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Human Rights Supreme Court of India

Five instances where judges considered the use of criminal contempt for criticism of their integrity

PraptiPatelRecently, a Delhi High Court judge initiated contempt proceedings against a legal news magazine that published a report which claimed that a nightclub in the capital was allowed to remain open beyond the licensed closing time because the judge’s son had an interest in the club.

‘Criminal contempt’, defined under Section 2(c) of the Contempt of Courts Act, 1971 as a criminal offence, is the act of communicating, either through spoken or written words or other visible representations, something that, among other things,

scandalises, or tends to scandalise, or lowers, or tends to lower, the authority of any court. Under Section 12 of the Act, criminal contempt can be punished with simple imprisonment up to six months or a fine up to Rupees Two thousand or both.

The somewhat old-fashioned rationale behind this power is that in order for the judiciary to carry out its functions, it was essential for the courts to be perceived as fair and unbiased. Let us look at five instances where courts have used this power to penalise communication in the media that has been critical of the integrity of judges.

1. Perspective Publications v. State of Maharashtra (1968)

Blitz, a weekly newspaper, had lost a suit in which a firm of architects claimed damages of Rs. 3 lakhs from them. Justice Tarkunde of the Bombay High Court had passed the decree. Later, an article that appeared in a publication brought out by Perspective Publications and written by its editor, alleged that the judgment had been decided in favour of the firm because Justice Tarkunde’s father, brother, and other relatives were partners and had a large pecuniary interest in the firm. They were found guilty of contempt of court and sentenced to a month of simple imprisonment and a fine of Rs. 1000. “The publication of a disparaging statement”, Justice Mukherjee held “will be an injury to the public if it tends to create an apprehension in the minds of the people regarding the integrity, ability, or fairness of the judge or to deter actual and prospective litigants from placing complete reliance upon the court’s administration of justice or if it is likely to cause embarrassment in the mind of the judge himself in the discharge of his judicial duties.”

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2. In Re S. Mulgaokar (1978)

A letter was circulated among judges of the Supreme Court and the High Courts on drafting a code of ethics for judges. The Indian Express published the details of the letter and also commented on the character of the judges, specifically referring to some who lacked ‘moral courage’. The suit was dismissed and the article was not held to amount to contempt of court. Justice Krishna Iyer laid down six principles to determine if the publication of some matter amounts to contempt of court.

3. Court On Its Own Motion v. M.K. Tayal and Others (2007)

yksabharwalMid-Day published an article with a cartoon which alleged that Justice Y.K. Sabharwal, a former Chief Justice of India had headed a Supreme Court bench which passed certain orders in the matter of sealing off commercial establishments in residential areas even though the sons of the Chief Justice had a vested interest in those commercial establishments. The article cast aspersions on the soundness of the judgement and imputed that the sons had benefitted from it. Following the publication, senior advocate R.K. Anand had submitted a copy of the paper to the Court and accused the newspaper of scandalising the judge and the Court. The Court took suo moto cognizance of the matter and the newspaper’s editor, publisher, resident editor, and cartoonist were held guilty of contempt of court. “The manner in which the entire incidence has been projected”, the Court held, “gives the impression as if the Supreme Court permitted itself to be led into fulfilling an ulterior motive of one of its members. It tends to erode the confidence of the general public in the institution itself.”

4. Dr. Subramanian Swamy v. Arun Shourie (1990)

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Justice Kuldip Singh, then a judge of the Supreme Court, was appointed the chairman of a commission of inquiry to probe into allegations of corruption against Ramakrishna Hegde, the former Chief Minister of Karnataka. When the commission released its report, it refuted all the allegations. The Indian Express published an article titled “If Shame Had Survived”, criticising the report for being “deferential” to the Chief Minister and accusing Justice Singh of “inventing theories and probabilities” to argue against the allegations. The article also highlighted how Justice Singh had failed to include the evidence of the key witness in the case and said that “If there had been any sense of honour or shame, a Judge would never have done any of this.” Subramanian Swamy filed a contempt petition against Arun Shourie, who was the editor of the newspaper, contending that the editorial was a scandalous statement in respect of a sitting judge of the Supreme Court. Even though the Court took suo moto cognizance of the matter, the petitions were dismissed, partly because the law was amended during the course of the proceedings to include truth as a defence and partly because Justice Singh, as member of a commission of inquiry, was not a court for the purposes of the contempt law.

5. Shri Surya Prakash Khatri & Another v. Smt. Madhu Trehan and Others, 2001

A fortnightly magazine called Wah India published an article listing fourteen judges of the Delhi High Court and evaluated them on parameters of punctuality, knowledge of the law, integrity, quality of judgments, manners in court, and receptiveness to arguments. The evaluation was apparently based on a survey that took in the opinions of fifty “senior lawyers”. The Delhi High Court issued a notice against the magazine’s Editor-in-Chief and directed the Delhi police to ensure that copies of the allegedly offensive issue were withdrawn from newsstands and the shops that sold it. Copies of the issue that had not been circulated were thus seized and confiscated. The Court held that prima facie contempt had been committed by the respondents because the ranking of the judges amounted to scandalising the judiciary. The Court also refused the apologies that were tendered by the accused.

The law on criminal contempt of court in India has been invoked against the press several times because of perceived insults to the judiciary. In Germany, France, Belgium, Austria, and Italy, however, there is no concept of criminal contempt of court and the only options that the judges have are in their personal capacity: either file a criminal complaint or institute an action for libel. In the United Kingdom, even though the criminal offence was only abolished in 2013, the last successful prosecution happened in 1931. Various Indian judgments on the issue have been quick to point out that “scandalising the judiciary” amounts to contempt under the statute but isn’t it time that the judiciary made a conscious move to give a more liberal interpretation to the law? Healthy debate and criticism are necessary in a democracy and there is no reason the judiciary should be above it.

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

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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.

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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

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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.)