Crude Language, Obscenity and Freedom of Speech: Judicial Interpretation of Criminal Liability under the Bharatiya Nyaya Sanhita

Recent Developments:

• Noida Police registered a Zero FIR against Ruchika Singh over allegedly objectionable remarks made against the Prime Minister during a protest at Jantar Mantar, Delhi.
• The complaint invoked Sections 352, 353(1) and 356(1) of the Bharatiya Nyaya Sanhita (BNS), 2023, relating to intentional insult, public mischief and defamation.
• As the alleged incident occurred in Delhi, the Zero FIR was transferred to the Delhi Police for investigation in accordance with jurisdictional procedure.
• The case has revived debate on the constitutional limits of free speech, the distinction between obscenity and profanity, and the threshold for criminal liability in India.

Constitutional and Legal Framework:

Constitutional Provisions:

• Article 19(1)(a) guarantees the Fundamental Right to freedom of speech and expression.
• Article 19(2) permits the State to impose reasonable restrictions in the interests of public order, decency, morality, defamation, contempt of court, sovereignty and integrity of India, security of the State, incitement to an offence, and friendly relations with foreign States.
• Freedom of expression is therefore not absolute, and criminal liability arises only when statutory conditions are satisfied.

Relevant Provisions under the Bharatiya Nyaya Sanhita (BNS):

• Section 296, corresponding to Section 294 of the Indian Penal Code (IPC), penalises obscene acts or words in or near a public place causing annoyance to others.
• Section 352 requires proof that the accused intentionally insulted another person with knowledge that such insult was likely to provoke a breach of public peace.
• Section 353(1) addresses public mischief, requiring conduct capable of inciting offences, disturbing public order or creating public disorder.
• Section 356(1) deals with criminal defamation, while preserving recognised exceptions such as good-faith comments on the public conduct of public servants and public figures.
• Section 296 was not invoked in the present case, indicating that the investigation is centred on allegations beyond obscenity.

Evolution of the Judicial Test for Obscenity:

Hicklin Test, 1868 (English Law):

• The Hicklin Test assessed whether isolated portions of a publication had the tendency to deprave or corrupt vulnerable minds.
• The approach focused on selected passages rather than evaluating the work in its entirety.

Ranjit D. Udeshi v. State of Maharashtra (1965):

• The Supreme Court adopted the Hicklin Test while upholding restrictions on the publication of Lady Chatterley's Lover.
• The judgment reflected a conservative approach to obscenity based on the prevailing standards of the period.

Director General, Doordarshan v. Anand Patwardhan (2006):

• The Court ruled that a work must be evaluated as a whole rather than through isolated extracts.
• The judgment shifted judicial emphasis towards the perspective of an ordinary, reasonable viewer rather than exceptionally sensitive individuals.

Aveek Sarkar v. State of West Bengal (2014):

• The Supreme Court abandoned the Hicklin Test and adopted the Community Standards Test.
• The Court held that material becomes obscene only when, judged by contemporary community standards, it is lascivious, appeals to prurient interests, or tends to deprave and corrupt persons exposed to it.
• The judgment strengthened constitutional protection for artistic, journalistic and expressive freedom.

Judicial Distinction Between Obscenity and Profanity:

Principle Established by the Supreme Court:

• Profanity, abusive language or vulgar expressions do not automatically amount to legal obscenity.
• Criminal obscenity requires a clear sexual element, including lasciviousness, prurient appeal, or a tendency to corrupt moral standards.
• Language that merely causes anger, disgust or offence does not satisfy the statutory test of obscenity.

Important Judicial Decisions:

• College Romance Case (2024): The Court quashed criminal proceedings by holding that swear words reflecting frustration or anger are not inherently obscene.
• Sivakumar v. State (2026): The Court held that insulting language used during a quarrel did not constitute obscenity because it lacked any sexual or lascivious character.
• Mani v. State (2026): The Supreme Court reaffirmed that obscenity is distinct from vulgarity, abuse or profanity, and emphasised that criminal liability arises only where statutory ingredients are fully established.

Legal Significance of the Present Case:

Threshold under Section 352, BNS:

• Mere hurt sentiments are insufficient for conviction.
• The prosecution must establish intent or knowledge that the insult was likely to provoke a breach of public peace.

Threshold under Section 353(1), BNS:

• Liability depends upon evidence that the speech incited public disorder, offences against the State or communal hostility.
• Mere criticism of political leaders, without incitement, ordinarily falls below this threshold.

Threshold under Section 356(1), BNS:

• Criminal defamation requires satisfaction of statutory ingredients and remains subject to recognised legal exceptions.
• Good-faith comments concerning the public conduct of public officials continue to receive statutory protection.

Importance of Zero FIR:

• A Zero FIR enables immediate registration of a cognisable offence without regard to territorial jurisdiction.
• The case is subsequently transferred to the police station having territorial jurisdiction for investigation.

Constitutional Issues for Governance:

Balancing Competing Constitutional Values:

• Freedom of speech must coexist with public order, dignity and reputation.
• Criminal law should be invoked only where statutory thresholds are demonstrably met.
• Excessive criminalisation of political speech may produce a chilling effect on democratic participation.
• Judicial interpretation seeks to maintain equilibrium between individual liberty and legitimate State interests.

Challenges:

Legal and Institutional Concerns:

• Community standards remain dynamic and may vary across regions and social groups.
• Broad or subjective interpretation of penal provisions may increase the scope for misuse.
• Distinguishing political dissent, offensive expression and criminal conduct often requires careful judicial scrutiny.
• Investigating agencies must avoid treating mere offensive language as automatically constituting a criminal offence.

Way Forward:

Strengthening Constitutional Governance:

• Police authorities should apply statutory provisions strictly in accordance with judicial precedents.
• Investigations should focus on intent, actual consequences and statutory ingredients, rather than public outrage alone.
• Greater public awareness regarding constitutional free speech and reasonable restrictions should be promoted.
• Periodic legislative review can improve clarity in defining offences involving speech and expression.

Value Addition for UPSC:

Important Constitutional Articles:

• Article 19(1)(a): Freedom of speech and expression.
• Article 19(2): Reasonable restrictions on free speech.
• Article 21: Protection of life and personal liberty, including the right to reputation as recognised through judicial interpretation.

Key Supreme Court Cases:

• Ranjit D. Udeshi v. State of Maharashtra (1965) — Adoption of the Hicklin Test.
• Director General, Doordarshan v. Anand Patwardhan (2006) — Work must be judged as a whole.
• Aveek Sarkar v. State of West Bengal (2014) — Adoption of the Community Standards Test.
• Apoorva Arora v. State (2024) (College Romance) — Profanity is not per se obscenity.
• Sivakumar v. State (2026) — Vulgar abuse without sexual content is not obscenity.
• Mani v. State (2026) — Obscenity is not synonymous with vulgarity or profanity, and obscenity requires a lascivious or prurient element