Author: Nivedita Kori, Student at Hidayatullah National Law University
TO THE POINT
OTT services like Amazon Prime, Disney+ Hotstar, Netflix, has now made entertainment like movies, series, shows accessible to every part of the country and to every single user without the certification of CBFC. It has been a great step towards the revolutionizing the entertainment industry. Though this has strengthened the creativity of the directors and makers and has boosted freedom of speech and expression, but it also raises legal issues related to obscenity, defamation, public morality, religious feelings and emotions. In response to the OTT Contents, India came up with the three-tier system which states that as issues and complaints will be first resolved by themselves and if not resolved a self-regulatory body will take an action and if still the issue is unresolved then finally the government will come into the action and will be involved in solving the matter. India brought up these rules under IT (Intermediary Guidelines and Digital Media Ethics Code) Rule, 2021. However, there’s still debates on this regarding whether these rules and guidelines have limited and restricted the creative side of the makers or are well and good to maintain the decency of the content that is been delivered by such platforms.
USE OF LEGAL JARGON
Pre-Censorship – It is the act of approving any content before publishing or releasing it.
Community Standard Test – It is a kind of legal test to supervise or judge obscenity based on what society finds acceptable.
Article 19(1)(a) of Indian Constitution – It guarantees freedom of speech and expression to every citizen of the country.
Reasonable Restrictions- Article 19(2) of Indian Constitution deals with reasonable restrictions that is imposing limitations on the fundamental rights of the citizens to protect and preserve public interest, public order, morality and decency or national interest.
Grievance Redressal Mechanism – A process through which any citizen could file a complaint against OTT contents under IT Rules, 2021, if they find it is harming the morality and decency of the society.
Self-Regulation – It a kind of system where the OTT Platforms itself classify their contents for example age classification and could address complaints without any prior interference of the government.
THE PROOF
Article 19(1)(a) (Freedom of speech and expression) – It provides the citizens of India the freedom to freely express their views and speak freely.
Article 19 (2) – Under this provision the state is free to impose any kind of reasonable restrictions on the freedoms of the citizens to maintain the public morality and order and to protect national interest and security.
IT Act, 2000 – It is an important statute that supervises online activities in India, which includes restricting harmful content, data security, cybercrime.
IT Rules, 2021 – It outlines rules and regulation for OTT Platforms and content and handling complaints and rating contents.
Cinematograph Act, 1952 – It supervises film production in India and has made CBFC certification compulsory for the movies before their release.
IPC Sections 292/294 (currently under BNS Section 294) – It deals with the penalty for displaying or speaking inappropriate and obscene content in public.
IRPA, 1986: Section 2(c), section 3, section 4 – It prohibits and penalizes the derogatory representation of women in advertisements, texts, and other media.
ABSTRACT
The emergence of the OTT Platforms in India has modified the way how content is governed and regulated because these movies and series are now directly reaching to the audiences without requiring certification or authorization. There has been reported certain complaints and legal actions towards the content that are criticized for being offensive, sexually explicit, obscene, hurting religious sentiments of certain group of people and being immoral to the society and crossing the limits of decency. But there still exists concerns regarding the impact of IT Rules, 2021 on free speech and expression and what type of content counts as obscene or immoral to the society. The concern is growing despite of the rules that describes the guidelines for the content labelling and complaint handling. This article throws light on certain recent rulings and precedents of Indian High Courts, regulatory models, constitutional mandates. There should be a balanced approach for regulating and maintain the public interest, creative freedom and the morals of the society.
CASE LAWS
Aveek Sarkar Vs State of West Bengal (2014)
The court upheld the “Community Standard Test” as the benchmark for checking obscenity and disapproved the “Hicklin Test” that was previously used to judge obscenity.
Latent Controversy – Samay Raina’s Podcast (2025)
Samay Raina, a very known standup comedian and Youtuber withdrawn his podcast “Latent” from the platform due the vulgar language used and comments made by the guest (Apoorva Mukhija and Ranveer Allahbadia) on his show. The comments made by his fellow guest were viral all over internet and were marked as morally inappropriate and obscene. There was no formal complaint against them and at end the all episodes related to the show were made private by the creator. This shows how public outrage can lead to self-censorship by the creators on the content that is harmful for people at large.
Deepika Padukone’s Controversy regarding “Besharam Rang” Song
The clothing style and the color of the outfit of the actress Deepika Padukone in the song “Besharam Rang” was in controversy for hurting the religious sentiments of the Hindu audiences. Debates went viral on artistic freedom vs religious sensitivity despite the edit scenes were approved by CBFC.
K.A. Abbas Vs Union of India (1970)
The issue revolved around whether imposing film censorship under the Cinematograph Act was violation of the fundamental right Article 19 (1)(a) i.e. freedom of speech and expression. The court further held that censorship can be imposed for protecting the public morality and order but it should not be arbitrary and if imposed the rules and regulations must be followed.
Shreya Singhal Vs Union of India (2015)
Section 66A of IT Act was struck down by judiciary in this case, as it violated Article 19(1)(a) of the Indian Constitution i.e. right to freedom of speech and expression and it was not considered as a reasonable restriction under Article 19(2) and was seen as vague. This ruling helped in protecting the online free speech in India.
Delhi HC – College Romance (2024)
On applying “Community Standard Test”, the court stated that the content shown in the web series “College Romance” had explicitly sexual and vulgar content and language with could harm and affect the younger generation and has also violated public decency and morality and have not further provided any age warnings.
Kerela HC – OTT Obscenity Petition (2023)
A petition was reviewed by the Kerela HC on obscene and disturbing content on OTT Platforms which looked upon the lack of pre-censorship unlike the CBFC certification that is done. IT Rules 2021 was the major focus point of this case which required age restrictions, parental control, and a grievance mechanism to check upon if people exceed their limit and affect fundamental rights of others, a complaint can be filed. Court in this case stated that to safeguard vulnerable group especially children, there is a need to strike balance between content restriction and freedom of expression.
CONCLUSION
OTT Platforms have increased the variety and accessibility of content but it also comes with the concerns related to public morality and decency. Although pre-approvals of the content is not appropriate every single time, self-regulation come over with it. Judiciary has tried to strike balance by mandating content classification rather than full fledge restrictions or bans. Not opting the way for stringent censorship, India could go with the blend of self-regulation and transparent judicial and legal guidelines and oversight and accountability.
FAQS
Q1. Is CBFC certification mandatory for the content delivered by the OTT Platforms?
Ans- No, OTT contents do not require CBFC certification but it should stick to and abide by the IT Rules, 2021.
Q2. Does government have the power to block the content delivered by OTT Platforms?
Ans- Yes, Section 69A of IT Act empowers the government to block content if it is harming public morality and decency. The content must be made in the interest of public.
Q3. What are certain requirements which are mentioned in IT Rules 2021, for the OTT contents?
Ans- The requirement under IT Rules for OTT Platforms are as follows:
Age classification
Grievance Redressal Mechanism
Parental Control
Q4. Is freedom of speech applicable to digital content?
Ans- Yes, it does apply to the digital content but with subject to reasonable restrictions under Article 19(2) of Indian Constitution.
Q5. What are the consequences when OTT Platform contents harm or hurts the religious sentiments of others?
Ans- In such cases, a complaint can be filed against such scene or series under IPC (now BNS) or IT Rules and the platforms are asked to remove or modify that particular controversial scene. For example, the scene from the song “Besharam Rang” where the actress Deepika Padukone was wearing “bhagwa” colored cloth with vulgar style was removed from the song as religious sentiments of various people were hurt from it.
