Tag: law and media

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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.

CensorshiponTV

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.

Categories
Human Rights

Rape shield: Prohibit use of victim’s sexual history in rape trials

SuhasaniRao_RainmakerfacultyUnderstanding the need for greater awareness to deal with sexual offences has come into focus over the last two years. The law in this regard is changing. However, there still remain some gaping holes in a framework that should be comprehensive. This article explores some of the issues that remain unaddressed by the current laws in force, in India, concerning sexual offences.

Rape Shield Laws

In India, victims of sexual offences are guaranteed anonymity. Under Section 228A of the Indian Penal Code, 1860, disclosing the identity of a victim of certain sexual offences is a crime. Till as late as 2003, it was lawful to bring up the previous sexual history of a victim of rape in order to establish consent. In 2003, a provision of the Indian Evidence Act, 1882 (“Evidence Act”) was deleted in a move towards providing protection to the victims of rape. Further, Section 146 of the Evidence Act now prohibits the questioning of a victim of rape along the lines of her previous sexual history in order to prove consent, in a rape trial. These provisions together, provide a limited rape shield in the Indian legal framework.

Rape shield laws limit the ability of defendants to cross-examine complainants in rape trials about their past sexual history. They also prohibit the disclosure of the identity of alleged rape victims.

SexualHarassmentAtTheWorkplaceMOOC2The philosophy behind these laws, firstly, is that the prior sexual history of a complainant is irrelevant to the question of whether an offence of rape can be established. The facts of the particular instance should be the only evidence that determines guilt. They provide an extra layer of protection to “victim blaming”, the phenomenon of holding the victims of crimes partially or even completely responsible for the rape. The violation of their anonymity and the disclosure of the identity of a rape victim often lead to more violation through increased scrutiny and the stigma attached to the offence of rape. Moreover, given that sexual offences violate the most fundamental right of a human being to exist in peace with full bodily integrity, rape victims often feel a deep sense of fear and trauma when identifying their attackers. Maintaining the anonymity of rape victims is therefore also aimed at providing victims with a sense of security when noting their testimony.

Rape shield laws around the world

These laws trace their origins to the 1970s and 1980s in the United States of America when most of the states provided different levels of protection for rape victims such as mandatory anonymity and restrictions on the admissibility of the previous sexual history of victims as evidence in rape trials. Since then, rape shield laws have been formulated in many jurisdictions. In the United Kingdom, the Youth and Criminal Justice Act of 1999 prohibited the use of a victim’s sexual history as evidence in a trial. In New Zealand, a rape victim’s sexual history has to be vital to the context of the trial for it to be permitted in evidence. Otherwise, the law prohibits the use of such evidence. Similarly, in Australia, rape shield protection is applicable in all territories. Even Ireland, a fairly conservative jurisdiction, has rape shield protection for victims of sexual offences with very limited exceptions to the prohibition of admissibility of the victim’s sexual history as evidence.

Conflict with fair trial rights

Often however, rape shield laws present a conflict with the defendant’s rights to a fair trial, including the defendant’s right to confront the complainant and challenge the veracity of the allegation. The rape shield law in the United Kingdom for example, was read down by the House of Lords, holding that a law that bans juries in rape trials from hearing evidence that an accused had a previous sexual relationship with the accuser breached his right to a fair trial.

Thus, most rape shield laws are couched in negative terms, completely excluding the rape victim’s sexual history from being introduced as evidence. Thereafter, exceptional cases are listed where such evidence may be introduced, notable among them being situations where the defendant’s constitutional right to a fair trial may be violated.

The argument for some measure of anonymity of the defendant in trails of sexual offences is finding some ground in current debate as well. It is opined that it is necessary to keep the identity of the defendant under wraps, at least until the judgment in the case is declared. This is because the stigma attached to sexual offences can deeply affect and destroy the lives of not just the direct victims of the offences, but also the relatives and family members of the defendants.

Absence of a rape shield law in India

Indian laws provide limited protection to victims of sexual offences by prohibiting the disclosure of their identity. The need for a rape shield law in India needs to be seen alongside efforts to combat other types of secondary victimisation of rape victims. Rape victims in India would often be subject to insensitive examination and humiliation by public authorities such as medical examiners and law enforcement professionals in charge of investigating the offence, including the “two-finger test”, (“TFT”) involving a physical examination by a medical practitioner of the rape victim’s genitalia. (In India, a man cannot be a victim of rape). The medical practitioner would insert two fingers into the rape victim in order to establish the “laxity” of her muscles and determine whether the victim was “habituated to sex”. A finding that the complainant was habituated to sex would assist the defence. In fact, in such cases, the defendant would claim that any sexual intercourse between the victim and himself was consensual since the victim was “used to sexual intercourse”.  The pervasiveness of the two-finger test meant that successful prosecutions for rape were limited to instances where the victim was a virgin or at least perceived to be so, at the time of the occurrence of the crime.

The Supreme Court of India has repeatedly grappled with the TFT and has had many a scathing opinions on its applicability. A decisive change of the law occurred last year in Lillu v. State of Haryana in 2013. The Court outlawed the TFT in the following words: “…., the two finger test and its interpretation violates the right of rape survivors to privacy,  physical and mental integrity and dignity. Thus, this test, even if the report is affirmative, cannot ipso facto, be given rise to presumption of consent.”

In light of this judgment, on December 16, 2013, the Department of Health Research under the Indian Council of Medical Research issued guidelines to prohibit the use of the TFT in forensic medical examinations of victims of rape. This prohibition is now part of the Instruction Manual for Forensic Medical Examination Report of Sexual Assault (Victim) brought out by the Government of India.

It is now a medically accepted fact that the loss of virginity can occur without intercourse. Given this scientific evidence, it becomes necessary to re-evaluate the way the law perceives and protects victims of sexual offences. Discarding the use of the TFT was a small step.

There is an immediate need for clear legislative directives throughout the judicial hierarchy, the media and members of the law enforcement agencies to approach the crime of rape with greater sensitivity. It is the need of the hour to implement a humane and a sensitive understanding of the offence of rape so that a rape victim’s trauma is not prolonged through brutal investigation and trial procedures.

(Suhasini Rao is part of the faculty on myLaw.net.)

(This article was corrected on May 1, 2014 to remove an error of law. The prior version did not take into account the 2003 amendment to the Evidence Act. We are grateful to our readers for bringing this to our attention. – Editor)

Categories
Human Rights

Should media outrage affect sentencing in criminal trials?

TennilleDuffy_authorI wish to respond to one aspect of Sohini Chatterjee’s recent post on the sentence handed down in Ram Singh and Others – the ‘Delhi gang rape trial’. She said that the judge had recognised the outrage caused by this case as an aggravating factor and seems to argue that the supposed effect of the media attention on the sentence was a good thing.

I should point out that this is, clearly, not Ms. Chatterjee’s opinion alone. Various manifestations of this sentiment have echoed across Facebook, the comments sections on blogs and news websites, and in various reports about the case. Many people feel that justice has been done and that the court, the judge, and the criminal justice system correctly responded to the outrage felt across society.

I do not think that Judge Khanna’s sentencing order reveals that it was affected by the furore across India even though I have no doubt that he was well aware of it. Whether media reports can and should be taken into account in sentencing, however, is another question entirely.

Let me state at the outset that I am passionately opposed to the death penalty. As it stands however, the death penalty is an available punishment in India, and has been confirmed as constitutional by the Supreme Court of India.

The idea that the media can, and should, have an effect on sentencing and other aspects of the operation of the criminal justice system, however, is worth examining more deeply. Firstly, can the media, and what ‘they’ are communicating, be discerned or measured? Secondly, we need to examine the notion that that the media—whoever or whatever they are—are some kind of spokesperson for society, or the conduit through which society expresses itself. And thirdly, should judges and courts —while sentencing—take into account the expression of society’s demands or desires through the media? Even this minimal unpacking of the idea begins to expose its flaws.

Let us take the first contention. Can we (or a judge in any criminal case in India) know what the media is saying about any particular case? What if the message is not unanimous? Even in a case such as this, where one might be able to readily detect an overall sense of outrage, disgust, and fury, there were other, discordant voices present across the country. We know enough of the history of how rape is treated and reported in India, for example, to know that many different attitudes—foolish, conservative, and ignorant among others—prevail. Further, what kind of media should we observe? The mainstream media and its attendant business and political interests? Facebook and Twitter posts? Independent blogs? Civil society publications? These days, anyone can be and is a commentator. How can any one person process and take all of those opinions into account?

Students protest the rising violence against women at Raisina Hill and Rajpath in New Delhi on December 22, 2012. All three images are from Wikimedia Commons and have been published here under a Creative Commons Attribution-Share Alike 3.0 Unported license.
Students protest the rising violence against women at Raisina Hill and Rajpath in New Delhi on December 22, 2012. All three images are from Wikimedia Commons and have been published here under a Creative Commons Attribution-Share Alike 3.0 Unported license.

Secondly, is the media really the conduit through which society expresses itself? I doubt that, especially in a country and a polity as diverse as India, that could ever be the case. The mainstream media certainly can’t be said to speak for all people in this country. As with all other institutions in society, the media speaks for those in power and those with influence much more than those without. And whilst I am certainly not suggesting that this case didn’t deserve the media attention it has received, I am also not the first person to observe that the media treated this case exceptionally. Yes, that may be due in part to the public outrage. But was the public outrage not also fuelled and enabled, in part, by the media attention?

Many of us are equally outraged or upset by every horrific rape and murder. Reports of fresh cases—the five-year-old-girl who was held captive and raped by a neighbour in Delhi, the reports of the rape of girls in front of their mothers during the recent riots in Muzzafarnagar, and the rape of a woman also on a bus, in Punjab, just two weeks after the Delhi incident—are seen every week across the country. Who weighs the severity of these countless cases, and measures up the column inches or television minutes to be awarded to each? What about the countless others we know that we do not even hear about? Is the consequence to be that, the more media attention a case gets, the harsher the sentence? Or, alternatively, that those who commit crimes against the powerless and those deemed somehow less worthy of media attention, receive more lenient sentences? Obviously, these cannot be results that we seek to achieve in any criminal justice system.

As a matter of general principle, judges should not be looking to the media when they are determining sentences, for all of the reasons and difficulties already described. “Trial by media” is seen as a negative phenomenon for a reason. A properly functioning court system can help avoid erroneous findings of guilt, convictions, and sentences handed down without proper recourse to facts proved beyond reasonable doubt and the imposition of unfair or inconsistent punishments. If a judge is looking to the media in some cases, how is consistency to be achieved? Which commentators’ idea of fairness or outrage is to be abided by?

Even looking at the specific comments and findings made by Judge Yogesh Khanna in this case, I do not think that we can conclude that he was looking to the reported public reaction to this case in delivering his sentence. There is a difference, seen widely across the criminal law, between judges talking about concepts such as “collective conscience” and “community feeling” and judges actually saying “I have observed that people are particularly upset about this particular incident, and that is an aggravating factor”.

SupremeCourtofIndia_aggravatingcircumstance_extremeindignation_abhorrenceOne case that Judge Khanna refers to is Gurvail Singh @ Gala and Another v. State of Punjab, a 2013 judgment of the Supreme Court that Ms. Chatterjee has also referred to in her post. In that case, the Court spoke of “whether the society will approve the awarding of death sentence to certain types of crime or not.” “While applying this test, the Court has to look into variety of factors like society’s abhorrence, extreme indignation and antipathy to certain types of crimes like rape and murder of minor girls”.

As we can see, the Supreme Court is referring not to a specific crime or specific public expressions of outrage. They are not speaking about some way in which judges could or should react to particular, one-off instances of outrage. Rather, they are talking about a certain category or type of crime, such as the rape and murder of minor girls.

Judges are members of the community too. For better or for worse, they are given the power to impose sentences within the criminal justice system. Part of that role is that they must gauge the level of seriousness of a crime and the level of general social abhorrence of various types of crime. As much as is humanly possible, they must attempt to do so in a principled and consistent way. To look to the media to inform their sentence, or to react more harshly to highly publicised crimes, goes against all sentencing principles, and should be discouraged.

As a member of the community, Judge Khanna was entitled to take into account not only the barbaric and hideous nature of the acts that were committed by these men, but also the fact that it was the type of crime that society increasingly found abhorrent, despicable, and outrageous. On the face of his judgment, it appears he did just that – no more, no less. Given the change in rape laws following this crime, there is no doubt that this sentiment will be echoed in many cases and sentences to come.

(Tennille Duffy is part of the faculty on myLaw.net.)