Tag: freedom of speech and expression

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Human Rights

Invariably a tragedy – How Indian law encouraged risk-averse filmmaking and audience apathy

AparGupta_freedomofspeechThe first scene in the fifth act of William Shakespeare’s Hamlet: Prince of Denmark is perhaps the most unflattering prose that the bard wrote on the subject of lawyers. Before holding up a skull, Hamlet points to an exhumed grave and asks if the occupant was a lawyer. Proceeding to mock lawyers who do not appreciate the limits of law, Hamlet remarks that the only property rights accorded after burial are titles to coffins. This derision of the legal system was not included Vishal Bhardwaj’s film adaptation Haider, perhaps with good reason, given the recent legal troubles the film has run into.

Haider, which adapted the play to the political confines of Kashmir, was always going to be controversial. There did not seem reason however, to suggest that such controversy would involve the legal system. After all it had a valid censor board certificate, issued after complying with a demand for six cuts to be made to the original version. Since this legal compliance was completed beforehand, the notice issued by the Allahabad High Court to a petition seeking its ban and more recently, a criminal complaint filed with the Panaji Police may appear irregular. But there is a wider pattern and legal precedent that the law frightfully permits.

Process of mandatory pre-certification

Film in India is regulated under the Cinematograph Act, 1952 (“Cinematograph Act”). It establishes the Censor Board of Film Certification (“CBFC”) which certifies films for public exhibition as well as restricted viewing. This process is mandatory, and the exhibition of a movie without what is popularly referred to as a censor board certificate is an offence punishable on conviction with up to three years of imprisonment. Curiously, this legal obligation punishment are prescribed under the Copyright Act, 1957. Additional penalties are also provided in the Cinematograph Act. The High Court of Delhi in Dharmendar Kapoor v. CBFC, 2011 (46) PTC 1 (Del), has also clarified that all cinematographic works exhibited need to certified, even if they are sold only on DVDs for private viewing and are not exhibited in cinemas. In essence, every work featuring moving images, if exhibited even to a restricted audience, even if sold directly and viewed privately, requires mandatory certification.

MediaLaws

The criteria for certification is inherently subjective and can lead to arbitrary determinations. The reasons for this are three fold. First, the substantive guidelines for film certification permit subjectivity. They allow allows censorship so that “human sensibilities are not offended by vulgarity, obscenity or depravity” and even of “dual meaning words as obviously cater to baser instincts”. Many more grounds under these certification rules are broadly phrased and do not contain any legal ingredients. Secondly, under Section 3 of the Cinematograph Act, the central government has the complete power to appoint the members of the CBFC, the body making such determinations, censoring movies, and granting exhibition certificates. While a defence that has often been put forward is that the CBFC’s determinations are independent, it is not demonstrated by precedent. Political themes that are inconvenient to the ruling dispensation of the day often meet a higher degree of scrutiny and censorship.

Farcical appeals

Finally, what is the recourse for a film maker unhappy with such a determination? What does one who does not wish to carry out the cuts as demanded by the CBFC do? Such a filmmaker may approach the Film Certification Appellate Tribunal (“FCAT”) which is headed by a retired judge. The FCAT, which appears a strong safeguard in statute, was instituted after the Supreme Court, in K.A. Abbas v. Union of India, (1971) 2 S.C.R. 446, held that mandatory pre-censorship was a valid restriction on the right to freedom of speech and expression under Article 19(1)(a) but then nudged the Union Government to establish an appellate tribunal. Practice has shown however, that the FCAT has been ineffective principally due to the delay and pendency in determining an appeal. Financers of movies are impatient to reap profits and prevent the movie from becoming ‘stale’. Given the capital costs and the commercial stakes involved, filmmakers often grudgingly accept the cuts rather than risk the pendency of an appeal. Also, the mere presence of a retired judge as the chairperson of the FCAT does not guarantee a more liberal reading of the guidelines.

There is ample evidence of both these trends in case law as well as in current events. A recent instance is of the case of Srishti School of Art, Design v. CBFC, W.P. (C) 6806 of 2010, where the High Court of Delhi set aside the order of the appellate tribunal holding, “none of the excisions as directed by the CBFC, three of which have been upheld by the FCAT, are legally sustainable”. In the more recent decision of Krishna Mishra v. CBFC, W.P. (C) 2006 of 2012, the High Court of Bombay found that the FCAT did not even provide any reasons for upholding the CBFC’s demand for cuts. The petitioners victory was pyrrhic because the matter was remanded back to the examining committee of the CBFC for determination. Such a delay would surely cripple a filmmaker financially. A reasonable person would rather make the cuts and release the movie. But then great artists are rarely known to be reasonable.

Kamal Hassan’s Vishwaroopam

Vishwaroopam_posterIn 2013, award winning filmmaker Kamal Hassan invested his personal savings and took loans to make the 100 crore film, Vishwaroopam. Shortly before its release, some minority organisations protested its release in the State of Tamil Nadu, which lead to a ban under Section 144 of Code of Criminal Procedure, 1973, citing possible law and order problems. The movie already had a censor board certificate and the Supreme Court had recently, in Prakash Jha v. Union of India, (2011) 8 SCC 372, stated that a state government cannot use law and order as an excuse to prevent the exhibition of a movie by, once the CBFC had certified it.

With the law firmly behind him, Mr. Hassan’s first instinct was to legally fight the ban. Even when the Madras High Court agreed to hear his petition, he effectively lost. Declining him any interim relief, the release of the movie was stayed till the next date of hearing. Finally, a single judge held in his favour, but even that decision was appealed by the state government and the ban was restored. Time was passing and Mr. Hassan was losing money. Things got worse and the ban was extended by other state governments. The movie could not be screened in Andhra Pradesh, Kerala, and Karnataka. It was time to be reasonable. Compromises were made and scissors met the film reel. Remember that at this point, Vishwaroopam had a valid censor board certificate. The additional cuts made to it are the very definition of state coercion. After its release, a wistful Hassan remarked, “I am the son of Socrates. Give me a cup of poison and I will sip it and still speak my freedom”. Far from a Greek philosopher, Hassan was playing the part of Hamlet’s trusted friend Horatio, who was prevented from consuming poison— condemned to suffer misfortune and to live to tell the tale.

The offended and their PILs and FIRs

Clearly, it is not easy to get a CBFC certificate, but even after it has been granted, state governments have at their disposal, a choice of statutory paraphernalia. It doesn’t even end there. Vile gadflies mock offence and approach courts and police stations. Let us first consider public interest litigations (“PILs”) aimed at preventing the screening of movies.

Ore Oru Gramathile was a 1987 Tamil film that was critical of caste-based reservations in educational institutions.
Ore Oru Gramathile was a 1987 Tamil film that was critical of caste-based reservations in educational institutions.

Courts when approached in PILs have repeatedly held that the CBFC is an expert body and that its determinations are generally not open to substantive review on content (as opposed to procedural irregularities). This legal rule is not strictly adopted and there are instances of courts revoking censor board certificates. In most cases even when censor board certificates are upheld, courts do not stay their hands and enter into subjective assessments of the movie in any case. This brings pressure on the movie producer who may again reach a compromise with the court by making cuts. The two rounds of litigation in S. Rangarajan v. P. Jagjivan Ram, 1989 SCC (2) 574, illustrate the tendency of courts to substantially review content. Finally determined by the Supreme Court of India, the case originated from a petition before the Madras High Court, which revoked the CBFC certificate granted to Ore Oru Gramathile (In One Village). The Supreme Court restored it on appeal, permitting the exhibition of the movie. This judgement is celebrated as a victory of freedom of speech, but given that the Supreme Court engages in a review of the content, it rather endangers liberty. It not only discusses the theme of the movie, but each scene the High Court found objectionable. There is a legal discussion of the characters, dialogue, and even the accent in which it is delivered. Such minute examination was later used by courts for making subjective determinations, even after a movie had received a CBFC certificate.

Filmmakers also contend with the risk of criminal complaints and FIRs filed in various corners of the country. These may contain allegations of obscenity, sedition, and defamation. The law with respect to criminalising speech is wide and extensive, permitting legal offence when no factual offence exists. The Supreme Court in Raj Kapoor v. Laxman, 1980 SCR (2) 512, by reading Section 79 of the Indian Penal Code, 1860 with Section 5-A of the Cinematograph Act, has held that such criminal processes against a movie with a CBFC certificate are legally unsustainable. Section 79, akin to a safe harbour protection, provides that nothing is an offence which is done by any person who is justified by law. The law in this context is the Cinematograph Act under which a filmmaker is granted a CBFC certificate. However, while laying down this pronouncement, it Court also held that the accused filmmaker has to participate in the legal process at the trial court and claim a bar under Section 79. There is therefore, no absolute bar. If accused, the filmmaker has to face the pressure of a criminal trial.

Haider_VishalBhardwaj_posterDespite Haider’s valid CBFC certificate therefore, Vishal Bhardwaj has formidable legal battles awaiting him at the High Court of Allahabad and the trial court in Panaji. Can we pass it off to coincidence that the Supreme Court remarked in Raza Khan v. State of Uttar Pradesh, SLP (Civ.) No. 31797 of 2010 that “Something is rotten in the State of Denmark, said Shakespeare in Hamlet, and it can similarly be said that something is rotten in the Allahabad High Court, as this case illustrates”.

Effects of cinema censorship

Through its exaggerated metaphors and tinted images, cinema can question power with truth. Decades of censorship however, have prevented the cinema of history, politics, and current affairs. The pattern in democratic India has not been different from the colonial era when the Dramatic Performances Act, 1878 was used to ban Nildarpana, a play based on the plight of indigo farmers and Bhakta Vidur became the first movie to be banned under the Cinematograph Act, 1918 because its protagonist resembled M.K. Gandhi.

To prevent financial penury, mainstream cinema has rejected themes which lead to such controversy. Even if these are audience preferences, our legal system has contributed to it. Today, cinema treats us as infants— persons without well-formed thoughts, incapable of deeper introspection. This is what the success of Haider challenges— not its mere financial success but its ability to spark political discussions on issues that require wider introspection such as the morality of a law such as the Armed Forces Special Powers Act, 1958 and of received truths about patriotism. It is this very ability which is being impugned in a court and a police station.

To end, we should fear the censors not merely for preventing movies from release but also for contributing to the apathy of audiences. Today, the audience expects very little from cinema, is accustomed to big budget entertainers, and has lost interest in drama and Shakespeare. It forgets the movie as soon as the credits roll and shrugs off criticism of mainstream movies with, “Hey relax, it’s just a movie”.

(Apar Gupta is a partner at Advani & Co., and was recently named by Forbes India in its list of thirty Indians under thirty years of age for his work in media and technology law.)

Categories
Human Rights

Sitting down for patriotism – Salman’s case highlights the legal provisions that stifle dissent

While denying bail to Salman, the trial court judge noted that his crime was worse than murder. What was this alleged crime? Not standing up when the national anthem was played in a cinema before a movie. The police also alleged that he hooted when the anthem was played, though Salman disputes it. For added measure, the police also went through his Facebook profile and found some offensive posts.

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Salman

Based on these alleged facts, he was arrested for offences under Section 124A of the Indian Penal Code, 1860 (“IPC”), Section 66A of the Information Technology Act, 2000, and Sections 2 and 3 of the Prevention of Insults to National Honour Act, 1971. Section 124 of the IPC contains the offence of sedition and Section 66A is a broadly phrased legal provision which allows the criminalisation of any content shared online. The Prevention of Insults to National Honour Act, 1971 is a special statute enacted to provide for the use of national symbols and emblems and to penalise for the improper use of the National flag or the anthem. On its very face, Salman’s case seems like an instance of abuse of law. Many legal commentators however, are now questioning even the very basis of the law which permits such abuse.

The offence of sedition

Sedition, as it originally stood under Section 124A of the IPC, was clear in its intent. It penalised any person who, “excites, or attempts to excite, feelings of disaffection to the Government established by law in British India”. In the case of Kedar Nath Singh v. State of Bihar (AIR 1962 SC 955), the Supreme Court after recounting the trial of Bal Gandharar Tilak under the same provision, held that for any speech or act to be made even cognisable for the offence of sedition, a positive act was required. This alleged act needed to go beyond a mere absence of affection towards the State. An offence under Section 124A, it went on to note, can apply to, “only such activities as would be intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence.” Merely not standing up when the national anthem is played, it seems on the face of it, does not amount to the offence of sedition. A legal offence, if any, will be left to the more specific law in this respect that is contained under the Prevention of Insults to National Honour Act, 1971.

Even otherwise, not standing up when the national anthem is played may be morally reprehensible but it may be an act of dissent. It may properly be within the domain of offensive speech which exists as a fundamental right. To paraphrase the inimitable Gore Vidal, it is better to burn the flag than the constitution. In Texas v. Johnson (491 U.S. 397 (1989)), Justice Brennan, agreed stating, “We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents”.

Aseem_TrivediSurely our constitutional freedoms do not extend to burning our nation flag or abusing the anthem. Those same freedoms however, permit us to express our dissent with due respect. Not standing up in a cinema hall when the national anthem is played, squarely falls within the permissible threshold of dissent – dissent, which in any case cannot be charged with sedition. Even the cartoonist Aseem Trivedi was accused under exactly the same provisions as Salman has been. Only after he was arrested and the Mumbai Crime Branch came in for heavy criticism did the Government of Maharashtra drop the charges of sedition against him before the High Court of Bombay.

Recent use of Section 66A of the Information Technology Act

Much has already written about Section 66A. In the interest of brevity, it is only relevant to state that the provision has come in for widespread criticism due to its abuse. A batch of at least six petitions is pending before the Supreme Court of India. All of them challenge it for violating the right to freedom of speech and expression. Though much has been written about the legal merits of Section 66A, not much has been written about the state’s defence of the provision during the proceedings before the Court. Essentially, the state has argued that the problem is not with the provision itself, but only with its implementation. To bolster its argument, a “check” on arrest for offences under Section 66A has been issued by way of a direction dated January 9, 2013.

On May 16, 2013, during a preliminary hearing of a group of petitions questioning the vires of Section 66A, it was noticed that during the pendency of the petitions, arbitrary arrests had continued unabated. Concerned with this, the Court enquired about extending the Union government’s notification to all state governments. This was necessary because ‘law and order’ is a state subject and without such a direction, the Union government’s ‘check’ would be limited to the territories administered by it.

The check, that is, the Union government’s direction, had mandated that any arrests for a complaint registered under Section 66A could not be affected without prior approval from the Inspector General of Police or a police officer not below the rank of the Deputy Commissioner of Police. The reasoning offered was that the abuse of the law had been occuring at the level of the local police and that by mandating prior approval of a senior police officer, there would be a level of oversight.

Recent arrests under 66A belittle this reasoning

1. In the last week of May, 2014, five persons were arrested by the Bangalore Police for sharing a MMS via WhatsApp. The MMS had spoofed the BJP election slogan “Abki Bar Modi Sarkar” with the headline, “Abki Baar antim sanskaar”.

2. In the first week of June, 2014, Devu Chodankar, a shipbuilding professional from Mumbai, was detained and threatened with arrest by the Goa State Police for posting a message critical of Narendra Modi being the BJP’s Prime Ministerial candidate. He feared arrest, and prior to the case obtaining media publicity, the police had asked for his custody.

3. In the second week of June, 2014, the principal and six students of a government polytechnic instituion at Kunnamkulam were arrested by the Kerala State Police for adding Prime Minister Modi’s photograph in the college magazine under a list of “negative faces”.

4. In the third week of June, 2014, the principal and eleven students of the Sree Krishnan College at Guruvayur were arrested by the Kerala State Police after its campus magazine was alleged to have used “objectionable and unsavoury” language against Modi in a crossword puzzle.

We can add Salman’s case to this list. He has been charged under Section 66A after the police went through his Facebook profile after a complaint was filed against him for not standing up in the cinema hall. Even though Section 66A has been on the statute books since 2008, there is no data published by the National Crime Records Bureau about the FIRs registered or the arrests made. In its absence, all we have is this anecdotal evidence to show continued abuse.

Technical objections may be used to fault these illustrations. For instance, it can be argued that a wider trend cannot be established on such a small sample size or that data has been used selectively. This criticism does not mitigate the abuse which is apparent in these cases individually. For the persons arrested in these cases the safeguard implemented by the Supreme Court has been ineffective. It leaves one to question the defence of illegality in the process of implementation of Section 66A, as opposed to the principal provision itself. Salman’s case is precisely what Section 66A is meant for and used for. It is used through its abuse.

Offences under the Prevention of Insults to National Honour Act

The proper legislation under which any criminal offence should have been alleged (if any) is the Prevention of Insults to National Honour Act, 1971. The Act, under Section 3 provides that,
“Whoever intentionally prevents the singing of the Indian National Anthem or causes disturbances to any assembly engaged in such singing shall be punished with imprisonment for a term, which may extend to three years, or with fine, or with both.”

Here it is important to note that, it is not enough that a person does not sing the national anthem, but must also prevent its singing or cause a disturbance. Hence, the Supreme Court in the case of Bijoe Emmanuel v. State of Kerala ( (1986) 3 SCC 615) held that a prosecution under the Act for remaining silent when the national anthem is played in a school assembly violates the freedom of speech and expression under Article 19(1)(a). Though major parts of the Court’s opinion extend to the right of minorities to religion and faith preventing the petitioner from signing the national anthem, its determination on the refusal to sing along was also premised on the freedom to speech and expression.

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Further legal complications also exist for the prosecution of Salman under this law. The first is that the Union Government has issued orders for the enforcement of the Act. These orders define how, when, and where the national anthem will be played. They go towards permitting it to be played for ceremonial occasions and even suggesting that it should not be played unless proper decorum can be maintained. Surely, wedged between seats with barely enough place to stand while other movie goers jostle for space is not the best place to mark respect for the motherland.

The standing orders take this into consideration and mention that there is no obligation to stand if the national anthem is played, “in the course of exhibition”. The Supreme Court itself has noticed it in the case of Karan Johar v. Union of India ( (2004) 5 SCC 127) where it has stated that, “We are satisfied that in view of the instructions issued by the Government of India that the national anthem which is exhibited in the course of exhibition of newsreel or documentary or in a film, the audience is not expected to stand as the same interrupts the exhibition of the film and would create disorder and confusion, rather than add to the dignity of the national anthem.”.

Technical arguments may be advanced as to what constitutes, “in the course of exhibition” or whether sitting down when the national anthem was being played constitutes an offence under Section 3. Even facts may be disputed. There are versions which say that Salman was part of a group of students who passively kept sitting when the national anthem was played. In sum and substance, the offences alleged even with respect to Prevention of Insults to National Honour Act, 1971 will need to be investigated and put through a process of trial. Even then enough defences exist in law. A criminal process is launched which will not end at least for a decade merely because a person failed to stand up when the national anthem was played. Accused for this, Salman was jailed for more than a month. He has arrested on August 20, 2014 and was granted bail on September 22, 2014. Before availing his liberty, he had to execute a bail bond of two lakh rupees. Bail is not the end. The case will continue to drag on through years of trial. The wheels of justice will move slow and grind fine. In the meantime, Salman may go to watch another movie with his friends. But if the national anthem plays, it is questionable what he will feel for the country – love or fear.

(Disclosure and a personal note: I have represented Mr. Aseem Trivedi in the Supreme Court of India for his impleadment in the Shreya Singhal Petition and have been part of PUCL’s legal team in its challenge to Section 66A, the Intermediary Rules, 2011, and the Blocking Rules, 2009. This article contains an accurate and truthful report of court proceedings and is premised on a legal analysis of provisions and their implementation. While I am respectful of the pendency of these cases, the rule of sub-judice does not prevent comment on issues which involve considerable public interest during such pendency. Such comment is also necessary given that penal provisions are continuously being used to arrest any person voicing dissent.)

Apar Gupta is a partner at Advani & Co., and was recently named by Forbes India in its list of thirty Indians under thirty years of age for his work in media and technology law.

Categories
Human Rights

India needs a wide journalistic privilege

PraptiPatelWhen the Supreme Court bench headed by Justice H.L. Dattu ordered the disclosure of the identity of the whistle-blower who had leaked information about the visitors’ logbook at the CBI Director’s house, it went against everything the Whistle-blowers Protection Act, 2011 seeks to achieve and protect. Prashant Bhushan, representing the Centre for Public Interest Litigation, pleaded for the recall of this order and the Supreme Court eventually agreed to hear the allegations against the CBI Chief without looking for the source.

Even though it was recalled, the Supreme Court’s order also ignored the uncodified but long-standing international recognition of a journalist’s right, known as the journalistic privilege, to be protected from having to disclose anonymous sources in a court of law. There are a number of reasons why this privilege should extend to cases like this as well.

The main principle behind journalistic privilege has very little to do with journalists themselves. In order to fulfil their duties in a democracy, the press often have to rely on anonymous sources and without a strong legal guarantee of anonymity, very few people would come forward and furnish information. Such fear remains a deterrent irrespective of whom the informant contacts. While it is more common to contact a journalist with sensitive information, people who disclose information about unlawful activities to the public need to be protected irrespective of whether the disclosure was made to a journalist or a lawyer. It is the severity of the risk that warrants protection and not the identity of the person to whom the disclosure is made.

Image above is from Brian Smithson's photostream on Flickr. CC BY 2.0.
Image above is from Brian Smithson’s photostream on Flickr. CC BY 2.0.

Journalistic privilege elsewhere

Over twenty countries in the world have enacted laws which give their reporters ‘absolute and unqualified privilege’ for the protection of their confidential sources. This means that the law recognises this right as so fundamental to the existence of free speech that no other interest can override it. Apart from a few states of the United States, such an absolute privilege is found in Mexico, Georgia, France, and Turkey.

A more limited form of journalistic privilege is found in some countries including Australia, Belgium, Luxembourg, and Finland where the law provides a ‘qualified privilege’. This means that reporters can exercise this privilege if some criteria are met and if some procedures are followed. Usually, in these countries, the protection can be overridden in cases of threats to national security and in the public interest.

While the domestic laws of these countries only award this right to reporters, some international bodies have chosen to extend the scope of this privilege to include anyone who acts as a ‘middleman’ between the whistleblower and the public. This has been done, either by omitting the word ‘journalist’ entirely or by widening the definition of the term to include more than traditional media persons.

As an example, The Declaration of Principles on Freedom of Expression adopted by the Inter-American Commission on Human Rights states, “Every social communicator has the right to keep his/her source of information, notes, personal and professional archives confidential.”

Need for a statutory protection of anonymous sources in India

The Law Commission has made two recommendations on the matter, but they have largely been ignored so far. They have mainly centered around including journalistic privilege in the Indian Evidence Act, 1872 as part of the rule on “privileged communication” which covers attorney-client, doctor-patient, and spousal communication. Sections 126 to 129 and 132 of the Act cover such communication and the best way to integrate journalistic privilege in our existing laws is to amend these sections.

Further, just as the fundamental right to freedom of speech and expression is subject to certain reasonable restrictions, the protection of anonymous informants should also be a qualified privilege, with similar exceptions on matters of national security, public order, and friendly relations with foreign states.

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As long as the primary intent of the law is to protect the informant, there is no reason why lawyers and activists should be extended the same privilege. Any person who is used as a medium by people who take risks to make the public aware of the truth must have the right to invoke it. When confronted with matters such as that of the CBI Chief’s visitors’ logbook, courts must look beyond the text and focus on the intent and spirit of the law.

(Prapti Patel is a student of the Indian Law Society’s Law College in Pune.)

Categories
Human Rights

Where “breast” becomes “chest”: Extra-legal penalties and the muddled regulation of Indian TV

AparGupta_freedomofspeechAre you familiar with ‘newspeak’? No, not the fictional language from Orwell’s Nineteen Eighty-Four. I am referring to the language beamed across India on television channels every minute. In it, “breast” becomes “chest”, “panties” becomes “pants”, and “beef” becomes “meat”. This display of Victorian sensibility on television is the result of government regulation and private attempts to avoid harsh penalties. Let us examine in detail the regulatory muddle causing this witless display.

Regulating television broadcast

The Cable Television Networks (Regulation) Act, 1995 (“the Act”) was enacted as the principal legislation to govern television channels in India. Section 5 of the Act prepares the ground for content regulation of broadcasts and prohibits telecast of programmes that do not conform to the “prescribed content code”. The Act itself does not define such a “content code”, it has been prescribed in the Cable Television Regulation Rules, 1994, a piece of delegated legislation. Rule 6, popularly called the “Content Code rules”, contains a laundry list of various parameters within which all programme content has to be telecast.

They are vague, generalised, and seek to assuage the hypersensitivity of the most conservative individuals. For instance, it prohibits content that “(i) Criticizes, maligns or slanders any individual in person or certain groups, segments of social, public and moral life of the country;” or, “(k) Denigrates women through the depiction in any manner of the figure of a woman, her form or body or any part thereof in such a way as to have the effect of being indecent, or derogatory to women, or is likely to deprave, corrupt or injure the public morality or morals;”. Such language may appear innocent but becomes nocuous when it has the force of law.

It is also relevant to notice the Policy Guidelines for Uplinking of Television Channels from India, which regulates licenses to television broadcasters to transmit signals from India and the Policy Guidelines for Downlinking of Television Channels to India, which regulates the licenses for transmission to television sets in India (“the policy guidelines”). Both of them contain a chapter titled “Terms and Conditions” that mandates that licensees should comply with the Content Code, failing which licenses for transmission may be rescinded.

Enforcement of television broadcast regulations

WorkSafeAntiSexualHarassmentWhat is a right without a remedy? What is a prohibition without a penalty? Both the Act and the policy guidelines prescribe the consequences of breaching the Content Code rules. The Act permits the Union government to prohibit the transmission of any channel or programmefor a prescribed period of time or even permanently. The policyguidelines contain further details including a three-strike clause,under which the nature of the penalty increases upon repeat violations andon the third violation, the government can revoke the license of a television channel.

The content code and its penalties are not enforced by an independent regulator but a body of senior bureaucrats called the Inter-Ministerial Group. Chaired by the Secretary of the Ministry of Information and Broadcasting (“the Ministry”), it reviews complaints sent by the public and through another government body, the Electronic Media Monitoring Centre,screens content on television for violations of the Content Code rules. Even if this may sound reasonable in theory, due to the vagaries of the Content Code rules and the harsh penalties for their violation, some peculiar practices have evolved to cause censorship even without the need to revoke the license of a broadcaster.

These practices include the enforcement of extra-legal penalties. A letter from the Ministry to various state governments dated February 19, 2008 states that violations of the Content Code should be dealt with by issuing advisories, warnings, and orders to display apology scrolls. A list of actions or decisions taken for violations of the Content Code between 2004 and March, 2014 lists only 254 cases. Only in 21 out of these 254 cases has the statutory penalty of prohibition of broadcast been imposed. In the remaining 233 cases, despite a specific finding of a violation, the action was either the issuance of an advisory or a warning, or an order to display an apology scroll.

The problem with such an approach is plainly evident. The penalties which are in the nature of advisories, warnings, and orders to display apology scrolls are not prescribed under the Act. They do not have legal force and (at least in theory) do not censure the broadcaster. This may appear to be the benevolence of the State in ensuring freedom of speech but in fact results in the contrary. Legalities are punished and illegalities are conceded.

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Such extra-legal penalties are much more harmful for media plurality and content diversity. They allow hypersensitive censors to cut up sentences on the mere apprehension of insensitivity or even criticism.Prior to issuing the warning, advisory, or the direction to run an apology scroll, the private broadcaster is given an opportunity to present their defence. Most often, while presenting such a defence, a private broadcaster submits an apology and seeks pardon for the alleged transgression. This is understandable. In the absence of such deference and self-censure, the penalty may increase from a mere warning to either the prohibition of the telecast of the channel or worse, the cancellation of the license to broadcast.

Such measures, which lack the force of law, also come at the cost of ignoring serious violations for which harsh penalties may be justified. To illustrate, various quiz-based shows make inadequate disclosures about the charges of participation and are designed to dupe viewers. To participate, a viewer has to make a phone call to a number carrying an excessive and expensive per-minute charge (often the pulse duration is even less than thirty seconds). On making such a call, the viewer is placed on hold for several minutes so that the channel earns revenue from the call. Rather than taking any firm action about such dishonest practices, the Ministry, on the receipt of several complaints, merely issued an advisory on September 29, 2011. Expectedly, these quiz shows and the cheating of viewers continues unabated.

Another name for censorship

Self-regulation has more recently been posed as an industry alternative to state censorship. Self-regulation, it has been argued, presents the ideal balance between artistic freedom and cultural sensibilities. Two prominent self-regulatory bodies floated by television channels are, the Broadcast Content Complaints Council (“BCCC”) and the News Broadcasting Standards Authority (“NBSA”). These two organisations havepublished self-regulatory codes and even have an adjudicatory mechanism in place, and through these measures, hope to ensure compliance with the Content code and maintain artistic liberty at the same time. Their results till date, have been questionable.

At a conceptual level itself, the self-regulatory codes have for the first time, put in place a formal content-screening process based on the Act itself. While they may read the law liberally, they do not depart from its fundamental regression. The Content Code remains the basis of prescribed criteria under the self-regulatory guidelines. Content code. It is important to stress that censorship was the Content Code has always been “post-publication”, that is, enforced after the telecast.

Now on the other hand, most television channels formally screen their content through their ‘standard and practices’ departments. That is the reason we are inundated with creative edits to words which may cause offence. Innocuous words such as, “breast”, “sex”, and “virginity” are either bleeped or dubbed over completely. Worse, there are the subtitles that display the word  “chest” or a string of stars – “*****” – where the word “breast” should be. This is done devoid of context, for instance, even where the phrase is “breast cancer”. Certainly, even when television channels act as censors, they often replace their scissors with a butcher’s knife.

Other problems persist with self-regulatory censorship. There is a limit to their jurisdiction and reach. The orders of the BCCC and the Indian Broadcasting Foundation are not enforceable in a court of law. Often private compromises are reached and such instances have been documented. Moreover, only a fraction of the channels have become members of such organisations. Out of the 402 general entertainment channels, only 250 are governed by the BCCC. Similarly, out of the 393 news channels registered in India, only 45 are members of the NBSA. There also concerns about a lack of transparency in the publication of complaints and orders. Such concerns need to be addressed through legislation.

Way forward

InfrastructureLawRecently with a change in government, there has been a push to review existing legislation and policy. The Minister for Information and Broadcasting said on June 7, 2014, that he was in favour of abolishing state regulation. Even though such measures may be excessive, to ensure a modicum of sensibility to content regulation, the following steps are suggested.

The self-regulatory organisations to their credit, have not acted merely as bodies to limit the harsh penalties under the Cable Television Networks Act. They have in the past requested for a system of co-regulation, in which a legislation grants them statutory recognition and aids in curing the legal deficiencies that exist. They recognise that at present, they are at best a stop-gap arrangement.The longer such an ad-hoc system continues, the more damage there will be to artistic freedom and freedom of speech.

We also need to look beyond the regressive content code. Any content regulation must place an emphasis on context and censorship has to be proportional to the end that is sought to be achieved. An easy alternative is to link the content code to existing penal provisions. For instance, rather than prohibiting, “criticism of individuals”, a reference may be made to Section 499 of the Indian Penal Code, 1860 containing the offence of defamation. Even though such provisions may be regressive, theyat least have legal ingredients that have been refined by court rulings. Moreover, the present system of overbroad censorship, often caused by broadly defined categories under the Content Code, will abate. Most offences contain precise definitions and legal ingredients which can be applied more easily and in a limited manner by the television channels.

Finally, any legal reform must appreciate the role of the public as not only having the right to complain against offensive content but also the right to view it. Hence, the element of public injury which permits complaints, needs to ensure a system of transparency and pro-active disclosures. Any censorship which is caused, either by private self-regulatory bodies or by the government, needs to be disclosed and published. Moreover, even third parties should be permitted to file legal challenges against any censure. Such a remedy would add teeth to the right to view and receive information which has been recognised to be part of the freedom of speech and expression and is even recognised in cases of censorship of books and written materials.

These solutions would merely be the beginning. The more fundamental question that has to be answered with courage and honesty is to what extent law should censor television broadcasts. If we shirk away any longer, we may continue being governed by a content code which restrains breast cancer awareness programming but permits sensationalist news broadcasts about young women drinking in pubs.

Apar Gupta is a partner at Advani & Co., and was recently named by Forbes India in its list of thirty Indians under thirty years of age for his work in media and technology law.

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Human Rights Supreme Court of India

TRAI’s media ownership recommendations rest on contested understanding of free speech

GautamBhatia_SupremeCourtofIndiajpgOn August 12, the Telecom Regulatory Authority of India (“TRAI”) released a set of recommendations on issues relating to media ownership (Medianama has a great summary, available here). TRAI’s recommendations cover a range of topics, including political and corporate control over the media, issues of horizontal and vertical integration, private treaties, and paid news. The background of the enquiry is revealed in the Introduction. The second paragraph, for instance, notes that: “the right to freedom of speech is essential for sustaining the vitality of democracy. This is why the right is sacrosanct; it is fiercely protected by the media. The question that arises is whether reposing such a right in the media simultaneously casts an obligation on the media to convey information and news that is accurate, truthful and unbiased… the point is: is not the right of readers and viewers to access unbiased and truthful information from the media embedded in the right of the freedom of speech of the media?” (1.2)

Speaker’s freedom of speech and listener’s freedom of speech – Supreme Court decisions split between libertarian and social democratic approaches

Is it, though? Some countries have embedded this viewpoint in their constitutional texts. The German constitution, for instance, guarantees to everyone the right to “freely inform himself from generally accessible sources.” The International Covenant on Civil and Political Rights, whose language is closely mirrored by the South African constitution, protects the right to “seek, receive, and impart information.” These constitutions accord equal weight to the interests of both parties to a system of communication: the speakers (that is, in this case, the media), and listeners (readers and viewers). By comparison, Article 19(1)(a) is sparsely-worded and speaker-oriented: “all citizens shall have the right to freedom of speech and expression.”

InfrastructureLawOver the decades, Article 19(1)(a)’s inconclusive language has divided the Supreme Court of India. Judicial history reveals two distinct – and contrary – understandings of our free speech clause. Let us call these the libertarian understanding and the social-democratic understanding respectively.

According to the libertarian understanding, the free speech clause protects the interests of speakers against coercive governmental control. Freedom of speech exists so that the street-corner orator and the dissident journalist can disseminate their opinions to the public without fear of State persecution or censorship. State regulation that curtails the power of any entity to “speak” is therefore presumptively unconstitutional (it might, of course, be saved by Article 19(2)). The libertarian understanding is best exemplified by the Supreme Court’s newspaper-regulation cases, starting with Sakal Papers v. Union of India, in 1960. In that case, the government imposed a price-per-page regulation upon newspapers, and also restricted the number of advertisements they could carry, as well as the volume of Sunday supplements. The affected newspapers took the case to the Supreme Court. The government argued that the purpose of the regulations was to break the market-monopoly enjoyed by established newspapers. Because of economies of scale, such newspapers were able to keep their prices so low, that they became a veritable entry-barrier for new newspapers to access the market. Or, in other words, the regulations were aimed at facilitating the free speech interests of the public (to have access to a diverse set of sources of news) and non-established media players who wished to enter the market. The Supreme Court rejected this contention, and struck down the regulations on 19(1)(a) grounds.

The government’s argument in Sakal Papers reflects the social-democratic understanding of free speech. Free speech – on this view – is an integral part of democracy, and its value – to quote the American Supreme Court judge Hugo Black – “rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public.” The roots of the argument go back to the great free speech scholar Alexander Meikljohn, who argued that if citizens are to effectively participate in the democratic project, then they must have access to information and iHugoBlack_freepressdeas on the basis of which they can formulate sound opinions about the common good, and exercise refined political judgment. Unlike the libertarian understanding, which puts State and individual at odds, the social-democratic understanding views State and individuals as collaborators in an enterprise aimed at creating thriving and vibrant public sphere. On this understanding, the market – just as much as the State – can become an impediment to this project (as was the case in Sakal Papers).

The Supreme Court in Bennett Coleman affirmed the decision in Sakal Papers (over a strong dissent by Justice K.K. Mathew). In other cases, however, the Court has adopted the opposite viewpoint. In LIC v. Manubhai D. Shah, it imposed a compulsory right-of-reply upon the in-house journal of the Life Insurance Corporation, so that readers could have access to both sides of a debate. And in Cricket Association of West Bengal – which was a case about broadcasting regulations – it famously held that “it is justified by the Government to prevent the concentration of the frequencies in the hands of the rich few who can monopolise the dissemination of views and information to suit their interests and thus in fact to control and manipulate public opinion in effect smothering the right to freedom of speech and expression and freedom of information of others.”

The basic concern of the social-democratic approach – as vividly exemplified by the quoted excerpt – is that the freedom of speech, in today’s world, is mediated by a market-based infrastructure (televisions, newspapers), access to which is often in the hands of non-State parties. If the goal is to create a thriving public sphere, then regulating this market becomes not only desirable, but positively necessary.

TRAI recommendations go beyond competitiveness in the media market

Network18Mukesh_Ambani_
Mukesh Ambani’s Reliance Industries has made a large investment in Network 18, a holding company for several Indian media entities.

With the Supreme Court’s jurisprudence split down the middle, the TRAI Recommendations unambiguously take the side of the social-democratic approach. For instance, in the Introduction itself, TRAI rejects the argument that the existing regulatory regime of competition and anti-trust law, which is aimed at preventing market dominance in a way that stifles effective competition, is sufficient in the sphere of the media. It notes that “the media cannot, and should not, be bracketed with general commodities and services… the principles adopted in the competition law may not serve the special purpose of addressing the need for plurality of news and views.” (1.12) This is a particularly interesting observation. On the libertarian model, government intervention should be restricted to cases of market failure, which are specified in an effective competition law regime. The TRAI Recommendations are based on the premise, however, that because of the importance of free speech to the democratic project, it is not sufficient merely to maintain a threshold level of competitiveness, but intervene further in order to ensure the goal of plurality.

These ideas come to the fore in TRAI’s substantive recommendations. In Chapter Two, it is concerned with defining the concept of “control” in the case of media companies. “Control” is defined both in the Companies Act, and by the Competition Commission. TRAI observes, however, that “in view of the sensitivity surrounding the diversity of news and views in a democracy, it is important to frame rules to include all possible mechanisms by which an entity can influence a media outlet… a comprehensive definition of control [is required] exclusively for the media industry.” (2.9) TRAI’s final definition of control is wide-ranging, and includes “covert understandings” that enable entities to control “decision-making in the strategic affairs… and appointment of key managerial personnel” of a media outlet. (2.13)

External and internal pluralism

The definition of control is central to assessing the “diversity” of media markets, and it is the objective of achieving diversity and plurality that constitutes the core of TRAI’s Recommendations. Chapters Three and Four address issues of “external pluralism” – that is, diversifying ownership and control, and preventing vertical integration of media markets. When identifying the relevant “market” in order to address cross-media ownership issues, TRAI restricts itself to the news and current affairs genre, because of its centrality to “influence[ing] the opinion-making of citizens.” (3.13) It restricts the relevant segments to television and print (excluding the Internet) because of the reach they enjoy. And it defines the geographical market in terms of language, and the State in which that language is spoken in majority. For example – to use the example TRAI gives – a relevant “market” (to assess issues of concentration and diversity) would be Bengali newspaper and television market, which is engaged in the dissemination of news and current affairs, in West Bengal. (3.28) As one can see, the dominant idea is that the average Bengali consumer’s main source of news is Bengali television and Bengali newspapers. Plurality within this market, so defined, is therefore of utmost importance. The Recommendations then go on to make technical suggestions about the regulations needed to prevent and dilute concentration.

APCCLP_CompanyLaw-BannerThe TRAI Recommendation are not, however, limited to ensuring external pluralism by enabling a diversity of voices to access the marketplace. Chapter Five addresses concerns of internal pluralism – that is, not just who is speaking, but what is being said. Here, the Recommendations address the problems of paid news, private treaties (through which a media entity acquires shares in a corporation in return for favourable reporting), advertorials (advertisements which, in form, content and placement, provide a misleading impression that they are news reports), and the blurring of ownership and editorial functions. TRAI recommends statutorily rules that expressly proscribe these practices. As we can see, these recommendations are grounded in the idea that the freedom of the media to communicate is subordinate to its responsibility to ensure that the content of what it communicates is free of vested interests. This takes us back to the social-democratic understanding of free speech, where the ultimate objective is to ensure that no entity – whether the State, using its coercive power, or private players, using their market power – can distort the free and holistic circulation of ideas and information in the public sphere.

Taken as a whole, the Recommendations are rich and detailed, and provide much food for agreement as well as disagreement. For instance, restricting the product market to “news and current affairs” ignores the pervasive influence of culture in the public sphere. Indeed, it rests upon a particularly constricted idea of free speech and “democracy” (that, as being restricted to the explicitly political) that was first propounded by Meiklejohn, but which he himself subsequently repudiated, in favour of a broader understanding. Nonetheless, the aim of this essay has been to demonstrate that the best way of understanding and assessing these Recommendations is to ground them within a particular (and contested) understanding of Article 19(1)(a), that has – at least partially – been endorsed by the Supreme Court.

(Gautam Bhatia blogs at Indian Constitutional Law and Philosophy.)