Its high time to regulate the unregulated, uncertified, sexually explicit, pornographic, vulgar, profane and legally restricted contents broadcasted on the online platforms including (but not limited to) Netflix, Amazon etc., by framing legal provisions/guidelines under The Cinematographic Act, 1952[i] in order to regulate the said online platforms and contents broadcasted on the online platforms, and; give effective remedy.
ISSUE OF FUNDAMENTAL RIGHTS & LIMITATIONS
The sources of entertainment such as movies, press, social media are provided with the Constitutional validity under Article 19(1)(a)[ii] that states the freedom of speech and expression for all the citizens within the country. However there are limitations to this fundamental right in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence under Article 19(2) The censorship process, intra vires to the provisions of the restrictions provided under Article 19(2), are valid in consonance to the doctrine of rule of law.
LEGAL SAFEGUARDS & CHALLENGES
The online streaming platforms are broadcasting content which is self-generated and also stream third party content in form of Internet/Web-series, movies, videos, episodes etc. and the said streaming is not regulated; thereby giving them a virtual license to stream web-series, movies, videos and episodes without any certification by any certifying authority, not regulated by law and devoid of any guidelines by the Courts. The only legal safeguard is under Section 69A[iii] of IT Act : Power to issue directions for blocking for public access of any information through any computer resource. –
(1) Where the Central Government or any of its officer specially authorised by it in this behalf is satisfied that it is necessary or expedient so to do, in the interest of sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above, it may subject to the provisions of sub-section (2) for reasons to be recorded in writing, by order, direct any agency of the Government or intermediary to block for access by the public or cause to be blocked for access by the public any information generated, transmitted, received, stored or hosted in any computer resource.
(2) The procedure and safeguards subject to which such blocking for access by the public may be carried out, shall be such as may be prescribed.
(3) The intermediary who fails to comply with the direction issued under sub-section (1) shall be punished with an imprisonment for a term which may extend to seven years and shall also be liable to fine.
There have been no efforts made to regulate such online platforms or to remove such legally restricted content to put an end to the problem and thus, such platforms virtually get another opportunity to perpetuate the illegality.
THE CASE OF GUNJAN SAXENA: THE KARGIL GIRL
Gunjan Saxena: The Kargil Girl, starring Janhvi Kapoor in the titular role, revolves around the life of the Indian Air Force pilot Gunjan Saxena and has patriotic undertones. It has been produced by Karan Johar’s Dharma Productions. Due to the COVID-19 pandemic, the film was unable to release theatrically and was picked up for distribution by Netflix. It was released globally on 12 August 2020[iv]on Netflix and thereby avoided the clutches of Censorship Board.
In contrary to what film portrays Gunjan Saxena’s batchmate Srreevidya Rajan says makers of Netflix film ‘have twisted facts for Gunjan Saxena’s for the sake of publicity’.
Below is the transcript of Gunajan Saxena’s course mate Sreevidya Rajan [v] :
Sreevidya Rajan claims that they were never subjected to any humiliation as depicted in the Netflix film. Sreevidya points out that she was the first female pilot sent out with her male counterparts when the Kargil War began. “The heroic acts of the protagonist portrayed in the climax never actually happened and may have been shown as part of cinematic licence,”
Sreevidya also writes that the makers of the film have “have twisted the facts given by Gunjan for the sake of publicity.” She points that Saxena has many achievements under the belt, which Gunjan Saxena sidesteps and instead shows her character as “a weak and oppressed victim.”
Sreevidya further writes “We probably were given this fame because of our gender which I do not support. In defence services, there is no disparity between male or female. We are all officers in uniform,”
The IAF has sent a note stating their disappointment to producers Dharma Productions, the Central Board of Film Certification (CBFC) and Netflix[vi]
It is important to note that in general, an overwhelming majority of Indians support some form of content censorship. According to YouGuv ( British international Internet-based market research and data analytics firm, headquartered in the UK), over 59% of Indians also feel that OTT Platforms in the country have a lot of offensive content which is unsuitable for public viewing. Moreover 47% find it uncomfortable to watch some content around family.[vii]
A cinematograph is an art form that is used to express emotions and thoughts. It is protected under freedom of speech and expression until a reasonable restriction is placed on its enjoyment under the provisions of Article 19(2). The said online platforms are not regulated due to lack of legislation, guidelines or provisions of laws specifically dealing with such content on the said online platforms. There’s no merit in giving such platforms a leeway to not comply with established legal procedure and provisions of relevant laws under The Cinematographic Act, 1952 in order to broadcast content on its streaming platform. The Union government, considering a larger public interest, must find a solution within the four corners of the law.
[i] The Cinemograph Act, 1952
[ii] Article 19 in The Constitution of India
[iii] Section 69A in The Information Technology Act, 2000