• Justice Shailendra Shukla – in Indore bench of Madhya Pradesh high court – dismissed a plea by famous TV producer Ekta Kapoor, under section 482 of CrPc, seeking quashing of an FIR against her for alleged objectionable content in a web series.
• The web series in question is "XXX Season 2" streamed on Ekta Kapoor's subscription based OTT platform – ALT Balaji. Extremely popular among the youth, the show had garnered over a million view on its opening weekend.
• An FIR was registered at a police station in Indore against Ms. Kapoor under the relevant provisions of sections 294, 298 and 34 of IPC, under section 67 and 67-A of I.T. Act and section 3 of Emblem Act for spreading obscenity, hurting religious feelings and improper use of national emblem on her show.
• The complainant also objected to a scene that allegedly tarnished the image of Indian Army.
MP H IGH COURT'S VERDICT:
• Ekta Kapoor had moved the high court stating that she did not have any knowledge of the contents of episode because she is not the producer or the director and her name is not reflected in the credits of the episode.
• Rejecting this argument, the court held - referring to Section 67 of Information Technology Act, 2000- that Kapoor being the Managing Director of the platform on which the show was released, she is "presumed to have knowledge"about the contents of the episode.
• Ms. Kapoor further contented that the internet was full of much more form of vulgarity and therefore much hue and cry need not be raised about impugned material.
• The court remarked that the presence of such material was a consequence of a failure by concerned authorities to isolate and prevent it. And that drawback ought not to be a rationalization on the part of the petitioner.
• The court further held that the involvement of ALT Balaji as co-accused, at this stage was "premature"and hence subject to further investigation.
• The court acknowledged that while the Indian audiences have come of age since the time of "two flowers cuddling each other symbolizing male – female union", - the acceptable norms of permissiveness cannot be equated with declining moral values.
• It did not find any merit of Indian Army being disrespected and held that section 298 of IPC and the relevant provisions of state emblem act have not been breached.
AS OF NOW
• As further investigation is underway, Kapoor and others – director of the web series Pankhudi Rodrigues and screenwriter Jessica Khurana – have been booked under the following sections.
• Sec 294 (obscene acts and songs), 298 (uttering words etc to deliberately wound the religious feelings of any person) of Indian Penal Code, Information Technology Act, and State Emblem of India (Prohibition of Improper Use) Act.
T HE PROVISIONS USED:
• Sec 294 of IPC – To make public space safe and inclusive, the said provision prohibits any obscene act in public space or recital of songs, ballads or words, to annoyance of others, in or near public space. The breach of which is punishable by a jail term of three months, or a fine or both.
• Sec 298 of IPC – A person can be imprisoned for one year and/or levied a fine upon if they deliberately act in a manner that wounds the religious sentiments of another person. The act includes (but not limited to) words, gestures in vicinity of the person.
• Information Technology Act, 2000 – with growing use of internet, it was important to make it a safe space for its users. ITA as the act is better known, is codified set of laws primarily dealing with cybercrime and electronic commerce in India.
• The used sections, i.e. 67(a) and 67, deal with spread of obscenity. They have been criticized for violating digital freedom.
• State Emblem of India (Prohibition of Improper Use) Act – The said act prohibits the improper use of national emblem of India – the Lion capital of Ashoka – for professional and commercial purposes.
As we await the decision of the court, it is worth noting that the makers of the series have found themselves in a whirlwind of lawsuits. One wonders whether the graphic and erotic expression of ‘lust'and ‘intimacy'was intented as an act of freedom of expression, or cheap theatrics to garner views – on the part of the makers.
What bearing do you think the decision of the court will have on freedom of speech and expression? Let us know in the comments below!