The Legal Arc Volume 1 Issue 1 Articles
Maarij Ahmad is a 2nd year law student at NMIMS School of Law Mumbai, has written articles on contemporary law topics like ‘Cybercrimes and Role of Punishment’.
Censorship is the act of subduing variety of content to a form which is very comprehensive and acceptable by eliminating the parts or acts whose acceptance is debatable or which could cause distress. It is necessary to have censorship in media and movies, but to what extent? Freedom of Speech and Expression have reasonable restrictions imposed on them, but the need of these restrictions is much criticized as it limits the creativity an artist displays.
Online content, which is not under any regulatory body and free of these restrictions, still opts for self-censorship, because of the fear of acceptance by the public in India, which is very much attached to their culture. But the OTT platforms can still offer content which is censored if present in a movie, which must usually be restricted by the CBFC offline, which is indirectly under government control.
The online digital platforms give artists a stage for creativity with little to no boundaries, where they can give or provide the audience with shows, movies, plays etc., which are generally opposed by the right wing, indicating the indirect involvement of the government over censorship of movies. The platforms, to earn profits, also benefit from these controversies created against their content, which helps them gain popularity because of the controversies creating a lot of media reach.
1. Bruce Michael Boyd, ‘Film Censorship In India: A “Reasonable Restriction” On Freedom Of Speech And Expression’ 
Under Article 19, the citizens of India are given the freedom of speech and expression, not completely, but with certain restrictions. One of these is the censorship of movies by the Central Board of Film Certification, described as reasonable restrictions, but debatably. Censorship of films raises a question on democracy, modernization, privacy, and the expression of legitimate artistic expression in society. To what extent should the government dictate the artistic taste of private citizens is the main issue tackled by censorship which is done by a statutory authority under Ministry of Information and Broadcasting, Government of India.
2. Someshwar Bhowmik, ‘Politics of Film Censorship: Limits of Tolerance’ 
The drama around the resignation of the chairman of the Central Board of Film Certification has served towards focusing on the issues of film certification/censorship in India and the extent of the limit of tolerance and sensitivity associated with the current censorship standards put forth by the censorship board. Not only did the issue make this a topic of interest, but also overshadowed the subject of politically motivated film censorship, cases of which are becoming much too frequent.
3. Vinay Keshari, ‘Censorship in the age of Netflix’
India’s censorship started in 1952 through the Cinematographic Act for the movies to obtain certificates before public exhibition. It does not apply to the online movie streaming services, viz. Netflix, Amazon Prime, Hotstar etc. However, these streaming services voluntarily upload only censored versions of content with the certificate, though there are some series which are opposed by many for some scenes which according to the (opposers) is against the local culture.
4. Meghna Mandavia, ‘Netflix, Amazon explore voluntary censorship’
OTT platforms, which are uniquely unregulated, adopting voluntary censorship is expected to receive backlash from artistes, activists, and audiences. But the extreme intolerance has made the companies more worried about causing distress to religious organizations or representatives, by hurting their sentiments, criticizing Indian culture, demeaning women, defaming personalities, and obscenity. These could possibly lead to court battles, trolling or making fun on social media, and violence.
5. Suneet Katarki et al., ‘Censorship: The Current Regulatory Framework And The Future Of Digital Content’
It will not be right to conclude that OTT platforms are unregulated or free from any form of censorship solely on the grounds that there is no regulating body specially setting out the manner of censorship or certification of online content, or any guidelines or do’s and don’ts for online content creators. With reference to the IT Act, the purpose of which is to make sure that sexually explicit and obscene scenes or content are not published online, its extension and applicability to OTT media platforms is also, or can be considered by many, as a form of censorship.
Censorship is the subduing of speech, public statement, or other information, due to such things in common aspect being considered objectionable, damaging, sensitive, or inconvenient. It is practiced by governments, private institutions, and corporations.
Governments or private organisations may engage in censorship; while other groups and/or institutions may propose and petition for censorship. When an individual such as an author or content creator engages in censorship of their own work, it is known as self-censorship. It can be done in various media including books, films, speech, other arts, and the internet over various reasons namely, national security, obscenity, child pornography, hate speeches, protection of children or other vulnerable groups, restriction of religious or political views, and also prevention of slander and libel.
For censoring movies in India, a statutory body named Censor Board of Film Certification (CBFC) has the authority to censor movies by cutting inappropriate scenes, by the power vested in it by the Ministry of Information and Broadcasting, which is an agency falling under the jurisdiction of Republic of India. Its duty is “to regulate the public showing of films under the provisions of Cinematographic Act, 1952.”
The Indian Cinematographic Act was passed and came into effect in 1920, though the first movie was released in 1913. Censor Boards were placed under police chiefs in major cities. After independence, the regional autonomy of censors in regional areas was abolished and they were taken under the Bombay Board of Film Censors.
The fundamental principles of CBFC are that the film must be:
- judged thoroughly from the point of view of its overall impact;
- examined in the manner of period depicted in the films and the contemporary standards of the country and the people to which the film is relating, provided that the film is not affecting the morality of the audience;
- not provocative, vulgar, offensive, or violates any of the “guidelines for the certification”.
CBFC certifies films under four categories, namely:
- U (unrestricted public exhibition) – These films contains universal themes that are family friendly like education, sci-fi, comedy, family, drama, romance, action etc.
- U/A (children below the age of 12 years requires parental guidance) – These films can contain moderate to strong violence, moderate erotic scenes, frightening scenes, muted abuse or foul language.
- A (restricted to adults) – These films may contain brutally strong violence acts, sex acts without showing of full frontal and rear nudity, strong abusive language, and sometimes even controversial and adult themes considered not suitable for all viewers.
- S (restricted to special class of persons) – Films are not to be watched in public, but by those only who are associated with the field or have permission to watch.
- Refusal to Certify – Another certification or no certification is when the board disallows to certify a particular film at all.
Guidelines for Certification
- Activities which are not social and are causing distress such as violence may not be shown or accepted
- The way an act or crime was done by criminals, and words or visuals likely to incite the commission of act
- Materials including child abuse, abuse against handicapped people, and or unnecessary killing or causing harm to animals
- Scenes justifying consumption of alcohol
- Scenes justifying, glamorizing consumption of drugs
- Scenes encouraging or promoting consumption of tobacco
- Human sentiment getting hurt by obscenity, nudity, etc.
- Scenes showing cruelty against women or degrading women
- Scenes showing violence like rape, torture, etc.
- Scenes showing sexual perversions shall be avoided to minimum
- Visuals or words contemporary to any race which is offending, i.e. racism
- Sovereignty or integrity of India should not be questioned
- Security of state must not be put in danger
- Public order must not be endangered
There are many more guidelines which should be honoured and not jeopardized by the depiction of any such movie or scenes in a particular movie.
Censorship in OTT Platforms
The video streaming services play it safe by self-censorship, which is what most sensible companies do. The Cinematographic Act is not applicable to the online streaming services, implying that there is no need for a movie to get a certificate from CBFC if it is released on any streaming service like Amazon Prime, Netflix, Hotstar etc. Though in practice, the platforms voluntarily upload the censored copy of the film, pre-rolling with the censorship certificate provided by the CBFC. Original shows of theirs are often self-censored, with Netflix also being affected by this phenomenon.
With the rising popularity of these streaming services and demand for online content compared to televised content and movies, the Ministry of Information and Broadcasting (MIB) set up a committee to look into online censorship by providing a regulatory framework for the online content provide by the OTTs, that includes online media, news portals and infotainment sites.
Further, there have also been talks to bring online content within the scope or control of the Indecent Representation of Women Act 1986, which stops indecent representation of women in books, paintings, writings and advertisements.
Since, certain OTT content providers have adopted self-censorship by way of voluntary code of online content in matters relating to language, sex, religion and violence. They have also begun practicing display of censorship certificates before a movie, providing disclaimers in scenes where there is consumption of alcohol or tobacco, and giving details for the discretion of user on the basis of age and nature of the content.
The need for this voluntary censorship exists because of various factors such as suiting regional and local cultures of India, avoiding legal problems arising from offensive content, and also pre-empting any kind of regulations which can curb the creative aspect enjoyed by the online content creators.
The OTT platforms not having any regulatory body helps them offer a variety of content, some of which is against the guidelines of CBFC, like nudity, constant use of abusive language, drug abuse, drinking, and smoking all displayed in ‘Sacred Games’, which received a lot of criticism because of these acts but still was a great success, often regarded as one of the best web series of the nation. The show went on to have a sequel, the next season showing some other scenes which were not acceptable to a particular audience.
Another Netflix original named ‘Ghoul’ was a little under the hood, but was criticised because of the plot it carried and critiquing the current socio-political state of the nation. It also displayed the reality which now people are facing with respect to Islamophobia.
Another Netflix original series which caused huge controversies in the media was ‘Leila’, a series set in a dystopia in the near future, which shows the lynching of a Muslim man, life of single women, caste differences, religious differences, and a hint at the future and what it may hold for us. Often it is considered as a show demeaning the ruling party as it shows the leader of Aryavarta having an authoritarian style of leadership, similar in many aspects to the current leadership in India. The show received a lot of hate before its release, just through its trailer, getting hate comments and being dubbed ‘Hindu-Phobic’. It created a lot of controversy after its release when demands for shutting down of Netflix were made on the basis of it opposing the right wing in ‘Ghoul’ and ‘Leila’. The act of hiding books of literary accomplishment and poems etc., shows how the current generation is missing out on the real works of art, rather enjoying useless media coverage. This negligence may be one of the causes of us leaning towards the nation as depicted in the series, deprived of our fundamental rights.
Generally online content, as it stands today, is free of regulations with the creators enjoying their creativity to the fullest. However, it isn’t right to conclude that OTT platforms are completely unregulated or free from censorship, solely on the fact that it does not have any regulatory framework specifically designed for setting up censorship and certification like CBFC. In terms of the IT Act, to ensure that sexually explicit or obscene scenes are not published online, these provisions when extended to OTT platforms, can be argued to be a form of censorship.
It may be a challenge to OTT platforms and content creators to segment the audience regarding the explicit scenes, given their varied audience, and the subject of morality. It also raises the question of treatment of films that are censored and shown in halls. Certification and censorship on the display of such films on these platforms, i.e. self-regulating is to be done by these creators to avoid the legal issues or public distress.
There is a mixed trend in India relating to censorship of online content and films by the stakeholders and the general public, where one side argues for freedom of speech and expression, and one side petitions for censorship of online content and removal of content that violates sentiments, or sensibility of others.
The idea of censorship is in good spirit, but because of it the creativity of the creative minds which flow without restriction should not be hampered or subdued by regulatory bodies. Also, the involvement of the government in these commissions makes it very biased, like the CBFC being dominated by right-wing ideology. The OTT platform being free from regulations is one of the great reasons for it to flourish in society as people can have original things to watch and not some censored watered-down versions. They can also view serious things which the society is very hesitant to talk about. OTT platforms are well off without any regulating body and enjoying the option of self-regulation.
 Bruce Michael Boyd, Film Censorship In India: A “Reasonable Restriction” On Freedom Of Speech And Expression, 14(4)Journal of Indian Law Institute 501.
 Someshwar Bhownik, Politics of Film Censorship: Limits of Tolerance, 37(34) Economic and Political Weekly 3574.
 RTI application dated October 25, 2016, received online vide registration number MOIAB/R/2016/50541 and MIB’s response dated December 2, 2016.