It was Prime Minister Indira Gandhi of the Congress party who imposed a nationwide Emergency in 1975 and ushered in 19 months of press censorship before she lost a humbling election in 1977, paying the price for suspending democracy. The wound is still fresh in Indian hearts and minds. If there is a lesson to be learned from there, it is that it is difficult to shut up a billion-odd people separated by language, religion, habits, and attitudes and yet united under one flag and a common Constitution. In such a context, free speech and creative freedoms can be seen as a cement that helps vent emotions and improves communication at the same time.
This freedom is given by the Constitution, not any government.
Yet, time and again, we have seen the spectre of control of some sort or the other loom over the media and creative artistes. This month, we have whispers from the government about regulating content on Over The Top (OTT) platforms such as Netflix and Amazon Prime. On current indications, this would involve a regulatory body and an accompanying law by “defining a framework for self-regulation."
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Coming as it does in the backdrop of a controversial scene in the web series ‘Tandav‘ on Amazon Prime featuring an interpretation of Lord Shiva, it would be natural to see the move as political and not administrative. This is because those in power are those who speak for a Hindu Rashtra (nation) and the BJP leaders are at the forefront of the protests against ‘Tandav’, whose creators have since apologised for the scene in question.
It seems OTT regulation can only be a hot potato for the BJP because it needs to find a balance between culture, credibility, and the Constitution of India. That is not an easy task.
But by no means is protest bordering on threats or worse against creative content unique to the BJP. In 2017, Congress workers hounded director Madhur Bhandarkar for his portrayal of Indira Gandhi in ‘Indu Sarkar’ and came close to violence. Congress also tried an infamous Defamation Bill to muzzle the media in the late 1980s when it was in power.
Regulation is a fancy word and a lot of it already exists. Vulgarity and violence are still core concerns for the Central Board of Film Certification (CBFC) which was more honestly called the Central Board of Film Censors in its previous avatar. Cultural or moral policing was not part of its brief – but seems to be creeping in, now and then.
Constitutionally valid laws also exist to restrict unwarranted freedom of expression. The Indian Penal Code’s Section 153A criminalises statements, speeches or acts that have the effect of disturbing peace or order by promoting enmity or creating fear or alarm between classes of people on the basis of difference in religion, caste, language or place of birth.
That is elaborate enough. Ironically, protesters against ‘Tandav’ may be covered by it more than the artistes in the web series. The hard fact is that a cultural act need not be political and the political is not necessarily Constitutional. However, we now have a culture of mob justice and vigilantism that threatens the Constitution’s provisions for freedom of expression.
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So who will regulate performing artistes or the media? Certainly not the government because that would amount to a conflict of interest where the government itself is free to be criticised or opposed under the Constitution. We could safely say that matters may land up in court if the government tries an act of overreach in attempting to regulate OTT.
But the fact needs to be recognised that OTT has taken media to a new level of freedom and the country has also tasted the freedom of expression of a level that is difficult to reverse or control. Kissing and abusive words are now part of the web series culture – with cult stories like ‘Mirzapur’ being part of our new-age folklore. The old censorship code is no longer on.
The thing, however, is that whataboutery of some kind or other becomes valid in a public discourse where criticism of the Prophet is seen as blasphemy by angry Muslim protesters while the Hindu pantheon is not spared either. However, this is best left to political murmurs and protests without it becoming ugly in the form of nasty regulation or street violence.
Perhaps, the government can nudge creators to self-regulate, as it has done with news broadcasters, without an explicitly binding law. Guidelines may be issued to uphold the principles under which Section 153A was framed. But a ruling party whose minions cry foul whenever Hinduism is discussed would lack credibility if it does so without elaborate consultations. The matter is then best left to the judicial process because regulation without credibility will only attract a political backlash.
There are no easy answers in a society where Hinduism, with its wonderful mix of history, mythology, and literature, has seen its gods, demi-gods and deities featured in works that question their limitations and virtues. For instance, the ‘Uttara Kanda’ of the Ramayana (whose authorship is doubted by critics) on Lord Rama’s exiling of Sita to uphold his position as a righteous king is a matter of criticism for those who believe in the rights of women. The Dravidian movement questions Lord Rama as a figure representing Aryan supremacists.
Freedom of expression featuring Hindu gods existed long before Islam or the Constitution took shape. That itself is the beauty of the rich Hindu culture. Mindless regulation cannot be part of such a culture.
(The author is a senior journalist who has covered business, public policy, politics, technology and diplomacy. He tweets as @madversity)
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