Obscene Online Content: Its Regulation & SC’s Gag Order

• The recent Supreme Court gag order on podcaster Ranveer Allahbadia, restricting his social media activities, has stirred debates around freedom of speech and its ethical implications in a democratic society. While the Court viewed his comments as potentially “shameful to society,” this form of prior restraint appears to contradict the Court’s landmark ruling in Shreya Singhal v. Union of India (2015), which warned against vague restrictions that could create a “chilling effect” on free expression.
• This decision raises significant ethical concerns regarding individual liberties, state power, and the role of the judiciary in protecting the foundational rights enshrined in the Indian Constitution.

What is Obscenity?

• Obscenity: Any content that violates public decency and morality.
• Legal Standard: Content that is lascivious, depraving, or corrupting societal values.
• Offensive Humour: Speech or comedy on sensitive topics like religion, caste, or gender, often leading to legal scrutiny.

Distinction Between Related Terms

• Obscenity: Corrupts impressionable minds (e.g., explicit sexual material).
• Vulgarity: Causes disgust but doesn’t corrupt morals (e.g., use of swear words).
• Indecency: Violates societal norms without being obscene (e.g., revealing clothing in conservative areas).

Evolution of Obscenity Law

• Queen v. Hicklin (1868): Established the Hicklin Test, defining obscenity based on isolated passages’ impact on vulnerable individuals.
• Roth v. United States (1957): Rejected the Hicklin Test, introducing the community standards test, considering the work as a whole.
• Ranjit D. Udeshi v. State of Maharashtra (1964): Adopted the Hicklin Test in India, banning Lady Chatterley’s Lover for obscenity.
• Aveek Sarkar v. State of West Bengal (2014): Indian SC shifted to community standards, assessing obscenity based on evolving social norms.
• Recent Cases (including 2024 College Romance Case): Courts distinguish profanity from obscenity.

Key Laws Governing Obscenity

• Section 294, Bharatiya Nyaya Sanhita (BNS): Prohibits sale, distribution, advertisement of obscene material, including digital content. Punishment upto 2 yrs jail & ₹5,000 fine for first-time offenders.
• Section 67 of the IT Act, 2000: Regulates online publication of obscene material. Punishment up to 3 years imprisonment and ₹5 lakh fine for first-time offenders.
• Indecent Representation of Women (Prohibition) Act, 1986: Prohibits indecent portrayal of women in media.
• Cable Television Networks (Regulation) Act, 1995: Regulates TV content standards.
• Cinematograph Act, 1952: Governs film certification.
• Young Persons (Harmful Publication) Act, 1956: Protects minors from explicit content.

Obscenity Laws in Other Countries

• United States: First Amendment protects free speech; Miller Test (1973) assesses obscenity.
• United Kingdom: Obscene Publications Act (1857) originally applied the Hicklin Test; later revised under the Criminal Justice and Immigration Act (2008).

Supreme Court’s Call for Regulation of Obscene Online Content

• The Supreme Court of India has stressed the need to regulate obscene content on social media during YouTuber Ranveer Allahbadia’s bail hearing. The Court criticised the vulgar language used in his show, India’s Got Latent, stating that popularity cannot justify undermining public decency.

Key Issues

1. Freedom of Speech vs. Public Morality: While Article 19(1)(a) guarantees free speech, Article 19(2) allows reasonable restrictions to uphold decency and public order.
2. Judicial Concern: The Court urged the government to act, signaling judicial intervention if necessary.

Challenges

• Subjectivity of Obscenity: Cultural and contextual differences make uniform regulation difficult.
• Global Jurisdiction: International platforms complicate enforcement of Indian laws.
• Technological Barriers: Real-time monitoring of vast user-generated content is challenging.
• Balancing Rights: Protecting free speech without allowing harmful content.

Way Forward

• Strengthen Legal Frameworks: Enforce Section 69A of the IT Act, 2000, and update the Cinematograph Act, 1952, to regulate OTT platforms uniformly.
• Promote Self-Regulation: Encourage stricter adherence to frameworks like the Digital Publishers Content Grievances Council (DPCGC) by OTT platforms.
• Ensure Accountability: Strengthen the Press & Registration of Periodicals Bill, 2023, for greater editorial responsibility.
• Balance Rights and Responsibility: Uphold Article 19(1)(a) while applying reasonable restrictions under Article 19(2).
• Empower Stakeholders: Improve grievance redressal through the Intermediary Guidelines & Digital Media Ethics Code, 2021.

Ethical Dimensions of the Gag Order

Freedom of Speech vs. Social Responsibility

• The fundamental right to freedom of speech (Article 19(1)(a)) is central to a democratic society, allowing individuals to express opinions without fear of censorship.
• Ethically, content creators like Allahbadia bear a social responsibility to ensure their content does not incite hatred, spread misinformation, or harm public sentiment.
• However, prior restraint by the judiciary could hinder intellectual freedom and discourage open discussions on sensitive issues.

• E.g., The gag order could deter influencers from expressing critical or controversial views, thus limiting healthy public discourse.

Rule of Law vs. Arbitrary State Action

• The principle of the rule of law demands that restrictions on speech be applied uniformly and fairly, without discrimination or favouritism.
• Judicial overreach can lead to arbitrary enforcement of power, encouraging frivolous complaints against individuals who challenge mainstream narratives.
• Such orders may undermine accountability by giving disproportionate power to state institutions to silence dissent.

• E.g., Similar cases could result in selective targeting of influencers, eroding public trust in the fairness of the judicial system.

Constitutional Morality vs. Majoritarian Sensitivity

• The judiciary must uphold constitutional morality, ensuring protection for all forms of expression – even if they are unpopular or offend majority sentiment.
• Ethical governance involves protecting minority opinions against majoritarian pressures that demand censorship or punishment for dissenting views.
• Upholding pluralism strengthens democracy by ensuring a diversity of voices in public discourse.

• E.g., Gag orders motivated by popular outrage rather than legal necessity risk compromising constitutional integrity.

Chilling Effect on Free Expression

• The Shreya Singhal v. Union of India (2015) judgment highlighted how vague restrictions can have a chilling effect on free speech, discouraging individuals from engaging in open discussion.
• Ethically, this undermines intellectual honesty by creating fear of reprisal for holding unconventional or controversial views.
• A democratic society must foster an environment where citizens feel empowered to speak truth to power without undue fear of censorship.

• E.g., The fear of similar gag orders could discourage influencers, journalists, and activists from voicing critical perspectives.

Judicial Responsibility and Overreach

• While the judiciary must protect public morality, it must also exercise judicial restraint to avoid encroaching upon personal liberties unnecessarily.
• Ethical governance requires the judiciary to remain impartial and avoid becoming an instrument of state suppression.
• Any restrictions imposed must be proportionate, justified, and based on clear legal grounds.

• E.g., The Court should have explored alternative remedies such as seeking an apology or promoting awareness, instead of imposing a blanket restriction.

Way Forward

• Uphold Constitutional Morality: Ensure that restrictions on speech are narrowly defined under Article 19(1)(a) and do not infringe upon fundamental rights.
• Promote Ethical Digital Responsibility: Encourage content creators to practice self-regulation with a focus on social responsibility and respect for diverse opinions.
• Establish Transparent Content Guidelines: Develop clear and fair regulations for digital platforms to prevent arbitrary censorship and maintain accountability.
• Exercise Judicial Restraint: Courts should use proportionate measures like warnings or clarifications instead of imposing blanket gag orders.
• Set Up Independent Review Mechanism: Create a neutral body to assess alleged harmful speech cases before any legal action, ensuring due process and fairness.

  Reference: The Indian Express | PMF IAS: Freedom of Expression

UPSC Mains PYQs – Theme – Freedom of Speech

1. [UPSC 2014] What do you understand by the concept “freedom of speech and expression”? Does it cover hate speech also? Why do the films in India stand on a slightly different plane from other forms of expression? Discuss.
2. [UPSC 2013] Discuss Section 66A of IT Act, with reference to its alleged violation of Article 19 of the Constitution.

PMF IAS Pathfinder for Mains – Question 84

Q. Critically examine the ethical and constitutional dimensions of judicial gag orders in the context of freedom of speech under Article 19(1)(a). How can the judiciary balance individual liberties with public morality while avoiding a chilling effect on free expression? (250 Words) (15 Marks)

Approach

• Introduction: Briefly Introduce the answer by defining the vitality of Article 19(1)(a) for Indian democracy.
• Body: Discuss the constitutional and ethical dimensions of judicial gag orders. Also, discuss briefly the challenges in balancing freedoms.
• Conclusion: Write a way forward and conclude appropriately highlighting a balanced approach.