Couple playing Garba in ‘condom ad is not obscene’, doesn’t hurt religious sentiments: High Court

The Madhya Pradesh High Court decided that a condom commercial depicting a couple dancing to ‘Garba’ would not constitute obscenity and would not offend religious sensibilities. A First Information Report (FIR) against a pharmacist for posting the advertising on social media and WhatsApp was dismissed by Justice Satyendra Kumar Singh’s single-judge panel.

THE CASE

After running a promotional offer for free condoms and pregnancy kits for two days during Navratri in 2018, a complaint was made against Mahendra Tripathi, the proprietor of a pharmaceutical business called Morphus Pharmaceuticals. Pre Loveratri Weekend Offer – Condoms (pack of 3)/Pregnancy Test Kit @ INR 0,’ the advertisement declared.

The complaint was made by a man named Ajay, who claimed that the advertising offended people’s religious emotions in a written statement to the police. After that, he was the subject of a FIR under the provisions of the Information Technology Act as well as Sections 505 (public mischief) and 295A (hurting religious sensibilities) of the Indian Penal Code (IPC).

 No intention of offending religious beliefs.
However, Tripathi countered that he is a Hindu and that he had no desire to incite animosity or damage religious feelings because he himself is a member of that faith.  When other condom businesses created special deals during the Garba season, he claimed that he had just put the ad in good faith in an effort to attract clients.

The state’s attorney opposed the applicant’s request, saying that the image’s content had offended the Hindu community’s religious sensibilities and that the applicant’s willingness to make such a gesture during the Navratri season demonstrated his criminal intent. Therefore, he shouldn’t be given any respite.

What the court said
‘Since there is nothing in the record other than the the said post which indicates his such intention, considering that he himself is a member of the Hindu community and furthermore that he posted the said image from his own mobile number without obscuring 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 statement reads.

The Court rejected the claim that the advertising was indecent as well. ‘The purported post’s contents are not obscene, thus the requirements of Section 67 of the Information Technology Act are likewise not satisfied when reading it. Because of the aforementioned, continuing the case would amount to an abuse of the legal system, thus it is essential to halt the proceedings’,the Court said. The sale of condoms in Gujarat has increased over the previous few years during the nine-day Navratri holiday, despite the fact that there is no obvious relationship between the two. This data comes from Gujarat.