Freedom, Censorship and Streaming.

 

1. INTRODUCTION.

Freedom has always been a hot topic debate since civilisation. There have always been elements that restricted freedom. Freedoms are of different types. It can be freedom of movement, freedom of choice, freedom to stand up and speak, freedom to defend yourselves, freedom to criticise etc. Here we will be talking about Freedom of Speech and Expression. This part of freedom is the most discussed and debated freedom across the world in this era. It has its own pros and cons and the State always has to strike a balance. This blog is intended to discuss various connected topics from freedom of speech and expression to censorship and then to streaming. In this blog, I intend to create a timeline from the time when freedom and information were gained through books and print media and then to movies in theatres and then media content available on the internet. I would be also analyzing the need for the law to evolve faster to create a legal space to understand the new media models in the land. I started off with the freedom of speech and expression, its reasonable restrictions and how it is a key point in the streaming world. I have also included the sub-topic obscenity in it since media and censorship is been discussed. There are multiple examples quoted to understand the moving and evolving idea of obscenity. The reasons for censoring and banning some movies for the public exhibition have also been included. The blog also looks into legality and judicial aspects separately to get a better understanding of enacted laws and judicial interpretations.

This blog includes opinions but there has no space intended for any suggestions. 

I hope, this blog would serve the purpose and is suitable enough to show justice to the topic.

2. FREEDOM OF SPEECH AND EXPRESSION

The Freedom of Speech and Expression is a fundamental right under the Constitution of India. As per Art. 19 (1) (a) “All citizens shall have the right to freedom of speech and expression”. This is a fundamental right guaranteed by the Constitution to its citizens. But this right is not an absolute right available to citizens. As per Art. 19 (2) the State can impose reasonable restrictions on this right. But these restrictions are only reasonable if it is in the interests of the state’s security, integrity, sovereignty, public order, decency, morality, contempt of court, incitement of an offence and defamation. 

Art is a form of expression and hence movies, songs, stories, novels etc. come under this category. The restrictions imposed under Art. 19 (2) is applicable to these forms of art as well. Cinema is not separated from Press in the Constitution. Expression through any manner is included under Art. 19.

Here we will be discussing more on movies and their censorship with respect to the freedom of expression available under Art. 19 (1). Since the concept of speech and expression has evolved with the various inventions and technologies, hence electronic and broadcast media has also found a place inside this right. The Supreme Court has said that the citizens of India have the right to exhibit films on the State Channel and it is a part of their fundamental right. In this instant case, a series called  “Honi Anhonion”’s exhibition was challenged on the grounds that it encouraged superstitious and blind faith amongst the audience. The petition was dismissed as it was unproved that it causes any prejudice to the public.

3. OBSCENITY IN MOVIES

Obscenity has been the most debated issue over and again during the censorship of a movie. There is no clear universal definition of obscenity to date. But let us take what Oxford has defined. According to the Oxford dictionary, Obscenity is something that is “offensive or disgusting by the accepted standard of morality and decency”. Whatever is considered obscene in one region or to one community may be normal to another region or community. Definition of obscenity even differs from one person to another. In movies, a portrayal of some scenes was considered obscene is now normal, hence we can safely conclude that obscenity changes from time to time. 10 years from now, there won’t be a concept of obscenity to some people or it can all go in a reverse direction, where people find innuendos with all actions. 

Legally, in our country obscenity is treated as an offence under S. 292 of the IPC. Since this legislation is centuries old, the title does not include movies or other digital forms of art. The provision prohibits sale, hiring, distribution, public exhibition, circulation, production etc. of books, pamphlets, drawing, painting, representation, figure or any other obscene material or if anyone import, export, or convey any obscene material for these purposes or receives any profit out of it and advertise the same shall be punished two years in first conviction and five years in a second conviction. Since movies are representations or figures of some sort, it technically applies to them as well. Even though there is such a prohibition, there are exceptions to it. 

Judicially, there are lots of tests to consider a thing or a piece of work as obscene. Many of these tests originated from the United States of America and has been adopted by the Indian judiciary. I would introduce two of these US tests here. One is the Miller test and another is the Roth test. Miller test is a three-prong test. Justice Warren Burger has outlined these guidelines in his majority opinion.

These are:

1) whether an average person applying contemporary community standards would find the work, taken as a whole, appeals to the prurient interest,

2) whether the work depicts or describes in a patently offensive way, sexual conduct specifically defined by the applicable state law,

3) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value. It shall be noted that this test was outlined in the year 1973. 

Roth Test on the other hand contains 5 components to it. The court has to look into these five components whie deciding on obscenity. One is the perspective of the evaluation was that of an ordinary reasonable person, second community standards of acceptability were to be used to measure obscenity, third, works those predominant themes were questionable were the only target of obscenity law, fourth a work, in order to be evaluated for obscenity, had to be taken in its entirety and fifth, an obscene work was one that aimed to excited individuals’ prurient interest. This test was formed in the year 1957, hence making it older than the Miller test. Even though the SCOTUS has repeatedly grappled with problematic elements of the Miller Test, the Indian Judiciary still actively uses this age-old test to identify obscenity in this new era. 

This points to the need to form a new set of standard guidelines for understanding the obscenity of a work. Although art is a unique form of expression and the law cannot include all the uniqueness into its provisions, the need for a guideline is increasing day by day. 

Obscenity is a major component in censorship and thus affects the freedom of expression. Hence it is important to understand the way in which our judiciary could look into the matter which ultimately affects the fundamental right. 

4. CENSORSHIP.

As per the Central Board of Film Certification, “India has a free press and the same freedom applies to cinema, which is free enterprise and outside the control of Government except for the Films Division and the Doordarshan, which are aimed at educating and informing the public while entertaining them. The press in India is free of any control when compared to other countries of the world, and the same applies to cinema.” 

Board of Fim Certification is a statutory body under the Cinematograph Act, 1952. S. 3 of the Act says that the Central Government for the purpose of sanctioning films of the public exhibition can constitute a Board. For this purpose, Central Government created the Central Board of Film Certification. 

Banning a movie, or censoring a film is always in news. Most of these bans and censorship is because of obscenity, nudity, and matters related to the political integrity of the nation. Let us take an example of a movie that won awards at the Athens international film festival and Oaxaca Film fest of Mexico but got banned by the CBFC. The issue stated by the Board was that it contained shots related to LGBTQIA+ community and there are  scenes which criticise M. K. Gandhi. The movie was a progressive one, which showed existence of a homosexual relationship and how this is normal. It also showed how scheduled tribes in the country are neglected and denied justice. Similarly movies, like ‘Gokul Shankar’, which portrayed psychological motivations of Nathuram Godse, ‘Garam Hawa’, which showed issues of a Muslim family during partition of India and Pakistan, ‘The Pink Mirror’, for portraying trans-sexuality, an academy award nomiee, ‘Water’ in the 2005 was banned for showing the life of a woman, ‘Sins’ for showing dark side of christian kerala priest and charms of woman inside the walls, ‘Inshallah, Football’ for portraying aspirations of a Kashmiri boy to become a football player and more uncountable ones like ‘Aandhi’, ‘Sikkim’, ‘Khak aur Khoon’, ‘Pati Parameshwar’ etc. were banned or/and censored in India. 

The most provoking point is reasonable restrictions under Art. 19 (2) is that the provision does not check whether there is any truth in the information which is said to cause disturbance integrity or sovereignty or decency or morality. The movies which portray controversies may be true and the censor board never take that into account. Whether the information stated is true or false is not in the question, if it offends anyone then the movie goes into the basket of obscenity and then send into the factory to ban and censor it for public exhibition. 

S. 4 of the Act, says about the Examination of films. As per the provision, an application shall be made tp the Board for certification. These certifications include categories like Unrestricted public exhibition, Restricted to adults, Restricted to members of any profession or any class of persons, having regard to the nature, content and theme of the movie and sometimes the Board asks to carry out excisions or modifications in the film for getting a sanction. 

The applicant is usually given an opportunity to present the matters in front of the Board before the certification. 

The public exhibition usually denotes the release of a movie in theatres. If a movie is released into a platform which the public has access, the Government is somehow responsible to make sure that none of the contents affects anyone’s feelings unnecessarily. 

The Supreme Court in 1989 said that a film certification becomes necessary because a film motivates thought and action and assures a high degree of attention and retention as compared to printed words. Movies are watched in theatres in a semi-dark atmosphere with zero disturbance from outside. The combination of visuals, actions and dialogues would easily register in human minds. Considering that there is nothing else to divert the concentration of a person who is sitting in a movie theatre, the movies played in a theatre would readily get into the heads of the people and this can possibly affect, alter or change the perspective of a person, his emotions etc. 

The fact that movies have the potential to influence human minds is no alien information. It can cultivate changes even in a fully grown matured and informed individual. Hence certification by prior restraint is not only desirable but also necessary considering the circumstances. 

5. STREAMING.

Streaming can be roughly defined as live or recorded media content available on smartphones, smart TVs, computers etc. via the internet. These include TV shows, movies, podcasts, music videos etc. 

Earlier movies, short films, and albums were only released in a particular region. In the case of movies, there will be a theatre release, in the case of albums mini-screen is the major source. But all these changed when ‘Streaming’ came into the picture. Players like Netflix, Amazon Prime, Hotsar+Disney, YouTube etc. changed the entire game itself. 

These media contents are pre-arranged and transmitted in sequential packets of data and are streamed instantaneously. Dissimilar to the traditional downloading method, these are stored on the device, but get automatically deleted once an episode is finished. 

Pertaining to Media law, the major question is can the Government of India have control over Streaming? If so, how far can restrictions be imposed?

To answer the first question, we should look into the fact that streaming allows people to watch media content all over the world. They need not have to be released in a country or have a premiere. For instance, through Netflix, a person in India can watch TV shows of American origin or British origin. There is no language barrier in streaming. A person who does not belong to France can watch French TV shows. The Supreme Court once considered whether Article 19(1)(a) of the Indian Constitution was confined to Indian territory and held that the freedom of speech and expression is not confined to national boundaries.

Hence, the standards used for censorship in one country are different from others, so then the initial question turns to another one, as to, Can the Government of India prohibit its citizens from watching media content just because they do not comply with the community standards? An affirmative answer would bring an issue with liberty and this would go beyond the reasonable restrictions under Art. 19 (2). Hence, Government cannot absolutely restrict all media content on the streaming platforms due to the origin of the country. The Indian citizens are morally entitled to watch these and they do not have any legal restrictions. The Government has now shrunk down to one option, that is, to restrain the streaming of some of these contents into the country by controlling the internet. This comes under the purview of Information Technology Law. Although the content won’t be available to the Indian consumers, technically speaking the Government could only interfere through IT laws and rules and not through Media law alone. 

The second question is how far can the government impose restrictions on online media content. Since the content is streamed through the internet it can be controlled by the same. The Government can ask the streaming services to provide different login credentials for adults, children below 16 and children below 12 to restrict access to children who is not mentally ready to understand traumatizing content. The Government can is also eligible to check on controversial topics which arise as an issue for the people. The Government shall not impose restrictions on the basis of obscenity on adults. Nudity should not be a criterion to restrict content to an adult online. 

The Government may monitor these streaming services but shall relax lots of restrictions that are normally imposed on public exhibitions. Steaming is exclusive and not absolutely a mode of public exhibition. Hence, the standards applied in those areas should not be applied here.

6. CONCLUSION

The Government of India tried many times to bring guidelines to the Streaming platforms. But these were vehemently denied and the people are also against it. Streaming, for most people, is an uncensored area where they can watch anything raw and true without the prejudice of the nation. People are getting an opportunity to look into the lives of other people from different countries, their culture, taste and their humour. Regional restrictions are no more a barrier to people and the Government shall not deny entertainment to its people just becasue our nation is less progressive and some people mishandle the situation when they get provoked. 

It is high time that India shall include people of diversity not only for their namesake but also for their truths. If that violates the so-called culture, then the culture shall change. Pseudo-culture and toxic- traditions shall end and we shall have a society where everyone is mature enough to handle things like nudity and regional differences. No State shall be allowed to ban a movie, just because it shows the meat of an animal or when someone in the movie denies the speciality of a living creature. If the nation supports it, this will grow larger over time and could cause a serious threat to the equilibrium. Soon, the State might come into a fight for mere digital representations. 

The Judiciary and the legislature shall take proactive measures to end this cycle of conservatism and shall guide citizens to look into the bigger picture and give them the picture of objectivity than subjectivity. 

I would like to conclude my blog with this opinion that judicial bans or legislature censoring won’t solve the problem, the only step needed is to let the people give more content and allow it to watch, otherwise the boundaries we have created for censorship are going to shrink over and again till a point where the walls fall upon us. Hence, it is not wise to create more restrictions, and what is essential is to broaden the arena by increasing the area under the boundaries.