Tracing Blasphemy: Comparing the Legal Overreach on Expression and Free Speech in Digital Media and OTT in India and the US

Abstract

The paper examines the scope and impact of blasphemy law in India, which is Section 295-A of the Indian Penal Code (now Section 299 of the Bharatiya Nyaya Sanhita, 2024), restricting freedom of expression with reference to digital and Over-the-Top (OTT) media platforms. The hands of the judiciary may have attempted to restrict the application through appreciatory interpretation, but the vagueness of the language involved—most importantly, the undefined concept of a "class of citizens" and the rather broad invocation of "public order"-continues to give ample scope for misuse of the provision. The discussion examines significant cases concerning the arrests of comedians Kiku Sharda and Munawar Faruqui and the controversies surrounding shows like Tandav, Leila, and Paatal Lok, as illustrative cases where Section 295-A has been weaponized as cultural censorship and legal overreach. The paper also carries out a comparative analysis of the constitutional approach to blasphemy and speech in the United States and how the First Amendment and the “clear and present danger” doctrine provide a stronger leeway for creative and dissenting articulation. In the end, this paper argues that India must rethink its laws to avert interfering with artistic freedom and democratic discourses in the digital era.