In India, art and restrictions often cross paths resulting in a constant struggle between freedom of expression and reasonable restrictions. As we enter into the 73rd year of adoption of the Constitution, acts of artistic expressions as subject of censorship are on a rise, reinstating the famous debate of attaining the ideal proportionality between freedoms and restrictions.
The topic of censorship refers almost always to that of freedom of speech, not only within the utilitarian theory, but also in general.[i] However, the most difficult aspect to defend is not artistic freedom, as this particular liberty can be defended in several ways. The most difficult challenge is how to defend artistic censorship[ii] given that the real question, with the exception of fanatical opinions, is whether to censor some specific works of art.
Democratic societies across the world and especially in India are committed to a basic array of civil liberties. Censorship in arts and culture is based on applied ethics that arises only in specific cases that are difficult to manage. As per recent trends in our country, the opposite of censorship is freedom of expression, yet neither is unrestricted in practice. Somehow or other, there is nearly always some degree of censorship, as a result, the problem can be seen as how much censorship is admissible so that freedom of expression is still in force and, conversely, what restrictions should be imposed on censorship by freedom of expression.[iii]
The artistic freedom of a filmmaker is not absolute in our country and is subject to restrictions. The courts have interpreted application of Article 19(2) vis-a-vis Censorship to include restraints on such content which is against the sovereignty, integrity and security of India or is defamatory, in contempt of Court or leads to incitement of any offence.
Any expression in a movie, which hits any of the aforementioned grounds, used to be censored qua the Censor Board of Film Certification (CBFC). However, with the advent of Technology and low footfall in the theatres in the Pandemic world, filmmakers have adopted the Over the Top (OTT) Platforms as their favourite podia for release of motion pictures and web-series.
Release of any content (films, web series, etc.) on OTT Platforms has certain benefits also, as the production houses are not required to attain certification from the CBFC or any statutory body. As a result, it gives an added impetus and liberty to filmmakers to make realistic content without any distress of the same being subject to restriction imposed by the Censor Board.
However, unlike America, freedom of expression is not absolute in India and content creators must always envisage controversies and constitutional restrictions.
In lieu of the same, the government came up with the Digital Media Ethics Code (Intermediary Guidelines), 2021, last year, in order to regulate the Digital space including OTT Platforms. The guidelines, made it mandatory for the OTT Platforms to formulate a grievance redressal mechanism so that any user having any issue with any content on the Platform can directly address the issue with the said Platform and quick redressal of the same can be done.
Despite, the formulation of the said guidelines, lawyers including constitutional ‘experts’ and others have frequently approached the courts seeking directions to remove or ban movies or web series for excessive obscenity, filthy language, public morality, hurting religious sentiments etc.
Recently, one such controversy came to the fore when a movie called Churuli was subject of controversy due to a great deal of abusive language used in the movie released on the Sony Liv (OTT platform). The Petitioners filed a writ before the Kerala High Court seeking orders to remove the movie ‘Churuli’ from Sony Liv on account of gross obscenity due to excessive abusive content shown in the movie and apprehension of harming the decency and public morality.
“Churuli” is a Malayalam movie directed by Lijo Jose Pellissery and co-produced by Chemban Vinod Jose. Both of them along with the actors were impleaded as Respondents. The prayer in the writ petition was to remove the film from the Over The Top (OTT) platform which is Sony Liv in the present case; another respondent.
The petitioner contended that the language used by the characters in this film are obscene and filthy and hence, opposed to public order, decency and morality. It was also contended that the releasing of these types of movies in OTT platform would attract criminal offences and would also violate statutory provisions of law in this field.
Judgement of the court
The single judge bench of Justice P. V. Kunhikrishnan held that his Court, invoking the powers under Article 226 of the Constitution of India, cannot dictate the film maker to use any particular type of slang by the characters in the movie. He further held that this Court could only verify whether the exhibition of “Churuli” film violates any existing law enacted to ensure public order, decency or morality. He however observed that while deciding the same, the artistic freedom of a film maker should be borne in mind.
He also made key observation that cinema is a creation of a film maker and that Artistic freedom means freedom to imagine, create and distribute cultural expressions.
In relation to the film being exhibited on OTT platform, the court held that an OTT platform cannot be treated as captive audience who are forced to watch the movie and that there is no compelled viewing of the movie.
The court had earlier suo-moto impleaded the State Police Chief in this matter and ordered him to constitute a team to watch the movie “Churuli” and asked the team to verify if there was any statutory violation or any criminal offence was made out.
The State Police Chief formed a committee of experts who in their report held that there was nothing wrong with the characters using offensive language as alleged presence of obscene matter in the language used by the characters of the film is outweighed by the preponderance of artistic value and social purpose of the film. The language spoken by the characters in the movie is intrinsic to the roles played.
The court also opined that the prima facie no statutory provision was violated by the screening of the film and the petition was a ‘publicity-oriented litigation’. The court noted that most of them who are making comments against the film have not watched the film.
The court also observed that the Petitioner did not use the alternative remedy available to him by way of the Grievance Redressal Mechanism set up under the Digital Media Ethics Code and held that the writ was not maintainable.
Trend of Intolerance Towards Content on Digital Media
Apart from raising the conflict of artistic freedom and restrictions on free speech, the two prominent issues at the core of this judgement are:
- Petitioners approaching directly to courts and failing to consider the newly enacted Digital Media Ethics Code and the grave incomprehension of the 3-tier grievance mechanism.
- Secondly, whether OTT Platforms are captive Platform and if it is mandatory to obtain certification from the Censor Board for release of any content on any OTT platform.
Incomprehension of the 3-tier Grievance Mechanism of the Digital Media Ethics Code
Last year the Central government much to the displeasure of the Media and entertainment industry, came up with the Digital Media Ethics Code (the Intermediary Guidelines, 2021). These guidelines made it mandatory for Digital Media players (including OTT Platforms) to certify content according to five level age-based criteria.
It also made it mandatory for these platforms to comply with the 3-Tier Grievance Redressal Mechanism where they have to appoint a Grievance Officer based in India for receiving and redressing grievances in a time-bound manner. The details of the Grievance Redressal Mechanism have to be displayed by the publisher at an appropriate place on its website or interface.
The purpose for the setup of this Grievance Redressal Mechanism was to resolve the complaints of the viewers with respect to any content without the intervention of the already overburdened courts.
Further, the rules propose Self-Classification with display of rating and content descriptor by the OTT platforms. This framework enables the audience to make informed decisions about the content they choose to watch. Access Control and age verification mechanisms for certain content would also help the parents to protect children from potentially harmful content.
However, despite the information of the Grievance Officer being available on the OTT Platforms, people are still approaching the Courts for restraining the screening of movies or web series on the given platform. Even, the courts while hearing the subject petitions have not asked the petitioners to follow the procedure for redressal of their grievance as per the 2021 guidelines. It is only in this case the court has discussed the incomprehension of the Petitioner towards the alternative remedy available.
However, earlier in this case, the court asked for formulation of a special committee of experts to view the movie and express their opinion. The court could have followed this approach earlier and could have asked the Petitioner to directly follow the 3-tier mechanism. It is to be noted that the 3-tier mechanism has the grievance officer at the very first level and then if the complainant is not satisfied with the order of the officer, he can approach the Level II being the Self Regulating Body. The self-regulating body is a body formed by the publishers themselves and is headed by a retired judge of the Supreme Court/High Court or an eminent person as the Chairperson. It is to be noted that at present, there are 5 self-regulating bodies constituted. The complainant can also appeal to the Oversight Mechanism, at the third level in cases which are unresolved at the first two levels.
Despite, the 3-tier mechanism being in place, petitioners are directly approaching the Courts for removal of content from the digital sphere. The guidelines are gravely disregarded and it will not be wrong to say that the enforcement of these guidelines have been poor.
OTT Platforms as Public Platform?
The OTT platform cannot be treated as captive audience who are forced to watch the movie. OTT Platforms are considered as private viewing and not public exhibition. In Padmanabh Shankar vs Union of India & Ors (2019), the division bench of Karnataka High Court held that the act of exhibition of films, serials and other content perhaps amounts to transfer of files based on requests by users through the internet. Hence, in my opinion if there is age based certification provided as per the Intermediary Guidelines, 2021, then such exhibition within the four corners of wall should not be termed as public exhibition.
Censorship on OTT Platforms?
As per the Central Government, the 2021 Intermediary Guidelines do not contain any censorship provisions. Content by OTT platforms would be self-classified by them. With that being said, it is not mandatory for any creator to obtain certification from the CBFC before releasing their content on any OTT Platform.
Theatrical release of any movie requires certification from the CBFC as per the Cinematographic Act, 1952. For films first released on OTT then subsequently to be broadcasted on Television will need to be in compliance with the Cable Television Network Regulation Act, 1995 (“CTNA”) and the Cable Television Network Rules, 1994 (“CTNR”). For more information on this, please refer to our earlier article on this subject here.
Hence, there is no censorship on the OTT Platform apart from the self-regulation and that they have to comply with the age-based classification of content. It is however possible, that by way of abundant caution, producers may take a narrow interpretation and procure CBFC certificate of such OTT-released films like in the case of Churuli which obtained an A-rated certificate from CBFC. In any case, a censored film by CBFC helps in defending claims in view of plethora of judgements validating the expert body’s scrutiny of a film by applying the principles for guidance in certifying films.
Even though there is no censorship, if any content on the said OTT platforms contravenes Article 19(2) of Constitution, the Government has the power to remove any content that is objectionable and/or interests under Section 69A of Information Technology Act and the IT (Blocking Rules), 2009 i.e., Power to issue directions for blocking for public access of any information through any computer resource.
This judgement comes at an important time and rightly discusses the malafide intention of such petitioners who approach the court to gain publicity. Even the relevant rules applicable to an OTT platform movie are not referred to in the writ petition.
Justice P. V. Kunhikrishnan also throws light to an immoral trend of people making comments on social media without properly understanding the facts. He rightly expresses that there is indeed freedom of speech and expression to every citizen as per Article 19 (1)(a) of the Constitution of India, but the above types of critics are doing injustice to a filmmaker by making comment about a film and make it an unpopular one without watching his movie in full.
We can only hope that after this judgement, the fringe critics approaching the courts to seek ban on each and every artistic expression use their right to approach the court with more vigilance and prudence.
Read Judgement here.
[i] Civic Constellation III: Democracy, Constitutionalism and Anti-Liberalism”, PGC2018–093573-B-100 (2019–2022). Available at: https://www.uma.es/civicconstellation/cms/menu/project/presentation/.
[ii] Jenkins, I. (1944). The Laisser-faire Theory of Artistic Censorship.
[iii] Chiang, Tun-Jen J. and Posner, Richard A., Censorship versus Freedom of Expression in the Arts, Handbook of the Economics of Art and Culture (2006), vol. 1, pp. 310; Available at: https://books.google.co.in/books?hl=en&lr=&id=D3nM22ZSkasC&oi=fnd&pg=PP1&ots=R2OWmCT7Tp&sig=i90MlT0cxtSO_g-4z6iODYfR1fI&redir_esc=y#v=onepage&q&f=false.