The Allahabad High Court on September 29 dismissed two Public Interest Litigation suits (PILs) against the ALT Balaji show XXX: Uncensored and the Amazon Prime Video show Paatal Lok, respectively. LiveLaw first reported on the judgements, delivered by a two-judge bench of justices Siddhartha Varma and Govind Mathur. The court did not cite freedom of expression in its reasoning, and instead said in one of the orders that the petitioners had to approach the “competent authority of the Government of India”, presumably the Ministry of Electronics & Information Technology. The same reasoning, in slightly differing language, was outlined in both orders.

The suit against ALT Balaji’s show was brought due to accusations that one episode had a scene disrespecting the army, where a soldier’s wife makes a man she is having an affair with wear a military uniform. That scene has already been removed from the show on both ALT Balaji and ZEE5. Paatal Lok, on the other hand, was sued, according to the order, for being “offending to the principles of ‘Sanatan Dharm'”.

“It is a settled principle of law that the person demanding writ in the nature of mandamus [an order to a public authority to perform a statutory duty] is first required to make a demand from the Authority competent,” the court said in its judgement on the ALT Balaji case. “A deviation from such settled principle can be made only in extraordinary circumstances and no such circumstance has been pointed out by the petitioner in this petition for writ,” the court said, adding, “we are not inclined to interfere in the matter by invoking our extraordinary discretionary powers.”

This reasoning has a precedent — in July, the Calcutta High Court issued a similar order in a similar suit against Paatal Lok. In that case, like in September 29’s, the petitioners were directed to approach MEITY, which has powers to issue content takedown notices under the Information Technology Act, 2000. To our knowledge, though, MEITY has mostly used these provisions against user-generated content on social media, rather than TV shows and films streamed online.

State of content regulation in courts

Indian high courts have largely upheld freedom of expression in cases involving streaming services. The Supreme Court is currently hearing a petition to regulate streaming services’ content, and three high court cases have been put on hold on account of it. In cases involving individual shows, like Sacred Games and Hasmukh, courts have sided with streaming platforms. One other case involving Paatal Lok is pending in the Punjab & Haryana High Court.

However, when defamation is concerned, the issue is still up in the air. Netflix was supposed to stream a documentary series called Bad Boy Billionaires, covering four different convicted financial fugitives or frauds. The Sahara group’s Subrata Roy, one of the eponymous billionaires, obtained a court order blocking the release of the show, and the Supreme Court refused to entertain Netflix’s appeal, sending the company to the Patna High Court, which refused to stay the lower court’s order immediately, and hearings in the matter are ongoing. Another such order was obtained by Ramalinga Raju, who also features in the documentary series.

The Delhi High Court dismissed a similar suit by billionaire Mehul Choksi, and that case is being appealed in front of a larger bench at the same court.

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