Underscoring the importance of the freedom of thought and expression, the Centre told the Delhi High Court on Friday that it cannot ask service providers to remove an allegedly objectionable word against former prime minister Rajiv Gandhi used in the Netflix series Sacred Games.
In an affidavit to the HC, which is hearing a plea alleging that certain scenes in the show defamed the late Congress leader, the Ministry of Electronics and Information Technology said: “That it is humbly submitted that the Preamble of the Constitution of India inter alia speaks of liberty of thought, expression, belief, faith and worship. It also says that India is a sovereign, democratic republic. The liberty of thought and expression is a cardinal value that is of paramount significance under our Constitutional scheme.”
The plea filed by advocate Nikhil Bhalla, seeks directions to Netflix Entertainment, the show’s producer, Phantom Films Production Ltd and the Centre to ensure “in toto” removal of the allegedly offensive scenes. The first season of Sacred Games, starring Saif Ali Khan and Nawazuddin Siddiqui, was released on July 6 and was available in 190 countries in four languages, the petition said.
MeitY told a bench of Justices Sanjiv Khanna and Anup Jairam Bhambhani that the Supreme Court, in various judgements, has referred to the “importance of freedom of speech and expression both from the point of view of liberty of the individual and from the point of view of our democratic form of government”.
“The answering respondent (MeitY) strictly follows the mandate of the Constitution as well as the laws as declared by the Supreme Court of India whereby it has held that freedom of speech and expression of opinion is of paramount importance under a democratic Constitution which envisages changes in the composition of legislatures and government and must be preserved,” the affidavit filed by MeitY’s counsel Rajesh Gogna said.
Referring to the apex court ruling, the Ministry further said that the freedom of speech and of the press is the “Ark of the Covenant of Democracy public criticism is essential to the working of its institutions.”
It said that the importance of freedom of speech and expression though not absolute was necessary as we need to tolerate unpopular views.
The Ministry also refused to set up a grievance redressal mechanism to specifically deal with grievances related to ‘over-the-top’ (OTT) media services providers operating in India.
It said, “The relief sought by the petitioner should not be granted as any order directing the answering respondent to regulate the service providers by setting up a grievance redressal mechanism to deal with the grievances against the ‘Over-the-top’ (OTT) shall be in violation of the mandate of the Constitution as well as the law as declared by the Supreme Court of India.”
OTT is a term used to refer to content providers that distribute streaming media as a stand-alone product directly to viewers on the Internet, bypassing telecommunications, multichannel television, and broadcast television platforms that traditionally act as a controller or distributor of such content.
On 19 July, Netflix’s counsel, on instructions, had informed the bench that they, on their own, had changed a word in the English subtitles in the fourth episode of the series, which was allegedly derogatory, which later turned out to false.
The High Court plea against Netflix contended that the show “incorrectly depicts historical events of the country like the Bofors case, the Shah Bano case, the Babri Masjid case and communal riots”.
The bench listed the matter for further hearing on December 20.
The Ministry also said that the Information Technology Act does not grant them any statutory power to issue any “certification with respect to broadcasting, publishing and/or transmission of any content whether in the form of streaming media/video, or any other digital form of the Internet”.
“The onus is on the Intermediaries to remove or disable any such material under the order of the court or the notification by the appropriate government or its agency must strictly conform to the subject matter laid down in Article 19 (2) of the Constitution of India,” the affidavit adds.