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How the Blasphemy Law in India abrogates freedom of OTT Platforms?

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Section 295A, a variant of blasphemy law in India, has been subjected to criticism for its vague definition. Moreover, its use in recent years has been more political than religious, often curbing freedom for artists and content creators. Now this abuse and its colonial shadow have extended to digital space. Often Section 295 A is used against content and content creators in the name of fickle ‘religious sentiments’. However, these curbs, in general, and Section 295A in particular, offer unnecessary censorship, devoiding the art and its value and neglecting the viewer’s discretion. Sahil Panchal argues against Section 295A, reasoning how it’s a version of Blasphemy law in India. He also argues that the same limits artistic freedom and is often dictated by political impulses.

blasphemy law in India

By Sahil Panchal, a fourth-year B.A.LL.B student from The Maharaja Sayajirao University of Baroda.

Introduction

‘Internet era’, ‘modern civil world’, ‘Vishwa Guru Bharat’, etc.

Indian politics and legacy mainstream media channels often abuse and use these words to signify India’s glorious future. But the true meaning of such terms gets flouted by restrictions on freedom of speech and other forms of dissent.

While the internet is imagined as this free and safe space, the same is sadly not true for India. The Indian laws have adapted to the new medium of control and intimidation of opinions and opinion-makers.

These draconian laws extend beyond the land and have opened themselves to censor across platforms. One such law, which is draconian no matter the medium, is Section 295A, Indian Penal Code. Section 295A IPC punishes the ‘deliberate and malicious acts, which is ‘intended to outrage the religious feelings of any class’ by ‘insulting its religion or religious belief’.[1]

The foremost issue with Section 295A is not explicitly defined. However, its interpretations lend to restraining speech based on religion and religious beliefs.

Protecting religion with such laws is similar to protecting any theory against criticism. In other words, it is identical to the criminalisation of criticism of communism, socialism, pure theory, etc.[2]

Section 295A was introduced into IPC by the Britishers in 1927 because of the infamous case of Rangila Rasul. In this case, Mahashay Rajpal had written a brochure named Rangila Rasul in 1926 based on the life of Prophet Muhammad. According to the Muslim community, Rangila Rasul was written to insult the Prophet, which led to widespread violence in Lahore. However, the Punjab High Court had acquitted the accused based on Section 153A, as it lacked the provision to punish the blasphemous acts.

Dalip Singh, the judge preceding over the case. had held the publication as

undoubtedly … nothing more or less than a scurrilous satire on the founder of the Muslim religion…”, acquitted the publisher reasoning that nothing in the pamphlet displayed that “it was meant to attack the Mahomedan religion as such or to hold up Mahomedans as objects worthy of enmity or hatred.”[3]

Regardless, the British colonial government amended the Indian Penal Code of 1860, adding Section 295A in 1927, and the same looms over even after partition.[4]

After Independence, the constitutionality of Section 295A was challenged on the ground that it infringed the fundamental freedom of free speech.[5]

In Ramji Lal Modi v. State of UP[6], the Supreme Court stated that S. 295A does not punish any and every act of insult to or attempt to insult any religion or the religious beliefs of a class of citizens. Further, the Court stated that the section only punished the act perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class, which will in any aggravated forms insult to religion that will disrupt that public order.[7] Therefore, with that, the five-judge bench upheld the validity of Section 295A.

Since then, Section 295A often called our variant of blasphemy law in India, is being abused, read and reread according to courts’ interpretation and administrative whim.

In the light of the above discussion, this article will focus on what is called our version of blasphemy law in India, Section 295A. And understand how it affects Article 19 of the Constitution. But this piece will narrow down its understanding of how it affects the OTT platforms in particular. Further, this study covers how Individuals have misused S. 295A against the artist and content creators in the name of hurting religious sentiments.

How is Section 295A Impacting OTT Platform?

OTT (or Over-The-Top) platforms gained a boom in India after the democratisation of the internet. OTTs were considered the future of video streaming platforms. It allowed content creators from various strata of economy, class, creed, sex and religion to share their content without any restrictions.

After 2018, prominent film directors and producers started significant projects on OTT platforms such as Netflix, Amazon Prime Video, Disney+ Hotstar, Zee5, SonyLiv, etc.

These platforms had an edge as they were not regulated by any statutory or regulatory body such as CBFC, IBF, PB Act, NBA, etc.

While its initial rise was relatively steady, there was a sudden increase in the viewership of the OTT platforms due to the pandemic and national lockdown in 2020. And the mainstream cinema also had to succumb to OTT platforms.

Since there was no regulation, the content on these platforms gave way to ‘obscene’ language, violence and unchecked political opinions, and scenes that were not typical for communal viewing in India. This boom and unrestricted freedom eventually became a concern for the government for various reasons.

Before the government sought control of OTT platforms the last year, there were incidents where these streaming platforms had to face the public’s wrath for showing explicit content or offensive language, violence, harassment of women, children and transgender people, etc.

Amongst this, the one thing which had created more havoc and buzz was about hurting the religious sentiment of one community or mainly to show God and Goddess from certain religions in poor light. For instance, the most recent controversy around the web series titled ‘TANDAV’ was released on Amazon Prime Video.[8]

The release created quite a stir. Many Hindus accused the makers, producers and actors of insulting Hindu God and Goddess. As a result, several FIRs were filed against the cast at different places under various IPC and IT Act sections.

Just before this outbreak, in Madhya Pradesh, a BJP MP filed an FIR under Section 295A against the makers of another web series by Netflix, ‘A Suitable Boy’.[9] The FIR alleged a kissing scene between a Hindu girl and a Muslim boy shot at the backdrop of the Hindu Temple was hurtful and insulting for Hindus

Section 295A has been misused in several other instances even before OTT gained such traction. One example would be the arrest of  Kiku Sharda, a comedian, for allegedly hurting the sentiments of a self-styled godman, Gurmeet Ram Rahim Singh’s followers.[10]Singh was the leader of Dera Sacha Sauda, which was a non-profit social welfare organisation.[11] However, the absurdity of this case is that Dera Sacha Sauda was not even a religion, despite which a complaint got filed under section 295A for allegedly hurting religious sentiments.

Another instance of misusing Section 295A was the recent arrest of Comedian Munawar Faruqui in Indore. During his performance at a stand-up gig, the Hindu Rakshak group created havoc. Aklavya Singh Gaur, part of the Hindu Rakshak Group and son of BJP city mayor, filed a police complaint against Munawar.[12]

The FIR alleged that the comedian would make jokes on Hindu deities, hurting people’s religious sentiments. Following the FIR, Munawar got arrested and was denied bail from the sessions and the Madhya Pradesh High Court. Finally, the Supreme Court granted him bail a month after his arrest and time at Indore Central Jail.

In the last seven years, religious intolerance and crimes against religious minorities have seen a rise. Subsequently, there has been an increase and misuse of the implementation of Section 29. 

How does Blasphemy Law in India Infringe Article 19(1)(a)?

The law is vague and arbitrary as it takes away your fundamental right to freedom of speech and expression. Therefore, article  19(1)(a)[13] is a critical proviso in the Constitution, and it provides that the laws which obstruct free speech be declared unconstitutional.

The words ‘religion’ or ‘religious belief’ is not defined anywhere in the Constitution. The Supreme Court has recognised that ‘religion’ is ‘incapable of the specific and precise definition’. The Court has held that it is not something with a ‘rigid definition’, and by its very nature, ‘difficult, if not impossible to define’.[14]

Freedom of speech and expression is not absolute, and the same is constrained by ‘reasonable restrictions’, and part of these restrictions are imposed to maintain public order.

While the term ‘public order’ can have multiple meanings and interpretations, the following points will focus on why ‘public order’ cannot be a good enough excuse to restrict OTT platforms and their content.

First, OTTs are paid platforms, which means that the viewer has paid and exercised their right to choice by opting for a particular show or movie. Thus, when fringe groups tend to act out on behalf of a social and moral obligation, it only invalidates the experience of those who chose to watch it.

In Indibility Creative Pvt Ltd & Ors versus Govt of West Bengal & Ors (2019), Justice. DY Chandrachud stated from Albert Camus. Quoting from Camus’ essay titled ‘Resistance, Rebellion and Death’, Justice Chandrachud drew a parallel between art and freedom, which is relevant for the current discussion to relate to intolerance, speech and art. He said:

Art, by virtue of that free essence I have tried to define, unites whereas tyranny separates. It is not surprising that artists and intellectuals should have been the first victims of modern tyrannies…Tyrants know there is in the work of art an emancipatory force, which is mysterious only to those who do not revere it. Every great work makes the human face more admirable and richer, and this is its whole secret… Whatever the works of the future may be, they will bear the same secret, made up of courage and freedom, nourished by the daring of thousands of artists of all times and all nations.[15]

Second, in Shreya Singhal vs Union of India[16], the Supreme Court declared Section 66A of the Information & Technology Act, 2000[17] unconstitutional, as it infringed Article 19 (1) (a) of the Indian Constitution. The Court held that the provision failed to establish a clear proximate relation to the protection of public order. The law was challenged on the vagueness in the provision. And in this regard, the Court held

where no reasonable standards are laid down to define guilt in a Section which creates an offense, and where no clear guidance is given to either law-abiding citizens or to authorities and courts, a Section which creates an offense and which is vague must be struck down as being arbitrary and unreasonable.”[18]

Further, the Court also found that the terms are open-ended and undefined. Also, the Court stated that it could impose a chilling effect on the right to freedom of expression.

The same can be argued that Section 296A can be held unconstitutional. The section is vague in terms of its definition, the religious sentiment of different people will be different, and the section is said to prevent communal violence. Still, on the same point, it can be applied if an individual’s religious sentiments are hurt, so the two points used here is contradictory.

Upon that, for the offence of communal violence, we already have laws like Section 153A, 295A, 296, 297, 298. Here the specific section which we are talking about is preventing free speech and expression.

Newer Regulations and Colonial Blasphemy 

The content on OTT platforms was not regulated and had no sense of censorship till 2020. However, at the end of 2020, the Information & Broadcasting Ministry (I&B) had also introduced regulations to oversee and monitor the content on all OTT streaming platforms, news channels and online platforms.[19]

These new regulations were intended to bring content produced by the OTT or online platforms under the Ministry of I&B. Amending the Allocation of Business Rules (1961), the Centre brought content produced on the internet under their purview.

In February this year, the Ministry of Electronics and Information Technology (MeITY), under Section 69A(2), 79(2)(c) and 87 of the Information Technology Act, 2000, passed the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (Rules).[20]

Union Minister Ravi Shankar Prasad and Prakash Javadekar introduced the new rules, imposing obligations on online platforms, blocking their power. While the new regulations are projected to empower users, it poses a serious threat to everyone who posts content on the internet. Thus, stripping both users and content providers of their free speech.

This Rules included OTT platforms, social media platforms, and digital media.[21] But in March 2021, the Supreme Court, while granting anticipatory bail to Amazon Prime Video head Ms Aparna Purohit in the controversy of the ‘TANDAV’ web series, held that the new rules to regulate OTT platforms ‘lack teeth’.[22]

Conclusion

The current government is constantly trying to assert control and curb forms of criticism that don’t agree with their narrative. Also, unfortunately, today, the state’s narrative is caught up in communal cacophony and in that scenario, such laws that invoke religious sensitivity become political tools of polarisation.

The other issue is that the government is trying to suppress freedom of speech without rhyme or reason by using vague definitions of ‘public order’ and ‘religious sentiments’. The example from FIRs against ‘TANDAV’ is a classic demonstration of that.

It worsens when most laws that curb speech, including Section 295A, result from colonial rulemaking. Given that these laws have survived beyond colonial rule, it is a testament to scattered authoritarianism which survived even after independence.

India is a democratic, secular, and socialist country. The Consitution gives the right to speak openly and freely to its people. However, it also imposes certain reasonable restrictions necessary to curb speech that may create serious harm. Free speech is not just a tool furthering its principle but is essential, which defines its basic structure.[23]

With the digitalisation of the public sphere, laws need to adapt to such digitisation. However, such laws must be implemented with the intent to extend freedom instead of further restricting it.

Several developed countries do not have blasphemy laws, and they have self-regulatory rules for the OTT platforms. These include Singapore, UK, Australia, etc., where self-regulatory codes, allowing them to classify their content.[24]

India, too, can adopt the same style of principles to self-classify the content on the streaming platforms. These won’t be a problem if laws such as sedition, blasphemy will not haunt the content creators and artists.

Endnotes

[1] The Indian Penal Code, 1860, §. 295A

[2] Prakhar Raghuvanshi, Blasphemy Law In India: Thou Shall Not Blaspheme, LEGAL SERVICE INDIA, http://www.legalserviceindia.com/legal/article-1085-blasphemy-law-in-india-thou-shall-not-blaspheme.html

[3] Karan Kumar, Vague, unreasonable, constitutionally untenable: Why Indian variant of ‘blasphemy law’ – Section 295A IPC – should go, THE LEAFLET (August 21, 2018), https://www.theleaflet.in/vague-unreasonable-constitutionally-untenable-why-indian-variant-of-blasphemy-law-section-295a-ipc-should-go/

[4] Aayush Akar, Critical Analysis of Blasphemy Law in India and UK: A Comparative Analysis By: Aayush Akar, LATEST LAWS (January 15, 2020), https://www.latestlaws.com/articles/critical-analysis-of-blasphemy-law-in-india-and-uk-a-comparative-analysis-by-ayush-akar/

[5] Karan Kumar, Vague, unreasonable, constitutionally untenable: Why Indian variant of ‘blasphemy law’ – Section 295A IPC – should go, THE LEAFLET (August 21, 2018), https://www.theleaflet.in/vague-unreasonable-constitutionally-untenable-why-indian-variant-of-blasphemy-law-section-295a-ipc-should-go/

[6] Ramjilal Modi v State of U.P., (1957) AIR 620 SCR 860 (India)

[7] Section 295A – An Analysis, INDIAN LAW OFFICES (January 14, 2021), https://www.indialawoffices.com/legal-articles/section-295a-aalysis

[8]  Entertainment Desk, Tandav controversy: Here’s everything you should know, THE INDIAN EXPRESS (January 27, 2021, 7:18:41 pm), https://indianexpress.com/article/entertainment/web-series/controversies-surrounding-tandav-heres-everything-you-should-know-7163727/

[9] Milind Ghatwai, MP Police registers FIR against Netflix over temple kissing scenes in ‘A Suitable Boy’, THE PRINT (23 November 2020 12:19 pm), https://theprint.in/india/bjp-leader-links-kissing-scenes-in-netflixs-a-suitable-boy-to-love-jihad-files-complaint/549973/

[10]  Express Web Desk, Comedy Nights actor Kiku Sharda arrested for mimicking Dera Chief Gurmeet Ram Rahim, THE INDIAN EXPRESS (January 15, 2016, 6:55:29 pm), https://indianexpress.com/article/entertainment/television/kiku-sharda-sent-to-14-days-judicial-custody-for-mimicking-baba-gurmeet-ram-rahim-singh/

[11] Yuvraj Sakhare, All You Need To Know About The Section 295A, Which Got Kiku Sharda Arrested, THE LOGICAL INDIAN (January 19, 2016),

[12]  Sonia Faleiro, How An Indian Stand Up Comic Found Himself Arrested for a Joke He Didn’t Tell, TIME (FEBRUARY 10, 2021 2:12 PM),https://time.com/5938047/munawar-iqbal-faruqui-comedian-india/

[13] Constitution of India; art. 19, cl. 1, sub. cl. a

[14] Yuvraj Sakhare, All You Need To Know About The Section 295A, Which Got Kiku Sharda Arrested, THE LOGICAL INDIAN (January 19, 2016), https://thelogicalindian.com/news/all-you-need-to-know-about-the-section-295a-which-got-kiku-sharda-arrested/?infinitescroll=1

[15] Justice DY Chandrachud, ‘The artist is entitled to the fullest liberty…to critique’: DY Chandrachud on free expression, SCROLL.IN (Apr 22, 2019, 08:30 am),

https://scroll.in/article/920015/the-artist-is-entitled-to-the-fullest-liberty-to-critique-dy-chandrachud-on-free-expression

[16] Shreya Singhal vs Union of India (2015) AIR 2015 SC 1523 (India)

[17] Information & Technology Act, 2000; §. 66A

[18] Shreya Singhal v. Union of India, GLOBAL FREEDOM OF EXPRESSION

[19] Lata Jha, OTT, digital news content now under I&B ministry ambit; trigger censorship fears, LIVEMINT ( November 11, 2020, 11:20 am), https://www.livemint.com/industry/media/ott-digital-news-content-brought-under-ministry-of-i-b-s-ambit-11605072715455.html

[20] Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (Rules), (2021)

[21] Diganth Raj Sehgal, Overview of the OTT Regulations, 2021, IPLEADERS (April 8, 2021), https://blog.ipleaders.in/overview-ott-regulations-2021/

[22] Krishnadas Rajagopal, Supreme Court says new rules to regulate OTT platforms lack teeth, THE HINDU (March 05, 2021, 23:28 pm), https://www.thehindu.com/news/national/sc-says-new-rules-to-regulate-ott-platforms-lack-teeth/article33995501.ece

[23] Deepali Bhandari & Abhigyan Tripathi, Censorship of OTT Media Services: Restraining Freedom of Expression?, LAW SCHOOL POLICY REVIEW & KAUTILYA SOCIETY (December 23, 2020),

https://lawschoolpolicyreview.com/2020/12/23/censorship-of-ott-media-services-restraining-freedom-of-expression/

[24] Abhishek Malhotra, OTT content regulation across the globe: Will India follow suit?, THE MOBILE INDIAN (January 26, 2021, 8:27 pm), https://www.themobileindian.com/news/ott-content-regulation-across-the-globe-will-india-follow-the-suit-34688

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