Were Ranveer Allahbadia’s comments ‘obscene’ under the law? (original) (raw)

Ranveer Allahbadia, founder of the popular YouTube channel ‘Beer Biceps’, has become the subject of a Mumbai police probe for the allegedly obscene comments he made during a guest appearance on the YouTube show ‘India’s Got Latent’.

The show host and comedian Samay Raina is also under investigation now. Though the Mumbai police have yet to register an FIR, the Assam police registered a complaint on Monday (February 10) against both Allahbadia and Raina, including charges of “obscene acts” under Section 296 of the Bharatiya Nyaya Sanhita, 2023 (BNS).

The Indian judiciary is no stranger to hearing cases about works or actions of public figures being labelled “obscene”. Such cases are integral to understanding how the law on obscenity has evolved, especially with digital spaces thrown into the mix. We explain.

Which laws govern obscenity in online content?

Section 294 of the BNS punishes those who sell, import, export, advertise, or profit from obscene material such as books, paintings, and figures and also includes the “display of any content in electronic form”.

It describes such material as that which “is lascivious or appeals to the prurient interest” — material which is overtly and excessively sexual — or which would “tend to deprave and corrupt persons who are likely…to read, see or hear the matter contained or embodied in it”. This can be punished with up to two years imprisonment and a fine of up to Rs. 5,000 for first-time offenders.

Publishing or transmitting obscene material online can also be punished under Section 67 of the Information Technology Act, 2000. The definition of obscene material is identical to that provided under Section 294 of the BNS (previously Section 292 of the Indian Penal Code, 1860). However, it provides a comparatively more rigorous punishment — up to three years imprisonment and a fine of up to Rs. 5 lahks for a first-time offence.

How has the court’s understanding of obscenity evolved?

The most important early ruling on obscenity laws involved the book Lady Chatterley’s Lover, written by English author D H Lawrence. The book was considered scandalous for the times with its depictions of sexual encounters, and faced obscenity trials in several countries, including the United Kingdom and India.

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It was published in 1928 in Italy and 1929 in France, although in England, the book was unavailable in an unexpurgated edition until 1960. In 1964, the Supreme Court of India held that the book was obscene under Section 292 of the IPC in the case of Ranjit D Udeshi v. State of Maharashtra (1964). It did so by borrowing from a British case called Queen v. Hicklin (1868) which laid down the “Hicklin test” for determining if a work is obscene.

If the work had a tendency to “deprave and corrupt those whose minds are open to such immoral influences”, the court held that it must be regarded as obscene. Effectively, the threshold for what can be considered obscene would be judged from the perspective of someone young and impressionable, but also those who already have “thoughts of a most impure and libidinous character” and are the most susceptible to obscene material.

However, years before the SC’s judgment, the standard for obscenity in the UK had changed. The Obscene Publications Act, 1959, stated that a work must be considered “as a whole” before considering its effect on likely audiences. The United States had also shifted the goalpost away from the Hicklin test in 1957 in the case of Roth v. United States. The US Supreme Court held that the test for obscenity was “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest”.

This marked a crucial shift. While the Hicklin test defined obscenity using the lowest common denominator, the US and the UK accounted for shifting and evolving societal mores. The Roth case, in particular, influenced the Indian Supreme Court’s choice to adopt the “community standards” test in the case of Aveek Sarkar v. State of West Bengal (2014).

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Here, the court quashed obscenity proceedings against magazines for carrying an image of tennis player Boris Becker posing nude with his fiancée. It held that applying the Hicklin test would result in the work being “judged for obscenity based on isolated passages of a work considered out of context and judged by their apparent influence on most susceptible readers, such as children or weak-minded adults”.

Have courts heard cases of obscenity in online content?

In March 2024, the Supreme Court quashed proceedings against the creators of the YouTube web series “College Romance” under Section 292 of the IPC and Section 67 of the IT Act. The prosecution argued that the characters on the show used vulgar language and that the plot revolved around college students offensively discussing and engaging in sexual activities.

The court, however, held that there was a fine line between obscenity and language which is “foul, indecent and profane”. A bench of Justices A S Bopanna and P S Narasimha stated 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 episode.”

The court also applied the community standards test. It held that “While the literal meaning of the terms used may be sexual in nature and they may refer to sexual acts, their usage does not arouse sexual feelings or lust in any viewer of ordinary prudence and common sense. Rather, the common usage of these words is reflective of emotions of anger, rage, frustration, grief, or perhaps excitement”.

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The proceedings against Allahbadia were initiated over a question he asked a contestant on the show. If the case is taken forward, the court will have to consider the show as a whole and see if his comments were simply vulgar and profane or if they can be considered obscene for arousing sexual thoughts.