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NATIONAL SOCIAL AND LEGAL RESEARCH JOURNAL
{VOLUME I ISSUE II}
A MANIA OF WEB SERIES WITH THE DUBIETY OF CENSORSHIP IN A NEWFANGLED SOCIETY
BY
KAPIL DEVNANI, HNLU, RAIPUR, ASHUTOSH RAJPUT, HNLU, RAIPUR & ROHAN SINGH, HNLU, RAIPUR
ABSTRACT
Censorship is considered as a valuable aspect before the society which is being used to maintain law and order. Interestingly, the most growing virtual field i.e. online web series concept goes without the censorship procedure due to the lack of censor board, therefore, raises a severe question of law and order Thus, this paper will analyse and describe every nooks and corner of the censorship in light of the internet censorship by considering the web series censorship in India. There are likewise a few groups in the society which consider Censorship as infringement of Article 19, this paper touches this point as well and attempts to dissect the connection between the two. It also talks about the need for censorship in web series by analysing different aspects. This paper has been made by surveying people who watch web series and a conclusion has been drawn based on their assessment.
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INTRODUCTION
“You are the average of five people that you spend your most time with” is the famous line used by the famous American Entrepreneur and the Council of Peers Award for Excellence (CPAE) awardee, Jim Rohn. Since birth we learn and imbibe things from one another1. Our language, behaviour, mentality, knowledge, likes and dislikes all depend or get influence by the surroundings that we live in. Jonah Berger, in his book "Invisible Influence"2, explained the impact of surroundings and its influence on us. He stated that getting influence by our surroundings does not only mean to follow what others do but also doing something different from them to seem distinct and unique. Even we may never notice that something is influencing us, but our surroundings have a non-conscious effect on our behaviour. The human brain is designed in a way that it can learn and gather information about this world by experiencing through the senses. Influences can be good, bad or neutral. Though, mature minds can aloof themselves from bad influence but the case is not the same with teenagers and children as they tend to learn whatever they see. As we know, a newborn does not know the distinction between good and bad, it believes what it is told. Remember, when our parents told us not to accept chocolates from strangers, we believed them and learned what is good and what is bad for us. This virtue of believing what we are told goes life-long, only if our reasoning ability does not disapprove it, we believe it is right by default.
This phenomena also applies to films or being more specific to web-series. These web-series also impacts the mind of its audience. Sometimes, this impact is so much significant that it may change the whole lifestyle of an individual.
Moreover, according to the stats the Indian film industry is the biggest film industry. It releases the most number of movies in a year and sells an approximate of 1.24 billion tickets worldwide per year surpassing Hollywood with 500 million tickets.3 With total revenue of
1 Aimee Groth, ‘You're The Average Of The Five People You Spend The Most Time With’ (Naked Law) < https://www.businessinsider.com/jim-rohn-youre-the-average-of-the-five-people-you-spend-the-most-time- with- 20127?IR=T#:~:text=David%20P%20Brown%20Motivational%20speaker,the%20average%20of%20all%20out comes> accessed on 12 July 2020 2Jonah Berger, ‘BOOK REVIEW: “Invisible Influence: The hidden forces that shape behaviour” by Jonah Berger’ (The Marketing Journal, July 28 2017)
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INR 10.2 trillion in the year 2018, Indian film industry stood second in the revenue collection just after the USA due to the cheap ticket prices, keeping in mind the purchasing power of the majority of Indian people, and weak currency value in comparison to US Dollar. This data shows that Indians are fond of watching movies but, this is only a half of the story; TV shows have an equal reach or even more to the public. Moreover, with the outstretching reach of the internet in the digital era, web series on online media platforms like Netflix, Amazon Prime Video, Hotstar, Voot, etc. are getting popular in double-quick times in India. Therefore, it becomes a concern of grave importance that what is being displayed on the screen should not cast a negative impact on the viewers and the society. For this reason, it is necessary to keep a check on the content that is being aired.
CENSORSHIP: A need of an hour?
In India, an endless number of diversities co-exist with an unpleasant history and experience with one another. These diversities include religious diversities, linguistic diversities, racial diversities, caste diversities, physical diversities, etc. The online content available today may not be suitable for all; it may hurt people mentally as well as physically.4 The content may build hatred among people and ultimately accelerates riots and disorder.
According to critics, Censorship is like a stone in the way of Right to freedom of speech and expression enriched under Article 195 of the Indian Constitution but, this contention is not so much admirable as the said Right is subject to various reasonable restrictions on the ground of national security and public order. Online media is something which affects the whole society and therefore, to ensure safety and public order, it must be censored.
The following points elaborate the need for censorship and its different aspects:
• Credulous people in India
Indians are fond of watching movies, they follow motion pictures and TV entertainers way too much. The entertainers of films are dealt with like real life heroes in our country. The great characteristics that the entertainers play on screen are taken as the idea of the
4 ‘How the Internet affects your mental health, (Piedmont Healthcare)
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[ ALL COPYRIGHTS RESERVED @ NATIONAL SOCIAL AND LEGAL RESEARCH JOURNAL VOLUME ISSUE 2] March 8, 2021 entertainers, in actuality, too. It is expected the manner in which they battle for equity, rebuff the shrewd, helps the poor and needy in reel-life, a similar they will do, in actuality, too. This visually impaired trust game dives so deep into the residents that the entertainers with no political background are chosen as political pioneers in the country. There is an extensive list of entertainers turned politicians of which Shatrughan Sinha, Hema Malini, Kirron Kher, Sunny Deol are a few models. Their fame causes them to get the votes of people in general. As per the insights given by the Election Commission and PRS Legislative Research, 10 entertainers from Bollywood and regional film industry were chosen for the 16thLok Sabha yet 8 out of them couldn't cross the normal 81% mark of the attendance in the LokSabha .Seemingly these entertainers have utilized their huge fan following to get the votes however they are not performing great as a politician.6.
The point is that the people in India mostly assume whatever they see on-screen as truth. In this manner, it got imperative to control negative and bogus substance that can influence the thinking capacity of an individual to differentiate between genuine and fantasized material. Else the people may develop false reasoning and can make bad decisions based on it.
• Impact of entertainment content
Web-Series can be seen replacing the Television in today's world. Today, people of all age groups, especially the young generation are bored with the melodrama of Saas-Bahu serials and those melodramatic situations. They want something new, something more interesting, and something from which they can connect. In short, they want choices. They want options from which they can choose the most preferable one for them. This need is satisfied by the web-series.
Around 70 percent population of our country is young and a bulk of them is online. This fact solely clears the secret of the popularity of web-series in India.
“Chrome Data Analysis and Media” researched to understand the consumption pattern of web-series in India, the data shows that:
• Around 44 percent prefer watching online content.
6Ibid
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• 65 percent watch TV along with web-series.7
This data confirms that India is becoming a hub of web-series viewers. It is good or bad, is a debatable point but, one thing is clear that such a large number of viewership brings responsibility for the Government. A responsibility to provide them with decent content, a responsibility to filter the content before it reaches the audience, and a responsibility to remove the content that is harmful to the development of viewers.
Naturally, one always tries to compare his lives with the characters in the web-series. Our brain always tries to find what is similar between us and when we are watching web-series, we projectiles ourselves as the character.8
The scene of the web-series gets in our mind because something similar or known has happened to us before and our mind tries to re-live that memory which eventually affects our day-to-day life. It changes our perspectives, our behaviour, our thoughts as well as our lifestyle. And the worst thing is that we are not aware of that change.
This situation gives rise to an urgent need of censor board for controlling web-series in our country. At present, web-series acts as a form of education which educates the young generation about how things work in practical life but, the absence of any authority is mutilating this form of education. This is a serious threat to the growth of the nation because the youth is like a backbone of any nation and if the backbone is injured then it is very hard for that nation to stand.
• Nudity and Pornography
The online web series is being watched and admired by the viewers of all age groups. These web series provide a different genre of storylines than what is available in TV serials, also people find the web series more practical and they can relate it with themselves in some manners. Even the below 18 group of viewers has the full access to web series without restrictions of any type. Web series like "PaatalLok”, “Sacred Games”, “Gandi Baat”, “Mastram", etc. are stacked with a number of 18+ scenes, making it inappropriate for the
7‘65% of Indians watch TV along with web series: Chrome DM study’ (4dgully, 4 January, 2018)
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[ ALL COPYRIGHTS RESERVED @ NATIONAL SOCIAL AND LEGAL RESEARCH JOURNAL VOLUME ISSUE 2] March 8, 2021 below 18 categories of viewers to watch. And also if someone is above 18, it does not mean he/she is comfortable to every 18+ content. Moreover, the scenes are not simple primary adult scenes but are very complex and dark that would make even a grown-up uncomfortable. This is what is being served to the next generation of the nation and it is alarmingly worrisome.
Punjab and Haryana High Court issued a notice in a lawsuit to take down the series "PaatalLok” from Amazon Prime Video more broadly to censor web series9. In this case, the petitioner argued that “some scenes of PaatalLok depict sexual assault and thus, violates Section 67 of the IT Act 200010. Moreover, the gang rape scene in the third episode of the said series violates the Indecent Representation of Women (Prohibition) Act 1986”11. The respondent side argued that the viewers have a choice not to watch such content, but this argument is vague in nature as the movies in the cinema halls also follow guidelines of the censor board despite having a choice not to watch the movie.
Similarly, the scene in the series "Sacred Games" where the genital area of a transgender actor, KubbraSait playing the character of Kuku in the series, was shown on-screen was immoral and inappropriate. Other obscene sex scenes can also be seen in the series making it look more like a porn film than a crime-investigating series. Also, the content representation in the series GandiBaat crossed the limit of obscene sexual scenes, it has some explicitly unequivocal scenes, like a man compelling himself on his daughter in-law, or a young man making lewd gestures on his sister-in-law, or a couple enjoying BDSM. The absolute first episode, named 'Threesome', is a story of a wedded couple and their neighbour. The spouse Namvar catches his wife Gunjan in bed with their neighbor. Following a couple of moments of over-responding, mocking, and in any event, threatening them with a firearm, Namvar chooses to participate and take the duo to a three-way.12.
9Aroon Deep, ‘PaatalLok: Punjab & Haryana High Court issues notice on the suit to censor web series’ (Medianama, 16 June 2020) < https://www.medianama.com/2020/06/223-punjab-haryana-high-court-issues- notice-web-series/> accessed on 3 August 2020 10Information Technology Act, 2000, S. 67. 11Abhay, ‘Bans And Censorship: Cautious And Reflective Regulation of OTT Platforms’ (Libertatem Magazine, July 12, 2020),
12STUTI SHUKLA, ‘Nothing Achha About ALT Balaji’s ‘GandiBaat’ (The Quint)
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There goes a never-ending list of such series that are stacked with sexually explicit scenes. Such picturization of sexual intercourse in the form of rape and weak images of women is not only inappropriate for the below 18 group of viewers but is also derogatory to women in our respected Indian society. Such bold and nude scenes are strongly against Indian society and cast a shame to the moral values of the viewers. The concern arises that if such scenes will not be taken down then the content in the web series would go crazy leaving no difference between an online series and a porn film.
• Use of abusive and strong language
Using foul language in day to day life is getting trending among youngsters. Actors like Manoj Vajpayee and Yashpal Sharma have said that using vulgar language in the web series should be banned as it is casting a negative effect on the teenagers and college-going students.13 The web series like Mirzapur, Sacred Games, Four More Shots Please, PaatalLok, etc. have normalised the use of abusive and strong language. Youngsters catch a message from these web series that it is okay to use such bad language in everyday life and apparently they seem to adopt these cuss words from the web series.
Everything that we see, hear or feel makes an impact on our body. Exposure to such vulgar and abusive language surely affects the individual’s mood, perspective, personality and ultimately the whole body. The growing nature of abusive language can be traced as we see the individual YouTubers use a lot of cuss words in a similar way in which web series puke them. In addition to that, the most used messaging app "Whatsapp" introduced a feature in which stickers can be sent and received by the users, but again the stickers picturizing the abusive language with the images of the web series characters got viral within no time. It is clear that the language that is being used in the web series is affecting the daily verbal and textual conversation gratingly. Also, the jokes and memes that are being shared on social media platforms like Facebook, Instagram, Whatsapp, etc. also contain abusive language which further promotes the use of such bad language. The foul language that was believed to be immoral and indecent in the starting of the century is now being glorified by the online
13 Rajendra Sharma, ‘MP: BJP MLA demands ban on web series for spreading obscenit’ (The Times of India)
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[ ALL COPYRIGHTS RESERVED @ NATIONAL SOCIAL AND LEGAL RESEARCH JOURNAL VOLUME ISSUE 2] March 8, 2021 content, making it a trend.14 If the steps to check such aggressive and vulgar content will not be taken, the younger generation or the future of the nation will ruin its personality, mentality, thinking ability and character eventually.
• Defamation
Defamation in web series has been in news for the past few years. Several complaints have been filed against different web series for defamation. Legal Dictionary defined Defamation as an act of making untrue statements about another which damages his/her reputation. Section 499 of the Indian Penal Code15 also defines Defamation where Section 500 states the punishment for the same.
Some of the most controversial cases of defamation in web series are discussed below:
• Netflix show ‘Hasmukh’ was sent a legal notice for the false portrayal and defamatory content against the legal profession. One of the episodes in the series allegedly depicts lawyers as “thieves”, “scoundrel”, “goons”, and “rapists”. The legal notice seeks the makers to remove the defamatory comments16. • The social media star Vikas Pathak popularly known as Hindustani Bhau filed a complaint against Ekta Kapoor’s web series “XXX”. Bhau posted a video after filing the complaint in the police station stating that the said series disrespects our Indian Military, National Emblem, Colonel Tag and more broadly our country17. • The streaming service's first Indian original web series "Sacred Games" was also in the news after a case has been filed against the series for defaming the former Indian Prime Minister Rajiv Gandhi. The show Sacred Games has political assaults, inappropriate dialogues and even talks, which are disparaging and hurts the standing
14IshitaBajpai, ‘Do Web Series Use Violence, Sex And Cuss Words To Get Eyeballs?’ (Edtimes)
17‘FIR filed against Ekta Kapoor for her web series XXX, controversial scene removed’, (Hindustan Times)
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of the former Prime Minister. Shiv Sena also filed a complaint against this series stating that it is derogatory to Hindu, India and the Indian Army.18 • One of the most derogatory web series, PaatalLok, faced legal case for defamation as well. The said crime investigating series has several issues that lead to defamation such as eating beef in front of Goddess’s photo, allegedly promoting Hindu-phobia, Hindus lynching Dalits, and racist slur. Episode three of the series depicts a scene where some Sikhs raped a woman. The Punjab and Haryana Court gave notice to the producer of the series, Anushka Sharma, for defaming the Sikhs community. Sikh community posted photos and videos on social media bursting on Anushka Sharma that she should be ashamed of herself for producing such content and also explained that Sikhs are the saviour of women; the world know Sikhs for their humanity and helping nature but the series maliciously picture Sikhs as rapists.19
• Glorifying drugs, alcohol and crime
Despite the warnings on the cigarette packets and Alcohol bottles, the consumption of drugs and alcohol has never declined. According to the statistics provided by Statista.com, the Alcohol consumption in India was 5.38 billion litres in the year 2016 and it has reached 6.23 billion litres in 2019 and is expected to be 6.5 billion litres in 2020.20 The survey by the students of St. Xavier’s College, Mumbai found that 75% of the youngsters have consumed alcohol before attaining the legal age of drinking i.e. 21 years. Moreover, 47% have smoked cigarette, 20% have tried drugs and 30% have smoked Hookah. The survey also found that 88% of the youngsters have tried some kind of addiction before turning 21. The report was approved by the Assistant Commissioner of Police, Superintendent, Narcotics Control Bureau (NCB), Bhumesh Agarwal. There might be many factors that promote the use of alcohol or drugs among young generation such as peer pressure, curiosity, and easy accessibility to
18‘Delhi High Court to hear plea against 'Sacred Games' for defaming Rajiv Gandhi’, (Dna, 16 Jul 2018),
20 ‘Forecasted alcoholic beverage consumption in India from 2016 to 2020’, (Statista, 8 Apr, 2020)
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[ ALL COPYRIGHTS RESERVED @ NATIONAL SOCIAL AND LEGAL RESEARCH JOURNAL VOLUME ISSUE 2] March 8, 2021 intoxicating substances. Online content is also one such factor that promotes alcohol and drugs among the young generation.
Online web series like Sacred Games, PaatalLok, Mirzapur have a number of scenes that promote and normalise the consumption of alcohol and drugs. Such online content glorifies the intoxicating substances and depicted the consumption of such substances as a fashion. The negative message that the young generation is imbibing from such series is that it is cool and a rich habit to consume alcohol and drugs. Similarly, such series also glorify crime as they promote the concept of revenge. The protagonist and antagonist both can be seen doing illegal things in the name of revenge. Even the hero (the lead actor) in the story could be seen as consuming alcohol and drugs. The 70s blockbuster movie “Sholay” had a scene in which Thakur kills Gabbar at the end of the movie for revenge as Gabbar had killed Thakur’s entire family, but the scene was censored owing to the fact that it would promote crime. The scene was replaced by the one in which Gabbar was arrested by the police in the end but, focusing on the current scenario, revenge is treated as an instant justice.21
• Communal riots
India is a democratic country where people have different ideologies and the ideology preferred by the majority prevails. In recent years, there has been a major upsurge in communal riots in this holy country. There are several reasons which trigger the community and make them violent, of them one of the major reasons is the screening of films that infringes their ideology or disrupts their ideology. Several instances of the same can be found in the web series as well. The most recent web series named 'XXX Season 2' depicted an act whereby an army jawan’s wife is shown as having extra-marital affairs while her husband (army personnel) is out for his duty, makes the other guy wear his husband’s official dress code and later tears it while having sex. This act obviously would trigger the specific community which may result in violence.
The Shiv Sena had alos filled a police complaint against the Netflix on the ground that it is promoting Hindu phobia while contending that “Almost every series on Netflix India is with the intention to defame the country on a global level. It is with deep-rooted Hinduphobia that
21 Garima Satija, ‘Gabbar Would Have Been Killed By Thakur, If CBFC Hadn't Demanded A Change In Sholay's Climax’ (India Times) < https://www.indiatimes.com/entertainment/bollywood/gabbar-would-have- been-killed-by-thakur-if-cbfc-hadn-t-demanded-a-change-in-sholay-s-climax-337599.html> accessed on 20 September 2020
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[ ALL COPYRIGHTS RESERVED @ NATIONAL SOCIAL AND LEGAL RESEARCH JOURNAL VOLUME ISSUE 2] March 8, 2021 the platform is portraying the nation in a bad light”22 Such communal hatred is not only limited to Hinduism but has a varied of different aspects as well. For instance, the newly formed web series named PaatalLok incited multiple controversies and also there were several complaints lodged against the same. One of the first petition against this web series was filed by the members of the Gorkha community by contending that there was the use of the sexiest slur against the Nepali man which is offensive and derogatory.23 The President of Delhi Sikh Gurudwara, Prabandhak Committee also called for a ban on this web series on the ground that the scene tarnishes the image of Sikhs and depicts them as rapist, basically he called for a ban for maligning their ‘religious harmony’. Another complaint was also filed by the BJP MLA Nandkishor Gurjar for allegedly using his photograph in the series without his permission.24
One web series named “Krishna and His Leela” is also being boycotted by several viewers as a whole. Its scenes depicts various sexual encounters of a boy with a girl named Radha which is prima facing hurting the religious sentiments, as Goddess Radha is considered as a goddess within Hindu community.25
UNDERSTANDING CENSORSHIP
Censorship is an act to suppress certain activities whether in a static form or in the current form which does not stand morally before a community. It comes from a Latin term 'censere’ which means to give one’s opinion or ‘to assess’. Censorship as per the Oxford Dictionary pertains to the “suppression or prohibition of any parts of books, films, news, etc. that are
22 ‘Netflix 'defaming' Hindus and India: Shiv Sena member files police complaint’ (The Economic Times)
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[ ALL COPYRIGHTS RESERVED @ NATIONAL SOCIAL AND LEGAL RESEARCH JOURNAL VOLUME ISSUE 2] March 8, 2021 considered obscene, politically unacceptable, or a threat to security”26 Throughout history, this very act is considered as a hallmark of dictatorships.27 Censorship occurs in a variety of forms such as through media, speeches, books, films, music, etc. The term censorship dates back to the office of the censor established in Rome in 443BC.28 Though there are different forms of censorships as stated below, this paper will effectively deal with the censorship concerning the films particularly the web series. Furthermore, Plato was the one who advocated censorship in his essay 'The Republic'29. This concept has been regarded as a concept of hindering justice.
Different aspects of censorship:-
(1) Political Censorship- Whenever a country’s security is at the stake due to its in-country activity then the government may put censorship in order to protect the national security of the state so that it won't affect the country’s relationship with other nations.30 (2) Obscene censorship- Many people in the society don’t want their children to get exposed to obscene acts openly and therefore, the depicted scene of pornography in movies gets covered by different actions or gets deleted. In 1857, there was a whole nude plaster cast of David whose plastered penis was visible to common people meanwhile, Queen Victoria found it under the ambit of vulgarity and soon replaced the penis with a plaster leaf at the Victoria and Albert Museum.31 (3) Speech and expression censorship- It is defined as an act of aggression towards any community which may lead to violence. Therefore, to prevent these kinds of conflicting action the government can ban certain scene or divert it from their agenda so as to prohibit the outrage.32 (4) Reverse Censorship- This censorship pertains to censoring the contents of social media which are distorted and may mislead the common people.
26‘Meaning of Censorship’ (Lexico)
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Origin of the Censorship in movies
Annals of censorship can be traced back to the 19thcentury whereby Britain passed the world's first cinematograph legislation named 'Cinematograph Act 1909' so as to improve the safety standards by controlling the issue of the cinema licenses, subsequently after few years British Board of Film Censors was established in the year 1912 which overtook the Cinematography Act of 190933. By this time India was too fond of making and watching films, while the first full-length movie named Raja Harishchandra was released without the censorship process though it didn't have any indecent scene. Soon in 1918, “the Cinematograph Act 1918” laid its foundation but still, at that time it was not of much clarity as to what to look after for censorship, the inspectors appointed by the Governors were advised to do an assessment of the film and give affirmation of legitimate assessment to the film make dependent on 'the movies appropriateness towards the public presentation'. The first film which was censored in independent India was "Neel Akasher Neechey” in the year 1959.34 The only difference between the British Censorship Board and the Indian Censorship Board was that the former consisted of the authorities from the official dome while the latter consisted of the local bodies. Soon in 1920, several sensor boards were instituted to examine the films at Mumbai, Calcutta, Madras, and Yangoon respectively.
The Cinematograph Act, 1952
The Cinematograph Act, 1918 was repealed and in its place, the Cinematography Act, 195235 (herein with ‘Cinema Act’) was enacted which introduced two new categories i.e. ‘U’ and ‘A’ through the amendment of the Act in 1949. The provisions related to the sanctioning of films is the subject of Union List under Entry 30 and the provisions related to the licensing and regulation of cinemas is the subject of State list under Entry 33.
And as per Section 3(1) of the Cinema Act36, “the central government may through its notification constitute a board of film certification which shall consist of a chairman and other members numbering between 12 and 25 to sanction the films for public
33 Ibid. 34 ‘Know about the first movie banned in independent India!’ (India Tv News, July 5, 2020, 10 A.M) https://www.indiatvnews.com/entertainment/bollywood/neel-akasher-neechey-first-movie-banned-in- independent-india-20998.html /> accessed on 21 October 2020 35‘The Cinematograph Act, 1952 and Rule’ (Ministry Of Information And Broadcasting) https://mib.gov.in/acts/cinematograph-act-1952-and-rules> accessed on 24 October 2020 36The Cinematography Act, 1965
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exhibition.”37 Furthermore, Section 5A of the said act talks about the certification of films whereby the certification categories are divided into two parts one is UA or simply A. The crux of this Act pertains to “the establishment of a ‘Central Board of Film Certification’ (CBFC) while the Board thus constituted after examining the films could sanction the film either for unrestricted public exhibition or for public exhibition restricted to adults.”38 The board may modify certain parts of the film or may refuse to sanction the film for the public exhibition. Furthermore, Section 5B (1) of the Cinematograph Act is more or less similar to Article 19 (2) of the Indian Constitution.
Certificate to the film are marked based on the following:-
❖ “U- Unrestricted public exhibition. ❖ A- Restricted to the adult audience. ❖ UA- Unrestricted public exhibition subject to parental guidance for children below the age of twelve. ❖ S- Restricted to specialized audiences such as doctors or scientists.”
Can censorship be done by restricting an individual's free speech guaranteed under Article 19 of the Indian Constitution?
It has been rightly said that “freedom of thought will have no value or is meaningless unless an opportunity to express the ideas is given moreover then it would be regarded as an empty shell.”
According to critics, censoring certain scenes of expression will infringe Right to freedom of speech and expression as enshrined under Article 19(1)39 of the Indian Constitution. They argue that in a democracy like India, Article 19(1) has a wider role to play considering free speech. One can say that through a free speech pertains to nurture the true position of the government by making them aware of their wrongdoings which bears a fruitful result and the same was stated by the Supreme Court in the case of Romesh Thapar v. State of Madras.40
37Supra note 36 38Supra note 36 39 Constitution of India 40RomeshThapar v. State of Madras (1950) SCR 594.
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Article 1941 of the Universal Declaration of Human Rights provides “a right to freedom of opinion of expression and freedom to hold opinions without any interference.”42 The same has been emphasized under Article 10(1) of the European Convention on Human Rights43 but unlike them, the Indian Constitution has the power to curtain such rights44.
George Washington has also said that "If the freedom of speech is taken away, then dumb and silent we may be led, like sheep to the slaughter"45 and the Hon’ble Justice Raghvendra S. Chauhan also stated that “it is the Constitution which guarantees the fundamental right of freedom of speech and expression, and defines the contours of the said freedom & perhaps we should consider the interrelationship between the Constitution and cinema.”46
One of the prominent cases before the Indian Court of law relating to the censorship is K.A. Abbas v. Union of India47 which is also described as the first case where the question related to the censorship of the films was discussed. In this case, the question of the validity of pre- censorship in relation to the fundamental rights conferred under Article 19(1) arose, whereby, Justice Hidayatullah contended that the pre-censorship of a film is constitutionally valid in India and further contented that it can be reasonably restricted in the light of Article 19(2).
Further, in the case of Life Insurance Corporation of India v. Prof.Manubhai D. Shah, Supreme Court stated that “the restriction under Article 19(2)48 has to be interpreted strictly and narrowly as it throws a heavy burden before the authorities seeking to impose such restriction.”
The Bombay High Court in the case of Sanskar Marathe v. The State of Maharastra49 observed that “censorship is permitted under Article 19(2) with emphasis on maintenance of values and standards of society.”
41 Universal Declaration of Human Rights 42Adopted by the General Assembly of the United Nations in 1948. 43 The European Convention on Human Rights (1975). 44. ShivRao, Framing of India’s Constitution Vol IV (1968) 34-39. 45George Washington, ‘George Washington Quotes’ (Brainyquotes)
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The censorship becomes reasonable in light of Section 19(2) of the Constitution of India whereby the State through its powers promulgated under this section can curtain the free speech and expression on reasonable grounds such as the following:-
a) Sovereignty and Integrity of India- If any act of expression hiders the sovereignty and the integrity of the state then such an act can be curtailed under this provision.50 It was incorporated under Article 19(2) by the 16th Constitutional Amendment Act 1963 and the same amendment in 1981 was made to Section 5 B(1) of the Cinematograph Act. b) The Security of the State c) Friendly relations with foreign states- A friendly nature of the foreign nation help the State to maintain peace and decorum. If the nation depicts any obscene scene which may hinder the friendly relation with any foreign state then, at such point of time the government may order ban on that film. d) Public order e) Decency or Morality – In spite of the fact that these terms have no fixed meaning except for their distinctive significance can be induced from various social orders and is to some degree dependent on the profound quality of the general public which changes with the changing patterns of the general public. What is moral for one society may not be moral for others. While Lord Simon has opined that morality and decency are not synonyms, the term morality may refer to the standards of the society whereas the term decency may refer to morality which is somewhat common in all the societies and in this way, the latter term is somewhat wider than the former. f) Contempt of Court- Any act which brings a court or a judge to contempt or lowers their authority is a contempt of court. It is preciously defined under Section 251 of the Contempt of Courts Act 1971. Sometimes it happens that a proceeding is pending before a court and the producer of the film makes a film on
50BalrajPuri, ‘Sovereignty, Territorial Integrity and Right of Self-Determination’ (Economical And Political Weekly, 27 January 2001)
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the ongoing case wherein the producer comes to a conclusion and portrays the equivalent in his film, and this thing might go under the disdain of court.52 g) Defamation- Publication of a statement with an intention to lower the image of another person in front of right-thinking members of the society results in the act of defamation. Several instances of defamation have been seen widely in the films which are made in order to lower one's reputation in order to gain popularity. Civil defamation was also filed against the movie 'Newton' on the grounds that the movie allegedly portrayed the Central Reserve Police Force (CRPF).53 h) Incitement to an offence- It may also be defined as an ‘abetment towards crime’ which is regarded as bad in law. Certain films depict an act which hinders the public order thereby making such public no less than an angry mob, therefore, to stop such incitement the Constitution pertain to reasonable restriction through Article 19 (2). Provided that, such incitement is related to the public order and the security of the state therefore, both the rationale should be present or else it may not come under the ambit of incitement. Moreover, the Supreme Court in K.A. Abbas v. Union of India54 instructed to adopt and apply the test of obscenity laid down in the case of RanjitUdeshi v. State of Maharashtra55 and said that the guidelines promulgated in the latter case should be followed since there is a wider ambit of adjudging the censorship.
Henceforth, it can be inferred that the censorship can be validly made provided the grounds mentioned under Article 19(2) and Section 5B (1)56 which are more or less similar. Moreover, there should be reasonability in censorship, for instance in the case of Sree Raghvendra Films v. Government of Andhra Pradesh57 the showcasing of a particular film in Telugu was suspended on the grounds of Section 8(1) of the Andhra Pradesh Cinemas Regulation Act, 1955 though the film was certified by the Censor Board still, the court quashed the order on the grounds of its arbitrariness soon after discovering that the authorities who passed the impugned order themselves had not seen the movie.
52Rituj Chopra, ‘The Concept of the Contempt of Court’ (Legal Services India) http://www.legalserviceindia.com/article/l255-Contempt-of-Court.html accessed on 9 November 2020 53‘Defamation Cases Filed Against Makers Of 'Newton' (Ndtv, 7 February 2018)
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The question with regards to the movie named ‘Aakrosh’ before the Supreme Court in the case of Ramesh Pimple v. CBFC58 was raised wherein the FCAT (Film Certification Appellate Tribunal) declined to give the certificate by contending that the film depicts an only one-sided version of a particular community which may provoke communal angle while on the appeal before the Division Bench of the Bombay High Court the court observed that one should not forget the present state of things as it is the consequences of the past and it is natural to inquire as to the sources of the good we enjoy or for the evils we suffer.
The process of certification of the films as per the Cinematograph (Certification) Rules, 1983 are as follows:-
❖ Firstly, a film has to be submitted to the regional office wherein the film is divided on the basis of its timing version, for instance, a 70 minutes film will come under the ambit of videos category thereafter the requisite fees have to be submitted. ❖ Secondly, the films are examined and classified by respective supervision inspectors and the preview process will take around 8-15 days and the report is transferred to the chairman. ❖ Thirdly, the chairman reports the status to the producer within 14 days and asks the producer to submit the film in front of CBFC within 14 days and after that CBFC issues a censorship certificate within next 5 days. These stated time limits are prescribed under Rule 4159 of the Cinematograph rules.
It is now clear that censorship can be done to the web series as well, as it is in cognizance with the movies provided that such censorship is done on the grounds that are specified under Article 19(2).
CENSORSHIP IN DIFFERENT COUNTRIES: A COMPARISON
Internet, the word that is familiar to almost everyone. In today’s scenario, it is used by everyone whether you are a student or a professional, you require internet for conducting your day to day activities. In simple words, it has become a necessity in today's life and
58 Ramesh Pimple v. CBFC (2004)5 BOM CR 214 59 The Cinematograph Rules
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Internet Censorship is a global term and used by almost every country of the world to regulate the content flowing through the medium of the internet within its boundaries. It is an issue that concerns both to net users as well as to governments.61
Different countries use different policies to regulate and control the content flowing on the internet. This section provides an overall analysis of these policies.
Need to regulate the Internet
Before talking about the policies of different nations, one must understand the need to regulate the internet. There are various types of fears because of which an urgent need to regulate the Internet arises in the mind of Government. Some of them are listed below:
1. “Protection of minors (abusive forms of marketing, pornography, violence) 2. National Security (instructions on illegal drug production, bomb-making, terrorist activities) 3. Protection of human dignity (incitement to racial discrimination or racial hatred) 4. Information Security (Hacking) 5. Economic Security (instructions on pirating credit cards) 6. Protection of privacy (electronic harassment, unauthorized communication of personal data) 7. Intellectual Property (unauthorized distribution of copyrighted works, music or software) 8. Protection of reputation (unlawful comparative advertising)”62
Analysis of Censorship patterns of various countries
60 ‘How the Internet Has Changed Everyday Life’ (Open Mind Bbva)
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1. FRANCE – In France, network access is accessible to 82.6 percent of families. The portion of fixed‐broadband memberships lies at 41.3 percent and 74.7 percent for the versatile broadband memberships with a high overall Internet penetration rate of 84.7 percent. And to regulate this, France is trying to implement a new policy mechanism named as Minitel.63 This mechanism will be regulated by the CST (le CounsellSuperieur de la Telematique). The function of this body is to guarantee that the substance supplier submits to the agreement endorsed with France Telecom, yet presently, the legitimate position is questionable in the country as the segment of the French law that made the policing component was proclaimed illegal by the French Counsel Constitutionnel on account of its vagueness. France is new to the field of Censorship and the methods used by it are also more liberal than many other nations.64
2. USA – The laws for regulating Internet in the USA are not so harsh. All regulated communication in the nation is controlled by the Federal Communications Commission. It has minimal content regulations. This is because of the free speech principle expressed in the First Amendment but, one thing is notable that the USA is a country with the most sophisticated laws for regulating the Internet within its boundaries. The laws are of such broad definitions that it can capture the internet even without any amendment.
These countries represent the group of nations which use very liberal laws to regulate Internet Censorship. Western countries primarily form a part of this group and it is the only reason because of which one can easily find pornography or abusive words in the movies produced in these countries.
However, there is one other group of nations as well which use very harsh laws to regulate the content flowing within its boundaries. Some members of this list include:
63 Julien Mailland, ‘Minitel, the Open Network Before the Internet’ (The Atlantic, 16 JUNE)
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1. CHINA – China is a country with widespread internet access, but the system of censorship in the nation is one of the most extensive and advanced one. It blocks many websites such as Facebook, Twitter, YouTube and Wikipedia. China uses its websites (such as WeChat, YoukuTudou, and Baidu) as an alternative option of these foreign platforms. These websites are pressured to restrict content which hampers the flow of important information. Most censored taboo topics in China includes pornography, the Dalai Lama, freedom of speech and much more. Chinese authorities also monitor the internet access of their citizens.65
2. TURKEY – 69.5 per cent of households in Turkey have Internet access, which is an average level in comparison to other countries but, the share of fixed‐ broadband subscriptions of residents is 12.4 per cent which is very low. However, 50.9 per cent of Turkish inhabitants have portable broadband memberships. The normal generally speaking Internet infiltration rate was 53.7 percent in the year 2015. This country has a history of putting restrictions on freedom of speech and expressions. Internet in Turkey remained free until 2005. In the year 2006, online child abuse material brought the problem of unregulated online content in front of the nation and because of this in 2007, law 5651 on the “Regulation of Publications on the Internet and Suppression of Crimes Committed on such Publications” was introduced. This law allowed the nation to block access to websites filter content, and establish criminal liability for persons posting unlawful content online. Social networking sites such as YouTube and, alternate news sites have been regularly blocked since 2007 because of posting unlawful content.66
3. NORTH KOREA – North Korea is the country that offers the most limited access of the internet to its citizens. This access is limited to the elite class and
65 Paul Bischoff, ‘Which Countries Have the Strictest Internet Censorship?’ (Readwrite 1 Jul 2019),
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specific institutions. Majority of the citizens of the nation now possess mobile phones, but most of them aren't connected to the internet. Many of them are limited to Kwangmyong (national intranet). This intranet provides access between libraries, government departments, universities, and a few locally hosted websites. All domestic newspapers, radio and television are also controlled by the government. 67
India is not a part of both of these groups. It is a member of a 3rd group which use moderate laws to regulate the content available on the internet. The members of this group do not use very liberal laws to regulate censorship, nor do they use harsh laws to regulate it. They provide freedom, but not absolute one.
Key factors in Internet Censorship
1. National Identity – National Identity is a key factor in determining what topics trigger censorship activities. This characterizes the base on which the administering class can present restriction measures. 2. Ruling System – The form of Government also plays an important role in the extent of Internet Censorship. Like in countries with strong oppositions, it is very difficult for a nation to introduce a new law for censorship. 3. Institutional Setup – Institutional Setup of a nation reflects the ruling system. In countries where the strong separation of power is in place, check and balances are valued on every level which allow a regulated Internet Censorship in the nation. 4. Technical Ability – Technological advancement plays an important role in controlling online content. A higher degree of domestic technological savvy allows a censorship system that is less dependent on foreign technology.
Censorship - an over-focused topic
Several contentions of the producers against censorships are as follows-
67VasilisVerveris et al., ‘Cross-Country Comparison of Internet Censorship: A Literature Review’ (Research Gate, July 2019)
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(1) The true meaning of Democracy- A democratic country like India enjoys the wider aspect of free speech and curbing the same would amount to the destruction of the true meaning of the democracy, after all it has been rightly said that 'democracy is for the people, of the people, by the people' (2) Adaptive nature- One of the significant aspects to boycott Censorship is its impacting nature wherein the maker causes a few scenes just to cause the crowd to feel this present reality which starts a trend that ought not to be finished. (3) Artistic nature- A film or a web series is truly artistic and curbing the same will infringe one's expression which will undermine Article 19(1) of the constitution. Farah Khan, an Indian film director once said that she doesn't believe in censorship at all while, she battled to simply give a declaration to the film and rate it based on limited age, for instance, 16+ or 18+, rest the watcher can pass judgment on themselves.68 (4) Different Psychology- As stated earlier that the process of movies certification is done by the CBFC which consist of several board members who have different thinking ability. For instance, according to one board member the depicted scene should be censored while the other board member the same should not be censored, this made divergence with regards to what one needs to look truly for making such oversight has not been explicitly characterized. (5) Destruction of creativity- Creativity which is a fundamental aspect of a film gets covered up soon after the introduction of censorship and in order to truly express one's ideas and themes, Censorship should be done away with. (6) Prior contract- There should be a prior contract between the producer and audience that a movie has some explicit and nude contents and the showcasing of such film will be on the audience discretion to which later on, the contracting party cannot claim that the scene was obscene.
CRITICAL ANALYSIS THROUGH SURVEY
68 ‘Don't Need A 'Censor Board' For Digital Shows And Films, Say Celebs’ (NDTV) < https://www.ndtv.com/entertainment/dont-need-a-censor-board-for-digital-shows-and-films-say-celebs- 2046395> accessed on 16 January 2021
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Censorship is indeed an uncertain thing, the censored scenes may work for one but not for others. For instance, in France showing nudity on screen is not something to be worried about but gangster films are considered unsuitable for the public, on the other hand, in the US, gangster films are a popular genre but nudity is often censored. The point is that different people have different thinking and to fit an authority to censor scenes from online media with the changing generation is not a walk in the park.
The Survey that we conducted asking regular web series viewers showed that the reach of web series is so high where Sacred Games, PataalLok and Mirzapur are the web series that have most viewers. When asked about their taste in web series, the responses revealed that web series are being watched because their content is different from traditional TV, there are more practical, relatable, religious and communal ideas attached to it. When asked about what scenes they have come across while watching web series, it was revealed that use of abusive language, alcohol and drugs and 18+ scenes are the most-watched scenes in web series. 31% of the responses accepted that web series harm the mentality and reasoning capability of the young generation, 22% denied and 47% were not sure about this. When asked about their opinion in the censoring of web series, 35% wanted web series to be censored and 65% of the responses denied the same.
According to the authors, censoring of web series is important as such scenes may provoke disturbance in the country and the future of the nation may get an effect. The authors also agree that strict censorship is not the answer but completely letting the producers showing anything should be restricted.
CONCLUSION
'Censorship' seems like a tortuous word which is broad enough to have the potential to form a whole new subject. It plays a vital role in achieving the welfare of a society by maintaining its decency. The term decency is also broad enough as what may be decent for one may be indecent for another. Moreover, the Indian society which is said to be a reel life society is an interplay of both censorship and decency. The society in which every other person is either
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In India, people of all age group, especially the youth of present generation takes inspiration from the actor who is conferred with the lead role. The viewers in no time classify them as their ideal and this can be confirmed by changing pattern of fashion in our society which solely depends on them.
This idealness gave birth to a need of the Censorship in movies as well and the result of this need was the formation of India's Censor-Board by the British in 1920. The Cinematography Act, 1956 which was formed by the Independent India was going smoothly until the introduction of Web Series. The introduction of Web Series completely changed the mind-set of the viewers and the main reason for this change was the absence of any authority to check its decency. Almost everything which is shown in web series is shown without any restriction, be it nudity or use of strong language, one can easily find these elements in a web series.
The youth which was earlier inspiring from the Cinema is now shifting towards the web- series and because of this, there emerges an urgent need of a statutory authority to put some restrain on this form of entertainment and maintain a level of decency in the society as the Cinematography Act, 1956 is restricted to the movies only.
Moreover, Article 19(1)(a) which was allowing the production of movies and web-series in this holy land, came before this stride. According to some of the web-series supporters, Article 19 plays an important role in this controversy, it supports their action of showing adult content without any restriction. However, this argument is a flawed one. Article 19(2) allows the state to impose reasonable restrictions on the exercise of the right to speech and expression in the interest of sovereignty and integrity of India, the security of states, friendly relations with foreign states, public order, decency and morality or in relation to contempt of court, defamation or incitement of an offence. This matter directly falls under the purview of 'decency' mentioned in above-said sub-section. According to critics, by showing pornography and other adult content, web-series are polluting the decency of the nation and because of this the role of an authority to check these types of content comes in the picture.
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The need of statutory authority for controlling web-series is one of the most urgent needs of the present time and the Government of the nation must try to give some more importance to this issue because the decency of the nation must be preserved in all circumstances. The only thing which can be done in a span of short time is the enactment of a censor board for the web series by referring to the Cinematography Act, 1956.
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