Who is the supreme human rights judge in Europe?
Up to 18 December 2014, it was taught or hoped to be the European Court of Human Rights in Strasbourg (ECtHR). Now, having the European Court of Justice (ECJ) rejected the draft accession agreement of the European Union to European Convention of Human Rights (ECHR), the issue remains unsolved. The final link in the human rights protection in Europe is still missing. The strength of the negative opinion and the crucial points of non-compliance of the accession agreement with the EU law, as presented by the ECJ, leave a lacuna in the European system of protection of human rights.
The system which lives for more then 6 decades in Europe, and which is often considered to be one of the most effective regional mechanisms of human rights protection, despite of several necessary improvements to deal with its backlog.
The system which may make the respondent state to redress the human rights violations, provide the affected victims with just satisfaction, or even undertake some general measures such as to amend or adopt laws, change inappropriate practices, etc.
The only loophole in the protection of human rights in Europe, however, remains a loophole. The gap was not closed.
The European Union has indeed recognized the European Convention as an instrument by which general principles it shall be led in accordance with constitutional traditions of Member States (Article 6 para 3 of TEU/TFEU). But there comes a question of the extent of influence of the Convention. To respect human rights as a principle, or to be bound by the European Convention and ready to take consequences of potential human rights violations?
The EU was supposed to submit itself to the Court which is not an EU court but the court belonging to a regional international organization consisting of 47 states, the Council of Europe, including at the same time all member states of the EU.
EU provided in the Lisbon treaty its will to accede to ECHR. Although this would come as a precedent, as members to the Convention are only sovereign states, it was eagerly awaited as another signal that EU does carry state elements. The accession would have covered the only loophole in Europe which is not covered directly by the ECHR, and which are the institutions of the EU. Every citizen of the EU could complain to the ECtHR, not only against its national state, but also against a EU body. However, with the ECJ decision as such, the EU citizens seem to be deprived of this control of EU bodies. They can complain to the European Ombudsman, however the ombudsman nature of controlling affairs cannot be compared to judicial control of human rights violations, and is more relied upon the power of authority of ombudsman without an executive power as to its recommendations.
It appears that the ECJ opinion brings out not only the question of the human rights protection instrument applicable in the EU, but one more important question as well. What is the nature of the EU? Is it a sui generis state, a quasistate or a regional international or supranational organization?
Elements that a state should have in classical theories encompass the citizens, government and the territory.
Citizens of the EU are recognized by their EU affiliation and hold the EU citizenship. However, the citizenship is not exercised by the EU itself. It has only accessory nature to national citizenship. The member states are the ones that decide upon the terms of acquiring and loosing one’s citizenship. Naturalization rules differ from state to state, in duration of residence, duration of marriage/partnership, and even in (non)necessity of actual residence in the state granting citizenship. Therefore, there are no unified rules at the EU level governing the acquiring or loosing a EU citizenship.
EU territory is to a large extent unified by the single market, freedom of movement of persons, goods, capital and services, which might be scrutinized only for public good purposes, i.e. protection of public morals, health, prevention of crime etc.
Government in abstract sense, is a bit more complex. Once upon a time, it entailed only state governing power directed to inward, and was considered to be absolute, sovereign, not touchable by any more supreme power. With the atrocities of two world wars the government split to the inner, controllable by the state and outer, states willingly giving to a third objective authority, which led to further development of principles of monism and dualism in international law. Younger democracies opt for dualism, asking for an international recognition of their newly acquired values, while older more traditional democracies stick to monism preserving their inner values and being less susceptible to outer voices. Thus came the Council of Europe. For the cause of safeguarding of values of human rights, democracy and the rule of law, 47 states are now bound to give the part of their sovereign government to CoE bodies, guaranteeing that they will live by these principles. Their will was expressed by their ratification of the ECHR, which is still, despite of occasionally slow procedure by the Convention bodies, considered to be most effective human rights instrument. Differing from other instruments protecting human rights, it provided for direct jurisdiction of the European Court of Human Rights, acting upon a complaint against a respondent state. So it brought not only material but procedural guarantees as well. On the other hand the EU Charter, provides for material provisions mainly taken from the ECHR.
EU seems not ready to submit itself to an outer, third body which could control its acts or procedures in the human rights aspect and eventually request certain actions to be done.
EU thus twice failed at the statehood exam. First, when its constitution was not upheld and now when the ECJ did not uphold its accession to ECHR.
Preparatory work for the accession
The grounds for the accession is Lisbon treaty, in force since 1 December 2009, which in Article 6 para 2 of TEU and TFEU, stipulates that EU shall accede to ECHR provided that EU competences are not affected by the accession. Having in mind that only sovereign states might be member states to the Convention, the first formal link between the CoE and the EU was made by the adoption of Protocol No. 14 to the Convention, which provided in its Article 17 that: ‘The European Union may accede to this Convention’. The said Protocol entered into force on 1 June 2010.
A specially assigned Steering Committee for Human Rights (CDDH), on the side of Council of Europe, and European Commission, on the side of European Union, started their task to prepare the legal instrument of the accession. In mid June 2010, CDDH appointed an informal group of 14 members chosen on the basis of their expertise (seven from EU member States and seven from non-EU member states), and it held eight working meetings with the European Commission and subsequently the ad hoc group (47+1) held another five negotiation meetings with the European Commission. As a result of joint efforts by both the CoE and the EU, a package of text including the draft accession agreement was adopted on 10 June 2013.
Accordingly, the accession agreement did not come at once, nor was it imposed by the Council of Europe. It came as a result of long negotiation process that took more then three years.
That is why the opinion by the ECJ was a surprise to many scholars and practitioners. Could it be that negotiations were not thorough enough? Or that the ECJ was too strong in defending its position? It appears that the ECJ took the role not only of adjudicator but of a (de)creator of political approach towards ECHR undermining the very essence of the whole idea of accession to ECHR. It did not take the negative opinion as to formal grounds but it referred to crucial elements of the Convention system and its procedural safeguards towards the EU. It almost totally detached from the approach agreed upon 7 years earlier in Lisbon.
Essence of the opinion of the ECJ
EU Charter v. the ECHR and ECJ v. the ECtHR
At the outset of its reasoning the ECJ points out that it has only been possible for State entities to be parties to the Convention, and that the EU has created a new kind of legal order with its peculiar nature (para 155, 158 of the Opinion 2/13) which resulted from the Member states limiting their sovereign rights for the benefit of EU (157). It stresses out that the Treaties retain primacy over the laws of the Member States, and that at the heart of that system is the Charter and the fundamental rights it protects with the ECJ giving the judicial protection of individual’s rights. Thus at the very beginning of its reasoning the ECJ wanted to put itself and the EU human rights instrument, the Charter, at the strong first position regarding the issue of human rights protection in EU.
Concern about external control
The ECJ was concerned about its future role in case the EU acceded to ECHR. It contended that the interpretation of the ECHR by the ECtHR would be binding on the EU and that the interpretation by the Court of Justice of a rights recognized by the ECHR would not be binding, vice versa, on the ECtHR. The ECJ has thus clearly refused to be controlled by the ECtHR and to have a subordinated position in the Strasbourg system of human rights protection, which is the exact mode of functioning of Strasbourg system.
Concern about the Convention minimal standards
The crucial point of the ECHR is that it gives only the minimum standards below which the states cannot go. It however does not prevent the states to provide more rights then prescribed by the Convention. The ECJ however fears that the states giving higher standards of human rights protection could jeopardize the Charter having primacy in the EU law. If we have in mind that the Charter mainly incorporated ECHR rights, (and added some more, for example the right to work), can we imagine how could better protection of human rights jeopardize Charter?
Principle of mutual trust-Interstate applications
Interstate applications under the Convention according to which any state may initiate proceedings against any other member state to the Convention, are aimed to preserving the peace and giving every state the right to be a watchdog over possible massive violations of human rights. During the whole life time of the Convention the ECtHR issued only 5 judgments upon interstate applications, in cases of Ireland v. the United Kingdom, Cyprus v. Turkey (2), Denmark v. Turkey and Georgia v. Russian Federation. The ECJ however stressed out that ‘checking’ by one Member state of another Member state would upset the underlying balance of the EU and undermine the autonomy of EU law. (194) Moreover, it said that if the EU states would be able to submit the application to the ECtHR it would undermine the very nature of EU law which requires that relations between the Member states be governed by the EU law to the exclusion. (212) By such a reasoning the ECJ very avariciously preserves its legal system from any outer influence or control.
Advisory opinions by ECtHR v. preliminary rulings by ECJ
Under Protocol No. 16 to the ECHR the Member states could ask the advisory opinion by the ECtHR about the interpretation or application of the European Convention. However, the ECJ fears that the state could circumvent the procedure for preliminary ruling by ECJ by which it interprets EU law?!
Interference into division of powers?
The ECJ contends that ECtHR might be required to assess the rules of EU law governing the division of powers between the EU and its Member states or the criteria for their acts or omissions, and thus interfere into division of powers (224, 225). Could the ECJ be considered overcautious?
Subsidiarity of ECHR system
The very important feature of the ECHR protection system is that it has a subsidiary nature, i.e. it gives first the chance to national system to address the potential human rights violation and only if it fails, there comes the Convention system. That also goes in line with the exhaustion of domestic remedies requirement prior to addressing to the ECtHR. Logically, in case of EU accession to ECHR, the domestic remedy to be exhausted, in case it is effective, would involve the ECJ. However the ECJ contends that if such a possibility would be permitted then the ECtHR would interpret the case-law of the Court of Justice (239). Well it is true, but only when there is a human rights violation under the European Convention, at stake and in accordance with its well established case-law. However the ECJ remains of the opinion that if it (ECJ) were not allowed to provide the definitive interpretation of secondary law, and if ECtHR would provide for its interpretation, it would breach the exclusive jurisdiction over the definitive interpretation of EU Law of the ECJ.
Common Foreign and Security Policy (CFSP)
The ECJ finds problematic any possibility of interfering into the acts of EU under CFSP. But the European Convention does recognize the right of states (EU) to limit certain rights and freedoms (for example Articles 8-12 of the Convention) for the purposes of safeguarding public peace, security, morals, etc. It also provides for the right of depositing reservations regarding certain provisions. Absolute rights, off course, are excluded from this option, such as the right not to be tortured.
It seems from the above considerations that the EU is an international regional organization not yet ready to submit its system to external control. EU remains traditional, not allowing for external control, fearing from loosing the consistency of its well established system. And as dr. Walter Schwimmer rightfully remarked in his recent ‘Human Rights violations inside EU’ ‘if one believes that political persecution, police brutality, torture, inhuman or degrading treatment, illegal detention, unfair trial could not happen on EU territory one should look to the judgments of the European Court of Human Rights and to the reports of Council of Europe’s Commission for the Prevention of Torture’.
So, how shall the negative ECJ opinion affect the human rights gap that remained in relation of ECHR towards the EU? Well, the future is ours to see.
The rise & rise of populist demagogues in democratic nations
The term dictators & demagogues are used interchangeably in various contexts but there’s a difference, the former rules over a totalitarian state where government is able to exercise a complete influence over every aspect of citizen’s life whereas the latter is a “wannabe dictator” but due to the system of checks & balance in place they’re are not fully capable to create police states.
In 21st century these flamboyant demagogues have adjusted their personality & politics in such a way that they successfully hide their intent & action in the shadows of democratic system so unlike Hitler’s Fascist regime or North Korea’s Communist dictatorship, it’s difficult to held them accountable because they’ll try to justify their hasty & unreasonable decision in the name of Constitution & larger public good.
There are some common qualities shared by populist demagogues in democratic countries that need to be checked in all seasons to protect the country & its people from potential benevolent dictators.
1.Compromised Constitutional Bodies
The rabble-rousers of the modern era have smartly learnt from their predecessors that to stay in power for eternity, it’s important to curb & limit the functions of Independent Institutions like Courts, Central Bank, Auditory Bodies, Investigation Agencies etc. For instance the President of Turkey Recep Erdogan has almost destroyed judicial independence in the country & with the recent news about the call of his political ally to shut down Turkey’s Constitutional Courts is not just alarming but also a cause of concern in a country where a record number of journalists are serving jail sentences under false charges & this decision if taken will not just compromise the press freedom which is already at its nadir in Turkey but it’ll also weaken the capacity of judicial system to guarantee the protection of people’s rights.
2.Unnecessary Focus on the revival of Glorious Past
Demagogues keep reminding us about the ancient prosperity & always pushing the narrative to portray their country as the leading force , it can be done via 2 ways, either promote the soft power like culture, tradition, civilization & spirituality or use even nasty tricks to pull out the blinded nationalism that includes portraying one’s country as the leading colonizer, telling people about invaders & portray them as protector of native civilization or use race theory to create a class divide in society like Hitler did by invoking the Aryan identity that made some people into believing that they are superior to others.
By inciting this false hope of regaining the past glory & branding slogans like “Make America Great Again”, “For us, Hungary First”, “Abki bar, Modi Sarkar” they deceit & manipulate people into voting for their parties without doing any substantive work on the ground.
3.No respect for Dissent & Human Rights
Dissent or criticism of the leader & its establishment is part of a healthy Democratic society where people are fundamentally free to express their views regarding the government’s policies. While delivering a lecture on the topic,” The Hues That Make India: From Plurality to Pluralism,” the Supreme Court Justice DY Chandrachud noted that ” Descent is the safety valve of a democracy” but sadly the Modern day Niro of India who ironically belongs to the same State where this lecture was being delivered has left no stone unturned to deliberately cut this valve into pieces.
Critics & Human Rights Activists are put behind bars for raising their voice against the atrocities & crime inflicted on tribals, minorities & other vulnerable sections of society. They are mercilessly beaten, tortured, thrashed & maimed in solitary confinements making no exceptions for maintaining basic human decency that is expected from the “World’s Largest Democracy”.
4. Polarisation for winning elections
The gruesome killing of George Floyd by White male police officer sparked a global outrage & protests against the racial inequality & hate crime that is at its highest level in more than a decade. People demanded accountability & change to stop the Institutionalised & Systemic racism against the people of color in the United States. Ex-president Trump instead of calling out & condemning white supremism (terrorism) has defended & even embraced this far right radical ideology of hate.
As per the report by V-Dem, there’s an upsurge in political polarisation in India since 2014 when BJP seize the power at Centre & this is evident by frequent incidents of mob-lynching, riots & attacks on minorities especially muslims & Dalits in India. This report further states that Freedom of Religion has seen a considerable decline under the current regime. The reason behind these precipitous decline is the rise of Hindutva Politics which was long gone, forgotten & buried in the coffin but the BJP has called out the jinn of hatred to sway elections after elections at the cost of people who want to live a peaceful life in a non-hostile environment.
5.Violate established rules of Political Conduct
Politics was always a dirty business but populist leaders in most democracies have stooped to a new low & ruined it further. They never shy away from using homophobic & sexiest slurs or passing derogatory remarks against their counterparts in other parties.
Take for instance Brazilian President Bolsonaro, a nutcase who revokes popular prejudices in his ugly campaign rhetoric by passing many offensive & utterly distasteful comments against women, gays, environmentalists & minorities.
The rise of retro-macho politics has left no space for political sobriety & if unchecked, the tumor of hypermasculinity will not be just limited to hate speeches & jibes but translate into formidable action against humanity.
That’s how Romanian dictator Ceaușescu turned his political rhetoric into dystopian reality, under his dictatorship, birth control was banned, abortion was outlawed & fetus was declared the “property of society”, so women were tested for pregnancy & monitored to make sure that they give birth, and punished if they failed.
6. Refusal to accept migrants from Impoverished & war-torn countries
This is the hypocrisy of Western States who for decades have waged war, supported regime change, imposed Economic sanctions & trade barriers, sold weapons to militants in Middle-eastern & African countries finally when refugees & immigrants are arriving at the European borders from these destabilized countries where anarchy has bolstered civil war & complete chaos after covering an extremely dangerous route & taking enormous risks such as relying on people-smugglers or using flimsy boats to cross rough seas, they were detained & locked up under inhumane conditions in shipping containers in Hungary at whims & fancies of Hungarian government headed by ultra-right wing Viktor Orbán but after the European Union Court ruling last year, Hungary has finally shut-down these illegal migrant transit zones situated on its border with Serbia, at the same time tightening rules which will effectively bar future migration prospects in EU member states.
7. Climate Change Deniers
Climate Change is the biggest threat to human existence in the 21st Century. Earth’s Climate is now changing faster than at any point in modern civilization, primarily as the result of human activities. It needs to be understood that Climate Change is not just a science issue but a policy issue as well. In most of the countries where demagogues are in-charge the policy seems to be more destructive, anti-science & discredit the scientific studies that show that effects of Climate Change are horrific & destructive for the Planet.
The environmental policies of Bolsonaro in Brazil have put the Amazon Rainforest on the verge of extinction. Regarded as the “lungs of the Earth”, the Amazon acts as a giant carbon sink & is also responsible for driving rain patterns across South America & Africa. Leaked documents revealed that Bolsonaro has cynical plans for Amazon Rainforest that includes hydroelectric plants, construction of bridges on Amazon river & a proposed highway through the dense forest to integrate Amazon basin with the rest of the National territory.
Under pressure from the Biden Government, Bolsonaro is now promising to make Brazil Carbon neutral by 2050 but his Environmental minister has asserted that his country is ready to cut 40 percent of deforestation in Amazon Forest only if the International Community will provide $1Billion as assistance. Though It is highly unlikely that the Brazilian government will take any steps against the influential farming lobby that played an important role in the victory of Bolsonaro in 2018 & to whom he has promised to dismantle existing environmental protections to make way for agricultural land expansion and intensified production.
The rise of populist leaders in democratic countries is not sudden, before seizing power they boastfully promise to set their country free from corruption, crime & socio-economic inequality but after winning election they shift their goal post to achieve sinister objectives. Electoral political system in a democracy needs an urgent overhaul to include an educated perspective rather than simply representing the
will of majority which is no less than tyranny & this could only happen if people(voters) are aware about fascism among themselves & what does it take for a normal country to become a Nazi State that had turned itself on the path of ravage & destruction. The importance of self realisation & tumultuous past is aptly described in a quote by Ernest Hemingway in his classic book, For whom the Bell tolls “But are there not many fascists in your country?’ There are many who do not know they are fascists but will find it out when the time comes“.
OTT broadcast and its censorship: Whether a violation of freedom of speech and expression
The whole world, owing to coronavirus pandemic, is enveloped in the darkness. It has wreaked havoc on almost all the aspect of human lives. The educational institutions, theaters and cinemas all have been shuttered. Public gatherings, to maintain the social distancing, have been firmly discouraged. Further, the pandemic has significantly modified the media and entertainment consumption patterns. Social lives ventured into digital environment as a result of people being cramped to their homes. People have switched to several sources of entertainment from the comfort of their own homes and over-the-top (“OTT”) platforms have proven to be a major source of entertainment.
OTT platforms have grown exponentially and taken over the industry. OTT platforms expedites streaming of video content over the web. Several OTT platforms such as Netflix, Amazon, Disney Hotstar, Disney+, Apple TV+, Hulu, etc., have primarily ousted the traditional television service. The notification issued by the Central Government of India aimed at getting online media platforms and content on OTT platforms within the jurisdiction of the Ministry of Information and Broadcasting has been making the rounds in recent times. The cabinet Secretariat, on November 9, 2020, released a notification amending the Government of India (Allocation of Business) Rules, 1961. It has incorporated two new entries to the second schedule of the Rules namely Films and Audio-visual programmes provided by online service provider as well as News and Current Affairs. This action is attributed to the fact that there is large amount of an unrestricted content available on the web as well as lack of an adequate regulatory regime in place to protect its users.
Universal self-Regulation code
The Internet and Mobile Association of India (IAMAI) had come up with a Universal self-Regulation code (code) to administer the content available on OTT platforms. The code was primarily adopted by the fifteen OTT platforms namely zee 5, Viacom 18, Disney Hotstar, Amazon Prime Video, Netflix, MX Player, Jio Cinema, Eros Now, Alt Balaji, Arre, HoiChoi, Hungama, Shemaroo, Discovery Plus and Flickstree. SonyLIV and Lionsgate too have recently signed the code. It was manifestly stated in the code that The Information Technology Act, 2000 (IT Act) is the main governing framework when it comes to online content. The values enshrined in Article 19 of India’s Constitution, namely the Right to Freedom of Speech and Expression, direct the internet and material on the internet. A policy for the digital content sector has to be drafted in line with Article 19 of the Indian Constitution i.e. the Right to Freedom of Speech and Expression, and any constraints on the aforesaid right should be fall within the purview of constitutional restrictions set forth in Article 19(2) of the India’s Constitution.
Further, the code had delineated a mechanism pertaining to (i) Age Classification (the code had particularized the certain categories for standardized age classification namely All ages, 7+, 13+, 16+ and 18+) (ii) Appropriate content specification ( a content descriptor appropriate to each piece of content that demonstrates and tells the viewer about the essence of the content while also advising on viewer discretion) and (iii) Access control Tools( to regulate access to content, signatories to the Code may implement technological tools and measures for access control i.e. PIN/Password.) The code had also established the perspicuous grievance redressal and escalation process to lodge complaint regarding non-adherence to specified guidelines. The MIB, however, has repudiated the proposed code since it did not explicitly categorize the prohibited content. Further, there is no independent third-party oversight and a transparent code of ethics. The MIB instructed IAMAI to seek guidance from the Broadcasting Content Complaints Council (BCCC) and the News Broadcasting Standards Authority (NBSA) self-regulatory frameworks.
A public interest litigation was consolidated in October, 2018, before the hon’ble Delhi High court by Justice For Rights Foundation to draught certain guidelines for modulating the content available on OTT platforms. The MIB while filing the counter affidavit stated that digital platforms are not required to procure a license from them to exhibit their content and the same is not controlled by them. The Ministry of Electronics and Information Technology (MEITY) has also mentioned that they do not oversee internet content and there exists no mechanism for monitoring or licensing an agency or establishment that posts content on the internet. Nevertheless, it was claimed that the provisions concerning IT are applicable, and concerned legislative authority having jurisdiction under the aforesaid Act is authorized to take action using the power granted to them under section 69 of the Act which involves directives for interception, surveillance, or data encryption. Further, under Section 67 of the Act there are penalties pertaining to posting or disseminating obscene information in any digital form. Accordingly, the court while dismissing the petition opined that it cannot grant a mandamus for the creation of regulations when the IT Act already contains stringent restrictions and currently the foregoing petition is pending in the hon’ble supreme court.
Positions of the law in regards to film screenings
A film must be certified by the Central Board of Film Certification before it can be displayed or distributed in cinemas or on satellite, and the content is constrained by existing laws. The CBFC was established by the Cinematograph Act of 1952. When it was established, it was designated as the Board of Film Censors. It was amended in 1959 to give it the authority to certify a picture for mass consumption. The Cinematograph Act of 1952, the Cable Television Networks (Regulation) Act of 1995, and the Cable Television Networks Rules of 1994 are among the laws that govern the industry. However, there is no such particular legislation for regulating material on OTT platforms. The government by virtue of Article 19(2) of Indian constitution can impose restrictions on freedom of speech and expressions in the interest of sovereignty and integrity of India, security of state, friendly relations with foreign countries, public order, decency or morality and so on. Consequently, broadcasted content has often been a restricted matter. In K.A. Abbas v. Union of India and Another, the constitutionality of censorship was initially challenged. The hon’ble supreme court has upheld the constitutionality of censorship under Article 19(2) of the India’s constitution and stated that films must be viewed differently from any kind of art and expressions because a motion picture can elicit more intense emotional response than any other product of Art. However, such censorship should not be exercised to imposed an undue restriction on freedom of speech and expression.
The constitutionality of censorship was also disputed in S. Rangarajan v. P. Jagjivan Ram wherein the hon’ble supreme court has held that the board’s criterion for appraising the films must be that of an ordinary man with common sense and wisdom rather than that of a hypersensitive mind. The Moral values ought not to be compromised in the realm of any social change. The concept of “Dharam” should not be disrupted by the immoral norms or standards. However, it does not suggest that censors must embrace a conservative perspective. They should be resilient to social change and go with the topical environment. The film is the most legitimate and significant medium for addressing topics of public concern. The producer has the right to broadcast his own message, which others may or may not concur with. The state, regardless of how hostile to its policies, cannot suppress open debate and expression. The democracy is basically a government by the people based on open debate. The democratic form of administration necessitates citizens’ active and informed engagement in the societal issue.
Furthermore in, Phantom Films Pvt. Ltd. And Anr. V. The Central Board of Certification, it was said that we are governed in a democratic manner. We can’t expect everyone’s head and intellect to be the same in a democracy. Freedom to think and act in a different way is at the heart of democracy. The beauty of democracy is the diversity of viewpoints, ideas, and manifestations. It’s unrealistic to expect everyone to exhibit themselves in the same way. In the film business, new blood is being infused. This new blood is revved up and eager to get their feet wet in the industry. The film business and the general public have embraced such new blood. Their effort has been recognized and praised by the government. These works are predicated on a certain way of thinking that is unique to them. They have their own opinions and ideas on how the film business should operate, as well as how the medium altogether must be managed. Profanity, obscenity, and depravity do not shock human emotions. Such situations and discussions must be seen in their entirety. The narrative must be perused in its totality and thought upon. It is not appropriate to choose a few phrases, lines, conversations, or situations and venture into the board’s resolution. Certainly, the state, and notably the Central Board of Film Certification, cannot attempt to sculpt and dominate public opinion under the guise of purported public interest or audience preference. That would be terrible, as it would hit at the heart of democracy and civil liberty, which are held in such high regard by everybody. The goals of film certification, consequently, cannot be achieved by disregarding the Constitutionally guaranteed right or by fully undermining and disappointing it. A movie has to be watched on its own and judged accordingly. The plot, subject, background, and location in which it is created, the message it aims to express, and the entertainment, among other things, would all have to be assessed using section 5B’s standards.
Should OTT platforms be governed by a code of self-regulation?
Self-regulation is presently the only option available to such platforms in order to maintain the ability to broadcast material without undue censorship. Because unreasonable restriction would impede the creative flexibility of OTT platforms. It will assist platforms in conducting themselves in an ethical and fair manner while also safeguarding the interests of their users. It would protect content producers’ artistic freedom by promoting creativity and upholding an individual’s right to free speech and expression. The general public desires to view the content in its original and untainted state. They strive to understand artwork in its most primitive sense. The fundamental role of government agency is to maintain the fair field, not to inhibit innovation and ingenuity by placing limitations in a tech industry.
Self-regulators’ competence allows them to adjust their regulations more quickly than government agencies in reaction to technological advancement. More significantly, independent of any technological change, the self-regulator is better equipped to decide when a rule should be modified to improve compliance. Self-regulation has the ability to make compliance more appealing. It develops regulations based on an expert’s level of understanding, customized to the specific sector. These rules are viewed by regulated entities as more “reasonable” from the inception owing to their involvement.
The MIB by virtue of the amendment has now can regulate and draught policies regarding digital media and online streaming on OTT platforms. However, such governmental intervention can considerably jeopardize the constitutional right to freedom of speech and expression. The suppression of freedom of speech and expression is what censorships is all about. The freedom of speech and expression suggests that right to manifest one’s thought via words of mouth, writing, picture and any other means. The freedom of speech is one of the most well-known and fiercely protected civil rights against government encroachment. In modern democratic societies, it is generally considered as an essential notion. Every citizen of a democratic nation has the freedom to express his or her opinions on various issues. Thousands of viewpoints are disseminated around the country via various channels. A film director has the freedom to manifest himself and gives effect to his thoughts, even though others may not concur with him. An exhibition of films as well as documentaries cannot be prohibited for purely speculative reasons since prohibiting motion pictures is tantamount to suppressing the right to freedom of expression and speech. Restrictions upon Individual’s freedom of speech and expression must only be permitted if they are required to avert severe harm from being perpetrated. It is critical to have a healthy and extensive amount of free expression in order to assert a thriving and well- functioning democracy. Democracy, otherwise, is obsolete and akin to a totalitarian dictatorship. It should be up to the public to determine what they want to see and what they don’t want to watch. Thus, the cornerstone to safeguarding artistic freedom is a sustainable self-governance paradigm.
 K.A. Abbas v. Union of India and Another (1970) 2 S.C.C. 780
 S. Rangarajan v. P. Jagjivan Ram (1989) 2 S.C.C. 574
 Phantom Films Pvt. Ltd. And Anr. V. The Central Board of Certification 2016 S.C.C. online Bom 3862: (2016) 4 AIR Bom R 593: AIR 2017 (NOC 62) 29
 Id. at 13
 Subhradipta Sarkar, RIGHT TO FREE SPEECH IN A CENSORED DEMOCRACY, UNIVERSITY OF DENVER SPORTS
AND ENTERTAINMENT LAW JOURNAL 62, 84 ,89 (2009)
What Determines Taliban Government’s Legitimacy?
With the fall of Kabul, and the evasion of President Ashraf Ghani, the Taliban has taken over the reins of Afghanistan. States like Pakistan and China have already expressed their willingness to “work with the Taliban” thereby legitimizing the Taliban government, whereas India has refused to recognize this “reign of terror”. The jurisprudential question of legitimacy arises here because the transfer of power in Afghanistan was through a coup d’etat which constitutes an extra-constitutional means of formation of government. Governments desire legitimacy because it gives them the right to rule and an acceptance on the international and domestic levels.
The most accepted theory in this regard is Hans Kelsen’s Pure Theory of Law. Kelsen, a positivist, claimed that law was contaminated by sociological impurities and morality, and focussed his theory on law alone. He based the legitimacy of the new order of government on its efficacy, and a rule was said to be efficacious when individuals regulated by it “behave, by and large, in conformity” with it. When the new order was efficacious, the coup was said to be successful, and the new government was held to be a legitimate one. Kelsen’s theory was widely accepted to uphold governments after coups such as in The State v. Dosso (Pakistan; 1958), Madzimbamuto v. Lardner-Burke (Southern Rhodesia; 1968), and Uganda v. Commissioner of Prisons (Uganda; 1966), among others. Since Kelsen tries to purify laws from the socio-political aspects, he contends that that it is irrelevant why people comply with the law and it could even be out of pure fear. Thus, a rogue government such as the Taliban which is efficacious as it receives compliance out of coercion and not out of consent, would be a legitimate one from a Kelsenian perspective.
The primary criticism that arises to Kelsen’s separability thesis is that he fails to distinguish between validity of law and its legitimacy. Critics have argued that while validity of law concerns with its authoritativeness, legitimacy depends on the virtue of justness and is contingent upon socio-political and moral factors. The issue lies with attaching legitimacy to the performance of the government. Instead, legitimacy should involve the questions of whether the government has the ability to demand the obligations out of voluntary conviction, provide for public goods such as the rule of law, protection of fundamental rights, etc., and function in a manner such that the society is generally benefitted. A study on legitimacy in seventy-two countries concludes that more the citizens are treated as rightful holders of political power, more legitimacy the government derives. This means that the virtue of legitimacy must flow from the citizens and the society and not from a coercive power that the top-down approach provides.
In the light of this, when the Taliban government is examined, it is realised that with its extremist ideology and terror activities in the past, it can hardly fulfil this criteria.While the ‘good Taliban’ has claimed that it will protect the freedom of press and not discriminate against women while allowing for their participation in the society within framework of Islamic law, these assurances will pacify only those who are unfamiliar with its history. Under the rule of Taliban in the years between 1996 and 2001, human rights were suspended, and political killings, rape, torture, amputation, and public executions were common place. A Taliban 2.0 which has emerged victorious against one of the major superpowers of the world, and has external support is unlikely to reform. Ideologically, they still remain the same movement committed to a puritan interpretation of Islam and this is evidenced by the fact that the barbaric Sharia law is in place once again. These baseless claims should be perceived as a political strategy to appease states into granting them de jure legitimacy because despite the jurisprudence of legitimacy developed, there is nothing in the international law that bars states like China, Russia, Pakistan or others from recognizing the rogue state of Islamic Emirate of Afghanistan. Therefore, the future of the Taliban and Afghanistan rests in the interplay of international actors.
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