“OTT platforms to be brought under the I & B ministry.” Stunned silence. Then hushed whispers. Then, a growing crescendo of outraged clamour. “This is shocking”, “now they’ll dictate what we watch?” Shades of a dystopic Orwellian 1984, right?
Not quite. Or not yet, anyway.
Articles and news with headlines such as the one above, were flashed across social media and regular TV channels a few days ago, much to the outrage of netizens – and understandably so.
After all, OTT platforms have been the greatest invention since sliced bread for the millions of Indians who want to watch varied, uncensored content the way the makers of said content intended it to be watched.
Moreover, the very possibility of bringing such content to people, without having to jump through the hoops of Bollywood or the Censor Board, is what has made possible the making of such content in the first place. Wantonly violent, foul mouthed, sexual and politically satirical content – which we all love – with nary a family value in sight (though there are plenty of those available, too).
The authors of these headlines, however, forget that the legal power to regulate these platforms was always there with the government, as it should be.
The present notification from the government, that led to these headlines, is only to identify the ministry of the government responsible for its regulation, whether as a precursor to framing fresh guidelines for acceptable content or to simply extend existing guidelines to them. Right now, that is all that’s been done.
Are There Any Regulations Applicable to These Platforms at Present?
Up until now, there were no pre-regulatory guidelines that were applicable to OTT content. That is, guidelines that that need to be complied with before content is aired. Nor is there any legal requirement of obtaining any sort of licence or censor board permit.
That is the reason why content creators have been allowed what by Indian standards is breathtaking creative freedom, which is why we have had access to such good quality, bold content. The legal control was not institutionalised and only available in the form of post censorship.
This was sought to be brought about by complaints filed by individuals mostly under the Indian Penal Code (IPC) and the penal provisions of the Information Technology Act, 2000 (IT Act). Some civil suits for defamation and PILs were also filed.
Most, if not all such complaints or civil suits, were not successful in actually getting the content banned or taken off air, as our High Courts and the Supreme Court have been sensible enough to not give in to over-sensitive complainants with fragile egos or easily offended religious beliefs.
A case in point was a PIL filed by the Justice for Rights Foundation, a Delhi-based NGO, which was dismissed on 11 November 2019 by the Delhi High Court, stating that it would not regulate these services.
Encouragingly, the Ministry of Electronics, Information and Technology (MeitY) itself told the Delhi High Court that the Ministry cannot force Netflix to remove the alleged objectionable reference to former PM Rajiv Gandhi in the ‘Sacred Games’ series, as it would impinge upon freedom of expression guaranteed under Article 19(1)(a) of the Indian Constitution.
The fear, therefore, is that pre-censorship is now imminent. That the MIB will now bring even OTT content subject to the stringent Programme and Advertising Codes (PAC) prescribed under Rule 6 and 7 of the Cable Television Network Rules, 1994.
If the PAC applies, we can forget about watching gritty stuff like ‘Mirzapur’ or ‘Game of Thrones’, with a prohibition on content that, for example,
“Denigrates women through the depiction in any manner of the figure of a women, her form or body or any part thereof in such away as to have the effect of being indecent, or derogatory to women, or is likely to deprave, corrupt or injure the public morality or morals;”
This would be devastating for all of us. The point, however, is that this has not happened yet.
So What Exactly Has the Government Done?
The notification has only amended the “Government of India (Allocation of Business Rules), 1961” (AOB Rules) which were framed under Article 77 (3) of the Constitution of India, which provides as follows:
“The President shall make rules for the more convenient transaction of the business of the Government of India, and for the allocation among Ministers of the said business.”
Therefore, these rules are exactly what the name suggests: rules for the government to specify which subjects will be dealt with by which Ministry, internally. It certainly does not mean that the said Ministry has “taken over” that subject or that OTT platforms have become nationalised.
As explained by a Constitution Bench of the Supreme Court in 1964 in Godavari Shamrao Parulekar v. State of Maharashtra:
“Allocation of Business under Article 166(3) of the Constitution is not made with reference to particular laws which may be in force at the time the allocation is made; it is made with reference to the three lists of the Seventh Schedule to the Constitution, for the executive power of the Centre and the State together extends to matters with respect to which Parliament and the legislature of a State may make laws. Therefore, when allocation of business is made it is made with reference to the three Lists in the Seventh Schedule and thus the allocation in the Rules of Business provides for all contingencies which may arise for the exercise of the executive power. Such allocation may be made even in advance of legislation made by Parliament to be available whenever Parliament makes legislation conferring power on a State Government with respect to matters in List I of the Seventh Schedule.”
But Is Censorship of OTT Platforms on the Horizon?
It's a totally different thing to say, as I do, that once the regulations are made, they should be minimal and should not amount to pre-censorship.
At present there seems to be no reason to be apprehensive, if the Ministry of Communications and Information Technology’s Press release No.69/2020 dated 14 September 2020 is anything to go by.
It sets out that there was a letter dated 3 March 2016 issued by the DoT asking for the TRAI’s recommendations on various aspects of OTT services including net neutrality, economic impact on TSP’s etc.
Via a consultation paper dated 12 December 2018, the TRAI recommended that market forces should govern and at present there was no need for a regulatory framework. Thereafter in mid-2019, two open house sessions were held where views of stakeholders were discussed.
Recently, various OTT platforms under the banner of Internet and Mobile Association of India (IAMAI) came together and submitted a code for self-regulation including am internal complaints procedure.
This code has not been accepted by the MIB because (among other things) it does not contain any list of prohibited content and because the complaint committee consisted of two network members and only one from the government.
In a letter to the IAMAI, the Information and Broadcasting Ministry asked the organisation to look at other self-regulatory models, including looking at a complaints committee with more government representation. This shows that self-regulation is still an option the government is considering and all is not lost yet.
Therefore, all this hue and cry about the end of creative freedom and lack of quality content – at this particular point of time and in connection with this new development – is alarmist in the author’s view. We need to wait and see what the government actually does.
(Nikhil Rohatgi is an advocate practicing primarily in the Supreme Court and Delhi High Court. This is an opinion piece and the views expressed are the author's own. The Quint neither endorses nor is responsible for them.)
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