies. The SC also objected to the statements made by the IMA President criticizing the SC. The SC also chided the Union Government and the Uttarakhand state authorities for failing to take any action against Patanjali.
Moreover, in the recent hearing, the SC also asked the Union Government to clarify why the government issued a letter dated August 29, 2023, to state and union territory licensing authorities to not take action against ads pertaining to Ayurvedic and Ayush products under Rule 170 of the Drugs and Cosmetic Rules, 1945 ("1945 Rules"), which prohibits the publication of advertisements of Ayurvedic, Siddha, or Unani drugs without licensing authorities' approval. The Union Government responded to the SC that the letter was issued in line with the Ayurvedic, Siddha, and Unani Drugs Technical Advisory Board dated May 25, 2023, which recommended that Rule 170 of 1945 Rules should be omitted, for already being challenged before several high courts. It also highlighted that the recommendation was issued via a letter since such an omission through an official notification would have taken a considerable amount of time. With ongoing hearings in the case, presently, the case is still pending before the SC, and next hearing is set to take place on July 9, 2024.
The LiveLaw coverage for the case can be viewed here, here, here, here and here.
The media coverage in relation to the matter as reported by the Hindu can be viewed here and here.
To view the full article click here
Footnotes
1. AIR 1965 SC 881.
2. Aveek Sarkar & Anr. v. State of West Bengal, AIR 2014 SC 1495.
3. W.P.(C) No. 645/2022.
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