Profanity, Vulgarity And Constitutional Morality - Redefining Obscenity In Indian Digital Jurisprudence
Author: LawSphereX
Category: Constitutional & Human Rights
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PROFANITY, VULGARITY AND CONSTITUTIONAL
MORALITY: REDEFINING OBSCENITY IN INDIAN DIGITAL JURISPRUDENCE
Poonam Tamrakar, Assistant Professor, Hitkarini Law College, Jabalpur, Madhya Pradesh
ABSTRACT
The regulation of obscenity in India has historically oscillated between restrictive morality and constitutional freedom of expression. The advent of digital platforms has sharpened this conflict, particularly in cases where profanity and vulgarity dominate popular cultural content. The Delhi High Court’s ruling in the “College Romance” web series controversy (2022), equating profanity with obscenity, and the Supreme Court’s corrective judgment in the same case, which decisively separated profanity from legal obscenity, exemplify this evolving jurisprudence. This paper argues that Indian obscenity law must be redefined through the lens of constitutional morality, a principle repeatedly emphasised by the Supreme Court in cases such as Navtej Singh Johar v. Union of India, 2018 and Indian Young Lawyers Association v. State of Kerala 2018.
Constitutional morality requires courts to transcend fluctuating notions of public morality and instead safeguard individual rights, artistic freedom, and gender justice within a harm-based framework. By analysing statutory provisions (IPC/BNS, IT Act, IT Rules, POCSO, IRWPA), judicial precedents (from Ranjit Udeshi to Aveek Sarkar to TVF Media Labs), and comparative jurisprudence (U. S. , U. K. ), this study highlights the inadequacy of morality-based censorship in the digital era. It proposes a reoriented model where profanity and vulgarity are excluded from the ambit of obscenity, while protection of children and prevention of exploitative content remain central regulatory priorities. The paper concludes by suggesting statutory clarity, harm-sensitive standards, and proportionate regulation as the constitutional path forward for India’s digital jurisprudence on obscenity.
Keywords: Profanity, Vulgarity, Obscenity, Constitutional Morality, Public Morality, Free Speech, Cyberspace, OTT Platforms.
Introduction
“The availability of content that contains profanities and swear words cannot be regulated by criminalising it as obscene. Apart from being a non-sequitur, it is a disproportionate and excessive measure that violates freedom of speech, expression, and artistic creativity. ” ---------Supreme court of India1 The jurisprudence of obscenity in India has long reflected the uneasy balance between public morality and constitutional freedoms. For decades, courts relied on imported tests such as Hicklin, focusing on the most vulnerable reader, before gradually adopting the community standards test in case of Aveek Sarkar (2014)2. Yet, the rise of digital platforms has reopened foundational questions: Is profanity equivalent to obscenity? Should vulgar expressions invite criminal sanction? Can fluctuating notions of decency determine the boundaries of free speech?
“The College Romance’’3 web series controversy brought these issues to the forefront. The Delhi High Court’s decision in 2022 blurred the distinction between profanity and obscenity, holding that repeated use of expletives could corrupt impressionable minds and thus constituted obscenity under the Information Technology Act, 2000. In March 2024, however, the Supreme Court intervened in Apoorva Arora & Anr. Etc. v. State (Govt. of NCT of Delhi) & Anr4 to decisively quash this approach, holding that profanity and vulgarity cannot, by themselves, be criminalised as obscene. By framing the issue through the lens of constitutional morality, the Court signalled a crucial doctrinal correction: artistic freedom and individual expression cannot be subordinated to transient notions of public morality. This paper explores how the Indian legal system must reimagine obscenity law in the digital era.
It examines statutory frameworks, judicial evolution, and comparative experiences, while highlighting the need to safeguard vulnerable groups such as children and women against genuine harm. The central claim advanced here is that only constitutional morality, and not fluctuating standards of public morality, can provide a principled and proportionate foundation
1 APOORVA ARORA & ANR. ETC. VERSUS STATE (GOVT. OF NCT OF DELHI) & ANR
2024 LiveLaw (SC) 243
2 Aveek Sarkar v. State of West Bengal, (2014) 4 SCC 257.
3 TVF Media Labs Private Ltd.
4 2024 LiveLaw (SC) 243.
for regulating obscenity in cyberspace. Conceptual Framework: Public Morality vs Constitutional Morality The debate on obscenity in India cannot be understood without addressing the deeper tension between public morality and constitutional morality. While the former reflects the fluctuating standards of decency, propriety, and cultural sensibility in society, the latter embodies the enduring values enshrined in the Constitution, including liberty, equality, and dignity. Public Morality Public morality is grounded in the collective conscience of society, often shaped by cultural traditions, religious norms, and prevailing sensibilities. In obscenity jurisprudence, this concept historically guided decisions such as Ranjit D. Udeshi v.
State of Maharashtra5, where the Supreme Court, applying the Hicklin test, upheld the ban on Lady Chatterley’s Lover on the ground that it could corrupt susceptible readers. The Delhi High Court’s approach in the College Romance case6 reflects a similar reliance on public morality: the Court reasoned that repeated use of expletives was offensive to societal standards and corruptive for impressionable minds. However, public morality is neither stable nor uniform. What one segment of society may consider obscene, another may accept as art, satire, or legitimate cultural expression. The instability of public morality makes it an unreliable constitutional basis for limiting fundamental rights. Constitutional Morality By contrast, constitutional morality derives its authority from the Constitution itself. Dr. B. R.
Ambedkar described it as “constitutional morality is a paramount reverence for the forms of the Constitution, enforcing obedience to authority and acting under and within these forms, yet combined with the habit of open speech, of action subject only to definite legal control, and unrestrained censure of those very authorities as to all their public acts combined, too, with perfect confidence in the bosom of every citizen amidst the bitterness of party contest that
5 Ranjit D. Udeshi v. State of Maharashtra, AIR 1965 SC 881.
6 TVF MEDIA LABS PVT LTD & ORS.vs. STATE (GOVT.OF NCT OF DELHI) & ANR. CRL.M.C.
2214/2020 & CRL. M. A. 15761/2020. the forms of Constitution will not be less sacred in the eyes of his opponents than his own7. ” The Supreme Court has subsequently invoked constitutional morality to uphold individual rights against majoritarian morality. In Navtej Singh Johar v. Union of India, 20188 the Court decriminalised homosexuality under Section 377 of IPC, holding that “constitutional morality cannot be martyred at the altar of social morality. ” Similarly, in Indian Young Lawyers Association v. State of Kerala, 2018 (the Sabarimala case9), the Court relied on constitutional morality to affirm women’s right to worship despite social opposition. Applied to obscenity, constitutional morality requires courts to protect freedom of speech and expression under Article 19(1)(a), subject only to the narrow restrictions of Article 19(2).
Profanity and vulgarity, however undesirable, cannot be criminalised merely because they offend prevailing social norms. They must be evaluated against constitutional guarantees of dignity, autonomy, and artistic freedom, balanced against the state’s obligation to protect vulnerable groups such as women and children from genuine harm. The shift from public morality to constitutional morality marks a transformation in Indian obscenity jurisprudence. It reflects the recognition that the Constitution, not public opinion, must be the ultimate yardstick for evaluating restrictions on speech. This principle underlies the Supreme Court’s judgment in TVF Media Labs (2024)10, which clarified that profanity is not obscenity, and that criminalisation based on linguistic offence is disproportionate and unconstitutional.
Statutory Framework on Obscenity in India The statutory regulation of obscenity in India has historically been anchored in the Indian Penal Code, 1860 (IPC), which is now replaced by the Bharatiya Nyaya Sanhita, 2023 (BNS). Under Section 292 IPC — now substantially retained as Section 294 BNS — the sale, distribution, and public exhibition of obscene books, pamphlets, drawings, or other materials is criminalised. Obscene material is defined as that which is “lascivious or appeals to the
7 Snehil Kunwar Singh, Contemporary Relevance of Dr. Ambedkar's Concept of Constitutional Morality,
LiveLaw (Apr. 14, 2021, 11:37 AM), https://www.livelaw.in/columns/contemporary-relevance-of-drambedkarsconcept-of-constitutional-morality-172285.
8 Navtej Singh Johar v Union of India AIR 2018 SC 4321.
9 Indian Young Lawyers Association v. State of Kerala, (2019) 11 SCC 1.
10 APOORVA ARORA & ANR. ETC. VERSUS STATE (GOVT. OF NCT OF DELHI) & ANR 2024 LiveLaw
(SC) 243 prurient interest” or has the effect of depraving and corrupting those likely to read, see, or hear it. This reflects the legislature’s reliance on public morality as the touchstone of obscenity. Similarly, Section 293 IPC (now Section 295 BNS) prescribes enhanced punishment for the sale of obscene material to minors. While the IPC applied to persons below twenty years of age, the BNS narrows this to below eighteen years, thereby aligning with the definition of “child” in other protective statutes. This continuity reflects the legislature’s consistent concern for safeguarding minors, a goal that resonates with constitutional morality’s emphasis on protecting vulnerable groups. Section 294 IPC (now Section 296 BNS) extends the scope of obscenity regulation to performances and expressions, criminalising obscene acts, songs, and words in public places.
However, like Section 292, its wording remains broad and susceptible to subjective interpretation, often conflating indecency with obscenity unless judicially narrowed. The Indecent Representation of Women (Prohibition) Act, 1986 (IRWA) supplements these provisions by targeting gender-specific obscenity. Section 3 criminalises the production, sale, or distribution of indecent representations of women, while Section 4 restricts advertisements or content that objectify women. Though enacted in a pre-digital era, courts and regulators have applied IRWA in conjunction with the IT Act to regulate portrayals of women online. While the Act advances gender justice, its broad terms risk overreaching into the domain of vulgar or profane content that, though distasteful, falls short of obscenity.
With the advent of cyberspace, the Information Technology Act, 2000 (IT Act) introduced provisions specifically addressing obscenity in electronic form. Section 67 prohibits the publication or transmission of obscene material online, prescribing imprisonment up to three years. Section 67A imposes harsher penalties for sexually explicit acts, while Section 67B addresses child pornography, thereby reflecting India’s international commitments under the Convention on the Rights of the Child. These provisions recognise the unique risks posed by the internet — speed, anonymity, and borderless dissemination — but their broad wording risks conflating profanity and obscenity unless interpreted through the lens of constitutional morality. The Protection of Children from Sexual Offences Act, 2012 (POCSO) further reinforces safeguards against the sexual exploitation of minors.
Sections 13–15 criminalise the use of children for pornographic purposes, including storage, distribution, and transmission of such material. Read alongside Section 67B of IT Act, POCSO creates a stringent framework for child protection in cyberspace. Here, unlike in obscenity provisions generally, the legislative focus is on harm-prevention and the protection of vulnerable groups, which aligns closely with constitutional morality. Recognising the growing influence of digital platforms, the Government notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. These Rules impose due diligence obligations on intermediaries, establish a three-tier grievance redressal system, and mandate self-regulation for OTT platforms.
Rule 3 requires intermediaries to prohibit users from uploading obscene or pornographic content, while Rule 4 provides for content classification and parental locks. However, critics argue that the Rules, by invoking vague standards of morality, risk excessive executive control and chilling effects on free expression. Their constitutional validity ultimately depends on whether they uphold the principle of proportionality and conform to constitutional morality, rather than public morality alone. Taken together, the IPC/BNS provisions, IRWA, IT Act, POCSO, and IT Rules form a layered statutory framework addressing obscenity across offline and digital contexts. Yet, these laws remain couched in the vocabulary of public morality, with vague definitions that leave wide discretion for enforcement.
It is through judicial interpretation — from Ranjit Udeshi to Aveek Sarkar to TVF Media Labs — that the sharper doctrinal distinctions between obscenity, vulgarity, and profanity have emerged, moving the debate increasingly towards constitutional morality as the ultimate benchmark for free speech in cyberspace. Judicial Evolution of Obscenity Tests in India The judicial interpretation of obscenity in India has undergone a significant transformation, moving from the strict Hicklin test to the more liberal community standards test, and most recently towards a constitutional morality-based framework. Courts have repeatedly acknowledged that the definition of obscenity cannot remain static, as it must evolve with changing social values and constitutional commitments to free speech and dignity. The earliest and most influential precedent was Ranjit D. Udeshi v. State of Maharashtra. 11
11 Ranjit D. Udeshi v. State of Maharashtra, AIR 1965 SC 881.
The case arose from the prosecution of a bookseller for selling the unexpurgated version of Lady Chatterley’s Lover. The Supreme Court, relying on the English case of Regina v. Hicklin12, adopted the Hicklin test, under which the test of obscenity was whether the impugned material tended “to deprave and corrupt those whose minds are open to such immoral influences. ” This narrow test placed emphasis on isolated passages of a work, without considering its overall literary or artistic merit. While the Court upheld the conviction, it acknowledged the tension between public morality and freedom of expression under Article 19(1)(a). Subsequent cases revealed the limitations of Hicklin. In Samaresh Bose v. Amal Mitra13, the Court evaluated a Bengali novel that contained sexually explicit passages.
Instead of isolating words or sentences, the Court adopted a holistic approach, considering the work in its entirety and recognising the literary value of the novel. This decision marked a gradual departure from the rigidity of Hicklin, signalling judicial recognition that artistic expression could not be judged solely on the basis of offensive fragments. The doctrinal shift culminated in Aveek Sarkar v. State of West Bengal14. The case involved the publication of a photograph of Boris Becker and his fiancée in a semi-nude pose. Rejecting Hicklin, the Supreme Court expressly adopted the community standards test, holding that obscenity must be judged from the perspective of an average person applying contemporary standards of tolerance. The Court observed that nudity or sexually suggestive content, per se, does not automatically qualify as obscene.
This evolution—from Hicklin to community standards—marks a fundamental reorientation in Indian obscenity jurisprudence. The shift reflects the Court’s attempt to reconcile social morality with constitutional guarantees of free speech. Yet, the digital era posed a new challenge: distinguishing between profanity, vulgarity, and obscenity. This question was directly confronted in the College Romance web series controversy, culminating in the Supreme Court’s 2024 ruling in TVF Media Labs case15, where the Court signalled a decisive shift towards constitutional morality as the ultimate benchmark.
12 L.R. 3 Q.B. 360 (1868), Court of Queen’s Bench
13 Samaresh Bose v. Amal Mitra, (1985) 4 SCC 289
14 Aveek Sarkar v. State of West Bengal, (2014) 4 SCC 257.
15 APOORVA ARORA & ANR. ETC. VERSUS STATE (GOVT. OF NCT OF DELHI) & ANR 2024 LiveLaw
(SC) 243 Delhi High Court’s Approach in the College Romance Case, 202216 and the Supreme Court’s Intervention in TVF Media Labs,2024. 17 The expansion of OTT platforms brought before Indian courts new challenges concerning profanity, vulgarity, and their proximity to obscenity. A leading controversy arose in relation to the popular web series College Romance, produced by TVF Media Labs. In 2022, the Delhi High Court examined whether the dialogues and expressions in the series amounted to obscenity under Section 67 of the IT Act, 2000. The Delhi High Court equated repeated use of expletives with obscenity. It reasoned that such language could deprave young minds and therefore attracted criminal liability. By invoking linguistic morality rather than statutory tests of obscenity, the Court collapsed the distinction between profanity and obscenity.
This reasoning, grounded in public morality, risked chilling artistic and creative expression on digital platforms. When the matter reached the Supreme Court in Apoorva Arora & Anr Etc. Versus State (Govt. Of NCT Of Delhi) & Anr18 the Court decisively quashed the FIR. It held that profanity and vulgarity, although socially undesirable, cannot be equated with obscenity in law. Obscenity must meet the threshold of appealing to prurient interest or tending to deprave and corrupt, as envisaged under Section 292 of the IPC and Section 67 of the IT Act. Mere use of swear words, however offensive, does not satisfy this standard. The Supreme Court further emphasised that criminalising profane language in artistic works is a disproportionate restriction on free speech under Article 19(1)(a).
Describing the High Court’s reasoning as a “non-sequitur,” the Court reaffirmed that restrictions under Article 19(2) must be narrowly construed. This judgment reflects a constitutional morality approach, which protects artistic creativity even when it challenges or discomforts prevailing public morality. From Conflation to Clarity: Delhi High Court vs Supreme Court in the College Romance Controversy The College Romance litigation vividly illustrates the divergence between judicial reliance on
16 TVF MEDIA LABS PVT LTD & ORS.vs. STATE (GOVT.OF NCT OF DELHI) & ANR. CRL.M.C.
2214/2020 & CRL.M.A. 15761/2020.
17 APOORVA ARORA & ANR. ETC. VERSUS STATE (GOVT. OF NCT OF DELHI) & ANR 2024 LiveLaw
(SC) 243
18 Ibid.
public morality and the corrective role of constitutional morality. The Delhi High Court, while refusing to quash the FIR, equated profanities with obscenity, observing that vulgar language “crossed the threshold of decency” and could corrupt impressionable minds. It even noted that such words could not be tolerated in a courtroom, thereby allowing judicial sensibility to replace statutory principle. As the Supreme Court later observed, the High Court asked the “wrong question” and therefore reached the “wrong answer. ” By contrast, the Supreme Court decisively overturned this approach in Apoorva Arora & Anr Etc. Versus State (Govt. Of NCT Of Delhi) & Anr19. The Court clarified that the legal test under Section 67 IT Act is not whether language is civil or decent, but whether it is lascivious, appeals to prurient interest, or tends to deprave and corrupt.
As the Court explained: “Profanity is not per se obscene ... vulgar and expletive-filled language may evoke disgust, revulsion, or shock, but that by itself is not sufficient to be ‘obscene”. The Court faulted the High Court for relying on the standard of “impressionable minds” and courtroom propriety rather than the perspective of an “ordinary person of common sense and prudence. ” Such reasoning, if accepted, would allow obscenity to be defined by subjective judicial morality rather than constitutional principle. Most importantly, the Court underscored the constitutional stakes: “The availability of content that contains profanities and swear words cannot be regulated by criminalising it as obscene. Apart from being a non-sequitur, it is a disproportionate and excessive measure that violates freedom of speech, expression, and artistic creativity.
” By quashing the FIR, the Supreme Court not only vindicated artistic autonomy but also introduced doctrinal clarity: vulgarity is not obscenity. This categorical distinction strengthens constitutional protection for digital expression, while leaving space for proportionate regulatory mechanisms such as classification under the IT Rules, 2021. In doing so, the Court reaffirmed that the true guiding principle for obscenity in the digital age is not fluctuating public morality but enduring constitutional morality.
19 Ibid.
Comparative Jurisprudence: U. S. and U. K. Perspectives Indian obscenity jurisprudence has often borrowed from Anglo-American developments, while adapting them to the constitutional framework of Article 19(1)(a) and 19(2). A comparative glance at the United States and the United Kingdom reveals both convergence and divergence in how profanity, vulgarity, and obscenity are regulated, particularly with respect to constitutional protection of speech. United States: Miller Test and Beyond In the U. S. , obscenity is treated as an unprotected category of speech under the First Amendment. The leading precedent is Miller v.
California 197320, where the Supreme Court laid down a three-part test: material is obscene if (a) the average person, applying contemporary community standards, finds that the work appeals to prurient interest; (b) it depicts or describes sexual conduct in a patently offensive way; and (c) taken as a whole, it lacks serious literary, artistic, political, or scientific value. Notably, American courts have consistently distinguished between obscenity and profanity. In Cohen v. California (1971)21, the U. S. Supreme Court overturned the conviction of a man wearing a jacket bearing the words “F*** the Draft,” holding that offensive language, however vulgar, could not be censored merely to protect public sensibility. Justice Harlan famously observed: “One man’s vulgarity is another’s lyric. ” This principle has had a lasting impact on U. S.
free speech jurisprudence, ensuring that profanity or crude expression remains constitutionally protected unless it crosses the threshold of obscenity or incitement. The U. S. model thus aligns closely with the Indian Supreme Court’s approach in TVF Media Labs (2024)22. Both systems affirm that profanity and vulgarity, though distasteful, cannot be criminalised under obscenity law. The American emphasis on protecting even shocking or unsettling speech resonates with the Indian Court’s insistence that criminalisation is a disproportionate response to expletive-laden content.
20 Miller v. California, 413 U.S. 15 (1973)
21 Cohen v. California,403 U.S. 15 (1971)
22 APOORVA ARORA & ANR. ETC. VERSUS STATE (GOVT. OF NCT OF DELHI) & ANR 2024 LiveLaw
(SC) 243.
United Kingdom: From Hicklin to Modern Standards In the United Kingdom, obscenity law historically influenced India through Regina v. Hicklin23, which shaped early Indian jurisprudence in Ranjit D Udeshi24. The Hicklin test focused on whether a work tended to “deprave and corrupt” susceptible minds, regardless of its overall merit. However, this rigid approach has since been abandoned in the U. K. The Obscene Publications Act, 1959 introduced a more balanced framework, permitting courts to consider the “artistic, literary, scientific, or other merit” of the work as a defence. British courts have gradually narrowed the scope of obscenity, recognising that morality cannot be enforced through blanket prohibitions. The focus today lies on child protection, extreme pornography, and hate speech rather than mere vulgar or profane expression. For India, the U. K.
experience underscores the pitfalls of conflating public morality with obscenity. While Hicklin’s legacy endured in Indian law for decades, the gradual British shift away from it strengthens the case for a constitutional morality-based interpretation. Much like in the U. K. , Indian courts now recognise that artistic works cannot be criminalised merely for shocking sensibilities, but only when they meet a higher threshold of harm. Doctrinal Lessons for India The U. S. and U. K. experiences converge on one critical point: profanity ≠ obscenity. In the U. S. , constitutional protection of vulgar speech under the First Amendment stands as a strong precedent. In the U. K. , the move away from Hicklin toward contextual evaluation shows a recognition that rigid moral policing is incompatible with modern society.
The Indian Supreme Court’s ruling in TVF Media Labs case2526 brings Indian jurisprudence in line with these comparative standards, but with a uniquely constitutional framing. By invoking proportionality and artistic freedom under Article 19(1)(a), the Court has anchored obscenity law in constitutional morality rather than fluctuating public morality. This approach ensures
23 L.R. 3 Q.B. 360 (1868), Court of Queen’s Bench.
24 Ranjit D. Udeshi v. State of Maharashtra, AIR 1965 SC 881.
25 APOORVA ARORA & ANR. ETC. VERSUS STATE (GOVT. OF NCT OF DELHI) & ANR 2024 LiveLaw
(SC) 243.
26 U.S. 15 (1971).
that regulation focuses on genuine harms — such as child exploitation or sexually explicit material — while leaving profanity and vulgarity within the protective ambit of free speech. The comparative jurisprudence of the United States and the United Kingdom reinforce the principle that profanity and vulgarity, though offensive, cannot be equated with legal obscenity. The U. S. model, through Cohen and Miller26, demonstrates that constitutional guarantees protect even distasteful expression unless it crosses the threshold of obscenity. The U. K. ’s gradual departure from Hicklin to more contextual standards reflect a recognition that rigid moral policing undermines free expression and artistic creativity.
The Indian Supreme Court’s ruling in TVF Media Labs case27 brings these lessons home, affirming that profanity and vulgarity are distinct from obscenity and cannot attract criminal sanction. By rooting its reasoning in constitutional morality rather than fluctuating public morality, the Court aligned Indian law with global best practices while retaining sensitivity to local constitutional commitments. This doctrinal clarity marks a decisive moment in India’s digital free speech jurisprudence, ensuring that the criminal law addresses genuine harms like child exploitation while safeguarding creative autonomy in the face of societal discomfort.
Conclusion The Indian law on obscenity has travelled a long path—from the rigid Hicklin test of Ranjit D Udeshi28 to the community standards approach of Aveek Sarkar29, and most recently, to the constitutional morality framing in TVF Media Labs case30. This journey reflects the judiciary’s growing awareness that morality is not a static or homogenous concept, and that constitutional guarantees of free speech and artistic creativity must prevail over fluctuating notions of public decency. The Delhi High Court’s expansive reading of obscenity in the College Romance controversy illustrates the risks of conflating profanity with obscenity. By treating expletives as criminally obscene, the High Court elevated linguistic morality to a constitutional standard, thereby
27 APOORVA ARORA & ANR. ETC. VERSUS STATE (GOVT. OF NCT OF DELHI) & ANR 2024 LiveLaw
(SC) 243.
28 Ranjit D. Udeshi v. State of Maharashtra, AIR 1965 SC 881.
29 Aveek Sarkar v. State of West Bengal, (2014) 4 SCC 257.
30 APOORVA ARORA & ANR. ETC. VERSUS STATE (GOVT. OF NCT OF DELHI) & ANR 2024 LiveLaw
(SC) 243. chilling digital expression31. The Supreme Court’s corrective intervention in 2024 decisively restored doctrinal clarity: profanity and vulgarity, while undesirable, do not meet the statutory or constitutional threshold of obscenity. This categorical distinction strengthens the protective ambit of Article 19(1)(a), while recognising that restrictions under Article 19(2) must be narrowly tailored and proportionate. Comparative jurisprudence further validates this approach. The U. S. , through Miller and Cohen32, distinguishes between obscenity and vulgarity, protecting even shocking expression under the First Amendment. The U. K. , having moved away from Hicklin, now evaluates obscenity contextually, recognising artistic and literary value.
By aligning itself with these standards, the Indian Supreme Court has not only clarified the doctrinal landscape but also reaffirmed India’s commitment to a constitutional morality that prioritises dignity, creativity, and proportionality over transient societal discomfort. Policy considerations, however, remain pressing. The rise of digital platforms and OTT content necessitates nuanced regulation. Tools such as content classification, age-appropriate filters, and parental locks under the IT Rules, 2021 provide proportionate alternatives to blunt criminal sanctions. Simultaneously, the state must ensure that these regulatory measures are not weaponised for censorship or excessive executive control.
The focus of criminal law should remain on genuine harms—such as child pornography and exploitative content under POCSO—rather than on profanity or vulgarity that, though offensive, lies within the safe harbour of free expression. Looking ahead, the jurisprudence of obscenity in India must be guided by a consistent constitutional vision. Public morality, by its very nature, is fluid and often susceptible to majoritarian sentiment. Constitutional morality, by contrast, anchors free speech in enduring principles of dignity, equality, and liberty. The Supreme Court’s decision in TVF Media Labs case33 demonstrates the transformative potential of this shift: it not only protected artistic freedom in the digital age but also reaffirmed that criminal law cannot be a tool to enforce civility or linguistic propriety.
31 TVF MEDIA LABS PVT LTD & ORS.vs. STATE (GOVT.OF NCT OF DELHI) & ANR. CRL.M.C.
2214/2020 & CRL.M.A. 15761/2020.
32 413 U.S. 15 (1973).
33 APOORVA ARORA & ANR. ETC. VERSUS STATE (GOVT. OF NCT OF DELHI) & ANR 2024 LiveLaw
(SC) 243.
In conclusion, the jurisprudence of obscenity in Indian cyberspace is at a decisive crossroads. By distinguishing obscenity from vulgarity and profanity, the Supreme Court has set a path toward a more principled and constitutionally sound framework. The challenge now lies in institutionalising this clarity—through legislative reforms, regulatory precision, and judicial consistency—so that India’s digital future is one where freedom of expression thrives alongside the legitimate protection of vulnerable groups. The ultimate lesson is clear: constitutional morality, not fluctuating public morality, must remain the compass of obscenity law in the digital age.
REFERENCES
BOOKS
Jain, M. P. Indian Constitutional Law. 8th ed. LexisNexis, 2018. Used for understanding the constitutional framework of Fundamental Rights and Article 19(2), especially the balance between free speech and obscenity. • Gaur, K. D. Textbook on Indian Penal Code. 6th ed. Universal Law Publishing, 2016. Consulted for interpretation of IPC Sections 292–294 and related judicial precedents on obscenity. • Seervai, H. M. Constitutional Law of India. 4th ed. Universal Law Publishing, 2013. Referred to for insights on constitutional morality and judicial approaches toward obscenity under Indian law. • Gaur, K. D. Penology and Correctional Administration. Used to explore punishment philosophy and correctional perspectives relevant to criminal jurisprudence. • Ratanlal & Dhirajlal. Criminal Law and the Indian Penal Code.
Consulted for judicial interpretations and updated case law on obscenity and related criminal provisions.
ARTICLES
Mugdha Dwivedi & Aditya Pranav Dwivedi, Obscenity and the Legal Ambiguity in India: A Critical Analysis, Int’l J. for Multidisciplinary Res. (IJFMR), E-ISSN 2582-2160, https://www.ijfmr.com (last visited Sept. 21, 2025). • Parakram Chauhan, Obscenity in India: Tracing Judicial Standards, 3 Indian J. Integrated Rsch. L. (IJIRL) Issue 4, ISSN 2583-0538.
ACTS
Indian Penal Code,1860 • Bhartiya Nyaya Sanhita, 2023 • Information Technology act,2000 • Indecent Representation of Women (Prohibition) Act,1986 • Protection of Children from Sexual Offences Act,2012 • Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, Gazette of India, Feb. 25, 2021. • The Obscene Publications Act 1959 (7 & 8 Eliz. 2. c. 66)
CASES
Regina v. Hicklin, L.R. 3 Q.B. 360 (1868), Court of Queen’s Bench. • Cohen v. California,403 U.S. 15 (1971) • Miller v. California, 413 U.S. 15 (1973). • Ranjit D. Udeshi v. State of Maharashtra, AIR 1965 SC 881. • Samaresh Bose v. Amal Mitra, (1985) 4 SCC 289. • Aveek Sarkar v. State of West Bengal, (2014) 4 SCC 257. • Navtej Singh Johar v Union of India AIR 2018 SC 4321. • Indian Young Lawyers Association v. State of Kerala, (2019) 11 SCC 1. • TVF MEDIA LABS PVT LTD & ORS. vs. STATE (GOVT.OF NCT OF DELHI) & ANR.
CRL.M.C. 2214/2020 & CRL.M.A. 15761/2020
APOORVA ARORA & ANR. ETC. VERSUS STATE (GOVT. OF NCT OF DELHI) & ANR
2024 LiveLaw (SC) 243.
WEBSITES
https://www. legislation. gov. uk/ukpga/Eliz2/7-8/66/contents • https://www. verdictum. in/court-updates/supreme-court/apoorva-arora-vstate-2024-insc-223college-romance-web-series-criminal-case-1526574 • https://www. livelaw. in/columns/contemporary-relevance-of-drambedkars-concept-ofconstitutional-morality-172570 • https://images. assettype. com/barandbench/2023-03/c1d068c1-3025- 48719656b68a6f3a0fd3/TVF_Media_Labs_Pvt_Ltd___Ors_v_State__Govt_of_NCT_of_Delh i____Anr. pdf • https://www. scconline. com/blog/post/2024/03/19/college-romance-webseries-supreme-courtquashes-obscenity-case-againsttvf/? utm_source=chatgpt. com • https://bnwjournal. com/2020/06/07/obscenity-on-internet-in-india/ • Mugdha Dwivedi & Aditya Pranav Dwivedi, Obscenity and the Legal Ambiguity in India: A Critical Analysis, Int’l J. for Multidisciplinary Res. (IJFMR), E-ISSN 2582-2160, https://www. ijfmr.
com (last visited Sept. 21, 2025).