Underlining the importance of freedom of expression, the Ministry of Electronics, Information and Technology (MeitY) has told the Delhi High Court that MeitY cannot ask Netflix to remove the alleged objectionable reference to former Prime Minister Rajiv Gandhi in its Sacred Games series. It can be read here: Nikhil Bhalla case (pdf).
The Centre, in its response, “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.”
In the petition, advocate Nikhil Bhalla had requested the court to issue guidelines for regulating OTT media service providers. He had also petitioned before the court to direct the Centre to set up a grievance redressal mechanism to specifically deal with grievances against OTT platforms, operating within the territory of India.
Centre’s submission against new regulations for OTT platforms
MeitY, in its response, told the Delhi High Court, “that the Information Technology Act 2000 provides for disablement of content for public access.” In the affidavit filed by MeitY’s counsel Rajesh Gogna, Centre submitted that
- The SC placed the onus on the intermediaries to disable access to information that is deemed unfit under the IT Act, 2000.
- The onus is on the intermediary to remove or disable any such material must strictly conform to subject matters laid down in article 19(2) of the Indian Constitution. Note that it is this article that puts “reasonable restrictions” on the freedom of expression granted under Article 19(1) of the Indian Constitution.
- The IT Act does not grant the Centre any statutory power to review or issue an certification with respect to broadcasting, publishing or transmission of content streaming over the internet.
- It reminded the court that it is strictly following the mandate of the Constitution and law declared by the SC “whereby it has been held that freedom of speech and expression is of paramount importance under a democratic constitution which envisages changes in the composition of legislatures and Governments and must be preserved.”
- The Centre reminded the High Court of SC judgements where it had held in past “that freedom of speech lay at the foundation of all democratic organizations.”
- The relief should not be granted as any order directing Centre to regulate the OTT services “shall be in violation of the mandate of the constitution as well as the law as declared” by the SC.
Talking to MediaNama, Gogna said,
“What they (petitioner) are pursuing is, it (the content on OTT platforms) should not be defamatory, it should not hurt our feelings, it should not hurt the feeling of the community. These are all societal morality. And we stand by the constitutional morality. The State stands by the constitutional morality.”
The next hearing for this case will be on December 20, 2018.
A timeline of the case
- On October 23, the Centre sought time from the court to file an affidavit explaining its position and stand.
- September 20, Nikhil Bhalla, the advocate petitioning to remove certain dialogues from Netflix’s Sacred Games, amended his petition to ask government to create a regulatory body for online streaming companies.
- On August 8, Chander Lal, the senior advocate representing Netflix, told the Delhi HC, “My instructions are that we don’t want to change the word.” The judges hearing the case were quoted as saying during arguments, “Nobody is pressing or forcing you. You take your own decision, whether you want to change the word or not. We are not going to compel you.”
- In the July 16 hearing, Netflix told the court that it had replaced the English subtitle for the Hindi word ‘fattu’, now translated as ‘wimp’, used to describe the former Prime Minister. That change had been made before the petition was filed in the Court.
- On July 11, advocate and petitioner Nikhil Bhalla filed a PIL in the Delhi HC asking for certain scenes to be deleted from the Netflix Sacred Games series. Bhalla said that these scenes were “derogatory to former PM Rajiv Gandhi.” In one line, for instance, the character Ganesh Gaitonde calls former India PM Rajiv Gandhi a wimp in Hindi, which a previous version of the subtitles translated as ‘pussy’. Bhalla petitioned for the scenes with such dialogue to be removed. The petitioners had to justify that the PIL was in public interest.