Beyond obscenity: Was Allahbadia row whipped up to hasten YouTube content regulation?

There is a strong possibility that the Centre is using Allahbadia’s incident to gain control over Indian content on international platforms, according to Sanjay Hegde, a Supreme Court lawyer and a leading voice for the protection of civil rights in the country.

“There is suspicion that this outrage that is being whipped up to keep the issue simmering is because the government can get public approval to regulate Indian channels on YouTube," Hegde told The Federal.

"It is more likely that these content creators will come under some form of regulation and I can bet that it won’t be Allahbadia and others who will be in trouble in the future. It is more likely to be a Dhruv Rathee or a Ravish Kumar.” Rathee and Kumar run highly popular YouTube channels that are strongly critical of the Modi government.

Also read | How political influencers like Dhruv Rathee took on BJP at its own game

Inappropriate comments

The huge row over Allahbadia’s case doesn’t seem to be quietening down any time soon, it seems. Besides the FIRs filed against him and comedian Samay Raina, on whose show India Got Latent Allahbadia made this obnoxious comment, a parliamentary panel led by BJP MP Nishikant Dubey asked the Information and Broadcasting Ministry to amend laws to prevent such incidents involving “inappropriate comments”.

The panel has given the ministry time till February 17 to respond. Maharashtra cyber police has summoned Raina again, while the Assam police has arrived at his house in Pune today presumably for an interrogation.

FIRs have been filed against Allahbadia and Samay in the BJP-ruled states of Maharashtra and Assam.

Hegde is frankly sceptical over the ‘outrage', which he claims is 'fashionable but misplaced'.

Also read: Allahbadia row: Samay Raina deletes all videos of 'India's Got Latent' from YouTube

Difficult to prove

In his view, when and if Allabhabadia’s case reaches the courts, it is going to be extremely difficult to prove in court that the influencer, who has interviewed the likes of External Affairs Minister S Jaishankar, has committed a crime.

“Moreover, the content on India Got Latent is not meant for the mass audience and only for subscribers. Not being ‘open content’, it can therefore be argued in court that it is not easily accessible to people to pollute impressionable minds,” he added.

Also, Hegde said, that there is the matter of consent by the audience on the show and the person Allahbadia was addressing the question to. No one in the show raised any objections over obscenity, he added. "It will ultimately be difficult to prove the charges against Allahbadia in court," he said.

When tempers cool down...

Allahbadia has been booked under various sections of the BNS Act, which include insulting a woman’s modesty, for obscene acts in public spaces, Section 196, which criminalises speech or actions that promote enmity and insult the religious beliefs of any class of people in India, and transmission of obscene material in electronic form under the Information Technology Act, among others.

“When this case is examined in court with the passage of time and when tempers have cooled down, I doubt the prosecution will hold,” he said.

Also read: Allahbadia row: Mumbai Police record statements of manager, Apoorva

On slippery slope

Hegde further said that if the standards applied to Allahbadia are soon applied to a host of people, “we are quickly going down the slippery slope of having no realistic speech”.

“It can lead to curtailing the freedom of speech to the extent that nothing remotely seen as obscene will be allowed in the country,” he added. According to Hegde, if you ban Indian content, people will switch to watching non-Indian content.

“Anyway this 'joke' that Allahbadia cracked has originated from outside, probably from an Australian lady. Therefore, if you ban this kind of content, people will just switch to watching foreign content. This kind of content cannot be driven out, it can only be made difficult to access,” he argued.

Also said: YouTuber Ranveer Allahbadia apologises for 'vulgar' question on 'India's Got Latent'

What is obscenity?

Moreover, there is no clear-cut definition for obscenity. It is well-known that courts have tussled with defining what constitutes obscenity and vulgarity from the time they used to refer to Justice Potter Stewart's standard 1964 test to determine "hard-core" pornography, or what is obscene, as ‘I know it when I see it”.

“The judgments in the higher courts are often based on the context or the perceived vulgarity and obscenity,” Hegde told The Federal. To explain this point, he said you cannot have a nude scene in a sports movie without context — it will amount to obscenity and stoking prurient desires in the viewer. It will then become a case of obscenity for the sake of obscenity without any supporting context.

Namita Malhotra, a legal researcher with the Association for Progressive Communications, echoed the point. Pointing out that obscenity law often weighs the "context", she said: “Judges study context as it did in the case of the rape scene in the 1994 film Bandit Queen. The rape scene was held to be integral to the plot in the film since it marks the moment she (Phoolan Devi) decides to take revenge. It is a scene integral to the story since it is necessary to the narrative and hence was not marked as obscene."

Tests and standards

In terms of the standards or tests applied, courts are following what is known as the 'Roth test', made famous in Aveek Sarkar vs Anr vs Sate of West Bengal case. "Community standards or what is acceptable to the morals and mores of a community are used to ascertain if something is obscene," explained Hegde.

In the Aveek Sarkar case, the court held that the photograph of Boris Becker, a world renowned tennis player, posing nude with his dark-skinned fiancée, did not excite sexual passion or tended to deprave or corrupt the minds of people in whose hands the magazine Sportstar may have fallen.

Further, the photograph and the article conveyed the message of racial equality and diversity, the court ruled.

Arousing sexual thoughts

Besides community standards, obscenity relates to material that 'arouses sexual and lustful thoughts', said the apex court.

In a 2024 SC judgement, squashing a pending criminal case of obscenity and vulgarity against the makers of The Viral Fever’s web series named College Romance, a two-judge bench ruled: "Obscenity relates to material that arouses sexual and lustful thoughts, which is not at all the effect of the abusive language or profanities that was employed in the episode. Rather, such language may evoke disgust, revulsion, or shock." It made a clear distinction between obscene language and obscenity per se.

According to Malhotra, in the Allahbadia case, offensive comments cannot be construed as an offence “if a person is merely talking about sex or talk about incest.”

“If it is a case in which the person is not expecting such comments it can be looked as sexual harassment or even bordering on verbal assault. It is advisable to view it more as harassment rather than obscenity,” she observed. However, obscenity is a criminal offence that allows police to pick up Allahbadia.

On priorities

Malhotra also criticised the fact that the police was quick to act in Allahbadia’s case while, at the same time, a man who raped his wife causing injuries which eventually led to her death in Chhattisgarh was acquitted.

“What is wrong with our system that few words spoken by a YouTuber is causing such a backlash, but a 40-year-old man who allegedly indulged in brutal unnatural sex with his wife, which eventually led to her death, has been exonerated by the Chhattisgarh High Court on the grounds that a man cannot be prosecuted for marital rape in India?" she asked.