With the right to the internet recognized by the Judiciary as a fundamental
right in the case of Faheema Shirin R.K. vs State of Kerala
1, technology has
advanced to where people now have a multitude of options to view content on a
variety of platforms such as Smart TVs, Roku, computers, tablets, mobile phones,
or gaming consoles. Over-The-Top (hereinafter referred as OTT) is a means of
providing television, film, entertainment content over the internet at the
request and to suit the requirements of the individual consumer. It implies that
a content provider is going over the top of existing internet services.
The first Indian OTT platform was BigFlix, launched by Reliance Entertainment in
2008. In 2010, Digivive launched India's first OTT mobile app called nexGTv.
Live Streaming of Indian Premier League started in 2013-14. There are over 857
channels as of 2016, of which 184 were paid channels. In India OTT got
popularity post entry of Netflix, Amazon Prime, Disney+, Hotstar, Zee5, Eros Now
and Sony. Post covid, adoption of digital OTT players has increased manifold.
India's video OTT market is expected to touch $12.5 billion by 2030 from about
$1.5 billion in 2021 on the pillar of access to better networks, digital
connectivity and smartphones, according to a report by RBSA Advisors.2 The
Indian OTT audience universe is currently at 353.2 million, translating into a
penetration of 25.3%, according to a report released by media consulting firm
Ormax Media. Titled 'The Ormax OTT Audience Report 2021'. The report also
reveals that there are currently 96 million active paid OTT subscriptions in
India, across 40.07 million paying (SVOD) audiences, i.e., an average of 2.4
subscriptions per paying audience member.3
As big is the OTT universe so are the regulatory issues with its content. It all
started with case Justice for Rights Foundation v. Union of India
formulation of guidelines for content created by OTTs from Ministry of
Information and Broadcasting (hereinafter referred as MIB) through petition in
Delhi High court. MIB in the reply stated that there are no regulations
regarding viewers content on OTT. Further Delhi HC observed that Information
Technology Act, 2000 provided enough procedural safeguard for taking action in
the event of prohibited content by the broadcasters.4
In an outcry for independent censorship regulations on OTTs that will filter
content, The government notified under section 87 of Information Technology new
rules that will guarantee the fundamental right of freedom and speech and impose
reasonable restrictions. This article examines the constitutional provisions on
freedom of speech and expression which form the basis for the rights of the OTTs
Constitutional Provisions on Freedom of Speech and Expression
The Preamble to the Constitution of India resolves to protect for its citizens,
liberty of thought, expression and belief.5 Freedom of speech and expression
plays a crucial role in formation of public opinion on social, political and
economic matters. It is a basic and a natural right.
The freedom of speech and expression has been described as the mother of all
The concept of this fundamental right under Article 19(1)(a) is dynamic as the
content of speech & expression and its means to communicate has been evolving
with time and advances in technology. It includes the freedom of communication
and right to propagate or publish one's views through any medium, newspaper,
magazine or movie, including the electronic and audio-visual media.7
Rights of OTT Platforms
The right to speech an expression has evolved with the progress of technology
and includes all broadcast media such as OTT. The right of citizens to exhibit
films on OTTs is a part of fundamental right guaranteed under article 19(1)(a).
In Odyssey Communications v. Lokvidayan Sanghatana, the SC held that this right
was similar to the right of a citizen to publish his views through any other
media such as newspapers, magazines, advertisements, hoardings and so on.8
Right to criticise the government exhibited through movies and web series on OTT
is a pre-requisite to a healthy democracy and Article 19(1)(a) covers this
right. In Directorate General of Doordarshan v Anand Patwardhan, the SC held
that the State cannot prevent open discussion, no matter how hateful to its
The Delhi High Court dismissed the petition in Nikhil Bhalla v. Union of India
where the petitioner prayed for a grievance redressal mechanism to process
complaints against certain online content, regarding OTT services and censor
certain dialogue in the Netflix series 'Sacred Games' which pictured the former
Prime Minister in bad light.10
The Bombay High Court, while quashing an order of forfeiture under Section 95(1)
of Criminal Procedure Code, 1973 in respect of a play Me Nathuram Godse Boltoy
upheld the right to criticism.11 In context of film censorship, the Bombay High
Court observed that dissent is the quintessence of democracy.12
To portray social evils
The freedom of expression extends to the portrayal of social evils like rape,
violence, dowry, prostitution, human trafficking, slavery, immorality, caste
system, child labour, child marriage, poverty, corruption, gender inequality,
untouchability, substance addiction, sati, drug abuse etc.
In K. A. Abbas v/s Union of Indian
, the apex court held that the portrayal of a
social vice as severe as rape, prostitution and the like, could not by itself
attract the censor's scissors. Rather what has to be seen is how the theme is
handled by the film-maker.13
In Bobby Art International v. Om Pal Singh Hoon
, the petitioner sought the
censor of scenes of frontal nudity showing the rape victim who later became
India's most feared dacoits- Phoolan Devi. The Supreme Court rejected the
petition and held that the rape scene also helps to explain why Phoolan Devi
became what she did.14
In Anand Patwardhan v. Union of India
, Doordarshan has refused to telecast an
award-winning film on the grounds of communal violence, the Supreme Court upheld
the right of the film-maker to have his film telecasted.15
In Mahesh Bhatt v. Union of India
, the Delhi High Court struck down the rules
which sought to impose blanket ban on the depiction of smoking in films and
upheld the rights of the film-maker.16
To portray historical events
The OTTs have the right to present a historical event in their movies, shows or
web series. The argument that recalling of that event may resurrect tensions is
not a ground for censorship.
The Madras high court lifted ban on the film which was based on the
assassination of Rajiv Gandhi and held that a fictional incorporation showing an
attempt on the life of the former Chief Minister J. Jayalalithaa did not warrant
censorship in CBFC v. Yadavalaya Films.17
In the film showing Gujarat riots in Chand Buj Gaya
, The Bombay High Court
held that the protection of the Constitution does not extend only to fictional
depictions of artistic themes. Artists, film makers and playrights are
affirmatively entitled to allude to incidents which 'have taken place and to
present a version of those incidents which according to them represents a
balanced portrayal of social reality.18
Right to circulate does not limit to the print media circulation of newspapers,
but also extends to circulation of media on internet through OTTs. The Supreme
court in LIC v Manubhai D. Shah broadly interpreted the freedom of speech and
expression” the freedom to circulate one's views by word of mouth, or in
writing, or through audio-visual media. This includes the right to propagate
one's views through the print or any other media. 19
Companies that advertise for commercial gains on OTTs are no different from
newspapers and other media that are run as a commercial enterprise.
In Tata Press Ltd. V. MTNL the SC interpreted that the fundamental right to
freedom of speech and expression under Article 19(1)(a) includes right to
advertise or the right to commercial speech.20
Right of Viewers
To receive Information
The freedom of speech and expression also comprises the right to receive
information. In Ministry of Information and Broadcasting v. Cricket Association
of Bengal, the SC held that the right of free speech and expression includes the
right to receive and impart information. it is necessary that the citizens have
the benefit of plurality of views and a range of opinions on all public
issues... Diversity of opinions, views, ideas and ideologies is essential to
enable the citizens to arrive at informed judgment on all issues touching them…
This is the command implicit in Article 19(1)(a).21
To entertain and to be entertained
Right of an individual to entertain on OTTs, also as a viewer include right of
the audience to be entertained. In Ajay Goswami v. Union of India, the Supreme
Court upheld the right of adult citizens to entertainment and held that adults
could not be deprived of entertainment within acceptable norms of decency on the
ground that it was deemed inappropriate for children.22
In Puttaswamy v. Union of India
a nine-judge bench of the SC ruled that right to
privacy is a fundamental right and it is intrinsic to life and liberty under
Article 21 of the Indian constitution. Viewers have fundamental right that their
personal data, interest and viewed history of content is protected by the
Article 19(2) Restrictions on Freedom of Speech and Expression
Freedom of speech and expression is not an absolute right, article 19(2) of the
Constitution of India provides for restrictions on OTTs and to make laws
imposing reasonable restriction for the interest of the sovereignty and
integrity of India; security of the state; friendly relations with foreign
state; public order; decency or morality; contempt of court; defamation or
incitement of an offence.
In State of Bihar v. Shailabala Devi
, The Supreme Court held the any speech or
expression which incites or encourages the commission of violent crimes such as
murder, undermines the security of the State and falls within the ambit of Art.
Prior Restraint: Cinematograph Act, 1952 provides for censorship by prior
restraint. In K. A. Abbas v. Union of India
and Ministry of Broadcasting v.
Cricket Association of Bengal
the SC justified that pre-censorship is
permissible in visual media.
Post Restraint: In case of film Black Friday
based on Bombay blast 1993, the
Bombay High Court postponed the screening of the film till the TADA court
delivered its verdict and SC upheld the order of temporary injunction.25
Similarly in Compare Zee News v. Navjot Sandhu
, the Delhi High court passed an
exparte injunction restraining the telecast of a film on the terrorist attack on
Misuse of Article 19(1)(a) by OTT Platforms
Many court decisions have supported the fundamental right of freedom of speech
and expression but did not give any guidelines to regulate these platforms that
lead deliberate misuse of these rights.
In Divya Ganeshprasad Gontia v. Union of India
, the plea was filed seeking
regulation of the content of web series. It stated shows like Gandi Baat on the
platform of ALT Balaji and Sacred Games on Netflix. It has been debated that
these shows contain obscene, nude and vulgar scenes which are similar to
pornography and are cognizable offences under the Cinematograph Act, Indian
Penal Code, Indecent Representation of Women (Prohibition) Act and the
Information Technology Act. The Bombay High Court issued notices to the MIB in
light of this plea seeking regulation of such web series.
The OTTs and its participants like broadcasters-
producers-directors-actors-writers-viewers derive its rights from the right to
freedom of speech and expression same as available to any individual to write,
publish, circulate or broadcast. The challenge here is that OTT Platforms today
only portray social evils and no equivalent solution. And most of the viewers
fail to understand the cause-effect of such crimes and how they can avert such
incidents in real life.
- Faheema Shirin R.K. vs State of Kerala and Others (WP (C) No. 19716 of
- Justice for Rights Foundation v. Union of India, WP (C) 11164/2018.
- Constitution of India, Preamble.
- Ramlila Maidan Incident, re, (2012) 5 SCC 1.
- S. Rangarajan v P. Jagjivan Ram (1989) 2 SCC 574.
- Odyssey Communications (P) Ltd. V. Lokvidayan Sanghatana (1988) 3 SCC
- Directorate General of Doordarshan v Anand Patwardhan (2006) 8 SCC 433
- Nikhil Bhalla v. Union of India, W.P. (C) No. 7123/2018
- Anand Chintamani Dighe v State of Maharashtra (2002) 2 Mah LJ 14.
- F. A. Picture International v. CBFC AIR 2005 Bom 145.
- K. A. Abbas b. Union of Indian (1970) 2 SCC 780.
- Bobby Art International v. Om Pal Singh Hoon (1996) 4 SCC 1.
- Anand Patwardhan v. Union of India (2006) 8 SCC 433
- Mahesh Bhatt v. Union of India (2009) 156 DLT 725.
- CBFC v. Yadavalaya Films (2007) 1 CTC 1
- F. A. Picture International v. CBFC AIR 2005 Bom 145.
- LIC v. Manubhai D. Shah (1992) 3 SCC 637: AIR 1991 SC 171.
- Tata Press Ltd. V. MTNL (1995) 5 SCC 139.
- Ministry of Information and Broadcasting v. Cricket Association of
Bengal (1995) 2SCC 161.
- Ajay Goswami v. Union of India (2007) 1 SCC 143.
- Justice K.S. Puttaswamy v. Union of India (2017) 10 SCC 1.
- State of Bihar v. Shailabala Devi AIR 1952 SC 329.
- Mid-Day Multimedia Lt. v. Mushtaq Moosa Tarani. Civil Appeal No. 851 of
- Compare Zee News v. Navjot Sandhu SLP (Cri) No. 5464 of 2002.