¶ 11.

Furthermore, content on OTT platforms which shows women in bad light and merely as
an object such as in movie “Romance and Crime”, is violative of their fundamental right to
live with dignity as enshrined under article 21 1 of the Constitution since it is a basic right of a
female to be treated with decency and proper dignity 2. The Hon’ble High court of Andhra
Pradesh in Chandra Rajakumari and Anr. v. Commissioner of Police, Hyderabad and Ors 3,
remarked that “Any act which tend to offend the dignity of a woman to deal with her
indecently in the circumstances amounting to indecent representation in any form, they are
bound to offend Article 21 of the Constitution of India as right to live includes right to live
with dignity and decency and right to live happily. The obscene projections of women have
the effect of demeaning, debasing and degrading women. They also tend to corrupt the
viewer and encourage criminal behavior, which endangers the life of women. They hinder
the women from fully enjoying their right to life. They deprive them of the respect and dignity
that they are entitled to and show them in a low light.”

¶ 12. It is humbly submitted that as per Section 3,4,7 of the Indecent Representation of
Women (Prohibition) Act4, 1986, no person/company shall publish, or cause to be published,
or arrange or take part in the publication or exhibition of, any advertisement which contains
indecent

representation of women in any form and no person/company shall produce or cause to be

produced, sell, let to hire, distribute, circulate or send by post any book, pamphlet, paper,
slide, film, writing, drawing, painting, photograph, representation or figure which contains
indecent representation of women in any form. Also, Sections 292,293 and 2945 of the Indian
Penal Code, 1860 say “whoever provides any obscene/sexually explicit/ lascivious content to
public at large or young minds shall be punished. Sections 67A, 67B and 67C6 of the
Information Technology Act, 2000 provide for penalty as well imprisonment to be imposed

1
Supra 15.
2
State of Punjab v. Baldev Singh, A.I.R. 1999 S.C. 2378.
3
Rajakumari and Anr. v. Commissioner of Police, Hyderabad and Ors, 1998 (1) ALD 810.
4

5
Sec. 292, 293, 294, Indian Penal Code, 1860.
6
Sec. 67 (A, (B), (C), I.T Act of 2000.
 on anybody who has transmitted or published any kind of obscene material, any sexually
explicit material including those where children are depicted in sexual acts. The OTT
platforms has violated all the aforementioned laws.

¶ 13. The telecasting of adult/violent/disturbing content is affecting the mental and physical health of
the young children, thereby violating their fundamental right enshrined under Article 21 7 of the
constitution. These OTT platforms doesn’t have the option of parental control and even in the
presence of such parental control, the 21 st generation children are technologically smart enough to
dodge such parental control mechanisms and access adult and violent content in the OTT platforms
which leads to addiction in some cases. Thus, the viewing of such content by children is detrimental
to their health. In State of Punjab and others v. Mohinder Singh Chawla and others 8, the Supreme
Court has categorically held that “right to health is a fundamental Right under article 21 of the
constitution.” And even in the case of Paschin Banga Khat Mazdoor Samity and others v. State of
West Bengal and another,9this court has reiterated the aforementioned principle.

¶ 14. In Lakshami Kant Pandey v. Union of India 10, Justice P.N Bhagawati while
delivering the opinion of the court observed that: “It is obvious that in civilised society the
importance of child welfare cannot be overemphasised because the welfare of the entire
community, its growth and development depends upon the health and wellbeing of its
children. Children are a „supremely important national asset and the future wellbeing of the
nation depends on how its children grow and develop.” Further, In Sheela Barse v. Union of
India,11 Supreme Court has held that “A child is a national asset and therefore, it is the duty
of the State to look after the child with a view to ensuring full development of its
Personality.”

7
Supra 15.
8
State of Punjab and others v. Mohinder Singh Chawla and others, AIR 1997 SC 1225.
9
Paschin Banga Khat Mazdoor Samity and others v. State of West Bengal and another AIR 1996 SC
2426.

10
Lakshami Kant Pandey v. Union of India, 1984 AIR 469.
11
Sheela Barse v. Union of India, JT 1986 136, 1986 SCALE (2)230.
¶ 15. Article 3812 of the Constitution lays down the responsibility of the state to strive to
secure social order for the promotion of the welfare of public health. Dr. Ambedkar clarified
as given below in the Constituent Assembly debates on Article 38 highlighting its inevitable
implementation.... “The word 'strive' which occurs in the Draft Constitution, in judgement, is
very important. We have used it because our intention is even when there are circumstances
which prevent the Government, or which stand in the way of the Government giving effect to
these Directive Principles, they shall, even under hard and unpropitious circumstances,
always strive in the fulfilment of these Directives. That is why we have used the word 'strive'.
Otherwise, it would be open for any Government to say that the circumstances are so bad,
that the finances are so inadequate that we cannot even make an effort in the direction in
which the Constitution asks us to go.” In another case of Bandhua Mukti Morcha v. Union of
India13, the court held that although the Directive Principles of State Policy hold persuasive
value, yet they should be duly implemented by the state; and it was in this case also that the
court had interpreted that the dignity and health is integral under Article 21 of the
Constitution of India.

[3]. THERE IS A REQUIREMENT OF A BOARD/INSTITUION/ASSOCIATION TO REGULATE

AND MANAGE THE CONTENTS ON OTT/STREAMING PLATFROMS.

¶ 16. It is humbly submitted that the petitioner pertains for the requirement of a guidelines for
monitoring, management and regularizing of content on OTT platforms across Bindia. There
is currently no law governing the content on OTT platforms. These are made available to the
public at large without any filter or screening. Although the majority of OTT platforms have
organized themselves into an association named “Federation of OTT Platforms (FOP), which
in turn established a self-regulating body Federal Regulatory Association (FORA) to regulate
violent and obscene content but have been highly ineffective as few directors and producers
have already telecasted content which is filled with obscene and adult content. Moreover, the
OTT platforms which are not part FOP are given a free hand to adhere to such regulations.

12
Art. 38, the Indian Constituion 1950.
13
Bandhua Mukti Morcha v. Union of India,  1984 AIR 802.
¶ 17. The lack of legislation/guidelines governing OTT Platforms is becoming evident with
each passing day and every new case that is filed on these grounds. The absence of censoring
allows exploitation of creative liberty and pushes for more ideas to get incorporated which in
turn let writers, directors, and producers to experiment limitless due to which there have been
more violence, sex scenes, nudity and obscene languages. Visuals and dialogues are crueler
and more barbaric. It is also pertinent to note that this artistic liberty with no checks and
balances also gets highly misused for commercial benefits of the OTT Platforms.

¶ 18. That the age group watching OTT/Platforms are from no significant age and includes
people from every age group, which makes it even important for the contents to be monitored
and regularized. This Hon’ble court has already held that categorization and censorship of
films based on age and content is a valid classification based on public decency, morality and
interest14.

¶ 19. Currently, there are no laws in place to restrict these platforms. Section 7915 of
Information Technology Act, 200016 puts onus on the intermediaries to observe due diligence
while discharging their duties under the act and to observe guidelines as prescribed by the
Central government. As

explained by the Delhi High Court in the case of MySpace Inc. v. Super Cassettes Industries
Ltd17, they would under fall under the definition of intermediaries because they are
aggregators of video content, web-series and other films, which when demanded by
customers are provided to them and consideration for the same is received by such

14
Supra 30.
15
Sec. 79, I.T act of 2000, Section 79 of the It act Exemption of liability of intermediaries in certain cases:
Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub-
sections (2) and (3), an intermediary shall not be liable for any third-party information, data, or communication
link made available or hosted by him.
16

17
My Space Inc. v. Super Cassettes Industries Ltd, (2016) Del. SCC 6382: (2017) 236 DLT 478 (DB).
aggregators through a self-operated and self-designed subscription model. However, Section
79 of the Act does not apply to all the online platforms. It does not provide blanket provisions
since these platforms stream third party content and also give self-generated content. The
intermediaries under the IT Act, 2000 get exempted under the safe harbor principle as it is
supposedly agreed as of today that they don’t have knowledge of the content that is being
posted on their platforms due to various reasons18.

¶ 20. The hon’ble court in Shreya Singhal v. Union of India19court has clarified that the
Intermediary must receive a court order / notification from a government agency for
removing specific information / content and only then can it be obligated to take down any
content. Therefore, Intermediaries would not be obligated to undertake any takedown /
removal action upon receipt of third parties complaints (however grave and severe) even if
the complaint on its face merits takedown. This in turn means that, any person aggrieved by
content will have to approach the government or the courts for relief. They cannot approach
the Intermediary directly to take down content. This hampers individual protection as illegal
content that could potentially cause any public order or is immoral or obscene would continue
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18
Google India Private Limited v. Visakha Industries and another, appeal (criminal) 1987 of 2014 (S.C. Dec.
12, 2014).
19
Shreya Singhal v. Union of India, W.P ( Criminal) 167 of 2012 (S.C. March. 24, 2015).