Free speech is essential for any thriving society, particularly societies that are based on pluralism and diversity. But today, it is being hunted by many on various counts. In India, colonial legacy and laws have shaped the constitutional discourse on free speech. Article 19(1)(a) is its bedrock and fountain, with the only restrictions being under Article 19(2), which have to be reasonable and associated with India’s sovereignty, integrity, security and friendly relations with foreign states, or with public order, decency and morality, or, with contempt of court, defamation or incitement of an offence.
Every once in a while, a public incident so occurs that it enrages the masses and kicks off debates on morality, with a special emphasis on regulating speech on technological platforms, including audio-visual forms. While these debates are hot, we often forget that there is a difference between vulgarity and obscenity. For example, the culture of using gaali (abuses, cursing, or profanities), in both folk and popular traditions as well as daily exchanges, is quite common. Some recent controversies regarding crude humour and comments need to be addressed and understood in this light.
Vulgarity vs Obscenity
What is vulgar may not be obscene, though it is only the latter that is prohibited in law and is restricted as an exception to free speech. Vulgarity, sure, may not be in good taste, but it is not prohibited under the law.
The Supreme Court in Apoorva Arora & Anr. v. State in its judgement dated March 19, 2024, held that the use of vulgar language and profanities does not by itself constitute obscenity. The case revolved around a web series, College Romance, which contained profane language. The Court distinguished between vulgarity and obscenity and created a fine balance between the freedom of expression with societal standards of decency, particularly in the realm of digital media.
The Court rejected the outdated ‘Hicklin Test’ propounded in Regina v. Hicklin in 1868 by Chief Justice Cockburn. It defined obscenity on the basis of its influence on its recipients, as something that essentially corrupts their minds to immoral influences. The court then followed its own judgement in Aveek Sarkar v. State of West Bengal (2014), where the ‘Community Standards Test’, also known as the ‘Miller Test for Obscenity’, as propounded by the US Supreme Court in Miller v. California in 1973. The test, consisting of three levels, deems a material legally obscene if:
- an average person, applying contemporary community standards, would find that work appealing to prurient (excessive sexual) interest;
- the work depicts sexual conduct in a patently offensive way, as defined by applicable law; and
- the work, taken as a whole, lacks serious literary, artistic, political, or scientific value
We live in a digital age where audio-video stimulus and ‘content’ is inescapable. It is thus important that the rights guaranteed under Article 19(1)(a) are guarded zealously. Suppression of any kind should be judicially frowned upon, and liberty must be protected under all circumstances and at all costs. Constitutional morality is supreme, and ought to be enforced as such, without India’s cherished traditions of satire, humour, literature, and folk culture being compromised.
Don’t Let Vulgarity Become A Tool To Suppress
India is both India and Bharat. If our daily linguistic interactions are replete with gaalis and vulgarity, then such utterances, at least at a public level, should not become tools or excuses to suppress free speech and expression. Morality should be expressed through dialogue, and outrage should be enforced through maturity, not violence.
There have been cases like Shreya Singhal v. Union of India (2015), where the Court struck down provisions that led to over-policing of content and suppression of dissent on the internet. Constitutional morality must remain the guiding force in determining the limits of free expression, rather than subjective moral standards.
(The author is an advocate and partner at Shardul Amarchand Mangaldas & Co)
Disclaimer: These are the personal opinions of the author
