State Censorship, Self-Regulation, and the Politics of “Hurt” Sentiments in the Age of Digital Streaming: The Case of Sacred Games in India

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Riddhima Sharma

The fast-growing market for digital streaming content in India has encouraged major digital streaming platforms like Netflix and Amazon to produce and release original filmic content tailored for Indian audiences in the last decade. Sacred Games, the first Indian Netflix series targeted towards the burgeoning digital streaming content consumers in India,[1] which premiered in July 2018, marked a pivotal shift in public discourse around film censorship in India. The series is based on a crime-thriller novel by the same title by Vikram Chandra and revolves around the stories of Ganesh Gaitonde (a powerful underworld boss in Mumbai) and Sartaj Singh (a Mumbai police officer). The story begins with Singh receiving a call from Gaitonde, who asks Singh to save Mumbai in 25 days, and chronicles the events that unfold in which Singh discovers the larger political agendas at play. In the series, each episode shifts in and out of Gaitonde’s narration of his rise and fall from power, starting from the 1970s leading to the point in present day where he discovers a plan to attack Mumbai, and Singh’s present-day chase to uncover Gaitonde’s cryptic clues and save Mumbai city from destruction.

 

The first season of Sacred Games came under fire in 2018 for a scene in episode four, “Brahmahatya,” in which former Indian Prime Minister Rajiv Gandhi of the Indian National Congress party is referred to as a fattu (coward), and at which Ghandi was allegedly insulted. (The English subtitles on Netflix translate fattu as “pussy.”) The dialogue appears when Gaitonde narrates the Indian political context of 1985 before diving into his own personal journey in that year as a rising crime lord in (then) Bombay. At the heart of the ensuing controversy was the question of whether a fictional character can/should be allowed to abuse a former Prime Minister of the country.[2] A police complaint filed by a Congress leader in Kolkata and a legal case in the Delhi High Court to censor this scene led to vigorous discussions over the question of censorship of content that offends political parties, “hurts” sentiments, or defames the government, as well as the need to crackdown on problematic content on digital streaming platforms.[3] While there is no singular definition of whether digital streaming content falls into either the category of “film” or “television,” both the news media and state discourse around the Sacred Games case in India connects digital streaming content regulation to the Cinematograph Act 1952, which regulates films. Following that precedent, the analysis in this article is based on definitions of digital streaming content as filmic content.

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Figure 1 A still from Sacred Games season one, episode four of the controversial scene insulting former Indian PM, Rajiv Gandhi. (Image capture provided by author.)

Although the case against Sacred Games was eventually dismissed by the Delhi High Court,[4] it brought to light the lacunae in the legal-institutional film censorship apparatus—i.e. the Cinematograph Act 1952 and its film certification body, the Central Board of Film Certification (CBFC)—that has not been updated to include digital streaming services and filmic content being produced specifically for digital streaming platforms. Though most digital streaming platforms attempt to safeguard themselves by uploading only CBFC certified versions of films to avoid scrutiny, the spotlight on Sacred Games, which as a “Netflix Original Series” is outside the purview of the certification board, sparked discussions on the need to bring digital streaming platforms more fully under the purview of The Cinematograph Act.[5]

 

The anticipation of legal censorship of original digital streaming content raised concerns among digital streaming platforms about potential restrictions. These concerns led in January 2019 to a group of national and transnational digital streaming service providers including Netflix, Fox’s Hotstar (now owned by Disney), Viacom 18, ALTBalaji, Zee5, Arre, Eros Now, Sony Pictures Networks, and Jio Digital Life, to come together to formulate and sign the “Code for Self-Regulation of Online Curated Content Providers (OCCPs),” to be overseen by the Internet and Mobile Association of India.[6] Following the signing and adoption of this self-regulation Code, the release of Sacred Games’ second season in August 2019 also found the filmmakers in the midst of controversy over a scene where Sartaj Singh’s character (who is Sikh), is seen throwing his kada, a steel bracelet which is one of the sacred symbols of Sikhism, in the sea.

 

Accordingly, there are two central issues with which this article is concerned. First, it seeks to critically locate the cases of Sacred Games season one and two within India’s legal-institutional film certification apparatus, and the peculiar practice of extralegal/informal censorship of films in India by political, cultural, and religious groups or individuals through protests, (temporary) bans, or legal-judicial action specifically on the grounds of “hurt” sentiments. (For the purposes of this article, “hurt” sentiments are loosely defined as hurt religious, cultural, regional, or political sentiments.) To this end, I draw connections between the cases around the two seasons of Sacred Games and earlier cases of extralegal/informal film censorship of the Bollywood films  Aarakshan and Padmaavat. While India has diverse film industries producing films in over 15 different regional languages, the cases of film censorship I refer to are of Hindi language, Bollywood films, which limits the scope of my analysis of extralegal censorship in India to one regional film industry.

 

Second, this article also seeks to explore the (un)certainties surrounding the future of digital streaming content regulation in India by piecing together key discursive events from media reports and briefly discussing three future possibilities around digital streaming content regulation in India: (1) amending the Cinematograph Act to bring digital streaming content under its purview; (2) formulating a new set of regulations for digital streaming content; (3) accelerating the enforcement of the “Code for Self-Regulation of Online Curated Content Providers (OCCPs), the aforementioned self-regulatory code signed and adopted by a group of digital streaming service providers in January 2019 in the aftermath of the Sacred Games case.

 

 

Film Certification or Censorship?: Legal-Institutional Frameworks

In order to situate the politics of extra-legal or informal film censorship, as well as to understand socio-political attitudes towards film censorship and how film certification came to be synonymous with film censorship, it is critical to study the legal apparatus concerning film censorship in India. The Constitution of India, under Part III, Article 19(1)(a), enshrines the fundamental right to freedom of speech and expression, which includes the freedom of speech and expression of the press and media. However, Article 19(2) provides a qualifying clause, stating that, Article 19(1) does not affect any existing laws or prevent the State from making any law as long as these laws provide for reasonable restrictions on the right to freedom under Article 19(1) in the interest of “the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.”[7]

 

The Cinematograph Act, promulgated on March 21, 1952, is the legislation governing film certification in India. The Central Board of Film Certification (CBFC) is the executive arm that has the power to issue film certifications, with or without recommended modifications, deletions or additions, on a case by case basis. The types of certifications issued include, “U” (unrestricted public viewing), “U/A” (unrestricted viewing with a discretion for children under 12 years of age), “A” (restricted to adults), and “S” (restricted to a special class of people; for example, any professional group).

 

The Cinematograph (Certification) Rules, passed on May 9, 1983, lays down the procedure for the application, examination, issuance, revisions, and appeals process through the formation of a Film Certification Appellate Tribunal and by petition to the Supreme Court of India.[8] Three important sections of The Cinematograph Act to consider are section 5B, which defines the guiding principles for certification based on the constitutional provisions for reasonable restrictions on freedom of speech and expression; section 5E, which talks about cases where the CBFC can revoke or suspend a film that has been certified on certain grounds that contravene the directives of the CBFC); and section 13(1), which delineates the power of the Central Government or local authorities to suspend exhibition of films in certain cases within their jurisdiction at the local, state, or national levels, which can last no longer than two months.

 

In the last few decades, questions around the scope of CBFC’s powers in certifying films, the problems of CBFC’s censorial attitude, and judicial support for film censorship (evidenced in several Supreme Court judgments in favor of film censorship) have resulted in the CBFC often being referred to as a film censorship board instead of a certification board. The 1989 Supreme Court judgment in the case of S. Rangarajan Etc. vs P. Jagjivan Ram underlines the necessity of film censorship, thereby cementing the image of the CBFC as a censorship body and not just a certification body. The Supreme Court bench opined that, “It can, therefore, be said that the movie has unique capacity to disturb and arouse feelings. It has as much potential for evil as it has for good. It has an equal potential to instill or cultivate violent or good behavior. With these qualities and since it caters for mass audience who are generally not selective about what they watch, the movie cannot be equated with other modes of communication. It cannot be allowed to function in a free marketplace just as does the newspapers or magazines. Censorship by prior restraint is, therefore, not only desirable but also necessary.”[9]

 

Over the last ten years, attempts to revise the role and powers of CBFC have been made, particularly with an aim to address their uncurbed censorial powers. The Draft Cinematograph Bill introduced in 2010[10] and, more recently, a draft Indian Cinematograph Bill introduced in 2018[11] have not been well-received. The emphasis on censorship by prior restraint and upholding the alleged value of “reasonable restrictions” on freedom of speech and expression have prevented attempts to introduce any major changes in the film censorship laws. Censorship by prior restraint, the test of reasonableness in imposing restrictions on the freedom of speech as illuminated in Article 19(2) of the Constitution of India and section 5B of the Cinematograph Act, coupled with the power of local authorities and central government to suspend exhibition of films are therefore foundational in understanding the legal basis from which most acts of censorship operate.

 

 

Extralegal/Informal Film Censorship: Political Society, Cultural Sentiments & Attitudes of Intolerance

 

India is a multicultural society marked by its diverse traditions, religions, castes and languages. Cinematic traditions, as well as the languages in which films are produced and consumed, are therefore also many and diverse. This diversity, and the varying cultural-historical contexts within which they operate, is a space that has long been exploited for electoral politics by manufacturing contexts for religious, communal, caste, or regional hate and violence. Someswar Bhowmik, in his seminal essay titled “From Coercion to Power Relations: Film Censorship in Post-Colonial India,” sketches the cultural formations in postcolonial India by using the term “political society” to describe the processes of collective identity formation and mobilization by various groups in India and its close relationship to the nature of film censorship. He notes that “‘political society’ is composed of parties, movements, and non-party political formations. On the one hand, such formations constantly supersede, or sometimes usurp, the autonomous role of the individual in the society. On the other hand, they come in constant conflict with the norms, institutions, democratic rights, and entitlements so characteristic of a liberal civil society.”[12] Bhowmik traces the complex trajectories of how film censorship became an “exercise of power” by the Indian state apparatus and political actors,[13] in addition to the legal apparatus and its tensions with and manipulations of the constitutional rights of freedom of speech and expression on the basis of political ideology guised as “morality.”[14] Bhowmik’s arguments around the role of the state, political parties, and morality in film censorship, evidenced through examples of different films that were endorsed or were protested against (via public petitions, legal action, or state interventions either despite or in addition to CBFC certification decisions), form a foundational context to the postulations around censorship of digital streaming platforms in contemporary India.

 

Additionally, works of film scholars like Nandana Bose, Suzanne L. Schulz, Raminder Kaur and William Mazzarella have contributed to the scholarship around film censorship in India.[15] Central to some of this scholarship on film censorship in India is the complex relationship between legal processes and the Indian political society, more specifically the role of Hindu right wing or political party politics, public protests, morality, “hurt” cultural sentiments, and religious historical myths in extralegal or informal censorship of films. In the essay “Temporary Bans and Bad Laws: The Aarakshan Ban and the Logics of Censorship in Contemporary India,” Suzanne L. Schulz engages in a critical analysis of the phenomenon of extralegal or informal film censorship through a case study of the film Aarakshan (Reservation) and the discursive politics of “emotionally charged” public sentiments around caste based reservation policies in India.[16] The film, which had been granted a certificate by the CBFC, was banned in the northern state of Uttar Pradesh by the state government two days before it was set to release based on arguments that the film contained “objectionable” dialogues that could incite public outrage around reservation policies. Schulz argues that unofficial, informal, or extralegal censorship is in fact “in consonance with official censorship and not an aberration from it.”[17] She locates it within the “Foucauldian notion of governmentality to get at the driving logics, foundational beliefs, and regulatory practices that comprise the rise of the regional, identity-driven ban.”[18] Thus, her notion of a censorial governmentality sutures together legal, institutional attitudes with wider informal, socio-cultural attitudes towards film censorship in India.

 

 

The Politics of “Hurt Sentiments”

 

Using the term “hurt sentiments” is inspired partly by the practice of adding disclaimers at the beginning of films that often include a statement along the lines of “this film does not intend to hurt/disrespect the sentiments/feelings or beliefs of any religion/community” (particularly prevalent in films that deal with historical, religious, and other “sensitive” subjects). It is also inspired partly by the language of complaints or objections raised against the films and digital streaming content that are examined in this article, namely Sacred Games, Padmaavat, and Aarakshan. A recent news article in Times of India titled “Wary Movies Play Safe With Ever Expanding Disclaimers” brings attention to the expanding nature of disclaimers in Bollywood films that are a tool to shield filmmakers from potential backlash from religious groups or communities and that “get away with” dramatizations of historical or contemporary political subjects/events.[19] The article centers the cases of period films like Padmaavat and Bajirao Mastani and political drama films like Article 15 (named after Article 15 of the Constitution of India that prohibits discrimination against any person on grounds of religion, race, caste, sex or place of birth and that deals with the sensitive issue of caste discrimination) where the filmmakers had to include lengthy disclaimers at the beginning of the film to (hopefully) diffuse any backlash from religious groups or communities.

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Figure 2. A still from the film Article 15 with a screenshot of the film's disclaimer.  from the Times of India article “Wary Movies Play Safe With Ever Expanding Disclaimers.”

(image credit: https://timesofindia.indiatimes.com/entertainment/hindi/bollywood/news/wary-movies-play-safe-with-ever-expanding-disclaimers/articleshow/70713908.cms)

Additionally, Schulz refers to the notion of “hurt sentiments” in the conclusion of her analysis of the Aarakshan ban and controversy by noting that, “While the constitutional right to freedom of speech is assumed to be clear-cut and universal, legal and critical perspectives show that there is no such certainty when it comes to identifying or representing “hurt sentiments,” nor are there fixed methods to determine public interest or potential threats to public order.”[20]

 

A more recent case in point is the Bollywood period film Padmaavat (2018). Set in Mewar, Rajasthan, Padmaavat is the story of a Rajput queen, Rani Padmavati who commits jauhar (self-immolation) to escape capture by Alauddin Khilji, the ruler of Delhi, after her husband, the king of Mewar, is defeated and killed by Khilji on the battleground. Because the film deals with the fraught history of Mughal (Muslim)- Rajput (Hindu) politics, it came under public scrutiny in early 2017 during its final stages of production when rumors of an alleged intimate scene between Padmavati and Khilji in the film incited outrage among a Rajput group called Karni Sena. Members of Karni Sena staged public protests in defense of the honor of a Rajput Queen and against the distortion of their cultural history which “hurt” their cultural sentiments.[21] Despite receiving certification from the CBFC with some modifications and deletions, public-political protests supported by right wing BJP leaders, death threats to the filmmaker and actors of the film, and cases of violent outrage in Rajasthan, led to calls for a nationwide ban.[22] They also led to a suspension of exhibition in several BJP-led states under section 13(1) of The Cinematograph Act. The case was heard in the Supreme Court of India, which green-lighted its release and quashed the petition for banning the film.[23]

 

The film was released in January 2018, albeit with a number of new modifications, most significant of which was the change in the title from Padmavati to Padmaavat to clearly indicate that the film was inspired by a 16th century poem by Sufi poet Malik Muhammad Jayasi, titled “Padmavat,” which gives “an account of a Rajput queen of Chittor who chooses to kill herself rather than be captured by Delhi ruler Alauddin Khilji.”[24] A disclaimer at the beginning of the film also explicitly states that the film is inspired by Malik Muhammad Jayasi’s poem and that the film does not intend to “disrespect, impair or disparage the beliefs, feelings, sentiments of any person(s), community(ies) and their culture(s), custom(s), practice(s) and tradition(s).”  

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Figure 3. A screenshot of the disclaimer that appears at the beginning of the film Padmaavat. (Image capture provided by author.)

The developments in this case illuminate the limitations of the CBFC and the extent to which informal, political censorship is normalized and perhaps even welcomed in India. Such sanctions, aided by the abstract language of the guiding principles of censorship and reasonable restrictions on freedom of speech and expression enshrined in the Constitution and The Cinematograph Act,[25] often mean that filmmakers must constantly negotiate with the political regime, the legal certification/censorship bodies, public sentiments, and, in some cases, the courts to release their filmic works.

 

These two cases illustrate how the CBFC certification process is fraught. While the cases of films like Aarakshan and Padmaavat provide context to understanding the precarious nature of extralegal or informal film censorship in India, the case of Sacred Games further complicates this discourse by opening up discussions around digital streaming content that is currently not censored legally. The case of Sacred Games brings to light a complex, urgent set of issues about the legitimacy of digital filmic content that have not been previewed and approved by a legal-institutional censorship body and is therefore not sanitized for viewership in India.

 

 

Looking to the future: Self-Regulation of Original Digital Streaming Content

As mentioned previously, the charged public and political discourse around censorship of digital streaming platforms led to a group of digital streaming service providers including Netflix, Fox’s Hotstar (now owned by Disney), ALTBalaji, Jio Digital Life, SonyLiv, Viacom 18, Eros Now, Arre and Zee5 to sign the “Code for Self-Regulation of Online Curated Content Providers (OCCPs)” in January 2019, to be overseen by the Internet and Mobile Association of India. Amazon India refused to sign this Code, claiming that the present legal apparatus was adequate.[26] A close reading of the draft version of the Code reveals that it is meant to act as a mechanism to protect the interests of OCCPs and their freedom of expression via key regulatory principles.

 

At the outset, the Code document underlines the importance of content regulation by OCCPs by providing information on the nature of the content, disclaimers, and categorization of content into universal viewing, parental guidance required, and adults only. It also adds that viewer discretion and consumer responsibility is critical for this model of content regulation to work. Most importantly, the Code enumerates the kinds of content or subject materials that the OCCPs will strive to prohibit from their platforms, including “a) content which deliberately and maliciously intends to outrage religious sentiments of any class, section or community; b) content which deliberately and maliciously promotes or encourages terrorism and other forms of violence against the State (of India) or its institutions; and c) content that has been banned for exhibition or distribution by online video service under applicable laws or by any court with competent jurisdiction.”

 

This self-regulatory framework of the Code appears to be very similar to the guiding principles of CBFC and speaks to the future direction of digital streaming, freedom of speech and expression and film censorship.[27] The major and perhaps only difference between The Cinematograph Act and this Code is in the executive powers—in other words, who decides on the certification and censorship of the film/digital content. The OCCPs clearly believe this self-regulatory framework, in which the digital streaming platforms hold self-regulatory power to decide what should or should not be allowed to stream instead of the national institutional body of CBFC, is more beneficial for their purposes of continuing to market themselves as bold, new generation media platforms. By capitalizing on the ideas of freedom of speech and expression by producing original content like Sacred Games that would perhaps not clear CBFC certifications without major censorship and modifications if it were made for a theater release instead of an online release, OCCPs can market their original content as free from state/legal censorship. The reality, however, is more complex than that, especially since this agreement of self-regulation is also being criticized as bowing down to state censorship and political power.[28] In light of these developments, a question that invites further scrutiny is whether digital streaming platforms balance their image as champions of free speech and expression through a self-regulatory censorship code without compromising greatly on the content they produce or further becoming ensconced within state censorship.

 

 

Post Self-Regulation Code: Another Sacred Games Case

 

The self-regulation Code had barely started putting its wheels in motion when Netflix released the second season of Sacred Games on August 15, 2019. A week into its release, the series got into trouble when Manjinder Singh Sirsa, a leader of the political party Akali Dal, made a public statement on Twitter regarding a particular scene in one of the episodes hurting Sikh religious sentiments. The scene in question is from episode six, titled “Azrael,” which shows the character of Sartaj Singh, a Sikh cop, remove and throw his kada (a steel bracelet), a Sikh religious symbol, into the sea in a moment where he is having a crisis of faith. Sirsa’s Twitter statement said, “These people are minting money hurting our religious sentiments which can’t be allowed in the name of Freedom of Expression” (@mssirsa, August 19, 2019).

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Figure 4. A screenshot of Manjinder S Sirsa’s statement on Twitter slamming Sacred Games 2 for hurting Sikh religious sentiments. (Image capture provided by author.)

Additionally, Tajinder Bagga, a political leader who is the spokesperson of Bharatiya Janata Party (BJP) in Delhi, filed a police complaint against Anurag Kashyap, the director of Sacred Games, based on similar claims of the series hurting religious sentiments. In his police complaint, Bagga argues that, “the accused deliberately and intentionally depicted the scene in his web series with sole intention of insulting and outraging religious feelings of the people belonging to the Sikh community to promote disharmony, enmity, hatred and ill-will between different religious groups to provoke breach of peace by giving provocation and to severally insult the religious beliefs of the Sikhs.”[29]

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Figure 5. A screenshot of a tweet by Delhi BJP member Jaspreet Singh Matta containing a picture of the police complaint filed by Delhi BJP Spokesperson Tajinder Bagga against Anurag Kashyap, one of the directors of Sacred Games for hurting religious sentiments. (Image capture provided by author.)

Continuing patterns of political pressure, calls for censorship, and threats of legal action from season one of Sacred Games in 2018 to season two in 2019 can be seen, despite a self-regulation Code being set up earlier in 2019. Whether the second season of the show had been previewed and self-regulated by the filmmakers or Netflix before its release is unclear at this moment. However, the discourse around censorship of digital streaming content has revitalized following the Sacred Games season two controversy around “hurt” religious sentiments. In a separate yet related incident, a member of the Hindu right wing political party Shiv Sena’s IT cell filed a police complaint against Netflix in September, claiming that Netflix original series like Sacred Games, Leila, and Hasan Minhaj’s stand-up comedy show titled Patriot Act promote “Hinduphobia” and “hurt” Hindu religious sentiments.[30] This news report highlights a case where there is no particular scene, words or references that are being called under scrutiny, but the larger project of original content being produced and streamed on Netflix in India is questioned, based on “hurt” Hindu religious sentiments.

 

 

Potential future(s) of Digital Streaming Content Censorship in India

 

The complexities of socio-cultural and religious groups and political parties’ role in the extralegal censorship of films by manipulating portions of the Constitutional provision of Article 19(2), The Cinematograph Act’s sections 5B, 5E and 13(1), and the self-censorship features of the Code adopted by a group of OCCPs open up a critical discursive space to study the role and power of censorship in the age of digital streaming and what the future holds for freedom of expression in film-making. Following the political discourse of “hurt” public religious sentiments, efforts to materialize concrete legal censorship provisions for digital streaming platforms has renewed. A couple of weeks after the cases against Sacred Games season two surfaced in August 2019, the national Ministry of Information and Broadcasting (I&B) invited suggestions for the certification of digital streaming content.[31] The I&B minister, Prakash Javadekar, announced this at a meeting organized by the CBFC where film industry members were also present. This state invitation for a dialogue around digital film certification signals a tilt towards instituting legal procedures for certification, and, by extension, censorship of digital streaming content, amidst a rise in extralegal political, religious and cultural censorship based on “hurt” sentiments, as evidenced in the charged discourse around Sacred Games. The need to bring the growing number of cases or calls for censorship of digital streaming content under the purview of current legislations, or to design new legislative procedures,[32] also indicates a sense of dissatisfaction towards the self-regulatory model adopted by the digital streaming platforms earlier in January 2019.

 

The challenges of formulating and enforcing legal certification and censorship procedures for digital streaming content are several. The uncertainties around this issue in the present moment point towards a couple of real and complex possibilities about the future of the digital streaming industry in India. One very real possibility is the amendment of the Cinematograph Act to include a section on certification of digital streaming content and instituting specific guidelines for this certification process. A second possibility is the formulation of an entirely new legal code for certification of digital streaming content. In both cases, a practical issue that arises is of jurisdiction. Barring a few platforms that are based in India and solely cater to Indian audiences, the major players in this market are platforms like Netflix, Amazon and Hotstar, which are transnational and produce content for a diverse global market, India being just one of the many. In such a globalized scenario, where jurisdictional boundaries are blurred, questions abound concerning what content any potential legal-institutional bodies like CBFC can legally censor or certify. The liminal position of on-demand, digitally streamed content that is not particularly local, but, in fact, global, may pose a real challenge to any censorship processes that may be instituted in India in the future. In a media interview on the potential censorship of digital streaming content, Prasanto Roy, a technology policy analyst commented, “With regulation, all of the (global) content will need to be sanitized for India—a huge, expensive and time-consuming exercise.”[33] Therefore, in addition to the complexities of territorial jurisdiction,[34] the question of whether global digital streaming companies are willing to devote time and monetary resources to making content compliant to the Indian legal certification requirements merits consideration.

 

A third, perhaps more favorable possibility is that the self-regulation Code signed by OCCPs in January 2019 would need to be enforced rigorously, and perhaps even amended to include a good redressal process. Accelerating the enforcement of this Code and establishing concrete redressal processes either individually (i.e. at individual companies like Netflix, ALTBalaji etc.) or collectively, in the form of a one-stop complaint redressal body that effectively demonstrates the commitment of these platforms to self-regulation, could alleviate the legal-political concerns over unregulated digital content in India. Even if this kind of ideal scenario was possible, it would still leave Amazon, a major digital streaming platform, out of the self-regulation Code’s purview since it refused to sign the Code. However, the question of whether the state and political actors in India will agree to this model remains to be seen, since, so far, there has been a push towards formal, legal censorship evidenced in the discourse around the Sacred Games cases.

 

 

(Un)Certain Conclusions

 

Locating Sacred Games and other original digital streaming content as filmic content within the legal frameworks of film censorship in India, this essay weaves the cases against the series into the broader politics of “hurt” sentiments around films that predate (and continue on into) the digital streaming age. As scholars like Bhowmik, Bose and Schulz note, there have been numerous cases of extralegal censorship in postcolonial India, especially around issues of cultural and public sentiments. Socio-cultural, religious and political groups play a central role in such extralegal censorship. They exert pressure on filmmakers through public protests, complaints, threats, or statements in the media condemning streaming content, demanding censorship of particular scenes, and/or seeking disclaimers around the subject of the film on the grounds that they “hurt” the sentiments of a particular religious, socio-cultural or political group. As evidenced in the case of Padmaavat, the CBFC certification processes has not always aided filmmakers in protecting their work from extralegal censorial demands. This has often resulted in filmmakers having to go back to the cutting room to censor, modify, and provide disclaimers for objectionable portions in their films in order to be released.

 

Thus, in the case of original digital streaming content, which presently does not fall under any legal censorship apparatuses, makers of original digital streaming content are left in a precarious position when confronted with cases of “hurt” sentiments. Considering the cases of extralegal censorship against certified and theatrically released films, it seems unlikely that any form of legal or self-regulatory censorship codes can fully safeguard filmmakers and the streaming platforms from extralegal/informal censorship by one or multiple actors in India’s political society, where it is remarkably difficult to ensure that no sentiments are “hurt.”

 

Notes

 

[1] Nyay Bhushan, “Netflix Series Faces Legal Case Over Portrayal of Ex-India Prime Minister,” The Hollywood Reporter, July 13, 2018, https://www.hollywoodreporter.com/news/sacred-games-netflix-show-legal-case-india-pm-rajiv-gandhi-1126875.

[2] Rahul Joglekar, “Why Netflix's 'Sacred Games' Is Facing a Court Case in India,” Time, July 20, 2018, http://time.com/5339495/sacred-games-netflix-india-court/.

[3]  See Bhushan “Netflix Series Faces Legal Case”; Aroon Deep, “Delhi High Court: Netflix Refuses to Censor Rajiv Gandhi Dialogue in Sacred Games,” MediaNama, August 13, 2018, https://www.medianama.com/2018/08/223-delhi-high-court-netflix-refuses-to-censor-rajiv-gandhi-dialogue-in-sacred-games/.

[4] Richa Banka,  “Sacred Games Actors Cannot Be Held Liable for Dialogues, Says Delhi HC,” Hindustan Times, July 16, 2018, https://www.hindustantimes.com/india-news/sacred-games-actors-cannot-be-held-liable-for-dialogues-says-delhi-hc/story-ggJfcXePoUIDtAoZy9yaLK.html.

[5] See Abhimanyu Ghoshal, “India's Plans to Censor Streaming Services like Netflix Are a Mess,” The Next Web, November 16, 2018, https://thenextweb.com/in/2018/11/16/indias-plans-to-censor-streaming-services-like-netflix-are-a-mess/amp/; Vinay Kesari, “Censorship in the Age of Netflix,” FactorDaily, August 20, 2018, https://factordaily.com/censorship-in-the-age-of-netflix/.

[6] PTI News,  “Self-Regulation or Self-Censorship? Netflix, Hotstar, Voot . . . Sign Code,” Bloomberg Quint, January 18, 2019. https://www.bloombergquint.com/pti/streaming-platforms-netflix-hotstar-7-others-sign-self-regulation-code-2

[7] Someswar Bhowmik, “Politics of Film Censorship: Limits of Tolerance,” Economic and Political Weekly 37, no. 35 (August 31, 2002): 3574-577, https://www.epw.in/journal/2002/35/commentary/politics-film-censorship.html.

[8] See Bhowmik, “Politics of Film Censorship”; Nandana Bose, “‘We Do Not Certify Backwards’: Film Censorship in Postcolonial India,” in Silencing Cinema: Film Censorship around the World, edited by Daniel Biltereyst and Roel Vande Winkel (New York: Palgrave MacMillan. 2-13), 191–206; Arpan Banerjee, “Assessing the Track Record of India’s Film Certification Appellate Tribunal,” Journal of Media Law 2, no. 2 (2010): 277-94.

[9] S. Rangarajan Etc. vs P. Jagjivan Ram (1989) SCR 2 (Supreme Court of India), 204.

[10] See Anjali Monteiro and K.P. Jayasankar, “A New Pair of Scissors: The Draft Cinematograph Bill 2010,” Economic and Political Weekly, July 17, 2010, https://www.epw.in/journal/2010/29/commentary/new-pair-scissors-draft-cinematograph-bill-2010.html.

[11] See Shubham Borkar, “Modern Day Law for the Modern Indian Cinema (Indian Cinematograph Bill, 2018) Insights, Highlights, Proposals, Drawback, Analysis) - Media, Telecoms,” Mondaq, February 07, 2019, http://www.mondaq.com/india/x/778618/broadcasting+film+television+radio/Modern+Day+Law+for+the+Modern+Indian+Cinema+Indian+Cinematograph+Bill+2018+Insights+Highlights+Proposals+Drawback+Analysis; Online Desk, “Shashi Tharoor Wants Government Interference Curbed in Film Certification, Introduces Cinematograph Amendment Bill,” The New Indian Express, August 07, 2018, http://www.newindianexpress.com/nation/2018/aug/07/shashi-tharoor-wants-government-interference-curbed-in-film-certification-introduces-cinematograph-1854547.html.

[12] Bhowmik, “Politics of Film Censorship,” 3150.

[13] Bhowmik, “Politics of Film Censorship, 3151.

[14] Bhowmik, “Politics of Film Censorship, 3151.

[15] Nandana Bose, “The Hindu Right and the Politics of Censorship: Three Case Studies of Policing Hindi Cinema, 1992–2002,” The Velvet Light Trap 63, no. 1 (2009), 22-33; Nandana Bose, “The Central Board of Film Certification Correspondence Files (1992–2002): A Discursive Rhetoric of Moral Panic, ‘Public’ Protest, and Political Pressure,” Cinema Journal 49, no. 3 (2010), 67–87; Raminder Kaur and William Mazzarella, eds., Censorship in South Asia: Cultural Regulation from Sedition to Seduction (New Delhi: Routledge, 2012); Suzanne L. Schulz, “Temporary Bans and Bad Laws: The Aarakshan Ban and the Logics of Censorship in Contemporary India,” Communication, Culture & Critique 9, no. 4 (2015), 537-57.

[16] Schulz, “Temporary Bans and Bad Laws,” 543.

[17] Schulz, “Temporary Bans and Bad Laws,” 542.

[18] Shculz, Temporary Bans and Bad Laws,” 557.

[19] Niharika Lal, “Wary Movies Play Safe with Ever-Expanding Disclaimers,” The Times of India, August 18, 2019, https://timesofindia.indiatimes.com/entertainment/hindi/bollywood/news/wary-movies-play-safe-with-ever-expanding-disclaimers/articleshow/70713908.cms.

[20] Shculz, Temporary Bans and Bad Laws,” 557.

[21]FP Staff, “Padmavati Controversy: Real Reason behind the Clamour to Ban Sanjay Leela Bhansali Film is Clash of Inflated Egos,” FirstPost, November 21, 2017, https://www.firstpost.com/entertainment/padmavati-controversy-real-reason-behind-the-clamour-to-ban-sanjay-leela-bhansali-film-is-clash-of-inflated-egos-4221397.html.

[22] Express Web Desk, “As Supreme Court Lifts Ban on Padmaavat, here’s a Timeline of the Hurdles It Faced,” The Indian Express, January 18, 2018, https://indianexpress.com/article/entertainment/bollywood/padmavati-ban-release-controversies-5026721/.

[23]A. Vaidyanathan, “No ‘Padmavati’ Ban, Says Supreme Court, Rebukes Chief Ministers,” NDTV.com. November 28, 2017. https://www.ndtv.com/india-news/again-supreme-court-rejects-padmavati-ban-rebukes-chief-ministers-1780862

[24] HT Correspondent, “Padmavati Becomes Padmavat to Clear Censor Test, Rajput Groups Warn of Violence,” Hindustan Times, January 11, 2018, https://www.hindustantimes.com/bollywood/padmavati-is-padmavat-as-movie-clears-censor-test-rajput-groups-upset-warn-of-violence/story-TFDriPgnWssrnnAWEz4FtN.html.

[25] Bhowmik, “Politics of Film Censorship,” 3575.

[26] Naman Ramachandran, “Netflix and Amazon Take Different Sides on Content Regulation in India,” Variety, January 17, 2019, https://variety.com/2019/digital/asia/netflix-and-amazon-different-positions-online-censorship-in-india-1203110392/#.

[27] PTI News,  “Self-Regulation or Self-Censorship?”

[28] PTI News,  “Self-Regulation or Self-Censorship?”

[29] HT Correspondent, “Sacred Games: BJP's Tajinder Bagga Files Police Complaint against Anurag Kashyap over Controversial 'Kada' Scene,” Hindustan Times, August 20, 2019, https://www.hindustantimes.com/tv/sacred-games-bjp-s-tajinder-bagga-files-police-complaint-against-anurag-kashyap-over-controversial-kada-scene/story-AIgve5nsLi7xD0shTfWXHN.html.

[30]ANI, “Deep-Rooted Hinduphobia: Shiv Sena Member Files Case against Netflix,” The Asian Age, September 4, 2019. https://www.asianage.com/india/all-india/040919/deep-rooted-hinduphobia-shiv-sena-member-files-case-against-netflix.html.

[31] Lata Jha, “I&B Ministry Invites Suggestions for Certification of Online Content,” Livemint,  September 1, 2019, https://www.livemint.com/industry/media/i-b-ministry-invites-suggestions-for-certification-of-online-content-1567318261311.html.

[32] Aditya Kalra and Shilpa Jamkhandikar, “Netflix, Amazon Face Censorship Threat in India as Court Cases Grow: Report,” Business-Standard, October 17, 2019, https://www.business-standard.com/article/current-affairs/netflix-amazon-face-censorship-threat-in-india-as-court-cases-grow-report-119101701130_1.html.

[33] Kalra and Jamkhandikar, “Netflix, Amazon Face Censorship Threat.”

[34] Alok Prasanna Kumar, “When It Comes to Netflix, the Government of India Has No Chill,” MediaNama, October 3, 2019, https://www.medianama.com/2019/10/223-when-it-comes-to-netflix-the-government-of-india-has-no-chill/.

 

 

 
Bibliography

 

ANI. “Deep-Rooted Hinduphobia: Shiv Sena Member Files Case against Netflix.” The Asian Age, September 4, 2019. https://www.asianage.com/india/all-india/040919/deep-rooted-hinduphobia-shiv-sena-member-files-case-against-netflix.html.

 

Banerjee, Arpan. “Assessing the Track Record of India’s Film Certification Appellate Tribunal.” Journal of Media Law 2, no. 2 (2010): 277-94. doi:10.1080/17577640.2010.11675780.

 

Banka, Richa. “Sacred Games Actors Cannot Be Held Liable for Dialogues, Says Delhi HC.” Hindustan Times, July 16, 2018. https://www.hindustantimes.com/india-news/sacred-games-actors-cannot-be-held-liable-for-dialogues-says-delhi-hc/story-ggJfcXePoUIDtAoZy9yaLK.html.

 

Bhowmik, Someswar. Cinema and Censorship: The Politics of Control in India. New Delhi: Orient Blackswan. 2009.

 

Bhowmik, Someswar. “Politics of Film Censorship: Limits of Tolerance.” Economic and Political Weekly 37, no. 35 (August 31, 2002): 3574-577. https://www.epw.in/journal/2002/35/commentary/politics-film-censorship.html.

 

Bhushan, Nyay. “Netflix Series Faces Legal Case Over Portrayal of Ex-India Prime Minister.” The Hollywood Reporter. July 13, 2018. Accessed May 07, 2019. https://www.hollywoodreporter.com/news/sacred-games-netflix-show-legal-case-india-pm-rajiv-gandhi-1126875.

 

Borkar, Shubham. “Modern Day Law for the Modern Indian Cinema (Indian Cinematograph Bill, 2018 {Insights, Highlights, Proposals, Drawback, Analysis}) - Media, Telecoms.” Mondaq. February 07, 2019. Accessed May 01, 2019. http://www.mondaq.com/india/x/778618/broadcasting+film+television+radio/Modern+Day+Law+for+the+Modern+Indian+Cinema+Indian+Cinematograph+Bill+2018+Insights+Highlights+Proposals+Drawback+Analysis

 

Bose, Nandana. “‘We Do Not Certify Backwards’: Film Censorship in Postcolonial India.” In Silencing Cinema: Film Censorship around the World, edited by Daniel Biltereyst and Roel Vande Winkel, 191–206. New York: Palgrave MacMillan, 2013.

 

Bose, Nandana. “The Hindu Right and the Politics of Censorship: Three Case Studies of Policing Hindi Cinema, 1992–2002.” The Velvet Light Trap 63, no. 1 (2009): 22-33. doi:10.1353/vlt.0.0029.

 

Bose, Nandana. 2010. “The Central Board of Film Certification Correspondence Files (1992–2002): A Discursive Rhetoric of Moral Panic, ‘Public’ Protest, and Political Pressure.” Cinema Journal 49 (3): 67–87. https://doi.org/10.1353/cj.0.0217.

 

 “Central Board of Film Certification.” n.d. CBFC. Accessed March 13, 2019. https://www.cbfcindia.gov.in/.

 

Deep, Aroon. “Delhi High Court: Netflix Refuses to Censor Rajiv Gandhi Dialogue in Sacred Games.” MediaNama. August 13, 2018. Accessed May 01, 2019. https://www.medianama.com/2018/08/223-delhi-high-court-netflix-refuses-to-censor-rajiv-gandhi-dialogue-in-sacred-games/.

 

Express Web Desk. “As Supreme Court Lifts Ban on Padmaavat, here’s a Timeline of the Hurdles It Faced.” The Indian Express. January 18, 2018. Accessed April 29, 2019. https://indianexpress.com/article/entertainment/bollywood/padmavati-ban-release-controversies-5026721/.

 

FP Staff. “Padmavati Controversy: Real Reason behind the Clamour to Ban Sanjay Leela Bhansali Film is Clash of Inflated Egos.” FirstPost. November 21, 2017. Accessed April 28, 2019. https://www.firstpost.com/entertainment/padmavati-controversy-real-reason-behind-the-clamour-to-ban-sanjay-leela-bhansali-film-is-clash-of-inflated-egos-4221397.html.

 

Ghoshal, Abhimanyu. "India's Plans to Censor Streaming Services like Netflix Are a Mess." The Next Web. November 16, 2018. Accessed May 01, 2019. https://thenextweb.com/in/2018/11/16/indias-plans-to-censor-streaming-services-like-netflix-are-a-mess/amp/.

 

HT Correspondent. 2019. “Sacred Games: BJP's Tajinder Bagga Files Police Complaint against Anurag Kashyap over Controversial 'Kada' Scene.” Hindustan Times, August 20, 2019. https://www.hindustantimes.com/tv/sacred-games-bjp-s-tajinder-bagga-files-police-complaint-against-anurag-kashyap-over-controversial-kada-scene/story-AIgve5nsLi7xD0shTfWXHN.html.

 

HT Correspondent. 2018. “Padmavati Becomes Padmavat to Clear Censor Test, Rajput Groups Warn of Violence.” Hindustan Times, January 11, 2018. https://www.hindustantimes.com/bollywood/padmavati-is-padmavat-as-movie-clears-censor-test-rajput-groups-upset-warn-of-violence/story-TFDriPgnWssrnnAWEz4FtN.html.

 

Jha, Lata. “I&B Ministry Invites Suggestions for Certification of Online Content.” https://www.livemint.com, September 1, 2019. https://www.livemint.com/industry/media/i-b-ministry-invites-suggestions-for-certification-of-online-content-1567318261311.html.

 

Joglekar, Rahul. “Why Netflix's 'Sacred Games' Is Facing a Court Case in India.” Time. July 20, 2018. http://time.com/5339495/sacred-games-netflix-india-court/.

 

Kalra, Aditya, and Shilpa Jamkhandikar. “Netflix, Amazon Face Censorship Threat in India as Court Cases Grow: Report.” Business-Standard, October 17, 2019. https://www.business-standard.com/article/current-affairs/netflix-amazon-face-censorship-threat-in-india-as-court-cases-grow-report-119101701130_1.html.

 

Kaur, Raminder, and William Mazzarella, eds. Censorship in South Asia: Cultural Regulation from Sedition to Seduction. New Delhi: Routledge, 2012.

 

Kesari, Vinay. “Censorship in the Age of Netflix.” FactorDaily. August 20, 2018. https://factordaily.com/censorship-in-the-age-of-netflix/.

 

Kumar, Alok Prasanna. “When It Comes to Netflix, the Government of India Has No Chill.” MediaNama, October 3, 2019. https://www.medianama.com/2019/10/223-when-it-comes-to-netflix-the-government-of-india-has-no-chill/.

 

Lal, Niharika. “Wary Movies Play Safe with Ever-Expanding Disclaimers.” The Times of India. The Times of India, August 18, 2019. https://timesofindia.indiatimes.com/entertainment/hindi/bollywood/news/wary-movies-play-safe-with-ever-expanding-disclaimers/articleshow/70713908.cms.

 

Monteiro, Anjali, and K.P. Jayasankar. “A New Pair of Scissors: The Draft Cinematograph Bill 2010.” Economic and Political Weekly. July 17, 2010. Accessed May 07, 2019. https://www.epw.in/journal/2010/29/commentary/new-pair-scissors-draft-cinematograph-bill-2010.html.

 

Moran, Albert. Film Policy: International, National, and Regional Perspectives. London: Routledge, 1996.

 

Online Desk. “Shashi Tharoor Wants Government Interference Curbed in Film Certification, Introduces Cinematograph Amendment Bill.” The New Indian Express. August 07, 2018. Accessed May 02, 2019. http://www.newindianexpress.com/nation/2018/aug/07/shashi-tharoor-wants-government-interference-curbed-in-film-certification-introduces-cinematograph-1854547.html.

 

PTI. “Self-Regulation or Self-Censorship? Netflix, Hotstar, Voot...Sign Code.” Bloomberg Quint. January 18, 2019. https://www.bloombergquint.com/pti/streaming-platforms-netflix-hotstar-7-others-sign-self-regulation-code-2.

 

Ramachandran, Naman. “Netflix and Amazon Take Different Sides on Content Regulation in India.” Variety. January 17, 2019. https://variety.com/2019/digital/asia/netflix-and-amazon-different-positions-online-censorship-in-india-1203110392/#

 

Rauta, Anushree. “Decoding IAMAI’S Code of Best Practices for Online Curated Content Providers.” IPRMENTLAW. January 20, 2019. http://iprmentlaw.com/2019/01/20/decoding-iamais-code-of-best-practices-for-online-curated-content-providers/.

 

S. Rangarajan Etc. vs P. Jagjivan Ram [1989] SCR 2 (Supreme Court of India).

 

Schulz, Suzanne L. “Temporary Bans and Bad Laws: The Aarakshan Ban and the Logics of Censorship in Contemporary India.” Communication, Culture & Critique 9, no. 4 (2015): 537-57. doi:10.1111/cccr.12125.

 

Staff, Scroll. “Akali Dal Leader Says, ‘Sacred Games’ Season 2 Hurts Sikh Religious Sentiments, Wants Legal Action.” Text. Scroll.in. Accessed November 1, 2019. https://scroll.in/latest/934518/akali-dal-leader-says-sacred-games-season-2-hurts-sikh-religious-sentiments-wants-legal-action.

 

TNN. “Padmavati Row: Rajputs Reject CBFC Clearance.” The Times of India. December 31, 2017. Accessed May 01, 2019. https://timesofindia.indiatimes.com/india/padmavati-row-rajputs-reject-cbfc-clearance/articleshow/62311953.cms.

 

Vaidyanathan, A. “No ‘Padmavati’ Ban, Says Supreme Court, Rebukes Chief Ministers.” NDTV.com. November 28, 2017. Accessed May 01, 2019. https://www.ndtv.com/india-news/again-supreme-court-rejects-padmavati-ban-rebukes-chief-ministers-1780862.