No longer in "flowers cuddling" era but whether obscene or not must be tested: MP HC declines to quash FIR against Ekta Kapoor over "XXX" episode

The Madhya Pradesh High Court has refused to quash an FIR filed against Ekta Kapoor for allegedly obscene content in the show “XXX” on ALT Balaji..Discussing the contents of the episode under scrutiny, the Court remarked,"The Indian audiences have of course come of age from the times of two flowers cuddling each other symbolizing male and female union to more explicit manners of displaying such activity.".However, it went on to caution,."Still, the acceptable norms of permissiveness in the society cannot be equated with declining moral values. What is patently obscene from an ordinary person's point of view, would remain to be so for all times to come. There is always a thin line between what are acceptable limits of display of physical intimacy and obscenity."Madhya Pradesh High Court.In this view, the Court opined, ."Applying the test of obscenity from the point of view of an ordinary person... there is substance in the submissions of the learned counsel for State that the episode could be catering to the prurient interest of any normal major person, although one must hasten to add that it is through leading of evidence only, that the test of obscenity would be affirmed.".The FIR was filed against Ekta Kapoor, being the Managing Director of ALT Balaji, alleging that Episode 1 of Season 2 in the show “XXX” was obscene, hurtful of religious sentiments and disrespectful of the National Emblem..The FIR cites offences under Sections 294, 298 and 34 of the IPC, Sections 67 and 67-A of IT Act and Section 3 of State Emblem Act..Justice Shailendra Shukla held that the Court was not inclined to exercise its extraordinary powers under Section 482, CrPC to quash the FIR at least in respect of Section 67, 67-A of IT Act and Section 294 of IPC, but added that,."... it would be fair enough to state that provision of Section 298 of IPC (hurting religious sentiments) and the provision of the State Emblem Act are not found to have been breached."Madhya Pradesh High Court.The episode in question is stated to have shown a Plastic surgeon having an illicit relationship with his girlfriend’s stepmother after she visits him for cosmetic treatment, which is a gift to her husband (a retired Army Officer) on his 60th birthday..The complainant submitted before the Court that the sole purpose of making the episode is to titillate and arouse the baser instincts of the audience. He added that it has intentionally hurt his religious sentiments when the said male protagonist expresses disgust over a 'Satyanarayan Katha' in the house of his love interest..Kapoor moved the High Court urging that the FIR be quashed citing the following, among other, grounds.That she had no knowledge of the contents of episode because she is not the producer or the director and her name is not reflected in the credits for the episode.That she cannot be prosecuted in isolation without impleading the company, ALT Balaji as co-accused.That the episode does not depict obscenity.That show is available to be watched only by adults.That inappropriate restrictions would infringe the freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution of India.That a forewarning by way of disclaimer and terms of use itself absolves her. That the user should exit from the episode if he finds it contents to be inappropriate.That a person who has paid the subscription fees and has watched the material cannot complain later on that the material is obscene, in view of the maxim of 'Volenti Non-Fit Injuria'.That the provisions of Section 294 of IPC are not applicable because the episode is not shown on public space..The Bench held that to determine whether the episode was obscene or not, an objective assessment of the material was required, which necessitated the recording of evidence..As submitted by the Kapoor, OTT Platform service providers like Alt Balaji fall under the aegis of the Internet and Mobile Association of India and had adopted a “Code for self- regulation of Online curated content providers”. .As such, the Court observed that it was clear that there was no independent agency or authority having the sanction of Government to oversee the content of such web series.."The producers/promoters etc involved in publishing or promoting such contents resorted to self regulation in the dissemination of the content. Needless to say, that such service providers have twin responsibility i.e. of ensuring that the contents of material transmitted are such that it caters to the expectations of targeted audience so that such transmission reaps expected profits monetarily and at the same time care has to be taken that the content may not transgress the thin boundary between the outer limits of decency and obscenity and while dealing with such twin responsibility, such service providers cannot match the self regulation with that of an impartial regulatory authority.".Centre issues notification to bring online/digital news media, OTT Platforms under Information and Broadcasting Ministry .The Court also noted that ALT Balaji and ZEE 5 had entered into an agreement for content alliance to grow the 'Subscription Video On Demand.' ALT Balaji was a product of Balaji Telefilms, of which the petitioner is a Joint Managing Director (JMD) and Kapoor was a co-creator of ALT Balaji, the Judge further pointed out..The Court went on to rule that if the material was in fact obscene, it was immaterial that a subscriber was major in terms of age or not. A forewarning or disclaimer would not insulate Kapoor when Section 67 of IT Act (liability for the transmission of obscene material) is invoked, it added.."Section 67 of Information Technology Act is a cognizable offence and no condition such as disclaimer etc can prevent a person from lodging the FIR in respect of such offence", the Court pointed out...In view of such observations, the High Court dismissed the petition..Read the Order here: