OPINION | The government’s proposal to amend the IT Rules cannot stand

Determining whether content is obscene is a judicial function.

The Indian government is reportedly preparing a sweeping set of rules aimed at curbing “obscene content” across online media platforms. The move follows recent cases involving social media influencers Ranveer Allahbadia and Samay Raina over controversial online remarks. These incidents appear to be used as a pretext not only to tighten regulation of social media, but also to extend new controls over OTT platforms and digital news.

However, even a cursory examination of the proposed code reveals that it cannot survive even the most perfunctory test of constitutional scrutiny.

How Is Obscenity Defined?

The government proposes to define “obscene digital content” as material that is “lascivious”, “appeals to the prurient interest”, or whose effect is “to deprave and corrupt persons” likely to encounter it. This definition is drawn from Section 294 of the Bharatiya Nyaya Sanhita, which criminalises obscene content.

More troublingly, the proposal appears to revive the Hicklin test, an archaic standard originating from Regina v. Hicklin (1868). Under this test, obscenity included anything with a mere tendency to “deprave and corrupt” vulnerable audiences.

Why Hicklin Was Rejected?

The Hicklin test governed obscenity law in India, the United Kingdom, and the United States for decades. Its sweeping and subjective scope enabled authorities to ban works based on isolated passages, with little regard for artistic or literary merit. As a result, classic works such as James Joyce’s ‘Ulysses’, Hemingway’s ‘For Whom the Bell Tolls’, and Henry Miller’s ‘Tropic of Cancer’ were suppressed.

Recognising its inherent flaws, Indian courts abandoned Hicklin in favour of a more reasoned standard.

What Is the Current Test?

In Aveek Sarkar v State of West Bengal (2014), the Supreme Court adopted the contemporary community standards test, holding that obscenity is not a static concept but one shaped by evolving social attitudes. What may have been considered obscene at one point in time may no longer be so at a later stage.

Crucially, the Court also ruled that obscenity cannot be judged based on the sensibilities of particularly susceptible or sensitive individuals. Instead, it must reflect contemporary mores and nationwide standards.

Faced with binding judicial precedent, authorities may hope to salvage their approach by stating that the contemporary community standards test “may” be used to assess content. This formulation is constitutionally hollow.

Determining whether content is obscene is a judicial function. For the executive to arrogate this power to itself violates the doctrine of separation of powers, which exists precisely to prevent the concentration of authority within a single branch of government. Moreover, the contemporary community standards test is not optional—it is the prevailing legal standard. Treating it as discretionary signals an intention to disregard it whenever convenient.

Are The Rules Unconstitutional?

The proposed guidelines also lay down vague “no-go” areas for digital content, including prohibitions on material that “offends good taste” or portrays ethnic, linguistic, or regional groups in a “slandering, ironical, or snobbish” manner. These undefined standards render the rules unconstitutional on multiple grounds.

First, vagueness. In Kedar Nath v State of Punjab and Shreya Singhal v Union of India, the Supreme Court held that laws lacking clear definitions are void for vagueness.

Second, these provisions bear little connection to regulating obscenity. As clarified in In Shreya Singhal v Union of India, any regulation of obscene content must fall strictly within “decency” or “morality” under Article 19(2).

Third, the rules exceed the constitutionally permissible grounds for restricting speech under Article 19(2), which are exhaustively enumerated and narrowly construed.

Finally, the rules wrongly equate social media platforms with streaming services. User-generated platforms act as intermediaries without editorial control, while OTT platforms exercise end-to-end control over content. Treating them identically violates Article 14’s guarantee of equality before the law.

Conclusion

The proposed rules on obscenity represent a blunt assault on constitutional freedoms. By reviving discredited standards, empowering executive censorship, and imposing vague and overbroad restrictions, they cannot withstand constitutional scrutiny.

(Meghna Bal is the Director of the Esya Centre, a tech policy focused think tank. Shweta Venkatesan is a Fellow at Esya.)

Views are personal and do not represent the stand of this publication.