Madhya Pradesh High Court – Condom Ad Featuring Couple Playing Garba Does Not Hurt Religious Sentiments – Advertising, Marketing & Branding
Introduction
In a recent judgment (MAHENDRA TRIPATHI v. THE STATE OF
MADHYA PRADESH [1]), 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.
Brief Facts
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 β 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 β 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”
Applicant’s Submissions
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.
Court’s Decision
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 [2], 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.
Footnotes
1 M.Cr.C. No.40839/2021
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