This article delves into the conflict of Freedom of Speech and Artistic Expression with religious sentiments of groups that results in Padmavat and Tandav controversy.

What has ignited these controversies?

Lately, news in India has been flooded with FIRs being filed against television shows and movies streaming on online platforms. Partisans claim that there are scenes in these media forms that insult Hindu deities and criticise the religion. It is about time that we explore the aspects that contribute to the stirring impact of multimedia and the freedom of expression.

These arguments have been fuelled by staunch religious sentiments that were allegedly hurt by the content displayed in a few films and television shows, particularly Tandav (2021), The Suitable Boy (2020), and Padmaavat (2018). 

Tandav appears to be loosely based on political controversies that have erupted across the country over the recent years. Still, the producers have explicitly mentioned that the events are a work of fiction. Discussions and altercations have spread like wildfire after the show depicted Hindu deities in a poor light. Various politicians and political groups have lashed out, resorting to social media and even the judicial powers to ban the television show. After the involvement of law enforcement and state governments, the show producers have agreed to cut out the scenes that mentioned the satire of the Hindu religion and culture.

Understanding the Tandav Controversy and Freedom of Expression
Poster of the Web Series Tandav. Image Source

Similarly, The Suitable Boy, another web series released in late 2020, faced criticism from right-wing parties. A scene showed a Muslim boy and Hindu girl consensually kissing in a temple. The scene sparked a Twitter storm because of the public display of affection portrayed by an interfaith couple in a place of worship. As a result, social media sites were flooded with #BoycottNetflix, the outrage encouraging the show to be banned. These trends were a counterpart to the Love Jihad law enforcement in a few states, that prevents marital union between a Muslim man and a Hindu woman.

The Padmaavat controversy in 2018 wreaked havoc in various states across the country. Political groups claimed that the film tainted the image of the respected Rajput queen Padmavati and distorted history. The actions taken by certain groups against this film included violence even before its release, exposing how communities can get distressed by movies and shows that go against their staunch ideologies. 

Understanding the Tandav Controversy and Freedom of Expression - Protests calling for the ban of Padmaavat.
Protests calling for the ban of Padmaavat.

Can lawful action be taken against films and shows that hurt sentiments?

Currently, the Supreme Court has rejected the interim protection from the arrest of Tandav filmmaker and actor on the grounds that the controversial scenes did offend others’ religious sentiments. It has asked them to approach the High Court bench for the same.

The common thread between the three movies and TV shows mentioned above is that it contains material that hurts religious sentiments. 
The Central Board of Film Certification (CBFC) or the censorship board censors vulgarity, violence, and sexual content but does not implement moral or cultural policing. However, the influence of personal and collective opinions can shape what is appropriate for the public to view.

Where does the criminalisation of media that hurt religious sentiments come into the picture?

Being sensitive about something that goes against one’s opinion is purely subjective. The Constitution objectively debates these cases, not necessarily sticking to particular sentiments ailed by individuals. 

Section 295A of the Indian Penal Code provides a jail term up to three years, criminalising “anything that deliberately hurts religious feelings of any class”. The Supreme Court has limited the penal provision’s applicability to deliberate and malicious acts rather than casual observations that are not driven by malicious intent. Similarly, the Indian Penal Code’s Section 153A criminalises statements, speeches, or actions that have the effect of disturbing peace or order by promoting enmity or creating fear or alarm between classes of people based on a difference in religion, caste, language, or place of birth. 

In India, where diverse cultures and people of different faiths reside in a single country, it is essential to keep this hard fact in mind: A cultural act need not be political, and the political is not necessarily Constitutional. Anyhow, the influence of religious communities affiliated with the rise of Hindu nationalism affects the decisions made by the powers that govern our country. This has caused censorship, usually pertaining to traditional media, to find its way into online streaming platforms, a relatively independent form of media.

Will moral policing govern over-the-top platforms?

In November 2020, the Union government brought streaming video services, such as Netflix, Amazon Prime, and Hotstar, and news websites under the information and broadcasting ministry’s ambit. Amazon and Netflix are expected to follow the same restrictions as traditional media, such as rules about showing violence, nudity, or anything deemed offensive by the masses. This move aims to enforce greater discipline online, mainly because the edgy content on these streaming platforms can disrupt society’s religious harmony.

OTT platforms brought under the ambit of the I&B Ministry

It is evident that the popularity of over-the-top (OTT) platforms has risen exponentially over the last 2-3 years. Regulation of these platforms can make the content more “culturally appropriate”.

But what does this mean for the audience and creators? The content displayed on these sites is relatively unconventional, opening minds to different perspectives and cultures. Shows like Sex Education (2019) display a diversity of ideas that educate viewers on various fronts and expand beyond the cisgender heteronormative society that we live in. However, this can also be viewed as an act of corrupting young minds by conservative elements, which can be a common notion when it comes to violent television shows like Sacred Games (2018) and Mirzapur (2020).

This is where regulation of content comes into play. But the concern here is, will regulating these platforms hamper creative freedom and the fundamental right to expression?

Will censoring visual expression to a great extent compromise freedom of expression?

There are many pros and cons of regulation and censorship. The upside is that hate speech and inciting conflict are curbed by the authorities’ norms, which can help maintain harmony in society. Despite these advantages, regulation can impede the freedom of expression, a fundamental right in a democratic country like India. It can prevent the free flow of information, thoughts, creativity, speech, and expression.

But the cases mentioned above show that sometimes the masses get to choose what is “right” or “wrong”, inciting heated arguments and controversies that were not brought up by regulation bodies. So who has a say in these situations? Who plays a significant role in censoring content? Does this mean that opposing or different perspectives that “hurt sentiments” are threats to the public? 

While the Indian Constitution recognises Freedom of Expression as a Fundamental Right, it comes with the caveat of reasonable restrictions. Thus, a person or a legal entity is free to speak their mind till the point that they don’t violate another person’s Fundamental Rights. This effectively helps to keep in check any disturbance to religious harmony and social peace.

However, the culture of mob justice and political gain has hindered the fundamental freedom of speech. Even if regulation bodies do not deem a specific form of media to be malicious, communities united by hyper emotionality can cause a controversy and file reports against the same. Typical cases have witnessed violence and threats against a media that holds a different ideology or opinion than theirs, suppressing perspectives that should be rightfully voiced in a democratic country. Thus, all in all, the sensation of intolerance and hypersensitivity that has grasped the nation threatens the fundamental right of expression.

The government has had to deal with politically sensitive and inflammable situations with the history of oppression and the religious divide in our country. However, is it possible to protect public order and promote respect for one without affecting the forms of expression? 

How can we strike a balance between regulation and freedom?

International media is proof that freedom of expression can be practised whilst simultaneously maintaining conduct in society.

Media self-regulation is one of the best practices that promote a balanced control of the content. It is an effort to lay down censorship standards, independent of political forces. A self-regulatory authority, an independent body of industry professionals that takes action against any unwarranted content, can be a possible solution. It is also a transition from a state-controlled press to one owned and controlled by society. 

The United Nations has suggested establishing precise criteria defining incitement and limitations on freedom of expression and as there is a fine line between the freedom of expression and hate speech. They have also mentioned how restrictions to freedom of speech must be formulated “in a way that makes clear that its sole purpose is to protect individuals holding specific beliefs or opinions from hostility, discrimination, or violence, rather than to protect belief systems, religions, or institutions as such from criticism” (Source: The United Nations). Dissent or criticism of institutions and the like are expected to be amplified in a democracy, but one should be careful to not advocate for the other extreme, that is, resorting to bigotry in the name of free speech. 

Freedom of Speech comes with some conditions

Tolerance towards an opinion that is not hurtful to human rights standards and respect towards those who hold different perspectives are key to upholding the mutually dependent forces: freedom of expression and harmony in society. A right to expressing one’s opinion is one of the precious gifts of democracy but not when it stifles the voices of others or puts them in danger. Thus, absolute freedom of speech can be harmful. Finding a solution to curb hate and using voices that only amplify one’s critical, non-harmful opinion—be it through satire, film, art, or literature—should not be criminalised or banned. 

Article by Ruhi Nadkarni, Team ulaunch.

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