It is not possible to control the availability of content containing profanity and swear words by making it illegal, the Supreme Court emphasised on Tuesday, adding that labelling abusive language as a criminal offence would in fact be an infraction of free speech rights.

According to a bench of justices AS Bopanna and PS Narasimha, courts must follow the test whether the material alleged to be “obscene” under the criminal law has the tendency to deprave or corrupt minds.

Even vulgarity is different from obscenity because the words that are vulgar can create a feeling of disgust and revulsion and may shock the reader, but this, the bench said, does not necessarily amount to obscenity, which has the tendency to deprave and corrupt.

“The availability of content that contains profanities and swear words cannot be regulated by criminalising it as obscene. Apart from being a non-sequitur (a conclusion that does not follow logically), it is a disproportionate and excessive measure that violates freedom of speech, expression, and artistic creativity,” underlined the judgment authored by justice Narasimha.

Adding another standard to test whether a material can be made liable for criminal prosecution for being “obscene” under Section 292 of the Indian Penal Code and Section 67 of the Information Technology Act if it is available online, the bench highlighted that the metric to assess legality of any content cannot be that it must be appropriate to play in the courtroom while maintaining the court’s decorum and integrity.

“Such an approach unduly curtails the freedom of expression that can be exercised and compels the maker of the content to meet the requirements of judicial propriety, formality, and official language,” said the bench.

The court’s views defining “obscenity” as an offence came while quashing a criminal case against the actors, casting director, script writers and creator of the web-series “College Romance’, and the media company that owns the YouTube channel on which the series was hosted. A criminal prosecution was launched against them in March 2023 under the IT Act for production, transmission, and online publication of obscene and sexually explicit material after the Delhi high court ordered registration of a first information report.

In its judgment, the high court found excessive use of profanities and vulgar expletives in the web series falling afoul of the contemporary standards of civility and morality, besides being indecent and not the one commonly used in the country.

Overturning the high court judgment, the top court held that the high court arrived at a wrong answer because it posed a wrong question. “The inquiry is to determine whether the content is lascivious, appeals to prurient interests, or tends to deprave and corrupt the minds of those in whose hands it is likely to fall.The high court embarked on a wrong journey and arrived at the wrong destination,” it said.

Profanity is not per se obscene, added the court, noting that the second threshold error is in the finding of the high court that the language is full of swear words, profanities, and vulgar expletives that could not be heard in open court and also that it is not the language of the youth.

“The high court has equated profanities and vulgarity with obscenity, without undertaking a proper or detailed analysis into how such language, by itself, could be sexual, lascivious, prurient, or depraving and corrupting…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,” maintained the court, citing a line of judicial precedents.

The bench also pointed out that the web series is a light-hearted show on the college lives of young students, using expletives to express anger, rage, frustration, grief and excitement, instead of sexual feelings or lust. “It is clear that the use of these terms is not related to sex and does not have any sexual connotation…By taking the literal meaning of these words, the high court failed to consider the specific material (profane language) in the context of the larger web-series and by the standard of an ordinary man of common sense and prudence,” it said.