It seems that the Indian government just does not like us to have fun and personal choices. From the various bans on beef to a strong dislike of public displays of affection (PDA), the written and unwritten code of moral policing is growing long.
These bizarre bans are in “public interest”, but who is to decide what is in public interest?
The new area of control being looked at is in the area of “over-the-top” or OTT services – the increasing popularity of streaming platforms like Netflix, Amazon Prime and Hotstar has not gone unnoticed.
In July, commerce and industry minister Piyush Goyal asked the entertainment industry to self-regulate their programs on OTT platforms, claiming that many of them portray India and Indian society poorly. If the minister was really concerned, there are hundreds of other real events taking place across the country which really portray Indian society as still living in a medieval era.
But matters have quickly gathered steam since then. Recently, after hearing a petition filed in public interest to regulate OTT platforms, the Supreme Court issued notice to the Centre and Internet and Mobile Association of India (IAMAI). And last week, a gazette notification brought all streaming platforms under the ambit of the ministry of information and broadcasting (I&B), sparking fears of a new censorship regime.
In particular, the ministry may try to justify that the existing laws to cope with objectionable content (particularly, under Section 67 of the Information Technology Act and the Indian Penal Code) are not adequate.
Law on censorship and its interpretation by courts
In India, the Central Board of Film Certification (Censor Board) was set up under the Cinematographic Act, 1952 (the Act). The Act along with Rules (1983) and guidelines (1991), set out the manner in which films are to be certified for exhibition in India by the Censor Board.
The Act states that “a film shall not be certified for public exhibition if, in the opinion of the authority competent to grant the certificate, the film or any part of it is against the interests of, inter alia, decency”. In addition, the guidelines stipulated that film certification must ensure that “artistic expression and creative freedom are not unduly curbed” and that “certification is responsive to social change”.
India has exceptionally lively media on varied platforms – newspapers, periodicals, TV channels, online media, radio stations and more, in more than 20 languages. These platforms voice varied opinions that are protected by the constitution. The media jurisprudence has developed over a period of time through cases touching upon press, arts, books, motion pictures, social media and advertisements. In these decisions, the court has struck a balance between the interest of freedom of expression and social interests.
The constitution of India promises the right to free speech and expression to all the citizens (Article 19(1)(a)). However, ‘reasonable restriction’ can be imposed on the enjoyment of this freedom by the state under Article 19(2) on certain grounds, particularly public order, decency or morality, the most frequently invoked. For censorship (under Article 19(2)), the standard of judging a film should be that of “an ordinary man of common sense and prudence and not that of an out of the ordinary or hypersensitive man”.
In 1970, the constitutionality of censorship under the 1952 Act was challenged for the first time before the Supreme Court in the case of K.A. Abbas v. Union of India. The apex court upheld the constitutionality within the ambit of Article 19(2) of the constitution and added that films have to be treated separately from other forms of art and expression because a motion picture is “able to stir up emotions more deeply than any other product of art”. At the same time, it cautioned that it should be “in the interests of society”.
While setting aside the ban on the movie Bandit Queen, which picturised the true story of a woman who was raped and brutalised before taking revenge on her attackers, the Supreme Court held that the screening of a film cannot be prohibited merely because it depicts obscene and graphic events. On producers seeking the reinstatement of the classification of the film as “adult only”, the court held that the scenes featuring nudity and expletives served the purpose of telling the important story and that the producers’ right to freedom of expression could not be restricted simply because of the content of the scenes.
The court referred to the Supreme Court’s view (in Abbas v. Union of India) where the-then Chief Justice Mohammad Hidayatullah held that “the standards that we set for our censors must make a substantial allowance in favour of freedom thus leaving a vast area for creative art to interpret life and society with some of its foibles along with what is good”.
In that case, the chief justice had noted that it would be an error to conflate sex and obscenity as “it is wrong to classify sex as essentially obscene or even indecent or immoral.” He had noted that it was not the “elements of rape, leprosy, sexual immorality” that should be censored but rather that “how the theme is handled by the producer” determines the need for restriction.
Later Supreme Court decisions also emphasised that vulgar writing is not necessarily obscene and that consideration must be given to the writing as a whole, rather than isolated passages or scenes.
Accordingly, Bandit Queen was considered to be “a powerful human story” where “[r]ape and sex are not being glorified” but are used to focus on the “trauma and emotional turmoil of the victim to evoke sympathy for her and disgust for the rapist”.
Legacy of bans – the pre-censorship debate
Looking back, how many films with a voice of dissent have not landed up in controversy?
Films like Water, Udta Punjab, Lipstick Under My Burkha, Deshdrohi are only a few amongst many that ran into troubled waters with the Censor Board, were restrained in the name of ‘public interest’. Deshdrohi fought a battle of political censorship even after the Censor Board’s approval.
The question of freedom of expression in India needs a nuanced approach rather than a simple ‘for or against’ conclusion. It is true that the government has had to deal with politically sensitive and inflammable situations with the history of oppression and religious divide in our country. However, is it possible to protect public order and promote respect for one and all without affecting art and scholarship?
As per the law, the court has criticised the state emphasising that freedom of expression cannot be suppressed on account of threat of demonstration and processions or threats of violence. “It is the duty of the state to protect the freedom of expression since it is a liberty guaranteed against the state. The state cannot plead its inability to handle the hostile audience problem.” (In case of a ban on the movie Aarakshan)
Speech that “merely” shocks, disturbs or offends should be dealt with in the civil-law courts. The same applies to speech that infringes on privacy, insults dignity or defames honour – whether committed by recklessly unprofessional journalists or producers of OTT content.
Pre-censorship vs Ex-post remedies
The desirability of pre-censorship or ex-ante regulation would really depend on how much we value a democratic system.
Would it not help if the need for censorship is led, or at least balanced, by a healthy public debate? Can we break the shackles of the past prejudices and move on to healthier and evolved debates?
For offensive and defamatory content, we already have ex-post remedies in civil courts in dealing with speech that infringes on privacy, insults dignity or defames honour.
Today, on OTT platforms, where private viewing is not considered as public exhibition, (recently decided by the Karnataka high court in the case of Padmanabh Shankar), it is difficult to see pre-censorship as anything but arbitrary and chilling. The Indian audience is not restricting their choice to domestic content and likewise, global citizens are watching Indian movies/TV series on OTT or Internet platforms. Can the government justify how it would be in “public interest” to shut our eyes to international TV series like Sex Education which is being aired even in Saudi Arabia?
What’s the fine balance?
The stance of the government will truly reflect on whether we are a democracy to be proud of. What’s the point in granting democratic rights for people who would be too harassed if they dare exercise them! Rights with lopsided restrictions on public expressions are of little value if the authorities use them as a pretext to silence political critique.
Would the government impose stricter standards of artistic freedom to be applied to the OTT platform, considering – unlike broadcasting programmes, the OTT viewer has complete control of what to watch, where and how to watch.
Thus, besides censorship standards, the convergence of regulation for different platforms is the need of today. How can media self-regulation be good for all stakeholders, be it the press, consumers or producers?
Some of the best practices followed by international media are:
Media self-regulation is an effort to lay down censorship standards, independent of political forces. It is also a transition from a state-controlled press to one owned and controlled by society.
- It can help in promoting standards that advance media’s credibility with the public, particularly in a country like ours which still needs to evolve to get an independent press;
- It can help develop confidence in the public that free media is not irresponsible while protecting the rights of journalists/producers to be independent;
- It can help inculcate a professional culture to be judged for mistakes not by those in power but by colleagues.
- It would help lessen pressure on the judiciary if violations of personal rights by the press are corrected with satisfaction by self-regulatory bodies.
Self-regulation can be set up both industry-wide and in-house and equally, interested stakeholders could be civil society’s representatives like business owners and artists, retired judges, professionals, any other interest groups, besides, of course, individual members of the public.
“If sharp criticism disappears completely, mild criticism will become harsh. If mild criticism is not allowed, silence will be considered ill-intended. If silence is no longer allowed, not praising hard enough is a crime. If only one voice is allowed to exist, then the only voice that exists is a lie.”
The quote is taken from a 2015 essay by Zhang Xuezhong, an outspoken Chinese legal scholar who has criticised the political oppression and lack of rule of law in mainland China. Zhang’s essay was influential and cited by many others at the time. As noted British columnist Polly Toynbee puts it that the best way to destroy an undesirable idea is not to brush it under the carpet but to air it in public.
Anupam Sanghi is a commercial and competition, regulatory and policy Lawyer