The recent controversy surrounding India’s Got Latent, a YouTube-based comedy show hosted by Samay Raina and featuring influencer Ranveer Allahbadia, has sparked intense legal and public debate. The Maharashtra Cyber Department has filed an FIR against multiple individuals associated with the show, citing alleged violations of obscenity laws and provisions governing online content. Let’s delve into the legal intricacies of this matter, exploring the fundamental constitutional and statutory aspects at play.
1. The Allegations: Legal Framework and Charges
The allegations against the show’s creators primarily revolve around the use of “vulgar and obscene” language, which has been deemed offensive by various stakeholders, including the government. The key statutory provisions that come into play include:
- Section 67 of the Information Technology Act, 2000 (IT Act): Prohibits the publication or transmission of obscene material in electronic form, prescribing imprisonment upto 5 years and fine upto 10 lakh for violations. (https://indiankanoon.org/doc/1318767/)
- Section 294 of the Bharatiya Nyaya Sanhita, 2023 (BNS): Criminalizes the sale, distribution, or public display of obscene content. (https://devgan.in/bns/section/294/)
- Section 296 of the Bharatiya Nyaya Sanhita, 2023 (BNS): Punishes individuals for obscene acts and songs in public places. (https://devgan.in/bns/index.php?q=296&a=10)
- The Indecent Representation of Women (Prohibition) Act, 1986: Prohibits the depiction of women in a manner deemed derogatory or obscene. (https://www.indiacode.nic.in/bitstream/123456789/15350/1/indecent_representation_of_women_%28prohibition%29_act%2C_1986.pdf)
The National Commission for Women (NCW) has also intervened, summoning those responsible for the show to explain the context of their remarks, particularly concerning women-centric content. This raises questions about the scope of regulatory authority and the need to balance creative freedom with societal sensitivities.
2. Freedom of Speech vs. Public Order: India’s Got Latent Controversy
Article 19(1)(a) of the Indian Constitution guarantees the fundamental right to freedom of speech and expression. However, this right is not absolute and is subject to reasonable restrictions under Article 19(2), which allows the government to regulate speech in the interests of:
- Decency and morality
- Public order
- Defamation
While comedy and satire are protected expressions, the Supreme Court has consistently held that free speech does not extend to content that is patently obscene or has the potential to incite disorder. The crux of the legal battle lies in whether the content in question crosses the threshold of “obscenity” as defined by judicial precedent.
3. Judicial Interpretation of Obscenity (India’s Got Latent Controversy)
Indian courts have time and again made efforts to come up with tests to adjudge obscenity. To understand the meaning of obscenity that it is today, one must have to study its judicial evolution.
Hon’ble Supreme court in the case of Ranjit Udeshi v. State of Maharashtra, 1965 AIR 881 (https://indiankanoon.org/doc/1623275/), assessed whether content tends to corrupt or deprave the minds of its audience and held that
“The Penal Code does not define the word obscene and this delicate task of how to distinguish between that which is artistic and that which is obscene has to be performed by courts, and in the last resort by the Supreme Court. The test must obviously be of a general character but it must admit of a just application from case to case by indicating a line of demarcation not necessarily sharp but sufficiently distinct to distinguish between that which is obscene and that which is not. None has so far attempted a definition of obscenity because the meaning can be laid bare without attempting a definition by describing what must be looked for. It may, however, be said at once that treating with sex and nudity in art and literature cannot be regarded as evidence of obscenity without something more. The test of obscenity must square with the freedom of speech and expression guaranteed under our Constitution. This invites the court to reach a decision on a constitutional issue of a most far reaching character and it must beware that it may not lean too far away from the guaranteed freedom.”. The court in the said case clearly stated that there is no clear demarcation in law as to what qualifies as obscene. The liability to test obscenity squarely falls on the shoulders of the courts on case to case basis.
More so, in the said case, the court also relied on the United Kingdom’s case of Regina v. Hicklin (1868 L.R. 2 Q.B.360) wherein the Court laid down the Hicklin test by holding that “The test of obscenity is whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall.”
However, in Aveek Sarkar v. State of West Bengal (2014), the Supreme Court moved towards the Community Standards Test, evaluating obscenity based on contemporary social norms rather than archaic Hicklin Test. Hon’ble court in the said case held that “24. We are also of the view that Hicklin test is not the correct test to be applied to determine “what is obscenity”. Section 292 of the Indian Penal Code, of course, uses the expression ‘lascivious and prurient interests’ or its effect. Later, it has also been indicated in the said Section of the applicability of the effect and the necessity of taking the items as a whole and on that foundation where such items would tend to deprave and corrupt persons who are likely, having regard to all the relevant circumstances, to read, see or hear the matter contained or embodied in it. We have, therefore, to apply the “community standard test” rather than “Hicklin test” to determine what is “obscenity”. A bare reading of Sub-section (1) of Section 292 , makes clear that a picture or article shall be deemed to be obscene (i) if it is lascivious; (ii) it appeals to the prurient interest, and (iii) it tends to deprave and corrupt persons who are likely to read, see or hear the matter, alleged to be obscene. Once the matter is found to be obscene, the question may arise as to whether the impugned matter falls within any of the exceptions contained in Section. A picture of a nude/semi-nude woman, as such, cannot per se be called obscene unless it has the tendency to arouse feeling or revealing an overt sexual desire. The picture should be suggestive of deprave mind and designed to excite sexual passion in persons who are likely to see it, which will depend on the particular posture and the background in which the nude/semi-nude woman is depicted. 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.”
Further, in the case of Bobby Art International & Ors. v. Om Pal Singh Hoon (1996) 4 SCC 1(https://indiankanoon.org/doc/1400858/), this Court while dealing with the question of obscenity in the context of film called Bandit Queen held that:
“First, the scene where she is humiliated, stripped naked, paraded, made to draw water from the well, within the circle of a hundred men. The exposure of her breasts and genitalia to those men is intended by those who strip her to demean her. The effect of so doing upon her could hardly have been better conveyed than by explicitly showing the scene. The object of doing so was not to titillate the cinemagoer’s lust but to arouse in him sympathy for the victim and disgust for the perpetrators. The revulsion that the Tribunal referred to was not at Phoolan Devi’s nudity but at the sadism and heartlessness of those who had stripped her naked to rob her of every shred of dignity. Nakedness does not always arouse the baser instinct. The reference by the Tribunal to the film “Schindler’s List” was apt. There is a scene in it of rows of naked men and women, shown frontally, being led into the gas chambers of a Nazi concentration camp. Not only are they about to die but they have been stripped in their last moments of the basic dignity of human beings. Tears are a likely reaction; pity, horror and a fellow- feeling of shame are certain, except in the pervert who might be aroused. We do not censor to protect the pervert or to assuage the susceptibilities of the over-sensitive. “Bandit Queen” tells a powerful human story and to that story the scene of Phoolan Devi’s enforced naked parade is central. It helps to explain why Phoolan Devi became what she did: her rage and vendetta against the society that had heaped indignities upon her.” Hon’ble Court pointed out that the so-called objectionable scenes in the film have to be considered in the context of the message that the film was seeking to transmit in respect of social menace of torture and violence against a helpless female child which transformed her into a dreaded dacoit
Applying these tests, the question before the judiciary would be whether the content in ‘India’s Got Latent’ is merely crude humor or if it crosses legal boundaries by being lascivious, lewd, or patently offensive.
4. Intermediary Liability and YouTube’s Role (India’s Got Latent Controversy)
Under the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, platforms like YouTube are required to regulate content based on government directives. If found non-compliant, they could lose their “safe harbor” protection under Section 79 of the IT Act, 2000 (https://www.indiacode.nic.in/show-data?actid=AC_CEN_45_76_00001_200021_1517807324077&orderno=105), exposing them to legal action.
In this case, YouTube’s swift removal of the content suggests an effort to comply with the takedown requests from the authorities, but the legal responsibility of content creators remains distinct from that of the platform itself.
5. Potential Defenses and Legal Remedies (India’s Got Latent Controversy)
The accused individuals may argue:
- Lack of criminal intent: The content was meant for humour, and no mens rea (criminal intent) existed to propagate obscenity.
- Application of the Community Standards Test (Aveek Sarkar Case): The show can argue that the content in question must be judged by contemporary community standards rather than outdated notions of obscenity (Hicklin Test). If the content aligns with the evolving societal norms of humor, satire, or artistic expression, it should not be deemed obscene.
- Freedom of expression: The statements made were within the artistic license of comedians and influencers.
- No Direct Harm or Indecency under IPC or IT Act: The show can argue that no specific provision under the IPC or the IT Act has been violated, as the content does not involve pornography, child exploitation, or direct incitement of violence.
However, given the prima facie offensive nature of some remarks and the government’s intervention, it remains to be seen how the courts interpret these defences.
6. Conclusion: The Future of Digital Content Regulation (India’s Got Latent Controversy)
The ‘India’s Got Latent’ case underscores the growing scrutiny over digital content and the evolving jurisprudence surrounding free speech, morality, and public decency. While regulating offensive material is necessary, overregulation risks stifling creative expression.
As legal practitioners, we recommend that content creators remain mindful of existing laws, adopt self-regulation mechanisms, and engage legal counsel when dealing with sensitive material. Likewise, policymakers must ensure that enforcement measures align with constitutional values, ensuring a balance between free speech and social responsibility.
The final outcome of this case will likely set a precedent for the treatment of online content under Indian law, influencing the digital media landscape for years to come.
Author: Swati Agrawal
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