THE CURRENT DISPUTE
The Bigg Boss is an Indian reality television game show franchise produced by EndemolShine India through Viacom 18 and Colors, broadcast in India, In the show, contestants are called “housemates” who live together in a specially constructed house that is isolated from the outside world and perform the task allotted. Housemates are voted out (usually on a weekly basis) until only one remains and wins the cash prize. During their stay in the house, contestants are continuously monitored by live television cameras as well as personal audio microphones.
October 2020: A complaint has been filed the complaint along with all evidence to Government against the reality show big boss on Colors TV for Ban with immediate effect as this show is against the cultural ethos and prompting obscenity and vulgarity and unfit for family viewing by Advocate P.K. Chauhan, Supreme Court of India.
October 12, 2019: The format of the Big Boss show is on fire. In words of BJP MLA Nand Kishore Gujjarwords
“The show is against the cultural ethos of the country and highly objectionable intimate scenes were a part of it. Couples of different communities were being made to become bed partners which were unacceptable.”
The concept of the show this year is very different. While in past seasons housemates decided their own chores and bedmates, in the 13th season the duties and ‘Bed Friend Forever’ were already assigned to them on day one. There were some viewers who had issues with the new format and hence complained against it, demanding a ban on the reality show. ANI is looking into the concerns.
In September 2019: Confederation of All India Traders (CAIT) insisted on a ban on the show as the show is telecasting with a new concept of ‘bed friend forever’ which is unacceptable by the norms and followings of the culture.
A plea was filed in the Madras High Court Tuesday seeking a direction for the constitution of a panel to censor television programmes and restrain Star Vijay channel from broadcasting the show Bigg Boss, hosted by actor-turned-politician Kamal Haasan without censor certificate.
“Particularly, Bigg Boss show hosted by actor Kamal Haasan is being telecast with abusive content only with the view to increase the TRP ratings and get monetary benefits without any social responsibility,” Suthan submitted.
September 26, 2017: The Bombay High Court has quashed a case of obscenity, indecency and indecent representation of woman registered in 2008 against entertainment television channel Colors TV, and Endemol India Pvt Ltd, producers of the reality show “Big Boss”. FIR was Lodged in 2008 at suburban Andheri Police Station, Mumbai against the channel under section 292 and 294 (Obscenity) by Sunil Ahire, President of Mumbai Pradesh Youth Congress. Sections 292, 293 and 294 of IPC have been enacted with the ulterior motive to protect and safeguard the public moral by making the sale, etc., of obscene literature and publications in general, and to young persons in particular, a cognizable offence. This FIR was quashed by the Bombay High Court, a Division Bench comprising of Justice Ranjit More and Justice Sadhana Jhadav in 2017 realizing that the respondent ( Sunil Ahire) has not provided with the dates on which the episode was aired, the particulars of the obscene/vulgar act that took place, and the names of the contestants who were involved in that act. Hence taking note of the above-mentioned points the court considered the existence of the FIR as abuse of due process of law.
2017: A complaint was filed against Kamal Hasan (Host of Big Boss Tamil) and demanded that the show be banned.
In October 2012: The Colors channel randomly displayed an advertisement inside the movie theatres and the said advertisement was in the form of a visual displaying the logo of its programme ‘Bigg Boss 6’ followed by audio demanding all present in the hall to stand up for the national anthem. PIL was filed by Adv. Jeetender Gupta where the petitioner accused the show, Big Boss, for misusing and disrespecting the National Anthem for violation of provisions of The Prevention of Insults to National Honour Act, 1971 and The Emblems and Names (Prevention of Improper Use) Act, 1950. The Show had to promote technique wherein the cinema halls viewers were asked to stand up for National Anthem because the big boss wanted them to. The Delhi High Court directed the central government to take actions.
A division bench of Chief Justice D. Murugesan and Justice Rajiv Sahai Endlaw said: “In the wake of serious allegations levelled by the petitioner that the national anthem is disrespected, we direct the central government to treat this PIL as representation and the grievances be dealt with in accordance with the law.”
The PIL filed by Jeetender Gupta, a lawyer, alleged that Colors has “disrespected” the national anthem by using it to promote the reality show in various PVR multiplexes in the city as well as in other parts of the country. ”
THE TERM OBSCENITY
Obscenity affects the mind: Obscenity defies universal definition. Obscenity can be defined from a wide array of contexts – spiritual, religious, moral, feminist, constitutional and legal, as well as the artistic and the cultural community standard.
The Webster third new international dictionary defines “obscene‟ as what is repulsive by reason of malignancy, hypocrisy, cynicism, irresponsibility, gross disregard of moral or ethical principles. It has been defined as something offensive to modesty or decency, or expressing or suggesting unchaste or lustful ideas or being impure, indecent or lewd‟.
The term obscenity is not defined in the Indian Penal Code per se but the Indian Penal Code under section 292, 293 and 294 makes a reference to this context and makes obscenity a punishable offence.
THE INDIAN PENAL CODE
Section 292 of the IPC states that –
“a book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object, shall be deemed to be obscene if it is lascivious or appeals to the prurient interest or if its effect, or (where it comprises two or more distinct items) the effect of any one of its items, is if taken as a whole, such as to tend to deprave and corrupt person, who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.”
Obscenity cannot be protected on the sole ground of Freedom of Speech and Expression. Since the provisions of section 292 of the IPC are applicable to restricted domain so the conflict is mostly resolved on the basis that reasonable restrictions can be imposed even on Fundamental Rights -Art 19(1)(a) which provides for the fundamental right of freedom of speech and expression.
In Ranjit D. Udeshi vs the State of Maharashtra ([1] 1965 SCR (1) 65 a bookseller was convicted u/s 292 of the IPC for selling a book “Lady Chatterley’s Lover”. He went to the Supreme Court in an appeal with the contention that it was violative of his fundamental Right of Freedom of Speech and Expression guaranteed under Art 19(1)(a). The Hon’ble Supreme Court while dismissing the appeal held that –
“the test to adopt in our country (regard being had to our community mores) is that obscenity without a preponderating social purpose or profit cannot have the constitutional protection of free speech and expression, and obscenity is treating with sex in a manner appealing to the carnal side of human nature or having that tendency. Such a treating with sex is offensive to modesty and decency but the extent of such appeal in a particular book etc. are matters for consideration in each individual case.”
As far as the Media Laws are concerned, the Cable Television Networks Regulation Act, 1995 prohibits the broadcast of such obscene material or acts on cable television which offend the decency and morality. Section 5 read with Rule 6(1)(o) of the Cable Television Networks Regulation Rule,1994 prohibits the carriage of those programs that are inappropriate for unrestricted public exhibition.
Also, cinematograph films before their release are to be properly examined as per the provisions of sections 4 and a certificate is to be issued as per the provision of Section 5A of the Cinematograph Act,1952.
Both these Acts in a combined manner provide for the examination and certification of films by the Board of Film Certification.
The CBFC under this act has limited powers to censor the motion pictures in accordance with the reasonable restrictions and section 5B of the Act which provides the Principles for guidance in certifying films.
Section 5B provides that-
“A film shall not be certified for public exhibition if, in the opinion of the authority competent to grant the certificate, the film or any part of it is against the interests of [the sovereignty and integrity of India] the security of the State, friendly relations with foreign States, public order, decency or morality, or involves defamation or contempt of court or is likely to incite the commission of any offence.”
Since IPC does not specifically deal with the obscenity related to women and there were many instances where women were being victimized because of the obscene acts, the Indecent Representation of Women (Prohibition) Act was passed in 1986- under section 2-4 prohibits the advertisement, publication and distribution of books and other material which contain an indecent representation of women.
“Indecent representation of women” is defined as any depiction of the body of a woman or any part thereof, in such a way as to have the effect of, inter alia, being indecent or likely to deprave, corrupt or injure the public morality or morals.
The Oxford dictionary defines an obscene act as an act of portrayal or description of sexual matters, which is offensive, or disgustingly accepted standards of morality and decency.
According to the New Standard Dictionary (L.D. Wagnall’s), ‘obscene‘ means offensive to chastity, delicacy or decency.
According to Black’s Law Dictionary, ‘obscenity‘ means character or quality of being obscene, conduct, tending to corrupt the public merely by its indecency or lewdness.
According to Webster’s New International Dictionary, word ‘obscene‘ means disgusting to the senses, usually because of some filthy grotesque or unnatural quality, grossly repugnant to the generally accepted notions of what is appropriate.
The Supreme Court in its decision in Prosecutor vs A.D. Sabapathy And Anr. 1958 CriLJ 647 stated that the term should be given ordinary and literary meaning. The dictionary meaning of the word ‘obscene‘ is repulsive, filthy, loathsome, indecent and lewd. But it does not mean that every indecent oral repulsive or filthy article that will come under the definition of obscenity, though all obscene articles will be either indecent or filthy or repulsive.
The Supreme Court of Canada in R. v. Beaver[3], wherein Maclaren, J.A., has defined ‘obscene’ as follows:-
“The word ‘obscene‘ … was originally used to describe anything disgusting, repulsive, filthy or foul. The use of the word is now said to be somewhat archaic or poetic, and it is ordinarily restricted to something offensive to modesty or decency, or expressing or suggesting unchaste or lustful ideas, or being impure, indecent, or lewd.”
Over the years it has been developed and proved time and again that obscenity relates to representation in a form which is likely to hurt public decency and morality along with having undermining effects on the stability of society. But the exact meaning of the term obscenity is still unknown as the word includes different meanings in different circumstances. Many tests like Hicklin test, Roth test and Contemporary community standards test are used from time to time to determine if the act is obscene in nature or not.
A bench of Justice K.S. Radhakrishnan, A.K. Sikri in 2014in Aveek Sarkar & Anr vs State Of West Bengal And Anr explained Hicklin test and Roth test in the following words –
“Hicklin test postulated that a publication has to be judged for obscenity based on isolated passages of a work considered out of context and judged by their apparent influence on most susceptible readers, such as children or weak-minded adults. The United States, however, made a marked departure. Of late, it felt that the Hicklin test is not the correct test to apply to judge what is an obscenity. In Roth v. the United States 354 U.S. 476 (1957), the Supreme Court of the United States directly dealt with the issue of obscenity as an exception to freedom of speech and expression. The Court held that the rejection of “obscenity” was implicit in the First Amendment. Noticing that sex and obscenity were held not to be synonymous with each other, the Court held that only those sex-related materials which had the tendency of “exciting lustful thoughts” were found to be obscene and the same has to be judged from the point of view of an average person by applying contemporary community standards.”
The Hon’ble Supreme Court while rejecting the Hicklin test for obscenity in Aveek Sarkar & Anr vs State Of West Bengal And Anr and applying the test of “ Community standards” held that –
“We have, therefore, to apply the “community standard test” rather than “Hicklin test” to determine what is “obscenity”. A bare reading of Sub-section (1) of Section 292, makes clear that a picture or article shall be deemed to be obscene (i) if it is lascivious; (ii) it appeals to the prurient interest, and (iii) it tends to deprave and corrupt persons who are likely to read, see or hear the matter, alleged to be obscene. Once the matter is found to be obscene, the question may arise as to whether the impugned matter falls within any of the exceptions contained in Section. A picture of a nude/semi-nude woman, as such, cannot per se be called obscene unless it has the tendency to arouse feeling or revealing an overt sexual desire. The picture should be suggestive of deprave mind and designed to excite sexual passion in persons who are likely to see it, which will depend on the particular posture and the background in which the nude/semi-nude woman is depicted. Only those sex-related materials which have a tendency of “exciting lustful thoughts” can be held to be obscene, but the obscenity has to be judged from the point of view of an average person, by applying contemporary community standards.”
But it can be concluded that the definition of the term obscenity is not exhaustive but inclusive in nature as what might be obscene today might not be obscene tomorrow as our society is developing at a very fast rate and the concept of obscenity somehow depends upon the point that how the audience is perceiving something.
DOES TV SHOWS REQUIRES CENSORSHIP?
Unlike movies, we do not have a regulatory mechanism like CBFC for the censoring of television shows or what we call as daily soaps in India reason being, availability of a large number of channels in many languages. India is a secular state and we have around 21 different languages in India. And we have a wide variety of TV channels that are broadcasting in all such regional languages a wide number of shows on a daily basis which makes it difficult for anybody to regulate or control the broadcasting.
According to the Cable Television Network Act 1995, the program and advertisement as per sections 5 and 6 of the Act respectively are required to fit into the ‘program code or advertisement code’ prescribed in the act. Also, there are provisions where the TV shows sign contracts and written agreements with their broadcasting channels that the content is safe and fit for public distribution. But how far are these provisions being followed?
The answer to this question is not unknown to us. We as viewers have watched many TV shows that at many instances are unfit for our children. Nowadays, people get influenced by what they watch on TV and unlike movies that still take a bit of an effort to be accessed, TV shows are readily available for anyone and everyone who have a television broadcasting connection. Also, In India, a lot of small scale distributors are available in every colony which makes it very easy for people to get access to the world of TV shows and exactly at this moment the need of a regulatory/censorship system like the one we have for movies arises.
The Prasar Bharti (Broadcasting and Corporation) Act, 1990 under section 3 establishes Prasar Bharti (Broadcasting and Corporation) of India. One of the major functions of the corporation as per section 12 of the Act is to organise and conduct public broadcasting services to inform, educate and entertain the public and to ensure a balanced development of broadcasting on radio and television because People do what they see and it is a very well quoted fact that partial knowledge acts as a double-edged sword and anyone who doesn’t know how to use that sword, is likely to hurt himself. The audience of television belongs to almost all the age groups, community and class of people and there are high chances of children getting into wrong deeds because of the television. Thus, this is high time now that the content should now be filtered or at least examined before it is aired. Some active citizens though try their best to deal with such issues by either filing PILs or using social media trend. One big example of such cases is a show named “Pehredar Piya ki” went off the air since it was portraying that a 9-year-old child marries an 18-year-old woman. Recently a PIL was filed against “Barrister Babu” asking for its ban on similar grounds. From time to time PILs have been filed against the very popular Bigg Boss but the show never went off the air.
THE EGG CAME FIRST OR THE CHICKEN
Movies, cinema and now even TV programs since their inception have influenced man in every possible manner. Cinema is an art that unswervingly interacts with the viewers. it has both positive and negative sides of its own. On one hand, it is a major source of income for government as well as individuals and it helps in spreading of cultural value. Many social issues are also raised by cinema and Tv programs. On the other hand, the depiction of violence, rape culture, demining ethical values and making unethical ways more attractive and charming, the Cinema is setting up a different level of the “new cool” culture.
Cinema is the largest source of entertainment it is required to take extra precautions in deciding what to present the audience with because perceiving certain things depends upon the mental maturity of a person. The viewers in India belong to different regions having their own faiths and customs. The audience includes both educated and uneducated viewers and it is not a hidden fact that majority of Indians are still educationally deprived and at that point of time, cinema or TV tends to hold the power to mould their minds.
A large number of people mainly belonging to the new generation are shifting more towards western culture without even realising the ethos behind the Indian value system.
However, whenever such debate arises to define the line of caution, the response mostly is we show that medium is a reflection of the society. The content of the broadcast should not totally neglect the cultural values as it is very much necessary for everyone to understand our own values and only after understanding the values one can start taking stands for what is socially wrong and right. Also, the broadcasting of new concepts to familiarize people with those changes that are taking place all over the world is also necessary because cinema, TV, celebrities but the same cannot be done without a prudent exercise of freedom of speech and expression.
THE CONCEPT OF SHOW MUST GO ON
Cinema has time and again proved itself to be a tool for the expression of thoughts and ideas. Freedom of speech and expression is one of the most important Fundamental Right guaranteed by the Constitution of India. Article 19(1)(a) enshrined under Part III of the Constitution of India provides that all the citizens shall have a right to Freedom of Speech and Expression. Press and cinema are considered as a well-built medium of communication and they also enjoy this freedom of speech and expression. But just like other freedoms, this freedom is not absolute in nature and it is subjected to the restrictions provided under clause (2) of Article 19 of the Constitution of India. Cinema and filmmakers enjoy the freedom to express their ideas via cinematographic films but that freedom is subject to the restrictions.
REASONABLE RESPONSIBILITY
The regulatory regime governing the media sector is contained under the Prasar Bharti Act 1990 and the Cable Networks Act 1995 and the rules framed thereunder. The institutional structures and government bodies regulating the sector include the Ministry of Information and Broadcasting (MIB) and the Prasar Bharti. These government bodies have been entrusted with the activities of governance through the issue of guidelines, policies and rules and the granting of licences for the broadcasting and electronic media sector. In 2004, broadcasting services and cable services were included within the ambit of telecoms services by a notification of the government. TRAI, in addition to the telecoms sector, has also been set up as the regulator for the media and broadcasting industry and the TDSAT has the power to adjudicate on disputes.
The primary aim of the Prashar Bharthi is to conduct public broadcasting services to inform, educate and entertain the public and to ensure a balanced development of broadcasting on TV. The PB Act also provides for the establishment of a Broadcasting Council to receive any complaints with respect to content aired on these channels.
INTROSPECTION
The Freedom of speech and expression cannot be with gross disregard of moral or ethical principles and that is where the reasonable restrictions come into play. The growing litigation against the show is also an important alert of the development of the viewer’s response. Obscenity is a subject of constant debate and the Penal Code not defining it. The prudence is important to define the concerns that serve the society at large and not be weighed alone in terms of the limited audience with a liberal approach. There is no denying fact that TV has grown to be a very powerful format, regulation of it is not a challenge to Freedom of Speech and expression but should connect the dots of influence on the minds of a larger audience.
CONCLUSION
People cannot and should not stand every time either by filing PILs and increasing court burden, signing petitions or trending hashtags on social media to get a resolution of such issues of healthy tv viewing. The India audience is mature enough to realize what is wrong with the shows these days and therefore a regulatory body like CBFC is the need of the hour. Though it is very difficult to cover all regional channels and their shows along with having a central board, we can even think and plan about having state-level boards having experts from distinguished fields to examine the content of regional content as well. The growing developments to ban any show on the small screen are alert signals to legislature or judiciary to view the problem in the larger perspective. Whether there is a need to regulate the content on a small screen through the constitution of the proper regulator or assigning present regulator with more functions or by addressing case to case basis filed before the court in a generally regulated manner system.
AUTHOR OF THE ARTICLE ANCHITA SOOD Freelancer, Indian Law Watch Law Graduate from GGSIP University, Enrolled with Bar Council of Delhi She has published an article on FUNDAMENTAL DUTIES: time to reconsider the eclipsed part of constitution in Volume 11 of Supremo Amicus (ISSN: 2456-9704)
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