In a recent judgment (MAHENDRA TRIPATHI v. THE STATE OF MADHYA PRADESH ), the High Court of Madhya Pradesh ruled that a social media post regarding a condom advertisement featuring a couple playing a Gujarati form of dance “Garba” is not obscene and therefore, does not amount to hurting the religious sentiments of the Hindu community.
The facts giving rise to the present case are that the applicant ran a marketing campaign by posting an image on Whatsapp groups and the social media platform, Facebook, offering to provide free condom packs and pregnancy kits from October 06, 2018, to October 07, 2018 – during the holy period of the Hindu festival Navratri.
A complaint was filed with the Police alleging that the background of the poster offering free condom packs and pregnancy kits, showed a couple dancing the Garba, which hurt the religious sentiments of the Hindu people. Thereafter, an FIR was lodged against the applicant on the grounds of Sections 505 and 295A of the Indian Penal Code (IPC) and Section 67 of the Information Technology (IT) Act. The prosecution sanction was obtained and a charge sheet was filed against the applicant.
In response, a petition under Section 482 of the Code of Criminal Procedure was preferred by the applicant for quashing the FIR, consequent charge-sheet and the subsequent criminal proceedings.
Relevant Provisions of the Law
“Indian Penal Code – Section 505 (1)(c): Whoever makes, publishes or circulates any statement, rumour or report with intent to incite, or which is likely to incite, any class or community of persons to commit any offence against any other class or community, shall be punished with imprisonment which may extend to three years, or with fine, or with both.”
“Indian Penal Code – Section 295A: Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of citizens of India, by words, either spoken or written, or by signs or by visible representations or otherwise, insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.”
“Information Technology Act – Section 67: Whoever publishes or transmits or causes to be published or transmitted in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description for a term which may extend to three years and with fine which may extend to five lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to five years and also with fine which may extend to ten lakh rupees”
During the hearing, the Counsel for the applicant averred that the applicant is a pharmacy professional, who belonged to the Hindu community and was a devout and God-fearing man himself. He had, in good faith, published the alleged image with the intention of attracting customers during the Garba festivities. The applicant did not nurture any motive of creating or encouraging feelings of animosity, bitterness or ill-will among different religious groups or disparaging any religion or outraging the religious feelings of any class. No sooner did the applicant come to know of the FIR, than he immediately removed the said image from the Whatsappp groups as well as the Facebook page. The applicant also issued a public apology stating that the act shall not be repeated.
State Counsel’s Response
Opposing the plea, the State Counsel argued that it was apparent from the image in question that its content hurt the religious sentiments of the Hindu population. It was argued that such type of offer during the holy Navratri period exhibited the criminal intention of the applicant.
The Court eventually held, “Since there is nothing on record except the said post which indicates his such intention therefore, considering the fact that he himself belongs to the Hindu community, and so also the fact that he posted the said image from his own mobile number without concealing his identity, it appears that his intention was just to promote the product of his company and not to hurt the religious feelings and sentiments of any community.”
The Court further noted, “As the essential ingredients of Section 295-A of IPC i.e. “… deliberate and malicious intention of outraging the religious feelings… or …insulting the religion or religious beliefs of a class…” and also essential ingredients of Section 505 of IPC i.e. “…with intent to incite … any class or community of a person to commit any offence…or community” are not fulfilled hence, it is apparent that the aforesaid offence cannot be said to be made out against the applicant.” The Court also observed that the contents of the alleged post were not obscene and therefore, Section 67 of the I.T. Act was not applicable.
Accordingly, noting that allowing the prosecution to continue the case would amount to an abuse of the process of Court, the Court quashed the entire criminal proceedings against the applicant.
Analysis and Conclusion
In this particular case, though the target audience was limited, and the method of transmission was also restricted, a Hindu man happened to hurt the sentiments of another Hindu. We have seen similar cases in the past, for example, Tanishq’s “Love Jihaad” fiasco , the Sabyasachi disaster, and more, in which the big brands had to take down their campaigns and issue public apologies for having hurt the sentiments of Indians.
As we have often pointed out, India is a land of diversity, comprising several religions, traditions, customs and gods, along with very strong beliefs and sentiments. Therefore, advertisers must always ensure not to hurt the sentiments of Indians, in addition to abiding by the law.
Having said that, the Courts in India have been careful to not injunct advertisements purely on the ground that they hurt the religious sentiments of a group of people. Time and again, as in this case, the Courts have rallied towards the advertisers; however, such cases are limited because the advertisers often prefer to take down the ad themselves to avoid getting negative publicity and condemnation.
 M.Cr.C. No.40839/2021
 Condom Ad Featuring Couple Playing Garba| MP High Court Quashes Case Against Pharma Firm Head For ‘Hurting Sentiments’
First published for Global Advertising Lawyer Alliance (GALA) at http://blog.galalaw.com/post/102i5c1/madhya-pradesh-high-court-condom-ad-featuring-couple-playing-garba-does-not-hur