Above: The Delhi High Court refused to interfere with the telecast of the series which allegedly depicts late Prime Minister Rajiv Gandhi in a derogatory manner

In a first case of its kind, Netflix, which is beyond the purview of the Censor Board, alters controversial subtitles, “insulting” Rajiv Gandhi in its first Indian series

~By Venkatasubramanian

Freedom of expression guaranteed by the Constitution is not an empty right. Right to offend, shock or disturb a reader or an audience is intrinsic to it. Courts have time and again defended the right of an author or filmmaker to give expression to his thoughts, even if a section of readers or audience is likely to be hurt, as long as it does not lead to communal disharmony.

A Delhi High Court bench of Justices Sanjiv Khanna and Chander Shekhar on July 19 refused to direct the removal of allegedly offensive scenes and remarks made against late Prime Minister Rajiv Gandhi and his family in the web series Sacred Games, as prayed for by the petitioner, Nikhil Bhalla. Bhalla alleged that the series incorrectly depicts historical events of the country.

Sacred Games is Netflix’s first Indian series and was released on July 6. The series, planned in eight episodes, is based on crime fiction by Vikram Chandra, which was published in 2006.  It depicts the story of a Mumbai police inspector, Sartaj Singh (played by Saif Ali Khan) and a mafia don, Ganesh Gaitonde (Nawazuddin Siddiqui).

The series, directed by Vikramaditya Motwane and Anurag Kashyap, and produced by Anil Ambani-led Reliance Entertainment’s Phantom Films, became controversial after a Congress activist in West Bengal filed a police complaint alleging that Siddiqui is heard referring to Rajiv Gandhi with an abusive word and that the series misrepresented several facts from that period.

The Delhi High Court, when it first heard Bhalla’s petition on July 16, observed that actors cannot be held liable for the dialogues they deliver.

“Why have you made the actor a party to the case? Can we stop a viewpoint from being aired? Should we stall such a viewpoint from being aired? Shouldn’t the viewer make up his own point?” the bench pointedly asked Bhalla’s counsel.

Noting that eight episodes of the series were already on air, the bench wondered what was the objective of the petition, which was filed belatedly.

On July 19, Netflix informed the Delhi High Court that a change had been incorporated in the English subtitles to remedy an alleged insult to Rajiv Gandhi. The change pertains to a scene in the fourth episode in which Siddiqui is seen abusing Rajiv Gandhi and calling him “fattu” (p**** as translated in the subtitle of the show).

“Now, we are using the word ‘whim’ as the English translation of Hindi word ‘fattu’,” Netflix’s counsel told the bench. The word “fattu”, according to the counsel, means “coward”.

The bench asked whether “whim” is the correct translation of the alleged abusive word, and reportedly asked Netflix to “examine such parts in the web series”. However, the bench also made it clear that it did not want to curtail freedom of speech and expression. “Criticism or even expression of dissatisfaction is permissible.  We do not think anyone can have objection to it,” the bench observed.

It also added that freedom of speech is on a higher pedestal even when someone is criticising people associated with politics, and that it is the viewer’s choice what he wants to see. The bench was of the prima facie view that it could be a private injury and not a public injury, and asked Bhalla to address it on the point of maintainability of the petition as a PIL.

The series is also alleged to have incorrectly depicted historical events such as the Bofors scandal, the Shah Bano case, the Babri Masjid demolition and communal riots.

However, Congress President Rahul Gandhi defended the right of the producer and the director who broadcast the series. He tweeted: “BJP/RSS believe the freedom of expression must be policed and controlled. I believe this freedom is a fundamental democratic right. My father lived and died in the service of India. The views of a character on a fictional web series can never change that. #SacredGames.”

The bench warned Netflix not to take it for granted, and remain careful while telecasting any series. It listed the matter for further hearing on August 6. The bench asked Netflix to submit a clip of the changed word to it in the meantime.

Bhalla’s counsel asked why the series did not carry a disclaimer, and told the Court that while movies require a certification for public viewing from the Censor Board, series released on the internet have no such requirement. The series is accessible in 190 countries in four languages on the internet.

While the Supreme Court had in several recent cases defended the right of a filmmaker to release a film without cuts, it did so on the ground that the Censor Board had certified it earlier, and courts cannot interfere after that.

Sacred Games is a test case, wherein a series, released in different episodes on the internet, has come under legal challenge. There is no requirement that it be shown to the Censor Board prior to the release. In effect, those who are aggrieved by its content have no legal remedy.