The landscape of digital content in India has long been perceived as a “Wild West” of creative expression, largely exempt from the stringent pre-censorship mandates that govern theatrical releases under the Cinematograph Act of 1952. However, the recent advisory issued by the Ministry of Information and Broadcasting (MIB) to the Over-the-Top (OTT) giant ZEE5, regarding a documentary centered on gangster activities, signals a significant hardening of the government’s stance. As a Senior Advocate, I view this development not merely as an isolated administrative action, but as a critical touchstone for the ongoing debate between Article 19(1)(a) rights and the state’s duty to maintain public order under the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.
The advisory in question directed the platform to refrain from releasing a documentary that purportedly features or delves into the life and operations of a notorious gangster. The Ministry’s concerns are two-fold: the potential for the content to glorify criminal activities and the immediate threat to law and order. In an era where digital footprints are indelible and viral trends can spark real-world violence, the legalities surrounding such “advisories” warrant a comprehensive analysis.
The Regulatory Framework: From Self-Regulation to Executive Oversight
For years, OTT platforms operated in a regulatory vacuum. This changed with the notification of the IT Rules 2021. Under these rules, digital news publishers and OTT platforms are required to adhere to a “Code of Ethics.” This code mandates that content must be classified based on age and, more importantly, must not contain anything that endangers the sovereignty, integrity, or security of India, or disrupts public order.
The MIB’s recent intervention with ZEE5 is a manifestation of the “Three-Tier Grievance Redressal Mechanism” established by these rules. While the first two tiers involve the platform and self-regulatory bodies, the third tier—the Inter-Departmental Committee (IDC) headed by the Ministry—possesses the power to issue advisories or directives to block content. When the Ministry “advises” a platform against a release, it is rarely a mere suggestion; it is a signal that the state views the content as a potential violation of the “reasonable restrictions” outlined in Article 19(2) of the Constitution.
The Concept of Public Order in Media Law
The term “public order” is often the most litigated phrase in Indian constitutional law. In the landmark case of Ram Manohar Lohia v. State of Bihar, the Supreme Court distinguished between “law and order,” “public order,” and “security of the state.” For a content piece to be restricted under the guise of public order, the threat must be direct and imminent—a “spark in a powder keg.”
In the context of the ZEE5 documentary, the Ministry likely argued that the depiction of a high-profile criminal could incite his followers, provoke rival gangs, or lead to a breakdown of communal or social peace. From a legal standpoint, the state argues that the “clear and present danger” of violence outweighs the filmmaker’s right to document reality. However, as legal practitioners, we must ask: Does the mere portrayal of a criminal constitute an incitement to crime? This brings us to the nuanced debate over the glorification of delinquency.
The Dilemma of Glorification vs. Documentation
One of the primary reasons cited for the advisory against ZEE5 is the “glorification of crime.” The legal challenge here lies in the subjective nature of “glorification.” While a documentary is theoretically an objective record of facts, the stylistic choices—background music, narrative pacing, and the selective use of interviews—can inadvertently turn a criminal into a cult hero.
The “Robin Hood” Syndrome and Legal Precedents
Indian jurisprudence has often dealt with the “Robin Hood” syndrome, where outlaws are portrayed as victims of circumstances or champions of the downtrodden. When such narratives are broadcast to millions, there is a legitimate concern regarding “copycat” crimes. Under Section 505 of the Indian Penal Code (IPC), statements conducing to public mischief are punishable. Furthermore, if a documentary is seen as an attempt to “promote” a criminal organization, it could potentially run afoul of the Unlawful Activities (Prevention) Act (UAPA).
However, the judiciary has historically been protective of artistic freedom. In the case of Bobby Art International v. Om Tyagi (the Bandit Queen case), the Supreme Court held that the depiction of violence and grit is permissible if it serves the overall purpose of the story and is not intended to incite crime. The challenge for ZEE5 is to prove that their documentary is a social critique rather than a hagiography of a gangster.
The Evolution of the IT Rules and the MIB’s “Soft” Power
The current advisory is an exercise of what many call “soft” censorship. By issuing an advisory instead of a formal blocking order under Section 69A of the IT Act, the Ministry avoids the immediate necessity of meeting the high evidentiary standards required for a ban. Yet, for a commercial entity like ZEE5, an “advisory” from its primary regulator carries the weight of a mandate. Disobeying such an advisory could lead to more severe penalties, including the suspension of the platform’s right to host content.
Section 69A and the Shreya Singhal Paradigm
The Supreme Court in Shreya Singhal v. Union of India upheld Section 69A of the IT Act but emphasized that blocking orders must be reasoned and subject to judicial review. If ZEE5 chooses to challenge the MIB’s advisory in a High Court, the burden of proof will lie on the state to demonstrate how exactly a documentary would lead to a law-and-order crisis. The state must provide specific intelligence or evidence, rather than vague apprehensions of “public unrest.”
Impact on the OTT Industry and the Creative Economy
The advice to ZEE5 sends a chilling message to the broader OTT industry. India is currently one of the largest markets for digital streaming, with billions of dollars invested in original content. Many of these projects focus on the “True Crime” genre, which is immensely popular globally. If the state begins to intervene at the pre-release stage based on “perceived” threats, it could lead to widespread self-censorship.
The Risk of Pre-Censorship on Digital Platforms
Technically, OTT platforms are not subject to pre-censorship. Unlike films intended for theaters, which must receive a certificate from the Central Board of Film Certification (CBFC), OTT content is “self-certified.” However, the MIB’s advisory to ZEE5 sets a precedent where the government acts as a de facto censor. For creators, this means that even after investing years into a project, the threat of an eleventh-hour advisory remains a looming shadow. This uncertainty can stifle investigative journalism and documentaries that seek to expose the underbelly of society.
Legal Recourse for OTT Platforms
When faced with such an advisory, what are the legal avenues available to a platform? As a Senior Advocate, I would suggest three primary routes:
1. Representations to the MIB: The platform can provide an unedited or modified version of the documentary to the Inter-Departmental Committee, highlighting the disclaimers and the educational or social purpose of the content. This is often the most pragmatic approach to ensure a release while satisfying the regulator’s concerns.
2. Writ Petition under Article 226: The platform can approach a High Court, arguing that the advisory is an “unreasonable restriction” on the right to carry on business and the right to free speech. The court would then examine if the “advice” has any statutory backing or if it is an arbitrary exercise of executive power.
3. Modified Release: The platform may choose to edit portions that are deemed particularly sensitive. While this compromises artistic integrity, it often serves as a middle ground in high-stakes commercial environments.
The Role of Self-Regulatory Bodies
The IT Rules 2021 emphasize self-regulation through bodies like the Digital Publisher Content Grievances Council (DPCGC). In the ZEE5 case, it remains to be seen whether the MIB bypassed the self-regulatory body or if the body itself flagged the content. Strengthening these bodies is essential to prevent direct government interference, as a peer-review system is always preferable to executive mandates in a democracy.
The Jurisprudential Balance: Security vs. Liberty
The crux of the matter lies in balancing the collective security of the public with the individual liberty of the creator. In S. Rangarajan v. P. Jagjivan Ram, the Supreme Court famously stated that “the court’s duty is to get the heart of the matter and not to be swayed by the superficialities.” It further added that the state cannot plead its inability to handle a law-and-order situation as a reason to suppress a piece of art.
If the government fears that a documentary will lead to violence, its primary duty is to provide police protection and enforce the law, not to ban the content. However, in the digital age, where a single clip can be shared on WhatsApp and lead to lynchings or riots within minutes, the “duty to protect” has taken on a preventive dimension. This “precautionary principle,” borrowed from environmental law, is increasingly being applied to media regulation.
Conclusion: The Way Forward for Media Regulation
The ZEE5 controversy is a symptom of a larger shift in India’s regulatory philosophy regarding the internet. As we transition from a regime of “notice and take down” to one of “proactive monitoring” under the proposed Broadcasting Services (Regulation) Bill and the updated IT Rules, the tension between the state and digital platforms will only intensify.
For the legal fraternity, the advisory against the gangster documentary serves as a reminder that the digital space is no longer an untouchable sanctuary of free speech. The government is clearly willing to use its executive powers to safeguard what it deems as the “public interest.” Whether this is a necessary safeguard against the romanticization of crime or an overreach that stifles creative dissent is a question that the higher judiciary will likely have to answer in the near future.
In conclusion, while the state’s concern regarding the glorification of gangsters and the maintenance of law and order is legitimate, the method of intervention must remain within the four corners of the Constitution. An “advisory” should not become a tool for “shadow banning” content. As we move forward, the focus must be on creating clear, objective criteria for what constitutes a threat to public order, ensuring that the “sword of state” is used only when the “pen of the creator” truly threatens to set the streets on fire.
