December 08, 2018:
On Friday, in a big win for the fate of freedom of expression in a democracy, the Centre told the Delhi high court that service providers could not be asked to remove alleged offensive content against former Prime Minister Rajiv Gandhi, from the show Sacred Games that airs on Netflix.
The Indian Express reported that the high court is currently hearing a plea alleging that certain scenes from the show maligned Gandhi. The plea, filed in July this year, further seeks to ensure from the court, producers of the show and Netflix, “in toto” removal of the scenes.
Season 1 of the show first aired on 6 July 2018.
In an affidavit to the high court, the Ministry of Electronics & Information Technology said:
“That it is humbly submitted that the Preamble of the Constitution of India inter alia speaks of liberty of thought, expression, belief, faith and worship. It also says that India is a sovereign, democratic republic. The liberty of thought and expression is a cardinal value that is of paramount significance under our Constitutional scheme.”
The Ministry also said that it was not empowered by the IT Act to issue any “certification with respect to broadcasting, publishing and/or transmission of any content whether in the form of streaming media/video, or any other digital form of the Internet.”
The affidavit from the Ministry also references various Supreme Court judgments that underscore the importance of freedom of speech & expression not just for individual liberty but also for a democracy. The affidavit also reads that while the freedom of speech and expression was not an absolute one, it was necessary to “tolerate unpopular opinion.”
From the affidavit of the Ministry”The answering respondent (MeitY) strictly follows the mandate of the Constitution as well as the laws as declared by the Supreme Court of India whereby it has held that freedom of speech and expression of opinion is of paramount importance under a democratic Constitution which envisages changes in the composition of legislatures and government and must be preserved.”
Ministry Refuses to Set up Specific Grievance Redressal Mechanism
It refused to set up a mechanism to particularly deal with grievances related to “over-the-top” (OTT) media service providers working in India, on the grounds that doing so would be go against existing laws.
According to TIE, OTT refers to content providers that distribute streaming media as a standalone product online. They thus bypass traditional controllers or distributors of such content like multi channel television, broadcast television or telecommunications platforms.
It said, “The relief sought by the petitioner should not be granted as any order directing the answering respondent to regulate the service providers by setting up a grievance redressal mechanism to deal with the grievances against the ‘Over-the-top’ (OTT) shall be in violation of the mandate of the Constitution as well as the law as declared by the Supreme Court of India.”
The petition in the High Court contended that the show “incorrectly depicts historical events of the country like the Bofors case, the Shah Bano case, the Babri Masjid case & communal riots.” It was filed by advocate Nikhil Bhalla.
Soon after the petition was filed, Rahul Gandhi, son of the late Congress leader, said that he believed “freedom of expression is a fundamental right.”