College Romance: Don't Need to Like the Show to Question the FIR Against Makers

I dislike the show but the court order violates past judgments and most importantly curbs freedom of expression.

Delhi High Court orders an FIR against College Romance.

(Photo Courtesy: Pinterest)

Nothing about ‘College Romance’ appeals to me – the storyline of the TVF web series seems mundane, the acting passé, and the characters? One-dimensional.

The show, by its own admission, traces the lives of “three best friends looking for love, laughs and some lifelong memories while attending college (in Delhi University) together.” But, there’s no new narrative that it brings forth.

TLDR: I dislike the show.

Was a Delhi High court order directing that a criminal complaint on grounds of obscenity be filed against the series, justified though?

No. And we'll delve into the why of it, shortly.

‘Language Obscene, Show Sexually Explicit’: The Delhi HC Order

Earlier this week, the High Court ruled that the language used in the web series, which was streaming on OTT platform TVF, is “obscene, profane, vulgar” and thus has the potential to “deprave and corrupt the minds of young people.”

The complainant had alleged that  “vulgar and obscene language was used in Episode 5 of Season 1 of the show and everything about it, including its title (which carried the irreverent but commonly-used 'F' word), was indecent."

Before the case came to the High Court, the Additional Chief Metropolitan Magistrate (ACMM) had already ordered the Delhi Police to lodge an (FIR) against the show's director Simarpreet Singh, actor Apoorva Arora and TVF media.

Following this, the accused challenged the order in the High Court which, however, upheld the Additional Chief Metropolitan Magistrate’s order and said:

“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.”

Justice Swarana Kanta Sharma then, citing Indian standards of morality,  went on to add that the language used in the show is not “civil,” is extremely unlike what is spoken by students and makes the director and actor liable to action under Sections 67 & 67 (A) of the Information Technology (IT) Act, 2000.

Who Decides What Is Obscene & How?

It is worth noting here, that although the relevant sections of the IT Act, as illustrated above, use terms like ‘obscene’ and  ‘sexually explicit’ – they don’t exactly define them. So, whenever cases like these have come up, courts have usually been the ones to step in and deliberate on what constitutes obscenity.

And how do courts do that?

Through the ‘community standards test’ devised by the apex court in a 2014 judgment (Aveek Sarkar vs State Of West Bengal) to replace the rather archaic and stringent Hicklin test. The Delhi High Court, used the community standards test in this case too.

According to the test:

“Only those sex-related materials which have a tendency of “exciting lustful thoughts” can be held to be obscene, but the obscenity has to be judged from the point of view of an average person, by applying contemporary community standards."

This, although heralded as a landmark judgment, has its own loopholes.

As pointed out by lawyer and Constitutional law expert Gautam Bhatia in his blog: “This is worse than vague."

Among other things, Bhatia asked: "On what ground does the court hold sexual arousal to be something that ought to be criminalised?”

Why ‘Sexually Explicit’ Content In This Case Is Not Obscene

The language in the show was obscene because “it conjures with the words ‘sexually explicit acts',” the Delhi High Court concluded in the College Romance case.

But the same High Court in a 2008 judgment had emphasised that sex and obscenity are not always synonymous.

“It would be wrong to classify sex as essentially obscene or even indecent or immoral,” the court had said while quashing an obscenity complaint against eminent painter MF Hussain.

That’s not all. In the College Romance verdict, the court said that to understand why the language was obscene, one need not look to the West. Since morality is subjective and varies from country to country, according to the court, considering Indian morality was enough.

However, it would help for the court to remember that our notions of equating sex with obscenity come from Victorian morality rather than our own literature and scriptures, as the Madras High Court had observed in 2016, while setting aside a criminal complaint against Tamil writer Perumal Murugan for allegedly hurting religious sentiments. 

Even in the MF Hussain case, the Delhi High Court had said:

So, then, as the court had gone on to inquire,“can we say the Mahabharata or the various other literatures, which we have quoted hereinabove, are part of our history, yet they say something that is unusually lascivious and therefore should be banned?”

And, What Of Freedom Of Expression?

“ It is the duty of a constitutional court to expand the ambit of artistic freedom, not restrict it. The Delhi High Court order (in the College Romance case) is violative of the makers’ and actor’s fundamental right to freedom of speech and expression,” Supreme Court Lawyer Paras Nath Singh told The Quint.

How though? 

It goes against the apex court's 1989 ruling (S Rangarajan Etc vs P. Jagjivan Ram), where the court had explained what circumstances warrant restrictions on freedom of expression, when it comes to artistic work.

Singh pointed out that in the Jagjivan ram case, the Supreme Court had said that unless the content in question endangered community interest, there was no reason to curb freedom of expression. The court had further cautioned that the “anticipated danger should not be remote, conjectural or far-fetched.”

However, as has been mentioned above too, the Delhi high court order does not establish a direct link between the show and depravity of the society. It merely appears to deem the show obscene because, as pointed out above, the web series "conjures with the words sexually explicit acts.”

If there indeed was an issue with some of the content on the show, Singh explained, it "could have very simply been dealt with by asking the makers to ensure the show has necessary parental controls and adult ratings on OTT platforms."

"There was no need to have a sanction of law for that," Singh added. And, simply put, neither was there a need for an FIR.