The Supreme Court, while hearing a case on obscene remarks in the India's Got LaTent show on YouTube, urged the Solicitor General to propose regulatory measuresto curb vulgar content online while balancing free speech.

Also, the Ministry of Information and Broadcasting (I&B) warned OTT (Over-The-Top) platforms against transmitting "any content that is prohibited by law", and urged them to follow age-based classification as per the Information Technology (Intermediary Liability and Digital Media Ethics Code) Rules, 2021. Platforms were also directed to enforce age-gating requirements for mature content.

About Obscenity

The term 'Obscene' is used to describe those things which are either disgusting to the senses or offensive to an individual in a sexual manner whereby they aim to incite lust in a person.

Key Stakeholders for content Streaming on Digital Platforms.

Key Stakeholders	Associated interest
Content Creators & Artists	Maintain creative freedom and artistic expression, generate income and build audience.
Digital Platform	Ensure their revenue model follows laws of the land and protect users from harmful content without excessive censorship. Maintain advertiser trust to avoid revenue loss as brands may withdraw if platform is associated with questionable content.
Government & Regulatory Bodies	Define and enforce laws on online content, balancing free speech with public morality.
Society at large	Access desired content with minimal restriction, Avoid exposure to unwanted obscene material particularly children for children. Maintain agency in content consumption choices.

Need for Regulating Obscenity on Digital Platforms

Image explain meaning of 'Purient Interest'

Preserving Social and Cultural Values: Allowing unchecked obscene content weakens moral character, fostering disrespect and moral decay.
- E.g., The 2021 "Bulli Bai" app incident, where images of women of a minority community were auctioned online, exposed the misuse of social media to target and humiliate women, prompting calls for stricter regulation.
Protecting Human Dignity: Kant asserts that humans must never be treated as mere means to an end. Content that reduces people to objects of prurient interest violates the core principle of dignity and personal autonomy.
Avoiding Normalization of Obscenity: The Harm Principle (by John Stuart Mill) suggests that freedom of expression should not cause harm to society.
- Regular exposure to obscene content can desensitize individuals, eroding empathy and reinforcing harmful stereotypes.
Ethical Responsibility of Platforms: Utilitarianism suggests that actions should promote the greatest good. Digital Platforms are thus, ethically mandated to ensure content balances free speech with societal well-being, fostering a safe digital environment.
Upholding Constitutional Morality: Constitutional morality safeguards core values such as social justice and equality, ensuring that digital content aligns with these principles.
- Article 19 (2) establishes that the fundamental rights of freedom of speech and expression is not absolute and reasonable restrictions could be put on such rights on various grounds including public order, decency, morality, incitement to an offense, among others.

Ethical Issues in Regulating Obscene Digital Content

Vagueness and Subjectivity of Obscenity: Senior Advocate Dushyant Dave highlighted that decency and morality vary over time and across regions. While the language in India's Got Latent was inappropriate, it may not meet the legal definition of a crime, as such speech is common in everyday discourse in society.
Censorship vs. Reasonable Restrictions: While laws protect morality, over-regulation could stifle creativity. Since obscenity is subjective and evolving, excessive restrictions could limit diverse perspectives in media.
- E.g., The 2024 ban of 18 OTT platforms by the Ministry of I&B for "obscene and vulgar" content was criticized as arbitrary, with some arguing it stifled creative expression.
Evolving Social Norms and Cultural Sensitivity: Obscenity is a cultural construct that changes over time. Ancient Khajuraho and Konark temples feature erotic sculptures, yet today, such expressions might face censorship.
Power Dynamics: Questions arise about who decides what content is acceptable, with the risk of censorship being weaponized against marginalized communities.
Agency and Paternalism (Interference with personal autonomy): There's an ongoing tension between protecting users from harmful content and respecting their autonomy to make their own content choices.
- Excessive regulation may infantilize users, assuming they cannot make informed decisions about the content they consume.
Regulating Obscene vs. Artistic Freedom: Tension between censorship to protect public morality and freedom of artists to express themselves creatively.
- E.g., In Maqbool Fida Hussain v. Raj Kumar Pandey case, court ruled that nudity alone does not constitute obscenity, highlighting ethical dilemma between artistic expression and societal norms.

Conflict between Ethics and Law of Banning Content with Obscenity

The conflict between legal restrictions on obscenity and evolving ethical standards presents a complex challenge in Indian jurisprudence. This conflict emerges from several key factors:

Legal Framework Without Clear Definition

The Bharatiya Nyaya Sanhita (BNS) and Section 67 of the IT Act 2000 both prohibit obscene content.
Information Technology (Intermediary Liability and Digital Media Ethics Code) Rules, 2021 require films and shows featuring explicit content such as swearing, sex, nudity, substance abuse, and violence to have age-based ratings.
Additionally, laws like the Cinematograph Act (1952), Cable TV Act (1999), and Indecent Representation of Women Act (1986) also regulate obscenity.
However, obscenity is not explicitly defined in criminal law or the Constitution, leaving room for subjective interpretation and inconsistent enforcement.

Evolving Judicial Interpretation

Judicial understanding of obscenity has evolved over time. In Ranjit D. Udeshi v. State of Maharashtra (1964), the Supreme Court applied the Hicklin test, which considered any material with a "tendency to deprave and corrupt" as obscene.
Decades later, in Aveek Sarkar v. State of West Bengal (2014), the Court shifted to the community standards test, evaluating obscenity based on prevailing social and moral norms.
- However, defining community standards remains challenging as they constantly evolve and vary across regions.
Justice (retired) Gautam Patel of the Bombay High Court has stated that profane language alone does not constitute obscenity, further highlighting the subjective nature of the law.

Above all, the increasing trend of filing multiple FIRs for the same offense has been criticized as a form of harassment that unfairly prejudices the accused and undermines their right to a fair defense. While content that offends public sensibilities may invite criticism or boycotts, excessive legal action risks infringing on freedom of expression.

Way ahead

Justice & Objectivity: Define clear and consistent obscenity guidelines that consider India's cultural diversity to avoid bias or subjective judicial rulings.
Accountability & Responsibility: Introduce a Broadcasting Bill to regulate OTT content, digital news, and emerging technologies, ensuring ethical and socially responsible media.
Encouraging Ethical Content Creation: To ensure social responsibility & cultural sensitivity, promote self-regulation and ethical storytelling that reflects societal values and cultural respect.
Empowerment & Informed Choice: Implement digital literacy programs to educate youth on media ethics, responsible viewing, and online safety.

Conclusion

Obscenity is highly subjective, varying across cultures and time. Therefore, creating a responsible digital media space requires legal clarity, self-regulation, public awareness, and global cooperation. By upholding ethical values such as justice, dignity, transparency, and accountability, digital platforms can strike a balance between creative freedom and social responsibility.

Check Your Ethical Aptitude

With the rise of obscenity and profanity on digital platforms, the Supreme Court has directed the Solicitor General to propose measures to curb "filthy language" and "vulgarity" in online content, emphasizing the need to balance freedom of speech with societal moral standards.

In this context, answer the following questions:

What one society/country finds offensive and obscene may be part of daily discourse for another. What ethical issues arise from the increased use of obscenity on digital platforms?
How can the government ensure that freedom of speech is protected while maintaining public decency? What guidelines should be proposed to limit obscene content without stifling creativity and artistic expression?
What role should digital media platforms play in regulating content, and how can they balance their responsibility to society with the protection of free speech?