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UN Human Rights Treaty Bodies Reforms: From Shuffling the Cards to Performing Global Constitutionalism

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The October-November 2017 are the delineating and defining months that present a constitutional moment in the pilgrimage of human rights when some human rights bodies of global and regional visage will sit in judgement at Geneva in Switzerland to assess the degree of States’ compliance with their human rights obligations through the States’ reports, civil society groups’ submissions, country visits, stakeholders’ hearings, webinars, individual representations and conference presentations.

Five UN Human Rights Treaty Bodies (HRTBs) are going to have their meetings throughout October 2017 to have stock-check of States’ observance with their HRTBs mandate on ICCPR-1966, ICESCR-1966, CEDAW-1979, CAT-1984, and CRC-1989. UN Human Rights Council (UNHRC) and its Social Forum will be in session and UNHRC will organize Seminars, Working Group Discussions and Thematic Panel Discussions on international human rights issues like refugees, migrants, displaced persons, climate change, transnational corporations, prevention of torture, custodial violence, fair trial guarantee, and gender justice and rights. At the regional level, the European Committee on Social Rights (ECSR), European Court of Human Rights (ECtHR), Inter-American Commission of Human Rights (IACHR) and Inter-American Court of Human Rights (IACtHR) will have their sessions too.

There are numerous bodies established under the UN Charter for promoting and monitoring compliance with international human rights, namely; the UN Human Rights Council, the Office of the High Commissioner for Human Rights, and the High Commissioner for Human Rights, the Security Council (UNSC), the General Assembly (UNGA), the Secretariat (and the Secretary-General), and the International Court of Justice. Of these, the UN Human Rights Council and the Office of the High Commissioner for Human Rights are the most active in enforcing and monitoring compliance with international human rights. UN System is a Charter-based bodies system that seeks to uphold international human rights in general; while UN  Human rights Treaty Bodies (HRTBs) address compliance with human rights in the particular human rights treaty under which they were established. Primarily, the UN human rights system is composed of two kinds of bodies; (a) Charter-based Bodies that includes the Human Rights Council and its subsidiary mechanisms and thematic mandate holder (e.g., the Human Rights Expert Mechanism on the Rights of Indigenous Peoples; Special Rapporteur on the Situation of Fundamental Freedoms of Indigenous People and Human Rights. However, Treaty Bodies – created under the international human rights treaties and made up of independent experts that have the mandate to monitor States parties’ compliance with their treaty obligations.

Therefore, the United Nations (UN) Human Rights Treaty Bodies (HRTBs) are the substratum of global human rights framework whereunder the human rights commitments, and convictions of the national governments are accounted for implementation. The HRTBs system is a synthesis of ideality and reality based on dreams and desires of humanity and ideals and practical realization of fundamental purposes and core principles of the UN Charter. The HRTB system is an unprecedented attainment of the common good in the history of global gratification for human rights beyond the multitude of geopolitical structures in all the countries. The system of HRTBs stands at the heart of the international protection framework for human rights that translate the global standards, universal norms, and democracy of judicial remedies into affirmative action, the primacy of individual development, communitarian and collective welfare of the humanity. The HRTBs mechanism is a budding and promising contrivance that provides authoritative roadmap on human rights standards, makes recommendations how human rights treaties are invoked and applied in specific cases, and apprises the High Contracting parties of what they must do to make sure that all people are free and equal and enjoy the full realization of human rights.

But, there is a pivotal question as to what extent these HRTBs have been pragmatic in accomplishing the global vision of a world wedded with human rights from textual literalism to transformative functionalism that remains to be seen? Therefore, the UN Member-States (UNMS) contemplated and concluded a State-Led Reform Process (SLRP) to strengthen and enhance the effective functioning of the HRTBs system by adopting the Resolution 68/268 in the UN General Assembly on 9 April 2014. Thus, the SLRP is armed with the architecture of ten Expert Committees entrusted with the responsibility to monitor the enforcement of the obligations in the UNMS enunciated under the core human rights treaties with the additional protocols thereto. Primarily, the SLRP process has started by the states to appreciate the objections to fundamental countenances of the HRTBs’ work to surpass the current reform endeavours initiated by the UNHCHR (United Nations High Commissioner for Human Rights). Despite the fact that HRTBs reform process ill-starred but its Final Resolution mostly sidesteps the adverse corollaries for their autonomy and independence and makes significant changes that are bound to affect their work in the long run. Nevertheless, there is a need to do a lot to enhance the efficacy of HRTBs in protecting, promoting, and preserving the human rights for all.

HRTBs: Realizations and Contestations

The HRTBs is an integral constituent of international human rights system that ensures the protection by doing an independent and impartial assessment of compliance and enforcement thresholds of human rights obligations on the part of high contracting parties. The HRTBs personnel contacts, coordinate, and conduct negotiations with plenipotentiaries of the high contracting states during Public Review of Periodic Reports of the states regarding implementation of the international human rights treaties in their respective jurisdictions. They also make public and publish all conclusions and recommendations based on the progress achieved by the countries in their human rights obligations. They come to decisions on individual and collective cases of human rights alleged violations, monitor the human rights and offer general comments interpreting the scope of the human rights commitments. The HRTBs outcomes are important to national governments, HRDs (Human Rights Defenders), NHRIs (National Human Rights Institutions), and NGOs (Non-Governmental Organizations) who provide and share the information to HRTBs and cite their conclusions, findings, and recommendations in their reports. The HRTBs also disseminate the work of UN-UPR (UN-Universal Periodic Review), UNHRC (UN Human Rights Council), UN Special Procedures, Academics, and the Courts at national, regional and international levels.

Nevertheless, HRTBs are confronted with considerable impediments in their efficacy and primacy in the absence of compelling machinery to implement the human rights mandate in the UNMS. The treaty obligations both substantive and procedural must be implemented by ensuring the conformity with human rights treaty standards inter-alia compliance of the HRTBs recommendations and submission of reports respectively. However, the majority of the UNMS and states parties to international human rights treaties do not submit their reports on time, and few of them do not report at all to UNHRC. But some states do prepare remarkable reports with the help of their domestic human rights expertise, internal HRDs and other stakeholders and countries also try to ensure significant implementation of HRTBs findings with varying degrees. The emplacement of four new HRTBs in the last ten years has posed a new set of challenges that include their ratification and mounting reporting. As of now, the HRTBs did not receive sufficient resources and wherewithal to monitor and regulate their slow functioning in disposing of backlogs of reports and communications. HRTBs experts are under tremendous pressure due to the mounting workload that strains their efficiency and efficacy. These experts and consultants are nominated and elected by the states parties to the human treaties. They are not paid and serve on the HRTBs in their personal capacities without getting adequate support from the Office of the OHCHR (UN High Commissioner for Human Rights). Therefore, the administrative functionalism in the HRTBs structure does not conform to the global standards that made it cynical and indifferent.

HRTBs Reform Peregrination

Having recognized these challenges, the Human Rights Treaty Body reforms have been initiated in 2009 by the UN High Commissioner for Human Rights Navi Pillay as a cycle of consultations involving the entire stakeholders to strengthen the HRTBs that has come to known as Dublin Process. These plans triggered significant ruminations among the present and past HRTBs academics, consultants, experts, NGOs, NHRIs, UNMS, UN Secretariat and other UN bodies. The Dublin Process completed its mandate in 2011, but a group of States led by Russian Federation raised objections that impugned process had not adequately addressed the concerns of many stakeholders. Consequently, the group successfully pushed the UN General Assembly to start the inter-governmental process based on SLRP structure. Therefore, UN General Assembly adopted a resolution in February 2012 whereunder process was created that was supported by the eighty-five States and sixty-six States abstained including the US from voting. On the Dublin Process, the UN High Commissioner for Human Rights published her report in July 2012 and negotiations had started among the States and stakeholders including international civil society institutions and organizations. Consequently, in February 2014 States brokered an agreement that was adopted by the UNGA in April 2014 as a formal resolution.

The Aftermath of the SLRP

The Dublin Process intended to secure the maximum threshold of States compliance with their obligations about reporting and meeting to facilitate the HRTBs to review the UNMS reports in an agreed and stipulated time frame. The High Commissioner for Human Rights has mooted a proposal of adopting the mandatory Master Calendar to ensure the compliance of the States parties to the human rights treaties on every five years, but many States has resisted that. If accepted, the impugned proposal would have doubled the meeting time of the States parties to the human rights treaties, but during SLRP negotiations States raised legal, pecuniary and feasibility challenges and, ultimately, it resulted in a fiasco. Even so, the SLRP has increased the meeting time of the HRTBs by more than 20% during 2012-2015. The average workload of each HRTBs has been determined every two years based on a formula so that there would not be any arrear or accumulation of cases at the cost of other functions and priorities.

Even though the Resolution enhances the HRTBs meeting time, but it does not considerably enhance the total amount of resources reserved for HRTBs. The UN regular budget covers the global funding needs of the OHCHR at a rate of 40 percent approximately. The residue is covered by voluntary contributions from UNMS and other donors. The UN regular budget, approved by the UNGA every two years, is paid by the “assessed contributions” from each Member State that are decided and determined according to a formula that takes into account the size and strength of their respective national economies. The UN’s regular budget should finance all activities mandated by the General Assembly and its subsidiary organs, including the HRC. Further, on an annual basis, the resolution makes provision for creating a capacity-building programme under OHCHR that assists the States upon their request to salvage their problems.

Harmonization of Procedures and Methodologies

The UNHRC’s report impressed upon the HRTBs to harmonize their procedures and methodologies so that their working could be improved. The SLRP or Cross Regional Group (CRG) led by Russian Federation alleged that HRTBs had exceeded treaty briefs in their style of functioning, intangible methods, indulged in political castigation of States and allowing to reference information culled from the civil society institutions like NGOs, etc. Moreover, HRTBs officials resorting to iconoclastic and innovative techniques in developing new procedures to ascribe the States’ policies, general comments, recommendations and enforcement thereof. Consequently, states impressed upon the UNGA to insist on changes to the procedures of the HRTBs and to ensure bigger obsequiousness and primacy to the views of the States. However, many States asked for self-regulation on the part of HRTBs precisely to guarantee impartiality, independence, and honesty in their functions and operations.

The intergovernmental process or SLRP vouches for UN High Commissioner for Human Rights’ proposed procedural reforms whereunder HRTBs are required to harmonize their procedures. SLRP impressed upon the HRTBs that they must conform to their Mandate and respect the positions of the state parties. Therefore, in achieving the larger harmonization, the resolution called for empowering HRTBs’ Chairs to take procedural decisions incommensurate with their prior deliberations with the fellow experts. Thus, the HRTBs’ Chairs have started the deliberations and discussions in this connection. At one fell swoop, the resolution does not put HRTBs member states in a supervisory control position over the HRTBs experts in ways that could have critically cast a shadow upon their inspection of States’ performance in preserving, promoting, and protecting the human rights. However, the resolution does not support a polemical proposal of CRG that contemplated a Code of Conduct for HRTBs experts while ensuring their accountability under a mechanism. As an alternative, it urges the HRTBs to review their Self-Regulatory Guidelines (SRGs) on accountability and independence while keeping in view the States’ concerns.

Improving the Execution and Openness

There is a requirement of enhancing, improving the existing threshold of execution and implementation of HRTBs with transparency in conformity with UN High Commissioner’s objectives to ensure the high quality reporting and enforcing the HRTBs’ recommendations in the municipal jurisdictions of the States parties. However, UNGA Resolution makes a sporadic mention that States to emplace “standing national reporting and coordination mechanisms” to compile reports in consultation with civil society institutions, NGOs, non-state actors and all stakeholders while appreciating and monitoring the HRTBs work and recommendations and their implementation. On the issue of accessibility and openness, UN High Commissioner advocated their enhancement and reflection in the functioning and operations of HRTBs. Further, UNGA Resolution envisages the UN webcasting of HRTBs meetings but, unfortunately, it has been perceived as rhetoric leaving it to OHCHR to arrange its funding. Moreover, it has also recommended that HRTBs should stipulate word limitations to reports and representations made by the NGOs and other civil society groups just to rationalize the cost incurrences. Similarly, UNGA Resolution begs off to entertain the recommendations of the UN High Commissioner regarding promotion and selection of HRTBs experts and consultants.

Conclusion

The ratification of human rights declarations, treaties, and optional protocols must be mobilized on the largest scale to improve upon human rights protection at all levels of nation-states, regional arrangements, and global commitments. Simultaneously, national constitutions, national legislations, public policies and lego-institutional response structure must conform to the HRTBs system. There are many challenges confronting the HRTBs like overstraining of resources due to the proliferation of human rights treaty bodies, States parties reluctance and irregularity in reporting, and mounting individual communications. However, there are some States both from developed and developing a world that is entirely compliant with their reporting obligations, but there is a backlog of reports with the HRTBs. However, if all the States parties start reporting in a disciplined manner and well-stipulated timeframe, HRTBs system might collapse as it is not well-equipped to handle the entire gamut of reporting submissions. The UNGA Resolution 68/268 has been adopted to reflect upon and strengthen the HRTBs system.

It is aptly be put forward that UN General Assembly has been attending, appreciating and addressing many of the HRTBs concerns regarding resources, functioning, and operations but much remain to be tackled to make HRTBs stronger and stouter in responding to emerging human rights violations. UNGA resolution seeks to make HRTBs system more sustainable and sturdier without incurring further UN resources while making optimum utilization of enhanced meeting time slots. However, the requirement for more resources would occur in future owing to the sustainability apprehensions and anxieties as there would be mounting workload of HRTBs disproportionate to the limits of the volunteer experts’ capacity. Thus, rights-holders and stakeholders of the HRTBs must be central to any review of the HRTBs system.

Therefore, currently contemplated reform agenda is insufficient and intangible to meet these challenges posed by the HRTBs. In a nutshell, all stakeholders to the HRTBs structure must pursue the substantive objectives identified in the Dublin Process along with UN High Commissioner’s Report. Hence, the visibility of HRTBs to larger public must significantly be enhanced, reporting quality and regularity of State reports submissions must be increased, proactive implementation of recommendations of the HRTBs, and strengthening the efficacy of HRTBs membership while upholding the accessibility, accountability, independence and transparency of the HRTBs system to all the stakeholders and civil society groups. HRTBs require these indispensable, inevitable and inescapable changes so that HRTBs could make a greater contribution to the protection, preservation, and promotion of human rights and civil liberties across the world.

Ph. D., LL.M, Faculty of Legal Studies, South Asian University (SAARC)-New Delhi, Nafees Ahmad is an Indian national who holds a Doctorate (Ph.D.) in International Refugee Law and Human Rights. Author teaches and writes on International Forced Migrations, Climate Change Refugees & Human Displacement Refugee, Policy, Asylum, Durable Solutions and Extradition Issus. He conducted research on Internally Displaced Persons (IDPs) from Jammu & Kashmir and North-East Region in India and has worked with several research scholars from US, UK and India and consulted with several research institutions and NGO’s in the area of human displacement and forced migration. He has introduced a new Program called Comparative Constitutional Law of SAARC Nations for LLM along with International Human Rights, International Humanitarian Law and International Refugee Law & Forced Migration Studies. He has been serving since 2010 as Senior Visiting Faculty to World Learning (WL)-India under the India-Health and Human Rights Program organized by the World Learning, 1 Kipling Road, Brattleboro VT-05302, USA for Fall & Spring Semesters Batches of US Students by its School for International Training (SIT Study Abroad) in New Delhi-INDIA nafeestarana[at]gmail.com,drnafeesahmad[at]sau.ac.in

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The rise & rise of populist demagogues in democratic nations

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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“.

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OTT broadcast and its censorship: Whether a violation of freedom of speech and expression

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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[1], 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 [2]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[3], 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[4].

Conclusion

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[5]. 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.


[1] K.A. Abbas v. Union of India and Another (1970) 2 S.C.C. 780

[2] S. Rangarajan v. P. Jagjivan Ram (1989) 2 S.C.C. 574

[3] 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

[4] Id. at 13

[5] Subhradipta Sarkar, RIGHT TO FREE SPEECH IN A CENSORED DEMOCRACY, UNIVERSITY OF DENVER SPORTS

 AND ENTERTAINMENT LAW JOURNAL 62, 84 ,89 (2009)

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International Law

What Determines Taliban Government’s Legitimacy?

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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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