BREAKING - 'Tandav' Row : Supreme Court Grants Interim Protection From Arrest To Amazon Prime Video Head Aparna Purohit
The Supreme Court on Friday granted interim protection from arrest to Amazon Prime Video's India head Aparna Purohit in the FIR registered by UP Police over alleged hurting of religious sentiments by the web series 'Tandav'.A bench comprising Justices Ashok Bhushan and R Subhash Reddy observed that the protection from arrest will be subject to the petitioner cooperating with the investigation...
The Supreme Court on Friday granted interim protection from arrest to Amazon Prime Video's India head Aparna Purohit in the FIR registered by UP Police over alleged hurting of religious sentiments by the web series 'Tandav'.
A bench comprising Justices Ashok Bhushan and R Subhash Reddy observed that the protection from arrest will be subject to the petitioner cooperating with the investigation and appearing before the police as and when summoned.
The bench passed this interim order while issuing notice on Purohit's petition challenging the refusal of pre-arrest bail by the Allahabad High Court. The bench took note of the submission made on behalf of the petitioner that she is cooperating with another FIR registered in Lucknow, and that she had no role in the writing or the production of the series.
New OTT Rules lack teeth, bench observes
The bench also expressed dissatisfaction about the new rules framed by the Union to regulate OTT platforms. Justice Bhushan told the Solicitor General that the new rules "lack teeth" as there is no provision for prosecution or fine. Without a legislation, there cannot be effective control, Justice Bhushan remarked.
The Solicitor General submitted that the new rules were brought as a balance between "no-censorship and internal self-regulation". The SG agreed to produce a better draft of the rules for the consideration of the court.
Indicating that the issue of OTT regulation will also be considered in the instant case, the bench added Union of India as a party. The bench recorded its observations about the new rules in the order as follows :
"One of the issues, which have been cropped up in the facts of the present case, is regarding control and regulation of platform on which web-series are released.
Mr. Mukul Rohatgi, learned senior counsel informed us that the Government of India has issued notification dated 25.02.2021 and introduced Rules namely The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.
A perusal of the Rules indicate that the Rules are more and more in the form of guidelines and have no effective mechanism for either screening or taking appropriate action for those who violates the guidelines.Mr. Tushar Mehta, the learned Solicitor General submits that the Government shall consider and take appropriate steps for regulation or legislation as may be found fit by the Government and the same shall be placed before the Court"
Yesterday, the bench had remarked that screening of OTT content was necessary."In fact, some platforms even show pornography", the bench had remarked while asking Solicitor General Tushar Mehta to circulate the new Information Technology Rules, 2021, which were notified last week.
Senior Advocate Mukul Rohatgi, appearing for Purohit, submitted today that Prime Video was not showing any "pornography", and the platform had many good films and series.
Senior Advocate Sidharth Luthra, also appearing for Purohit, informed the bench that the controversial scenes of the show were deleted and the company has issued a public apology as well.
Rohatgi also suggested Solicitor General Tushar Mehta to watch the 'Tandav' series and take a view if it was violating any law.
At this, the SG replied "By pornography, they don't mean it in the actual sense".
"You can watch 100s of movies(in Prime Video), you will not find anything pornographic. I myself watch a movie every evening", Rohatgi said.
Luthra added in a lighter vein that the SG may not be getting time to watch movies.
Rohatgi submitted that the High Court erred in denying bail overlooking the fact that the Lucknow bench of the High Court had granted interim protection in an FIR registered at Lucknow. However, in the instant case(registered at Greater Noida), the HC refused anticipatory bail making an incorrect observation that Purohit had not been cooperating with the investigation, he added.
'Tandav' hurt religious sentiments, Allahabad HC
The Allahabad High Court had on 25th February denied Pre-arrest bail to Commercial Head of Amazon Prime Video, Aparna Purohit, in the ongoing investigation against the web series 'Tandav'.
At the outset, referring to allegedly objectionable scene of the Series, wherein Devakinandan (Lord Krishna) is talking to another character Kailash (Lord Shiva), the Court remarked,
"These characters are part of religious faith of majority community of India and their use by filmmakers in offensive way is bound to hurt the sentiments of the majority community of the country."
The Court has even remarked that the alluding to Lord Rama gaining popularity on social media is a clear pointer to the dispute regarding the construction of Lord Ram's temple.
Further, the Court has also remarked that the use of the word "TANDAV" as the name of the movie could be offensive to the majority of the people of this country since this word is associated with a particular act assigned to Lord Shiva who is considered to be creator, conservator and destroyer of mankind altogether.
Again, referring to the abovementioned scenes of the Series, the Court has remarked,
"The advice of Sage Narad to Lord Shiva to make some inflammatory tweet on Twitter like all the students of the campus becoming traitors and raising slogans of freedom clearly alludes to the incidents which took place in Jawaharlal Nehru University and therefore, it can be considered to be a message of hate advanced through the movie."
The Allahabad HC's 20-page Order denying anticipatory bail to Aparna Purohit goes on to take judicial notice of the fact that whenever such crimes (like the one at hand) are committed by some citizens of the country, "the forces inimical to the interest of this country become active and they make it an issue and raise it before different national and international forums alleging that the Indian citizens have become intolerant and 'India' has become an unsafe place to live."
Court's observations regarding Hindi Film Industry
The Bench of Justice Siddharth in its 20-page-order has remarked that a number of movies have been produced which have used the name of Hindu Gods and Goddesses and shown them in disrespectful manner.
To drive home the point, the Court has even named some movies namely - Ram Teri Ganga Maili, Satyam Shivam Sundram, P.K., Oh My God and has further observed that,
"Efforts have been made to subvert the image of historical and mythological personalities (Padmavati). Names and icons of faith of majority community have been used to earn money (Goliyon Ki Rasleela Ram Leela)."
The Court has also underlined that his tendency on the part of the Hindi film industry is growing and if not curbed in time, it may have disastrous consequences for the Indian social, religious and communal order.
The Court has referred to a design behind such acts on the part of the people who just give a disclaimer in all the films and depict things in the movies which are really religiously, socially, and communally offensive in nature.
Noting that the film industry in the south has not indulged in such acts like the Hindi film industry, the Court has also observed,
"The young generation of the country, which is not much aware of the social and cultural heritage of this country, gradually starts believing what is shown in the movies by the people like the accused persons in the present movie in dispute and thereby, it destroys the basic concept of the survival of this country having tremendous diversity of all kinds as a united nation."
"Offences are made out, Applicant doesn't deserve pre arrest Bail"
With regard to the application of Section 295-A I.P.C. in the instant case, the Court has noted that the scenes show that the scenes have been made, intentionally using the names of Hindu Gods and sage to convey an insidious message.
In reference to the charge under Section 153-A(b) I.P.C., the Court has noted that the offence is fully made out since the act of the applicant is prejudicial to the maintenance of harmony between different religious, social and communal groups and would affect public peace and tranquility.
Further, the Court has also noted that the contents of the dialogues in the above-noted scenes would show that the offences under Sections 505(1)(b) I.P.C. and 505(2) I.P.C. are fully made out.
Underlining that an attempt has been made to widen the gap between the higher castes and the scheduled castes in the aforesaid scenes and that her fundamental right of life and liberty cannot be protected by grant of anticipatory bail, the Court has remarked,
"The sentiments of majority community have been hurt by display of the characters of their faith in disrespectful manner and on the other hand…the applicant had not been vigilant and has acted irresponsibly making her open to criminal prosecution in permitting streaming of a movie which is against the fundamental rights of the majority of citizens of this country."
Lastly, the Court said that the conduct of the applicant shows that she has scant respect for the law of the land and her conduct further disentitles her to any relief from this Court, since co-operation with the investigation is a necessary condition for grant of anticipatory bail.
She has been booked for alleged commission of offences under Sections 66 (Computer-related offences), 66F (Punishment for cyber terrorism) and 67 (Transmitting obscene material) IT Act, 2008 (as amended) apart from Sections 153-A (Promoting enmity between different groups), 295 (Defiling place of worship with intent to insult the religion), 505(1)(b) (Public mischief), 505(2) (Statements promoting hatred between classes), 469 (Forgery for purpose of harming reputation) of IPC.
With regard to the application of Section 295-A I.P.C. the Court has noted that the scenes show that the scenes have been made, intentionally using the names of Hindu Gods and sage to convey an insidious message.
In reference to the charge under Section 153-A(b) I.P.C., the Court has noted that the offence is fully made out since the act of the applicant is prejudicial to the maintenance of harmony between different religious, social and communal groups and would affect public peace and tranquility.
Further, the Court has also noted that the contents of the dialogues in the above-noted scenes would show that the offences under Sections 505(1)(b) I.P.C. and 505(2) I.P.C. are fully made out.
Underlining that an attempt has been made to widen the gap between the higher castes and the scheduled castes in the aforesaid scenes and that her fundamental right of life and liberty cannot be protected by grant of anticipatory bail, the Court has remarked,
"The sentiments of majority community have been hurt by display of the characters of their faith in disrespectful manner and on the other hand…the applicant had not been vigilant and has acted irresponsibly making her open to criminal prosecution in permitting streaming of a movie which is against the fundamental rights of the majority of citizens of this country."
Lastly, the Court said that the conduct of the applicant shows that she has scant respect for the law of the land and her conduct further disentitles her to any relief from this Court, since co-operation with the investigation is a necessary condition for grant of anticipatory bail.
"The Petitioner was represented by Mr. Mukul Rohatgi, and Mr. Sidharth Luthra, Senior Advocates, assisted by a team of Karanjawala & Co., led by Ms. Ruby Singh Ahuja, Senior Partner along with Ms. Deepti Sarin, Ms. Swikriti Singhania, Mr. Navandeep Matta, Mr. Ashutosh P Shukla, Mr. Vasu Singh, and Sai Krishna & Associates led by Mr. Saikrishna Rajagopalan, Mr. Sidharth Chopra, Ms. Monica Dutta, Mr. Nitin Sharma and Ms. Savni D Endlaw. "