Author: Haripriya Rajendra Tiwari Reshma, Adv Balasaheb Apte college of law
In the age of Netflix, Amazon Prime, Hotstar, and countless other OTT (Over-The-Top) platforms, the way Indians consume media has drastically changed. These digital spaces have allowed for more creative freedom, experimental storytelling, and diverse representation. However, this very freedom has also attracted increasing scrutiny from state authorities and social conservatives. The clash lies between Article 19(1)(a) of the Indian Constitution, which guarantees the right to freedom of speech and expression, and the growing demand for censorship of OTT content. This raises a vital constitutional question: Where should we draw the line between creative freedom and regulation? Does OTT content deserve the same protections as traditional speech, or should it be more tightly monitored due to its broad accessibility?
I. Understanding Article 19(1)(a): The Bedrock of Free Speech
1. The Scope of Article 19(1)(a)
Article 19(1)(a) of the Indian Constitution guarantees to all citizens the right to freedom of speech and expression. This includes freedom of the press, artistic freedom, and the right to express dissent. This provision lies at the heart of a liberal democracy and has been interpreted expansively by Indian courts.
In Romesh Thappar v State of Madras, the Supreme Court held that freedom of speech and expression is essential to the functioning of democracy and cannot be curtailed merely on grounds of disagreement or inconvenience.
Similarly, in Shreya Singhal v Union of India, the Supreme Court struck down Section 66A of the IT Act for being vague and overbroad, thus reiterating the importance of protecting online speech.
2. Reasonable Restrictions under Article 19(2)
Article 19(2) of the Constitution allows limits on free speech for reasons like public order, morality, and state security, but such limits must be specific and justified.”.
The Court in S. Rangarajan v P Jagjivan Ram ruled that mere threat to public sensibility or moral disapproval does not justify censorship.
II. OTT Platforms: The New Arena of Free Expression
1. Rise of OTT Platforms in India
OTT platforms have disrupted traditional media by offering unfiltered, often bold content, dealing with topics like sexuality, caste, religion, and politics. “With the rise of digital platforms, storytelling has become more decentralized, effectively sidestepping the traditional oversight of the Central Board of Film Certification (CBFC), which governs theatrical releases.”
While this has opened creative landscapes, it has also drawn criticism from certain religious, cultural, and political groups who claim such content hurts sentiments, promotes obscenity, or defames religious figures.
A significant controversy was Tandav (2021), a political web series on Amazon Prime that triggered FIRs across multiple states for allegedly offending religious sentiments.
2. Lack of a Statutory Regulatory Framework
“OTT platforms remained largely unregulated for years. In 2021, the Ministry of Information and Broadcasting brought them under the IT Rules to introduce formal oversight.” (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, bringing OTT platforms under formal oversight.
These rules introduced a three-tier grievance redressal mechanism, a content classification system (U/A, 13+, 16+), and self-regulation norms. While the government defended these rules as necessary for accountability, critics argue they amount to indirect censorship and violate Article 19(1)(a).
III. Legal and Constitutional Challenges to Censorship of OTT Content
1. OTT and Artistic Freedom: A Judicial Standpoint
In Indibily Creative Pvt Ltd v State of Madhya Pradesh, the Supreme Court stayed the criminal proceedings against the producers of Leila and Tandav, recognising the threat such actions pose to artistic freedom and online speech.
Source: Indibily Creative Pvt Ltd v State of Madhya Pradesh (2020) SC 2848/2020.
The judiciary, in these instances, has signalled that OTT content is protected under the same umbrella of Article 19(1)(a) as any other form of expression.
In the AIB Roast case, the Bombay High Court held that comedic performances and satire fall under the domain of protected speech unless they clearly fall under exceptions like incitement or hate speech.
2. Over-Regulation as Chilling Effect
Over-regulation or fear of prosecution often leads to self-censorship—what scholars call a “chilling effect”. This results in a shrinking of the public sphere, where artists and creators avoid socially relevant but controversial topics.
The Supreme Court has acknowledged this danger in Anuradha Bhasin v Union of India, where it emphasised that access to information and expression online cannot be arbitrarily curtailed.
The same principle applies to OTT content, which serves as an important vehicle for cultural discourse and dissent.
Conclusion
The freedom to speak, create, and express lies at the very heart of the Indian Constitution. In an increasingly digital world, OTT platforms represent a new frontier for this freedom. While there is a legitimate concern about harmful or offensive content, regulation must not become a weapon for ideological control or cultural policing.
The challenge is not about choosing between absolute freedom and absolute censorship. It is about finding a constitutional balance—where freedom under Article 19(1)(a) is preserved, and regulation under Article 19(2) is exercised with restraint and accountability.
“Haqq-se-Hadd Tak” – From right to restraint
OTT pe ab har baat dikhayi jaati hai, Jo na dikhana chahiye, wo bhi sajayi jaati hai.
Kehte hain ye “abhivyakti ki azaadi” hai, Par kya gaali bhi koi azaadi ki baat hoti hai?
Jo kala thi samaaj ko samjhane ke liye, Wo ab bik rahi hai bas dikhane ke liye.
Dharm, sanskriti, bhavnaayein sab mazaak ban gaye, Sirf likes aur views ke hisaab ban gaye.
Samvidhaan ne haq diya bolne ka, ye sahi hai, Par har haq ki ek maryada bhi to kahin hai.
FAQS
1. Are OTT platforms protected under Article 19(1)(a) of the Indian Constitution?
Yes. OTT content is a form of speech and expression and thus comes under the ambit of Article 19(1)(a), which guarantees freedom of speech. However, this right is not absolute and can be restricted under Article 19(2) on grounds such as public order, morality, decency, or security of the state.
2. Is there any specific law regulating OTT content in India?
Yes. As of February 2021, OTT platforms are regulated under the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, issued by the Ministry of Information and Broadcasting. These rules mandate a self-regulation mechanism, content classification, and grievance redressal systems.
3. How does OTT regulation differ from film and television censorship in India?
Unlike theatrical films which must obtain certification from the Central Board of Film Certification (CBFC), OTT platforms are not subject to pre-release censorship. However, under the 2021 IT Rules, they must adhere to a Code of Ethics, include age-based content classification, and resolve public grievances through a three-tier regulatory mechanism.
4. Why is there a push for stricter censorship on OTT platforms?
Critics argue that OTT content often depicts nudity, violence, or controversial political and religious themes without any regulatory oversight, making it easily accessible to minors or sensitive audiences. This has led to legal petitions and public outcries demanding tighter regulation in the interest of public morality and social harmony.
5. What is the constitutional challenge in regulating OTT platforms?
The central issue is balancing freedom of expression with reasonable restrictions under Article 19(2). Overregulation or censorship can lead to a chilling effect, discouraging filmmakers and creators from tackling bold or socially relevant themes. Courts may have to decide whether the current regulatory framework respects constitutional guarantees or unduly curtails creative freedom.
