Recently, a PIL was filed in the Bombay High Court by a law clerk working at the Nagpur bench of the court for regulation of online web streaming portals like Netflix for showcasing programmes containing nude content and vulgar language. It was alleged that some of the content violates provisions of Cinematograph Act, Indian Penal Code, Indecent Representation of Women (Prohibition) Act 1986 and Information Technology Act, 2000. While pursuing the matter, the High Court has issued notice to various ministries under the Union of India.
The petition states, “The contents of the aforesaid serial 'Sacred Games', which has gained popularity among the masses, it was observed by the Petitioner that highly vulgar language has been used to depict the underworld environment and the dark side of the society besides there being certain sexually unpleasant and indecent scenes, which are beyond the permissible limits. It is submitted that, more importance is given to nudity, obscenity and vulgarity than the original plot of the story just to fetch the attention of youth.”
The crucial fact that the petition fails to notice is that Netflix and other such web streaming portals can only be bought by adults above the age of 18. This means that only adults are exposed to the ‘sexual content’ unless they themselves allow children to use their accounts. If this is the case, that adult has the personal liberty to undertake any act without the interference of anyone. Therefore, the dramatic work that the adult may wish to view on Netflix forms a part of his Right to Life and Personal Liberty under Article 21 of the Constitution.
The word ‘obscene’ is not clearly defined in the Indian Penal Code but has a mention under Section 292. The concept is based on 19th century Victorian ideas of prudery, regarding anything that concerns sex as obscene. Under the section, a representation is said to be obscene if it is lascivious or appeals to the prurient interest or if its effect is such that it tends to deprave or corrupt the persons who are likely to read or see it. At the outset, a bare reading shows that the definition of obscenity, like indecency, is extremely vague, context-based and subject to different interpretations. What might be obscene for one class of individuals can be totally normal for some other class.
Another major point that should be looked into in such matters is the theory of free will. With respect to the indecent representation of women, modern feminism argues that women should be free to do whatever they desire. In the consideration of women’s issues arising within the confines of indecency, obscenity and immorality, it is necessary to ask what space is provided by law (or denied by it, for that matter) for a woman’s own will and desire, and a potential desire and right to express themselves sexually. Sadly, the definition of indecency under the Act fails to envisage a situation in which a woman may choose to represent herself in a way that is deemed “indecent” by the State.
Imagine a situation where a woman wants to publish a photograph or represent herself in a manner that is “sexually explicit”, “obscene” or “indecent”, and considered to deprave or corrupt public morality. Can such a woman be booked under provisions that have been put in place to protect her in the first place? And if that is the case, it in turn brings to light perhaps the most important question:
What exactly are these laws protecting? Is it women, or the idea of pure traditional womanhood, womanhood that is confined within the accepted patriarchal notions?
Claims of striking down such content on Netflix will lead to the question of whether the government or the judiciary would then also regulate such scenes of nudity, obscenity and vulgarity in Hollywood or Tollywood films. Another probable question that could arise thereafter is whether the government or judiciary would then block all pornographic websites. A ban on the same was put in 2014 but the government later backtracked and put a ban only on ‘child pornography’.
In fact, the Supreme Court had rejected a petition for a ban on the same on the grounds of its infringement upon the right to personal liberty and right to privacy. If a logical extension of this is applied to the present case, the privacy and choice of an individual should be respected even with the shows available on Netflix and thus, the petition should be dismissed on the face of it.
In the end, the wise words of Manto need special focus. After getting accused of immoral writing for his work Thanda Gosht he stated, “Literature can never be obscene”. For the conservatives, it is implored that they should take the literary and dramatic work for what it is and what message it sends as a whole.
Raghav Pandey is an Assistant Professor of Law at Maharashtra National Law University, Mumbai and Neelabh Bist is a Fourth Year student of law at Maharashtra National Law University, Mumbai.
Updated Date: Oct 10, 2018 18:51 PM