Between Expression and Excess: OTT Ban, Obscenity, and the Right to Free Speech in India

Section 5-B provides that certification must ensure:

1. Artistic expression is not unduly curbed;
2. Obscenity, vulgarity, and depravity are avoided;
3. Depictions of sexual violence are germane to the theme, they shall be reduced to the minimum and no details are shown;
4. The portrayal does not denigrate women or offend human sensibilities.

But even with these reasonable restrictions, the judiciary has repeatedly emphasized that sex and obscenity are not always synonymous. In Samaresh Bose v. Amal Mitra⁶, the Court clarified:

“A vulgar writing is not necessarily obscene. Vulgarity arouses disgust or boredom……but obscenity must have the tendency to deprave and corrupt.”

This distinction becomes imperative in assessing digital content. Not all sexual themes are automatically pornographic. The Bandit Queen judgment⁷ further elaborated this nuance.

In Bobby Art International vs Hoon⁸, wherein the depiction of rape, nudity, and violence in the film Bandit Queen, based on the life of Phoolan Devi, was challenged on grounds of obscenity, the Supreme Court held that the film’s scenes were necessary to its theme to represent rage, injustice, and trauma.

“Rape and sex are not glorified in the film… The scenes evoke sympathy for the victim and disgust for the rapist.”

The Court held that the context and purpose of the content must be scrutinized before calling it obscene. If the scenes have a legitimate narrative, particularly one of social relevance, they should not be censored purely due to discomfort. Therefore, it is not the mere depiction of rape or sexually explicit content that should attract censorship, but the means of its portrayal.

As the Court in Bobby International noted, one may read the Kamasutra or watch a documentary on erotic temple art with detachment, but to see such elements deployed as sexual titillation or as a sexual guide crosses the line into moral indecency and obscenity.

The court has time and again emphasised that law must not become a tool of prudish and conventional ideals that stifle creative and cultural expression. The standards of obscenity cannot be set by theological heterodoxies or imposed by paradigms of virtue. If that be the case, then the depictions of Indian cultural heritage — Konark, Khajuraho, and our epics, rich with complexity and sensuality — could be banned by law. Art cannot be confined to the boxes of societal discomfort.

Comments made by Ranveer Allahbadia during the show India’s Got Latent were also widely criticized for being not just vulgar but obscene and unnecessary. His statements crossed the line from poor taste to public indecency. Hence, he was subjected to widespread criticism and censure. His comments highlight the blurred lines between dark humour, sexual expression, and indecency — a line that law must define more clearly and objectively.

Critics argue that such exceptions should not be used to justify blanket bans — particularly when OTT content is typically available only through paid subscriptions and is governed by parental control features. It’s also worth recalling the Supreme Court’s 2015 decision that watching porn in the privacy of one’s home was not a crime. If one is determined to watch explicit material, they are more likely to visit pornographic sites directly, rather than subscribe to OTT platforms with diverse content and user controls.

Ironically, social media today is flooded with dramatized violence and misogyny that escapes any form of regulation. Take, for instance, the growing popularity of Chinese mini-dramas (C-dramas) distributed via mobile apps and promoted through short reels on platforms like Instagram and YouTube.

A deeply troubling example is The Mute Wife⁹, available on “Drama Shop,” which romanticizes misogyny. It glorifies domestic violence, infidelity, marital rape, forced abortion, and a horrifying cycle of abuse. It portrays a controlling, psychopathic male lead, while the female lead — depicted with mutism — suffers isolation, and repeated emotional and physical violations. These dramas are designed to emotionally hook the viewer, especially impressionable youngsters, normalizing cycles of abuse.

Paradoxically, it is often these highly disturbing portrayals of patriarchal dominance that find easier entry into public platforms than a well-made film that portrays female autonomy or sexual agency. This is where tools like the Bechdel Test — which simply asks whether two women in a film talk to each other about something other than a man — are instructive. Most of these mini-dramas fail this basic test. They reinforce the idea that women exist only in relation to the male protagonist, often as victims or as idealized, suffering martyrs. This underlines the urgent need to shift our focus from superficial censorship to deeper questions about how media shapes societal norms and gender expectations.

In conclusion, not every depiction of sexuality is obscene, and not every provocative film is corrupting. The law must distinguish discomfort from degradation, and allow Indian adults the ‘liberty’ of informed choice. In the age of parental control, age ratings, and paid-subscription models, viewers who do not wish to watch certain content can simply choose not to watch. The solution to offense is not erasure — but choice, literacy, and context.