[The Viewpoint] There can be no undue reins on Artistic Freedom

Artistic freedom of creators has been a topic of debate and litigation for quite some time now. Whether it is for books, movies, or television programs, there is a constant struggle to ensure that there is a balance between artistic freedom and reasonable restrictions.

With a few exceptions though, mostly these kinds of cases have been decided in favor of the artists, with the view taken by Courts that, there should be no unduly reins on artistic freedom. We have discussed few such decisions given by the Indian Courts from time to time in this article.

Recently, vide a common judgment arising out of three quashing petitions, a Single Bench of the Delhi High Court, refused to grant any relief to the Petitioners, who were the executives of the OTT platform TVF, lead actors, script writers and casting directors of the show ‘College Romance’, since the show used obscene, profane and vulgar language. 

Brief Facts of the Case

The case arises out of a police complaint filed against the web series which was streaming on TVF, for containing vulgar and obscene material, and depicting women in an indecent form. Specifically, Episode 5 of the show, which is not only broadcasted without any disclaimer about its harsh language but is also available on YouTube for free.

Taking cognizance of the said complaint, the Ld. ACMM, Rohini Court vide order dated September 17, 2019 held that offences under Sections 292/294 of IPC, and Sections 67/67A of the IT Act, are prima-facie made out and directed the concerned SHO to register a FIR. The said order was thereafter modified by the Ld. ASJ on Revision, on the ground that the content is only confined to digital media, hence Sections 292/294 IPC cannot exist together with Section 67A of the IT Act, and FIR was directed to be registered only under Sections 67/67A of IT Act.

Seeking quashing of both these orders, the Petitioners approached the Delhi High Court.

Decision of the Delhi High Court applying ‘Community Standard Test’       

The judgment inter-alia considered the legality of the orders passed, but mainly was concerned with the degree and extent of explicit words being used vis-à-vis the set-up of the program and its viewers. The Court applied the test of an ordinary common man and not a hyper sensitive person, and was of the view that, if language of this kind is used in colleges today, it will have a trickledown effect and eventually, even school children will start speaking in such manner.

Accordingly, the order of the learned ASJ was upheld.

The Hon’ble Court also drew the attention of MeitY to take steps for enforcing stricter application of its rules qua intermediaries, and make any laws/rules as deemed appropriate in its wisdom, in light of the observations of the Court in this judgment.

Conversely though, vide its judgment dated February 10, 2022, passed in a Writ petition titled Peggy Fen vs. Central Board of Film Certification, the Hon’ble Kerala High Court while faced with similar allegations against a Malayali movie named ‘Churuli’, which was available online on SonyLiv, took a different approach, and disposed of the said writ petition, which sought removal of this movie, as the language used by the characters therein was allegedly obscene, and  oppose to public order, decency and morality. The producer, director and actors of the movie as well as the Censor Board, were made Respondents in the writ.

Brief Facts of the Case

It was the case of the Petitioner that “Churuli” although could evoke a sense of curiosity and mystery in the minds of the viewer, has an overdose of foul language throughout the movie. That, the Central Board of Film Certification (CBFC) had violated its rules by permitting this movie’s release, and releasing such a movie on an OTT platform, would attract criminal liabilities under IPC.

According to the petitioner, the release of the movie on an OTT platform was also in violation of the self-regulatory rules that had been entered into and agreed upon by the 8 OTT platforms in 2019.

The CBFC, took two main defenses (a) that 'Churuli' which is being exhibited on SonyLIV is not the certified version of the film, and (b) that it has no role in regard to the films being put on OTT platforms, since they are not governed by the Cinematograph Act, 1952 and hence, would not come under the ambit of CBFC.

SonyLiv concurred with defense (b) and also stated that, exhibition of content on OTT Platforms is governed by the Information Technology Act, 2000 and Information Technology Intermediary Rules 2021, and that it would fall under the definition of “publisher of online curated content” in Rule (1)(u) of the IT Rules, 2021.

It was also contended that, the Petitioner ought to have exhausted her alternate remedy provided under Rule 3 of the 2021 Rules, and approached the grievance cell of SonyLiv. While SonyLiv conceded to the fact that, the language of the movie was strong, it took the stand that it had adhered to the guidance provided under the appendix of the IT Rules, thereby fulfilling all its obligations as an OTT platform.

Decision of the Kerala High Court

• Interim Order

  At the interim stage, the Court observed that, it can only verify whether exhibition of the movie violates any existing law enacted to ensure public order, decency, or morality. While deciding the same, the artistic freedom of a film maker should be in mind.

  However, in order to make a decision, the Court suo moto impleaded the State Police Chief as an additional respondent and directed him to constitute a team to watch the movie and prepare a report to determine whether there was any statutory violation, or any criminal offence made out.

• The Report

  The Police report in a nutshell stated the following:

  1. The characters in the movie due to their living conditions and circumstances were forced to speak in a rough and tough language which was replete with expletives, even in their day to day interactions. Therefore, for the plot and circumstance of the movie to be believable for the audience, the characters had to speak in such a manner.

  2. Article 19 bestows artistic freedom, and law cannot dictate an artist to use their talents in a particular manner.

  3. As per Section 294 of IPC, an act becomes punishable under obscenity only if it is committed in a public place. An OTT platform is not a public place, since it cannot be accessed by just anybody.

  4. The content is displayed with the classification “A” and also prominently displays the warnings necessary as per law. Hence, Rules 3 and 4 of the IT Rules, 2021 have been complied.

  5. Section 67 of the IT Act does not apply here since, the content has already been classified as ‘A’.

  6. Furthermore, the movie does not instigate or suggest violence against the State, or mentions anything that goes against the sovereignty and integrity of the State, etc.

  The report concluded that, no statutory violation or criminal offence was made out. The movie falls under the freedom of artistic expression, which is the exclusive realm of the artists.

• Final judgment

  The writ petition was eventually dismissed as not maintainable, due to the petitioner not availing the alternate remedy that is available under the IT Rules, 2021.

  However, the Court did give its view on the overdose of foul language in the movie, and relying on several past decisions of the Supreme Court and other High Courts on the same/similar subject matter, held that, “the film is to be considered as a whole in a fair, free and liberal spirit without dwelling too much upon isolated dialogues or strong words used in the film here and there. …A film is an exhibition of a story by the filmmaker. He is entitled to use his artistic freedom.”

It is not a new fact that creators/authors out there have time and again come up with stories that have been alleged to be immoral by a few, and therefore pushed to be black listed.

In fact, back in 2008 the Delhi High Court in a petition challenging orders summoning the painter M.F. Hussain to Court for a painting of his that, as per the complainants, hurt the sentiments of the public and was obscene, had quashed the summoning order, and added that “Freedom Of speech has no meaning if there is no freedom after speech.”

Then again in 2016, a Division Bench of the Madras High Court, whilst hearing a petition seeking banning of the Tamil novel, ‘Madhorubagan’ had in the simplest of words stated, ‘if you don’t like a book, don’t read it.’ The reason why the book was being sought to be banned was because the Petitioner alleged that it hurt the religious sentiments of townspeople where the book’s story was based.

Thereafter, in 2019 the Supreme Court imposed a cost of Rupees Twenty Lakhs on the State of West Bengal for suo moto banning the Bengali feature film Bhobishyoter Bhoot in the theaters of Kolkata, despite the movie having the necessary certification from the CBFC. Holding such actions to be insidious and a threat to free speech and expression, the Court directed the compensation to be paid to the producers of the film, and also granted a cost of Rs. 1,00,000 as litigation cost.

The jurisprudence in this regard is deep and the Courts have predominantly been of the view that, the standards should be so framed that we are not reduced to a level where the protection of the least capable and the most depraved amongst us determines what the morally healthy cannot view or read.

Priya Adlakha is an Associate Partner and Rima Majumdar is a Senior Associate at S.S. Rana & Co.