- Question of ‘Teeth’ that SC wanted
When the freedom and free life is threatened by the draconian rules and rulers, people remember the guardian of the Constitution- the Supreme Court of India, or High Courts. The Supreme Court said the new rules “lacked teeth” as there are no provisions for fine or prosecution. Apex Court bench of Justices Ashok Bhushan and R. S. Reddy says: “One issue that has cropped up is uncontrolled viewing of scenes in Prime Video. Union of India has notified new Rules in this regard. The Rules are in the nature of guidelines with no effective regulation of screening or taking appropriate action.“ Rules don’t list anything about appropriate action to be taken against those who don’t abide by the guidelines. Solicitor General has submitted that steps will be taken for the same and it shall be placed before the Court.”
The cause of controversy is the ‘Tandav’, a nine-episode political thriller starring top actors like Saif Ali Khan, Dimple Kapadia and Mohd Zeeshan Ayyub. The apex court made these observations before it granted protection from arrest to Amazon Prime Video’s India head Aparna Purohit in several FIRs lodged over web series Tandav. Supreme Court asked the Uttar Pradesh government on Purohit’s plea for an anticipatory bail.
The complainants accused Purohit of inappropriate depiction of Uttar Pradesh police personnel, Hindu deities and an adverse portrayal of a character playing the prime minister in the web series. Senior advocate Mukul Rohatgi, appearing for Purohit, had termed the FIRs against her as shocking. He said: “this woman is an employee of Amazon and she is neither a producer nor an actor but still she has been made an accused in around 10 cases relating to the web series across the country.” Earlier, on January 27, SC had declined to grant interim protection from any coercive action to director Ali Abbas Zafar, Purohit, producer Himanshu Mehra, the show’s writer Gaurav Solanki and actor Mohammed Zeeshan Ayyub. Allahabad High Court refused to grant bail to Purohit, against which she approached SC. The Allahabad high court had observed, “Western filmmakers have refrained from ridiculing Lord Jesus or the Prophet, but Hindi filmmakers have done this repeatedly and are still doing this most unabashedly with Hindu gods and goddesses.”
What kind of teeth is needed? Harsh criminal penalties, through Rules? Or is it advising to bring a criminal law where a code of conduct was put in place?
The government took the advice immediately and Solicitor general Tushar Mehta, appearing for the Centre, promptly responded saying the government will consider appropriate steps and any regulation or legislation will be placed before the court, and added that new rules were made as a balance between “no-censorship and internal self-regulation”. Legal expert and critique Gautam Bhatia, has noted on Twitter that the apex court appears to have “started some kind of extra-legal negotiation with the government to bring in more “stringent” rules.”
Criminalising expression :
The New Media Rules create serious apprehensions of criminalising the expression of text, audio and video. The executive Government enters newsrooms and entertainment studies, through them the drawing rooms. As streaming is possible through palm tops or smart phones, the Government can handle every hand. The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 is notified by the central government on February 25 raising several questions of legality and constitutionality. The charges and prosecutions will be staring at the entertainment industry in India now. This subordinate legislation by executive joins the long list of anti-expression laws that pose constant threats to the freedom.
Fighting on comments and sentiments :
Several persons who are offended by some religion-based comments or communal hate content or cultural or moral issues of depiction of history, religion, politics and parties, of some broadcasts and online videos are launching the legal fights in courts of law challenging big corporate entertainment industrialists. The police stations are flooded with FIRs, while there is surge of writ petitions before High Courts and Supreme Court, depending on value, size and influence of the petitioners and publishers. There are number of grievances. The media outlets are also deliberately introducing the provocative content courting controversies and cheap popularities. The ruling dispensations all over find the religious sentimental litigation and discussion as more effective diversion of people’s attention from rattling issues of inflation, price rise, fall in freedom index, growing, unemployment and wrong decisions in the administration. All social media platforms facilitate the provocations and verbal wars as potential channels of violence. The insanity of ‘fans’ and ‘devotees’ is alarmingly being fuelled by deliberate and irresponsible comments. How these rules rule this situation? An army and authority to protect so called culture, morality, sentiments, and religious feelings are being built up with the support of the rules. The rules promulgation itself could, perhaps, be enough preparation for daily ‘attention-diversion’ strategies.
The comment could be countered with the comments. The comments, even jokes could become ‘sedition’, or contempt of court or criminal defamation, or a case under UAPA or some section of IPC. The Attorney General and Advocate Generals will need a section in their offices to receive and respond to petitions seeking sanction for prosecution of twitter or facebook or blog writers under contempt of court. The Parliament and the Assemblies also have started threatening with contempt of house action initiatives.
Law does not but Rules punish!
The Centre cannot punish through the Rules 2021. If parent legislation Information Technology Act 2000 has not given power, the Rules cannot create it in the hands of executive. The law did not provide for proposed three-tier regulatory mechanism and content classification system as found under the rules. These Rules exceeded the delegated authority and hence cannot stand. One has to look at Section 69A of the IT Act, which says the powers under this section could be wielded exercised only in the interest of “sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognisable offence relating to above.” These are the grounds for imposing reasonable restrictions through law as per Article 19(2) of the Constitution. There is another ground “decency or morality” listed under Article 19(2) to impose reasonable restrictions upon free speech, this ground is specifically omitted from the text of Section 69A. It clearly stated that Section 69A powers cannot be used to regulate online content which may be obscene or sexually explicit. Completely in violation of this, the new media IT Rules 2021 mandate the classification of online content based on nudity, sex, expletive language and substance abuse and also mandate access control and age verification mechanisms to prevent viewing of such content.
Media portals challenge :
Digital news media portals filed petitions before the Delhi High Court and the Kerala High Court challenging these Rules. The petitioners pointed out that Section 69A enables the central government to direct “any agency of the Government or intermediary” to block access to online content. But this does not include online video streaming platforms. Companies like Netflix and Amazon Prime commission or license the films and shows available on their platforms, and they are not an “intermediary” under the IT Act because unlike social media platforms such as Facebook and Twitter, they do not allow users to post whatever they wish without any pre-selection. The penal provision under Section 69 A(3) also prescribes imprisonment or fine only for an “intermediary” who fails to comply with blocking directions issued by the central government. Therefore, in its present form, Section 69A does not impose any obligations or liability upon publishers of content such as online video streaming platforms.
Petitioners have rightly pointed out that Section 69A only grants the central government the power to “block for access by the public or cause to be blocked for access by the public any information generated, transmitted, received, stored or hosted in any computer resource.” Whereas the Rules 2021 granted much broader powers including requiring an apology or disclaimer, re-classification of content and deletion or modification of content. The Rules grab more powers than those granted, and indirectly introduces the Censorship on the similar lines of CBFC etc.
Babus to boss over media :
In addition, the so called three-tier regulatory framework created under the rules is defective because of the substantive problem of lack of independence. The Government at third tier controls two tiers as its ‘subordinates’ which created a hierarchy of offices to deal with complaints of individual viewers at the top level which might end in ‘punishing’ the producers. All the FIRs that we see now against streaming will become ‘complaints or ‘grievance’ at Level One and ultimately go to Level Three to be dealt by the Central Government. This can never be called ‘self-regulation’. The third tier is the Inter-Departmental Committee, comprises entirely of bureaucrats and there is no guaranteed representation from the judiciary or civil society.